State ex rel. Harvey v. Linville

• Decision Date: 12 December 1927
• Docket Number: 27040
• Citation: 300 S.W. 1066,318 Mo. 698
• Parties: The State ex rel. Charles G. Harvey v. John G. Linville et al., Judges of County Court of Benton County
• Court: Missouri Supreme Court

300 S.W. 1066

318 Mo. 698

The State ex rel. Charles G. Harvey v. John G. Linville et al., Judges of County Court of Benton County

No. 27040

Supreme Court of Missouri

December 12, 1927

Peremptory writ denied.

Paul Barnett for relator.

(1) The salary of the County Superintendent of Public Schools under the Act of 1919 for counties having a population of 24,000 and less than 27,000, is fixed at $ 1800. This means $ 1800 per annum. First, because the Act of 1909 (Sec. 10938, R. S 1909) provides for an annual salary; and there is nothing in the amendment of 1919 showing any intention to provide for a different period of time upon which to compute the salary. Second, because in the absence of any designated period for the payment of a salary fixed by law, it will be presumed that the salary is upon a yearly basis. State ex rel. v Speed, 183 Mo. 186. (2) Sec. 11016, R. S. 1919, is a general statute, uniform in its operation as to all officers. It provides that as a basis for ascertaining the salary of any county officer for any year, the highest number of votes cast at the last previous general election, for any office shall be multiplied by five. The Act of 1921, Laws 1921, p 652, does not provide a uniform method for the fixing of the salaries of county officers, and it therefore violates Section 120 of Article 9 of the Constitution, to the effect that the General Assembly shall, by a law uniform in its operation, provide for and regulate the fees of all county officers, and for this purpose may classify the counties by population. State ex rel. Summers v. Hamilton, 279 S.W. 33. (3) The Act of 1919 increasing the salaries of county superintendents of schools was passed by the Legislature and approved by the Governor on March 28, 1919, before relator was elected as superintendent of public schools. Laws 1919, p. 694. By reason of such fact any increase in salary which he received after he took office was by operation of law and not by the act of the legislature. Section 8 of Article 14 of the Constitution, which prohibits an increase of compensation of officers during their terms, does not prohibit the automatic increase in salary under a law enacted previous to the beginning of his term. The Constitution merely prohibits the Legislature from changing salaries for the benefit of present incumbents, and the prohibition is aimed at the time when the Legislature acts, and not at the time when one, thereafter taking office, receives the benefit of the legislation. State ex rel. Moss v. Hamilton, 260 S.W. 466; Folk v. St. Louis, 250 Mo. 134; Uma County v. Sturgis, 140 Pa. 504; Puterbaugh v. Wadham, 162 Cal. 611. (4) The Act of 1919, approved March 28, 1919, raising the salaries of the county superintendents, was passed with an emergency clause, before relator was elected or took office. The operation of the statute was not suspended by the Initiative and Referendum clause in the Constitution, because it was an act for the support of public schools, and, therefore, was not a law which could be submitted to the people by referendum. The referendum provision in the Constitution excepts laws necessary for the immediate preservation of the public peace, health or safety, and laws making appropriations for the current expenses of the State Government, for the maintenance of the state institutions, and for the support of public schools.

F. M. Brady for respondents.

(1) Sec. 10938, R. S. 1909, is the law that governs the salary of relator during the whole of his term. The Act of March 28, 1919, did not become effective until ninety days after the adjournment of the Legislature, to-wit, on August 7, 1919, not being "a law necessary for the immediate preservation of the public peace, health or safety or a law making appropriations for the current expenses of the State Government, for the maintenance of the state institutions or the support of the public schools," and therefore referable. Sec. 57, Art. 4, Mo. Constitution; Fahey v. Hackman, 291 Mo. 351; State ex rel. Westhues v. Sullivan, 283 Mo. 547. (2) No law passed by the General Assembly, except the general appropriation act, shall take effect or go into force until ninety days after the adjournment of the session at which it is enacted, unless in case of an emergency (which emergency must be expressed in the preamble or in the body of the act), etc. Sec. 36, Art. 4, Mo. Constitution; Fahey v. Hackman, 291 Mo. 351; State ex rel. Westhues v. Sullivan, 283 Mo. 547. (3) To make an emergency clause effective, the Legislature must conceive an emergency to exist, and must express such emergency either in the preamble or in the body of the act, and such stated emergency must have been "an emergency in fact." Fahey v. Hackman, 291 Mo. 351; State ex rel. Westhues v. Sullivan, 283 Mo. 547.

OPINION

White, J.

This is an original proceeding wherein the relator seeks to have this court, by writ of mandamus, compel the judges of the County Court of Benton County to pay him a balance which he claims to be due on his salary as County Superintendent of Public Schools.

The alternative writ was issued on relator's petition, to which respondent's filed their return. Thereupon relator filed a motion for judgment on the pleadings, thereby admitting all facts well pleaded in the return. A former opinion directed a peremptory writ. A motion for rehearing was sustained, and the case argued and submitted a second time.

The petitioner was elected and qualified as Superintendent of Public Schools of Benton County, April 1, 1919, for a four-year term, which ended the last day of March, 1923. He was paid during that time $ 1350 per annum, a total of $ 5400, and claims a balance due him of $ 1050. His salary during the term was dependent upon the population of the county, determined by the vote of the county at the different elections held before and during the term. He claims that the population of the county should be estimated under the provisions of Section 11352, and Section 11354, Revised Statutes 1919. Section 11352 is an amendment of Section 10938, Revised Statutes 1909, which respondents contend is applicable to the case for the reason that the amendment to Section 11352, and Section 11354, did not go into force and effect until after the petitioner was elected and qualified, and therefore do not apply to his case; that said Section 10938, and Section 10719, Revised Statutes 1909 (which is Sec. 11016, R. S. 1919), apply in determining the population of Benton County and petitioner's salary and, if so, the respondent has received more than the salary allowed him by law.

I. The increase of salary which a statute permits after an election showing an increase of population is not in violation of the Constitution in that the salary is increased during the term for which the officer was elected, because the law in force at the time of his election fixes his salary, to be ascertained at periods as changed by the increase in population. [State ex rel. v. Hamilton, 260 S.W. 466.] The salary of an officer, dependent upon the population as ascertained from time to time, would be determined by the law in force at the time of his election, and a law which went into effect later would not affect the matter. Therefore, if the Act of 1919 was not in effect when relator was elected, it would not apply to his salary at any period of his term.

Section 10938, Revised Statutes 1909, provides for ascertaining the "annual" salary. Section 11352, Revised Statutes 1919, says that the superintendent shall receive so much money, dependent upon the population of the county, without saying whether it was per annum. From the context it must be presumed that annual salary was meant. "Annual salary" as used in said Section 10938, means salary for each year of the incumbency. It cannot be split up into periods by elections which occur during the year, and must be calculated on a year as a whole. We conclude further that "annual" as applied to salaries means not the calendar years, but the years of the incumbent's term, which in the case of relator begins on the first day of April each year.

Under Section 11354, enacted in 1919, the relator's salary would be determined by the vote cast at the last Presidential election, which was in 1916. The vote for that year was 3183, which multiplied by five would give a population of 15,915. At the presidential election of 1920, the vote was 4915, which multiplied by five would give a population of 24,575. By the provisions of Section 11352, the Superintendent of Schools received a salary, in counties having a population of 15,000 and less than 18,000, of $ 1350 per annum; and in counties of 24,000 and less than 27,000, a salary of $ 1800 per annum. Thus, if the annual salary means salary for the unbroken year he should have received $ 2700 for the first two years, and $ 3600 for the second two years; a total of $ 6300. He received $ 1350 annually for the entire four years, or $ 5400; leaving a balance due of $ 900.

The relator, however, figuring that "annual salary" means at the rate of a certain sum per year, claims that it would be determined by the months during which the population determining his salary continued until changed by another election, and thereby figures that the amount due the relator would be $ 1012.50. But conceding also that Section 10719, Revised Statutes 1909, now Section 11016, Revised Statutes 1919, might be in effect, which provides for ascertaining the population from the vote at the general election instead of the Presidential election, there would be due only the sum of $ 675.

In the view we take of the case it is unnecessary to go into the calculations.

If the respondent is correct, Section 10938, Revised Statutes 1909 was in force when he was elected...