Norberg v. Montgomery

• Decision Date: 08 June 1943
• Docket Number: 38538
• Citation: 173 S.W.2d 387,351 Mo. 180
• Parties: Ben Nordberg, Clerk of the County Court of Jackson County, v. George S. Montgomery, W. L. Yost, Fred W. Klaber, Judges of the County Court of Jackson County; Jackson County, and Harry M. Bergin, Appellants
• Court: Missouri Supreme Court

173 S.W.2d 387

351 Mo. 180

Ben Nordberg, Clerk of the County Court of Jackson County, v. George S. Montgomery, W. L. Yost, Fred W. Klaber, Judges of the County Court of Jackson County; Jackson County, and Harry M. Bergin, Appellants

No. 38538

Supreme Court of Missouri

June 8, 1943

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Affirmed.

George K. Brasher and Ed. A. Harris for appellants.

(1) Section 10934 of the Revised Statutes of Missouri of 1939 authorizes the accountant appointed by the county court to be the "accounting officer." Secs. 10932, 10933 10934, 13824, 13862, 13887, R. S. 1939. (2) The words "or other officer or employee keeping the principal records of the county," appearing in Section 10934 of the Revised Statutes of Missouri of 1939, do not qualify or annul the preceding provision in said section that the term "accounting officer" shall be deemed to mean the accountant. Fulkerson v. Great Lakes Pipe Line Co., 335 Mo. 1058, 75 S.W.2d 844; State v. Eckhardt, 232 Mo. 49, 133 S.W. 321; Cades v. Mosberger Lbr. Co., 291 S.W. 178; Mangelsdorf v. Penn. Fire Ins. Co., 224 Mo.App. 265, 26 S.W.2d 818; State v. Broderick, 7 Mo.App. 19; State ex rel. Dean v. Daues, 321 Mo 1126, 14 S.W.2d 990; State ex rel. School District v Harter, 188 Mo. 516; State ex rel. Major v. Ryan, 232 Mo. 77; Lauck v. Reis, 310 Mo. 184; Castillo v. State Highway Comm., 312 Mo. 244; Hannibal Trust Co. v. Elzea, 315 Mo. 485; Dyer v. Sutherland Bldg. Contr. Co., 321 Mo. 1015, 13 S.W.2d 1056; Mack v. Byrd, 131 Mo. 682; DeJarnett v. Tickameyer, 328 Mo. 153; Elsas v. Montgomery Elevator Co., 330 Mo. 596; Bowers v. Mo. Mut. Assn., 333 Mo. 492, 62 S.W.2d 1058; State ex rel. St. Louis Pub. Serv. Co. v. Public Serv. Comm., 326 Mo. 1169, 34 S.W.2d 486; 59 C. J. 985. (3) The provision of Section 10933 of the Revised Statutes of Missouri of 1939 that the accounting officer shall be liable on his bond does not disqualify the accountant as the "accounting officer." Sec. 10933, R. S. 1939; State ex rel. Coleman v. Blair, 245 Mo. 680; Coonce v. Munday, 3 Mo. 373; State ex rel. O'Connor v. Riedel, 329 Mo. 616, 46 S.W.2d 131; Bowers v. Mo. Mut. Assn., 333 Mo. 492, 62 S.W.2d 1058; State ex rel. McCaffrey v. Mason, 155 Mo. 486; State ex rel. Johnson v. Caulfield, 245 Mo. 676. (4) The county court has power to determine which of the officers mentioned in Section 10934 shall be the accounting officer. State ex rel. Buckner v. McElroy, 309 Mo. 595, 274 S.W. 749; Rinehart v. Howell County, 348 Mo. 421, 153 S.W.2d 381.

Harry L. Jacobs for respondent.

(1) Sec. 10934, R. S. 1939, part of county budget law, defines "accounting officer" as follows: "Wherever in this act the term 'accounting officer' shall appear, it shall be deemed to mean the county clerk, county comptroller, county auditor, accountant or other officer or employee keeping the principal records of the county." (2) County clerk keeps the principal records of the county. Sec. 13823, R. S. 1939. (3) "Keeping the principal records of the county" modifies the antecedent "accountant" as well as other antecedents. The frame of the sentence shows this. Dodd v. Indep. Stove & Furn. Co., 330 Mo. 662, 51 S.W.2d 114. (4) Amendment of 1939 striking comma after "accountant" shows "accountant" and "officer or employee" were coupled together, with a common modifier, viz., "Keeping the principal records of the county." Laws 1939, p. 658. (5) "Last antecedent" rule inapplicable. Appellant themselves concede modifier goes back farther. Where several words are followed by a clause as much applicable to the first as the last, it modifies all. 59 C. J. 986, sec. 583; State ex rel. v. St. Louis, 174 Mo. 125. (6) The duties of "accounting officer" are such that he must necessarily be the county's principal record keeper. Sec. 10932, R. S. 1939. (7) The liability imposed on "accounting officer" is such as to indicate that a mere accountant employee, unable to protect himself, was not intended to be "accounting officer" under the county budget law. (8) The quality of "keeping the principal records of the county" is an attribute of the county clerk, the first named in the definition. The modifier at the conclusion of the definition was derived from this quality aptly descriptive of the county clerk. Where a modifier fits the first word of a series just as much as the last it applies to all. United States v. Standard Brewery, 251 U.S. 210, 64 L.Ed. 229; Porto Rico Ry., L. & P. Co. v. Mor, 253 U.S. 345, 64 L.Ed. 944; Johnson v. So. P. Co., 196 U.S. 1, 49 L.Ed. 362; In re Graves Estate, 27 F.Supp. 717; 59 C. J. 986, sec. 583. (9) Appellants' argument based on inclusion of "county comptroller" and "county auditor" in definition is untenable, for specific statutes definitely make them the "accounting officer" in their respective counties. Besides "county comptroller" was not in the definition as originally enacted. Laws 1933, pp. 351, 352; Laws 1937, pp. 427-430; Secs. 10919-10921, R. S. 1939; Sec. 1388, R. S. 1939; Secs. 13887-13908, R. S. 1939. (10) Amendment of 1939 inserting "county" before "auditor" confirms construction that a mere auditor accountant was not contemplated by the definition as "accounting officer." State ex rel. McNeil v. St. Louis County Court, 42 Mo. 496. (11) Purpose of creating office of "accounting officer" was to provide for a check on county expenditures. The county court is the county spending agency. The purpose of the act would be defeated if a mere employee of the county court were, without further qualification, held to be qualified as "accounting officer." It would in effect be a case of the county court checking itself. State ex rel. McNeil v. St. Louis County Court, 42 Mo. 496. (12) The "accountant" whom the county court is authorized to employ to aid it in its auditing functions is not the accountant contemplated by the definition. Sec. 13824, R. S. 1939; Blades v. Hawkins, 133 Mo.App. 328, 112 S.W. 979; Blades v. Hawkins, 240 Mo. 187, 144 S.W. 1198, Ann. Cas. 1913B, p. 1082. (13) "Accounting officer" if undefined would mean a mere auditor, like the appellant Bergin. The enactment of a special definition shows an intention to exclude such mere auditing accountants. McKnight v. United States, 13 Ct. of Claims 292; Hauck v. State, 45 Ohio St. 439, 14 N.E. 92; Brunaugh v. State, 173 Ind. 483, 90 N.E. 1019. (14) Explanation of inclusion of word "accountant" in definition. Similar word in statute defining State Auditor's duties, and in previous legislation referring to county officers. In each such case the "accountant" referred to did keep the principal records. Secs. 10895-10909, R. S. 1939; Sec. 13021, R. S. 1939; State ex rel. Daily v. Auditor, 41 Mo. 13; State ex rel. McNeil v. St. Louis County Court, 42 Mo. 496. (15) Even if restrictive phrase does not modify "accountant," still respondent will be "accounting officer" because "county clerk" is the first officer specified in the definition. (16) The definition is constitutional. Traub v. Buchanan County, 341 Mo. 727, 108 S.W.2d 340; St. Louis County Court v. Griswold, 58 Mo. 175; State ex rel. Atty. Gen. v. Valle, 41 Mo. 29. (17) County court has no power to appoint "accounting officer." The statute gives it no such power. The Constitution expressly delegates the power of prescribing the manner of appointment of county officers to the Legislature. Sec. 14, Art. IX, Sec. 9, Art. XIV, Mo. Constitution. (18) County courts have no implied powers, except those necessary to carry out powers expressly granted. Walker v. Linn Co., 72 Mo. 650; Steines v. Franklin County, 48 Mo. 167; Blades v. Hawkins, 240 Mo. 187, 144 S.W. 1198; Lewis v. Petroleum County, 92 Mont. 563, 17 P.2d 60, 86 A. L. R. 575; 14 Am. Jur., sec. 28, p. 200, note 10. (19) The county budget law plainly shows on its face that the power of appointment was not intended to be given to the county court, because such a power was specifically conferred with respect to "budget officer." This emphasizes the failure to give a like power with respect to "accounting officer." Laws 1933, pp. 340, 346, 351; Sec. 10922, R. S. 1939; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543.

OPINION

TIPTON, J.

This is a declaratory judgment action brought in the circuit court of Jackson County to determine who is the "accounting officer" of Jackson County under the county budget law. (Sections 10910-10935.) The trial court adjudged that the county clerk was the "accounting officer" under that law.

All sections of statutes referred to are the 1939 Revised Statutes of Missouri.

On January 1, 1943, the county court of Jackson County entered an order of record employing Harry M. Bergin as County Accountant under Section 13824, and, also, by this order, appointed him as County "accounting officer" as defined by Section 10934.

Section 13824, provides that "if the county court finds it necessary to do so, it may employ an accountant to audit and check up the accounts of the various county officers." It is conceded that the county court had the authority to employ an accountant, but respondent says that under Section 10934, he cannot be the accounting officer under the county budget law, because he is not the keeper of "the principal records of the county." Section 10934, reads: "Whenever in this act the term of 'accounting officer' shall appear, it shall be deemed to mean the county clerk, county comptroller, county auditor, accountant or other officer or employee keeping the principal records of the county."

Appellants contend that the modifying clause "keeping the principal records of the county" applies only to the preceding words "officer or employee" and that the county court can appoint either the county clerk, county comptroller, county auditor, accountant, or any officer or employee, provided...