State v. Rose

• Decision Date: 15 March 1926
• Docket Number: No. 25963.,25963.
• Citation: 281 S.W. 396
• Parties: STATE ex rel. MITCHELL v. ROSE et al, County Judges.
• Court: Missouri Supreme Court

281 S.W. 396

STATE ex rel. MITCHELL v. ROSE et al, County Judges.

No. 25963.

Supreme Court of Missouri, en Banc.

March 15, 1926.

Appeal from Circuit Court, McDonald County; Charles L. Henson, Judge.

Mandamus by the State, on the relation of Andrew Mitchell, against George Rose and others, Judges of the County Court of McDonald County. Judgment for respondents, and relator appeals. Affirmed.

Lon Kelley, of Pineville, and James M. Tatum, of Anderson, for appellant.

O. R. Puckett, of Pineville, for respondents.

OTTO, J.

This is a proceeding in mandamus in which respondents had judgment and relator has appealed. The relator is the local registrar of vital statistics for registration district No. 518, which is in McDonald county, Mo. The respondents are the judges of the county court of that county. The state registrar of vital statistics, in his annual report, certified to the respondents, the county court of McDonald county, the number of births and deaths reported in said county, together with the names of the local registrars and the amount due each for services rendered as such registrar. The annual report so certified included the account of the relator, and fixed the amount due him for services rendered as local registrar in the sum of $22.75. This report was duly certified and filed with the county court by the state registrar of vital statistics, and on the 1st day of October, 1923, the court took up the matter of this demand, considered it, and disallowed it. This proceeding was then brought for the purpose of compelling its payment.

There is no contention as to the facts essential to this discussion. There is only one question presented, and that is one of law. It is contended that mandamus is not the proper remedy.

The compensation of relator is fixed by section 5815, R. S. Mo. 1910. which, in so far as is here material, is as follows:

"Sec. 5815. Fees for Local Registrars.—Each local registrar shall be entitled to be paid the sum of twenty-five cents for each birth and death certificate properly and completely made out and registered with him, and correctly copied and duly returned by him to the state registrar, as required by this article, and in case no births or deaths were registered during any month, the local registrar shall be entitled to be paid the sum of twenty-five cents for each report made to that effect, promptly made in accordance with this article. The amounts of money due and payable to the registrars under the provisions of this section shall be certified to the county courts, which courts shall pay the same by warrant drawn upon the county treasurer and payable out of the contingent fund of the county. The state registrar shall annually certify to the county courts of the several counties the number of births and deaths registered, with the names of the local registrars and the amounts due at the rate fixed therein. * * *"

The exact amount to which the local registrar may become entitled is not fixed by the foregoing statute, except as it depends upon the number of births and deaths occurring in his district, as ascertained by the state registrar from reports made by relator, thus establishing a debt against the county without affording the court an opportunity to examine and audit the account, and compelling the county court to disburse county funds on account of a report of births and deaths of which it may have evidence at hand did not occur. Although the Legislature has the power to provide for the payment of the fees to which the relator might be entitled out of the county treasury, it cannot take away from the county court the right to call in question both the facts and the law on which the payment of such fees is demanded. If the county court has no right to raise the question as to whether or not the number of births and deaths as certified to it by the state registrar in fact occurred, then the county court must go on paying the fees demanded by the relator as certified to the county court, regardless of the fact whether or not such reports are correct.

The various provisions of the Constitution and statutes (articles 6, § 36, Const. of Mo., and sections 2574 and...