State ex rel. Stipp v. Cornish

• Citation: 24 S.W.2d 667,223 Mo.App. 978
• Parties: STATE EX REL. STIPP v. CORNISH ET AL., JUDGES. [*]
• Decision Date: 17 February 1930
• Court: Missouri Court of Appeals

24 S.W.2d 667

223 Mo.App. 978

STATE EX REL. STIPP v. CORNISH ET AL., JUDGES. ^[*]

Court of Appeals of Missouri, Springfield

February 17, 1930

Appeal from the Circuit Court of Newton County.--Hon. Charles L Henson, Judge.

AFFIRMED.

Judgment affirmed.

Thos M. Saxton for relator.

It is the duty of the county court after each presidential election to canvass the whole number of votes cast for president and determine the population of the county by multiplying the total number of votes cast by five. King v. Texas County, 146 Mo. 64; State v. Hamilton, 260 S.W 468. A county official is not estopped from collecting the salary actually due him by having accepted a lesser amount from the county. State v. Hamilton, 260 S.W. 470.

Justin Ruark for respondents.

The right of mandamus, being an extraordinary remedy, cannot be used to compel a county court to pay a claim where there is an adequate remedy at law. State ex rel. Forgrave v. Hill, 198 S.W. 844; State ex rel. Mitchell v. Rose, 281 S.W. 396. The debt against the county should first be reduced to judgment before mandamus will lie. State ex rel. Hutton v. Scott County, 197 S.W. 347; State ex rel. Carroll v. Cape Girardeau County, 109 Mo. 248; Mansfield v. Fuller, 50 Mo. 338. The act of the county court in allowing accounts is discretionary and not ministerial; hence mandamus is not the proper remedy. State ex rel. Forgrave v. Hill, 198 S.W. 844; State ex rel. Mitchell v. Rose, 281 S.W. 396.

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

This is a proceeding in mandamus in which respondents had judgment in the circuit court and the relator has appealed. The appeal was taken to the Supreme Court of this State but the case was transferred here by the Supreme Court. The relator was the duly elected, qualified, and acting county clerk of Newton county, and served for the years 1919, 1920, 1921, and 1922. He claims that the county court should issue him a warrant for $ 1000, $ 500 for each of the years 1921 and 1922. He bases his contention upon the fact that the population of 1921 and 1922, determined by the vote at the presidential election in 1920, justified the increase of salary for $ 500 per year over the amount of salary due him for the two years previous, upon the theory that the vote at the general election in 1920 showed that the population was greater than that showed by the previous election, and because of the increase of population as so determined, or as it should have been determined by the county court, he was entitled to the increase of salary. In his petition for an alternative writ of mandamus he alleged the fact as above stated and alleged that at the presidential election held in November, 1920, there were cast at said election for the different presidential candidates in Newton county 9921 votes, and that by multiplying said number of votes so cast at said election by five, as provided by the statutes, that Newton county on the first day of January, 1921, had an estimated population of 49,605, and that by the provisions of the law according to section 11019, Revised Statutes Missouri 1919, the clerks of all such counties were allowed to retain as salary for their services as such county clerks the sum of $ 2500 per annum.

He alleged that it was the duty of the judges of the county court of Newton county, after the election in the year 1920 to determine the population of said county by multiplying the said number of votes cast for the presidential candidates in that county by five, and alleged that the judges of the county court failed to determine the population as provided by the statutes and failed to adjust his salary as the clerk of the county court in accordance with the increase of the population of that county as determined by the vote so cast, and continued during the years 1921 and 1922 to issue to the relator as a salary for services as said clerk, warrants issued monthly drawn on the county treasurer, at the rate of $ 2000 per annum. And alleged that during the years 1921 and 1922 he as the clerk of said county paid into the county treasury of Newton county fees in excess of the warrants issued to him as his salary, the sum of $ 1273.23. Of this amount $ 168.42 was collected for the year 1921 and $ 1104.81 was collected for the year 1922.

The relator further alleged that he was not versed and familiar with the law and method of determining the population of the several counties in the State and adjusting the salaries of the different clerks with the increase or decrease of the population of the counties, and especially of Newton county, and depended wholly upon the acts, judgments, and decisions of the county court, and that on the---day of December, 1924, he filed with the clerk of the county court of Newton county a statement of the amount due him as his salary in the years 1921 and 1922, and asked that the judges of the said court issue a warrant drawn on the county treasurer of that county in favor of him in the sum of $ 1000 being the amount due him as unpaid salary for the years 1921 and 1922, and that the county court refused to issue said warrant, and closed with a prayer that the circuit court issue against the judges of the county court of Newton county a writ of mandamus, commanding and requiring them to issue a warrant in the sum of $ 1000 and interest from the first day of January, 1923.

In compliance with said petition the circuit court of Newton county issued its alternative writ of mandamus directing that the members of said county court issue a warrant for said amount prayed, or show cause, if any had, why said warrant should not be issued.

The members of the county court appeared and filed a motion to quash the writ of mandamus for the following reasons:

"First--The said writ was improvidently issued;

"Second--Such writ is not returnable to any certain day;

"Third--The alternative writ does not contain a copy of the petition;

"Fourth--The writ does not state facts sufficient to entitle the relator to the relief prayed for nor to any relief;

"Fifth--Mandamus cannot be obtained to secure payment of a disputed claim that has not been reduced to judgment;

"Sixth--Mandamus cannot be obtained to secure the performance by the county court of a non-ministerial act;

"Seventh--That if relator has any rights at all his proper remedy is at law where he has full and adequate relief;

"Eighth--Upon the pleaded facts the relator is not entitled to any relief whatever."

This motion to quash was by the court overruled and the respondent filed an answer, which answer we deem unnecessary to set out here. The evidence submitted was upon a stipulation of facts submitted and agreed to, by and between the relator and the respondents, which said stipulation of facts shows that the relator was the county clerk of Newton county for the years 1919, 1920, 1921, and 1922; that the relator has received full pay for services for the years 1919 and 1920; that for the year 1921 the relator did receive in money paid into his office the sum of $ 146.42 in excess of what was paid to him as salary and to his deputies as deputy and clerk hire, and that during the year 1921 the relator made four quarterly...