State ex rel. Buchanan County v. Imel
| Citation | 219 S.W. 634,280 Mo. 554 |
| Parties | THE STATE ex rel. BUCHANAN COUNTY v. JOHN F. IMEL and NATIONAL SECURITY COMPANY, Appellants |
| Decision Date | 13 March 1920 |
| Court | United States State Supreme Court of Missouri |
Appeal from Buchanan Circuit Court. -- Hon. Charles H. Mayer, Judge.
Affirmed.
Vinton Pike, Charles F. Strop and George W. Eastin for appellants Henry Lamm, of counsel, amicus curiae.
(1) We ask the court to again consider the question of the validity of Section 10695. The decision must turn mainly on whether or not a judge of probate is a state or county officer. It was held in Henderson v. Koenig, 168 Mo. 357, that he is a county officer, whose fees must be provided and regulated by a uniform law. Constitution, Art. 9, sec. 12. Section 10695, was upheld in the case in 242 Mo. 293, by a divided court, and followed in the same case on second appeal, and on the latter appeal the court was also divided. (2) The compensation of a circuit judge for the same year measures the compensation of the judge of probate. Not a stated salary of a circuit judge, but the sum total of all the emoluments he secures by virtue of his being a circuit judge, which constitute his compensation. Cunningham v. Current R etc., 165 Mo. 270; State ex rel. v. Walker, 97 Mo. 164; S. L. Obispo v. Felts, 104 Cal. 66; 23 Cyc 11, 526, 530; Benford v. Gibson, 15 Ala. 571; Throop on Pub. Off. (Ed. 1892), 466; Thompson v. Phillips, 12 Ohio St. 617; Milwaukee Co. v. Hochett, 21 Wis. 613; Kilgore v. People, 76 Ill. 552; Apple v. Crawford Co., 105 Pa. St. 303; 12 C. J. 231, note 46 C.; 29 Cyc. 1428; Hoyt v. United States, 10 How. 133; People ex rel. v. Wemple, 115 N.Y. 309; Throop on Pub. Off. sec. 462; State v. Cook, 37 Tex. 205; Bates v. St. Louis, 153 Mo. 18; State v. Amick, 247 Mo. 294; State v. McKay, 249 Mo. 261. (3) "Emoluments" or "compensation" embraces all receipts for official services, such as fees, per diem, allowances, and allowances to sheriffs for board of prisoners. 29 Cyc. 1428 and notes; Broader Than Salary. Kilgore v. People, 76 Ill. 552; Apple v. Crawford Co., 105 Pa. St. 242. The Legislature in using the word "compensation" intended to embrace all the terms implied in common use. 36 Cyc. 1106-7; Armstrong v. Modern Brotherhood of America, 132 Mo.App. 178. It means the income of the office. Scearcy v. Grow, 15 Colo. 123.
Stephen K. Owen, Phil A. Slattery and Homer C. King for respondent.
(1) The court is again asked to consider the question of the constitutionality of Section 10695, and are asked to overrule and set aside the opinion in the former Imel case, 242 Mo. 293; but appellants advance no reason except that that decision was rendered by a divided court. Sec. 10695, R. S. 1909, is constitutional. State ex rel. v. Imel, 242 Mo. 293; Green County v. Lydy, 263 Mo. 77. (2) Appellant is estopped from raising the question of the constitutionality of Section 10695. Section 10695, under which the appellant collected the money in controversy, was in force when he accepted the office of probate judge of Buchanan County. By voluntarily accepting that office and collecting the fees which the law prescribed for his services, he waived the right to assail the constitutionality of that law. State ex rel. v. Imel, 242 Mo. 293; Greene County v. Lydy, 263 Mo. 77. (3) Appellant is not entitled to the fifteen hundred dollars, paid to a circuit judge as compensation as jury commissioner, under the Act of 1907, page 322, and the Act of 1911, page 305, for the reason that said Act of 1907 was not passed and was not in effect at the time appellant qualified and entered upon his duties as probate judge, for his first term, and when appellant entered upon his duties of probate judge in January, 1911, there were no jury commissioners in Buchanan County, and the Act of 1911 did not go into effect until March 15, 1911. State ex rel. v. Ryan, 232 Mo. 77. (4) Appellant is not entitled to the increase in the annual compensation of the circuit judge of Buchanan county, as provided for in the Act of 1911, page 389, for the reason that before the passage and taking effect of said act he had previously qualified and entered upon his duties for a term of four years as judge of the probate court.
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, Revised Statutes 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, Revised Statutes 1909, has been assailed in this court for the same reason and by the same parties. [State ex rel. Buchanan Co. v. Imel, 242 Mo. 293, 146 S.W. 783; State ex rel. Greene Co. v. Lydy, 242 Mo. 316, 146 S.W. 789; Greene Co. v. Lydy, 263 Mo. 77, 172 S.W. 376.] 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 of 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. 634, 144 S.W. 776; Bowles v. Troll, 262 Mo. 377, 171 S.W. 326; Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650; Underwood v. Railroad, 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 time-worn 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 Co. v. Lydy, 263 Mo. 77, 172 S.W. 376, 1917C, Ann. Cas. 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 Co. 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 1917C, Ann. Cas. p. 284.
II. We come now to appellants' second contention. Under the statute (Sec. 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 judicial 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...
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