State ex rel. Moss v. Hamilton

Decision Date22 March 1924
Docket Number24913
PartiesTHE STATE ex rel. LOGAN T. MOSS v. GEORGE B. HAMILTON et al., Judges of County Court of Crawford County
CourtMissouri Supreme Court

Alternate writ made absolute.

L B. Woodside for relator.

(1) The clear intention of the framers of the Constitution was to divide the counties by classes, and that each presidential election would be the basis for fixing the salary during the next four years regardless of who might be the incumbent of the office. King v. Texas County, 146 Mo. 69. (2) In respondents' brief they insist that by accepting a smaller sum than to which he would be entitled under the vote of 1920, it is a mistake of law on the part of relator and from which there can now be no relief. This rule does not apply in transactions between public officers. State ex rel. v. Scott, 270 Mo. 153; Lamar Twp. v. Lamar City, 261 Mo. 171; Bird v. Sellers, 122 Mo. 23. (3) There was no mistake of the law. They all knew what it was and had been operating under it and applying it for two years. The mistake was, as claimed by relator, a want of knowledge of the population, and respondents cannot now be heard to say relator by investigation could have ascertained the population. Kefferstein v. Holliday, 3 Mo.App 570; Koontz v. Central National Bank, 51 Mo. 278; Marion County v. Phillips, 45 Mo. 75; State v Roberts, 62 Mo. 388; Chrisman v. Linderman, 202 Mo. 605. (4) There was no settlement made at any time. The relator paid his money into the treasury as he was bound by law to do, and this certainly can't be charged against him. The court failed to pay him his full salary, and while this may have been owing in some degree to the negligence of the relator in not making his full claim, yet this negligence should not defeat him from his just dues. William v. Carroll Co., 167 Mo. 9. (5) Both parties were bound by the same rule, and the transaction was such that if either could have claimed a correction of the mistake, the other could also. Lamar Twp. v. Lamar City, 261 Mo. 188; 30 Cyc. 1315; State ex rel. Barker v. Scott, 270 Mo. 146. (6) The increased compensation came about through legal process and was authorized by the law of the land. The relator never got his, and this claim against him that he didn't ask for it is inequitable and unjust.

Roy Clymer for respondents.

(1) The relator should not recover in this action for the reason the Constitution expressly prohibits the increase in the salary of an officer during his term of office. Mo. Constitution, sec. 8, art. 14; State ex rel. v. Gordon, 254 Mo. 476; State ex rel. v. Smith, 87 Mo. 158; Folk v. St. Louis, 250 Mo. 116; State, infra, v. Ranson, 73 Mo. 78; State ex rel. v. Jost, 269 Mo. 248; Givins v. Davies County, 107 Mo. 603; 29 Cyc. 248. The constitutional provision prohibiting an increase in the salary of an officer during his term of office has reference to the term fixed by law as a term; in this particular case, the term beginning on the first Monday in January, 1919, and ending December 31, 1922. State ex rel. v. Farmer, 271 Mo. 314; State ex rel. v. Smith, 87 Mo. 168; State ex rel. v. Gordon, 238 Mo. 168; Givins v. Davies County, 107 Mo. 603. (2) The salary of the clerk of the Circuit Court for the four-year term beginning on the first Monday in January, 1919, was determined by the vote cast at the Presidential election held in November, 1916, and when such salary was determined and fixed at the February term, 1919, it was determined and fixed for the entire term, and not for the first two years of such term only. State ex rel. v. Farmer, 271 Mo. 314; King v. Texas County, 146 Mo. 60. The salary of the circuit clerk must be paid monthly. R. S. 1919, sec. 11021. (3) When relator filed his demand for his monthly salary and the amount claimed by him was allowed in full and warrant issued for the amount so claimed and allowed, and the same was accepted by the relator, he was estopped from asserting any claim for any additional sum as part salary; his demand for and acceptance of a less amount than the law stipulated he was entitled to, being a mistake of law upon the part of relator and not a mistake of fact. 29 Cyc. 1425; Corbin v. Adair County, 171 Mo. 385; Heathcock v. Crawford County, 200 Mo. 170; State ex rel. v. Shipman, 125 Mo. 436; State ex rel. v. Ewing, 116 Mo. 129; Norton v. Highleyman, 88 Mo. 624. (4) Demands filed by relator for his salary during the years 1921 and 1922 in the same amount for which demands were filed during the years 1919 and 1920 are conclusive evidence that he believed he was entitled to the same salary for the years 1921 and 1922, and this mistake upon his part was a mistake of law, and not a mistake of fact and such a mistake of law now estops him from recovering the amount claimed to be due. State ex rel. v. Stonestreet, 92 Mo.App. 220; Needles v. Burk, 81 Mo. 569; Harrison v. Board of Education, 3 Mo.App. 570; Mutual Saving Trust Co. v. Enslin, 46 Mo.App. 200; Campbell v. Clark, 44 Mo.App. 249; Morrow v. Suber, 97 Mo. 155; Lincoln Trust Co. v. Third National Bank, 154 Mo.App. 89.

Graves, J. All concur, except White, J., not sitting.

OPINION
GRAVES

Original proceeding by mandamus. Relator was elected Clerk of the Circuit Court of Crawford County, Missouri, at the November election in 1918. He discharged the duties of the said office for the four years beginning January 1, 1919, and ending December 31, 1922. During the first two years his salary was $ 1600 per annum, based upon the Presidential vote of 1916, multiplied by five.

The respondents are the judges of the county court of Crawford County. At the general election in 1920 the Presidential vote was 4359, which if multiplied by five would make the population of the county 21,795, and under the law the relator's salary should have been (as he claims) fixed at $ 1950 for the remainder of his term, there being no intervening Presidential election. Relator avers his ignorance of the population, and avers that the county court paid him the sum of $ 1600 per annum for such two years, although there was no settlement of the matter between him and the county court, and no intent to waive the question by him. He asks that we compel the court to issue to him a salary warrant for $ 700, the difference between $ 1600 per annum and $ 1950 per annum, for these last two years of his term.

This court exercised its discretion in favor of issuing the alternative writ, because the decision of the matter was one of public importance, and because there were many other circuit clerks similarly situated. We have the following as facts in the record:

"It is hereby agreed as facts in this case in regard to the payment of the petitioner, Logan T. Moss, that at the end of each month during the years 1921 and 1922, the said Logan T. Moss filed with the county court an account of the fees collected by him in his office which was approved by the court, and he paid the amount of said fees each month into the county treasury.

"At the same time he would file an account with the court substantially as follows:

"'Crawford County, Missouri, to Logan T. Moss, Dr. Salary for month of , 1921, $ 133.33.'

"And the court without any question would direct that a warrant issue to him for that amount. There was no controversy between them about it, and Mr. Moss did not by any statement waive any right he might have had for a greater sum as salary. He did not claim any more, and the court never offered him any more or less.

"He simply did as the other officers of the county did; filed the account for the salary as above stated."

Further on we find this much further: "It is further agreed that at the Presidential election in Crawford County, November, 1920, the vote cast was 4360. November, 1916, the vote cast was 3024."

Respondents' return in the case is as follows:

"Now at this day come the respondents and for their return to the alternative writ issued in this cause admit that they are the duly elected, qualified and acting judges of the County Court of Crawford County, Missouri, and that Logan T. Moss was duly elected Clerk of the Circuit Court within and for Crawford County, Missouri, at the general election held in said county in November, 1918, qualifying and taking office on the first Monday in January, 1918, for a term of four years ending December 31, 1923.

"For their further return to said alternative writ issued herein respondents would respectfully state that during the entire term of office as such circuit clerk ending December 31 1922, the said Logan T. Moss, as such circuit clerk, filed in the office of and with the clerk of the County Court of our said Crawford County, Missouri, his monthly demand and bill for his monthly salary as such clerk, stating therein the amount due him as such monthly salary as such clerk for the month next preceding the date of the filing of such demand and bill. That said demands and claims for such monthly salary were filed monthly by relator herein during the entire term of four years ending December 31, 1922, and said monthly demands and claims were taken up by the county court of our said county and allowed in full and warrants issued for the amount claimed to be due as such salary. That said monthly demands and claims were based upon a salary of $ 1600 per annum. That at no time during the said term of four years ending December 31, 1922, was any demand or claim of the said relator herein for such monthly salary disallowed or payment allowed upon the same in a less amount than the amount claimed to be due by relator, but each nd every month the full amount claimed to be due by said relator was allowed in full. That the amount claimed to be due him as salary as such clerk was paid to said relator upon his final...

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