Macon County v. Williams

• Decision Date: 12 July 1920
• Citation: 224 S.W. 835,284 Mo. 447
• Parties: MACON COUNTY v. BARNETT R. WILLIAMS, Appellant
• Court: Missouri Supreme Court

224 S.W. 835

284 Mo. 447

MACON COUNTY v. BARNETT R. WILLIAMS, Appellant

Supreme Court of Missouri

July 12, 1920

Appeal from Chariton Circuit Court. -- Hon. Fred Lamb, Judge.

Affirmed.

Ben Franklin, Dan R. Hughes and John R. Hughes for appellant.

(1) The constitutionality and some other pertinent questions involved in Sec. 10695, R. S. 1909, with much research and some patience, seems to be settled in this State. At least no question is made in this case as to its constitutionality. State ex rel. v. Imel, 280 Mo. 565. (2) Section 10684, providing for $ 100 per month for expenses of circuit judges, was enacted by the Legislature in 1905, and approved March 10, 1905, Section 10695, was enacted by the Legislature during the session of 1905, and fixed the compensation of probate courts, and was approved April 1, 1905, more than thirty days after the passage of the act providing for $ 100 per month for expenses of circuit judges. (3) Compensation of a circuit judge for the same year measures the compensation of the probate judge. It fixes the maxium compensation of the probate court not a stated salary of the circuit judge, but the total of all emolument he secured by virtue of his being circuit judge, and constitutes his compensation. State ex rel. McGrath v. Walker, 97 Mo. 162; Cunningham v Current River Ry. Co., 165 Mo. 270; Bates v. City of St. Louis, 153 Mo. 18; 29 Cyc. 1428; 36 Cyc. 1106-7. Compensation is a generic term and includes salary, fees pay, remuneration for official services performed, in whatever form or manner, or at whatever periods the same may be paid. State ex rel. v. Farmer, 271 Mo. 306; State ex rel. v. Rumbold, 238 Mo. 168; People ex rel. Bockes v. Wemple, 115 N.Y. 309.

Waldo Edwards, Prosecuting Attorney, George N. Davis and Ed. S Jones for respondent.

(1) The right to salary, as a public officer, is a legislative grant and is to be strictly construed against the officer. City of St. Louis v. Banks, 107 Mo. 611; Sanderson v. Pike County, 195 Mo. 605; Green County v. Lydy, 263 Mo. 77. (2) Section 23, Article 6, Constitution of Missouri, provides that judges of circuit courts and other courts of record receiving a salary shall, at stated times, receive such compensation for their services as may be provided by law, but it shall not be increased or diminished during the period for which they were elected. Cunningham v. Current River Ry. Co., 165 Mo. 277. To such constitutional prohibition, it is the compensation for services to be rendered and not traveling and other incidental expenses that is for-bidden to be raised. Kirkwood v. Soto, 25 P. 488. (3) Section 10695 provides that the amount of fees collected by the probate judge shall be limited to a sum equal to the annual compensation provided by law for judges of circuit courts having jurisdiction in such county. The $ 1,200 being here allowed as and for expense money is not compensation provided by law for circuit judges nor is it compensation of circuit judges for their judical services within the meaning of such statute. Milwaukee County v. Halsey, 136 N.W. 139; Kirkwood v. Soto, 25 P. 488; State ex rel. Buchanan Co. v. Imel, 280 Mo. 565; State ex rel. Green Co. v. Lydy, 242 Mo. 316; State ex rel. Gray v. Wilder, 206 Mo. 541; McCoy v. Hamden, L. R. A. 1915 E. 858. (4) A contemporaneous and practical construction given by the Legislature and those concerned in the administration of the law is entitled to great weight. Cook Co. v. Healey, 78 N.W. 623.

BLAIR, J. Walker, C. J., Williams, Woodson, Goode and Williamson, JJ., concur.

OPINION

In Banc

BLAIR J. --

This action grew out of a difference of opinion concerning the maximum amount of fees which the probate judge in Macon County might legally retain for the years 1915, 1916, 1917 and 1918. The judgment is for $ 3309.33. Approximately one-third of this sum was held by the trial court to be due for each of the years 1916, 1917 and 1918. Nothing was found due for 1915. In 1916, 1917 and 1918, appellant collected, respectively, $ 3307, $ 3770.20 and $ 3941. The trial court credited appellant with salary at $ 2000 per annum and allowed him credits for clerk hire. Appellant's position is that he was entitled to credit on account of salary at the rate of $ 3200 per annum. If he is correct in this, the judgment is wrong. This is the sole question he briefs.

Macon County has a population of less than 150,000, and it and Shelby County constitute the Second Judicial Circuit of this State.

Prior to the Act of April 1, 1905 (Laws 1905, pp. 155, 157; Sec. 10695, R. S. 1909), the probate judge of Macon County was entitled to retain all fees collected. By the act mentioned this was changed. The amendment provided that:

"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 the 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 . . . into the treasury of the county in which such probate judge holds office, for the benefit of the school fund of such county."

Appellant contends the "compensation" of the circuit judge having jurisdiction in Macon County was, in the years mentioned, $ 3200. Respondent contends, and the trial court held, it was $ 2000. The meaning of the word "compensation" as it appears in the statute is the key to this case.

Section 9697, Revised Statutes 1899, provided that: "The officers of State shall receive for their services, annually, the following sums: . . . third, the judges of the circuit courts, each, two thousand dollars; . . ."

Section 9701, Revised Statutes 1899, provided that:

"Every judge of a circuit court or of a criminal court in this State shall be allowed and paid all sums of money actually expended by him in necessary expenses while engaged in holding any regular, special or adjourned term of court at any place in his circuit other than the place of his residence therein, or while engaged in going to and from any such place for the purpose of holding such terms of court, and such sums of money for said expenses shall be paid out of the State Treasury in the same manner that the salaries of circuit judges are now paid by law; but no money shall be paid from the Treasury under the provisions of this section until such judge shall file an itemized account with the State Auditor, showing such actual expenses incurred by him."

This section (Sec. 9701, R. S. 1899) was separately enacted in 1895 (Laws 1895, p. 128) and the title of the act was: "An Act to provide for the payment of the expenses of the judges of the circuit courts of this State, while holding court in their circuits."

March 10, 1905 (Laws 1905, pp. 291, 292), Section 9701, Revised Statutes 1899, was amended. The amendatory act was entitled: "An Act to repeal Section 9701 of the Revised Statutes of Missouri of 1899, relating to the expenses of the judges of circuit courts and criminal courts, and to enact a new section in lieu thereof relating to the same subject and to be known as Section 9701." Section 1 of this Act of 1905 follows the title, and the new section enacted (now Section 10683, R. S. 1909) substituted a lump sum of $ 1200 per annum to cover the expenses provided for in the old section and the amended one.

This question, whether allowances to officers for expenses comes within the meaning of the word compensation, has arisen in several cases. In Wisconsin, under a constitutional provision somewhat analogous to ours, in so far as the question presented was concerned, it was held that a statute providing for a payment to each circuit judge of $ 400 per annum "as and for his necessary expenses while in discharge of his duties," did not constitute additional "compensation" in the constitutional sense. [Milwaukee County v. Halsey, 149 Wis. 82, 136 N.W. 139.] In McCoy v. Handlin, 35 S.D. 487, 153 N.W. 361 et seq., under a more comprehensive constitutional provision than ours, the Supreme Court of South Dakota held that an allowance of $ 600 per annum to the supreme judges "in consideration of expenses" was not in violation of the prohibition against increasing the compensation of judges. The court held that the salary provided could not be increased, but that the allowances of expenses, as such, did not have that effect. In considering a similar question with respect to a claim that a Federal judge, who occupied a house belonging to the Government in the Canal Zone, must account for the rent thereof, Clayton, J. (Smith v. Jackson, 241 F. 747), quotes from the opinion in the case of McCoy v. Handlin, as follows:

"There it was said: 'It is clear that the Legislature did not intend, in the enactment of such legislation, to increase the salaries of the judges, or to grant them any perquisites or emoluments for the discharge of their duties, but only intended to assure them, in so far as possible, that for the performance of their official duties alone, and not for the performance of such duties and the payment of the expenses incident thereto, they should receive the salaries provided by law for the performance of such duties.' And again, the court said: 'These...