State ex rel. Harvey v. Sheehan

• Decision Date: 21 December 1916
• Citation: 190 S.W. 864,269 Mo. 421
• Parties: THE STATE ex rel. THOMAS B. HARVEY, Circuit Attorney, v. JEREMIAH SHEEHAN, Auditor of City of St. Louis
• Court: Missouri Supreme Court

190 S.W. 864

269 Mo. 421

THE STATE ex rel. THOMAS B. HARVEY, Circuit Attorney, v. JEREMIAH SHEEHAN, Auditor of City of St. Louis

Supreme Court of Missouri

December 21, 1916

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Reversed (with directions).

Thomas B. Harvey for appellant.

(1) The city of St. Louis is a political subdivision of the State and bears relations thereto as a county and performs all the functions of a county; and legislation imposing duties upon the counties of the State, includes the city of St. Louis. R S. 1909, secs. 3508, 8057; State ex rel. v. Finn, 4 Mo.App. 347; Brown v. Marshall, 241 Mo. 707; St Louis v. Dorr, 145 Mo. 466; State ex rel. v. Rebenack, 135 Mo. 340; Railroad v. Gildersleeve, 165 Mo.App. 379. (2) Each county of the State, including the county of the city of St. Louis, has a public prosecutor who is designated either as prosecuting attorney or as circuit attorney and all have jurisdiction of felonies and the same general duties and powers; and the act devolving duties upon circuit and prosecuting attorneys in their respective counties, designates the circuit attorney to perform those duties in the city of St. Louis, although in said city is another official whose title is "Prosecuting Attorney of the St. Louis Court of Criminal Correction," but whose sole duty is the prosecuting of misdemeanors in said court. Sec. 975 et seq., R. S. 1909; State v. Speritus, 191 Mo. 38; State ex rel. v. Williams, 221 Mo. 261; Laws 1865, p. 77. (3) An act of the Legislature imposing upon an officer additional duties not within the sphere of his office and providing additional compensation for the discharge of said new duties, and though passed during his term of office, applies to said officer and is not within the inhibition of section 8 of article 14 of the Constitution forbidding the increase of compensation or fees of an officer during his term. Cunningham v. Railroad, 165 Mo. 270; State ex rel. v. Walker, 97 Mo. 162; 29 Cyc. 1429; County of San Luis Obispo v. Felts, 104 Cal. 60; State v. County Commrs., 23 Mont. 250; Lewis v. State ex rel., 21 Ohio Cir. Ct., 647; State ex rel. v. Carson, 6 Wash. 250; Purnell v. Mann, 105 Ky. 87; James v. Duffy, 140 Ky. 604; Love v. Baehr, 47 Cal. 364; State ex rel. v. Ransom, 73 Mo. 89; State ex rel. v. McGovney, 92 Mo. 428. (4) Statutes are not interpreted according to the letter, but according to the intent and meaning, which is to be determined from the context and the evident purpose of the legislation; and in order to effect such intent and not strike down a statute, words may be eliminated and others substituted. And where the word "city" is improvidently used instead of "county," the latter may be substituted for the former. Black on Interpretation of Laws, pp. 162, 243; Frazier v. Gibson, 7 Mo. 271; St. Louis v. Dorr, 145 Mo. 495; St. Louis v. Christian Brothers College, 257 Mo. 541; In re Ryan's Estate, 174 Mo.App. 202; Rutter v. Carothers, 223 Mo. 641; State v. Moody, 202 Mo. 120; People ex rel. v. Gaulter, 149 Ill. 47; State ex rel. v. Railroad Comm., 137 Wis. 85; Power Co. v. State Board, 94 Ark. 422; Stackhouse v. County Board, 86 S.C. 422; R. S. 1909, sec. 8057; Lancaster v. Frey, 132 Pa. 593; State ex rel. v. Phelps, 144 Wis. 1; Clare v. State, 68 Ind. 17; Covey v. Mayor, 149 P. 689; State v. Radford, 82 Kan. 853.

William E. Baird and Truman P. Young for respondent.

(1) The Act of March 25, 1913, is void. (a) It is void for ambiguity. (b) If said act is to be construed to apply to the city of St. Louis, it is void as being local legislation in violation of the Constitution. Sec. 53, art. 4, pars. 2, 15 and 32, Constitution; State ex rel. v. Roach, 167 S.W. 1008; Bridges v. Mining Co., 252 Mo. 53; Hayes v. Mining Co. 227 Mo. 300; State ex rel. v. Turner, 210 Mo. 97. (2) The Act of March 25, 1913, could not take effect during the term of office of the relator. Constitution, sec. 26, art. 14. (3) The increase of the fees of a public officer during his term of office cannot be justified on the ground that they are given as compensation for extra services, if such services are germane to the duties of the office. Dillon on Municipal Corporations (5 Ed.), sec. 426; Mechem on Public Offices, sec. 862; Lewis v. State ex rel., 21 Ohio Cir. Ct. 410; White v. East Saginaw, 43 Mich. 567; State ex rel. v. Raine, 49 Ohio St. 580; Bright v. Stone, 43 S.W. 207; Folk v. St. Louis, 250 Mo. 116. (4) The above constitutional provision should be distinguished from other similar provisions forbidding an increase of compensation, but saying nothing about fees. The word "compensation," when used alone in such constitutional provisions, has been held to refer to salary only. Milwaukee v. Hackett, 21 Wis. 620; Houser v. Seeley, 18 S.D. 318; State ex rel. v. Grimes, 7 Wash. 445; State ex rel. v. Johnson, 123 Mo. 43; State ex rel. v. Smith, 87 Mo. 157; Callaway County v. Henderson, 119 Mo. 32; Givens v. County, 107 Mo. 603; Cunningham v. Railroad, 165 Mo. 277. Therefore, the present provision has explicitly stipulated against an increase of either compensation or fees.

REVELLE J. Walker and Faris, JJ., dissent.

OPINION

In Banc.

REVELLE, J.

This proceeding by mandamus originated in the circuit court of the city of St. Louis and seeks process against the city auditor to compel him to audit a certain certified itemized account for services rendered by relator for attending coroners' inquests, and to issue a warrant for the payment of said account.

The petition recites that appellant has since the first day of January, 1913, been circuit attorney of the city of St. Louis; that the city of St. Louis has more than 500,000 inhabitants; that the forty-seventh General Assembly of the State of Missouri enacted a law requiring the circuit attorneys of such cities to attend inquests held by coroners in cases of death caused by violence which might result in charges of felony, and provided further that said circuit attorneys should receive for such services the sum of ten dollars for each inquest so attended and that such fee should be paid as "other costs" by the city; that said act was passed with an emergency clause and was in full force and effect during all the time for which appellant makes charges, which charges cover and include services performed in the pursuance of said act in connection with forty-four inquests over bodies of the nature described in said act; that a duly itemized and certified account for such services was certified to the city auditor for payment; that it then and there became the duty of such auditor to audit said account and to issue proper warrants in payment thereof; that there was at the time, and is now, sufficient money in the treasury of the city of St. Louis, appropriated and set apart for the maintenance of the office of the circuit attorney, to pay the amount of said claim, and that the same cannot under the law be paid until it is first audited by the said auditor; and, that the respondent has arbitrarily and unlawfully refused to audit said account or any part thereof.

The return admits that appellant is the circuit attorney as alleged and that the respondent is the duly qualified and acting auditor of the city of St. Louis; that the city has more than 500,000 inhabitants and that the law referred to in the petition was duly enacted with an emergency clause. The return alleges, however, that said act does not provide that the fee therein mentioned shall be paid by the city of St. Louis and that the said city is not liable to appellant for the fees demanded. The return further alleges that if said act be interpreted as requiring the city to pay such fee it could not apply to appellant because at the time of its passage he was holding office and could not claim the benefits thereof because of section 8, article 14, of the State Constitution. Upon the filing of this return appellant filed a motion to strike out same and have judgment on the pleadings. His motion being overruled, he refused to further plead and judgment was entered for respondent.

The first question presented is the construction and validity of the act of the Legislature (Laws 1913, p. 110), which is as follows:

"That the prosecuting or circuit attorney of cities that now have or may hereafter have 500,000 inhabitants or more is hereby required to attend inquests held by coroners in cases of death occurring by violence, and which may result in a charge of felony; and said prosecuting or circuit attorney shall make an investigation concerning said death and cause to be brought before the coroner any witnesses he may desire, and shall be permitted by the coroner to assist in the interrogation of witnesses for the full development of the circumstances leading up to and resulting in said death, and for his information concerning any possible criminal charge that may grow out of the same, and for the aforesaid services there shall be taxed as costs a fee in favor of said prosecuting or circuit attorney of ten dollars for each aforesaid inquest, to be paid as other costs by the respective counties. It shall be the duty of each coroner to promptly notify the prosecuting attorney of his county or city of the time and place of inquisition concerning any death of the aforesaid character."

Respondent contends that the act quoted is void because meaningless and uncertain as to the things to which applicable and because local and special, if so construed as to make the word "counties," found in the latter provision of the act, include the city of St. Louis. The act is not skillfully drawn and might, in the absence of recognized rules of construction, be so interpreted as to subject it to the charges made, but, in dealing with subjects of this character ...