State v. Hill

• Citation: 198 S.W. 844,272 Mo. 206
• Decision Date: 17 November 1917
• Docket Number: No. 19421.,19421.
• Parties: STATE ex rel. FORGRAVE v. HILL et al.
• Court: United States State Supreme Court of Missouri

198 S.W. 844

272 Mo. 206

STATE ex rel. FORGRAVE v. HILL et al.

No. 19421.

Supreme Court of Missouri. In Banc.

November 17, 1917.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Mandamus proceedings by the State, on the relation of Lyman W. Forgrave, against Thomas J. Hill and others. Judgment for plaintiff, and defendants appeal. Reversed.

This is a proceeding by mandamus in which plaintiff had judgment, and defendants have appealed. The relator is one of the justices of the peace of Washington township, Buchanan county, and the defendants are the judges of the county court of that county.

The Legislature passed an act entitled "An act entitled justice of the peace in townships containing seventy-five thousand inhabitants and not over one hundred and fifty thousand inhabitants," which was approved March 23, 1915, and is found in Laws 1915, at page 324. Section 1 of that act provides for four justices of the peace in each of such townships with an annual salary of $2,000 each, payable monthly out of the county treasury. Section 2 provides that such officer shall, before entering on his duties as such, give bond in the sum of $2,000 to be approved by the county court. Section 3 provides that the county court may require a new bond whenever any surety shall die, remove from the county, or become insolvent. Section 4 requires such officer to pay all fees collected by him for his services into the county treasury every 30 days, accompanied by a sworn statement by him. Section 7 provides for furnishing such justices each with an office, stationery, light and heat, and with a clerk at a salary of $75 per month payable out of the county treasury. That act went into effect June 19, 1915. At that time, the relator herein, Lyman H. Forgrave, was one of the four duly elected, qualified, and acting justices of the peace of said township. It is agreed by the parties herein that said township is the one in which the city of St. Joseph is situate, and that it is the only township in the state having a population of 75,000 and less than 150,000.

At the time said act took effect, the relator tendered to said county court a bond in the sum of $2,000 with sufficient sureties conditioned for the performance of his duties under such act, but the court refused to approve the same. Relator paid into the county treasury all fees for his services that had been collected by him during the time from June 19, 1915, to August 31, 1915, inclusive, accompanied with a statement of the same. At the August term of the county court the relator filed in said court a written claim and demand for his salary as such officer for the period above mentioned amounting to $400, and demanded of said court that it order a warrant to be issued and drawn on the county treasury in favor of the relator for said sum. On September 15, 1915, said court, at said term, heard and considered said claim of relator, and refused to allow it, and its judgment of such disallowance was entered on its record. That entry stated that the reason for such refusal to allow such claim was because there was no law authorizing its allowance. There was no appeal from that order.

As to the pleadings, we will only say that they are sufficient to raise the points of law here discussed, and there is no contention as to the facts essential to this discussion.

W. H. Haynes, of St. Joseph, for appellants. Charles F. Strop and Graham & Silverman, all of St. Joseph, for respondent.

ROY, C. (after stating the facts as above).

I. The parties disagree as to whether said act of the Legislature has any application to the relator herein. That act says nothing special about the justices then in office, and it merely provides that the justices of the peace, before entering on the duties of such office, shall give such bond. There is no provision for a vacancy in the office if one of the then incumbents should fail to give bond. We do not undertake to say whether the act was intended to provide a salary for the persons then holding such offices, but we do hold that this relator is not by that act required to give any bond, and therefore that he is not entitled to have an order approving the bond which was tendered by him.

II. We are of the opinion that the plaintiff is not entitled to proceed by mandamus to compel the payment of the salary which he claims. The defendants claim that the above-mentioned act of the Legislature is void, for several reasons which we will not mention. Plaintiff claims that the county court acts merely in a ministerial capacity in passing on such demands, and that it can be compelled by mandamus to issue the warrant necessary for such payment, and that it has no power to raise the question as to the constitutionality of such act of the Legislature. It may be conceded that an officer who acts in a purely ministerial capacity, such as a county treasurer in the payment of a county warrant properly drawn on him, may be compelled by mandamus to do the ministerial acts required of him, and that he will not ordinarily be heard to question the constitutionality of the law under which such warrant is drawn. State ex rel. v. Williams, 232 Mo. 56, 133 S. W. 1. There are numerous other cases which need not be cited.

There is a sound reason for that rule. It is this: The auditing of demands and claims of various kinds against a county is lodged generally in the county court. In the case above cited the power to audit and allow the salary of the prosecuting attorney was placed by the law in the clerk of the circuit court. The power and duty to audit a claim against a county carry with them the responsibility of examining into the facts and the law upon which the claim is based. If the claimant and the auditor (whether such auditor is a person or a so-called court) disagree as to the facts or the law, the county has the right to have the matter adjudicated by a judicial tribunal. If such auditor allows the claim and issues a warrant for its payment, the county treasurer acts purely in a ministerial capacity in the payment of such warrant. The treasurer in such a case is not concerned with the question of the validity of the original claim against the county.

It is true that the county court in auditing such demands does not act in a judicial capacity. There are many cases so holding. In Reppy v. Jefferson County, 47 Mo. 66, it was said:

"Defendant's counsel first contend that the rejection of the claim is a judgment; that the plaintiff is concluded by it, and cannot prosecute in the circuit court. This claim is wholly untenable. The county court, in auditing claims against the county, is but its financial agent, and not a judicial body. It represents the county, and in the numerous prosecutions against it, from the earliest times, it has never been held that a rejected claim was res adjudicata. Phelps County v. Bishop, 46 Mo. 68. The idea that a disallowance of a claim operated as a judgment against the claimant has arisen in part from the fact that an appeal is allowed from such action. This, however, is but a statutory mode of bringing the county into the circuit court without original process, and the claimant may avail himself of it or commence suit."

Sears v. Stone County, 105 Mo. 236, 16 S. W. 878, 24 Am. St. Rep. 378, and Givens v. Daviess County, 107 Mo. 603, 17 S. W. 998, are to the same effect. The last case mentioned was a suit by a county treasurer for his salary. It was there said:

"It must be confessed that there seems, upon first view, to be some conflict in these sections, but we think all conflict disappears when we remember that the county court when engaged in auditing, adjusting, and settling...