Folk v. City of St. Louis

• Decision Date: 20 May 1913
• Citation: 157 S.W. 71,250 Mo. 116
• Parties: JOSEPH W. FOLK, Appellant, v. CITY OF ST. LOUIS
• Court: Missouri Supreme Court

157 S.W. 71

250 Mo. 116

JOSEPH W. FOLK, Appellant, v. CITY OF ST. LOUIS

Supreme Court of Missouri, Second Division

May 20, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Matt G. Reynolds Judge.

Affirmed.

Judson Green & Henry and Thomas B. Harvey for appellant.

(1) The compensation of the office of circuit attorney prior to the Act of 1901, was $ 1000 in salary, $ 3000 in lieu of fees in felony cases, $ 1000 in lieu of fees in misdemeanor cases and in addition thereto the circuit attorney was entitled to certain other fees in criminal cases. The Act of 1901 did not increase the "compensation or fees" of the circuit attorney, but decreased the fees in giving a salary in lieu of all fees in criminal cases, and made the salary payable by the city monthly, instead of part by the city and part by the State, at irregular intervals as provided for by prior statutes: R.S. 1899, sec. 4949; R.S. 1889, sec. 636; R.S 1879, sec. 512; Laws 1872, p. 13; Laws 1865-6, p. 14; Laws 1869, p. 8. (a) Sec. 4949, R.S. 1899, giving a salary of $ 1000 a year to all prosecuting attorneys in counties of 35,000 inhabitants and over, applied to the circuit attorney of St. Louis. The circuit attorney of St. Louis was the prosecuting attorney for that county. He was the official corresponding to prosecuting attorneys throughout the State. When the city of St. Louis and the county of St. Louis separated, the circuit attorney became the State's prosecuting officer for St. Louis. Sec. 4950, R.S. 1899; Sec 4959, R.S. 1899; State v. Speritus, 191 Mo. 38; State ex rel. v. Williams, 221 Mo. 261. (b) All prosecuting attorneys in the State were formerly termed circuit attorneys, and there was one for each circuit (R.S. 1855, p. 274, sec. 6). St. Louis county alone comprised the 8th Judicial Circuit (Ib. p. 545, sec. 9) and was the only county in the State with a prosecuting officer whose jurisdiction was limited to one county. In 1872 in order to have one prosecuting attorney for each county instead of for a circuit composed of a number of counties, the office of circuit attorney was abolished, and prosecuting attorneys for each county provided for. As St. Louis county already had a prosecuting officer in the circuit attorney, and as it would create confusion to call the State's prosecutor in St. Louis county "prosecuting attorney" (there being a minor official in that county termed "prosecuting attorney," Laws 1869, p. 197), St. Louis county was excepted from the section of the act changing the name of the State's prosecutor; but by section 4 of said act it was made plain that the circuit attorney of St. Louis was the same official as the prosecuting attorney provided for by the act. Section 3 of the Act of 1872 gave all prosecuting attorneys without exception a salary in addition to fees, and in counties of 35,000 inhabitants and over (St. Louis county) this salary was fixed at $ 1000. Section 3 of said act was amended and re-enacted as Sec. 512, R.S. 1879, Sec. 636, R.S. 1889, and Sec. 4949, R.S. 1899. (2) Any doubt as to the purpose of the Legislature to have section 3 of the Act of 1872 apply to all prosecuting officers, including the prosecuting officer of St. Louis county, is removed by the fact that the Act of 1872 was revised, amended and re-enacted in 1879, and as amended sections 1, 2, 3 and 4 were omitted, there being no longer any necessity of making it clear that the name of the State's prosecuting officer in St. Louis county was not changed. The effect of these omissions was to repeal these sections, leaving section 3 as amended a general law enacted by the Legislature. Butler v. Sullivan County, 108 Mo. 639. Sec. 4949, R.S. 1899, is an amendment and re-enactment of section 3 of the Act of 1872. See Sec. 636, R.S. 1889, and Sec. 512, R.S. 1879. This as enacted in 1879 was applicable to all prosecuting attorneys in the State and applied to the circuit attorney of St. Louis county (later city of St. Louis) just as any other law regarding prosecuting attorneys would apply to the circuit attorney of St. Louis. Section 3237 provides for fees for prosecuting attorneys and under this section the circuit attorney's fees (paid into the city treasury under the Act of 1901) have always been taxed. If the circuit attorney is a prosecuting attorney under the fee statute, he was a prosecuting attorney under the salary statute. (3) The Act of 1901 did not increase the "compensation or fees" of the circuit attorney. It gave a fixed salary of $ 5000 in lieu of an indefinite compensation consisting partly of salary and partly of fees. (a) Irrespective of section 4949, and assuming for the sake of argument that section does not apply, the compensation of the circuit attorney was $ 4350 in salary and in addition fees in criminal cases other than of misdemeanor and felony. The salary of $ 4350 was made up as follows: $ 350 salary to all circuit attorneys by the Act of 1855, p. 183. This was repealed by Sec. 4949, R.S. 1899, if this section applies as we think it does, but if it does not apply then it did not repeal the Act of 1855 so far as the circuit attorney of St. Louis county was concerned; $ 1000 salary in lieu of fees in misdemeanor cases under the Act of 1866, p. 14; and $ 3000 under the Act of 1869, p. 8. (b) The Act of 1901 did not increase the circuit attorney's fees, for it gave a fixed salary in lieu of all other salary and all fees in criminal cases. The Act of 1901 did not increase the circuit attorney's compensation, for it merely substituted a fixed salary for uncertain and fluctuating fees. The constitutional provision against increase of compensation does not apply where salary is given in lieu of uncertain fees. Supervisors v. Hackett, 21 Wis. 613; State v. Kalt, 50 Wis. 179; Thompson v. Phillips, 12 Ohio St. 617; Kirkwood v. DeSoto, 87 Cal. 394. (c) Before the constitutional provision can apply there must be: 1. A fixed and definite compensation; 2. A fixed and definite term of office. The Legislature may lawfully commute fluctuating fees into fixed salary. Supervisors v. Hackett, 21 Wis. 613. The constitutional provisions do not apply to a State official if his term of office is not definite and certain. State ex rel. v. Gordon, 238 Mo. 171. (d) The Constitution does not prohibit a change of compensation and unless it can be said that the "compensation or fees" are increased the constitutional inhibition does not apply. Adding to salary by subtracting from fees, or substituting salary for fees, does not offend the constitutional provision. (e) Fees in criminal cases, other than felony or misdemeanor, that the circuit attorney received prior to the Act of 1901 are provided for in secs. 4950, 2344 and 4955, R.S. 1899. The Act of 1905, p. 51, amending the Act of 1901, assumed these fees to be at least $ 5000 a year in providing for a contingent fund of this amount out of these fees. Sec. 984, R.S. 1909. But the amount of the fees cut off by the Act of 1901 in giving a fixed salary in lieu of "all other salary and all fees in criminal cases" is immaterial. They would necessarily vary greatly from year to year. If an official is paid entirely by salary, or entirely by fees, it could then be determined whether any change in the law increased or decreased his compensation, but when an official is paid in part by salary and in part by fees, adding to the salary and subtracting from the fees may have the effect in a given year of decreasing or increasing compensation according to circumstances. An act cannot be unconstitutional one month or year, and constitutional another. "A statute cannot be declared ineffective because it may infringe on some constitutional limitation. Mere possibility or conjecture is not enough. The necessary and inevitable effect must be to violate the Constitution." Railroad v. Brick Co., 85 Mo. 307. (f) Even if it could be said that the effect of the Act of 1901 was incidentally to increase appellant's compensation, the act would still be valid as an exercise of the power of the Legislature in making such reasonable changes in the method of paying an official as the public interest and welfare might seem to require. State ex rel. v. Ransom, 73 Mo. 78; State ex rel. v. McGovney, 92 Mo. 428; Cunningham v. Railroad, 165 Mo. 276; State ex rel. v. Wilder, 206 Mo. 547; State ex rel. v. Speed, 183 Mo. 186. (g) During appellant's entire term the circuit attorney's fees were turned into the city treasury under the Act of 1901, while the city after acting under the law of 1901 for two and one-half years, refused for the balance of the term to pay appellant the salary under the Act of 1901 into which these fees were commuted. The city cannot treat the act as valid so far as the fees are concerned, and deny its validity with regard to the salary substituted for these fees. (4) Respondent, having with full knowledge of the opinion of the city counsellor, accepted and retained the fees earned by the circuit attorney's office from March 18, 1901, to January 1, 1905, and having accepted the benefits in public service of the reorganization of said office and having by direction of its legal adviser paid appellant's compensation under said act for two and one-half years, has waived any right it might have had to claim that the Act of 1901 was not applicable to appellant. Respondent cannot accept the benefits of said act with one hand and repudiate its obligations with the other. Laws 1901, p. 45; Henderson v. Koenig, 192 Mo. 714; St. Louis v. Davidson, 102 Mo. 155; Spark v. Jasper County, 213 Mo. 237; Star Pub. Co. v. Warehouse Co., 123 Mo.App. 13; Swofford D. G. Co. v. Bank, 81 Mo.App. 46; Kansas City v. Shraeder, 196 Mo. 281; Stamper v. Roberts, 90 Mo. 683; Railroad v. Marion County, 36 Mo. 307; State ex rel. v. Miller, 113 Mo.App. 665; Righter v. Loyal...