State v. Hamilton
| Decision Date | 22 December 1925 |
| Docket Number | No. 26493.,26493. |
| Parties | STATE ex rel. SUMMERS, Clerk, v. HAMILTON et al., Judges. |
| Court | Missouri Supreme Court |
On June 5, 1925, George S. Summers, clerk of the circuit court of Crawford county, Mo., as relator, filed in this court, an application for a writ of mandamus, to compel George 13. Hamilton et al., as judges of the county court of Crawford county aforesaid, to issue warrants on the county treasurer of said county for the sum of $700, the amount claimed to be due him on his salary for the years 1923 and 1924, and for the sum of $29.17 per month for the time he has served during the year 1925, in settlement of the balance claimed to be due him on his salary as clerk aforesaid, and for such other relief as may be proper, etc.
The petition alleges that relator was elected clerk of the circuit court of Crawford county, Mo., at the November election, 1922; that he duly qualified as such officer, and has discharged all the duties thereof from the 1st day of January, 1923, to the commencement of this action on June 5, 1925; that respondents are the judges of the county court of Crawford county aforesaid; that, under the law during the period aforesaid, it was the duty of relator to pay to the county treasurer of said county all the fees that accrued in his office as clerk aforesaid, and that he faithfully performed said duty; that under the law it was the duty of respondents to pay relator monthly from the county treasury his salary as such clerk; that said salary was based by law on the population of the county, and that said population should have been ascertained by multiplying the vote cast at the last presidential election prior to the time of such determination, by 5; that at the presidential election of 1920, held in November of said year, there were cast in said county 4,359 votes, which, multiplied by 5, would make 21,795, the population of said county upon which to fix the salary of relator as clerk aforesaid; that at the presidential election in 1924 there were cast 4,189 votes, which, multiplied by 5, would make the population of said county 20,945 upon which to base the salary of said clerk; that, under the law, in counties having a population of 20,000 and less than 25,000, during all the term of service of said relator as such clerk, the salary of the clerk of the circuit court was $1,950 per annum, and during all the time of the service of the relator as such clerk, his salary was fixed by law at $1,950 per annum; that respondents have refused to pay relator his salary as such clerk at the rate of $1,959 per annum, but, on the contrary, have paid him as salary at the rate of $1,600 per annum; that relator was ignorant of the population of said county and of the amount of salary that was due him, and that he took and received his salary as aforesaid at the rate of $1,600 per annum, without any intent on his part to waive any rights which he had, or might have, to receive a greater salary than that offered him by the county court; that there was no settlement whatever of the matter between him and the county court, but the latter simply caused to be issued to him warrants at the rate of $1,600 per annum, and relator took the same in ignorance of the amount due him; that there is now due relator the sum of $700, on his salary for the years 1923 and 1924, and $29.17 per month for the time that he has served as such clerk in the year 1925; that relator has made demand from the said county court of Crawford county for the payment of the same, but said county court has failed and refused to pay the same to relator; that he is informed that said county court bases its refusal to pay him his salary at the rate of $1,950 per annum, on an act passed by the Legislature and approved April 1, 1921, under which it was provided that, for the purposes of said act, the population of any county should be determined by multiplying by 3 ½, the total number of votes cast in such county, at the last presidential election prior to such determination; that, in determining the population of any county as a basis for ascertaining the salary of any county officer, the highest number of votes cast at the last previous presidential election should be multiplied by 5; that section 11016, art. 2, of chapter 100, R. S. 1919, is the law that has been in force during the whole of relator's occupancy of said office; that said act of 1921, which respondents have followed in fixing the population aforesaid, is unconstitutional; that section 12 of article 9 of the present Missouri Constitution provides as follows:
`The General Assembly shall, by a law uniform in its operation, provide for and regulate the fees of all county officers, and for this purpose may classify the counties by population."
It is further alleged by relator that, at the session of the Legislature of Missouri in 1921, an act was passed providing for the determination of the population of the different counties in the state for fixing the salary of prosecuting attorneys, also a similar act to determine the population under which the salary of the clerks of the circuit courts should be determined, also a similar act, in which the population for the purpose of fixing the salary of clerks of the county court should be determined, and also an act providing a manner for the determination of the population of the different counties upon which to fix the salary of county superintendents of schools; that said acts are not uniform in their operation, and are therefore contrary to said provisions of section 12 of article 9 of our Constitution; that said act, providing for the determination of the population of the counties for fixing the salaries of clerks of the circuit court is not uniform in its operation alone, as it is based upon the vote of 1920, and there is a provision therein that the persons now holding the offices, the salaries of which are determined by this section, shall to the end of the terms for which they are chosen, draw the same salary that was paid to the persons holding such offices at the general election of November 2, 1920, which provision would base the salaries of some of the clerk& on the vote of 1916, while the act itself was based upon the vote of 1920.
The petition further alleges that the above act, approved April 1, 1921, both in the caption, title, and body of the act, provided for the amendment of section 10395, art. 2, c. 123, which said chapter contained no reference whatever to the salaries of county officers, and the chapter that did provide for and regulate the fees of county officers was chapter 100 of the Revised Statutes 1919; that an act which in its title and body purported to amend chapter 123 would not be sufficient to amend chapter 100, and would therefore be void.
It is further averred that the county of Crawford is the real party in interest in this case; that there is a constitutional question involved, and there being more than 50 clerks of the circuit court in the state who are not receiving the salary provided by law is submitted as a valid reason why the Supreme Court should assume jurisdiction by mandamus and do speedy justice in the premises.
The petition concludes with a prayer, in which this court is asked to issue its writ of mandamus directed to the judges of the county court of Crawford county, Mo., requiring them to issue warrants on the county treasurer of said county for the sum of $700, the amount due relator for the years 1923 and 1924; and for the sum of $29.17 per month for the time he has served during the year 1925, in settlement of the balance due him on his salary as clerk aforesaid, and for such other and further orders as may be just and proper in the premises.
The above petition was sworn to by relator.
An alternative writ was issued and served upon respondents, who made their return to the original writ, in substance, as follows: They admit that they are the duly elected and qualified judges of the county court of Crawford county, Mo. They admit, that relator George S. Summers is the duly elected, qualified, and acting circuit clerk of said county; that he was elected to said office at the general election in November, 1922; that he took charge of said office on the 1st day of January, 41923; that said George S. Summers, as such clerk, has been paid and has received the salary as such clerk, at the rate of $1,600 per annum. Respondents, for further return, allege that on February 1, 1923, relator herein filed with the clerk of the county court aforesaid his bill and demand for his monthly salary at the rate of $1,600 per annum, for the month of January, 1923, for allowance by the county court aforesaid; that upon presentation of said bill, it became the duty of respondents, acting as a county court, to determine and fix the salary relator should receive as clerk aforesaid, which was done by said county court, and warrants drawn accordingly.
The return further alleges, that at the last presidential election prior to the 1st day of January, 1923, which was the presidential election of 1920, there were cast a total of 4,354 votes in Crawford county, Mo.; that under the provisions of section 10995, R. S. 1919, as amended in 1921 (Acts 1921, p. 607), in determining the amount of salary due relator, it was the duty of said county court to multiply the total number of votes cast at the presidential election in November, 1920, in said county, by 3 ½, for the purpose of determining the population of said county, which, when done, gives said county a population of 15,629; that under the provisions of said section 10995, as...
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