State ex rel. Forsee v. Cowan
| Decision Date | 14 November 1955 |
| Docket Number | No. 1,No. 44671,44671,1 |
| Citation | 284 S.W.2d 478 |
| Parties | STATE of Missouri ex rel. Preston FORSEE, Relator-Respondent, v. Ray G. COWAN, Hunter Phillips and William J. Randall, Judges of the County Court of Jackson County, Missouri, Respondents-Appellants |
| Court | Missouri Supreme Court |
J. Marcus Kirtley, County Counselor, Independence, Louis Wagner, Asst. County Counselor, Kansas City, for appellants.
Clarence C. Chilcott, Kansas City, for respondent.
This is an appeal by the Judges of the County Court of Jackson County, respondents in the trial court, from a peremptory writ of mandamus of the Circuit Court of that County commanding them to issue and deliver to Preston Forsee, a former justice of the peace of said county, relator in the trial court, a warrant for the sum of $16,665.05 for salary and interest allegedly due him for acting for another justice of the peace of said county under the provisions of Section 2562, R.S.Mo.1939, during the absence of the latter in the armed forces of the United States. The parties will be herein referred to as they were designated in the trial court.
The case was tried on an agreed statement of facts, the substance of which was:
From November 3, 1942, to November 20, 1945, both inclusive, relator was the elected, qualified and acting justice of the peace for the Fifth District, Kaw Township, Jackson County, and Harry S. Davis was the elected, qualified and, to the extent herein stated, acting justice of the peace for the Eighth District of said Township. Their respective salaries were by Sec. 2762, R.S.Mo. 1939, fixed at $3,600 per annum, payable monthly out of the treasury of Jackson County. On November 16, 1942, Davis advised the county court by letter (which the court entered of record) that he had been ordered to report for active service in the armed forces, effective November 20, 1942; that it was his purpose to return at the end of the war emergency and continue as justice of the peace; that he was not vacating or resigning his office; requested an order granting him a leave of absence beginning November 20, 1942, until his return following release from the armed forces; and advised the court that he waived any salary during his absence, but that upon return he would expect his salary to be paid him for the remainder of his term.
On November 19, 1942, Davis entered on his docket an order reciting:
Beginning November 20, 1942, and continuing until November 5, 1945, relator assumed and duly and legally performed all of the duties of Davis as justice of the peace.
It was also agreed that a public necessity existed for a justice of the peace to serve and act within the Eighth District; that the predecessors of respondents knew that relator discharged all of the duties as such justice of the peace and had notice that relator would and did demand payment therefor; that the budget director of Jackson County set up in his budget a sum sufficient to pay relator for services performed by him, as justice of the peace of the Eighth District; that there were then on hand sufficient funds to meet such obligation, but that no appropriation was ever made by the County Court to pay relator; that neither relator nor Harry S. Davis has received any compensation for services rendered by relator for said Eighth District; that a demand was made upon the county court for such compensation, but the court has failed and refused to pay same; that the amount of compensation and interest accrued to relator (if the county is liable therefor) was $16,101.50 on the date of the stipulation (the peremptory writ fixes this sum at $16,665.05); that during the time relator was acting as justice of the peace for the 8th District, the predecessors of respondents maintained the courtroom in which relator acted as such justice and paid the salaries of the court officers and employees and other expenses incident to the operation thereof in the total sums of $6,248 for the year 1943, $6,333 for the year 1944 and $6,683 for the year 1945.
On adoption of the 1945 Constitution, the offices of all justices of the peace were, by Article V of the Constitution and Section 4 of the Schedule, V.A.M.S., extinguished effective at the end of their respective terms of office; and in 1945 the statutes defining their former jurisdiction, rights and duties were formally repealed. Hence, we are relegated to the Revised Statutes of 1939 for citation of the statutes pertinent to the issues here presented.
Section 2767 provided: 'The justices elected under the provisions of the preceding sections shall keep their offices and hold their courts within the districts for which they were respectively elected, which shall be designated in the commission; and such justices so elected or appointed shall exercise the powers and perform the duties throughout their townships prescribed by law in relation to the other justices of the peace; * * *.'
Section 2562 provided: 'In all townships which have or may hereafter have two or more justices of the peace, any justice of the peace in said township may act for any other justice of the peace in said township whenever any of said justices of the peace in said township are unable to act or dispose of the business pending before them from any cause or for any reason: Provided, it shall be necessary for the incapacitated justice to enter in his docket a request for the other justice to act before such other justice shall take jurisdiction.'
The theory advanced by relator as the basis upon which the peremptory writ of mandamus was issued and should be by this court affirmed is that when relator began to act and thereafter did act for Davis under authority of Sec. 2562 he became at least the defacto justice of the peace of the 8th District; that there is no constitutional, common law or statutory inhibition against holding two separate and distinct compatible offices; and that a person who holds two such offices at the same time is entitled to the compensation attached to each.
It is true, as relator contends, this court has said that in this State ...
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