State ex rel. and to Use of Livingston County v. Hunt

• Decision Date: 10 June 1941
• Docket Number: 36876
• Parties: State of Missouri at the relation of and to the use of Livingston County, Appellant, v. Virgil B. Hunt and the Western Casualty and Surety Company of Fort Scott, Kansas, a Corporation
• Court: Missouri Supreme Court

152 S.W.2d 77

347 Mo. 1150

State of Missouri at the relation of and to the use of Livingston County, Appellant, v. Virgil B. Hunt and the Western Casualty and Surety Company of Fort Scott, Kansas, a Corporation

No. 36876

Supreme Court of Missouri

June 10, 1941

Appeal from Livingston Circuit Court; Hon. Ira D. Beals Judge.

Affirmed.

Charles S. Greenwood and R. B. Taylor for appellant.

(1) During defendant Virgil B. Hunt's tenure as circuit clerk all fees allowed to be retained by him for his services as circuit clerk were fixed by the provisions of Section 11786, Laws 1933, as found at page 369 thereof. (2) Section 11814, Laws 1933, as shown at page 372, required the circuit clerk to collect, report and pay over all fees in excess of fees allowed to be retained by Section 11786, supra. (3) It was the intent of the Legislature to limit circuit clerks in the amount of fees they could retain and such intent is clearly shown by the proviso to be found in Section 11786, Laws 1933 at page 369, which proviso is as follows: " provided, further, that clerks of the circuit court shall be allowed to retain in addition to the fees allowed under this section all fees earned by them in cases of change of venue from other counties; . . . "The office of a 'proviso' is to limit or restrict the general language preceding it, and not to enlarge the enacted clause." Brown v. Patterson, 224 Mo. 639. "As a rule, exceptions in statutes are strictly construed." State v. Breckenridge, 219 Mo.App. 587. (4) All services rendered by a circuit clerk to a drainage district in the filing of tax suits, issuing summons therein, filing other pleadings, etc., are official duties of that office, and all fees taxed and collected therein must be reported and all sums in excess of the fees allowed to be retained by Section 11786, supra, must be paid into the county treasury. All fees collected by the clerk in his official capacity are held by him as trustee for the county and must be accounted for under the penalty of his bond. State v. Thatcher, 92 S.W.2d 640. "The salaries of clerks of circuit courts are fixed or limited by law. Section 11786, Revised Statutes 1929 (Mo. Stat. Ann., sec. 11786, p. 7007). Circuit clerks receive for their services in all civil proceedings fees as scheduled in Section 11785, Revised Statutes 1929 (Mo. Stat. Ann., sec. 11785, p. 7005)." State v. Dishman, 68 S.W.2d 797. (5) Fees allowed to be retained by a circuit clerk by virtue of Section 11786, Laws of Missouri, 1933, page 369, are in fact a fixed salary in full payment for all services rendered, and any fees allowed by any other statute to the clerk are the property of the county and must be accounted for. State ex rel. v. Dent, 121 Mo. 162; Callaway County v. Henderson, 119 Mo. 32; State ex rel. Callaway County v. Henderson, 142 Mo. 598; Callaway County v. Henderson, 139 Mo. 510; State to use v. Hickman, 84 Mo. 74. (6) Defendant Hunt's claim that he is entitled to retain all fees earned in drainage district tax suits filed in the office of circuit clerk is without foundation. He bases his claim on the provisions of Chapter 64, Revised Statutes 1929, and especially under the provisions of Section 10879 thereof. That part of Section 10879, supra, which states that "(in addition to the fees and deputy hire allowed under the provisions of Section 11811, Revised Statutes 1929)," does not apply to circuit clerks. Perkins v. Burks, 78 S.W.2d 845; Ward v. Christian County, 111 S.W.2d 182. (7) Even though defendant Hunt was entitled to retain the fees mentioned in Section 10879, Revised Statutes 1929, they would be but a small part of the fees collected by him in each drainage district tax suit filed in his office. Said section provides: "for filing each paper relating to a drainage or levee district, five cents; for issuing each subpoena, summons or notice, and for approving and filing each bond, twenty-five cents; for recording or copying each one hundred words and numbers, eight cents." In any event the above-mentioned statutes do not take into consideration the many fees to be charged and collected by the clerk under the provisions of Section 11785, Revised Statutes 1929. All duties performed by the circuit clerk in these drainage district tax suits were of the same nature as performed by him in any other civil suit and he collected fees in same according to the schedule set out in Section 11785, Revised Statutes 1929. (8) The fees mentioned in Section 10879, supra, do not refer to fees to be earned in a civil suit but to fees that might accrue in the organization or administration of a drainage district. Circuit clerk's fees in civil suits are provided for by Section 11785, supra. State v. Dishman, 68 S.W.2d 798. (9) Some of the fees earned by the circuit clerk in the drainage tax suits filed in his office were for taking acknowledgments of tax deeds, affidavits, etc. The clerk's acts in so doing were official, a part of the duties of his office and the fees so earned must be accounted for and paid over to the county. State to use v. Hickman, 84 Mo. 74. (10) Article 4, Chapter 64, Revised Statutes 1929, relating to drains and levees, and especially the sections contained therein under which defendant Hunt claims the fees in controversy, relates only to fees to be paid to county officers in organizing and administering the affairs of a drainage district and not to fees earned or services performed incident to the official duties of a circuit clerk. The title of this act clearly shows this. The subject matter of an act cannot be broader than the title. "No bill shall contain more than one subject, which shall be clearly expressed in the title." Art. IV, Sec. 28, Mo. Const.; State ex rel. Attorney General v. Macklin, 13 S.W. 680; State ex rel. Attorney General v. Miller, 13 S.W. 677. (11) The legal effect of defendants' demurrers to the petition was an admission by defendants of all of the petition's allegations. Goodson, Admr., v. Goodson, 140 Mo. 206.

Kitt & Kitt and Chapman & Chapman for respondents.

(1) The circuit court properly sustained demurrer of defendants to plaintiff's petition, because said petition failed to state any facts showing a right on part of plaintiff to recover fees sued for. The fees sued for, under the law belonged to defendant, Virgil B. Hunt. Secs. 10878, 10879, R. S. 1929; Laws 1913, pp. 321, 323; Little River Drainage Dist. v. Lassater, 29 S.W.2d 716; Harris County v. Charlton, 243 S.W. 458, 228 S.W. 969. (a) The words "in addition to" used in Section 10879, Revised Statutes 1929, signified "an increase of" or "an accession to." In re Daggett, 9 N.Y.S. 654; Walther v. McSherry, 21 Mo. 76; Hart v. White, 26 Vt. 260; Ferguson's Estate v. Gentry, 206 Mo. 203. (b) The law pertaining to the incorporation, organization and administration of drainage districts, to-wit: Chapter 64, Revised Statutes 1929, includes Sections 10878 and 10879, Revised Statutes 1929, and is a code unto itself. Graves v. Little Tarkio Drainage Dist., 134 S.W.2d 70; Buschling v. Ackley, 192 S.W. 722; State ex rel. Harrison v. Hill, 253 S.W. 448; State ex rel. Scott v. Trimble, 272 S.W. 66; Bushnell v. Mississippi & Fox Drainage Dists., 111 S.W.2d 946; In re Mississippi & Fox Drain. Dists., 270 Mo. 157. (c) Section 11786, Laws 1933, page 369, fixes compensation for circuit clerks for duties incident to office. While Sections 10878 and 10879, Revised Statutes 1929, fix clerks' fees for extra and additional services not incident to the office. Little River Drainage Dist. v. Lassater, 29 S.W.2d 716; 31 C. J., 391; 40 A. L. R., p. 1052; 22 R. C. L. (Supp.), Vol. 7, p. 5227; State ex rel. v. Sheehan, 269 Mo. 421. (d) Section 11786, Laws 1933, is a general statute and Sections 10878 and 10879, Revised Statutes 1929, are special statutes. If these statutes are in pari materia, then it is the duty of the court to harmonize them. And it is a rule of statutory construction that where there is one statute dealing with a subject in general and comprehensive terms and another with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view of giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them, the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one; and when the general act is later, the special will be construed as remaining an exception to its terms. Unless it is repealed in express words or by necessary implication. If there is any repugnancy between those two statutes, the general must yield to the special statute. Little River Drainage Dist. v. Lassater, 29 S.W.2d 716; State v. Smith, 67 S.W.2d 50; State v. Brown, 68 S.W.2d 55; State v. Fulks, 247 S.W. 129; State ex rel. v. Drainage Dist., 252 Mo. 345; State ex inf. v. Amick, 247 Mo. 271; State v. Imhoff, 238 S.W. 122; State v. Crawford, 262 S.W. 341; State ex rel. City of Springfield v. Smith, 125 S.W.2d 883, 344 Mo. 150; Collins v. Twellman, 126 S.W.2d 231, 344 Mo. 330; State ex rel. McDowell v. Smith, 67 S.W.2d 50, 334 Mo. 653. (2) To construe 11786, Laws 1933, at page 369, as appellant contends, as providing the entire compensation for all services performed by circuit clerks, and as including those extra, special and different duties imposed on those clerks which perform duties for drainage, would prevent that section from operating uniformly, as all counties do not have drainage districts, and therefore it would be unconstitutional. Sec. 12, Art. IX, Mo. Const.; Little River Drainage Dist. v. Lassater, 29 S.W.2d 716. (a) The operation of a law means its practical working. Anderson's Law Dictionary. (b) ...