State ex rel. Moseley v. Lee

• Decision Date: 11 April 1928
• Docket Number: No. 26401.,26401.
• Citation: 5 S.W.2d 83
• Parties: THE STATE EX REL. GEORGE MOSELEY ET AL. v. J.F. LEE ET AL., Appellants.
• Court: Missouri Supreme Court

5 S.W.2d 83

THE STATE EX REL. GEORGE MOSELEY ET AL. v. J.F. LEE ET AL., Appellants.

No. 26401.

Supreme Court of Missouri, Division One.

April 11, 1928.

Appeal from Lawrence Circuit Court. — Hon. Charles L. Henson, Judge.

REVERSED.

Howard Gray for appellants.

(1) The court erred in holding that the appellants were not entitled to the compensation allowed by Sec. 10684, R.S. 1919, and in holding that when the Act of 1921 took effect the appellants were no longer entitled to the compensation provided by Section 10684. (2) Section 10648, and the Act of 1921, should be read as one section. State ex inf. v. Amick, 247 Mo. 271; State ex rel. v. Patterson, 207 Mo. 144. (3) Any other construction would convict the Legislature of doing an absurd act, and this the court will not do if any other reasonable construction can be given to the language. Stack v. General Baking Co., 283 Mo. 410; Johnston v. Ragan, 265 Mo. 435. (4) The General Assembly of 1923 partially repealed this general law by the enactment of a special law, and this is prohibited by our Constitution. Sub-Sec. 33, sec. 53, art. 4, Mo. Constitution. (5) The three acts passed by the Legislature of 1923, all dealing with the subject-matter contained in Section 10684, the first two approved the same day, the third eighteen days later, should be construed together, as different sections of one act. Gasconade County v. Gordon, 241 Mo. 569; State ex inf. v. Amick, 247 Mo. 290; State ex rel. v. Patterson, 207 Mo. 144. (6) The court will take judicial notice that Section 10684, as amended in 1921, applied to Greene, Jasper, Buchanan and St. Louis counties. State ex rel. v. Southern, 265 Mo. 287. (7) The trial judge, in his opinion, assigned as a reason to uphold these acts that the Legislature of 1923 did not enact a law partially repealing the law, but amended it. It is true the Constitution uses the word "repealed," but that it is not necessary to use such word in order to violate the Constitution was settled by this court in the case of Henderson v. Koenig, 168 Mo. 356. (8) The Acts of 1923 are also void under Sub-sec. 32, sec. 53, art. 44, State Constitution. State v. Hedrick, 294 Mo. 74; Henderson v. Koenig, 168 Mo. 356; State ex rel. v. Roach, 258 Mo. 561; Attorney General v. Miller, 100 Mo. 451; State v. Logan, 268 Mo. 169; Bridges v. Mining Co., 252 Mo. 53. (9) It will not do to say that because the Legislature, in passing the Acts of 1923, classified by population, that its acts are not subject to judicial review. Authorities last above cited.

Frank R. Birkhead for respondents.

(1) The Act of 1921 (Laws 1921, p. 593), by implication, amended Sec. 10684, R.S. 1919, and therefore the court did not err in holding that appellants were entitled to pay as road commissions at the rate of only $1000 per annum during the first six months of the year 1923. Jasper County measured up to the requirements of Section 10684 and likewise fulfilled all of the requirements of the Act of 1921. Therefore which statute governed Jasper County? Clearly both statutes as far as Jasper County is concerned are so irreconcilably in conflict that both cannot stand together. The latter amended the former statute by necessary implication. State ex rel. Vasline v. McDonald, 38 Mo. 529; State ex rel. Maguire v. Draper, 47 Mo. 29. (a) It is true that repeals or amendments by implication are not favored by the law and statutes are clothed in the first instance with presumptive validity, but when they are so repugnant and inconsistent that both cannot stand together the former must give way to the latter. 25 R.C.L. 920. (b) A glance at these two acts, one passed in 1919, creating boards of road overseers in certain counties and providing for an annual salary of $1200 and the other passed in 1921, providing for boards of road overseers in certain counties and providing for a salary of $1000 per annum, will show that Jasper County fell within the classification contained in both acts. While the second act contained no amending or repealing clause, its provisions are so repugnant to the other that both cannot stand. Certainly we could not have two valid laws at the same time, each providing for a board of road overseers in Jasper County, one providing for salary at $1200 and the other $1000. 25 R.C.L. 914, 915, 922. (2) The three acts of 1923, are constitutional. Each relates to counties as a class and not to particular counties of a class. The fact that a statute applies only to counties of a certain population is not of itself enough to stamp it as special in view of the rulings that have been made on that subject in the early years of the present Constitution. State ex rel. v. Tolle, 71 Mo. 645; State ex rel. v. Herrmann, 75 Mo. 340; State ex rel. v. Miller, 100 Mo. 439. It has been expressly held that an act which applies to, and embraces all persons who are, or who may come into like situations and circumstances, is not special, within the meaning of the constitution. Humes v. Railroad Company, 82 Mo. 221; Burkholder v. Union Trust Co., 82 Mo. 572; Steele v. Railroad, 84 Mo. 57; State ex rel. v. Miller, 100 Mo. 439. (3) The invalidity of a statute affecting a single class must appear beyond a reasonable doubt before the court can declare the statute void as special legislation contrary to Article 4, Section 53, Par. 32, of the Constitution. State ex inf. v. Hedrick, 294 Mo. 21; State v. Tower, 185 Mo. 79; State v. Layton, 160 Mo. 488. The acts of the Legislature are presumed to be constitutional, and it is only where they manifestly infringe on some provision of the Constitution that they can be declared unconstitutional for that reason, and in cases of doubt every possible presumption is to be made in favor of the constitutionality of the legislation. Phillips v. Mo. Pac. Ry. Co., 86 Mo. 540; State ex rel. Brown v. Mo. Pac. Ry. Co., 92 Mo. 137; State v. Hope, 100 Mo. 347; Deal v. Mississippi County, 107 Mo. 464; Kansas City ex rel. v. Scarritt, 127 Mo. 642; State v. Thompson, 144 Mo. 314; State v. Cantwell, 179 Mo. 245; Maggard v. Pond, 93 Mo. 606; State ex rel. v. Walker, 193 Mo. 693; State ex rel. v. Fort, 210 Mo. 512; Kelly v. Kirby, 260 Mo. 120; Moberly Spec. Road Dist. v. Burton, 266 Mo. 711; Pitman v. Drabelle, 267 Mo. 78; Miners Bank v. Clark, 252 Mo. 20; State ex rel. v. Gordon, 265 Mo. 181; Straughan v. Meyers, 268 Mo. 580; Alexander v. Railroad Co., 282 Mo. 236; Wilson v. Washington Co., 247 S.W. 185. (4) Even construing the three acts of 1923 as in pari materia it cannot be said beyond reasonable doubt that no reasonable basis for the classification existed. State ex inf. v. Hedrick, 294 Mo. 21; State v. Tower, 185 Mo. 95.

SEDDON, C.

This suit was commenced in the Circuit Court of Jasper County by the relators (respondents here), as taxpayers of Jasper County, Missouri, to recover for and on behalf of said county, and from the defendants (appellants here), who were, on June 30, 1923, the duly qualified and acting judges of the county court of said county, the respective sums of $600 paid to each of said defendants, and received by defendants, who claimed to be the constituted board of road overseers of said county, as compensation for their services as members of said board for the first six months of the year 1923. Relators also seek injunctive relief, and they ask that defendants, and each of them, be restrained and enjoined from receiving further warrants of the county in payment of compensation for services as members of the board of road overseers of said county. By stipulation of the parties, the venue of the action was changed to the Circuit Court of Lawrence County, where the cause was tried and submitted, and where judgment was entered.

The petition herein is as follows:

"Plaintiffs state that they are and were at all the times hereinafter mentioned taxpayers of Jasper County, Missouri, and that they bring this action for themselves and other taxpayers of Jasper County, and for their cause of action state that at all times hereinafter mentioned the defendant J.F. Lee was the duly qualified and acting Presiding Judge of the County Court of Jasper County, Missouri, and the defendants J.H. Haworth and Henry McFerrin were the duly qualified and acting associate judges of said court.

"Plaintiffs further state that on the 30th day of June, 1923, the defendants and each of them unlawfully caused a county warrant to be drawn on the County Treasurer of Jasper County, Missouri, for the sum of $600 each; said Warrant No. 54 for $600 being drawn in favor of J.F. Lee, and Warrant No. 55 for $600 being drawn in favor of Henry McFerrin; and Warrant No. 56 for $600 being drawn in favor of J.H. Haworth, and that the said defendants, and each of them, on said date presented said warrants so illegally drawn as aforesaid to the County Treasurer of Jasper County, Missouri, and caused said County Treasurer to immediately cash said warrants, and the said County Treasurer did pay to each of said defendants the sum of $600 by reason of said warrants being so illegally drawn as aforesaid, and which said amounts were paid by said treasurer out of funds belonging to the revenue funds of Jasper County.

"Plaintiffs further say that said warrants were drawn illegally and without authority of law, and were drawn and accepted and cashed by defendants as aforesaid upon the claim of defendants that they were entitled to said sum for salary as board of road overseers of Jasper County, Missouri, for the first six months of the year of 1923; but plaintiffs say that there was no such office in Jasper County, Missouri, during said time, and that the defendants were not entitled to any salary as a board of road overseers.

"Plaintiffs further state that said defendants, and each of them, are claiming that they and each of them are entitled to the sum of $100 per month salary as members of the board of road overseers as aforesaid, and that defendants are threatening to and will, unless...