Perkins v. Burks, 33408.

• Decision Date: 21 December 1934
• Docket Number: No. 33408.,33408.
• Parties: HERBERT PERKINS v. CHARLES R. BURKS, RICHARD ROPER and W.S. BROCK, Appellants.
• Court: Missouri Supreme Court

78 S.W.2d 845

HERBERT PERKINS v. CHARLES R. BURKS, RICHARD ROPER and W.S. BROCK, Appellants.

No. 33408.

Supreme Court of Missouri.

Division One, December 21, 1934.

Appeal from McDonald Circuit Court. — Hon. Emory E. Smith, Judge.

AFFIRMED.

J.M. Tatum and J.T. Pinnell for appellants.

"Mandamus against judges of county court does not lie to compel payment of additional salary to county clerk, legal remedy being adequate." State ex rel. Stipp v. Cornish, 24 S.W. 667. Section 12 of Article IX of the Constitution of Missouri provides: "The General Assembly shall, by a law uniform in its operation, provide for and regulate the fees of all county officers, and for this purpose may classify the counties by population." Sec. 11786, Revised Statutes 1929, provides as follows: "For the purpose of this section the population of any county shall be determined by multiplying by five the total number of votes cast in such county the last presidential election prior to the time of such determination." Sec. 11811, Revised Statutes 1929, provides as follows: "The population of any county shall be determined by three and one-half the total number of votes cast in such county at the last presidential election prior to the time of such determination." Sec. 11314, Revised Statutes 1929, provides as follows: "The number of inhabitants of any county shall for the purposes of this section be ascertained by multiplying the whole number of votes cast at the last preceding general election by five until after the population shall have been ascertained by the next decennial census of the United States. Sec. 11808, Revised Statutes 1929, provides as follows: "For the purpose of determining the population of any county in this State, as a basis of ascertaining the salary of any county officer for any year, the highest number of votes cast at the last previous general election ... for any office shall be multiplied by five and the result shall be considered and held for the purpose aforesaid as the true population of such county." Sec. 9465, Revised Statutes 1929, provides as follows: "The highest number of votes cast at the last presidential election in said county shall be multiplied by three and one-half, and the result will be considered and held for the purposes aforesaid, to be the true population of such county." Section 11786 applies to the salaries of circuit clerks; Section 11811 applies to the salaries of prosecuting attorneys; Section 11808 applies to the salaries of any and all salaried county officers; Section 9465 applies to the salaries of superintendents of schools. Hence, we see that the Legislature, far from following Section 12 of Article IX of the Constitution, has in fact provided no less than three laws, not uniform in their operation, for the determining of salaries of county officers. The immensity of the lack of uniformity is glaringly patent when the various provisions of the salary sections are applied to this (McDonald) county. The population as determined by the U.S. Census in 1930, is less than 15,000; the population arrived at by the provisions of Sections 11811 and 9465 is 20,216. Three different methods; three different results; three populations in one county and only one of them within the realm of fact. 14,000 in 1930; 32,000 in 1932.

Lon Kelley for respondent.

HYDE, C.

This is a proceeding in mandamus in the Circuit Court of McDonald County by Herbert Perkins, as petitioner and relator, against the judges of the county court of McDonald County, seeking to compel them to issue warrants for $437.43, for the balance of the salary claimed to be due him from January to December, 1931. On behalf of the county judges, a motion was filed to quash the alternative writ on the ground, among others, that Perkins had a full and adequate remedy at law. The same proposition was again raised by their return to the writ. Upon a hearing the writ was made absolute and appeal was taken by the county judges (hereinafter referred to as appellants), to this court. This court held it was without jurisdiction and transferred the case to the Springfield Court of Appeals. [Perkins v. Burks, 61 S.W. (2d) 756.] The Springfield Court of Appeals held that Perkins had adequate legal remedies and reversed the judgment without prejudice to plaintiff to pursue his remedy at law. [Perkins v. Burks, 64 S.W. (2d) 712.] The Springfield Court of Appeals, however, deemed its decision in conflict with the decision of the Kansas City Court of Appeals in State ex rel. Sunderwirth v. Harper, 225 Mo. App. 254, 30 S.W. (2d) 1039, and certified the case to this court under the provisions of Section 6, Constitutional Amendment of 1884.

The case was tried in the circuit court upon an agreed statement of facts which is set forth in full in the opinion of the Springfield Court of Appeals. The facts from which the controversy over Perkins' salary arises, which are conceded by the pleadings, are that Perkins was elected circuit clerk of McDonald County at the election of November 4, 1930; that he qualified and had continued in this office from January 1, 1931, up to the filing of his petition for mandamus in January, 1932; that the United States census of 1930 showed the population of McDonald County to be less than 15,000 (13,936); that the total number of votes cast in said county at the presidential election of 1928 was 5,776; that Perkins was paid salary at the rate of $2,000 annually until June 1, 1931; that the court then made an order of record fixing the amount, which it found to be due Perkins for salary thereafter, at $1,250 annually; that on the first of each month thereafter Perkins presented a statement of the amount, claimed to be due him, for his salary, in the sum of $166.66; that the county court refused to pay the full amount of these statements which aggregated for the seven months $1,166.62; that the county court did pay to Perkins the total sum for these seven months of $720.19; and that the difference between these amounts, which Perkins now claims to be due him for the balance of his salary for these seven months is $437.43.

Perkins claims this amount under Section 11786, Revised Statutes 1929, by which salaries of circuit clerks are fixed upon a scale purporting to be based upon the population of the counties in which they serve, but which provides that: "For the purpose of this section the population of any county shall be determined by multiplying by five the total number of votes cast in such county at the last presidential election prior to the time of such determination." The population of McDonald County calculated by this method would be 28,880. This section provides that circuit clerks "shall receive for their services annually ... in counties having a population of 25,000 persons and less than 30,000 persons, the sum of $2,000." It is pointed out by appellants that there is another section (11811, R.S. 1929) which provides for the salaries of both circuit clerks and county clerks, likewise purporting to fix salaries upon the basis of population, which states that: "For the purpose of Articles 2 and 3 of this chapter, the population of any county shall be determined by multiplying by three and one-half the total number of votes cast in such county at the last presidential election prior to the time of such determination." This section originally provided for determining the population by multiplying the presidential vote by five (Sec. 11019, R.S. 1919), but was amended in 1921 to provide for multiplying the presidential vote by three and one-half instead of five. [Laws 1921, p. 608.] Both Sections 11786 and 11811 are part of Article 2 of Chapter 84, Revised Statutes 1929, and were part of Article 2 of Chapter 100 of Revised Statutes 1919. A similar amendment was made in 1921, of what it is now Section 11786, Revised Statutes 1929, then Section 10995, so that it would also provide for determining the population by presidential vote by three and one-half. [Laws 1921, 606.] This amendment was held void for uncertainty because it referred to this section as being a part of Chapter 123, Revised Statutes 1919, referring to state depositories, instead of Chapter 100, covering salaries and fees. [State ex rel. Summers v. Hamilton, 312 Mo. 157, 279 S.W. 33.] However, if the population of McDonald County is determined by the method prescribed by Section 11811, Revised Statutes 1929 (three and one-half times the vote) it would be 20,216; and under both 11811 and 11786 clerks are allowed $1,950, in all counties having a population of 20,000 and less than 25,000 persons. Therefore, the difference in the method of computation under these methods could only make a difference of fifty dollars in Perkins' annual salary.

Appellants contend that the population cannot now be determined by either statutory method, but that the only basis for fixing Perkins' salary is the population shown by the 1930 census. Both Sections 11786 and 11814, Revised Statutes 1929, make the compensation of circuit clerks in counties of the 10,000 to 15,000 population class, $1,250. There is still another section, 11808, Revised Statutes 1929, which provides: "For the purpose of determining the population of any county in this State, as a basis for ascertaining the salary of any county officer for any year, or the amount of fees he may retain, or the amount he shall be allowed to pay for deputies or assistants, the highest number of votes cast at the last previous general election, whether heretofore or hereafter held in such county, for any office, shall be multiplied by five, and the result shall be considered and held for the purpose aforesaid as the true population of such county." This section, which was 11016, Revised Statutes 1919, was enacted in 1887 (Laws 1887, p. 129), and has remained unchanged ever since, apparently being overlooked in 1921 when the other sections were amended. Appellants point out also statutes fixing other county...