Givens v. Daviess County

• Decision Date: 22 December 1891
• Citation: 107 Mo. 603,17 S.W. 998
• Court: Missouri Supreme Court
• Parties: GIVENS v. DAVIESS COUNTY.

17 S.W. 998

107 Mo. 603

GIVENS v. DAVIESS COUNTY.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

COUNTY TREASURER — SALARY — COUNTY COURT — JURISDICTION — NOTICE.

1. Rev. St. 1879, § 5388, giving county courts power to "audit, adjust, and settle all accounts to which the county shall be a party," does not confer exclusive original jurisdiction, for while so engaged the county court is acting merely in an administrative capacity, as the county's agent, and section 5359 unequivocally requires that "all actions whatsoever against any county shall be commenced in the circuit court of such county."

2. Plaintiff served as county treasurer for two years prior to January 24, 1885, when his second term commenced. For the two-year term he had been paid $3,000. While serving his second term the law was amended so as to extend the term from January 24th to April 1st, but the amount of additional compensation was not fixed. In April, 1886, the county court issued a warrant to plaintiff for $1,200 "yearly salary," which he declined to accept. On December 7, 1886, the court ordered another warrant to be issued to plaintiff for $3,000 "in full of all demands as such treasurer." Plaintiff accepted this warrant, but was not informed of its terms. Held, in an action to recover compensation for the additional term, that plaintiff was entitled to compensation at the rate of $1,500 per year to the end of his extended term, since his salary could only be reduced by appropriate action of the county court upon notice to him.

Appeal from circuit court, Daviess county; H. S. GOODMAN, Judge.

Action by William M. Givens against Daviess county, Mo., to recover balance due plaintiff on his salary as treasurer of said county. Plaintiff obtained judgment, and defendant appeals. Affirmed.

G. A. Chapman, for appellant. Hicklin & Yates, for respondent.

MACFARLANE, J.

This is a suit by plaintiff to recover of Daviess county $275 claimed to be due him as balance of his salary as treasurer of said county for a term commencing January 24, 1885, and ending April 1, 1887, at the rate of $1,500 per year. The controversy grows out of differences between the parties as to what the compensation should have been, the county claiming that $3,000 was paid plaintiff as compensation for the full term, while plaintiff insists that $3,000 was accepted as compensation for two years only. The evidence shows that plaintiff had served as treasurer for two years prior to January 24, 1885, when his second term commenced, and for those two years he had been paid $3,000. No order of the county court fixing the salary of treasurer was shown, either for the first or second term. Plaintiff was elected for a term of two years, but before the end of the term the law was amended, by which the term was extended from January 24th to the 1st of April. The amount of the additional compensation was not fixed by the county court. The contention of defendant is that under section 5405, Rev. St. Mo. 1879, the county court of the county was invested with full power and authority to fix and allow plaintiff, as salary for his services as treasurer, such compensation as it should deem reasonable and just, and that, exercising that authority, they had allowed him $3,000 for the full term ending April 1, 1887. The evidence showed that in April, 1886, the county court issued a warrant, payable to plaintiff, for $1,200, "yearly salary." This warrant plaintiff declined to accept. On the 7th day of December, 1886, an order was made by the county court as follows: "Ordered that warrant No. 636, for $3,000, issue on county revenue fund in favor of William M. Givens, treasurer of Daviess county, in full of all demands as such treasurer; and, further, the clerk of this court is directed to cancel a certain warrant heretofore issued, for the sum of $1,200, to said William M. Givens, as treasurer and ex officio collector, and not accepted by him." Under this order a warrant was issued to and accepted by plaintiff, though he was not present when the order was made, and was not informed of its terms. At the request of plaintiff, the court instructed the jury, in substance, that if he was allowed by the county court for his first term of office the sum of $1,500 per year, and that his compensation for the second term was at no time fixed by the court, then he was entitled to receive for his services compensation at the rate of $1,500 per annum. The court refused to instruct, at request of defendant, that the court had the right to determine and fix the salary and compensation of plaintiff at any time during his term, and if the allowance of December, 1886, was intended by the court to be in full satisfaction for all services to April 1, 1887, then the acceptance of the warrant for the amount allowed was conclusive on him. A number of exceptions were taken to the ruling of the court on the trial in admitting and rejecting testimony, but the theory of the court sufficiently appears from the giving and refusal of these instructions, and presents all substantial questions raised upon the trial. The verdict and judgment thereon were for plaintiff, and defendant appealed.

1. The first error assigned by defendant, and insisted upon here, is that under section 5388 of the Statutes of 1879 the county court had exclusive original jurisdiction to pass upon the claim of plaintiff in the first instance, before the jurisdiction of the circuit court attached to the subject-matter; that, if the claim had been rejected by the county court, an appeal could have been taken to the circuit court under the provisions of section 1216, or an original suit could have been commenced as provided by section 5359, but, until the county court had passed upon the claim, the circuit court had no jurisdiction. The first of these sections gives to county courts the power to "audit, adjust, and settle all accounts to which the county shall be a party, and to order the payment out of the county treasury of any sum of money found to be due by the county." The second of said sections gives to a party presenting an account against the county an appeal to the circuit court, in case the same, or any part thereof, be rejected; and the third provides that "all actions whatsoever against any county shall be commenced in the circuit court of such county." It must be...