State ex rel. Evans v. Gordon

• Citation: 149 S.W. 638,245 Mo. 12
• Parties: THE STATE ex rel. WILLIAM P. EVANS v. JOHN P. GORDON, State Auditor
• Decision Date: 02 July 1912
• Court: United States State Supreme Court of Missouri

149 S.W. 638

245 Mo. 12

THE STATE ex rel. WILLIAM P. EVANS v. JOHN P. GORDON, State Auditor

Supreme Court of Missouri

July 2, 1912

Writ denied.

Irwin & Peters for relator.

(1) The act in question is class legislation and in violation of Sec 27, Art. 4, of the Constitution of 1875, in that it undertakes to divide a natural class of persons, to-wit, all persons whose election to office has been contested, into artificial classes, to-wit, those who draw their salary from the State treasury, and those who draw their salary from a county or city treasury or receive their compensation from fees collected, and undertakes to impose a burden upon the one which it does upon the other. A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is a special law. State v. Tie Co., 181 Mo 536; State ex rel. v. Washburn, 167 Mo. 68; Sams v. Railroad, 174 Mo. 53; State v. Walsh, 136 Mo. 400; Dunne v. Kansas City, 131 Mo. 1; Eating v. Hickman, 172 Mo. 237; State ex rel. v. Ins Co., 150 Mo. 113; State ex rel. v. Wofford, 121 Mo. 61; State v. Julow, 129 Mo. 163; State v Loomis, 115 Mo. 307; In re Flukes, 157 Mo. 125. A statute which fails to embrace all persons who are or may come into like situations and circumstances is a special law and unconstitutional. State v. Julow, 129 Mo. 163; Eating v. Hickman, 172 Mo. 257; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Tolle, 71 Mo. 645; State ex rel. v. Herrmann, 75 Mo. 340. (2) The statute which retains relator's earned salary, through the service of a contest notice, is a denial of a right and is a violation of Sec. 30, Art. 2, of the Constitution, and of the fourteenth amendment to the Constitution of the United States, which guarantees to relator the "due process of law." Asphalt Co. v. Bridges, 169 Mo. 376; State v. Julow, 129 Mo. 163; State v. Auditor, 33 Mo. 287; Railroad v. Chicago, 142 F. 844; George v. Railroad, 214 F. 551; Railroad v. Commission, 155 F. 792; State v. Derry, 171 Ind. 18; Bloom v. Hock, 63 N.J.Eq. 10; Mathews v. People, 202 Ill. 389. Labor is property. Mathews v. People, 202 Ill. 389. A person is deprived of his property not only when it is actually taken from him, but also when its capability of enjoyment is taken or impaired. Black's Constitutional Law (3 Ed.), p. 577; In re Jacobs, 98 N.Y. 98; State v. Tie Co., 181 Mo. 536. The services rendered having constituted an executed contract, the State is powerless to abrogate it without due process of law. Ex parte Goodin, 67 Mo. 637; State v. Auditor, 33 Mo. 287; O'Brien v. Ash, 169 Mo. 283. (3) The title to the act under which Sec. 11830, R. S. 1909, was enacted, is misleading and does not express the subject embraced in said act, as required by Sec. 32, Art. 4, of the Constitution of 1865, and Sec. 28, Art. 4, of the Constitution of 1875, and is therefore void. Laws 1873, pp. 90, 91; State v. Distilling Co., 237 Mo. 103; Williams v. Railroad, 233 Mo. 666; State v. Wiethaupt, 231 Mo. 449; State v. Burgoerfer, 107 Mo. 33; State v. Coffee Co., 171 Mo. 643; State v. Fort, 210 Mo. 512; Kansas City v. Payne, 71 Mo. 162; St. Louis v. Weitzel, 130 Mo. 616. (4) The State incurs no liability for salary paid to a de facto officer, even though the title to the office is in dispute. State v. Clark, 52 Mo. 508; Brown v. County, 112 Ia. 745; Hall v. Coulter, 117 Ky. 747; Coughlin v. McElroy, 74 Conn. 397; Demarest v. New York, 147 N.Y. 203; Chandler v. Hughes Co., 9 S.D. 24; Samuels v. Harrington, 43 Wash. 603; Wright v. Coffee Co., 21 Kan. 478; Hatton v. Babcock, 106 Mo.App. 72; Wilson v. Fisher, 140 Cal. 188; State v. Franz, 55 Neb. 167. The right of a public officer to receive pay for services rendered is regarded in the nature of a contract right. 29 Cyc. 1429; State v. Auditor, 33 Mo. 287; Ex parte Goodin, 67 Mo. 637. The one who becomes a public officer de facto, without dishonesty or fraud on his part, and who renders the services required of such public officer, may recover the compensation provided by law for such services during the period of their rendition. State v. Clark, 52 Mo. 508; Erwin v. Jersey City, 60 N. J. L. 141.

Elliott W. Major, Attorney-General, Campbell Cummings and Charles G. Revelle, Assistant Attorneys-General, for respondent.

(1) Every presumption is indulged in favor of the validity of a legislative act, and it devolves upon him who assails same to clearly establish the invalidity. State ex rel. v. McIntosh, 205 Mo. 602; In re Burris, 66 Mo. 450; In re Bledsoe Hill, 200 Mo. 646; State v. Layton, 160 Mo. 488; State ex rel. v. Aloe, 152 Mo. 477; State v. Douglas, 50 Mo. 597; State v. Addington, 77 Mo. 110; State v. Ranson, 73 Mo. 78. (2) The act in question does not contravene the provisions of Sec. 53, Art. 4, of the State Constitution relating to title. A mere reference to the section or chapter to be amended, without other description of the subjectmatter of the amendatory law, is a sufficient title to an amendatory act which deals with the subject of the section or chapter amended. State ex rel. v. County, 128 Mo. 440; State ex rel. v. Heege, 135 Mo. 118; Ferguson v. Gentry, 206 Mo. 189; State v. Doering, 194 Mo. 408; State ex rel. v. Herring, 208 Mo. 708; State ex rel. v. Ranson, 73 Mo. 87; De Both v. Mining Co., 141 Mo. 497. (3) The act is not objectionable on the grounds of special or class legislation. The statute is a general law applying equally to all State officers whose salaries are paid out of the State treasury, and whose office is contested. Ensworth v. Curd, 68 Mo. 282; State ex rel. v. Railroad, 48 Mo. 468; Railroad v. St. Louis, 66 Mo. 228; Hickman v. Craig, 6 Mo.App. 583; State ex rel. v. Garesche, 3 Mo.App. 584; Constitution, 1875, Schedule, Sec. 1; R. S. 1909, p. 143. The constitutional clause prohibiting class legislation is prospective in its operation. State ex rel. v. Railroad, 48 Mo. 468; Railroad v. St. Louis, 66 Mo. 228; Hickman v. Craig, 6 Mo.App. 583; State ex rel. v. County, 41 Mo. 457. The history of legislation in this State shows that the lawmaking power may divide persons and business into different classes. O'Connor v. Transit Co., 198 Mo. 640; Elting v. Hickman, 172 Mo. 237; Assn. v. Waddill, 138 Mo. 628; State ex rel. v. Speed, 183 Mo. 186. Moreover, the Constitution does not prohibit local or special leigslation in all cases. Such laws are forbidden upon the thirty-two subjects named, and only such others "where a general law can be made applicable." State ex rel. v. Speed, 183 Mo. 202. A law is valid that applies equally to all who are, or who may come into like situations and circumstances, and, for that reason, is not local or special. State ex rel. v. Speed, 183 Mo. 186; 8 Cyc. 1051. (4) Under the Constitution and laws of this State an office is not property, but is a mere public trust, created for the benefit of the public and not for the advancement of the officer. The power that created it can abolish it, subject it to such conditions as it sees fit, and the occupant thereof cannot complain. The incumbent is a mere voluntary servant, and not a contracting party. 23 Am. & Eng. Ency. Law, p. 328; Throop on Public Officers, p. 19, and Secs. 446, 450; Mechem on Public Offices and Officers, Sec. 856; State ex rel. v. McCracken, 60 Mo.App. 656. Again, the right of a public officer to fees is derived from the statute. He is entitled to no fees for services he may perform as such officer unless the statute gives it. When the statute fails to provide a fee for services he is required to perform as a public officer, he has no claim upon the State for compensation for such services. Gammon v. County, 76 Mo. 676; State v. Wofford, 116 Mo. 223; Shedd v. Railroad, 67 Mo. 687; Ford v. Railroad, 29 Mo.App. 616; State ex rel. v. Brown, 146 Mo. 406; Williams v. County, 85 Mo. 645; Bank v. Refrigerator Co., 236 Mo. 414; Hill v. County, 195 Mo. 511. Since the Legislature has the absolute power to determine the compensation of a public officer, and to require him to render official services without pay, it necessarily follows that it can name the terms and conditions upon which he shall receive pay. Railroad v. Kirkwood, 159 Mo. 253; Blanding v. Burr, 13 Cal. 343; State v. Holder, 76 Miss. 181. (5) The act does not violate the principles of public policy, this being a question solely for the lawmaking power. State v. Addington, 77 Mo. 110; State v. Bixman, 162 Mo. 29; Hamilton v. Court, 15 Mo. 20; State ex rel. v. Gordon, 236 Mo. 160; State v. Swaggerty, 203 Mo. 527; Court v. Griswold, 58 Mo. 175; Hannibal v. County, 69 Mo. 571; State v. Clark, 54 Mo. 17; Railroad v. Little, 45 Ga. 388; State ex rel. v. McClelland, 138 Ind. 395; Horton v. Comrs., 43 Ala. 605; People v. Railroad, 34 Barb. 138.

FERRISS, J. Kennish and Brown, JJ., not sitting.

OPINION

In Banc

Mandamus.

FERRISS J.

-- This is an original proceeding by mandamus on behalf of William P. Evans, Superintendent of Public Schools, to compel John P. Gordon, State Auditor, to issue to relator a warrant for his salary as Superintendent of Public Schools for the thirteen months ending January 31, 1912, in the sum of $ 3250, which salary has been withheld by the State Auditor because of a pending contest proceeding against relator instituted by Howard A. Gass contesting relator's right to the office of Superintendent of Public Schools, which contest has been pending in this court since relator was inducted into office, January 9, 1911. The petition states:

"1. That the relator is now, and ever since the first day of January, 1911, has been, the duly elected commissioned, qualified and acting Superintendent of Public Schools for the State of Missouri, and during all of said period of time has resided at the seat of government and...