State ex rel. Scobee v. Meriwether

• Citation: 200 S.W.2d 340,355 Mo. 1217
• Decision Date: 10 March 1947
• Docket Number: 40195
• Parties: State of Missouri at the Relation of Bernice Scobee, Relatrix, v. Roy B. Meriwether, as Judge of the Tenth Judicial Circuit
• Court: United States State Supreme Court of Missouri

200 S.W.2d 340

355 Mo. 1217

State of Missouri at the Relation of Bernice Scobee, Relatrix, v. Roy B. Meriwether, as Judge of the Tenth Judicial Circuit

No. 40195

Supreme Court of Missouri

March 10, 1947

Original Proceeding in Mandamus.

PEREMPTORY WRIT ISSUED.

Peremptory writ issued.

Roy G. Hamlin and Clark, Boggs, Peterson & Becker for relatrix.

(1) Mandamus is relator's only expeditious remedy. Sec. 13 Art. VII, Constitution of Missouri, 1945; State ex rel Knisely v. Holtcamp, 266 Mo. 347, 181 S.W. 1007; State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W.2d 105. (2) An official circuit court reporter is not a state officer within the purview of Section 13, Article VII, Constitution of Missouri, 1945, because: The prohibition in the Constitution applies only to those individuals delegated some part of the sovereign power. Sec. 13, Art. VII, Constitution of Missouri, 1945; Sec. 8, Art. XIV, Constitution of Missouri, 1875; State ex inf. McKittrick, Atty. Gen., v. Bode, 342 Mo. 162, 113 S.W.2d 805; Folk v. St. Louis, 250 Mo. 116, 157 S.W. 71; State ex rel. Walker, Atty. Gen., v. Bus, 135 Mo. 325, 36 S.W. 636, 33 L.R.A. 616. (3) An official court reporter discharges no sovereign function of the government. Secs. 13339, 13340, R.S. 1939; Daugherty v. Lanning-Harris Coal & Grain Co., 218 Mo.App. 187, 265 S.W. 866; State ex inf. McKittrick, Atty Gen., v. Bode, 342 Mo. 162, 113 S.W.2d 805; State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W.2d 105; 53 A.L.R. 602; 93 A.L.R. 337; 140 A.L.R. 1076; 140 A.L.R. l.c. 1081; State ex rel. Brown v. Blew, 145 P.2d 554. (4) The fact that the statute provides that the court reporter shall be a sworn officer of the court does not bring the court reporter under the purview of the constitutional prohibition. State ex inf. McKittrick, Atty Gen., v. Bode, 342 Mo. 162, 113 S.W.2d 805. (5) The decision in State v. Mitchell, (Mo.) 267 S.W. 873, is not authority for holding an official circuit court reporter is a state officer within the purview of the constitutional prohibition. State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W.2d 105; State ex inf. McKittrick, Atty Gen., v. Bode, 342 Mo. 162, 113 S.W.2d 805; State ex rel. Bates v. Remmers, 325 Mo. 1175, 30 S.W.2d 609.

J. E. Taylor, Attorney General, Richard F. Thompson, Assistant Attorney General, for respondent.

(1) The relator as official court reporter of the Tenth Judicial Circuit is a public officer. Mechem on Public Officers, sec. 1; State ex. rel. Truman v. Pickett, 333 Mo. 1018, 64 S.W.2d 105; State ex inf. McKittrick, Atty. Gen., v. Bode, 342 Mo. 162, 113 S.W.2d 805; Throop on Public Officers, sec. 2; State ex rel. Hull v. Gray, 91 Mo.App. 438; State ex rel. Adams v. Coon, 221 Mo.App. 987, 295 S.W. 821; Secs. 13339, 13340, 13345, 13348, R.S. 1939; State v. Mitchell, 267 S.W. 873; State ex rel. Rucker v. Hoffman, 294 S.W. 429; Vessels v. Kansas City L. & P. Co., 219 S.W. 80. (2) The relator as official court reporter of the Tenth Judicial Circuit is a state officer within the purview of Section 13, Article VII of the Constitution. Sec. 13, Art. VII, Constitution of Missouri, 1945; Sec. 8, Art. XIV, Constitution of Missouri, 1875; Folk v. City of St. Louis, 250 Mo. 116, 157 S.W. 71; State v. Mitchell, 267 S.W. 873; State ex rel. Truman v. Jost, 191 S.W. 38, 269 Mo. 248; Sec. 12, Art. VI, Constitution of Missouri, 1875; State ex rel. Goodnow v. Police Commissioners of Kansas City, 80 Mo.App. 206; Sec. 3, Art. V, Constitution of Missouri, 1945; Sec. 13340, R.S. 1939. (3) The relator as official court reporter of the Tenth Judicial Circuit is a county officer. Sec. 13, Art. VII, Constitution of Missouri, 1945; State ex rel. Geaslin v. Walker, 302 Mo. 116, 257 S.W. 470; State ex rel. Rucker v. Hoffman, 294 S.W. 429.

OPINION

Tipton, C.J.

This is an original proceeding in mandamus to compel respondent, as judge of the tenth judicial circuit of this state, to certify relatrix's salary as official court reporter of that circuit in the amount due her under House Bill No. 293 of the 63rd General Assembly which became effective July 1, 1946.

Relatrix is the duly appointed, qualified and acting court reporter for the tenth judicial circuit. She was appointed January 2, 1943, for a term expiring December 31, 1946. This circuit has a population of more than 45,000 and less than 60,000 inhabitants, and under Section 13341, R.S. Mo., 1939, relatrix's annual salary was $ 2,500.00 at the time of her appointment. The salary was payable in equal monthly installments out of the county treasuries on certificates of the judge of the circuit, to be paid by the counties comprising the circuit and in proportion as the population of each bears to the entire population of the circuit.

Section 13341, supra, was repealed by the 63rd General Assembly and in lieu thereof a new section of the same number was enacted which raised the salaries of court reporters. Under this new statute relatrix's salary is $ 3,100.00 a year; otherwise, the new section is substantially the same as the old section.

Respondent has refused to certify to the county treasurer of Marion County the salary based upon the salary provided by the new statute. He denies that relatrix is entitled to the increase for the sole reason that an increase in her salary during her term of office is prohibited by Section 13, Article VII of the 1945 Constitution of this state. That section reads:

"The compensation of state, county and municipal officers shall not be increased during the term of office; nor shall the term of any officer be extended."

The sole question for our determination is whether a court reporter is either a state or county officer.

"It is not possible to define the words 'public office or public officer.' The cases are determined from the particular facts, including a consideration of the intention and subject-matter of the enactment of the statute or the adoption of the constitutional provision." Sate ex inf. McKittrick, Attorney General, v. Bode, 342 Mo. 162, 113 S.W. 2d 805, l.c. 806.

"It was to prevent persons while possessed of the prestige and influence of official power from using that power for their own advantage that the framers of our organic law ordained that salaries of public officers should not be increased during the terms of the persons holding such offices." Folk v. City of St. Louis, 250 Mo. 116, l.c. 135, 157 S.W. 71.

"Numerous criteria, such as (1) the giving of a bond for the faithful performance of the service required, (2) definite duties imposed by law involving the exercise of some portion of the sovereign power, (3) continuing and permanent nature of the duties enjoined, and (4) right of successor to the powers, duties, and emoluments, have been resorted to in determining whether a person is an officer, although no single one is in every case conclusive. . . . Illustrative of what is meant by 'sovereignty of the state,' in the same opinion [State ex rel. Landis v. Board of Commissioners, 95 Ohio St. 157, 115 N.E. 919, 920] it is said: 'If specific statutory and independent duties are imposed upon an appointee in relation to the exercise of the police powers of the state, if the appointee is vested with independent power in the disposition of public property or with power to incur financial obligations upon the part of the county or state, if he is empowered to act in those multitudinous cases involving business or political dealings between individuals and the public, wherein the latter must necessarily act through an official agency, then such functions are a part of the sovereignty of the state.'" State ex rel. Pickett v. Truman, Judge, 333 Mo. 1018, 64 S.W. 2d 105, l.c. 106.

With the foregoing principles in mind, we now turn to the statutes relating to court reporters. Section 13339, R.S. Mo., 1939, provides for the appointment of a circuit court reporter by the circuit judge; specifies the reporter's qualifications, the term of his appointment, and that he shall be a sworn officer of the court; and provides for his removal for incompetency or any misconduct. Section 13340 defines the reporter's duties, and it reads:

"It shall be the duty of the official court reporter so appointed to attend the sessions of the court, under the direction of the judge thereof; to take full stenographic notes of the oral evidence offered in every cause tried in said court, together with all objections to the admissibility of testimony, the rulings of the court thereon, and all exceptions taken to such rulings; to preserve all official notes taken in said court for future use or reference, and to furnish to any person or persons a transcript of all or any part of said evidence or oral proceedings upon the payment to him of the fee hereinafter provided."

Sections 13341, 13342 and 13343 provide for salaries of the reporters in various circuits of the state. Section 13344 relates to fees, and Section 13345 specifies when the reporter is to furnish duplicate copies of transcripts.

The statutes of this state relating to court reporters do not invest them with any of the usual indicia of an officer. They do not require the giving of a bond. These statute do not delegate to them a portion of the sovereign power of government to be exercised for the...