State ex rel. Buchanan County v. Imel

• Citation: 146 S.W. 783,242 Mo. 293
• Parties: THE STATE ex rel. BUCHANAN COUNTY, Appellant, v. JOHN F. IMEL, Judge of Probate Court
• Decision Date: 23 April 1912
• Court: United States State Supreme Court of Missouri

146 S.W. 783

242 Mo. 293

THE STATE ex rel. BUCHANAN COUNTY, Appellant, v. JOHN F. IMEL, Judge of Probate Court

Supreme Court of Missouri

April 23, 1912

Appeal from Buchanan Circuit Court. -- Hon. L. J. Eastin, Judge.

Reversed (with directions).

C. C Ferrell for appellant.

(1) All enactments of the Legislature are presumed to be constitutional until the contrary is made clearly to appear. For this reason the burden rests upon the respondent to point out and make clear to this court that said act is violative of the Constitution. State ex rel. v. Williams, 232 Mo. 2; State ex rel. v. Mason, 153 Mo. 49; State ex rel. v. Switzler, 143 Mo. 317. (2) If said law of 1905 is unconstitutional, respondent waived his right to take advantage of it by giving a bond under its provisions thereby declaring his intention to accept it. When he gave such bond, he agreed with the county to accept said law, as the rule by which he and the county should determine their respective rights. This suit is upon that agreement, namely upon respondent's bond. There are no reasons of public policy demanding this law to be declared unconstitutional, but an individual is asking it to further his property interests. Henderson v. Koenig, 192 Mo. 690; Stiepel v. Life Assn., 55 Mo.App. 233; State ex rel. v. Messerly, 198 Mo. 351; Merrill v. St. Louis, 83 Mo. 251; Williams v. Railroad, 153 Mo. 519; Bishop on Contracts (1888), sec. 792.

George P. Webster, C. C. Crow and Vinton Pike for respondent.

(1) The Act of 1905, now section 10695, violates section 12 of article 9 of the Constitution. (a) The only classification authorized is one based upon the population of counties, while the act itself classifies probate judges, or the compensation to be received by them, on other conditions. The maxim expressio unius est exclusio alterius is applicable to constitutions as well as to statutes. Cooley, Const. Lim. (6 Ed.), pp. 78 and 93; Page v. Allen, 58 Pa. St. 338; People v. Draper, 15 N.Y. 544; Railroad v. Railroad, 130 U.S. 25; Henderson v. Koenig, 168 Mo. 369; Ex parte Arnold, 128 Mo. 264. The permissive classification according to population of counties was, therefore, a specific prohibition against any other classification. A probate judge is a county officer. Henderson v. Koenig, 168 Mo. 356. (b) The constitutional command is that the compensation shall be regulated by a law uniform in its operation, but this act is not uniform in its operation because it does not work out uniformly in the several counties, owing to the differing amounts received as salaries by circuit judges, and the varying amount of fees earned in the several probate courts. It is subject to constant fluctuation, because every legislature and every county court can change the salary of a circuit judge. The word "operation," as used in this portion of the Constitution means "working out." Crabb, Eng. Syn., p. 35; March, Thesaurus Dic., Title "Action-Effect;" Century Dic., Title "Operation;" Anderson's Law Dic., p. 734; Geebrick v. State, 5 Iowa, 496; Little Rock v. Parrish, 36 Ark. 166. The effect of the statute must be uniform upon the subject-matter. It cannot operate upon the main subjects in one part of the State differently than it operates upon the same subjects in other parts of the State. The law must operate uniformly upon the subject-matter in every part of the State, and only when it does that will it comply with this provision of the Constitution. State v. Nelson, 52 Oh. St. 88; Railroad v. Barnes, 2 N.D. 310; State ex rel. v. Herrmann, 75 Mo. 340; State v. Julow, 129 Mo. 163. (2) The Act of 1905 is unconstitutional and void for failure to conform to the requirements of section 28 of article 4 of the Constitution. The title of the Act of 1905 was simply "An Act to repeal section 3240, chapter 27, article 1, of the Revised Statutes of 1899, and to enact a new section in lieu thereof, to be known as section 3240." But the act itself simply reenacted old section 3240, which provided the scale of fees to be charged and concerned only the probate judge and the persons having business in his court, and then added to it a proviso regulating the disposition of the fees diminishing the judge's compensation, and creating a revenue for the school fund of the counties, without any mention of these purposes in the title. For this reason the act is void. Williams v. Railroad, 233 Mo. 666; Mobile v. Railroad, 124 Ala. 132; People v. Curry, 130 Cal. 82; Pratt v. Brown, 135 Cal. 649; Crowther v. Ins. Co., 85 F. 41; Equitable Co. v. Donohoe, 49 A. 372; Henderson Co. v. Alves, 122 Ky. 46; State v. S. R. Co., 106 La. 553; Stiefel v. May Ins., 61 Md. 144; Bank v. Auditor, 123 Mich. 511; Railroad v. Sprague, 69 Neb. 48; State v. Sullivan, 73 Minn. 378; Railroad v. Smythe, 103 F. 376; State v. Railroad, 115 Ala. 250; Hann v. Bedell, 67 N. J. L. 148. No member of the General Assembly reading this title would be struck with the idea that the new act was, in addition to the scope of the old act, to change the disposition of the fees charged, to limit the compensation of the judge and to provide a revenue for the school fund.

BROWN, J. Valliant, C. J., Lamm and Ferriss, JJ., concur; Kennish, J., concurs in all except what is said about estoppel to contest validity of law; Graves, J., dissents, and Woodson, J., dissents in opinion filed.

OPINION

In Banc

BROWN J.

The object of this suit is to determine the constitutionality of that part of section 10695, Revised Statutes 1909, which provides that each probate judge in this State shall keep a true and correct account of all fees annually earned and collected by him, and "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."

The plaintiff in his petition alleges that defendant, while acting as probate judge of Buchanan county during the year 1907, collected fees aggregating the sum of $ 5557.68; that after deducting from the fees so collected a salary equal to the salary of the circuit judge of Buchanan county and all necessary clerk hire and also ten per cent of the remainder of said fees, there was due from said defendant to Buchanan county a balance of $ 926.18, for which judgment was prayed, with six per cent interest from January 1, 1908.

Plaintiff also alleges that defendant as such probate judge, during the year 1908, collected fees aggregating the sum of $ 6675.30; that after deducting therefrom a salary equal to the salary of the circuit judge of Buchanan county, and all necessary clerk hire, and also ten per cent of the remainder of said fees, there was due to Buchanan county a balance of $ 1500, for which plaintiff prayed judgment, with interest at six per cent from January 1, 1909.

The defendant admitted the collection of fees in the amount and manner charged in plaintiff's petition and deposited in court the sum of $ 2426.18, being the amount claimed by the plaintiff; and pleaded that said section 10695, supra, in so far as it requires defendant to pay a part of his fees into the county treasury, is unconstitutional and void, and prayed the court to determine the constitutionality of said section, and order the fees so deposited, returned to him.

The court below gave judgment for the defendant on the ground that so much of section 10695, Revised Statutes 1909, as requires probate judges to pay over to county treasurers a part of the fees received by them, is in conflict with section 12 of article 9 of our State Constitution, which reads as follows: "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."

In the case of Henderson v. Koenig, 168 Mo. 356, 68 S.W. 72, this court held that the words "county officers," as used in the foregoing section of the Constitution, include probate judges; and in that case we also held that a statute which attempted to place probate judges in cities of 300,000 inhabitants upon a salary, and required their clerks to collect the fees earned by such judges and pay the same into the city treasury, was unconstitutional.

Almost the same issue arises again in this case; and it becomes necessary for us to reexamine the construction placed upon said section 12 of article 9 of the Constitution in the Henderson case, supra, and determine whether or not in this case we will follow the rules of law announced in that case.

The rule announced in the Henderson case depends for its correctness almost entirely upon the proper construction to be placed upon the words "county officers," as used in the aforesaid section of our organic law.

The words "county officers" have two well defined meanings. In their most general sense, they apply to officers whose territorial jurisdiction is coextensive with the county for which they are elected or appointed. In a more precise and restricted sense, those words mean officers "by whom the county performs its usual political functions, its function of government." [Sheboygan County v. Parker, 70 U.S. 93, 96, 18 L.Ed. 33.]

The Constitution of Tennessee contains a provision that "no county office created by the...