Cunio v. Franklin County

Decision Date30 July 1926
Docket NumberNo. 25487.,25487.
Citation285 S.W. 1007
PartiesCUNIO v. FRANKLIN COUNTY.
CourtMissouri Supreme Court

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by C. L. Cunio against Franklin County. Judgment for plaintiff, and defendant appeals. Reversed.

John W. Booth and Frank H. Kasmann, both of Union, for appellant.

D. W. Breid, of Union, and A. E. L. Gardner, of St. Louis, for respondent.

OTTO, J.

This proceeding, instituted originally in the circuit court of Franklin county, but by change of venue tried in the circuit court of St. Louis county, division No. 2, was brought to recover salary alleged to be due plaintiff as probation officer of defendant, Franklin county, for a period of 10 months, from September 1, 1921, to June 30, 1922, inclusive. The judgment of the trial court was for the plaintiff, and the county appealed.

The action was instituted, and proceeded, on the theory that plaintiff was the duly appointed probation officer of said county, and, as such, entitled to the salary thereof under and by virtue of the provisions of sections 1144, 1145, and 1147, R. S. Mo. 1919.

The answer, in so far as the appointment of plaintiff to said office and his right to the salary thereof are concerned, is a general denial.

As a further defense to plaintiff's cause of action, defendant attacks the constitutionality of the law upon which the action is founded. However, in deciding the case, we deem it unnecessary to pass upon the constitutional questions.

The decision turns on the fact of plaintiff's appointment to said office. If he was appointed thereto, he is entitled to the emoluments thereof.

It is a well-established principle that a salary pertaining to an office is an incident of the office itself, and not to its occupation and exercise, or to the individual discharging the duties of the office. On the other hand, it is equally well settled that, if a person exercising the functions of an office is not entitled to the office, he cannot maintain an action for his services.

In Luth v. Kansas City, 203 Mo. App. loc. cit. 113, 218 S. W. 902, the court said:

"In this state it is held that a salary is attached to and depends upon the legal title to the office, and that the de jure claimant is entitled to the salary, even though he has not occupied the office or performed the duties thereof. State ex rel. v. Walbridge, 153 Mo. 194, 203 ; State ex rel. v. Gordon, 245 Mo. 12, 28, 29 . And, following the logical result of the rule stated in those cases, it was held in Sheridan v. St. Louis, 183 Mo. 25, 38-40 [81 S. W. 1082, 2 Ann. Cas. 480], that a de facto officer who has performed the functions of the office cannot recover the salary attached to such office."

In Schulte v. City of Jefferson (Mo. App.) 273 S. W. loc. cit. 172, the court said:

"Plaintiff was not a de jure officer until at least confirmed by the council. If anything at all, he was a de facto officer, and such officer is not entitled to the emoluments of the office. 29 Cyc. 1393; Sheridan v. City of St. Louis, 183 Mo. 25, 39, 40, 81 S. W. 1082, 2 Ann. Cas. 480; Luth v. Kansas City, 203 Mo. App. 110, 113, 218 S. W. 901; Throop on Public Officers, § 517."

The statute (section 1144, supra) provides:

"The circuit judge shall designate or appoint an officer of the county or some other person to serve as probation officer under the direction of the court in cases arising under this article."

To establish his appointment, under the foregoing section of the statute, plaintiff introduced a certified copy of an order of the county court of said Franklin county of the tenor following:

"Sept. 1, 1919. Now on this day comes R. C. L. Cunio, probation officer for Franklin county, Mo., and recommends that the salary of said officer be fixed at $50 per month."

To the introduction of this order, counsel for defendant objected on the ground that said county court was without jurisdiction to appoint a probation officer. The trial court overruled the objection; counsel for defend-" ant duly excepted to this action of the court, and assigned same as error.

The statutes say "the circuit judge shall designate or appoint * * *" a probation officer.

"The word `designate,' when used by the appointing power in making an appointment to office, is equivalent to the word `appoint.'" Words and Phrases, vol. 3, p. 2027, citing People v. Fitzsimmons, 68 N. Y. 514,...

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