Gill v. Buchanan County

• Decision Date: 23 July 1940
• Docket Number: 36530
• Parties: Frank M. Gill v. County of Buchanan, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 665

346 Mo. 599

Frank M. Gill v. County of Buchanan, a Municipal Corporation, Appellant

No. 36530

Supreme Court of Missouri

July 23, 1940

Appeal from Buchanan Circuit Court; Hon. Emmett J. Crouse Judge.

Affirmed.

Maurice Hoffman and John W. Mitchell for appellant.

(1) The Statute of Limitations is a bar to any claim for unpaid salary for the months of January to July, inclusive, in the year 1933. Secs. 862, 2092, R. S. 1929; Laws 1931, p. 190; Givens v. Rogers, 192 Mo.App. 319, 182 S.W. 115; Sperry v. Cook, 247 Mo. 132, 152 S.W. 318; Stark Bros. Co. v. Gooding, 175 Mo.App. 353, 162 S.W. 333; Boyd v. Buchanan, 176 Mo.App. 56, 162 S.W. 1075; Schrabauer v. Schneider Products Co., 25 S.W.2d 529 224 Mo.App. 304; Allison v. Mo. Power & Light Co., 59 S.W.2d 771; Bisesi v. Farm & Home Savs. & L Assn., 78 S.W.2d 871, 231 Mo.App. 897; 37 C. J. 854. (2) Under the Constitution and laws of the State of Missouri the appellant may not be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the consent of two-thirds of the voters thereof voting on such proposition at an election to be held for that purpose. There was no such election held in Buchanan County at any time during the year 1934. Mo. Const., Art. X, Sec. 12; Barnard & Co. v. Knox County, 16 S.W. 917, 105 Mo. 382; Book v. Earl, 87 Mo. 246. (3) The proceeds of a special levy for road and bridge purposes may not be used either in whole or in part for other than road and bridge purposes, and no part of such proceeds may lawfully be included in an estimate of the total amount of the general revenue for any year, as was attempted to be done in this case. Mo. Const., Art. X, Sec. 22; County Budget Law, Laws 1933, pp. 346-351. (4) The county court was bound to keep its expenditures payable out of the general revenue within the limits of the anticipated or estimated general revenue (not including any sum sought to be transferred to the general revenue fund from the special road and bridge fund) as set out in the budget. County Budget Laws, Laws 1933, pp. 346-351; Mo. Const., Art. X, Sec. 22. (5) The amount which was expendable in 1934 by the County was limited to the estimates of income and revenue shown in the budget for 1934 and made by the county court when it adopted the budget for 1934. County Budget Law, Laws 1933, pp. 346-351; Mo. Const., Arts. VI, X, Secs. 36, 12. (6) Under the evidence in this case the plaintiff is estopped from claiming any additional sum for salary for the year 1934 as county judge. Mo. Const., Art. VI, Sec. 36; Aslen v. Stoddard County, 106 S.W.2d 472, 341 Mo. 138; Secs. 2078, 12136, 12153, 12162, County Budget Law, Laws 1933, pp. 346-351.

Mayer, Conkling & Sprague for respondent.

(1) The statutes in force at the time of respondent's election as county judge of Buchanan County, Missouri, fixed the salary of the county judges of that county at $ 4500 per annum. Laws 1931, p. 190; Sec. 11808, R. S. 1929; Ruffin v. Greene County, 342 Mo. 1128. (2) Respondent took as an incident to his election as county judge the right to receive the full amount of the salary attached to said office and prescribed by statute. State ex rel. Rothrum v. Darby, 137 S.W.2d 538; Nodaway County v. Kidder, 129 S.W.2d 860; Bates v. St. Louis, 153 Mo. 20; Givens v. Daviess County, 107 Mo. 608; Ruffin v. Greene County, 342 Mo. 1128. (3) Appellant's contention that the judgment is excessive insofar as it allows a recovery for unpaid salary for the months of January to July, both inclusive, in the year 1933, which were barred by limitation, is sufficiently answered by the voluntary action of respondent in entering a remittitur in this court for the sum of $ 892.50, in accordance with the well-settled practice of this court, and the judgment of the lower court should be affirmed for the balance, to-wit, $ 2167.50. 5 C. J. S., p. 1335, sec. 1850; Miller v. Hardin, 64 Mo. 547; Smith v. Ry. Co., 92 Mo. 374; Warder v. Henry, 117 Mo. 546; Stone v. McConnell, 187 S.W. 888. In any event, in view of respondent's remittitur and of appellant's concession that repondent's claim as to 1933 should be confined to back pay for the months of August to December, both inclusive, the respondent is at least entitled to a judgment of $ 637.50. (4) The enactment of Laws 1933, page 208, changing the method of determining the population, does not affect the case. The salary of a public officer, dependent upon the population as ascertained from time to time, is determined by the law in force at the time of his election, and a law which later goes into effect does not affect his salary. State ex rel. Harvey v. Linville, 318 Mo. 701. County courts are courts of record, Sec. 36, Art. VI, Mo. Const.; Nodaway County v. Kidder, 129 S.W.2d 860; and the constitutional restriction against any change in the salary of a judge of a court of record during his term of office is mandatory, and prevents either a direct or an indirect reduction. Sec. 33, Art. VI, Mo. Const.; 46 C. J. 1021, sec. 254. (5) The judgment of the trial court, in allowing respondent a recovery of the deficiency in the payment of his salary for the year 1934, does not violate Section 12, Article X, Missouri Constitution. (a) The payment of the salary of a public officer, whose office has been created and salary fixed by law, either statutory or constitutional, is not within the provision of said section of the Constitution, because the constitutional limitation as to becoming indebted applies only to an indebtedness resulting from contractual relations, Conner v. Nevada, 188 Mo. 153; State ex rel. Emerson v. Mound City, 335 Mo. 716, and the right of a public officer to the salary of his office does not rest upon contract. State ex rel. Rothrum v. Darby, 137 S.W.2d 536; State ex rel. Evans v. Gordon, 245 Mo. 27; Sanderson v. Pike County, 195 Mo. 605; Bates v. St. Louis, 153 Mo. 20; State ex rel. Chapman v. Walbridge, 153 Mo. 203; Givens v. Daviess County, 107 Mo. 610.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action to recover from Buchanan County $ 3000 for the balance of respondent's salary claimed to be due for the years 1933 and 1934 as a county judge. Plaintiff had judgment for the full amount claimed, with interest from the time he commenced suit, and defendant has appealed.

Plaintiff was elected in 1932 for a term commencing January 1, 1933, and ending December 31, 1934. Plaintiff was paid $ 3000 for each of said years, but claims that he was entitled to be paid $ 4500 per year, or $ 125 per month more than he was paid. [Laws 1931, p. 190, which repealed Sec. 2092, R. S. 1929, and enacted a new Sec. 2092; and Sec. 11808, R. S. 1929.] Defendant admits that plaintiff was entitled to collect a salary of $ 4500 for the year 1933. [See Ruffin v. Greene County, 342 Mo. 1128, 119 S.W.2d 374; Young v. Greene County, 342 Mo. 1105, 119 S.W.2d 369.] Defendant's only defense to that part of plaintiff's claim is the five year Statute of Limitations (Sec. 862, R. S. 1929), which it sets up to bar plaintiff's suit (commenced in August, 1938) as to amounts claimed for the first seven months of 1933. Plaintiff now admits that this part of his claim is thus barred and has filed a remittitur therefor. Thus the issues on this appeal are narrowed to plaintiff's claim for the year 1934. The facts were settled by stipulations filed in the trial court.

Defendant admits that the Buchanan County Court was in the $ 4500 salary class, made by Laws 1931, p. 190, enacting a new section in lieu of Sec. 2092, R. S. 1929, under the method of classification provided in Sec. 11808, R. S. 1929; namely that "for the purpose of determining the population of any county in this State, as a basis for ascertaining the salary of any county officer for any year . . . the highest number of votes cast at the last previous general election, whether heretofore or hereafter held in such county, for any office, shall be multiplied by five." However, defendant relies upon Sec. 2092a (Laws 1933, p. 209) thereafter enacted, providing "that the number of inhabitants of any county for the purpose of the above section 2092 shall be ascertained by the last decenial census of the United States." Defendant recognizes our constitutional prohibition (Sec. 33, Art. 6) against diminishing compensation of judges of courts of record (which includes county courts, Sec. 36, Art. 6) "during the period for which they were elected." However, defendant says "that Sec. 11808, R. S. 1929, amounts in effect to a rule of evidence, by which the number of inhabitants in a county is to be determined;" that plaintiff's salary "was dependent on the population," which "was the sole test;" and that the 1933 Act (Laws 1933, p. 209, sec. 2092a) did not "change the rate of pay of any county judge;" but that "the method of ascertaining the truth about the population was all that was changed." The trouble with this argument is that it looks only to the form and not to the substance of the matter. The real effect of Sec. 11808, R. S. 1929, and other similar statutes, is to make the number of votes cast in a county, rather than the number of people living in it, the basis of classification for salaries of its county officers; and we have held that "actual population is not required for a valid classification," but instead, the Legislature "could take the presidential vote as a basis for classification, or could take any multiple of such vote as a basis of classification." (Likewise it could select taxable wealth or amount of taxes levied or some other reasonable basis.) [Perkins v. Burks, 336 Mo. 248, 78 S.W.2d 845; State ex rel. O'Connor v. Riedel, 329 Mo. 616, 46 S.W.2d 131; State ex rel. Chaney...