State ex rel. St. Louis County v. Kelly, 50019

• Decision Date: 13 April 1964
• Docket Number: No. 1,No. 50019,50019,1
• Citation: 377 S.W.2d 328
• Parties: STATE of Missouri ex rel. ST. LOUIS COUNTY, Missouri, Respondent, v. Robert C. KELLY, Constable for the Third Constable District, St. Louis County, Missouri, Appellant
• Court: Missouri Supreme Court

Page 328

377 S.W.2d 328

STATE of Missouri ex rel. ST. LOUIS COUNTY, Missouri, Respondent, v. Robert C. KELLY, Constable for the Third Constable District, St. Louis County, Missouri, Appellant.

No. 50019.

Supreme Court of Missouri, Division No. 1,

April 13, 1964.

George E. Murray, Clayton, for appellant.

Norman C. Parker, St. Louis County Counselor, Joseph B. Moore, Asst. County Counselor, for respondent.

COIL, Commissioner.

In February 1958 the state at the relation of St. Louis County filed a petition for a writ of mandamus against Robert C. Kelly as the constable for the third constable district of St. Louis County. We shall sometimes herein refer to relator as 'county' and to respondent below as 'the constable.' The petition for the writ averred, inter alia, that certain county ordinances required the constable to pay into the county treasury money which had come into his possession and was in his bank accounts, and prayed that he be directed 'to forthwith deposit all monies which he presently has in his possession and which shall in the future come into his possession, according to and under the terms of' specified county ordinances (present sections 104.390, 303.010, and 303.020). An alternative writ of mandamus was issued, directing the constable to deposit the money in accordance with the prayer of the petition for the writ. The constable filed his return, to which was attached a copy of a letter from the Missouri Attorney General pertaining to the disposition of money in a constable's possession and a copy of the constable's bond executed pursuant to the requirements of Section 63.030. ¹ Further reference will be made to both those documents. After relator filed a reply to respondent's return, the parties filed an 'agreed stipulation of facts,' subject to the right of either to object to their relevancy or materiality, and the case was submitted in January 1962.

The facts so stipulated, in so far as necessary to a disposition of this case in the view we take of it, are here set forth.

Respondent was duly elected constable of the third magistrate constable district in St. Louis County, took office on January 1, 1947, and served continuously and was serving at the time of the stipulation. The magistrate for the third district had since 1947 required a litigant at the time of filing a case to deposit as security for court costs and constable fees an amount fixed by the magistrate. A part of that sum was transferred by the magistrate to the constable as security for constable fees which might be earned in accordance with the constable fee schedule set forth in Section 63.140. The constable kept a record of earned fees in accordance, we assume, with the schedule set forth in Section 63.140, and paid those earned fees monthly into the county treasury. The excess or unearned portion, if any, of the so-called cost deposit which had been received by the constable was retained by him and was thereby 'a credit in favor of the litigant or his attorney.' Upon request of any such depositor, the amount of such credit would be paid to him. We interpolate as the logical corollary, that in the absence of any such request the amount of such credit, would remain indefinitely in the constable's bank account in which he had deposited funds received by him as constable as well as his own private funds.

The stipulation included these sentences: 'That the funds referred to in the pleadings and now in controversy as money in respondent Constable's control, has varied in amounts from day to day and from time to time as deposits have been made and payments disbursed from said funds in accordance with the practice of the respondent. That said balance, if any, would be adjusted as the date of filing of judgment herein, if a judgment would be rendered in favor of the relator and against the respondent; provided further that if judgment should be rendered in favor of the relator and against the respondent the court's order shall provide for and direct the respondent to make and present a complete and proper accounting to relator and to make payment to relator in accordance therewith and it is understood and agreed that respondent will make and present such accounting to relator and make such payment.'

It was further stipulated that the constable had executed and deposited with the county his official bond, a true copy of which was, as aforenoted, attached to respondent's return.

The relator objected to certain facts contained in the stipulation which pertained to money in the hands of the constable other than the 'earned fees' heretofore described on the ground that they were 'not at issue in this case.'

The trial court found the ordinances, hereinafter referred to, to be valid and constitutional and in the exercise of what it termed 'extraordinary injunctive relief' and in the exercise of its power as a court of equity, ordered the constable to 'deposit all funds now in his possession over to the Treasurer of St. Louis County, together with any interest accumulated thereon, if any, * * *' and to provide a complete and proper accounting of such funds in his possession, reserving to the court the right to order a complete audit of the constable's books and accounts.

The constables in St. Louis County, including the respondent, are paid a monthly salary and transportation allowance and there is no provision for them to receive any additional amounts. There was and, so far as we are aware, there is no provision in the law requiring or authorizing a 'cost deposit to secure the payment of constable fees.'

The ordinance requirements relied upon by relator are portions of the following sections of the St. Louis County Ordinances then in effect: Sections 104.390, 303.010, and 303.020. Relator says that the pertinent provisions of those three sections are:

'Sec. 104.390 * * * All fees, costs and any other monies received or collected by any elective official of St. Louis County shall be paid by him into the County Treasury at least once each month * * *.'

'Sec. 303.010 * * * Any officer, employee, or agent of St. Louis County who shall receive any moneys belonging to the County, or any moneys not belonging to the County, which may be obtained by him by virtue of, or under color of such office or employment, which are to be held, paid out, or transmitted by the County or any officer, employee, or agent thereof, shall promptly deposit all such moneys in the County Treasury; * * *. The County Treasurer shall deliver duplicate receipts for all such moneys received, one to the officer, employee, or agent making the deposit, and the other to the County Auditor. Each such deposit shall be entered on the books of the County Auditor, showing the source, the amount and the fund or account to which credited. Any such monies not belonging to the County shall be placed in a special fund or account, distinct and apart from any moneys belonging to the County * * *.'

'Sec. 303.020 * * * The County Treasurer shall pay out such moneys not belonging to the County held in any special fund or account for disbursement or transmittal by the County or any officer, employee, or agent thereof, on warrants approved and signed by the County Auditor and the County Supervisor and not otherwise. The County Auditor and the County Supervisor shall approve the disbursement of such moneys not belonging to the County only as provided by the laws, ordinances, rules, regulations or agreements pertaining to said moneys * * *.'

It has been made clear by the portion of the stipulation of facts heretofore quoted, by the objection of relator to the materiality and relevancy of certain of the stipulated facts, and by the position of relator in this court that the money which the county wants paid into its treasury in this case is only the amount of so-called 'unearned fees' which is or should be in the hands of the constable. The stipulation of facts, however, included the statements that the constable, in addition to the advance deposit for costs heretofore described, received in the course of his official duties sums of money as a result of executions, levies, garnishments, and other processes of the court which in due course are paid by the respondent constable to respective parties litigant, and that he received also sums of money advanced by litigants to cover constable expenses incurred on behalf of litigants, such as trucking charges, moving expenses, storage expenses, etc.

Appellant points out that the prayer of the petition and the alternative writ sought and issued directed the constable 'to forthwith deposit all monies which he presently has in his possession and which shall in the future come into his possession, according to and under the terms of' county ordinance sections 104.390 and 303.010. (Our italics.) It is also true that county ordinance section 104.390 refers to 'fees, costs and any other monies received or collected by any elective official' and that section 303.010 refers to 'any moneys belonging to the County, or any moneys not belonging to the County' which are obtained by any county officer by virtue or color of his office or employment. Appellant argues as a result of the facts noted above that while the county may wish on this appeal to talk about and deal with only so-called 'excess cost deposits or unearned constable fees,' the petition for the writ of mandamus, the ordinances set forth therein, the alternative writ, and the trial court's final judgment referred to and gave directions concerning 'all monies' or (in the case of the judgment) 'all funds,' and that none of those documents even purported to refer only to so-called unearned constable fees; thus, says appellant, the alternative writ and the judgment include and cover money in the hands of or to come into the hands of the constable which clearly, in accordance with the law, should not be, in any event, deposited in the county treasury and money which relator tacitly...