State ex rel. O'Connor v. Riedel

• Citation: 46 S.W.2d 131,329 Mo. 616
• Decision Date: 06 February 1932
• Docket Number: 31090
• Parties: The State ex rel. Bridgie O'Connor, Administrator of Estate of Lewis O'Connor, v. Henry J. Riedel et al., Judges of County Court of Marion County
• Court: United States State Supreme Court of Missouri

46 S.W.2d 131

329 Mo. 616

The State ex rel. Bridgie O'Connor, Administrator of Estate of Lewis O'Connor, v. Henry J. Riedel et al., Judges of County Court of Marion County

No. 31090

Supreme Court of Missouri

February 6, 1932

Alternative writ quashed.

Hostetter & Haley and Hulse & Hulse for relator.

(1) Under the provisions of a portion of Section 11314 and the provisions of Section 11808, Revised Statutes 1929, the salary of relator as prosecuting attorney should have been and was fixed by respondents, as judges of the county court of Marion County, at the sum of $ 2,500 per annum, and that under the law and the provisions of said sections no other amount than said sum of $ 2,500 per annum could have been legally allowed as such salary. It is apparent from respondents' return that their contention is that the method of ascertaining the population of Marion County, for the purpose of fixing relator's salary, as set forth in both of said Sections 11314 and 11808, or one or the other of such methods, should be followed in fixing such salary. The respondents maintain that the method of ascertaining such population as provided in said Section 11314 should be governed by the decennial census of 1930, while the method of ascertaining such population as provided in said Section 11808 requires that the highest number of votes cast at the last previous general election held in Marion County in November, 1930, should be multiplied by five. The decennial census of 1930 gave Marion County a population of 33,667 which would fix relator's salary at $ 2,500 per annum. The highest number of votes cast at such general election held in November, 1930, was 6014 which multiplied by five would give Marion County a population of 30,070, which would fix the salary of relator at the same amount. So that it clearly appears that the contention of respondents is that under the law they were required to follow either or both of such methods and thereby fix the salary of relator at the sum of $ 2,500 per annum; and in this proceeding the court is called upon to construe said Sections 11314 and 11808 and to pass upon their constitutionality. (2) Said Section 11314 does not require that the population be governed by the decennial census, and if so, such requirement is unconstitutional. (a) It might seem that the author of said section, when he drew the same, had in mind by the use of the language found in the closing clause thereof, to-wit "until after the population of such county shall have been ascertained by the next decennial census of the United States," that such census, after it had been taken should be adopted as representing the number of inhabitants of such county. But such language (even if constitutional) does not show any such intention, for the reason that such language does not express as clear intention to require the county courts to adopt and take the result of such census after it is taken, as representing and fixing the population of such county, in lieu of the other method, as set forth in said section, of multiplying the whole number of votes cast at the last preceding presidential election by five. In other words, such language does not change, modify nor affect the method of ascertaining the population by multiplying by five the whole number of votes cast at the last preceding presidential election, which method remains as the only one set forth in said section which is required to be adopted and followed by the county court in ascertaining the number of inhabitants. (b) But should the court hold that by the last clause of said section, to-wit: "until after the population of such county shall have been ascertained by the next decennial census of the United States," the Legislature intended to make it mandatory upon the county courts to adopt and take the result of such census as fixing the population of their respective counties, then such clause is in conflict with and in violation of Section 12, Article 9, Constitution of Missouri. (c) It is questionable whether the framers of our Constitution contemplated that said Section 12 of Article 9, supra, might be carried into effect by the passage of separate and distinct acts relating to each county officer with respect to his salary. State ex rel. Summers v. Hamilton, 279 S.W. 37. However, if the court hold that the Legislature is authorized by said Section 12 to carry into effect the provisions thereof by the passage of separate and distinct acts, said Section 12 certainly does not authorize the lawmakers to fix one population for one county officer and a different population for another county officer in the same county. State ex rel. Summers v. Hamilton, supra, 37. Said Section 11314 is the only section found in our statutes pertaining to the method of ascertaining the number of inhabitants for the purpose of regulating the salaries of county officers that provides, by implication or otherwise, that the decennial census may be adopted and followed by the county courts for such purpose. It, therefore, seems clear to us that such provision found in said Section 11314, because of a lack of uniformity and harmony with all the other sections of our statutes pertaining to the same matter, is in direct conflict with and violates the mandate of said Section 12 of Article 9 of the Constitution requiring uniformity in the operation of all acts of the Legislature regulating the fees of all county officers. (3) All of the county officers constitute a class. The attempt to separate the prosecuting attorneys from such class, and fix their salaries on a basis of population different from that employed in fixing salaries of other county officers renders the act unconstitutional and void. Sec. 12, Art. 9, Constitution; State v. Julow, 129 Mo. 176. (a) The law is, that part of a statute may be unconstitutional and void and the residue thereof constitutional and valid. Gross v. Gentry County, 8 S.W.2d 889. All county officers, including prosecuting attorneys, constitute one class, and should be so dealt with by the lawmakers in regulating their fees under the provisions of said Section 12 of Article 9 of the Constitution. (4) Said Section 11808 is a general statute. Its provisions conflict with special statutes, Secs. 11314, 11786, 11811 and 9465, R. S. 1929, and such special statutes should prevail. State v. Imhoff, 238 S.W. 125. We have four special acts, Secs. 11314, 11786, 11811 and 9465, relating, respectively, to the regulation of the fees of prosecuting attorneys, circuit clerks, clerks of all courts of record, and county school superintendents, in all of which sections it is provided that the total number of votes cast at the last previous "presidential election" shall form the basis upon which to ascertain the number of inhabitants. Again, relator suggests that said Sec. 11808, in legal effect, should be so construed, in connection with Secs. 11314, 11786, 11811 and 9465, as to direct respondents, in ascertaining the population of Marion County as the basis upon which to fix the salary of relator, to multiply by five the whole number of votes cast at the last previous presidential election held in said county in November, 1928, which would fix the salary of relator at $ 5,000 per annum. State ex rel. Summers v. Hamilton, 312 Mo. 157, 279 S.W. 33; State ex rel. v. Harper, 30 S.W.2d 1039.

J. W. Hays for responents.

(1) Relator was elected to the office of prosecuting attorney of Marion County, at the general election held in November 1930, and began his term of office, January 1, 1931. The decennial census was taken by the United States in 1930, and Marion County was found thereby to have a population of 33,667 inhabitants. Having these facts before them, together with relator's bill for his salary for January, 1931, in the sum of $ 416.66, the amount he would receive had the population of the county been ascertained by multiplying the whole number of votes cast at the last preceding presidential election by five, the county court ordered that the salary of the prosecuting attorney be fixed at $ 2,500 per annum, and further that the several monthly warrants issued in favor of said prosecuting attorney be based on an annual salary of $ 2,500, as provided for in Sec. 11314, R. S. 1929." So the only question before the court is the constitutionality of Sec. 11314, R. S. 1929, as it relates to the method of ascertaining the population of a county for the purpose of fixing the salary to be paid the prosecuting attorney. And the question here presented is whether Sec. 11314, R. S. 1929, is in conflict with and in violation of Sec. 12, Art. 9, Constitution of Missouri. (2) Section 11314 is uniform in its operation; it applies to all prosecuting attorneys of the State alike. What is meant by "not being uniform" is that it would permit the prosecuting attorneys of the different counties under the same classification as to population to receive a different salary for their services. State ex rel. McCaffrey v. Bailey, 272 S.W. 921; State ex rel. Summers v. Hamilton, 279 S.W. 35. (3) It is no violation of Sec. 12, Art. 9, Constitution, to pass separate and distinct acts relating to every county officer in respect to his salary, but the law as so passed must be uniform as to every county officer affected or named therein, throughout the State, as cited in the above opinions. In other words, we see no authority at law, as the relator contends, that one should have the same basis of population for each county officer in the county, than that the salary should be the same. But certain it is, that when the Legislature classifies the different officers and legislates concerning their salary, then that legislation as to that office, be it prosecuting attorney, circuit clerk, county clerk, or any other county officer, must...