Greene County v. Lydy

• Decision Date: 19 December 1914
• Docket Number: No. 17364.,17364.
• Citation: 172 S.W. 376
• Parties: GREENE COUNTY v. LYDY.
• Court: Missouri Supreme Court

172 S.W. 376

GREENE COUNTY v. LYDY.

No. 17364.

Supreme Court of Missouri.

December 19, 1914.

Rehearing Denied December 31, 1914.

1. CONSTITUTIONAL LAW (§ 48) — STATUTES — VALIDITY — PRESUMPTIONS.

A statute will not be declared unconstitutional, unless clearly so, and not merely because doubts arise as to its validity.

2. APPEAL AND ERROR (§ 1099) — COURTS (§ 90) — CONTROLLING DECISIONS — STARE DECISIS.

As a general rule, a constitutional question once decided is no longer open, though, where the opinion is radically wrong, the court on a new appeal in the same case, or in another case, will correct the error, unless prevented by the rule of stare decisis.

3. CONSTITUTIONAL LAW (§ 43) — STATUTES — VALIDITY — ESTOPPEL.

A party may be estopped to assert the unconstitutionality of a statute in a suit on a bond given by him under it, from which he has received benefits.

4. CONSTITUTIONAL LAW (§ 43) — STATUTES — VALIDITY — ESTOPPEL.

Where an officer collected fees under a statute, in force when he was elected and when he qualified, he could not dispute the validity of a provision of the statute prescribing how the fees, when collected, should be disbursed.

5. CONSTITUTIONAL LAW (§ 48) — STATUTES — VALIDITY — PRESUMPTIONS.

The presumption of the constitutionality of a statute attaches to each separable provision thereof, and the invalidity of any provision must be made to appear beyond a reasonable doubt, before the court can declare any provision invalid.

6. STATUTES (§ 64) — VALIDITY — INVALID IN PART — EFFECT.

Where a statute is in part invalid, the court must uphold the balance, where, by so doing, it carries out the legislative intent.

7. CONSTITUTIONAL LAW (§ 43) — JUDGES (§ 22) — STATUTES — VALIDITY — ESTOPPEL.

Laws 1905, p. 155, fixing fees of probate courts, and providing for the payment of a part of the fees into the county treasury for the benefit of the school fund of the county, and repealing all inconsistent acts and parts of acts, repeals Rev. St. 1899, § 3240, prescribing the fees of probate courts, and a judge of a probate court, elected after the act of 1905 took effect, can only collect fees pursuant to the authority conferred thereby, and, when he collects fees, he is estopped from asserting the unconstitutionality of the provision for the payment of fees into the county treasury.

8. JUDGES (§ 22) — FEES — SALE OF JUSTICE — STATUTORY PROVISIONS.

The proviso in Rev. St. 1909, § 10695, for the payment into the county treasury of a part of the fees collected by judges of probate courts, is not unconstitutional as a sale of justice prohibited by Const. art. 2, § 10.

9. JUDGES (§ 22) — COMPENSATION — INCREASE DURING TERM.

A probate judge elected before the enactment of Laws 1911, p. 304, fixing compensation for circuit judges acting as members of the jury commission created thereby, is not entitled to have the compensation considered in determining the amount of fees he may retain under Rev. St. § 10695, based on the increase the circuit judges will receive, and thereby increase his salary during his term, in violation of Const. art. 14, § 8.

10. JUDGES (§ 22) — SALARIES — STATUTES — CONSTRUCTION.

Rev. St. 1909, § 10695, prescribing the fees of judges of probate courts, but declaring that, after deducting reasonable and necessary expenses for clerk hire, the amount of fees collected, exceeding the compensation for a judge of the circuit court, must be paid into the county treasury, must be strictly construed against a probate judge, and a probate judge, who performs clerical work himself, is not entitled to compensation therefor in excess of that prescribed

in determining the amount he must pay into the county treasury.

11. EVIDENCE (§ 11) — JUDICIAL NOTICE — FACTS OF CURRENT HISTORY.

The court, in determining the validity of a statute, may take judicial notice of current history and the mischief the statute attempted to provide against.

12. JUDGES (§ 22) — COMPENSATION — STATUTORY PROVISIONS.

Const. art. 9, § 12, authorizing the Legislature, by a law uniform in operation, to provide for and regulate the fees of county officers, and permitting the classification of counties by population, when considered in connection with section 13, providing that the fees of no executive or ministerial officer of any county or municipality shall exceed $10,000 annually, and requiring every such officer to make return quarterly to the county court of all fees received by him, does not render invalid Rev. St. 1909, § 10695, fixing fees for probate courts, and requiring payment of a part of the fees into the county treasury, for the Legislature is not required, but merely permitted, to classify counties by population, and because the provision for the payment of the fees into the county treasury does not relate to the regulation of fees, but to their retention.

13. STATUTES (§ 98) — GENERAL STATUTES — REGULATION OF COURTS.

Statutes dealing with the courts are, as a general rule, general statutes, though not applicable to every court of like nature in the state.

14. JUDGES (§ 22) — "COUNTY OFFICER" — JUDGE OF PROBATE — FEES.

Judges of probate courts are not "county officers," within Const. art. 9, § 12, authorizing the Legislature, by a law uniform in its operation, to provide for and regulate the fees of county officers.

15. STATUTES (§ 98) — GENERAL LAW.

Rev. St. 1909, § 10695, fixing the fees of probate courts and requiring the payment of a part thereof into the county treasury for the benefit of the school fund, is a general law, applicable to every probate judge, where the statutory conditions arise.

16. CONSTITUTIONAL LAW (§ 47) — STATUTES — VALIDITY — QUESTIONS REVIEWABLE.

The Supreme Court, where called to determine the validity of the provisions of Rev. St. 1909, § 10695, only so far as they relate to the disposition of a part of the fees collected by probate courts, will not consider the validity of the criminal provisions of the statute.

Woodson and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by Greene County against Grant G. Lydy. From a judgment for plaintiff, defendant appeals. Affirmed.

J. T. White, of Springfield, C. C. Crow, of Kansas City, and Joseph Morton and Vinton Pike, both of St. Joseph, for appellant. Sam M. Wear, Pros. Atty., and Neville & Gorman, all of Springfield, for respondent. George B. Webster, of St. Louis, amicus curiæ.

LAMM, C. J.

This is a suit by the county of Greene, on behalf of its school fund, instituted in June, 1912, to recover from Lydy, probate judge, the sum of $2,972.26, fees collected by him under color of his office during the year 1911 in excess of his salary under section 10695, R. S. 1909, and alleged to be wrongfully retained.

Defendant answered in 11 paragraphs. Plaintiff moved to strike out paragraphs 3, 5, 6, 7, 8, 9, 10, and 11, leaving paragraphs 1, 2, and 4 remaining. This motion was sustained.

Thereupon plaintiff's further motion for judgment on the pleadings was sustained in the sum of $2,670.66, and judgment followed accordingly. Defendant, on due steps, came up by appeal to this court; jurisdiction being lodged here because Greene county was a party and because of constitutional questions lodged in the case. Recurring to said answer, it admitted in its first paragraph that Lydy was judge of the probate court for the year 1911, and expended $40 for publishing dockets. In its second paragraph it averred that $140.11 was received by him as his commission under R. S. 1909, § 331 (anent the collection of collateral inheritance taxes, etc.), and that, deducting said $140.11, he had received during the year 1911 fees amounting to $6,927.40. In the fourth paragraph he averred that the reasonable and necessary expenses for clerk hire (exclusive of his own clerical services) were $60 per month, totaling $720 for the year; that he had paid thereon $525; and that the difference between that payment and said $720 is due and payable for clerk hire. These paragraphs having been left standing in the answer, the motion for judgment on the pleadings conceded their efficacy as a defense pro tanto, and the amount of the judgment actually rendered shows they were allowed. All questions relating to rulings on such motion, and on the motions for a new trial and in arrest, group themselves logically either directly or indirectly under the constitutional points presently considered, and will be ruled in terms or impliedly under such head.

At root all said constitutional points compress themselves into the asking proposition: Is section 10695, supra, a constitutional enactment? A wise judge once remarked to me that in construing a statute it was a mistake not to read it and keep it before your eyes. What sly phase of dry humor he had in mind in that homely announcement springs so spontaneously in an alert mind that it needs no help by way of exposition. Attending to that pronouncement, we say this: If it will do to liken the vast expanse of speculative doctrine in a half dozen scholarly briefs filed by appellant and by amici curiæ to the waste of waters Noah had to contend with on his famous voyage, then it would seem the Dove of Justice hovering over that expanse might better find a branch to rest the sole of her foot upon by avoiding that mistake and by reproducing, ipsissimis verbis, the part of the statute said to hold such an aggregation of vices as cause it to perish.

In 1905 (Laws of 1905, p. 155) the General Assembly in terms repealed the existing statutes relating to probate fees, to wit, section 3240, R. S. 1899 (vide section 1 of the act of 1905, supra), and enacted a new statute out and out. Thereby it established the same itemized list of fees, and re-enacted the single proviso of the repealed section, and they went on and enacted the following new and additional provisions alleged to be invalid (now carried forward as live law in our present section 10695):

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