Langston v. Howell County

• Decision Date: 08 February 1935
• Parties: Myrtle E. Langston, Administratrix of the Estate of William Langston, Appellant, v. Howell County
• Court: Missouri Supreme Court

79 S.W.2d 99

336 Mo. 444

Myrtle E. Langston, Administratrix of the Estate of William Langston, Appellant, v. Howell County

Supreme Court of Missouri

February 8, 1935

Rehearing Overruled February 8, 1935.

Appeal from Ozark Circuit Court; Hon. Robert L. Gideon Judge.

Reversed and remanded.

J N. Burroughs and J. L. Bess for appellant.

(1) Section 8006, Revised Statutes 1929, provides for the appointment of a highway engineer, and the appointment of appellant was made by virtue thereof, as it was the county court's duty to do. Steines v. Franklin, 48 Mo. 161; State ex rel. v. King, 136 Mo. 318. (a) After having adopted the statute and appointed a highway engineer, it was beyond the power of the county court to suspend or set it aside. R. S. 1929, secs. 8013, 8019. (b) The Constitution of this State and also the statute provides that one elected or appointed to any office shall continue therein until his successor is elected or appointed and qualified. Sec. 5, Art. XIV, Const. of Mo.; Sec. 11196, R. S. 1929. (c) Our courts have uniformly held that an officer appointed for a specified term, continues on in office until his successor is appointed and qualifies. State ex rel. v. Lusk, 18 Mo. 333; State ex rel. v. Thompson, 38 Mo. 192; State ex rel. v. Ransom, 73 Mo. 94; Bank v. Hunt, 72 Mo. 597. (d) For his acts during the time he holds over, without any new appointment he and his sureties are liable on his official bond. It becomes a part of his official term of office. Long v. Seay, 72 Mo. 648; State ex rel. v. Kurtzeborn, 78 Mo. 99; Gracey v. St. Louis, 213 Mo. 384; State v. Brown, 274 S.W. 967. (2) Section 8008, Revised Statutes 1929, authorize the fixing of the salary by the county court. It fixed it at $ 1000 per year, which was clearly within its province. Once fixed it so remains until it is lawfully changed. Neither does it depend upon amount or value of services rendered. Givens v. Daviess County, 107 Mo. 603; Bates v. St. Louis, 153 Mo. 18. (3) A court can only speak by its records, and the parol testimony was wholly incompetent to prove any matter which should have been a matter or record, if true. Summers v. Cordell, 187 S.W. 9; Nodaway County v. Williams, 199 S.W. 227; State v. Duncan, 63 S.W.2d 139; State v. Grinstead, 282 S.W. 715. (4) Where an officer holds over after time for which he was appointed, the salary remains fixed at same rate. State ex rel. Stevenson v. Smith, 87 Mo. 160; State ex rel. v. Gilbert, 163 Mo.App. 686; Mead v. Jasper County, 18 S.W.2d 464; Bates v. St. Louis, 153 Mo. 18.

H. D. Green and Homer Rinehart for respondent.

(1) Where party does not stand upon motion to strike out parts of the answer said objection is deemed waived. Vining v. Range, 319 Mo. 65; Luna v. Williams, 190 Mo.App. 266. (2) Supreme Court will not search for errors not specifically pointed out in brief. Coffey v. Higbee, 298 S.W. 766; Johnson v. Ragan, 265 Mo. 420; Mahmet v. Radiator Co., 294 S.W. 1014; Gardner v. Robertson, 208 Mo. 605; Span v. Coal Co., 16 S.W.2d 190; Thompson v. City, 17 S.W.2d 960; Campbell v. Campbell, 20 S.W.2d 655; State ex rel. Highway Commission v. Moore, 18 S.W.2d 892. (3) Same strictness as to admission of evidence is not applied in case tried by court as in cases tried by jury. United States Fidelity Co. v. Goodson, 54 S.W.2d 754. (4) Error in exclusion of evidence cannot be considered where the party offering the evidence did not state what he desired to prove. Lynes v. Holt, 19 S.W.2d 121; Gary v. Averill, 12 S.W.2d 747; Eaton v. Curtis, 319 Mo. 660. (5) Assignment that court erred in overruling motion for new trial held too general to be available as ground for error. Garvey v. Piel, 43 S.W.2d 1034. (6) Section 5, Article XIV of the Constitution of Missouri does not mean that every person elected or appointed to public office in this State shall hold said office until his successor is elected or appointed and qualifies, but simply means that this would be the rule "in the absence of any contrary provision." State ex inf. Crow v. Lund, 167 Mo. 228; State ex rel. v. Perkins, 139 Mo. 106; State ex rel. v. Birkhead, 187 Mo. 14; State ex inf. Atty. Gen. v. Amick, 247 Mo. 294; Badger v. United States, 93 U.S. 599. (7) Resignation of officer may be accepted by parol. 46 C. J. 980; Pace v. Peo, 50 Ill. 432; McGee v. State, 103 Ind. 444; Gates v. Delaware County, 12 Iowa 405; State v. Meek, 86 Kan. 582; State v. Crawford, 76 Fla. 388.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

This action against the defendant, Howell County was brought by William Langston for salary as county highway engineer claimed to be due and owing to him by Howell County. The action was begun in the Circuit Court of Howell County but went on a change of venue to, and was tried in, the Circuit Court of Ozark County. The cause was tried before the court, a jury being waived; the finding and judgment was for the defendant and plaintiff appealed.

On January 4, 1927, the County Court of Howell County appointed William Langston, who was then the duly qualified and acting surveyor of Howell County, as county highway engineer. The appointment was made by an order of record as follows:

"Now on this date the court appoints William Langston to the position of Highway Engineer, for the county of Howell, for a period of one year, at a salary of $ 1000 per year, to be paid monthly. Charles Colving and J. Henry Briscoe voting for said appointment and C. A. Cooper voting against said appointment."

Thereupon Langston duly executed and filed the bond, required by statute (now Sec. 8007, R. S. 1929), and entered upon the duties of the office of county highway engineer. Langston claims that he thereafter continued in the office of county highway engineer, and to serve Howell County in that capacity, until September 1, 1931, a period of four years and eight months, no successor having been appointed at the expiration of the term of one year named in the order of appointment and the County Highway Engineer Act (Art. 6, Chap. 98, R. S. 1919 -- now Art. 8, Chap. 42, R. S. 1929) being during all such time in full force and effect in Howell County. He was paid the salary of $ 1000, fixed by the order of appointment, in full, for the year 1927 but thereafter received no salary. He alleges that his demands for salary due him for the time he held the office after 1927, a period of three years and eight months, was refused and this action is to establish his claim against the county therefor in the amount of $ 3,666.66. By its answer the county admits and pleads, "that on the 4th day of January, 1927, the County Court of Howell County . . . employed plaintiff as highway engineer for the County of Howell for a period of one year at a salary of $ 1000 to be paid monthly" and that said sum "has been fully paid by defendant as per the contract made;" that "shortly before the expiration of the one year term for which plaintiff was employed . . . plaintiff resigned from his position as county highway engineer and his services were terminated as such and so recognized as being terminated by both the defendant, through its county court, and the plaintiff;" and that "plaintiff abandoned any claim to said position after having resigned as aforesaid."

The plaintiff took the position that having been duly and regularly appointed as county highway engineer and having qualified as such his tenure in that office continued until his successor was appointed and had qualified and offered declarations of law to that effect which were refused by the court. Defendant's contention seems to be first that plaintiff's right to hold the office of county highway engineer terminated with the expiration of the one-year term designated in the order of appointment and that thereafter he was not entitled to hold or continue in that office and second that if it be granted that plaintiff was entitled to continue in the office until his successor was appointed and had qualified that nevertheless plaintiff resigned from the office at or about the time of the expiration of the one-year term specified in the order of appointment, thereafter abandoned the office and ceased to perform the duties thereof, that both plaintiff and the county court thenceforth considered and treated his tenure in the office as having been terminated and that thereupon plaintiff's right to claim the salary of the office ceased. Refusing the proffered declarations of law defining plaintiff's theory the court of its own motion gave the following declaration of law "The Court declares the law to be that the office of County Highway Engineer is a public office and that it is in the discretion of the county court to appoint a Highway Engineer in their respective counties; that the tenure of said office is within the authority of the county court to make." The court then makes the finding: "The Court in this case finds that the plaintiff Langston was appointed by order of the county court for a term of one year by records of said court; that his term ended on the last day of the year for which he was appointed; that there was no order made thereafter by the county court reappointing said Langston for any other term" and on the basis of that finding entered judgment for defendant. We concur with the statement of the foregoing declaration of law that the office of County Highway Engineer is a public office as clearly appears from the statute creating that office "in the several counties" of this State to which we hereafter refer. If the declaration of law means that the discretion and power to select a county highway engineer and fix the length of term for which he is appointed is vested in the county court we also concur therein. The County Highway Engineer Act in force and effect at the...