State v. Bailey

• Citation: 272 S.W. 921
• Decision Date: 30 April 1925
• Docket Number: No. 24241.,24241.
• Parties: STATE ex rel. McCAFFREY v. BAILEY et al., County Judges.
• Court: United States State Supreme Court of Missouri

272 S.W. 921

STATE ex rel. McCAFFREY v. BAILEY et al., County Judges.

No. 24241.

Supreme Court of Missouri, en, Banc.

April 30, 1925.

Motion for Rehearing Overruled May 23, 1925.

Appeal from Circuit Court, Nodaway County; John M. Dawson, Judge.

Proceeding by the State, on the relation of Charles McCaffrey, against E. T. Bailey and others as Judges of the County Court. From a judgment for relator, defendants appeal. Affirmed.

A. F. Harvey, of Maryville, for appellants. Ellis G. Cook, Cook & Cummins, and E. E. Williams, all of Maryville, and John T. Barker, of Kansas City, for respondent.

M. J. Lilly, A. R. Hammett, and Redick O'Bryan, all of Moberly, and Waldo Edwards, of Macon, amid. curiæ.

RAGLAND, J.

At the general election held November 2, 1920, relator was elected prosecuting attorney of Nodaway county, and thereafter served as such for the term of two years beginning January 1, 1921. At the time of his induction into office, the salaries of prosecuting attorneys were provided for and regulated by section 734, R. S. 1919. Subsequently, and at the session of 1921, the Legislature passed an act which purported to expressly repeal section 734 and enact a new section in lieu thereof. Laws 1921, p. 574. Under section 734 the salary of the prosecuting attorney of Nodaway county was $5,000 a year; the act of 1921, if valid, operated to reduce it to $2,000 on and after June 21, 1921. Relator contends, however, that the act was void, and consequently that he was entitled, during the whole of his term, to the salary provided for by section 734. The constitutionality of the repealing act is therefore the sole subject of this controversy.

As a matter of fact the constitutionality of the act of 1921 has already been passed upon by this court. While it was not expressly declared to be void in State v. Bockelman (Mo. Sup.) 240 S. W. 209, such holding was a necessary implication of the ruling therein made. We certainly would not have permitted counsel to stipulate that the act was without influence in the decision of that case, if we had not agreed with them that it was a nullity. In deference to the Legislature, however, we should have set forth explicitly that we found the statute unconstitutional together with the reasons which impelled us to that conclusion. That duty we will endeavor to discharge now.

The new section intended by the act of 1921 to replace section 734, It. S. 1919, is as follows:

"The prosecuting attorney shall receive for Ids services per annum, to be paid out of the county treasury, in all counties now having or which may hereafter contain a population of less than ten thousand inhabitants, the sum of. $1,000; in all counties now having or which may hereafter have a population of ten thousand and less than twelve thousand, the sum of $1,100; in all counties now having or which may hereafter have a population of twelve thousand and less than fifteen thousand, the sum of $1,200; in all counties now having or which may hereafter have a population of fifteen thousand and less than twenty thousand, the sum of $1,500; in all counties now having or which may hereafter have a population of twenty thousand and less than twenty-five thousand, the sum of $1,800; in all counties now having or which may hereafter have a population of twenty-five thousand and less than thirty thousand, the sum of $2,000; in all counties now having or which may hereafter have a population of thirty thousand and less than fifty thousand, the sum of $2,500; in all counties now having or which may hereafter have a population of fifty thousand and less than seventy thousand, the sum of $4,000; in all counties now having or which may hereafter have a population of...