State ex rel. Kuhlman v. Poucher ( 1903 )

BLAND, P. J.

The city of Louisiana in Pike county, Missouri, was incorporated by an act of the Legislature passed in 1870. In March, 1900, plaintiff in error was nominated by the mayor of the city to be clerk of the city council and his appointment was duly confirmed by the council. In March, 1901, a new council was elected and the mayor again nominated plaintiff in error to be clerk of the city council, but the council refused to approve the nomination and on April 1,1901, passed an ordinance (No. 1647) the first section of which reads as follows:

“That Henry Kuhlman he and he is hereby appointed clerk of the city council for a term of one year, and until his successor is duly appointed and qualified. ’ ’

The ordinance was duly approved by the mayor on the day of its passage. After its passage, Henry Kuhlman, defendant in error, qualified by giving bond and taking the oath of office and then demanded of Harry Poueher, plaintiff in error, the books and papers pertaining to the office. The latter refused to give up the books and papers of the office or to surrender the office to Kuhlman, whereupon John W. Jump, prosecuting attorney of Pike county, at the relation of Kuhlman, commenced proceedings by quo warranto to oust Poueher from the office of clerk of the city council.

The issues were made up by the alternative writ and return thereto. The parties appeared in the circuit court of Pike county and a hearing was had which resulted in a judgment of ouster against Poueher. He took the necessary steps to preserve his exceptions and sued out a writ of error from this court and the case is here on a a return to that writ.

The correctness of the judgment of the circuit court depends upon the construction of section 5, article 2, and of sections 6 and 9, article 4, of the city charter. Section 5, article 2, is a.s follows:

“The council may appoint a clerk and such other officers, servants and agents as they shall deem necessary in the transaction of their business.”

Sections 6 and 9, article 4, are as follows:

“Section 6. The mayor shall act as president of the city council and he shall have power to nominate and by and with the consent of the city council to appoint all city officers not ordered by this act to be otherwise appointed. . . . The mayor while presiding in the city council, shall have no vote on any measure or question except there be a tie, in which case he shall give the casting vote.

“Section 9. There 'shall be a clerk of the city council (who shall perform the duties of register, and such other duties as the city council shall direct), a city treasurer, city marshal, city attorney, and city engineer, who in addition to the duties prescribed by this act, shall perform such other duties as may be prescribed by ordinance; there shall be also such other officers, servants and agents of the corporation, as may be'provided by ordinance, to be appointed by the mayor, by and with the consent of the city council, and to perform such duties as may be prescribed by ordinance, and such officers shall be removable at the pleasure of the city council by a majority of at least two-thirds of the city council.”

The contention of' plaintiff in error is that section 9, article 4, of the charter, confers on the mayor the power to appoint the clerk of the city council and that this appointing power is re-enforced by section 6, of the same article. There is no connection between the first clause of section 9, article 4, declaring that ‘ ‘ There shall be a clerk of the city council,” etc., and the second clause of the section providing that other officers, servants and agents pray be provided for by ordinance, and it is only the officers, agents and’ servants provided for by ordinance that the section declares shall be appointed by the mayor. Section 6 of the article is general in its scope and confers on the mayor power to appoint all officers not otherwise ordered by the charter to be appointed.

Section 5, article 2, expressly confers on the city council authority to appoint a clerk and such other officers, etc., as they shall deem necessary in the transaction of their business. The contention of plaintiff in error is that this section does not have reference to the clerk of the council provided for in section 9, article 4, but to an emergency clerk to do special work and to serve for a limited time. Section 9 says there shall be a clerk of the city council. Section 5, article 2, declares that the co.uncil may appoint a clerk.

The clerk provided for in section 9, and the one the council is authorized to appoint by section 5, is a clerk of the city council, and both sections mean one and the same officer. If this is not so, then the council may have two clerks, one appointed by the mayor under section 9, and another appointed by the council under section 5 without the consent of the mayor. It was not intended that this conflict of authority to appoint a clerk of the council should exist, and it is our duty to so construe the charter as to harmonize its provisions in this respect. The construction we have given to these sections brings about this harmony and prevents any conflict of authority between the mayor and the city council to' appoint a clerk of the council. We think this construction is clearly admissible and is in harmony with the reading of the sections and will effectuate the intention of the Legislature. The clerk of the council being its officer, subject to its orders and required to keep minutes of its proceedings, it is highly important that he should be selected by that body, and we think the Legislature, by section 5, article 2 of the’ charter, has conferred upon it the exclusive right to appoint its own clerk.

The judgment is affirmed.

Reyburn and Goode, JJconcur.