State Ex Rel. Gillis v. Goodrich

1 Reported in 264 N.W. 234. The powers of the city comptroller of the city of St. Paul are in question. The case comes here on appeal by relator from a judgment quashing an alternative writ of mandamus. Mandamus was sought for the purpose of compelling the comptroller to transmit to the city council, as his own, the estimate of the commissioner of public safety relating to the bureau of fire protection, hereinafter called the fire department. The comptroller had transmitted to the council his own estimate of the needs of that department which would require a reduction in its personnel from the present 427 employes to 93 less than that number and which would be insufficient *Page 645 to pay the present salaries of the chief, assistant chief, and ten district chiefs of that department. The comptroller made this estimate on the theory that under the provisions of the charter he may investigate and determine the amount which, in his opinion, will be required to operate the various departments of the city during the ensuing fiscal year, which commences on the first day of January, and transmit the result to the council as his estimate under § 200 of the charter. The relator contends that the comptroller has no such power, but that he can only "transmit" to the council, in a consolidated report, the estimates of the various heads of departments. The city government of St. Paul is unique in that its six elective commissioners and mayor constitute the city council. The mayor assigns the commissioners as administrative heads of the several departments of city government, among the latter being that of public safety, which includes the bureaus of police and fire protection. The council has the power of appropriation and the mayor that of veto, which may be overridden. The legislative and the executive powers of the city are thus put in the same men. So all preconceptions against such amalgamation of executive and legislative power must be put aside in the consideration of this case. We have no constitutional bar to such amalgamation. The argument for relator is that generally the comptroller has not the power he has sought to exercise in this case, and that, in any event, after the council by ordinance has prescribed the personnel both as to number and classes of a given department, and fixed the salaries of its officers, the comptroller has no power in respect to the budget which enables him so to reduce in any year the money available for that department as to make it impossible to pay the current rate of compensation to all of the personnel, including the officers, or so as to require a reduction in personnel. That argument is deficient in factual basis in that the only ordinance pleaded by relator (No. 5553, § 5, approved February 3, 1921) provides, as to the organization of the bureau of fire protection, that it "shall be composed of not to exceed the following persons and classes of persons and they shall receive not to exceed the compensation *Page 646 set opposite their respective classes." Then follows a schedule of the various officers and employes, giving their number and rates of pay. It is thus apparent that all the ordinance does is to fix both as to "persons and classes of persons" the maximums for their number and compensation. There is nothing in the ordinance which as matter of city law prevents the comptroller from reducing the total outlay if otherwise he has such power. We think he has for the reasons we shall now attempt to state. Section 200 of the city charter is the one which more than any other prescribes the functions of the comptroller. In the main it reads as follows: "BUDGET — PUBLIC EXPENDITURE. — Sec. 200. It shall be theduty of the comptroller not later than August 15 of each yearto transmit to the city council detailed estimates in writingof the expenses of the city for the next succeeding fiscalyear, and of the revenue necessary to meet said expenses. Said comptroller shall have full power and authority to require from each head of an administrative department of the City of St. Paul or other person in control of expenditures, specific estimates, in such form as said comptroller may prescribe, of the expenses of his department for the next succeeding fiscal year, the expenditures of the department for the six months immediately preceding June 30 next preceding, and for the last preceding fiscal year. Said estimates shall be placed in the hands of the comptroller prior to August 1, of each year. Said estimates shall be so itemized as to show clearly the amounts to be raised for each purpose necessary to carry on the business of the city. At the same time as presenting said estimates of expenditures, the comptroller shall also submit estimates of probable revenue from taxation, probable rate of direct property taxes necessary, and probable amount of revenue to be received by the city from sources other than direct taxation for the next succeeding fiscal year. "In said report of budget estimates the comptroller shall divide said estimates into the following funds: "* * *." (Italics supplied.) *Page 647 In construing that language, if there is ambiguity, and there appears to be, we must look to the whole instrument for such aid as it may afford. It is elementary that in solving such a question the whole document, be it constitution, statute or charter, should be considered. It is significant that the comptroller is one of the elective officers of St. Paul, paid as much (§ 45) as the mayor ($5,000), and more than the commissioners ($4,500). He is elected for a two-year term, subject to recall, as are also the mayor and commissioners. It is passing strange that, if the intention were to make him in financial matters a mere speaking tube for others, he has a larger salary than those for whose views he is a mere transmitter, and that, as a mere accountant or supervising bookkeeper, he should be made elective. If the argument for relator is sound, he is the servant of the council with no independent function, except as to mechanics of accounting. One can but wonder why, if that were the design, the commissioners were not given the right by appointment to select their own servant. Repeatedly, the charter uses the words "report" and "estimate" as synonymous. If the relator's view is correct, the comptroller's report or estimate is not his at all. It becomes a mere copy and consolidation of the reports or estimates of the commissioners. How glaringly inconsistent with that view is the fact that in at least five instances the charter refers not to any emanation from the commissioners but to the "estimate" or "report" of the comptroller. In addition to the portion of § 200 quoted above, subd. 31 thereof, dealing with the "general fund," requires that it should be "subdivided in said report and estimates of said comptroller and specific amounts therein shall be provided for specific purposes." Under § 202, it is the "comptroller's report" which is to be published and on which public hearings are to be had. In § 203 it is the comptroller's "estimates" which are mentioned specifically three times as those which the council "shall follow closely"; which it shall not increase by more than ten per cent; and the aggregate of which it cannot increase by more than three per cent. *Page 648 The language of § 203 is that: "In determining said expenditures said council shall not increase by more than ten per cent any fund beyond the estimates of said comptroller, and it shall not increase the aggregate of all appropriations more than three per cent above the estimates of said comptroller." The argument for relator is that the comptroller's only function under § 200 is to transmit the estimates of the commissioners to the council rather than to make any independent budget estimate of his own. Were we to adopt that argument we would have to rewrite the language just quoted so as to read as follows: "In determining said expenditures said council shall not increase by more than ten per cent any fund beyond the estimates of said commissioners, and it shall not increase the aggregate of all appropriations more than three per cent above the estimates of said commissioners; that is, the commissioners sitting in council may review their own estimates and alter them within the limits stated." In § 210, it is the "comptroller's report of city expenditures" that is mentioned and in respect to which certain inclusions are required to be made by him. This section deals with miscellaneous receipts, and the recommendations called for as to apportionment of such income are his recommendations and not those of any commissioner. In this important section neither the mayor nor any commissioner is once mentioned, and yet its principal subject matter is the appropriation of public moneys. By § 208, the unanimous action of the council is required to transfer unexpended portions of budget funds. Again, unanimous action of council is not effective, even when approved by the mayor. It must be countersigned by the comptroller. Approach to the main problem is not complete without consideration of § 206, which authorizes "emergency appropriations" "in the event of destruction of or injury to public buildings" by calamity. Such appropriations may be made only by unanimous vote of the council. With their authority, money may be borrowed "by the *Page 649 mayor and comptroller." It is astounding, indeed, if the comptroller is no more than a supervising accountant, that this section requires "all acts of the council" thereunder to "be approved by the mayor and the comptroller by signing and countersigning the ordinance or ordinances, resolution or resolutions by which such action is taken, and if such ordinance or ordinances, resolution or resolutions are not so signed and countersigned, they shall be void and of no effect." Unavailing are nice distinctions between the words "transmit," "submit," and "present," or between "estimate" and "report." Section 200 is not the only portion of the charter presenting a piece of draftsmanship subject to criticism. There could be no better case for invoking the aid of practical construction by the executive officials who have worked under this charter, and with it, since 1914. It is unfortunate that the city's case does not include proof of that practical construction as a fact. That we must decide without that aid is not our fault. Of that practical construction, if any, we cannot take judicial notice. It should have been but was not proved by evidence. We must treat it, then, as a mere question of literal meaning of a written instrument. In the light to be had from other provisions of the charter, the construction wanted by relator would render almost meaningless the first sentence, italicized in our quotation, of § 200. That sentence could be stricken and the residue remain a complete workable mandate. There is no more sensible rule of interpretation than the one requiring that, if possible, meaning be given every portion of a legal document. That rule would be violated pro tanto the effect abstracted from the very first and important sentence of § 200. The funds into which the comptroller is required in his "said report of budget estimates" to "divide" such estimates are 31 in number. Among these the seventh, eighth, and ninth are significant. They are, respectively, "police fund," "fire fund," and "health fund." There follows this declaration: "The commissioner of public safety shall apportion to these three funds in submitting estimates to the comptroller, such expenses of *Page 650 his office as are not properly chargeable exclusively to either the police fund, the fire fund or the health fund." The three funds are all administered by the commissioner of public safety. In respect thereto (aside from his executive power of disbursement governed by other sections), he is given, expressly, only the limited power to "apportion" the designated "expenses." If he has the plenary power over his departmental budget which relator contends, why this express grant of power to apportion certain expenses between his own three funds? We must not make over that much more of § 200 into meaningless surplusage. It will have real meaning, plain purpose will be assigned it, and sense given the whole only by deciding that, as § 200 declares, "the comptroller shall divide said estimates" between the designated funds, subject, in the case of three of them (for police, fire, and health purposes), to the power of the commissioner of public safety to apportion the indicated expenses. The lapse of time between August 1, before which the commissioners' estimates must be submitted to the comptroller, and August 15, when he must transmit to the council his own "estimates," whatever the latter may be, has, it seems to us, little or no relevance. The comptroller is in constant daily touch with each department. He keeps "controlling accounts with every department." § 68. In the city treasury, after the close of business each day, he checks "all the receipts and disbursements of such day." § 79. His own estimates are doubtless complete, at least tentatively, before August 1. Our conclusion is that the comptroller of St. Paul was intended to be, ex officio, the budget commissioner, with the power to limit expenditures of any department, subject to the indicated review by the council. Were this a case where by a standing ordinance certain expenditures were mandatorily required, our conclusion as to result might be otherwise. But where, as here, we have an ordinance fixing only maximums beyond which the designated department shall not go, in number or personnel, or their compensation, we hold that, for *Page 651 the reasons stated, the comptroller has the power to do what he has done by his own budget estimates in this case. He is an elective officer and his acts subject to review by the electors at the general city election every two years. Beyond that he is subject to a recall election, as prescribed by the charter. As far as his action is discretionary, it is his discretion that must be exercised, and the only review to which it is subject is that of the political nature just mentioned. It follows that the judgment must be and is affirmed.