Henderson v. Koenig

Decision Date02 May 1902
Citation68 S.W. 72,168 Mo. 356
PartiesHENDERSON v. KOENIG et al.
CourtMissouri Supreme Court

1. The St. Louis scheme and charter, which went into effect in 1876, established the city as a separate territorial division of the state, which is treated as a county. 1 Rev. St. 1899, §§ 41, 60, provides that the word "county," when used in the statutes, shall include such city. Const. 1875, art. 6, § 34, provides that the general assembly should establish a probate court of record in every county. Act April 9, 1877, §§ 1, 13, established a probate court in every county and in the city of St. Louis, and provided that the judge should recover the fees allowed by law for his services. Held, that the judge of the probate court of the city of St. Louis is a county officer, within the meaning of Const. 1875, art. 9, § 12, declaring that the general assembly shall by law uniform in its operation provide for and regulate the fees of all county officers, and for such purpose may classify the county by population.

2. The amendment of Rev. St. 1889, § 3407, providing that probate judges shall recover the fees of their office as compensation, by Laws 1897, p. 82, providing that the probate judge in cities having a population of over 300,000 shall receive a salary in lieu of fees, is in violation of Const. 1875, art. 9, § 12, providing that the general assembly shall by law uniform in its operation provide for and regulate the fees of all county officers, and may for such purpose classify the counties by population, as the later clause only authorizes a regulation of fees according to population, and not an establishment of salaries in lieu thereof.

3. Rev. St. 1889, § 3407, provided that probate judges should recover the fees of their office as compensation. Laws 1897, p. 82, repealed and re-enacted this section, with the proviso "that the probate judge in cities having a population of over 300,000" should receive a salary. The city of St. Louis was the only city in the state entitled to a probate judge, and the only city having such population. Const. art. 4, § 53, prohibits the general assembly from enacting any special or local law "by the partial repeal of a general law." Held, that the amendment of 1897 was unconstitutional, as amounting to a partial repeal of a general law, though the general law was repealed in toto, and, with the exception of the proviso as stated, was re-enacted in terms.

4. Inasmuch as a general law was applicable, as illustrated by the fact that Rev. St. 1889, § 3407, had applied to the whole state, including the city of St. Louis, the amendment of 1897 was a violation of Const. art. 4, § 53, prohibiting the general assembly from enacting any special or local law where a general law is applicable.

In banc. Appeal from St. Louis circuit court; H. D. Wood, Judge.

Suit by W. W. Henderson against C. William Koenig and another to determine the right of plaintiff as judge of the probate court of St. Louis to the fees of the office. From a decree for defendants, plaintiff appeals. Reversed.

The following opinion was delivered by SHERWOOD, J., after the hearing of the case in division No. 2:

1. This case had its origin in these circumstances: Section 34, article 6, of the constitution of 1875, declares that: "The general assembly shall establish in every county a probate court, which shall be a court of record, and consist of one judge who shall be elected," etc.; which section concludes with this proviso: "That until the general assembly shall provide by law for a uniform system of probate courts, the jurisdiction of probate courts heretofore established shall remain as now provided by law." Section 35, Id., still continues the thought of the uniformity of the organization of such courts. In 1877 the legislature (Laws of that year, p. 229), pursuant to the behests of the constitution as contained in the above sections, established in every county in this state a probate court, and gave such courts uniformity of organization. Section 1 of the act just cited (which was approved April 9, 1877) provides that: "A probate court, which shall be a court of record, and consist of one judge, is hereby established in the city of St. Louis, and in every county in this state;" thus treating the city of St. Louis as one of the counties of this state. The concluding section of the act repeals all inconsistent acts, and section 13 of the act provides that "the judge of probate shall receive such fees for his services as now are, or may hereafter be allowed by law for probate business." The constitution of 1875 went into effect, according to its terms, on the 30th day of November of that year. The scheme and charter affair took effect on the 22d day of October, 1876, and the legislative session of 1877 was the first held after the constitution was adopted, and the first after the scheme and charter materialized; and consequently the act of 1877 aforesaid must be regarded as a contemporaneous construction of the meaning of section 34, for otherwise the city of St. Louis, unless treated as one of the counties of this state, would have been left without the pale and purview of section 34, and would not have been entitled to any probate court at all; but this would have balked the provisions of sections 34 and 35, supra, by preventing the establishment of "a uniform system of probate courts." It was not known, of course, at the time the constitution was framed, whether the scheme and charter would be adopted or not, but it would seem that a modicum of prevision would have enabled the framers of the constitution to have briefly provided for the contingency of the scheme and charter's adoption. But, as there was no prevision, so there was no provision. Since the enactment referred to, and other similar ones, the city of St. Louis has been denominated "a territorial division of the state," and treated as a county. State v. Walton, 69 Mo., loc. cit. 559, and subsequent cases. And in the rules laid down for construction of our statutes it is declared that "wherever the word `county' is used in any law, general in its character to the whole state, the same shall include the city of St. Louis," etc. 1 Rev. St. 1899, §§ 41, 60. This has been the law since 1879. In the Revised Statutes of 1879 section 1186 is but a fac simile of section 13 of the law of 1877, quoted above, as to fees for the services of the probate judge. The same section continued the same when it became section 3407 in the revision of 1889. Rev. St. 1889, § 3407. But the legislature passed a statute approved March 20, 1897 (Laws of that year, p. 82), which is as follows:

"An act to repeal section 3407 of the Revised Statutes of 1889, and to enact in lieu thereof a new section, to be known as section 3407, Revised Statutes of 1889.

"Section 1. That section 3407 of the Revised Statutes of 1889 be and the same is hereby repealed and the following new section enacted in lieu thereof, to read as follows:

"`Sec. 3407. [The judge of probate shall receive such fees for his services as are now or may hereafter be allowed by law for probate business.] Provided, that in all cities which now have or may hereafter have a population of three hundred thousand inhabitants or more, the judge of probate shall receive such compensation as now is or may hereafter be provided by law to be paid to judges of the circuit courts in such cities out of the city treasury. Provided further, that this act shall not apply to any judge now in office.'"

This section is now section 1764, Rev. St. 1899, and the bracketed words show the section as originally enacted.

Simultaneously with the passage of section 3407, last aforesaid, a statute, approved also on March 20th (Laws 1897, pp. 82, 83), was enacted, which reads thus:

"An act providing for the election of an officer to be known as probate clerk in cities now having or which may hereafter have a population of three hundred thousand inhabitants and over, defining his qualifications and duties, and providing for the collection of probate fees and their payment into the treasury of such cities, and authorizing the municipal assembly of such cities to provide by ordinance for the payment of such clerks, and their deputies and assistants, and the orderly transaction of business.

"Section 1. In all cities having or which may hereafter have a population of three hundred thousand inhabitants and over, there shall be elected at the general election in the year 1898, and every four years thereafter, an officer, to be known as the probate clerk, whose official term shall commence on the first day of January next after election. Said officer shall, before entering upon the discharge of his duties, make and subscribe an oath before the city register of such cities that he will support the constitution of the United States and of the state of Missouri, and that he will faithfully discharge all the duties of the office of probate clerk; and shall also execute a bond to the city within which he shall be elected, in the penal sum of ten thousand dollars, with two or more solvent sureties, to be approved by the judge of probate of such cities, conditioned for the faithful performance of the duties of the probate clerk, the collection and accounting for all fees allowed the probate judge or probate court of the city within which he shall have been elected, which oath and bond shall be filed in the office of the city register of such cities. The city or any person injured may maintain suit on said bond in like manner as suit may now be maintained on other office bonds.

"Sec. 2. In addition to the duty now required by law of the clerk of the probate court in such cities, it shall be the duty of such clerks to tax and collect all fees and taxable costs allowed by law to the probate judge and probate court...

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