State ex rel. Vernon County v. King

• Decision Date: 15 December 1896
• Citation: 36 S.W. 681,136 Mo. 309
• Parties: The State ex rel. Vernon County, Appellant, v. King et al
• Court: Missouri Supreme Court

36 S.W. 681

136 Mo. 309

The State ex rel. Vernon County, Appellant, v. King et al

Supreme Court of Missouri, First Division

December 15, 1896

Judgment affirmed in 38 S.W. 80

Appeal from Bates Circuit Court.

Affirmed.

G. S Hoss and L. L. Scott for appellant.

(1) The defendant, King, was a trustee for the county of Vernon, the law authorizing him to collect the fees and requiring him to keep a strict and itemized account thereof; and having so collected and accounted he was authorized to retain the amount fixed by statute for his services. Constitution of the state of Missouri, sec. 13, art. 9; R. S. 1889, sec. 7450; Thornton v. Thomas, 65 Mo. 272. And unless he, as such trustee, keeps and makes this true, accurate, and faithful account of the fees by him collected he is entitled to no compensation whatever. Smith v. Crews, 2 Mo.App. 269. (2) Defendant was not entitled to make a claim for deputy hire paid out by him in the conduct of his office. (3) It is always incumbent upon a trustee to make a true and faithful accounting of his trust. He is required to keep accurate books of account showing every detail of his transaction with his principal. And being so required to keep such books of account, they should be produced; and unless he does produce them when called upon he can not be permitted to introduce secondary evidence to shield himself from the consequence of his negligence or wrongful acts. Wood's Practice Evidence, secs. 7, 8, pages 12 to 19. (4) The trial court should have rendered judgment for the amount found by the referee.

Cole & Burnett for respondents.

(1) The judgment should be affirmed because the petition does not state facts sufficient to constitute a cause of action. First. Because the petition does not charge that defendant King, owed Vernon county anything, after deducting from the fees received by him as recorder during the year 1890 the sum of $ 4,000 reserved to him by section 7450, Revised Statutes, 1889, and the further sum of "such amounts for deputies and assistants in his office as the county court deemed necessary." R. S. 1889, sec. 7450. Second. It does not charge that defendant, King, received fees in the year 1890 in excess of the fixed sum allowed him (not in excess of $ 10,000) exclusive of the salaries actually paid his necessary deputies. Const. Mo., art. 9, sec. 13. Third. It does not charge that defendant, King, received fees for the year 1890, exceeding the fixed compensation reserved to him as recorder, exclusive of the salaries actually paid his necessary deputies. R. S. 1889, sec. 5022. Fourth. The petition does not allege that the amount of fees earned or received by King for any year exceeded the sum of $ 4,000, and such sum as was necessary and actually paid out for clerk hire in the administration of his office. Their failure to plead these facts is not cured by the statement in the petition, that the court failed and refused to allow any clerk hire. State ex rel. v. Dent, 121 Mo. 165. (2) This suit is founded upon section 7450, Revised Statutes (Mo.), 1889. This section is unconstitutional and void under our present constitution: First. Because it is repugnant to, and inconsistent with, sections 12 and 13, article 9 of state constitution. Const., secs. 12, 13, art. 9; Railroad v. Co. Court, 39 Mo. 488; Webb v. Lafayette County, 67 Mo. 353. Second. It is an attempt to delegate to the county court power given by the constitution of 1875 (i. e., the power to fix compensation of the recorder, a public officer), to the legislature. State v. Field, 17 Mo. 529; Lammert v. Lidwell, 62 Mo. 194; Cooley's Constitutional Lim. [5 Ed.] 139. (3) Under the evidence, if said section 7450 is held constitutional and operative and said petition as stating a good cause of action, the finding must still be for the defendant, because defendant is chargeable only with the legal fees by him actually received. R. S. 1889, sec. 7450. (4) The county court, by its arbitrary action in refusing to allow any clerk hire, could not prevent its allowance to King. Washington County v. Jones, 45 Iowa 260; Bradley v. Jefferson County, 4 Iowa, 300. (5) In an action upon an official bond plaintiff must assign breaches, and as these are necessarily affirmative propositions, the plaintiff is bound to support them by adequate proof. Murfree on Official Bonds, sec. 591. Wilkerson v. Farnham, 82 Mo. 678. (6) No action arises from the act of collecting fees, but only from the wrongful withholding of the balance above $ 4,000 and clerk hire, hence it becomes necessary for the plaintiff to allege and prove the nonpayment of the surplus. Town v. Benedict, 4 N.W. (Wis.) 582. (7) Where nonpayment is alleged as a necessary and material fact to constitute a cause of action, payment may be proven under the general denial. Knapp v. Roche, 94 N.Y. 329; Hyde v. Hazel, 43 Mo.App. 668; 18 Am. and Eng. Ency. of Law, note 1, p. 255; Wilkerson v. Farnham, 82 Mo. 678; Hoffman v. Parry, 23 Mo.App. 29. (8) Where it is incumbent upon plaintiff, in submitting his evidence, to show the fact of nonpayment as part of his case, there payment may be shown as a general denial. Bliss on Code Pleading [1 Ed.], sec. 357. (9) A general denial is sufficient to put in issue all facts necessary to sustain the plaintiff's cause. Wilkerson v. Farnham, 82 Mo. 678. (10) The evidence was insufficient to apply the rule of odium spoliatoris. Destruction of account books does not raise an absolute presumption of any contents the adverse side may assign to them. Gray v. Haig, 19 En. 69; Bell v. Frankis, 20 Beav. 219; 4 M. & G. 446. And their nonproduction, after notice, merely entitled the opposite party to prove their contents by secondary evidence. 19 En. 69; 1 Greenl. Ev. 337; Cooper v. Gibbons, 3 Camp. 363; Hanson v. Eustace, 2 Hun (N. Y.), 653; Ins. Co. v. Ins. Co., 7 Wend. 31. In State v. Champlain, 89 Mo. 129, the presumption was of guilt of forgery of note from the destruction of the note, not of the contents of the note on mere oral allegation of the state.

Division One: Macfarlane, J. Brace, C. J., absent. Robinson, J., concurs. Barclay, J., dissents. In Banc: Brace, C. J. Gantt, Sherwood, Burgess, and Robinson, JJ., concurring with Macfarlane, J.

OPINION

In Banc.

Macfarlane J.

This is an action against defendant King, as ex-recorder of Vernon county, and the securities on his official bond, to recover fees received by him officially, during the year 1890, in excess of what he was authorized to retain in payment of his own salary.

The charge, in substance, is that during the year 1890 said defendant, as recorder, received fees amounting to $ 5,519, out of which he was entitled to retain, as compensation for his services, the sum of $ 4,000; and it was his duty to pay over the balance, $ 1,519, to plaintiff, which he neglected to do. Judgment was asked for said sum of $ 1,519 and interest.

Defendant's answer was a general denial, and two special pleas.

A change of venue was taken to Bates county. The case was referred to Thomas M. Casey, Esq., to take an account. The referee reported a balance due the county of $ 1,232.96 and recommended a judgment for that amount. Defendant filed exceptions to the report of the referee. Considering the report and exceptions together, the court was of the opinion that the finding should have been for defendant and judgment was entered accordingly. Plaintiff appealed.

The evidence shows that defendant King held the office of recorder of Vernon county for two terms, commencing January 1, 1883, and ending January 1, 1891. After his term of office had expired, two suits were commenced against him for excess of fees collected by him for the years 1889 and 1890. Indictments were also found against him. Pending these suits and indictments, this agreement was entered into between him and the attorneys who were prosecuting these suits:

"A. J. King has this day voluntarily and of his own motion come to the said parties of the second part, and stated that he desired to settle his account with and indebtedness to said county for fees due the county arising from the work done by said King during the eight years he acted as the recorder of said county; and said second party having consented, so far as they can, to settle the same, the following memorandum is agreed to as a basis of a settlement, to wit: That the said King and said attorneys will thoroughly investigate the books of the recorder's office, and all documents showing said King's indebtedness during said years. Accounts found to be due by them will be set down as the sum of his indebtedness, from which said attorneys agreed to subtract clerk's hire, and so forth. Said King agrees to leave the decision and determination of all matters between them absolutely to the said attorneys, and to abide by their decision. Said King agrees to begin and continue said investigation when called upon by said attorneys. The final sum found to be due by him to said county, or all fees received and earned by him while recorder, less such clerk hire as shall be allowed him, he agrees to pay to the county, together with costs of suits pending. When the amount due by said King under the terms of this agreement shall be found, the same shall be reported to the county court for its approval; and this agreement is made subject to the approval of the county court of said county."

Under the agreement, the attorneys made an investigation, and reported that King received, as fees of his office, for the year 1889 the sum of $ 6,515 and for the year 1890 the sum of $ 5,549, making an excess of $ 4,064 over the amount of $ 4,000 per year which was allowed him as salary, not including anything for clerk hire. For the years 1883 to 1888 inclusive, they found the excess of fees received...