Mead v. Jasper County

• Decision Date: 04 June 1929
• Docket Number: No. 27743.,27743.
• Citation: 18 S.W.2d 464
• Parties: HARRY J. MEAD, Appellant, v. JASPER COUNTY.
• Court: Missouri Supreme Court

18 S.W.2d 464

HARRY J. MEAD, Appellant, v. JASPER COUNTY.

No. 27743.

Supreme Court of Missouri, Division No. 2.

June 4, 1929.

Appeal from Jasper Circuit Court. — Hon. S.W. Bates, Judge.

AFFIRMED.

James P. Mead and Joseph D. Perkins for appellant.

(1) Plaintiff was entitled to judgment on the first count of his petition. Givens v. Daviess Co., 107 Mo. 603; Smart v. Craig Co. (Okla.), L.R.A. 1918C 313; Mead v. Jasper Co., 266 S.W. 467; Kenney v. Waverly City, 42 Iowa, 486. Holding over continues under same terms and conditions as in leases, franchises, etc. Ins. Co. v. Natl. Bank, 71 Mo. 58; 35 C.J. 1028; Leggitt v. Exposition Co., 157 Mo. App. 108. (2) Plaintiff was entitled to judgment on the second count of his petition. The circuit court had jurisdiction. Kansas City Sanitary Co. v. Laclede Co., 269 Mo. 397; Ewing v. Vernon Co., 216 Mo. 681; Harkreader v. Vernon Co., 216 Mo. 696; Sec. 9506, R.S. 1919; Givens v. Davies Co., 107 Mo. 603; Sears v. Stone Co., 105 Mo. 236; State ex rel. v. Hill, 206 Mo. 214; Kenney v. Waverly City, 42 Iowa, 486. (3) The order of the county court made on January 5, 1924, fixing the compensation of plaintiff for the year 1924 was and is void and of no force and effect. Secs. 11002, 11003, R.S. 1919; Mead v. Jasper Co., 266 S.W. 467; State ex rel. v. County Court, 193 Mo. App. 373; Butler v. Sullivan Co., 108 Mo. 630; State ex rel. v. Patterson, 229 Mo. 373; Saline Co. v. Wilson, 61 Mo. 239. (4) Plaintiff was not and is not estopped from denying the validity of the court order made January 5, 1924. 16 Cyc. 780; Gallaher v. Lincoln, 88 N.W. 505; Nickels v. Bank, 55 Mo. App. 81; Hiedelberg v. St. Francois Co., 100 Mo. 76; Lash v. Rindell, 72 Ind. 475.

Howard Gray for respondent

(1) The order of the county court, made on the fifth day of January, 1924, was valid. St. Louis County Court v. Sparks, 10 Mo. 117; State v. Bird, 244 S.W. 938; Higgins v. School Dist., 278 S.W. 769; State v. Lamar, 291 S.W. 457; People v. Cook, 14 Barb. (N.Y.) 259; In the Matter of Clark, 168 N.Y. 427, 61 N.E. 769; Davidson v. Board of Education, 7 S.W. (2d) 1056; School Dist. v. Consolidated Dist., 237 Pac. 1110; 25 R.C.L. 769, sec. 16; 36 Cyc. 1160. (2) An action at law could not be legally maintained by the sheriff, nor could he have taken an appeal from the action of the county court in refusing to allow him all he demanded. State ex rel. Dietrich v. Daues, 287 S.W. 430. The matter is one exclusively in the county court. The statute itself, provides that the sheriff shall be paid such sum, not exceeding seventy-five cents, as may be fixed by the county court. The Legislature has fixed a maximum, but any sum less than that is left with the discretion of the county court. Harris County v. Hammond, 203 S.W. 445. (3) The statute prescribes in what manner the sheriff shall receive his compensation for feeding prisoners — by an order of the county court fixing the amount. Until he has procured such an order he cannot maintain an action against the county for his compensation. This, on the theory of the well settled law, that a public officer is only entitled to recover his compensation in the manner provided by the statute. State ex rel. Evans v. Gordon, 245 Mo. 27; State ex rel. Wedeking v. McCracken, 60 Mo. App. 656; King v. Riverland Levee, 218 Mo. App. 493; Sanderson v. Pike Co., 195 Mo. 598.

COOLEY, C.

Appeal by plaintiff from a judgment of the Jasper County Circuit Court in favor of defendant.

Appellant, who was sheriff of Jasper County during the year 1924, brought suit in the circuit court against the county to recover a balance which he claimed was due him for boarding prisoners in his charge during that year.

The petition is in two counts, each for the same sum, viz., $2212.80, being the difference between the amount actually paid plaintiff by the county and the amount he claims he was entitled to receive for the calendar year 1924. The first count proceeds upon the theory that plaintiff's compensation for boarding prisoners was fixed at seventy-five cents per day per prisoner by an order made by the county court at its November term and on December 1, 1922, for the ensuing year, 1923, and duly certified to the clerk of the circuit court as provided by statute, and that no valid order was thereafter made in the premises by the county court and that the order of December 1, 1922, therefore, continued operative for the year 1924. The second count seeks recovery on the ground that the county is liable to plaintiff for the reasonable charge or value of keeping and boarding the prisoners confined in jail on criminal charges, which is alleged to be seventy-five cents per day per prisoner.

The answer admits plaintiff's official capacity, the making of the order of December 1, 1922, and that plaintiff boarded prisoners during the year 1924 as listed and for the aggregate number of days alleged in the petition. Further answering, defendant pleads that the county court made an order on January __, 1924 (the evidence shows this order was made January 5, 1924), fixing the compensation of the sheriff for boarding prisoners for the calendar year 1924, which was duly certified to the circuit court, and has paid plaintiff the full amount due him at the price fixed in that order. It further pleads estoppel, in substance this: That at its November term, 1923, the county court was about to make an order fixing plaintiff's compensation for 1924, and at the request of plaintiff through one of his deputies, postponed the making of the order until plaintiff could be present, which time was the day in January when the order was made; by reason whereof it is alleged plaintiff is estopped to question the validity of the order.

Plaintiff by reply denies the validity of the order last mentioned and denies generally the new matter in the answer.

The case was tried to the court without a jury. At the close of all the evidence the court gave declarations of law to the effect that plaintiff was not entitled to recover under either count of his petition and rendered judgment for defendant, from which plaintiff appealed.

The facts in evidence are practically undisputed. Plaintiff, who was sheriff from January 1, 1921, to December 31, 1924, received seventy-five cents per day per prisoner for boarding prisoners during the calendar year 1923, as per the order made for that year on December 1, 1922. No order was made at the November term, 1923, prior to January 1, 1924, but on January 5, 1924, presumably a day of the November term, 1923, although that is not shown, the court did make an order which was certified to the circuit clerk, fixing the allowance to the sheriff for boarding prisoners for the calendar year 1924 at forty-five cents per day per prisoner. By way of explanation of the delay in making this order it appears that the court contemplated making it on a day in December, but postponed action because the sheriff was away that day and the court wished to give him an opportunity to be present when the order was made. There is evidence that one of the sheriff's deputies requested the court to postpone its action. Plaintiff's evidence tended to show that no such request was made by him or by his authority, and that he was not notified that the court intended to make an order in December, although he admits he expected them to do so.

It is not necessary to consider the evidence on that subject further than to say that in our opinion it does not sustain defendant's plea of estoppel, and from the trial court's rulings on requested declarations of law we gather that he did not give his peremptory declarations on that ground. There was no evidence tending to show that the county court, in delaying the making of the order until January 5 or in fixing the amount of the allowance, acted capriciously or from any improper motive, or that the sheriff incurred any obligation or liability relying upon a continuance in operation of the order of December 1, 1922. It seems to be conceded that plaintiff has been paid in full if the price fixed by the order of January 5, 1924, governs. The plaintiff testified that seventy-five cents per day per prisoner was a reasonable charge for furnishing board.

Plaintiff's cause of action is based upon the proposition that the order of the county court made January 5, 1924, is invalid because the court had no authority to make same after December 31, 1923, and that therefore either the order of December 1, 1922, continued to govern for 1924, entitling him to recover on his first count, or else that, absent any valid order, he was entitled to recover the reasonable value of the board furnished as sued for in the second count. Defendant contends that the order of January 5, 1924, was valid and further that in any event plaintiff could not recover unless the county court first fixed his compensation, and that in case the court failed to act in the premises he might have compelled such action by mandamus.

The first question for determination is whether or not the order of the county court made January 5, 1924, was valid. If it was, the trial court's action was right and we need not consider other questions raised.

The Legislature has appropriately committed to county courts the right and duty of fixing the compensation to be paid to sheriffs for furnishing board to prisoners in their charge. The applicable provisions of the statute are sections 11002 and 11003, Revised Statutes 1919. Section 11002 provides that sheriffs and other officers shall be allowed for furnishing such board such sum, not exceeding seventy-five cents per day for each prisoner, as may be fixed by the county court. Section 11003 provides that it shall be the duty of the county court at the November term thereof in each year to make an order of record fixing the fee for furnishing such board for one year commencing on the first day of January next thereafter. While not specifically so stating, the statute manifestly is...