State ex rel. Buchanan County v. Imel

• Decision Date: 06 January 1920
• Docket Number: No. 20116.,20116.
• Parties: STATE ex rel. BUCHANAN COUNTY v. IMEL et al.
• Court: Missouri Supreme Court

219 S.W. 634

280 Mo. 554

STATE ex rel. BUCHANAN COUNTY v. IMEL et al.

No. 20116.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

Rehearing Denied March 13, 1920.

Appeal from Circuit Court, Buchanan County; Charles H. Mayer, Judge.

Action by the State, on the relation of Buchanan County, against John F. Imel and the National Surety Company. From a judgment for plaintiff, defendants appeal. Affirmed.

Vinton Pike, Charles F. Strop, and George W. Eastin, all of St. Joseph, for appellants.

Henry Lamm, of Sedalia, amicus curiæ.

Stephen K. Owen, Phil A. Slattery, and Homer C. King, all of St. Joseph, for respondent.

WALKER, C. J.

The appeal in this case arises out of a judgment rendered in the circuit court of Buchanan county against appellants and in favor of the respondent, in a suit brought by the latter to recover certain fees alleged to have been retained by the appellant Imel as probate judge of that county in excess of the amounts allowed him by law during the years of his official terms as stated in the petition. The questions submitted for review are: Is section 10695, R. S. 1909, constitutional; and what was the annual compensation of a circuit judge of that county during the years in question?

I. This is the fourth time the constitutionality of section 10695, R. S. 1909, has been assailed in this court for the same reason and by the same parties. State ex rel. Buchanan County v. Imel, 242 Mo. 293, 146 S. W. 783; State ex rel. Greene County v. Lydy, 242 Mo. 316, 146 S. W. 789; Greene County v. Lydy, 263 Mo. 77, 172 S. W. 376, Ann. Cas. 1917C, 274. It will be recalled that this section defines the fees that may be charged by probate judges and the amount of same that may be retained by them each year for their services. The power and the duty of courts to correct their own errors in a subsequent appeal of the same case or in another involving the same question is not to be gainsaid. Star Bot. Co. v. Expo. Co., 240 Mo. loc. cit. 643, 144 S. W. 776; Bowles v. Troll, 262 Mo. 377, 171 S. W. 326; Mangold v. Bacon, 237 Mo. loc. cit. 536, 141 S. W. 6N); Underwood v. R. R., 190 Mo. App. 407, 177 S. W. 724. Only in the exercise of this power is opportunity afforded for the correction of judicial errors, which, despite painstaking care and patient research, will, on account of the fallibility of the human mind, sometimes occur. Where, as here, however, counsel for appellants insistently reiterate a single ground of invalidity which after repeated presentations has failed to convincingly impress the court, the timeworn maxim, embedded in the law since the time of Littleton, that "it is the concern of the public that there should be an end of litigation," may be appropriately applied. A careful survey of the present contention as to the invalidity of the statute adds no reason not heretofore submitted. What we held good in the beginning may therefore be held good in the end, for appellants' contention can derive no strength from iteration in the absence of reason. The general rule to which we gave concrete application in Greene County v. Lydy, 263 Mo. 77, 172 S. W. 376, Ann. Cas. 1917C, 274, is applicable, that a constitutional question once decided is no longer open for consideration unless it appears to the court that its opinion is radically wrong. Furthermore, it never having been made to appear that this statute was clearly wrong or that there existed even grave doubts as to its validity, we decline to further discuss this question. Thus concluding, we have not deemed it necessary to advert to the doctrine of estoppel as equally applicable in the instant case as in Greene County v. Lydy, supra, where it was learnedly applied by Chief Justice Lamm.

In addition to the authorized publication of the Lydy Case, the curious will find Justice Lamm's conclusion therein, approved by many authorities compiled by the able editors of Am. & Eng. Annotated Cases, in the reprint of that case in Ann. Cas. 1917C, 284.

II. We come now to appellants' second contention. Under the statute (section 10695), the annual compensation of the judge of the circuit court in the county where the appellant Imel exercised the functions of probate judge measures the maximum amount the latter may retain as his annual compensation out of fees collected by him during each calendar year of his term. The vexing question necessitating a construction of the statute is what is meant by the annual compensation of the judge of the circuit court. The answer thereto will enable it to be determined which of the diverse contentions of the parties is correct. Appellants contend that all emoluments received by a circuit judge during each year from whatever source, if authorized by law, are within the meaning of the statute. Respondent contends that a circuit judge's salary for judical services should fix the limit of appellant's compensation.

The portions of section 10695 pertinent to the determination of the matter at issue are in effect as follows: After providing generally that probate judges shall be allowed fees for their services as there enumerated except certain fees not authorized to be charged, it is further provided:

"That whenever, after deducting all reasonable and necessary expenses for clerk hire, the amount of fees collected in any one calendar year by or for any one probate judge in any county in this state, during his term of office, and irrespective of the date of accrual of such fees, shall exceed a sum equal to the annual compensation provided by law for a judge of the circuit court having jurisdiction in such county, then it shall be the duty of such probate judge to pay such excess less ten per cent. thereof, within thirty days after the expiration of such year, into the treasury of the county in which such probate judge holds office, for the benefit of the school fund of such county."

As preliminary to the discussion of the main question, it is well to ascertain if the compensation of probate judges is within the purview of the constitutional inhibition against an increase in an officer's compensation during his term. If so, the rules of interpretation of other statutes of like import may with propriety be applied to assist, so far as may be, in the solution of the main question. Before the incorporation in section 10695 of the proviso quoted above, the inhibition only constituted a limitation upon the amount of each fee authorized to be charged. Thereafter, upon the amendment of the section in 1905 (Laws 1905, p. 155), which included the proviso, the inhibition applied, not to the particular fees, but to the total amount of annual compensation probate judges were entitled to retain for their services.

While the effect of the proviso, under the general rule (Brown v. Patterson, 224 Mo. 639, 124 S. W. 1), was to restrict the preceding portion of the section, it became upon its adoption as much a substantive and operative portion of the original section as if incorporated therein when the latter was first enacted. The restriction simply changed the manner in which the limitation as to fees was to be determined, and fixed a basis by which the constitutional inhibition could be definitely ascertained and uniformly applied.

In addition to what we have said elsewhere as to the purpose...