In re Burris

• Decision Date: 31 October 1877
• Citation: 66 Mo. 442
• Parties: IN THE MATTER OF BURRIS, Appellant.
• Court: Missouri Supreme Court

66 Mo. 442

IN THE MATTER OF BURRIS, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Clay Circuit Court.--HON. GEO. W. DUNN, Judge.

D. C. Allen for appellant.

1. The construction and plain meaning of Sec. 24, Art. 6, logically and grammatically demand that the words “over that sum,” be held to refer to the previously mentioned sum of $2,500, for the simple reason that there is no other sum mentioned. The direction to pay the surplus over that sum entirely excludes the idea that the court has power to direct the payment of a surplus over a lesssum, and forbids the court to allow the clerk to retain for his own use a greater sum than $2,500. The section fixes the standard for the court, and does not allow it to draw the line above or below it. When the court has allowed for deputies and assistants, it has only one power left, to exhaust its function under section 24, and that power is to direct the clerk to pay all surplus over that sum into the county treasury. After allowances to deputies and assistants, the court has no option to vary to the right or the left, but only to direct the payment of the surplus over that sum, or, over $2,500, the sum previously mentioned in the section, into the county treasury.

2. The act of March 30th, 1874, is unconstitutional and void, as being in contravention of Sec. 32, Art. 4, constitution 1865. The title does not indicate whether the act refers to the amount of the compensation or salary of clerks, to their fees for the individual items of clerical labor, (as in Wag. Stat., p. 618,) to their clerical duties, (as prescribed in many statutes,) or whether it is an act penal in its nature, inflicting penalties for misfeasance, malfeasance or non-feasance. The title does not refer to the subject of fees. The purpose of Sec. 32, Art. 4, plainly was that the title of an act should impart an idea of its contents. Would any one suppose from the title of this act that it was intended to enforce Sec. 24, Art. 6, of the constitution?

W. H. Woodson, contra.

1. It could not have been intended by the provisions of this section that the Legislature had no power to fix the amount of the salary of the clerk of a court at a less sum than $2,500. The constitution merely restricts the power of the Legislature and forbids a greater sum than $2,500 to be given a clerk. If this is not the meaning why the necessity of demanding that the General Assembly shall pass laws to carry into effect the provisions of the section? If there had been no legislation making a deduction from this amount then appellant under the facts and said section would be entitled to the sum of $2,500. If, however, the Legislature has enacted a law fixing the fees of clerks at a less sum than $2,500, and that too prior to the adoption of the constitution of 1875, then appellant can only receive the amount so fixed by law for his services as clerk, and such act of the General Assembly would not be unconstitutional and void, as contended by appellant in his instruction. It has enacted such a law in the act of March 30th, 1874.

2. Surely the constitution of 1865 did not intend that the title to acts of the Legislature, where only one subject matter was the subject of legislation, should specially set forth the contents of each and every section of the act. There are but few, if any, titles to acts in the session acts of the General Assembly for the year 1874, more clearly set forth than in the title of the act approved March 30th, entitled “An act in relation to clerks of courts of record.” All that the constitution demands has been complied with in the title of the act aforementioned. All that it required was to have the titles of all laws passed, sufficiently stated so as to enable one to know at a simple glance at the title the subject matter of the act--whether it be in relation to clerks, administrators, executors, guardians and curators, corporations, or any other subject.

HENRY, J.

During the year 1875, Luke W. Burris was clerk of the county court of Clay county, and on the 11th day of February, 1876, he filed with said county court a statement of the fees and emoluments received by him as clerk during the year 1875, showing an aggregate of $3,605.46. This statement was finally passed upon by the county court at its November term, 1876, and allowing said clerk $1,500 paid to assistants, and $1,500 for his compensation, ordered him to pay into the county treasury the balance, $605.46. From this judgment he appealed to the circuit court of Clay county, and that court having affirmed the judgment, he has prosecuted his appeal to this court. The 24th section of the 6th article of the constitution of 1865, provided that, “no clerk of any court established by this constitution, or by any law of this State, shall apply to his own use, from the fees and emoluments of his office a greater sum than two thousand five hundred dollars for each year of his official term, after paying out of such fees and emoluments, such amounts for deputies and assistants in his office as the court may deem necessary and may allow; but all surplus of such fees and emoluments over that sum, after paying the amounts so allowed, shall be paid into the county treasury for the use of the county. The General Assembly shall pass such laws as may be necessary to carry into effect the provisions of this section.” The General Assembly by an act entitled “an act in relation to the clerks of courts of record,” approved March 30th, 1874, (Sess. acts of 1874, page 63,) declared that “The aggregate amount of fees that any clerk of a court of record shall be allowed to retain, shall not in any case exceed the amounts hereinafter set out. In all counties having a population of forty thousand persons, or over, the clerk shall be permitted to retain twenty-five hundred dollars. In all counties having a population of thirty thousand and less than forty thousand persons, the clerk shall be allowed to retain twenty-two hundred and fifty dollars. In all counties having a popnlation of eighteen thousand, or over, and not exceeding thirty thousand persons, the clerk shall be allowed to retain two thousand dollars; and in all other counties the clerk shall be allowed to retain the sum of fifteen hundred dollars per year--in all cases the population to be ascertained from the last State, or United States census.” The population of Clay county in 1875, it is agreed, was less than eighteen thousand. Appellant contends that the act of the Legislature is in conflict with the 24th section of the 6th article of the constitution of 1865, and also with the 32nd section of the 4th article of said constitution, which is as follows: “No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title; but if any subject embraced in an act be not expressed in the title, such act shall be void only as to so much thereof as is not so expressed.”

1. SECTION 32, ARTICLE 4, CONSTITUTION OF 1865.

We do not think that the act was unconstitutional, because in the title the particular subject of the act was not stated. It was not intended that the substance of the act should be embraced in the title; but that the subject should be stated in general terms, not specifically. For instance, an act was passed by the General Assembly in 1877, entitled “An act for the protection of married women.” The title does not indicate in what that protection was to consist. By the title alone, one would not know whether it was to protect married women in their rights of property or in their persons, or in what manner the protection was to be afforded, whether by conferring upon them the right of suffrage, or the right to control intemperate and improvident husbands, and providing means by which that object could be accomplished by them; but it does apprise one that it is a law for their protection, and any provision in the law not cognate to that general subject, would be unconstitutional. The constitutional provision simply requires that the title shall give information of the general subject of the act, and that the act shall not contain provisions in nowise pertaining to that general subject. Here the title was, “An act in relation to the clerks of courts of record,” and sufficiently indicated, not what its specific provisions would be, or to what duties of such officers it would relate, or how it would affect them, which the constitution did not require, but that its provisions would relate to clerks of courts of record, and nothing else.

2. CLERK'S FEES: section 24, article 6, constitution of 1865.

Whether the law was in conflict with the 24th section, article 6, is a more difficult question. The clerks of courts of record receive no salaries, but derive their compensation from fees fixed by law, for services by them from time to time rendered. The clerks of some courts do not realize $2,500 per annum from the fees and emoluments of their offices, while others now, as in 1865, realize amounts from the fees and emoluments largely exceeding $2,500. What object did the framers of the constitution of 1865 intend to accomplish by the section under consideration? Was it to fix the salaries of clerks of courts? It does not provide that they shall receive $2,500 as a salary or compensation; for the fees and emoluments of the office, in many counties, would not then, or since, yield that amount. The constitution of 1865 did not fix the salary of any other officer, not even the highest executive or judicial officer, and it is difficult to believe that the convention regarded the salaries of clerks of courts of record, as of such importance as to demand that they should be prescribed by the constitution, leaving salaries of all the other officers in the State to be established by the Legislature. Section 13, article 9, of...