State v. Tippin

• Decision Date: 26 January 1925
• Parties: STATE OF MISSOURI, to the use of DAN M. NEE, Relator, Appellant, v. J. W. TIPPIN, T. P. FRYE, and C. J. PIKE, Judges of the County Court of Greene County, Missouri, Respondents. *
• Court: Missouri Court of Appeals

268 S.W. 665

217 Mo.App. 480

STATE OF MISSOURI, to the use of DAN M. NEE, Relator, Appellant, v. J. W. TIPPIN, T. P. FRYE, and C. J. PIKE, Judges of the County Court of Greene County, Missouri, Respondents. *

Court of Appeals of Missouri, Springfield

January 26, 1925

Appeal from Circuit Court of Greene County.--Hon. Orin Patterson Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

John Schmook, of Springfield, for appellant.

(1) Salary of Public Officer. (a) The salary of a public officer belongs to the incumbent, as an incident of the office, and as a matter of right. He is entitled to receive it, not by force of any contract, but because the law attaches it to his office. The Legislature by 1911 Act spoke definitely and finally on the subject of relator's salary. It fixed it at the same salary as by the county court allowed to the first assistant. In this case the county court allowed and paid to the first assistant $ 150 per month from the beginning of relator's term of service until he joined the army. Hence relator's salary, fixed by law, was $ 150 per month. He received only $ 100 during those nearly twenty months. 29 Cyc. page 1426, note 60; Givens v. Davies County, 107 Mo. 603; Bates et al. v. St. Louis, 153 Mo. 18; State ex rel. v. Walbridge, 153 Mo. 203; State ex rel. v. Gordon, 245 Mo. 27. (b) And, any attempted arrangement, intended or calculates to reduce or increase his salary to an amount varying from that of the salary of the first assistant, is void as against public policy. 29 Cyc., page 1426, note 60; 13 Corpus Juris, page 441, sec. 378; 13 Corpus Juris, page 439, sec. 376; In re Irwins Estate, 123 Mo.App. 508; State ex rel. v Collier, 72 Mo. 13; Davis v. Millsap, 159 Mo.App. 167; Harrington v. Crawford, 136 Mo. 467; Smith v. Vernon County, 188 Mo. 501, 509, 510; Horstman v. Adamson, 101 Mo. App 119; National Exchange Bank v. Woodside, 107 Mo.App. 47. (2) Change of salary of public officer during term. (a) The assistant prosecuting attorneys are State officers. Once appointed confirmed and commissioned they hold office "for a term equal to the remainder of the term of the prosecuting attorney by whom he (they) have been appointed," subject, of course, to the pleasure of the prosecuting attorney. Secs. 764, 767, 769, R. S. 1919. They are not removable by the county court, nor is their tenure of office (so far as lies in the power of the county court) subject to the whim or caprice of that body. They must commission the assistants, if at all, for the term provided in section 764, supra. and having fixed the salary of first assistant at $ 150 per month, from and after January 1, 1917, that act in and of itself fixed the salary of relator at the same sum. That salary is not only regarded as a per annum compensation, but it is so expressed, and is payable quarterly, and cannot be changed as and whenever the county court wills, as suggested by the trial court. Sec. 761, 764, 767, R. S. 1919; Section 8, Article 14, Constitution of Missouri. (3) Estoppel. (a) One cannot estop himself to deny the validity of an invalid contract, or order, such as is relied upon by respondents. It is prohibited, being against the law, and is void as against public policy, and validity cannot be given to it by estoppel. The question of waiver cannot arise in such a case. Wood v. Kansas City, 162 Mo. 303, 311; Wisecup v. Insurance Co., 186 Mo.App. 310, 313, 314; People v. Board of Police, 75 N.Y. 38; Montague's Admr. v. Massey, 76 Va. 307; Pitt v. Board of Education, 110 N.E. 612, 29 Cyc. page 1426; Agricultural Ins. Co. v. Montague, 38 Mich. 548; 11 Am. & Eng. Enc. of Law (2 Ed.), page 23; 10 R. C. L. 801; Milliken v. Haven, 212 S.W. 605, 607; Tyree v. Insurance Co., 46 S. E. (W. Va.) ; Planters Co. v. Loyd, 75 S.W. ; City School Corporation v. Hickman, 94 N. E. (Ind.) 828. The rule is, that no one can be estopped by an act that is illegal and void, and an estoppel can only operate in favor of a party injured in a case where there is no provision of law forbidding the party against whom the estoppel is to operate from doing the act which is sought to be carried out through its operation. Wood v. Kansas City, 162 Mo. 303, 311. (b) The acceptance of a sum, for services rendered by a public officer, less than that fixed by law, is not a waiver, nor can estoppel be made the instrumentality to do by indirection that which could not have been done directly in the first instance. City School Corporation v. Hickman, supra; Pease v. Common Council of Saginaw, 85 N.W. 1082, 126 Mich. 436; Wood v. Kansas City, supra. Authorities cited, post, under point 3 (b). (c) The moment illegality is disclosed, the court will promptly decline to aid the party who exacted or stands on the transaction as a defense. Sprague v. Mooney, 104 Mo. 349; McDearmot v. Sedgwick, 140 Mo. 172. (e) What is prohibited by the policy of the law to be done directly, cannot legally be effected by any indirect or circuitous contrivance. 2 Elliott on Contracts, par. 675, note 33. (4) Account stated, or accord and satisfaction. (a) Where the debt is liquidated, or certain, or due, payment by the debtor, and receipt by the creditor of a less sum is not a satisfaction thereof. Such payment operates only as a discharge of the amount paid, leaving the balance still due, and the creditor may sue therefor. 1 Corpus Juris, page 539. (b) Where the salary or other compensation of a public officer is fixed by law it is liquidated and the acceptance of part, although a receipt is given in full, will not operate as an accord and satisfaction or as an estoppel to claim the residue. Bostwick v. U.S. 94 U.S. 53, 24 L.Ed. 65; Whiting v. U.S. 35 Court of Claims, 291; People v. Wayne County, 41 Mich. 4, 2 N.W. 180; Clark v. State, 142 N.Y. 101, 36 N.E. 817; Kehn v. State, 93 N.Y. 291. (c) The salary of relator was fixed by statute. The order made by the county court fixing the salary of the first assistant served, by virtue of the statute (section 767, Revised Statutes 1919) enacted in 1911, to fix the salary of the second assistant at the same amount, i. e., $ 150 per month. No statement was required to be filed or lodged with the county court. The salary is for a definite sum. The debt due the public officer is liquidated. No audit is required. His right to the salary, so fixed, does not constitute an account stated. 1 Corpus Juris 327, p. 704. (5) Mistake. It is undisputed that until the appointment of Leonard Haydon, who succeeded relator as second assistant in September, or early October, 1918, and who discovered and directed the attention of both the county court, the prosecuting attorney and relator, to the 1911 Act, which placed the salary of the second assistant on a parity with that of the first assistant, all parties labored under the mistaken belief that the act of the 1913 Legislature was the law, and sole statute, governing the matter of salaries of the assistants, and that order of the county court of June 26, 1913, made by the court just ninety days after the approval of the 1913 Act, was proper in point of fact, and as such controlled, and that it was entirely valid from the legal viewpoint. The supposition, by all parties that the 1913 Act and the order of June 26, 1913, were the only controlling factors, led them to unconciously overlook the 1911 Act. The mistake was projected into relator's term, as witness the discrimination, in giving the first assistant $ 150 per month from and after January 1, 1917, as against relator's $ 100 monthly stipend. The case cited by the trial court, in Galbraith v. The City of Moberly, 80 Mo. Mo. 484, is authority for the view that mistake is available.

Harold T. Lincoln, Prosecuting Attorney, and C. H. Skinker, Assistant Prosecuting Attorney, both of Springfield, for respondents.

(1) Mandamus. (a) Mandamus is an extraordinary legal remedy and cannot be invoked if relator has an adequate remedy at law. High's Extraordinary Legal Remedies (3 Ed.), page 21; State ex rel. Forgrave v. Hill, 272 Mo. 206; State ex rel. Carroll v. Cape Girardeau County Court, 109 Mo. 248; State ex rel. Patterson v Marshall, 82 Mo. 484; State v. County Court of Howard; 39 Mo. 375; State v. McAuliffe, 48 Mo. 112. (b) Relator in this case has two adequate remedies at law. First. He can file his claim for salary directly with the county court and in case of an adverse decision can appeal to the circuit court and have a trial de novo as in appeals from Justices of the Peace. Sec. 2574, 2584 and 2589, R. S. 1919. Second. He can sue the county directly in the circuit court in an action at law. Givens v. Daviess County, 107 Mo. 607; Sears v. Stone County, 105 Mo. 236; State ex rel. Forgrave v. Hill, 272 Mo. 214; 2 Dillon on Municipal Corporations (5 Ed.), sec. 866, page 1314. (c) Relator's petition for mandamus shows on its face that he has an adequate remedy at law and is not entitled even to an alternative writ of mandamus. Respondents, therefore, may properly raise this point for the first time on appeal as an additional reason why the judgment refusing the peremptory writ of mandamus should be affirmed. 2 Cyc., page 678; Leigh v. Springfield & Marine Ins. Co., 37 Mo.App. 546. (d) The general rule is that questions not presented in the trial court in some appropriate manner will not be considered on appeal. Like most rules, it has certain well-defined exceptions. "Since the reason for the rule is to give an opportunity to avoid the effect of an objection, the rule is not applicable where that could not have been done, even though the question had been seasonably raised in the court below. Of this character are defects apparent of record, questions relating to the jurisdiction of the court over the subject-matter, sufficiency of a complaint or declaration...