Colley v. Jasper County

• Decision Date: 11 July 1935
• Docket Number: No. 32641.,32641.
• Citation: 85 S.W.2d 57
• Parties: WALTER COLLEY, Appellant, v. JASPER COUNTY.
• Court: Missouri Supreme Court

85 S.W.2d 57

WALTER COLLEY, Appellant, v. JASPER COUNTY.

No. 32641.

Supreme Court of Missouri.

Division Two, July 11, 1935.

Appeal from Jasper Circuit Court. — Hon. R.H. Davis, Judge.

AFFIRMED.

Chas. F. Newman and McReynolds & Flanigan for appellant.

(1) In the case at bar the petition squarely presented Section 9464 as the basis of plaintiff's claim. The defendant demurred generally. The alleged unconstitutionality of that section could have been presented by a special demurrer specifically pointing out the violated sections of the Constitution. The demurrer was therefore the earliest possible moment in the case for presentation of the constitutional question, but it was not presented because the demurrer did not point out the constitutional provisions alleged to have been violated by the statute. Having failed to present the constitutional question at the earliest possible moment in the case, to-wit, in the demurrer, defendant waived the question and could not thereafter present it by answer or otherwise. (2) If Section 9464, Revised Statutes 1929, is in conflict with Section 9463, the former controls if both sections are constitutional. State ex rel. v. Gehner, 8 S.W. (2d) 1068; Lazonby v. Smithey, 151 Mo. App. 285; Dehart v. School District, 263 S.W. 242, 214 Mo. App. 651; State ex rel. v. Fulks, 247 S.W. 129, 296 Mo. 614; State ex inf. v. Imhoff, 238 S.W. 122, 291 Mo. 603; Tevis v. Foley, 30 S.W. (2d) 68. (3) The Legislature has the power to fix the salaries of county officers and to classify counties by population. Sec. 12, Art. IX, Const. of Mo.; Hollowell v. Schuyler County, 18 S.W. (2d) 498. (4) The Legislature is not bound by the census but may provide for determination of population by multiplication of the vote and Section 9465 is a valid exercise of such power. State ex rel. Chaney v. Grinstead, 282 S.W. 715; State ex rel. v. Bockelman, 240 S.W. 209. (5) Section 9464, Revised Statutes 1929, is constitutional. State ex rel. v. Miller, 100 Mo. 449; State v. Hedrick, 241 S.W. 407.

C.R. Walden, Dan Nee and Howard Gray for respondent.

(1) An examination of the appellant's reply, motion for new trial and assignment of errors will disclose that his objection to the court considering the constitutional point in the case is based upon the specific point that it was raised too late. And this objection is further limited to the claim that the question should have been raised by the demurrer which was filed. It is the contention of the respondent that that question could not have properly been raised by the demurrer. Pac. Lime & Gypsum Co. v. Mo. Bridge & Iron Co., 286 Mo. 112, 226 S.W. 853. The facts relied on in this case to prove the statute unconstitutional could not have been considered on demurrer, even though had they been alleged. It would have been what is termed "A speaking demurrer" and no such pleading is recognized by our procedure. Pac. Lime & Gypsum Co. v. Mo. Bridge & Iron Co., supra. (2) It is not necessary that the constitutional question be raised at the first possible moment, but only at the earliest possible moment that good pleading and orderly procedure would admit under the circumstances of the given case. Strother v. Ry. Co., 203 S.W. 208. (3) Section 9464 undertook to specially legislate on salaries in four counties in the State, but left the salaries as they were in counties of a smaller population and a larger population. On the face of the legislation the statute is unconstitutional. State ex rel. Moseley v. Lee, 5 S.W. (2d) 83; State v. Hedrick, 294 Mo. 74; State ex rel. v. Roach, 258 Mo. 561; Henderson v. Koenig, 168 Mo. 356. (4) The court will take judicial notice that Section 9464 applied to Greene, Jasper, Buchanan and St. Louis counties only. State ex rel. v. Southern, 265 Mo. 287.

COOLEY, C.

Plaintiff, County Superintendent of Public Schools of Jasper County, sued to recover $312.50, claimed to be the unpaid balance of salary due him as such superintendent for the month of July, 1931. He was elected at the regular school election in April, 1931, and assumed his duties on July first following. The case turns on the question of the constitutionality of Section 9464. Revised Statutes 1929 (Mo. Stat. Ann., p. 7258). If that section is valid plaintiff is entitled to recover; if unconstitutional, as defendant contends and as the circuit court held, he has been paid in full and the judgment below for defendant is correct. Defendant in its answer challenged the constitutionality of said statute as being violative of subsections 32 and 33 of Section 53, Article IV, and Section 12, Article IX, of the State Constitution. Said Section 53 prohibits the enactment of "any local or special law" on many enumerated subjects. Said subsections 32 and 33 thereof read:

"(32) ... In all other cases where a general law can be made applicable, no local or special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined, without regard to any legislative assertion on that subject."

"(33) Nor shall the General Assembly indirectly enact such special or local law by the partial repeal of a general law; but laws repealing local or special acts may be passed."

Said Section 12, Article IX, reads:

"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."

Prior to 1919 there existed a general statute fixing the salaries of county school superintendent, classifying the counties for that purpose by population and applying to all counties in the State. It fixed such salaries for counties having over 50,000 population at $1500 per annum. It was repealed and a new section, similar except as to amounts of salaries was enacted in 1919, fixing such salaries in all counties of over 50,000 population, at $2250 per annum. That statute now appears as Section 9463, Revised Statutes 1929 (Mo. Stat. Ann., p. 7257). [Unless otherwise indicated references to the statutes hereinafter will be to the section numbers as appearing in R.S. Mo. 1929.] In 1919 the Legislature enacted a law which was so worded that it could apply to only one county, viz., St. Louis County, and which provided a salary of $4000 for the county school superintendent. Both parties hereto seem to treat that act as having been unconstitutional, — a question with which, however, we need not concern ourselves. In 1929 the Legislature repealed that act and enacted present Section 9464, supra, the validity of which is here involved. It provides that in all counties having at the time of its passage or that may thereafter have a population of more than 100,000 and less than 350,000 the county school superintendent's salary shall be $6000 per annum. It can apply to only four counties in the State, viz., Buchanan, Greene, Jasper and St. Louis counties.

I. Preliminary to consideration of the constitutional question involved we notice appellant's contention that such question is not properly here for review because not timely raised in the circuit court. The suit was filed September 2, 1931. At the next succeeding term of court and on September 23, 1931, defendant filed a general demurrer to plaintiff's petition which was overruled, and defendant was given leave to answer on or before October 28, 1931. The answer was filed October 31st. No point is made that the answer was filed out of time or without leave of court. In that answer defendant for the first time challenged the constitutionality of the statute upon which plaintiff bases his claim. The general demurrer was ineffective to raise the constitutional question, as is conceded. [See State ex rel. Franklin County v. Tibbe Electric Co., 250 Mo. 522, 157 S.W. 635; State ex rel. Schuler v. Nolte, 315 Mo. 84, 285 S.W. 501.] Appellant contends that a constitutional question must be raised at the first opportunity and that by failing to file a demurrer specifically presenting that question the defendant waived it and could not thereafter assert it in his answer. Cases are cited, such as Dubowsky v. Binggeli, 258 Mo. 197, 167 S.W. 999, and State ex rel. v. Nolte, supra, holding that a constitutional question may be raised by demurrer if it appears from the plaintiff's petition that his cause of action is founded upon a statute which the defendant claims is unconstitutional. In the Nolte case, 315 Mo. 84, l.c. 90, 285 S.W. l.c. 503 [2], it is said: "In Missouri ... it is held that constitutional questions may be raised by demurrer as well as by answer ... but whatever the mode of pleading it must point out the particular constitutional provision or provisions violated." In no case cited, however, nor in any that we have found, has this court held that the assertion of a constitutional question comes too late when it appears for the first time in the defendant's answer. In the cases cited and relied upon by appellant the question was not raised either by demurrer or answer, when it could have been so presented, but was first raised at some later stage of the proceedings and for that reason was held to have been presented too late.

In Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 689-90, 113 S.W. 1108 (cited by both parties), it is stated to be the settled law that a constitutional question "should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived." In the instant case, as will appear hereinafter, it required proof of facts not appearing on the face of plaintiff's petition in order to present the grounds on which defendant challenged the constitutionality of the statute and to enable the court to determine that question. Under our practice such proof could not properly have been heard and considered on a demurrer to the petition. "Whatever...