State v. Imel

• Decision Date: 28 March 1912
• Citation: 146 S.W. 783
• Parties: STATE ex rel. BUCHANAN COUNTY v. IMEL.
• Court: Missouri Supreme Court

146 S.W. 783

STATE ex rel. BUCHANAN COUNTY v. IMEL.

Supreme Court of Missouri.

March 28, 1912.

Rehearing Denied April 23, 1912.

1. COUNTIES (§ 61)—"COUNTY OFFICER."

The words "county officers" in the most general sense apply to officers whose territorial jurisdiction is coextensive with the county for which they are elected or appointed, and in a more precise and restricted sense mean officers by whom the county performs its usual governmental functions.

2. CONSTITUTIONAL LAW (§ 12)—CONSTRUCTION OF CONSTITUTIONAL PROVISIONS.

The established rules of construction applicable to statutes apply also to the construction of Constitutions.

3. STATUTES (§ 208)—CONSTRUCTION—CONTEST.

In ascertaining the meaning intended to be conveyed by words of a statute, the court will closely examine the context of the act where the words to be construed occur.

4. JUDGES (§ 22)—"COUNTY OFFICER"—PROBATE JUDGES—COMPENSATION.

Const. art. 9, entitled "Counties, cities and towns," provides, by section 12, that the General Assembly shall, by uniform law, provide for and regulate the fees of all county officers, and for this purpose may classify the counties by population, and by other sections provides for the organization of counties, changes of boundaries, the offices of sheriff and coroner, the fees of executive and ministerial officers of counties, and the creation of new county officers. Rev. St. 1909, § 10,695, provides that each probate judge shall keep account of fees annually collected by him, and that when such fees for any one year, after deducting expenses, exceed the annual compensation of judges of the circuit court having jurisdiction in such county, he shall pay such excess, less 10 per cent., into the treasury of the county in which he holds office for the benefit of its school fund. Held, in view of the context, that "county officers," as used in section 12, did not include judges of probate courts, and hence that the part of section 10,695 requiring a probate judge to pay a prescribed part of his fees into the county treasury was constitutional.

5. JUDGES (§ 23)—PROBATE COURTS—FUNCTION OF PROBATE JUDGES.

Judges of the probate court are not charged with the performance of any governmental functions of the counties for which they are elected, but their functions are to administer the laws pertaining to the estates of deceased persons, minors, and persons of unsound minds.

6. STATUTES (§ 124)—SUBJECT AND TITLE OF ACTS — FEES AND SALARIES OF PROBATE JUDGES—"SALARY."

Const. art. 4, § 28, requires the subjects of each bill to be clearly expressed in its title. Under "An act to repeal section 3240, chapter 27, article 1 of the Revised Statutes of 1899, relating to fees, and to enact a new section in lieu thereof to be known as section 3240" (Laws 1905, p. 155), the Legislature enacted what is now Rev. St. 1909, § 10,695, requiring each probate judge to keep an account of fees collected, and whenever such fees in any one year, deducting expenses, shall exceed the annual compensation provided by law for a judge of the circuit court with jurisdiction in such county, to pay such excess, less 10 per cent., into the treasury of his county for the benefit of its school fund. Held that, as the section repealed fixed the fees of probate judges, the title was broad enough to give notice of and to clearly express the subject of section 10,695; and that, as "salaries" are the form of compensation prescribed for paying public officers for their services, the subject of salaries was also germane to the subject of fees expressed in the title.

7. CONSTITUTIONAL LAW (§ 43) — PERSONS ENTITLED TO RAISE CONSTITUTIONAL QUESTIONS—ESTOPPEL BY ACTING UNDER STATUTE.

A probate judge who has assumed to act under Rev. St. 1909, § 10,695, requiring each probate judge to keep an account of the fees collected, and under certain circumstances to pay part thereof into the treasury of his county for the benefit of its school fund, is estopped from denying the constitutionality of any part of the statute.

8. JUDGES (§ 22)—COMPENSATION—PROBATE JUDGES — DISTRIBUTION OF FUNDS — CONSTITUTIONAL PROVISIONS.

The Legislature has full constitutional power to place probate judges upon a salary or upon fees as in its judgment may seem likely to promote the public welfare.

Graves and Woodson, JJ., dissenting.

In Banc. Appeal from Circuit Court, Buchanan County; L. J. Eastin, Judge.

Action by the State, for the use of Buchanan County, against John F. Imel. Judgment for defendant, and plaintiff appeals. Reversed, with directions to enter judgment in favor of the plaintiff.

C. C. Ferrell, for appellant. George B. Webster, for respondent.

BROWN, J.

The object of this suit is to determine the constitutionality of that part of section 10,695, R. S. 1909, which provides that each probate judge in this state shall keep a true and correct account of all fees annually earned and collected by him, and "that whenever, after deducting all reasonable and necessary expenses for clerk hire, the amount of fees collected in any one calendar year by or for any one probate judge in any county in this state, during his term of office, and irrespective of the date of accrual of such fees, shall exceed a sum equal to the annual compensation provided by law for a judge of the circuit court having jurisdiction in such county, then it shall be the duty of such probate judge to pay such excess less ten per cent. thereof, within thirty days after the expiration of such year, into the treasury of the county in which such probate judge holds office, for the benefit of the school fund of such county." The plaintiff in his petition alleges that defendant, while acting as probate judge of Buchanan county during the year 1907, collected fees aggregating the sum of $5,557.68; that after deducting from the fees so collected a salary equal to the salary of the circuit judge of Buchanan county and all necessary clerk hire, and also 10 per cent. of the remainder of said fees, there was due from said defendant to Buchanan county a balance of $926.18, for which judgment was prayed, with 6 per cent. interest from January 1, 1908. Plaintiff also alleges that defendant as such probate judge during the year 1908 collected fees aggregating the sum of $6,675.30; that after deducting therefrom a salary equal to the salary of the circuit judge of Buchanan county, and all necessary clerk hire, and also 10 per cent. of the remainder of said fees, there was due to Buchanan county a balance of $1,500, for which plaintiff prayed judgment, with interest at 6 per cent. from January 1, 1909. The defendant admitted the collection of fees in the amount and manner charged in plaintiff's petition, and deposited in court the sum of $2.426.18, being the amount claimed by the plaintiff; and pleaded that said section 10,695, supra, in so far as it requires defendant to pay a part of his fees into the county treasury, is unconstitutional and void, and prayed the court to determine the constitutionality of said section, and order the fees so deposited returned to him. The court below gave judgment for the defendant on the ground that so much of section 10,695, R. S. 1909, as requires probate judges to pay over to county treasurers a part of the fees received by them, is in conflict with section 12, art. 9, of our state Constitution, which reads 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."

In the case of Henderson v. Koenig, 168 Mo. 356, 68 S. W. 72, 57 L. R. A. 659, this court held that the words, "county officers," as used in the foregoing section of the Constitution, include probate judges; and in that case we also held that a statute which attempted to place probate judges in cities of 300,000 inhabitants, upon a salary, and require their clerks to collect the fees earned by such judges and pay the same into the city treasury, was unconstitutional. Almost the same issue arises again in this case; and it becomes necessary for us to re-examine the construction placed upon said section 12, art. 9, of the Constitution in the Henderson Case, supra, and determine whether or not in this case we will follow the rules of law announced in that case. The rule announced in the Henderson Case depends for its correctness almost entirely upon the proper construction to be placed upon the words "county officers," as used in the aforesaid section of our organic law.

The words "county officers" have two well-defined meanings. In their most general sense they apply to officers whose territorial jurisdiction is coextensive with the county for which they are elected or appointed. In a more precise and restricted sense, those words mean officers "by whom the county performs its usual political functions, its functions of government." Sheboygan County v. Parker, 70 U. S. 93, loc. cit. 96, 18 L. Ed. 33. The Constitution of Tennessee contains a provision that "no county office created by the Legislature shall be filled otherwise than by the people or by the county court." In State ex rel. v. Glenn, 54 Tenn. (7 Heisk.) 489, it was held that the above quoted clause of the Constitution did not include county judges, because they are judicial officers; that, as county judges in Tennessee possess jurisdiction to try certain classes of civil actions between individuals, they did not come under the classification of county officers, and therefore the Governor was authorized to fill a vacancy in that office by appointment.

"The established rules of construction applicable to statutes also apply to the construction of Constitutions." 8 Cyc. 729.

One of the established rules for construing statutes is to examine closely the context of the act where the words to be construed occur, and thereby ascertain what meaning they were intended to convey. Riggs v. Railway Co., 120 Mo. App. 335,...