Davis v. Jasper County

• Decision Date: 02 December 1927
• Docket Number: 25158
• Citation: 300 S.W. 493,318 Mo. 248
• Parties: R. H. Davis v. Jasper County, Appellant
• Court: Missouri Supreme Court

300 S.W. 493

318 Mo. 248

R. H. Davis v. Jasper County, Appellant

No. 25158

Supreme Court of Missouri

December 2, 1927

Appeal from Jasper Circuit Court; Hon. Grant Emerson Judge.

Reversed.

Roy Coyne and Frank L. Forlow for appellant.

(1) Section 734 provides that it only applies to a county "in which circuit court is not held in more than one place." Therefore this does not apply to Jasper County where circuit court has been held at more than one place for years. If the limitation clause is good and valid Jasper County is excluded; if it is bad, then the act so far as this clause is concerned is unconstitutional and void, and in either event, the respondent cannot recover from the appellant any salary claimed due him under the law and the facts in this case. (2) The court has held that the Legislature cannot pass a special law, where a general law will apply. The limitations in the part of this act, under the decisions of this court, makes this act inapplicable to Jasper County. (3) This court will take judicial notice that the Circuit Court of Jasper County is now and has been for years held at more than one place, to-wit, in Joplin and Carthage. (4) Under the decisions of this court the clause of this act, quoted supra, may be invalid without affecting the other part of the law.

W J. Owen for respondent.

(1) Sec. 11080, R. S. 1919, under which plaintiff was paid $ 3500 salary per year as prosecuting attorney from January 1, 1919, to January 1, 1921, is a special law, and violates Section 53 of Article Four of the Constitution, and is void. State v. Logan, 268 Mo. 169; State ex rel. Taggart v. Perkins, 283 Mo. 161; State ex rel. Willis v. Williams, 232 Mo. 56. (2) The Act of 1913, page 108, fixing the salary of prosecuting attorneys, was in full force and effect at the time of the election of plaintiff and continued to be in force until January 1, 1921, at which time the Act of 1919, Laws 1919, p. 672, now Section 734, R. S. 1919, took effect. State ex rel. Brunjes v. Brockelman, 240 S.W. 209; Sutherland on Stat. Const., sec. 107, p. 127; 36 Cyc. 1192. Furthermore, the Act of 1919 was in effect an amendment only of said Act of 1913, and was not a new act -- the Act of 1919 reenacting all of the terms and provisions of the Act of 1913, with only minor changes, such as the changes made in the number of inhabitants for classification purposes -- the maximum number being changed from one hundred and forty thousand to one hundred thousand inhabitants. State ex rel. Wayne County v. Hackman, 272 Mo. 600; Brown v. Marshall, 241 Mo. 728; State ex rel. Hawes v. Mason, 153 Mo. 58; Sutherland on Stat. Const., sec. 107, p. 134; 36 Cyc. 1083, 1192.

Gantt, J. All concur, except Blair, J., not sitting.

OPINION

GANTT

This case came to me on reassignment. This suit is to recover a balance of two thousand dollars with interest, claimed to be due plaintiff for salary as Prosecuting Attorney of Jasper County. It is alleged in the petition that the plaintiff is entitled to recover under Section 1005, Laws of 1913, page 108 (now Sec. 734, R. S. 1919). Defendant answered by pleading Section 1, Laws of 1913, page 709 (now Sec. 11080, R. S. 1919), providing a salary of $ 3500 per annum for the Prosecuting Attorney of Jasper County; that during his term of office the plaintiff was tendered by defendant, in monthly installments, the $ 3500 so provided; that he accepted said sum as and for his salary without protest or complaint; that since the close of his term of office on the 31st of December, 1920, he made no claim for additional compensation until May, 1922, at which time he claimed that Section 11080 was unconstitutional, and made claim for additional compensation under said Section 734, and that plaintiff having accepted same without protest thereby waived the question of the constitutionality of said statute and is estopped to assert the same. The reply was a general denial. Judgment was for said sum, and defendant appealed.

It is admitted that respondent was elected to the office of Prosecuting Attorney of Jasper County at the general election in 1918, for a term of two years, commencing on the first day of January, 1919; that he duly qualified as such officer and discharged the duties of the office during said time. Appellant paid respondent the sum of $ 3500 per annum under Section 11080, which section is as follows:

"From and after the expiration of the term of office of the present incumbent, the following salaries per annum shall be paid the hereinafter named officers of all counties in this State which now contain or may hereafter contain 80,000 or more inhabitants and less than 150,000 inhabitants, in which circuit court is held in two or more places in said county, viz: collector of revenue, three thousand five hundred dollars; prosecuting attorney, three thousand five hundred dollars; judge of the probate court, two thousand dollars; recorder of deeds, two thousand dollars. All of said salaries to be paid in monthly installments on the first day of each month."

The County Court of Jasper County and the respondent treated this statute as a valid law, and payment was made accordingly. The trial court held Section 11080 in so far as it affects the Prosecuting Attorney of Jasper County to be unconstitutional. Judgment was rendered under Section 734, which in part is as follows:

"On and after the first day of January, 1921, the prosecuting attorney shall receive for his services per annum, to be paid out of the county treasury, in all counties having a population of . . . fifty thousand and less than seventy thousand inhabitants the sum of five thousand dollars ($ 5000); in all counties having a population of seventy thousand and less than one hundred thousand inhabitants, and not containing a city of more than seventy-five thousand inhabitants, and in which circuit court is not held in more than one place, the sum of forty-five hundred dollars ($ 4500), to be paid monthly upon the warrant of the county court issued in favor of the prosecuting attorney to the county treasurer for that purpose."

Section 1005, Laws 1913, pages 108, 109, was repealed by the Laws of 1919, pages 672-673, and a new section numbered 1005 enacted in lieu thereof, which new section is now Section 734, Revised Statutes 1919. It was provided in new Section 1005 that it was to take effect on and after the 1st of January, 1921. Respondent's term of office commenced on the 1st day of January, 1919, and ended on the 31st of December, 1920. It is contended by respondent that the Act of 1913, page 108, continued to be in force until the first of January, 1921, even though the Act of 1919, page 672, provided for its repeal; that the Act of 1919 is only an amendment of the Act of 1913, with only minor changes, and is but a continuance of the latter and the law dates from the passage of the first statute. As to this contention we express no opinion.

The population of Jasper County is such that it falls within the class of 70,000 and less than 100,000 inhabitants and the class of 80,000 and less than 150,000 inhabitants. If that part of Section 734 creating the class of 70,000 and less than 100,000 inhabitants is valid as written, then Jasper County does not fall within the class, for in that county circuit court is held in more than one place.

Respondent contends, and the trial court ruled, that the words in said classification, as follows, "and not containing a city of more than 75,000 inhabitants and in which circuit court is not held in more than one place" make of the classification a local and special law within the meaning of Section 53, Article IV, of the Constitution. The trial court further ruled that these words could be eliminated from the classification and the remainder be sustained as a valid law. With these words eliminated Jasper County falls within the class of 70,000 and less than 140,000 inhabitants; and if Section 11080 is unconstitutional, the Prosecuting Attorney of Jasper County was entitled to a salary of $ 4500 per annum instead of $ 3500 per annum. If the above words can be eliminated and a valid law remain, it is not explained why the words "in which circuit court is held in two or more places in said county" in Section 11080 cannot be eliminated and a valid law remain.

The question for determination is the constitutionality of Section 11080. If this section is constitutional, the judgment should be reversed. In 1913 the Legislature enacted a number of laws abolishing the fee-system plan of payment to county officials for their services; fixed their compensation at certain salaries and required them to pay fees collected into the county treasury. The section under consideration is one of these statutes. It is presumed to be a valid law, and unless its invalidity appears in such manner as to leave no reasonable doubt, we should not declare it unconstitutional. In the case of State ex inf. v. Southern, 265 Mo. l. c. 286, we said:

"The rule that a statute relates to a class of persons or a class of things is general, while one which only applies to particular persons or things is special, has been generally announced in this and other jurisdictions. [State ex rel. v. Taylor, 224 Mo. l. c. 477, 478, and cases cited; Elting v. Hickman, 172 Mo. 257, and cases cited; State ex rel. Dickason v. County Court of Marion County, 128 Mo. 427; Lynch v. Murphy, 119 Mo. 163; State ex rel. Lionberger v. Tolle, 71 Mo. l. c. 650.]

"It is, however, an essential adjunct of this rule that the classification made by the Legislature shall rest on a reasonable basis and not upon a mere arbitrary division made only for purposes of legislation. [State ex rel. v Roach, 258 Mo. l. c. 563; Hawkins v. Smith, 242 Mo. l. c. 696.] When this is borne in...