State ex rel. Jackson Cnty. v. Hickman

• Decision Date: 31 October 1884
• Citation: 84 Mo. 74
• Parties: THE STATE TO THE USE OF JACKSON COUNTY v. HICKMAN, et al., Appellants.
• Court: Missouri Supreme Court

84 Mo. 74

THE STATE TO THE USE OF JACKSON COUNTY

v.HICKMAN, et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Comingo & Slover, Peak & Yeager, and C. O. Tichenor for appellants.

(1) R. S., 1879, sec. 5526, et seq., amended the act of 1874 and constitute a revision of the latter act. Falconer v. Robinson, 46 Ala. 340. Such parts of the old statute as were not incorporated into the revision are annulled. Buck v. Spofford, 31 Me. 34; Hughes v. Farrow, 45 Me. 72. (2) If, then, the Revised Statutes of 1879 amended the act of 1874, and covered the whole subject matter of that act, although there is no clause to that effect, it operated as a repeal of the act of 1874. Bartlett v. King, 12 Mass. 537; Michols v. Squire, 5 Pick. 168; Corn v. Cooley, 10 Pick. 37; Mich. Canal Co. v. Chicago, 14 Ill. 336; Sedg. on Statutes, p. 126; United States v. Claflin, 7 Rep. 33; 97 U. S. Rep; Gray v. Mont, 45 Iowa 591; Broaddus v. Broaddus, 10 Bush, p. 306; 14 Am. Decis., p. 210, note; Murdock v. City of Memphis, 20 Wall. 590; Bowen v. United States, 100 U. S.; State v. Beagly, 60 Mo. 220. (3) And if the subsequent statute be not repugnant in all its provisions to the prior one, yet if the latter statute was clearly intended to prescribe the only rule that should govern in the case provided for, it repeals the original act. Rochester v. Barnes, 26 Barb. 657; State v. Jersey City, 40 N. J. L. 257. (4) In any event, this is a case of casus omissus. The courts must take the act as the legislature has made it. A casus omissus can in no case be supplied by a court of law, for that would be to make laws. Sedg. on St., p. 307; Ex Parte Donalson, 44 Mo. 149; Stamper v. Bridwell, 57 Mo. 22; Beskin v. Hill, 53 Mo., p. 492. Whatever may have been the intention of the legislature, it can only be gathered from the words used by it in the act itself, or acts in pari materia. Sedg. on St., pp. 243, and 382, and 3, and cases cited.Henry M. Withers and E. P. Gates for respondent, referred to the written opinion of the circuit judge.

DEARMOND, C.

This action is on the official bond of Wm. Z. Hickman, as county clerk of Jackson county, for the term of four years, beginning the first Monday in January, 1879. It is against Hickman and his sureties, to recover the amount of fees of the office alleged to have been wrongfully retained by said Hickman. The petition is in the usual form, and contains two counts, the first for $4084.48, fees charged to have been wrongfully retained by Hickman out of the receipts of his office from the first Monday in January, 1879, to the thirty-first day of October, 1879, both inclusive; which amount, it is alleged, was ascertained by the county court on an examination of said Hickman's reports covering that period, to be in excess of his salary at the rate of $2500 per annum, and the clerk hire allowance made him by said county court, and that he was ordered by said county court to pay into the county treasury such excess of fees in his hands, to-wit: $4084.48, which he has refused to do. The second count is to recover fees to the amount of $823.72, alleged to be the excess of the amount of the fees of the office for the year from November 1, 1879, to November 1, 1880, ascertained by the county court as in the other case, and ordered to be paid by said Hickman into the county treasury, and not by him paid.

The answer admits the allegations of the petition as to the giving of the bond, its condition, etc., and says that the county court on a re-examination, in January, 1881, of said Hickman's annual reports from 1875 to October 31, 1879, after deducting from the receipts of his office his salary computed at the rate of $2500 per annum and the allowances for clerk hire, found there was due the county said sum of $4084.48. That in said reports, by the mistake of said Hickman, were embraced sums aggregating $1318.75, received by said Hickman in 1875, 1876, 1877, and 1878; the amount received each year being stated, which several sums were paid said Hickman by the Kansas City, Independence, and Westport school districts for services in furnishing names of persons owning real and personal property, to enable the county clerk to extend on the tax books the taxes assessed against such persons by the respective school districts. That said receipts did not belong to the office, and were by mistake included with the fees of the office, reported during said years. That said sums, by mistake, had been paid into the county treasury and that credit should be given, and appellants prayed credit, for said $1318.75 “upon any finding or judgment, if any,” that might be rendered against them. It was also alleged that of the $823.72 claimed in the second count of the petition, $306.03 was received for the like services rendered the Kansas City school district; that it didn't belong to the office, and was by mistake included in said Hickman's report, made in May, 1880, and the like credit for $306.03 was asked on any recovery, if any, on the second count. It was also alleged that, embraced in the different reports of said Hickman, was an aggregate of $120.75, received for taking acknowledgments to deeds, granting certificates to pension papers, and certificates of authority of other officers to act, affidavits, etc., none of which fees, it was claimed, belonged to the office, and a credit for that sum was prayed on any recovery, if any, against appellants. The answer further denies the authority of the county court to examine Hickman's reports to determine what amount of fees he might retain, and denies that the county ever was entitled to the sums claimed, or is entitled to a recovery at all, but asserts that the sums claimed were, and remained, the property of said Hickman, and asked judgment for costs.

The reply is that the $1318.75 and $306.03 were received by Hickman in his official capacity for services rendered by his deputies during office hours, and that said sums constituted part of the fees of said office, and denies that the $1318.75, or any part of it, was erroneously or by mistake reported or paid into the treasury, and alleges that the $120.75 was received by Hickman in his official capacity, for services so rendered, and that none of the credits asked should be given.

This stipulation was given in evidence: “It is hereby agreed by the parties herein, in addition to the facts admitted by the pleadings in this case, that the services rendered by the defendant, Wm. Z. Hickman, for the Kansas City, Independence, and Westport school boards, as set out in defendant's answer, were performed by the deputy county clerks of said Hickman, and during office hours.”

The cause being submitted to the court sitting as a jury, appellants asked declarations of law on the theories advanced in their answer, all of which the court refused. The court found for the plaintiff, and assessed the damages on the first count at $4084.48, and on the second count at $517.69, allowing the credit of $306.03 as prayed in the answer. Judgment was rendered for the amount of the penalty named in the bond, $5,000, and costs; execution to go for the amount of damages assessed, $4602.17, with interest at twenty per cent. per annum from date of judgment, and costs. Motions for new trial and in arrest being overruled the cause was appealed to this court.

1. By the act of March 30, 1874, in relation to courts of record (Acts 1874, pp. 63, 64), the county clerk of the county of Jackson was entitled to retain annually out of the fees of his office two thousand five hundred dollars, and, in addition, such sum as the county court should allow for necessary clerk hire; and any funds then remaining from such fees were to go into the county treasury. This law was revised and amended in 1879, and as revised and amended is to be found in the Revised Statutes, section 5626 to section 5630. An important change in the law consists in a reduction in the amount which the clerks might retain as their compensation out of the fees of their office, the reduction in the case of the clerk of the Jackson county court being five hundred dollars, annually, and in fixing limits within which allowances for deputies and assistants must be confined. The section effecting this reduction (5627, R. S.) contains a proviso “that the provisions of this section shall not...