Opinion
No. 41330.
March 18, 1950. Rehearing Denied, April 10, 1950.
Civil service employees of the City of St. Louis were improperly laid off on account of loss of expected revenue and the Civil Service Commission properly reinstated them without loss of pay.
1. MUNICIPAL CORPORATIONS: St. Louis Civil Service Amendment: Funds Available: Layoffs of Employees Not Valid. After the board of aldermen had made appropriations for the salaries of civil service employees there were funds available for the payment of such salaries within the meaning of the Civil Service Amendment, even though expected revenue would be lost because the St. Louis earnings tax had been declared unconstitutional. The layoffs of civil service employees attempted by the executive officials of the city were invalid.
2. MUNICIPAL CORPORATIONS: St. Louis Civil Service Amendment: Reinstatement Without Loss of Pay Proper. The Civil Service Commission had the right to reinstate without loss of pay civil service employees who had been laid off in violation of the Civil Service Amendment.
Appeal from Circuit Court of City of St. Louis; Hon. Harry F. Russell, Judge.
AFFIRMED.
James E. Crowe, City Counselor, and John P. McCammon, Associate City Counselor, for appellants.
(1) The City of St. Louis may lay off employees for lack of available funds. Funds are not "available" in either of two events, (a) if not appropriated, or (b) if the appropriation is made on the faith of a tax which subsequently is held void. The Civil Service Commission and the trial court erred in holding contra. Webster's New International Dictionary; Funk Wagnalls Standard Dictionary; Oxford Dictionary; Dictionary of University of Chicago; Century Dictionary; State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532; Graham v. Board of Examiners, 116 Mont. 584, 155 P.2d 956; Carter Carburetor Corp. v. St. Louis, 356 Mo. 646, 203 S.W.2d 438; State ex rel. v. Kirby, 349 Mo. 988, 163 S.W.2d 990; State ex rel. Rawlings v. Kansas City, 213 Mo. App. 349, 250 S.W. 927. (2) The Charter of the City of St. Louis authorizes layoffs, and they may be ordered without regard to seniority if made in good faith and for economy. Charter, Art. XVIII, Secs. 4, 3 (a), 3 (o), 9 (n), 3 (h), 3 (f); Coleman v. Kansas City, 351 Mo. 254, 173 S.W.2d 572; Wier v. Kansas City, 356 Mo. 882, 204 S.W.2d 268. (3) Layoff, for economy, if made in good faith, is proper, regardless of Charter provisions. The Commission and the trial court erred in refusing so to hold. 37 Am. Jur., Mun. Corps., sec. 245, p. 873; 10 Am. Jur., Civil Service, sec. 12, p. 933; 2 McQuillin, Mun. Corps. (2d Ed.), pp. 449, 450; State ex rel. Buckman v. Munson, 141 Ohio St. 319, 18 N.E.2d 109; Shira v. State ex rel. Ham, 119 N.E. 833; Goss v. Justice of Dist. Ct., Holyoke, 18 N.E.2d 546; Sayrs v. Brunner, 122 N.J.L. 591, 7 A.2d 403; Kraibuehler v. Civil Service Comn., 46 A.2d 89; Weigle v. San Francisco, 72 P.2d 902; City of Phoenix v. Kidd, 92 P.2d 513, 94 P.2d 428; City of Phoenix v. Powers, 113 P.2d 353; Coppock v. City of Knoxville, 147 S.W.2d 103; State ex rel. Ausburn v. Seattle, 67 P.2d 913, 111 A.L.R. 418, and note at 438; Charter, Art. XVIII, Sec. 2. (4) In no event were the laid-off employees entitled to pay for time not worked, and the Commission and the trial court erred in holding that they were and in ordering the City to pay them for such time. State ex rel. Kansas City v. Coon, 316 Mo. 524, 296 S.W. 90; State ex rel. Gallagher v. Kansas City, 319 Mo. 705, 7 S.W.2d 357; Mitchell v. City of Portland, 78 P.2d 582; Charter, Art. XVIII, Sec. 3 (t), Sec. 7 (g). (5) The Commission's opinion shows on its face that its order was based in part on the results of an independent investigation made by it covering length of service of the laid-off employees. In considering this question, the Commission violated both the provisions of the Charter and its own rules, and the trial court erred in not so holding. Charter, Art. XVIII, Sec. 3 (f), Sec. 3 (h); Rule IX, Sec. 2; Lyon v. Civil Service Comn., 212 N.W. 579; State ex rel. Salvesen v. City of Milwaukee, 249 Wis. 351, 24 N.W.2d 630; Wagner v. City of Pittsburgh, 352 Pa. 647, 44 A.2d 261. (6) The order of the Commission and the judgment of the court are void since they would compel the City to become indebted for more than the income provided for the year, in violation of the Constitution. Constitution, Art. VI, Sec. 26 (a); State ex rel. Ginger v. Palmer, 198 S.W.2d 10. (7) The Civil Service Commission invaded the province of the courts, and exercised judicial power, in violation of the Constitution. Constitution, Art. II.
McDonald Wright, Thomas F. McDonald, Wayne B. Wright and William H. Webster for respondents.
(1) The burden of proof is on the appellants to show that there was a lack of available funds to pay the said employees' salaries; this burden was not met. Charter of the City of St. Louis, Art. XVIII; State ex rel. Rothrum v. Darby, 355 Mo. 1002, 137 S.W.2d 532; Kirby v. Nolte, 351 Mo. 525, 173 S.W.2d 391; State ex rel. Pedrolie v. Kirby, 349 Mo. 1010, 163 S.W.2d 964; State ex rel. Ham v. Kirby, 349 Mo. 988, 163 S.W.2d 990; Weir v. Kansas City, 356 Mo. 882, 204 S.W.2d 268; Ferguson v. Johnson, 57 S.W.2d 372; State ex rel. Ausburn v. City of Seattle, 67 P.2d 913; Clarence Special School District v. School Dist. No. 67, 341 Mo. 178, 107 S.W.2d 5; LaPrade v. Dept. of Water Power of the City of Los Angeles, 162 P.2d 13: Steen v. City of Los Angeles, 182 P.2d 602. (2) The Charter of the City of St. Louis requires that in the selection of employees to be laid off, for any reason, consideration must be given to service ratings and that those employees with an inferior service rating be laid off first. The lay-off of an employee with a higher service rating than that of a retained employee in the same classification and in the same payroll section is void. (3) The facts developed by the Civil Service Commission's investigation of the relative service ratings of employees laid off and those retained in the same classification and payroll section were properly in evidence before the Commission. Charter of the City of St. Louis, Art. XVIII, Secs. 2, 3 (h). (4) The lay-off of the employees in question being a nullity, and no one having been appointed to fill their positions and to receive their salaries, they are entitled to their salaries for the period during which they were deprived of their employment. State ex rel. Hamilton v. Kansas City, 303 Mo. 50, 259 S.W. 1045; State ex rel. Gallagher v. Kansas City, 319 Mo. 705, 7 S.W.2d 357; State ex rel. Lindsay v. Kansas City, 20 S.W.2d 1; State ex rel. Kansas City v. Trimble, 317 Mo. 1208, 298 S.W. 833; State ex rel. Lindsay v. Kansas City, 225 Mo. App. 139, 20 S.W.2d 7; State ex rel. Kansas City v. Trimble, 322 Mo. 360, 20 S.W.2d 17. (5) The record does not show that the reinstatement of the employees in question, as ordered by the Civil Service Commission, required the City of St. Louis to violate Article VI, Section 26 (a) of the Missouri Constitution. There is no violation of such provision unless the City becomes indebted in an amount exceeding for the fiscal year in question the "income and revenue provided for such year plus any unencumbered balances from previous years". There is no evidence in the record that the amount of the reinstated employees' salaries would cause the City to become indebted in an amount exceeding the income and revenue provided for the year plus unencumbered balances from previous years. Missouri Constitution, Art. VI, Sec. 26 (a); State ex rel. Rothrum v. Darby, 355 Mo. 1002, 137 S.W.2d 532; Clarence Special School Dist. v. School Dist. No. 67, 341 Mo. 178, 107 S.W.2d 5; Trask v. Livingston County, 210 Mo. 582, 109 S.W. 656, 37 L.R.A. (N.S.) 1045; Austin Western Road Machinery Co. v. New Madrid, 185 S.W.2d 850. (6) The Civil Service Commission in its decision did not violate Article II of the Missouri Constitution. The Commission has quasi-judicial power to consider and determine all matters referred to it by the Director of Personnel or coming to it on appeal from an act of the director or any appointing authority. State ex rel. Ham v. Kirby, 349 Mo. 988, 163 S.W.2d 990.
Norman Bierman amici curiae; Anderson, Gilbert, Wolfort, Allen Bierman of counsel.
(1) The City admits that ample appropriations were duly made by the Board of Aldermen to pay the salaries of all the employees laid off, and that such appropriations were not subsequently cut or reduced. Therefore, there was no lack "of funds available therefor," and, therefore, no legal ground for layoff existed, since this was the only ground claimed by the City as the reason for its action. The layoffs were therefore unlawful and a nullity. Ferguson v. Johnson, 57 S.W.2d 372; State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532; Wier v. Kansas City, 356 Mo. 882, 204 S.W.2d 268. (2) There is no legal authority for the proposition that "funds become unavailable" if one of the many forms of taxes, (which together make up all the sources of the anticipated revenue of a city upon which an appropriation ordinance is based), is subsequently held to be invalid. The invalidation of one particular type of tax which, along with numerous other taxes and other items of revenue from many other sources, make up the anticipated revenue of a city, will not invalidate an appropriation ordinance duly enacted, which was based on the revenue anticipated at the time of its passage from the sum total of all taxes and sources of income and revenue of the city. The failure to collect all taxes levied will not invalidate an appropriation ordinance duly and lawfully enacted. Clarence Special School Dist. v. School District etc., 341 Mo. 178, 107 S.W.2d 5; Graham v. Board of Examiners, 116 Mont. 584, 155 P.2d 956; Ferguson v. Johnson, 57 S.W.2d 372. (3) The legislative body of the City of St. Louis, the Board of Aldermen, and it alone, has the sole authority to enact appropriations by ordinance, and it alone has the sole authority to decrease or cut appropriations previously made by ordinance. These are legislative functions, and are not the prerogative of the Mayor or appointing authorities. Charter, City of St. Louis, Art. XVI; State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532; Wier v. Kansas City, 356 Mo. 882, 204 S.W.2d 268. (4) The Mayor and the appointing authorities of the City of St. Louis have no power to lay off permanent civil service employees on the sole ground of "lack of funds available," so long as there is in existence an adequate and duly enacted appropriation ordinance providing funds which are sufficient to pay their salaries. (5) The Civil Service Commission of the City of St. Louis had jurisdiction of the subject matter and persons involved, and had the duty and authority to consider and determine on appeal, whether an employee had been legally separated from the city service in accordance with the Charter provisions therefor, by discharge, removal, layoff, or otherwise. When, after a hearing on such an appeal, the Civil Service Commission decided that such separation was illegal, and was not accomplished in accordance with the Charter provisions, the Civil Service Commission had the power and authority and it was its duty to order such an employee restored to his position. It also had the power and authority and it was its duty, under such circumstances, to determine and render its decision that such employee is entitled to pay for the period during which he was illegally prevented from occupying his position. Charter, Art. XVIII, Sec. 7 (d). (6) If the layoffs of the employees in question were contrary to the provisions of the Charter then such layoffs were illegal and a nullity, and since other persons were not appointed to, and had not occupied their positions under color of title in their stead, and had not received their salaries during this period, the employees in question continued to legally occupy the positions in question, and they were entitled to the salary provided for their positions or offices. State ex rel. Nicolai v. Nolte, 352 Mo. 1069, 180 S.W.2d 740; State ex rel. Hamilton v. Kansas City, 303 Mo. 50, 259 S.W. l.c. 1049; State ex rel. Prior v. Kansas City, 261 S.W. 112; State ex rel. Langford v. Kansas City, 261 S.W. 115; State ex rel. Gallagher v. Kansas City, 319 Mo. 705, 7 S.W.2d 357; State ex rel. Chapman v. Walbridge, 153 Mo. 194; Tracey v. St. Louis, 213 Mo. 397; State ex rel. Lindsay v. Kansas City (Two Cases), 20 S.W.2d 1, 20 S.W. 7; State ex rel. Rundberg v. Kansas City, 206 Mo. App. 17, 226 S.W. 986; State ex rel. Eckels v. Kansas City, 257 S.W. 197; State ex rel. Rawlings v. Kansas City, 213 Mo. App. 349, 250 S.W. 927; State ex rel. Barnett v. McDonnell, 280 S.W. 66; Luth v. Kansas City, 203 Mo. App. 110, 218 S.W. 901; State ex rel. Leader v. Kansas City, 258 S.W. 762; State ex rel. Wingfield v. Kansas City, 217 Mo. App. 288, 263 S.W. 516; State ex rel. Zaner v. Kansas City, 263 S.W. 521. (7) The fact that the laid off employees were prevented from actually rendering service during the period of their unlawful separation, through no fault of their own (they had formerly offered to return to their positions and had been turned down by the City), will not prevent them from receiving payment of their salaries, since the City did not pay their salaries to any other de facto officers or employees, and since no other persons were appointed to and no other persons occupied their positions under color of title during the same period. Feuchter v. St. Louis, 210 S.W.2d 21; State ex rel. Lindsay v. Kansas City, 20 S.W.2d 1; State ex rel. Kansas City v. Trimble, 317 Mo. 1208, 298 S.W. 833; 322 Mo. 360, 20 S.W.2d 17; 322 Mo. 368, 20 S.W.2d 20 (Three Cases). (8) The Charter of the City of St. Louis does not authorize layoffs on the general grounds of "economy." It does specify two other particular grounds for layoff. If neither of those specified grounds exist, then a layoff solely on the general ground of, or for "economy," is illegal. Layoffs may not be made except in strict accord with Charter provisions. Goss v. Justice of the District Court of Holyoke, 18 N.E.2d 546; City of Phoenix v. Powers, 113 P.2d 353; Childress v. Peterson, 117 P.2d 336; 43 C.J., p. 679. (9) There was no proof adduced by the City or the appointing authorities that the appropriations covering the salary of the employees of the City of St. Louis (including the employees laid off), for the fiscal year 1947-1948, compelled the City to become indebted for more than the income provided for the year, "plus any unencumbered balances from previous years," nor was there any proof adduced that the payment of the salaries to the employees laid off did, or would compel "the city to become indebted in an amount exceeding in any year the income and revenue provided for such year, plus any unencumbered balances from previous years." This is an affirmative defense and the burden to establish it was on the City and the appointing authorities. There was proof adduced by the employees-appellants below that an appropriation ordinance (No. 44,112), providing ample funds to pay their salaries was duly and lawfully enacted. There was no violation, therefore, of the Constitution of Missouri, 1945, Article VI, Sec. 26 (a). Constitution of Missouri, 1945, Art. VI, Sec. 26 (a); State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532; Linn Consolidated High School Dist. No. 1 v. Pointer's Creek Public School Dist. No. 42, 203 S.W.2d 721; Clarence Special School Dist. v. School District No. 67, 341 Mo. 178, 107 S.W.2d 5; Dye v. School District No. 32, 355 Mo. 231, 195 S.W.2d 874. (10) The Civil Service Commission did not invade the province of the court and did not exercise judicial power in violation of Article II of the Constitution of Missouri 1945. Furthermore, the Commission did not enter a money judgment for the laid off employee-appellants in the approximate aggregate sum of Sixty-four Thousand Dollars ($64,000), or any other sum. It merely enunciated the long established law of this state in finding that the employee-appellants "were entitled to compensation from the City of St. Louis for the period of their separation from their positions." This was its manifest duty under the law. Charter, Art. XVIII, Sec. 7 (d); State ex inf. McKittrick ex rel. Ham v. Kirby, 349 Mo. 988, 163 S.W.2d 990; Kirby v. Nolte, 349 Mo. 1015, 164 S.W.2d 1; Howlett v. State Social Security Comm., 347 Mo. 784, 149 S.W.2d 806. (11) Under the Charter of the City of St. Louis, "service ratings" must be given consideration in deciding who should be laid off and who should be retained. The record indicates that permanent employees with better service ratings were laid off, while others in the same class and in the same payroll sections, with inferior service ratings, were retained. This was contra to the letter, and the spirit and intent, of the Civil Service Act. The Commission did not err therefore in finding that the layoffs were also invalid for this additional reason. Charter, Art. XVIII, Sec. 3 (h), Sec. 2; State ex rel. Pedrolie v. Kirby, 163 S.W.2d 964. (12) Since the Civil Service Commission had jurisdiction, and did not act in excess of or abuse of its jurisdiction, and since its findings were and are in accord with the established law, and were supported by competent and substantial evidence upon the whole record, it is not within the province of the appellate courts to disturb such findings, and the judgment of the circuit court sustaining and affirming the Civil Service Commission of St. Louis, and quashing the writ of certiorari, should be affirmed. Constitution of Missouri, 1945, Art. V, Sec. 22; Howlett v. State Social Security Comm., 347 Mo. 784, 149 S.W.2d 806; Karch v. Empire Dist. Electric Co., 218 S.W.2d 765; Brown v. Weber Implement Auto Co., 206 S.W.2d 350; Goetz v. J.D. Carson Co., 206 S.W.2d 530; Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Williams v. International Shoe Co., 213 S.W.2d 657; Taylor v. State Social Security Comm., 181 S.W.2d 209; Morton v. State Social Security Comm., 205 S.W.2d 272; Laforge v. Coglizer Tent Awning Co., 205 S.W.2d 957.
The City of St. Louis and certain of its officials appeal from a judgment of the Circuit Court of the City of St. Louis in this certiorari proceeding by which that court reviewed the action of the city's Civil Service Commission in determining the appeals of a large number of civil service employees who had received notices separating them from the city's service. The Circuit Court affirmed the Commission's action and quashed the writ.
The civil service amendment was adopted in 1941. It is now designated as Article XVIII of the charter. All references herein to such amendment are to that article. Between September 15 and October 15, 1947, notices of separation were delivered by the appropriate appointing authorities to 479 employees. Appeals to the Civil Service Commission from such action were taken by Rose Colvin and a large number of others affected thereby. The number of such appeals was finally reduced to 131 (all being employees having permanent civil service status), and, as thus reduced in number, all such appeals were heard together and determined in a single opinion or report.
The Commission held that the separations were layoffs and not dismissals, and, by a divided vote, further found and held (1) that such layoffs were improper and invalid because not made in accordance with the provisions of the civil service amendment to the charter and the rules of the Commission adopted pursuant thereto; (2) that those appellant-employees who had not already been restored to their positions should be restored forthwith; and (3) that appellant-employees "are entitled to compensation from the City of St. Louis for the period [782] of their separation from their positions."
The purpose of the civil service amendment is declared to be "to provide a modern and comprehensive system of personnel administration for the city, whereby economy and effectiveness in the personal services rendered the City, and fairness and equity to the employees and the taxpayers of the City, alike, may be promoted." A basic requirement of the article, as specified in § 2, is that "all appointments and promotions to positions in the service of the City and all measures for the control and regulation of employment in such positions, and separations therefrom, shall be on the sole basis of merit and fitness, which, so far as practicable, shall be ascertained by means of competitive tests, or service ratings, or both."
The Civil Service Commission is empowered and required by § 7 to prescribe rules for the administration and enforcement of the civil service amendment, and of any ordinance adopted in pursuance thereof. § 3 directs that such civil service rules shall provide for the following things, among others, with relation to the classified service:
"(f) for indefinite tenure of employment in positions in the classified service during meritorious service, except in cases for which definite terms are prescribed by law or charter, and except in cases of temporary appointment hereunder, but with due provision for layoff on termination of the need for employment in any position, or of funds available therefor;" (Emphasis ours.)
The rules of the Civil Service Commission in relation to tenure and layoff are, in pertinent part, these:
"RULE IX
"§ 1. Tenure: Every employee who is legally appointed as a result of certification from an appropriate eligible list and who successfully completes his working period shall have indefinite tenure of employment in the classified service during meritorious service, except in cases for which definite terms are prescribed by law or charter.
"§ 2. Layoff: Whenever there shall be no further need for employment in any position because of either stoppage of work, or lack of available funds, or for any other reason, such position may be abolished, and regular employees in the classified service may be laid off without pay, despite any provision of the rules concerning tenure. * * *"
"RULE I
"§ 1. Definitions: The following words and phrases when used in these rules shall have the following meaning, unless clearly indicated in the text:
* * * * * * *
"(y) `Layoff' means the removal of an employee because of lack of work, failure of financial appropriation, or other causes which do not reflect on the employee." (Emphasis ours.)
It was stipulated at the hearing before the Civil Service Commission that the sole and only reason assigned for the separations or layoffs of the appealing employees was "lack of available funds" on the part of the city. Also, that the Board of Aldermen had, by ordinance, appropriated for the fiscal year, an amount sufficient to pay the salaries of all city employees, including those here involved. For present purposes, we will assume (although the record fails to satisfactorily establish) that shortly before the separation notices went forward, there appeared to be an impending deficit estimated at 3 to 4 million dollars for the fiscal year 1947. The Mayor and the department heads thereafter determined upon the policy of laying off as many employees as possible without seriously impairing the public health and safety, the carrying out of this policy resulting in these separations.
It was further stipulated at the hearing:
"That none of the lay-offs of any of the appellants was because there had been termination of the need for employment of any single one of said employees in any position occupied by any such employee; that no employee was laid off because his position was deemed non-essential; that, on the contrary, the services of each of said employees were needed at the time of his [783] lay-off and were still needed by the City at the time of the hearing before the Civil Service Commission.
"That actually not one of the positions occupied by any of said employees had been abolished by the Appointing Authorities or by the City.
"That none of said employees was separated from the City Service because of any fault on his part, or for a reason which would reflect discredit upon him."
Other facts will be stated in connection with the points to which they relate.
Appellants' first contention is that funds are not "available" within the meaning of § 3 (f) of the amendment (and § 2, Rule IX, and § 1 (y), Rule I, adopted pursuant thereto) in two events: (a) If not appropriated (a proposition not controverted); and (b) if the appropriation is made on the faith of a tax which is subsequently held void. In support of the latter proposition, it is urged that the monies to be derived from the city's earnings tax failed when, in June, 1947, the ordinance therefor was held unconstitutional by this court in Carter Carburetor Corp. v. City of St. Louis, 356 Mo. 646, 203 S.W.2d 438. We will further assume (although the record fails to so show) that the supposed deficit was threatened on this account.
In a somewhat analagous situation, the Supreme Court of Montana defined "funds available" as including "not only funds in the treasury, not otherwise appropriated, but also monies to be derived from taxes and other sources provided for by the legislative assembly for such year." Graham v. Board of Examiners, 116 Mont. 584, 155 P.2d 956, 960. See, also, Ferguson v. Johnson, (Texas) 57 S.W.2d 372. The city was not helpless under the new state of facts confronting it. Indeed, it appears from the testimony of the City Counselor that at the time of the conferences of the Mayor and department heads having to do with measures to bring the expenditures of the city within its anticipated revenues, there were then pending before the Board of Aldermen some ordinances to raise revenue generally, but the witness did not know when they would be enacted into law, and did not know how much revenue they would produce. Both sides cite State ex rel. Rothrum v. Darby, et al., 345 Mo. 1002, 137 S.W.2d 532. In that case, deductions in the salary of an employee in the classified service had been required by the City Manager through the device of an agreement which, in effect, provided for deductions from pay fixed by ordinance. Mandamus was brought to compel the city to pay the relator money thus deducted, and claimed to be due for salary. It was there said: "Public offices and positions belong to the people and not to officers upon whom they confer appointive power. * * * The qualifications, tenure, and compensation thereof must be determined by the people or the people will lose control of their government. This must be done by the representatives the people have authorized to act for them, unless the people themselves have determined these matters by writing them into the Constitution. If the people have not thus themselves determined them, then under our Constitution and theory of government, these are legislative powers." [l.c. 536.]
"In any event, the charter placed upon the council, and not on the City Manager (who could only recommend), the duty of fixing salaries and authorizing other expenditures on a basis that would come within the city's revenue." [l.c. 541.]
In the later case of Wier v. Kansas City, 356 Mo. 882, 204 S.W.2d 268, 271, involving claims for deductions from salaries made as in the Rothrum case, as well as some made under ordinance authority, it was said: "It was the duty of the council to revise the salaries to fit the income of the city, and the matter of when such action should be taken was for the council to decide."
Under § 3, Art. XVI of the charter, the Board of Aldermen has a right in considering an appropriation ordinance for salaries, as recommended by the Board of Estimate and Apportionment, to reduce any item thereof. Having the power to do so in the first instance, it follows that it may reduce an appropriation once made when it [784] is determined that monies appropriated for such purpose will not be forthcoming. We find nothing in § 3 (n) and (s) nor in § 4 of the amendment which limits this right. The failure of a single revenue producing measure might or might not be sufficient reason to cause the legislative body to re-examine an appropriation made in reliance upon such a measure. On the other hand, it might determine that the sum appropriated remain unchanged, and provide additional sources of revenue. The matter of appropriations for the payment of salaries of employees of the city is, in any event, a legislative question, and we hold that under the appropriation here involved, the funds became "available" in a legal sense when the ordinance became effective, and remained so until changed by the same authority. And we agree with respondents that failure to collect all the revenue anticipated at the time the appropriation ordinance was enacted (or a debt incurred) does not invalidate an appropriation that is within the revenue provided for when made. State ex rel. Rothrum v. Darby, supra; Clarence Special School District v. School Dist. No. 67, 341 Mo. 178, 107 S.W.2d 5. These same cases, for the reasons therein stated, determine adversely to appellants their contention that the challenged action of the Commission, as affirmed by the trial court, is void because compelling the city to become indebted for more than the income provided for the year, in violation of § 26 (a), Art. VI of the Constitution.
Layoffs can be effected only by adhering to the governing charter provisions and rules enacted pursuant thereto. It is clear this was not done in this case, there being no competent evidence of the termination of "funds available therefor" as used in § 3 (f).
Appellants charge the Commission "attempted" to give the appealing employees a money judgment for the amount of their salaries during the period of the layoff. They invoke § 7 (g), declaring that the Commission shall have power, and it shall be its duty "to order the reinstatement without loss of pay of any employe who has been discharged, demoted, or reduced in rank or compensation for religious, racial or political reasons." But they contend that this provision constitutes the sole basis for restoration without loss of pay, and that such basis was wholly lacking in the matter of these appeals; that therefore in finding that the employees were entitled to be restored to their positions with compensation from the city for the period of their separation, the Commission usurped judicial powers, in violation of Art. II of the Constitution. This contention overlooks the provisions of § 7 (d), reading as follows:
"The Commission shall have power, and it shall be its duty:
"(d) to consider and determine any matter involved in the administration and enforcement of this Article and the rules and ordinances adopted in accordance therewith that may be referred to it for decision by the director, or on appeal by any appointing authority, employe, or taxpayer of the City, from any act of the Director or of any appointing authority. The decision of the Commission in all such matters shall be final, subject, however, to any right of action under any law of the State or of the United States;"
This is a provision of the city's own charter. It is concededly sweeping, but the Commission's action is clearly referable to it. There were no formal pleadings before the Commission, but in all cases the appealing employees asked that their appeals be considered and determined, and that they be ordered reinstated without loss of pay, and all parties admitted "that jurisdiction of these appeals is vested in this Commission * * *." In view of the foregoing, and the absence of any direct attack upon the constitutional validity of § 7 (d) of the charter, we think this question, and others urged in the brief, which are determinable under the latter section, should not be ruled in this proceeding.
The judgment is affirmed. All concur.