State ex rel. Sunderwirth v. Harper

• Decision Date: 26 May 1930
• Docket Number: No. 16899.,16899.
• Citation: 30 S.W.2d 1039
• Parties: STATE EX REL. W.W. SUNDERWIRTH, RESPONDENT, v. E.C. HARPER ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

30 S.W.2d 1039

STATE EX REL. W.W. SUNDERWIRTH, RESPONDENT, v. E.C. HARPER ET AL., APPELLANTS.

No. 16899.

Kansas City Court of Appeals. Missouri.

May 26, 1930.

Appeal from Circuit Court of Bates County. — Hon. W.L.P. Burney, Judge.

AFFIRMED.

DeArmond & Maxey for appellants.

D.C. Chastain and J.R. Hales for respondent.

BOYER, C.

Proceeding in mandamus. The case is here on appeal from the judgment of the circuit court of Bates County wherein a peremptory writ was issued to the judges of the county court directing them to issue warrants to pay relator the salary claimed by him as prosecuting attorney of said county.

The petition was filed May 29, 1929, and in effect alleges that respondents below (Harper et al.) are the duly elected, qualified, and acting justices of the county court of Bates County; that relator was on November 6, 1928, elected prosecuting attorney of said county; that he was duly commissioned and qualified as such and on January 1, 1929, entered upon the duties of said office and performed same until the date of filing the petition, and is still faithfully continuing to discharge the duties of said office. The petition refers to section 734 and section 11016, Revised Statutes 1919, and the bearing of same on the question and method of determining the salary of the prosecuting attorney; and further states that the highest number of votes cast at the last presidential election held in Bates County was 10,022, which number multiplied by five determines a population of 50,110 for Bates County, and that on this basis the statutes of the State fix the salary of the prosecuting attorney of said county at $5000 per year. It is further alleged that on the first days of February, March, April, and May 1929, relator duly presented to the county court a statement of account for his services for the months of January, February, March, and April respectively, in the sum of $416.66, the same being the amount due him as prosecuting attorney of said county for each of said months; that he demanded that said county court audit and allow said respective amounts and issue warrants therefor, which said court refused and still refuses to do; that the total amount due for said months is the sum of $1666.66, less the sum of $833.33 heretofore paid; that $833.33 remains due and unpaid, and that said county court has failed and still fails and refuses to allow same and to issue warrants therefor; and that petitioner has no other adequate remedy than mandamus and prays the issuance of such a writ against said judges commanding that they forthwith audit and allow his demands and issue warrants for same, or show cause why they have not done so.

An alternative writ was granted and respondent judges duly filed return in which it is admitted that they are the judges of said county court as alleged, and that relator is now and has been since January 1, 1929, the duly elected, qualified, and acting prosecuting attorney of said county. It is further alleged in the return, in effect, that under the proper construction of the law applicable the salary of the prosecuting attorney is limited to the sum of $2500 per annum; that he has been paid all that is due him upon that basis; that under the method provided by law for determining the population in order to fix the salary, Bates County did not have a population in excess of 50,000, and that the whole number of votes cast at the last presidential election was not 10,022; that relator presented to respondents for the months of January, February, March, and April, 1929, his claims and accounts for salary in the amount of $416.66 per month for each of said months, and that said accounts were duly examined by respondents as the county court of Bates County and were by said court found excessive and incorrect; that said court found that relator was entitled to a salary of $2500 per annum, and that warrants were issued and delivered to relator for the sum of $208.33 for each month and that said amount was all that relator was entitled to receive; respondents deny that they have failed to perform any duty enjoined upon them by law and allege that relator has a complete and adequate remedy at law. The return, answer to return, and the reply to the answer contain extended statements in reference to matters of law. They are argumentative and in the nature of briefs to support the contention of the respective parties that the salary of the prosecuting attorney is fixed either at $5000 or at $2500 as claimed by relator and respondents. We do not deem it necessary to make further reference to them.

At the hearing of the cause relator testified, in addition to other facts, that he had submitted to the office of the attorney-general of the State a request for an opinion and received an opinion from the attorney-general's office upon the subject of his salary, which opinion was furnished respondents; and which said opinion, being in the form of a letter to relator signed by an assistant attorney-general and approved by the attorney-general, was offered and received in evidence over the objection of respondents. The letter stated that at the November 1928 election candidates for governor, lieutenant governor, secretary of state, and prosecuting attorney received a total vote in excess of 10,000, and gave the total vote for all candidates for the respective offices, and advised that in the opinion of "this department" the annual salary of relator was $5000. It was agreed that relator presented his claim to the county court for $416.66 for each month's service as prosecuting attorney and that the county court allowed his claims in the sum of $208.33 for each month, which amount was paid to and received by relator. It is agreed that the whole number of votes cast in Bates County at the November 1928 election for candidates for some state officers was in excess of 10,000, and that the whole vote cast for presidential electors was less than 10,000.

Respondent offered in evidence the following record entry of the county court of Bates County dated February 1, 1929.

"Now on this day comes W.W. Sunderwirth, prosecuting attorney, and presents to the court a bill for $415.15 per month for his salary, which is at the rate of $5000 per year.

"The court refuses to pay the same and ordered that a warrant be drawn for $208.33, the same as the salary of the prosecuting attorney has been."

Relator testified that he did not know that the county court had examined his claims, and that he was not present when his claim was examined and discussed. Upon the evidence and the pleadings the court granted the peremptory writ.

OPINION.

Appellants contend first that mandamus does not lie because relator had an adequate remedy by way of appeal from the order of the county court denying his claim and fixing the amount due; that the determination of this amount was a judicial act on the part of the county court which cannot be controlled by mandamus; that the county court discharged its ministerial duty and acted judicially in ascertaining the amount due relator, and that it cannot be compelled to change its judgment by mandamus. Numerous cases are cited which sustain the general proposition that mandamus will not lie unless relator has a clear right and no other specific legal remedy; that the writ is used to compel the performance of ministerial acts, or is addressed to subordinate judicial tribunals requiring them to proceed to exercise their functions and give judgments in cases before them; that it will not lie to compel inferior tribunals to give a particular judgment; and that when a subordinate tribunal acts judicially, it may be compelled to proceed, but it will be left to decide and act according to its best judgment, and in such case the party aggrieved has a remedy either by appeal or writ of error; that the writ will issue to coerce action, but not to regulate or control discretion reposed by law in an official while acting. It may be conceded that such is the law, but it does not follow that mandamus is an improper remedy in this case. The case of State ex rel. v. County Court of Jackson County, 17 S.W. (2d) 572, is distinguishable on the facts from the one now under consideration. There was a question of fact in that case which the county court had a right to investigate and pass upon, and which was relevant and material in fixing the amount of debt, if any, which might be due. That case and others cited by appellant are not persuasive, decisive or controlling in the instant case.

The Supreme Court has in like cases and in many instances assumed jurisdiction and passed upon questions similar to the one involved in this appeal in determining the amount of salary due a prosecuting attorney, circuit clerk, highway engineer, and others, some of which cases are the following: State ex rel. v. Bockelman, 240 S.W. 209; State ex rel. v. Grinstead, 314 Mo. 55, 282 S.W. 715; State ex rel. Lamm v. McCurdy, 282 S.W. 722; State ex rel. James v. McCurdy, 282 S.W. 724; State ex rel. Rucker v. McCurdy, 282 S.W. 724; State ex rel. Hulen v. Johnson, 282 S.W. 724; State ex rel. Sperry v. Beaty, 282 S.W. 725; State ex rel. Hart v. Ludden, 285 S.W. 421; State ex rel. Summers v. Hamilton, 312 Mo. 157, 279 S.W. 33; State ex rel. Koehler v. Bulger, 289 Mo. 441, 233 S.W. 489. In all of the foregoing cases the question of the amount of salary due a public officer under the statutes of the State and whether the county court should be required to pay same was determined by an action in mandamus. We...