State v. Bockelman

• Citation: 240 S.W. 209
• Decision Date: 06 April 1922
• Docket Number: No. 23053.,23053.
• Parties: STATE ax rel. BRUNJES v. BOCKELMAN, Presiding Judge, et al.
• Court: Missouri Supreme Court

240 S.W. 209

STATE ax rel. BRUNJES v. BOCKELMAN, Presiding Judge, et al.

No. 23053.

Supreme Court of Missouri, in Banc.

April 6, 1922.

Original action in mandamus by the State, on the relation of Richard D. Brunjes, against Peter H. Bockelman, as Presiding Judge, and the Associate Judges, of the County Court of Benton County, Mo. Alternative writ made absolute.

Richard D. Brunjes, in pro. per.

Henry P. Lay, of Warsaw, for respondents.

William T. Bellamy, Pros. Atty., of Marshall, Terrence Riley, of Weston, G. R. Chamberlin, of Flarrisonville, Rufus L. Higginbotham, of Bowling Green, James A. Bradley, of Kennett, Charles F. Boyd, of Ozark, D. M. Stout, of New London, John H. Roney, of Independence, and Emory E. Smith, of Cassville, amid curiæ.

GRAVES, J.

Original action in mandamus. Relator is the prosecuting attorney of Benton county. He was elected to the present term at the November election in 1920, and took office January 1, 1921. Relator filed his petition here asking our alternative writ of mandamus, which was granted, and service thereof duly had upon respondents, who are the members of and constitute the county court of Benton county, Mo. Respondents filed motion to quash the alternative writ, which by reference and an attached copy included the petition upon which it was issued.

The issues were thus made up in the case. Many prosecuting attorneys in the state were similarly situated, and they were permitted, as friends of the court, to file a brief herein, which they jointly did. The real purpose of the action is to determine, if we earl, just what salary should be paid to prosecuting attorneys in a stated class of counties in the state. The theory of the respondents is best set forth in a short statement of the case made by their counsel, thus:

"Relator was duly elected prosecuting attorney of Benton county at the election of 1920, assumed that office January 1, 1921, and since has been and now is the duly elected and acting prosecuting attorney of said county. Respondents, at all times hereinafter mentioned, compose the county court of said county.

"The relator decided that a proper construction of section 734, Revised Statutes of 1919 (Laws 1919, p. 672), entitled him to a salary of $1,800 per annum, and on this theory the county court paid a salary for January, February, and March, 1921, at that rate, being $150 per month; thereafter, after more mature deliberation, the court decided that he was not entitled to salary in that amount, and tendered him warrants at the rate of $1,200 per annum, which he refused to accept.

"Whereupon relator presents his petition to this court, seeking by mandamus, to compel the county court to issue to him warrants for his salary at the rate of $1,800 per annum. Upon this petition an alternative writ of mandamus was issued, which the respondents have moved to quash. As the petition, alternative writ, and motion to quash are copied in relator's abstracts, it is not thought necessary to set them out here.

"According to the census of 1920. Benton county has a population of 12,989. The whole number of votes cast in said county at the presidential election of 1916 was 3,183, which multiplied by 5, gives an estimated population of 15,915. The number of votes at the presidential election of 1920, at which women were permitted to vote, was 4,961, which if multiplied by 5, would give an estimated population of 24,805."

Later in the brief learned counsel for the respondent makes this admission, which clears the atmosphere of the case:

"Before presenting their views on the merits of this controversy, respondents expressly agree with relator that the amount of his salary must be determined under the provisions of section 734, R. S. 1919 (Laws 1919, p. 672), and that his rights `cannot be defeated or diminished' by virtue of the act amendatory thereof passed by the Legislature in 1921 (Laws 1921, p. 574)."

He further on adds:

"We are happy to be able to walk thus far hand in hand with relator, but in construing the act of 1919, which we agree must govern his compensation, we are compelled to part company with him."

The act of 1919, which was approved May 27, 1919 (Laws of 1919, pp. 872, 673), so far as pertinent, reads:

"On and after the first day of January, 1921, the prosecuting attorney shall receive for his services per annum, to be paid out of the county treasury in all counties having a population of less than ten thousand inhabitants, the sum of one thousand dollars ($1,000.00); in all counties having a population of ten thousand and less than fifteen thousand inhabitants, the sum of eleven hundred dollars ($1,100.00); in all counties having a population of fifteen thousand and less than twenty thousand inhabitants, the sum of twelve hundred dollars ($1,200.00); in all counties having a population of twenty thousand and less than twenty-five thousand inhabitants, the sum of eighteen hundred dollars ($1,800.00). * * * To be paid monthly upon the warrant of the county court issued in favor of the prosecuting attorney to the county treasurer for that purpose. The number of inhabitants of any county shall, for the purpose of this section be ascertained by multiplying the whole number of votes cast at the last preceding presidential election by five until after the population of such county shall have been ascertained by the next decennial census of the United States."

This was a new section, but in lieu of section 1005 of the act of 1913, which was repealed by the act of 1919. As it is conceded that the act of 1921 is not applicable, its only purpose will be as to what light it may lend in the construction of the act of 1919, and preceding laws. This outlines the case.

I. It is urged that our alternative writ should be quashed, because improvidently issued, and because relator had other remedies. The Constitution gives unto this court original jurisdiction in mandamus. It is a discretionary writ, !A; is true, but, possessing the constitutional power to issue it, we exercise our discretion at the time of permitting the writ to go. And this, too, irrespective of any rule of court, if the court is of opinion that its discretion should be exercised in favor of the granting of the writ. Of course, even when so issued, we could quash the writ as having been improvidently issued. We have so done. But in this case the county of Benton is the real party in interest. The question is whether such county pays its prosecuting attorney $1,200 per annum, or $1,800 per annum. The constitutionality of the act of 1921 was assailed in the petition for our writ. That question was not eliminated until done in respondent's brief. There were divers counties in the state in a similar situation, and a final determination of the status of the law was of very general interest. With constitutional questions in the cases which might arise, as well as in this particular case, the appeals would lie to this court for ultimate determination. The cases would be numerous and our docket crowded with them. All these could be determined in a single case by prompt action in this court, in the exercise of our lawful original jurisdiction. These surroundings induced the exercise of our discretion in the issuance of the alternative writ, and persuade us that we should retain the case, and settle this law. Grounds of the motion to quash going to, this subject are therefore overruled.

II. As said, the act of 1919 (Laws of 1919, p. 672), now section 734, R. S. 1919, repealed section 1005 of the act of 1913, and enacted a new section in lieu thereof. The material portions of this section we have set out in our statement. This law was passed in 1919, but by its terms was not to become effective until the 1st day of January, 1921. In the construction of this law, it is of vital importance to determine as of what date the law speaks, for, if it be taken to speak as of the date of its passage, the words therein used might have one meaning and application; whereas, if it is to be taken as speaking of the date when it becomes effective, the words used therein might have a totally different application and meaning. Where there is no constitutional restrictions, the Legislature may fix a future date upon which a law shall go into effect. 36 Cyc. pp. 1192 and 1200; Ex parte Ah Pah, 34 Nev. 292, 119 Pac. loc. cit. 774. In the latter authority it is said: "

"The Legislature, in the absence of constitutional restrictions, is free to fix in each act the time it is to take effect, and an examination of our Constitution reveals no such prohibition. Matter of Kenna, 91 Hun, 178, 36 N. Y. Supp. 280; Thomas v. Scott, 23 La. Ann. 689; Price v. Hopkin, 13 Mich. 318; Honeycutt v. St. Louis, 40 Mo. App. 674; Penn Co. v. State, 142 Ind. 428, 41 N. E. 937; 36 Cyc. 1192, 1193; Am. & Eng. Ency. of Law, vol. 36, pp. 563-565."

The Missouri Constitution (1875, section 36 of article 4) places no inhibition upon the Legislature as to fixing a future date for a law to become effective. It prohibits them from becoming effective upon their passage and approval, except in excepted cases. The Legislature has often asserted its right to pass a law to become effective in the future, and our cases seemingly have approved them. State v. Brassfield, 81 Mo. 151, 51 Am. Rep. 234; State v. Orrick, 106 Mo. 111, 17 S. W. 176, 329; State ex rel. v. Edwards, 136 Mo. 360, 38 S. W. 73.

[3] The real issue in this case is to determine from what exact date such a statute speaks. In our judgment it speaks as of the date it becomes effective and not otherwise.

In Rice v. Ruddiman, 10 Mich. loc. cit. 135, Christiancy, J., said:

"It is very clear the act did not take effect till 90 days after the end of the session. But we do not think the act was therefore void as to the election provided for. It took effect in May, 1859, and must be understood as beginning to speak at the moment when it became a law, and not before. It must have the same...