State ex rel. Jacobsmeyer v. Thatcher

• Decision Date: 18 March 1936
• Docket Number: 34733
• Parties: State of Missouri at the relation of Oscar H. Jacobsmeyer, Relator, v. Thomas Thatcher, Eugene Tighe and Emil F. Wohlschlaeger, Judges of the County Court of St. Louis County
• Court: Missouri Supreme Court

92 S.W.2d 640

338 Mo. 622

State of Missouri at the relation of Oscar H. Jacobsmeyer, Relator, v. Thomas Thatcher, Eugene Tighe and Emil F. Wohlschlaeger, Judges of the County Court of St. Louis County

No. 34733

Supreme Court of Missouri

March 18, 1936

Alternative writ quashed.

Clark Boggs, Peterson & Becker for relator.

(1) Relator, as clerk of the Circuit Court of St. Louis County is entitled to a salary of five thousand dollars per year from the first day of January, 1935, to be paid in equal monthly installments from the county treasury under the provisions of Sections 11280, 11808, 11813, Revised Statutes 1929, which sections now constitute the law for the payment of relator's salary. Secs. 11808, 11813, 11820, R. S 1929; Laws 1933, p. 369. (2) The Act of 1933, Laws 1933, page 369, is unconstitutional in its entirety, because it violates Article IX, Section 12 of the Constitution of Missouri because it does not uniformly provide for and regulate the fees of the circuit clerks in the various counties of the State. Art. IX, Sec. 12, Mo. Const.; State ex rel. v. Hamilton, 312 Mo. 157, 279 S.W. 33; State ex rel. v. Bailey, 308 Mo. 444, 272 S.W. 921; State ex rel. O'Conner v. Riddle, 329 Mo. 616, 46 S.W.2d 131. (a) Section 11786, Laws 1933, page 369, destroys the uniformity of the laws providing for the payment of compensation of the circuit clerks of the State, and violates the mandate of Article IX, Section 12 of the Constitution of Missouri. Secs. 11786, 11813, 11820, 11821, 11833, 11866, R. S. 1929; Cartright v. McDonald County, 319 Mo. 848, 5 S.W.2d 54; Laws 1887, p. 192. (b) Section 11808, Laws 1933, page 369, destroys the uniformity of the laws providing for the payment of compensation of the circuit clerks of the State, and violates the mandate of Article IX, Section 12 of the Constitution of Missouri. Laws 1933, p. 375; Laws 1933, pp. 369, 375; Secs. 11820, 11866, R. S. 1929; Sec. 1-a, Laws 1911, p. 389; Sec. 11821, R. S. 1929; Laws 1933, p. 369; State ex rel. Alton Railroad Co. v. Pub. Serv. Comm., 334 Mo. 985, 70 S.W.2d 52; State ex rel. Dickason v. Marion County Court, 128 Mo. 427, 30 S.W. 103. (c) Section 11808, Laws 1933, p. 369, must be held unconstitutional, because Section 11786 of said act is unconstitutional, and Section 11808 is a vital part thereof and would not have been passed by the Legislature, had it known that Section 11786 would not become effective. Laws 1933, p. 369; State ex rel. Audrain County v. Hackmann, 275 Mo. 534, 205 S.W. 12; State ex inf. v. Duncan, 265 Mo. 45, 175 S.W. 940, Ann. Cas. 1916D, 1; State ex rel. McDonald v. Lollis, County Clerk, 326 Mo. 644, 33 S.W.2d 101; Cooley's Constitutional Limitations (7 Ed.), p. 247; Sec. 11786, R. S. 1929. (d) Section 11814, Laws 1933, does not guarantee to circuit clerks in counties of the same population and collecting the same amount of fees, the same compensation. Sec. 11786, R. S. 1929; Laws 1933, p. 369. (e) Section 11814, Laws 1933, p. 369, should be declared unconstitutional because it is a vital part and must be construed with Section 11786. Laws 1933, p. 369; Sec. 11786, R. S. 1929. (f) Section 11811, 11812, Laws 1933, should also be declared unconstitutional because of the failure of the purpose of the act. Graves v. Purcell, 85 S.W.2d 543; Laws 1933, p. 369.

John E. Mooney for respondents.

(1) Even though the Act of 1933, Laws of Missouri 1933, page 369, should be declared unconstitutional, still the writ herein should be quashed. If said act were declared unconstitutional Section 11811, Revised Statutes 1929, would remain in full force and effect. This last-mentioned section provides that the compensation of the circuit clerk in a county having a population of less than 300,000 shall not exceed three thousand ($ 3000) dollars. (2) Section 11811, Revised Statutes 1929, should prevail in its application to circuit clerks, as said section is a special law and Section 11808 is general. State v. Imhoff, 238 S.W. 122. (3) Section 11091, Revised Statutes 1919, was amended by Laws 1921, p. 608. By the amendment, population was computed by multiplying the total number of votes cast in the last presidential election by three and one-half instead of by five. The section as amended is now Section 11811, Revised Statutes 1929. This amounted to an amendment by implication to the extent that such act was repugnant to former acts and therefore amounted to an amendment, to that extent, of the section now being Section 11808, Revised Statutes 1929. State ex rel. Holliday v. Rinke, 121 S.W. 159, 140 Mo.App. 645; Gilkeson v. Railroad Co., 222 Mo. 173, 121 S.W. 138. (4) Section 11808, Laws 1933, page 369, is not unconstitutional without reference whether Section 11786 of said act is unconstitutional. Even though a section of an act is unconstitutional, the remainder of the act or section will stand, if, after eliminating the bad part, enough remains which is good to clearly show the legislative intention and to furnish sufficient details of a working plan by which that intention may be made effectual. Kristanik v. Chevrolet Motor Co., 70 S.W.2d 890; Clark v. Grand Lodge, 43 S.W.2d 404; Mayes v. United Garment Workers of America, 65 S.W.2d 333; Ex parte Hutchens, 246 S.W. 186, 296 Mo. 331; Greene County v. Lydy, 172 S.W. 376, 263 Mo. 77; State ex rel. St. Louis County v. Gordon, 188 S.W. 160, 268 Mo. 713. (5) The Act of 1933, Laws of Missouri 1933, page 369, is not unconstitutional as in violation of Article IV, Section 28 of the Constitution. The Repeal Act refers in its title to the sections to be repealed and the title of the act repealed, and provides for the enactment of new sections and the title clearly expresses the subject matter. State ex rel. Becker v. Wellston Sewer Dist., 58 S.W.2d 988, 332 Mo. 547; Booth v. Scott, 205 S.W. 633, 276 Mo. 1, error dismissed Scott v. Booth, 253 U.S. 375.

OPINION

Hays, J.

Mandamus instituted by the relator as clerk of the Circuit Court of St. Louis County against respondents as judges of the county court of that county to compel the payment of a claimed arrearage in his official salary.

The issues tendered by our alternative writ issued herein may in substance be stated as follows: The relator was elected to the office at the general election in 1934, and assumed the duties thereof on January 7, 1935. The respondents, as constituting the county court, paid relator monthly out of the county treasury, for the first five months of 1935, compensation at the rate of $ 3000 a year, and paid nothing since. The relator claims a compensation at the rate of $ 5000 a year, payable in monthly installments, and seeks by this proceeding to compel payment of an accumulated arrearage of $ 2,183.31, remaining after the application of the payments mentioned above.

Relator's demand is asserted under Sections 11808, 11813, and 11820, Revised Statutes 1929. Relator also pleads that the Legislature has enacted a later law on the same subject (Laws 1933, p. 369), purporting to repeal those three sections and certain others, and to supplant them -- all but one (11813) -- with new sections; that in lieu of former Section 11808 a new section of the same number, but providing a different basis from that contained in the former section, for establishing the population of St. Louis County and the other counties for the purpose of ascertaining the compensation of county officers was enacted. Under the old section the population was established by multiplying the highest vote cast at the last previous general election by five; under the new, by taking the population as given in the last decennial census of the United States.

It is further pleaded that said Act of 1933, particularly as to Sections 11808 and 11786 thereof, is unconstitutional and void (1) because of being in violation of Article IX, Section 12 of the Constitution of the State, which provides that the General Assembly, by a law uniform in its operation, shall provide and regulate the fees of all county officers; and (2) because it violates Article IV of Section 28 of the Constitution which provides that no act shall contain more than one subject and the subject of the act shall be clearly expressed in the title thereto. As specifying the particulars of such violation of the organic law the charge in substance is:

Said act does not operate and regulate uniformly, because thereunder some of the circuit clerks of the State are compensated solely from the fees of their office, while others receive a fixed salary, and still others receive no compensation. It is stated that as a whole the law of 1933, did not repeal Sections 11808 and 11813, Revised Statutes 1929, and that relator is entitled thereunder to a $ 5000 salary as alleged above.

Issue was joined by general demurrer filed by respondents to the alternative writ, and the cause was briefed, argued and submitted on the issue so joined.

It was conceded in the oral argument that the population of St. Louis County as shown by the last decennial census of the government (the new basis) is 211,593 and on the vote basis 305,435; and that the only circuit clerk in the State who is not now receiving compensation for his services is relator. By counsel for respondents it was stated in oral argument, and not disputed by counsel for relator, that the respondents have at all times been, and still are ready and willing to pay the relator a salary of $ 3000 a year, in monthly installments of $ 250 each, out of the county treasury. It is unnecessary to state the specific theory on which respondents base such salary. It will suffice to say that it does not presuppose the unconstitutionality of the new act and rests on the assumption the new act fails to make any provision for compensating the relator, which is a conceded fact.

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