Greene County v. Lydy

• Citation: 172 S.W. 376,263 Mo. 77
• Parties: GREENE COUNTY v. GRANT C. LYDY, Appellant
• Decision Date: 31 December 1914
• Court: United States State Supreme Court of Missouri

172 S.W. 376

263 Mo. 77

GREENE COUNTY v. GRANT C. LYDY, Appellant

Supreme Court of Missouri

December 31, 1914

Appeal from Greene Circuit Court. -- Hon. Alfred Page, Judge.

Affirmed.

J. T White for appellant; C. C. Crow, Joseph Morton and Vinton Pike of counsel.

George B. Webster, amicus curiae.

Sam. M. Wear and Neville & Gorman for respondent.

LAMM C. J. Brown, Walker and Faris, JJ., concur; Bond, J., concurs in result; Woodson and Graves, JJ., dissent.

OPINION

In Banc

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 $ 2972.26, fees collected by him under color of his office during the year 1911 in excess of his salary under section 10695, Revised Statutes 1909, and alleged to be wrongfully retained.

Defendant answered in eleven 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 $ 2670.66 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 Revised Statutes 1909, section 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 $ 6927.40. 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 curiae 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 1905, p. 155) the General Assembly in terms repealed the existing statutes relating to probate fees, to-wit, section 3240, Revised Statutes 1899 (vide Sec. 1 of Act of 1905, supra) and enacted a new statute out and out. Thereby it established the same itemized list of fees, and reenacted the single proviso, of the repealed section, and then 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):

"Provided, further, that any probate judge, or probate clerk, charging and collecting any of the above fees when he has not in advance, or who shall not within thirty days after the charge and collection of such fee or fees have performed the service or made the record for which such fee was charged, be guilty of a misdemeanor.

"Provided, further, that whenever, after deducting all reasonable and necessary expenses for clerk hire, the amount of fees collected in any one calendar year by or for any one probate judge in any county in this State, during his term of office, and irrespective of the date of accrual of such fees, shall exceed a sum equal to the annual compensation provided by law for a judge of the circuit court having jurisdiction in such county, then it shall be the duty of such probate judge to pay such excess less ten per cent thereof, within thirty days after the expiration of such year, into the treasury of the county in which such probate judge holds office, for the benefit of the school fund of such county; and whenever at any time after the expiration of the term of office of any probate judge the amount of fees collected by or for him, irrespective of the date of accrual, shall exceed the sum equal to the annual compensation provided for a judge of the circuit court having jurisdiction in such county, it shall be the duty of such probate judge to pay such excess, and all fees thereafter collected by or for him on account of fees accrued to him as such probate judge, less ten per cent thereof, within thirty days from the time of collection, into the county treasury for the benefit of the school fund. And every probate judge shall, within thirty days after the expiration of each and every year of his term of office, file for record with the clerk of the circuit court having jurisdiction in said county, a statement, verified by his affidavit, containing a full account of all fees collected and amounts expended for clerk hire, by or for such probate judge, during such year, specifying the respective amounts collected, from whom and dates when collected, and the respective amounts paid for clerk hire, to whom, and dates when paid; and within three months after the expiration of his term of office he shall file for record with said clerk of the circuit court a statement, verified by his affidavit, of all fees which accrued but were not collected during his term of office, specifying the names of the parties from whom due, the amounts due, on account of what services rendered and the date of accrual. Every probate judge shall before collecting, or being authorized to collect, any fees whatsoever, give a good and sufficient bond in a penal sum which, in counties of less than one hundred and fifty thousand inhabitants, shall be equal to the compensation of a circuit judge in such county, and which in counties of over one hundred and fifty thousand inhabitants shall be in a penal sum of double such compensation of a circuit judge in such county; every which bond shall have good and sufficient sureties to be approved by the said clerk of the circuit court having jurisdiction in such county, and shall be filed with such clerk, and which bond shall be renewed within twenty days after notification by the said clerk upon his being satisfied that said bond, or the sureties or any of them, is or are, or have become, insufficient, and failure to renew such bond shall, until the same be furnished, suspend the authority of the judge so in default to collect any fees; every said bond shall run to the State, and may be sued upon by any corporation or person in interest, and shall be conditional upon the faithful performance by said probate judge of each and every the duties hereinabove imposed, and the prompt filing of the respective statements herein required, and the payments in full promptly when due into the county treasury, of each and every of the amounts to the extent and in the manner herein required.

"For all the purposes of this act the city of St. Louis shall be considered as a county.

"This act shall not apply to any judge now in office.

"All acts and parts of acts inconsistent herewith are hereby repealed.

"Approved April 1, 1905."

Two late cases decided by this court in Banc are drawn within the lines of discussion, viz.: State ex rel. v. Imel, 242 Mo. 293, 146 S.W. 783, and State ex rel. v. Lydy, 242 Mo. 316, 146 S.W. 789. We shall have somewhat to say of those cases during the course of this opinion. For the present, by way of foreword, we say this:

The former Lydy case was a suit counting on a breach of his official bond as probate judge of Greene during a term beginning January 1, 1907, and running four years. It seems he gave a bond as prescribed by said section 10695, conditioned, inter alia, that he pay over the excess of fees. He kept and performed his bond during the first three years of that term in that particular, but in the last year, 1910, was recalcitrant and was sued. On a demurrer to the petition in that case the lower court held the statute unconstitutional and the bond inoperative. On appeal here we reversed that judgment and remanded the case, one of several questions in judgment being estoppel. In 1910 Mr. Lydy was reelected probate judge for a new term and the instant case relates to nonpayment of such excess during the new term. What became of the former case when it went down is dark. It seems, also (this not from the record but from briefs of appellant), that in his new term he refused to give the statutory bond. At any rate, the suit at bar is not on the bond, but is predicated of liability under the section cited.

In the Imel case, supra, the suit was also for a breach of his bond as...