State ex rel. Walther v. Johnson

• Citation: 173 S.W.2d 411,351 Mo. 293
• Decision Date: 03 June 1943
• Docket Number: 38419
• Parties: State of Missouri at the Relation of B. F. Walther, Relator, v. Louis G. Johnson, Raymond Labrot, and Charles Lenz, as Judges of the County Court within and for St. Francois County
• Court: Missouri Supreme Court

173 S.W.2d 411

351 Mo. 293

State of Missouri at the Relation of B. F. Walther, Relator, v. Louis G. Johnson, Raymond Labrot, and Charles Lenz, as Judges of the County Court within and for St. Francois County

No. 38419

Supreme Court of Missouri

June 3, 1943

Rehearing Denied July 6, 1943.

Alternative writ made absolute.

J.O Swink and Matthes & Weier for relator.

(1) This court has the authority to entertain original proceedings in mandamus as in this cause, since the Constitution expressly provides that it shall have this power. Sec. 3, Art. VI, Constitution of Mo.; State ex rel. v. Trimble, 10 S.W.2d 519. (2) Mandamus is the appropriate and proper remedy to compel restoration of one to a public office, who has been wrongfully deprived thereof and inasmuch as respondents wrongfully and arbitrarily ousted relator from the office of county highway engineer, he was entitled to the alternative writ of mandamus. State ex rel. Guion v. Miles, 210 Mo. 127; 4 Houts Mo. Pleading & Practice, sec. 1126, p. 340; State ex rel. Stomp v. Kansas City, 281 S.W. 426; State ex rel. Case v. Wilson, 132 S.W. 625. (3) The rule is well established in this State that mandamus is proper remedy to compel payment of a salary to an officer in a case where payment has been refused, and since respondents are refusing to pay relator his salary, the alternative writ was properly issued, and it should be made permanent in this respect. State ex rel. Koehler v. Bulger, 233 S.W. 486; State ex rel. Sunderwirth v. Harper, 30 S.W.2d 1039. (4) County courts possess only limited jurisdiction, and outside management of fiscal affairs of county, such courts possess no power except those conferred by statute. The statute does not vest county court with power to appoint highway engineer, but expressly provides that in a county of the size of St. Francois County, the county surveyor shall be ex-officio county highway engineer. State ex rel. v. Corneli, 152 S.W.2d 83. (5) The portion of the statute in question, Section 8660, R. S. 1939, enacted in 1939, providing for method of creating office of county highway engineer in counties of more than twenty thousand and less than fifty thousand inhabitants does not contravene Art. VI, Sec. 36 of the Constitution of Missouri. This court has clearly ruled that a similar provision in same section relating to creating of office of highway engineer in counties having more than fifty thousand inhabitants is not unconstitutional. State ex inf. Barker, Atty. Gen., v. Southern, 177 S.W. 640. (6) An elected county official can be removed because of non-performance of his duties only by pursuing the method provided by the statute, under which the official is entitled to a hearing and trial by jury. The order made by respondents, whereby they attempted to remove relator for alleged non-performance of his official duties as highway engineer was without any precedent or authority and clearly null and void. Art. 3, Chap. 83, R. S. 1939; State v. Wilson, 166 S.W.2d 499.

W. E. Coffer, Prosecuting Attorney, and C. I. Hoy, Assistant Prosecuting Attorney, for respondents.

(1) The county court, exercising its constitutional jurisdiction to transact "all County Business," possessed the power and, if its discretion so determined, the duty to discontinue and remove relator from the office of Highway Engineer of St. Francois County and to cease paying his salary as such. Sec. 36, Art. VI, Mo. Constitution; Sec. 8658, R. S. 1939; Buckner v. McElroy, 309 Mo. 595; 15 C. J. 420, sec. 52, note 6; 15 C. J. 456, sec. 102, notes 55, 56, also sec. 104, sec. 124; State ex rel. v. West, 272 Mo. 304; State ex rel. v. Kansas City, 319 Mo. 705; State ex rel. v. Kirkwood, 345 Mo. 1089; State ex rel. v. Morehead, 256 Mo. 683. (2) The court transgressed no rule requiring a hearing or trial, as none is required to remove a county highway engineer, and its judgment on the merits imports verity. Sec. 8658, supra; McKenzie v. Donnell, 151 Mo. 431; State v. Shelton 314 Mo. 333. (3) Its action was the exercise of judicial powers, and not ministerial, and is not the subject of mandamus. State ex rel. v. Thornhill, 174 Mo.App. 469; State ex rel. v. Noel, 346 Mo. 286; State ex rel. v. Dickey, 280 Mo. 536; State ex rel. Gallagher v. Kansas City, 319 Mo. 705; State v. Medley, 28 S.W.2d 1040. (4) The last proviso of Section 8660, R. S. 1939, is unconstitutional, and not binding on a county court, because it makes it mandatory on the County Court of St. Francois County, to hire, keep, and pay the county surveyor, as the county highway engineer, and destroy its right to exercise its discretion under the Constitution to transact "all County Business," and determine the fitness of a highway engineer, or refrain from having one at all, as the general welfare of the county might determine. Sec. 36, Art. 6, Constitution, supra; Hollowell v. Schuyler County, 18 S.W.2d 498, 322 Mo. 1230; Sec. 53, sub-secs. 2, 33, Art. IV, Mo. Const.; State v. Anslinger, 171 Mo. 600; Henderson v. Koenig, 168 Mo. 356; State ex rel. v. Southern, 265 Mo. 275; State ex rel. v. Messerly, 198 Mo. 351; State ex rel. v. Roach, 258 Mo. 541; City of Springfield v. Smith, 322 Mo. 1129. (5) The General Assembly of Missouri has no power to destroy or reduce the "Constitutional Jurisdiction" of the county court. Bash v. Truman, 335 Mo. 1077; Hollowell v. Schuyler County, 322 Mo. 1230. (6) The jurisdiction of the county courts is fixed by the Constitution and the Legislature is without power to limit the powers thus conferred. Buckner v. McElroy, 309 Mo. 595, 274 S.W. 749; Rinehart v. Howell County, 153 S.W.2d 381. (7) The actions of the county court of a county in removing a member of the highway board is reviewable on certiorari, where there is no statutory right of appeal, or writ of error. State ex rel. Flowers v. Morehead, 256 Mo. 683. (8) Said proviso conflicts with and is much broader than the Section of which it is a proviso. Section 8660, R. S. 1939 says: "The County Court of the several Counties in this State may, in their discretion, appoint the County Surveyor." The proviso says (for St. Francois County) "the County Surveyor shall be ex-officio County Highway Engineer." There is a conflict in saying you may if you like, and saying you must. 12 C. J., p. 1143, sec. 878, p. 1149, notes 19, 20, p. 1196, sec. 961; State ex rel. v. Southern, 177 S.W. 640. (9) Mandamus cannot perform the office of certiorari. State ex rel. v. Morehead, supra; State ex rel. v. Kansas City, supra.

OPINION

Clark, J.

Relator filed his petition in this court praying for a writ of mandamus to compel respondents, as judges of the county court of St. Francois County, to reinstate relator to the office of county highway engineer, and to pay him a salary at the rate of $ 125.00 per month from and after January 1, 1943. Our alternative writ was issued, respondents made return, and relator filed motion for judgment on the pleadings.

From the allegations and admissions of the return, the material facts are as follows: At the general election in November, 1940, relator was elected to the office of county surveyor of said county and duly qualified and assumed said office on January 1, 1941; at all times herein St. Francois county had and has a population of more than 20,000 and less than 50,000 inhabitants; the last proviso of Section 8660, Revised Statutes Missouri 1939 [Mo. R. S. A., vol. 19, p. 188] provides that in counties with such population the county surveyor shall be ex officio county highway engineer and as such be paid a salary of not less than $ 1200.00 nor more than $ 2,000.00 per annum; relator acted as county highway engineer and, as such, received a salary of $ 125.00 per month from January 1, 1941, to January, 1943; respondents were duly elected as judges of the county court at the general election in 1942 and assumed office on or about January 1, 1943; on January 4, 1943, respondents, acting as a county court, made an order reciting that the last proviso to said Section 8660 is unconstitutional and void; that relator has failed, neglected and refused to perform his duties as county highway engineer, in certain specified particulars, and ordering him discharged from that office; since the last mentioned date respondents have refused to permit relator to perform the duties of such office and have refused to pay him any salary as county highway engineer; relator was represented by counsel who made an argument and filed a brief in said county court in opposition to the making of such order.

Although the parties, in their briefs, have divided their points into a number of sections and subsections, the discussion for the most part revolves around but two main legal questions, to wit: (1) is the last proviso to section 8660 unconstitutional? (2) is mandamus a proper remedy in this kind of case?

The following sections of our statutes relate to the office of county highway engineer; Sections 8655 to 8672, both inclusive, Revised Statutes Missouri 1939. [Mo. R. S. A., vol. 19, pp. 185 to 195.] Section 8655 creates the office and authorizes the county court to appoint the officer and fix the term and compensation. Section 8658 prescribes the qualifications of the officer and authorizes the county court to remove him for dereliction of duty. The sections just mentioned and other sections not material here are broad enough to apply to every county in the state. Section 8660 is a long one containing provisions relating to the office generally, and with several provisos referring to the office in counties of specified classes. The last proviso, and the one material to the instant case, was enacted in 1939 and reads as follows:

"Provided further, after January 1, 1941, that in all counties in the state which contain, or which may...