Smith v. Pettis County

Decision Date23 January 1940
Docket Number36123
PartiesJacob E. Smith, Judge of the Probate Court within and for Pettis County, v. Pettis County, Appellant
CourtMissouri Supreme Court

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Affirmed and remanded (with directions).

Frank W. Hayes for appellant; Roy McKittrick Attorney General, and Drake Watson, Assistant Attorney General, of counsel.

(1) Section 11782, Revised Statutes 1929, authorizes and directs the respondent as probate judge to collect a fee of $ 2 for each marriage solemnized, and under said section it was his duty to account for such fees in his settlement with the appellant in arriving at his annual compensation. Secs. 2046 2070, 2096, 11782, R. S. 1929; Nodaway County v. Kidder, 129 S.W.2d 860. (2) The proper construction of Section 11782, Revised Statutes 1929, is that the probate judge, out of fees accruing during his first term of office and thereafter collected, could only retain enough fees to bring his net compensation for the last year of his first term, to-wit, 1934, up to $ 4700 plus change of venue fees, and that the respondent was required to pay any excess over that amount of fees, less ten per cent thereof, into the county treasury. Secs. 2047, 11782, R. S. 1929; Bragg City Special Road Dist. v. Johnson, 20 S.W.2d 22; St. Louis v. Christian Bros. College, 257 Mo. 549; Bowers v. Mo. Mut. Assn., 62 S.W.2d 1058; Darlington Lbr. Co. v. Mo. Pac. Ry. Co., 216 Mo. 658; Jackson County v. Stone, 168 Mo. 577; Nodaway County v. Kidder, 129 S.W.2d 860; Sanderson v. Pike County, 195 Mo. 598; State ex rel. v. Adams, 172 Mo. 1; State ex rel. O'Connor v. Riedel, 46 S.W.2d 131; State ex rel. v. Smith, 115 S.W.2d 816; Ward v. Christian County, 111 S.W.2d 182.

Guy B. Park, Montgomery, Martin & Montgomery and Lamm & Barnett for respondent.

(1) Section 2046, Revised Statutes 1929, gives probate judges the "power to solemnize marriages" and Section 11782 provides that probate judges shall be allowed "for solemnizing a marriage $ 2.00." Secs. 2046, 11782, R. S. 1929. (a) But all judges can solemnize marriages and so can any licensed or ordained minister (Sec. 2976). Marriage is primarily a civil contract between a man and woman, and the function of the judge or minister is, strictly speaking, ministerial -- in the nature of an attestor to the act of the parties because the status created is one of State concern. 38 C. J., pp. 1272, 1279, 1310, 1314, secs. 1, 9, 78, 79, 80, 86; Matthes v. Matthes, 198 Ill.App. 515; State v. Bittrick, 103 Mo. 191, 11 L. R. A. 587; Trammel v. Vaughan, 158 Mo. 222, 51 L. R. A. 854; Parks v. Marshall, 14 S.W.2d 595, 62 A. L. R. 835; In re Opinions of Justices, 62 Me. 596. (b) The solemnization of a marriage is in no sense a judicial act. It may be performed anywhere within his jurisdiction, at any and all hours, or on Sunday, no official court record need be made thereof and a judge is not required to account for fees earned in solemnizing marriages. St. Louis v. Sommers, 148 Mo. 398. (2) Section 11776, Revised Statutes 1929, provides "the several officers hereinafter named" (which includes probate judges) "shall be allowed such fees for their services rendered in discharging the duties imposed upon them by law as are hereinafter provided," and Section 11782 provides that "judges of probate court shall be allowed fees for their services" according to a statutory schedule therein stated, and the judge must first have "performed the service" before he charges and collects the fees. This is a clear statutory grant of fees -- fees lawfully earned belong to the judge (not the office) and this vested right is not lost or impaired by failure of the judge to succeed himself in office. Upon his death, in or out of office, title to fees earned but uncollected, pass to his legal representatives. Secs. 11776, 11782, R. S. 1929; State ex rel. v. Kansas City, 221 Mo.App. 784, 288 S.W. 85; State ex rel. v. Welbridge, 153 Mo. 194; Henderson v. Koenig, 192 Mo. 718; Mayfield v. Moore, 53 Ill. 431; Bier v. Gorrell, 30 W.Va. 95; 2 Blackstone's Commentaries, p. 36; Airy v. People, 21 Colo. 144, 40 P. 366.

Frank E. Morris amicus curiae.


Douglas, J.

This is an action under the Declaratory Judgment Law (Laws 1935, p. 218) for the declaration of rights under a statute. It springs from a controversy over the construction of Section 11782, Revised Statutes 1929 (10 Mo. Stat. Ann., p. 6999), which section sets out a schedule of fees allowed a probate judge and imposes a limitation on the annual amount a probate judge may retain. The parties agree on the facts. The plaintiff was elected and served as Judge of the Probate Court of Pettis County for a four-year term from 1931 through 1934, was reelected to succeed himself and is serving his second term. The net fees collected and retained by him during each calendar year were as follows: 1931, $ 3254.46; 1932, $ 4317.97; 1933, $ 3129.47; 1934, $ 3269.50; 1935, $ 4521.16; 1936, $ 4329.01. These sums include fees for solemnizing marriages. The sums collected for 1935 and 1936 also include fees of $ 2109.18 and $ 424 respectively which had accrued in the first term. The amount of fees permitted to be retained in each year by a probate judge is limited to the amount of the annual compensation received by the judge of the circuit court of the same county which, in this case, is $ 4700 plus change of venue fees. For the sake of simplicity it was assumed that such amount was the flat sum of $ 4700. In addition ten per cent of any excess collected over such amount may also be retained.

The plaintiff places a construction on the statute which permits him to retain fees in a larger amount than he would receive under the construction contended for by the defendant. He prays the court to construe the statute and to declare what compensation he is entitled to retain during and after the term of his office. Pettis County in its answer contends that under its construction of the statute the plaintiff has retained fees in excess of the amount allowed him by such statute and makes a counterclaim for this amount and asks for judgment.

A live dispute exists. In brief, the contentions as pleaded are these. The plaintiff claims that he may retain during his second term of office, in addition to current fees, all fees he receives which accrued during his previous term to an amount which would bring his compensation up to the maximum limit of $ 4700 per year for each of the four years of his previous term. The defendant claims that of the fees accrued in the previous term but collected in the ensuing term the plaintiff may keep only an amount sufficient to bring the amount received for the last year of that term up to $ 4700. The trial court sustained neither of these contentions. Nor can we sustain them. The parties also differed as to whether marriage fees should be accounted in determining the annual compensation. No declaration of law was offered or given on this subject but in a memorandum opinion the court declared that the plaintiff could not be held accountable for such fees. Its judgment was a succinct order that the defendant take nothing under its counterclaim and plaintiff have his costs.

The rule is settled in this State that a memorandum opinion of the trial court is merely advisory (Smith v. Holdoway Const. Co., 344 Mo. 862, 129 S.W.2d 894), and does not constitute any part of the record proper. [Easton Food Center v. Beatrice Creamery Co. (Mo. App.), 119 S.W.2d 987; Nolker v. Nolker (Mo. App.), 226 S.W. 304.] We approve that rule and confirm its applicability to the ordinary case. But in a suit for a declaratory judgment, as is this one, is it not the purpose of the suit to obtain from the court a declaration of the parties' rights? A mere judgment entry ordinarily cannot be responsive to the relief prayed for. It is not sufficient here. In Frazier v. City of Chattanooga, 156 Tenn. 346, 1 S.W.2d 786 where the trial court in a case under the Declaratory Judgment Law has sustained a demurrer and dismissed the petition, it was held that the better practice would have been to enter a decree, or a declaration defining the rights of the parties under the issues made, though such decree is adverse to the contentions of the petition. This holding is in harmony with our law. The first section of our Act on Declaratory Judgments states that the court "shall have power to declare rights. . . . The declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree." It therefore appears to be the express duty of the trial court to make a declaration of rights which constitutes or becomes a part of the judgment or decree and thereby a part of the record proper. The very purpose of this suit is to secure a judicial construction of the statute, to the extent necessary to determine how it applies to the facts of the controversy involved, and a declaration of rights under such construction. We find three declarations of law were offered by the defendant. The court gave one and refused two. This action of the court, in itself, was not a sufficient declaration of rights. But, in addition, we find in its memorandum opinion that the trial court construed the statute and declared the rights of the parties under it. The defendant treated these declarations contained in the memorandum opinion as part of the judgment because it complained of them in its motion for new trial. The defendant has also included the memorandum opinion in its bill of exceptions. Other issues have been raised by the plaintiff in his brief so that by the conduct of the parties themselves we have the whole matter before us. Furthermore, in reviewing the...

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