The State at Relation and to Use of Jasper County v. Gass

• Decision Date: 27 June 1927
• Docket Number: 27744
• Citation: 296 S.W. 431,317 Mo. 744
• Parties: The State at Relation and to Use of Jasper County, Appellant, v. Frank L. Gass et al., Appellants
• Court: Missouri Supreme Court

296 S.W. 431

317 Mo. 744

The State at Relation and to Use of Jasper County, Appellant, v. Frank L. Gass et al., Appellants

No. 27744

Supreme Court of Missouri

June 27, 1927

Appeal from Jasper Circuit Court; Hon. Grant Emerson Judge.

Reversed.

C. C Spencer and A. E. Spencer for plaintiff.

(1) Prior to the Act of 1921 the statute regulating the compensation of probate judges was Sec. 10991, R. S. 1919. This provided that whenever, after deducting all reasonable and necessary expenses for clerk hire, the fees collected in any calendar year by or for the probate judge should exceed "a sum equal to the annual compensation provided by law for a judge of the circuit court having jurisdiction in such county" then the probate judge shall pay the excess less ten per cent thereof, into the county treasury for the benefit of the county school fund. This statute did not include, as a part of the annual compensation provided by law for a judge of the circuit court, the latter's compensation as a jury commissioner under the Act of 1911 (Laws 1911, p. 304). State ex rel. v. Imel, 280 Mo. 554, 219 S.W. 634; State ex rel. v. Imel, 280 Mo. 565. And, along the same line, the allowance to a circuit judge of $ 1200 per annum for expenses (Section 10981) is not compensation, and is not to be considered a part of his salary, and the probate judge is not entitled to consider such allowance in fixing the amount he may retain for his compensation. Macon County v. Williams, 284 Mo. 447, 224 S.W. 835. (2) The Act of 1921 (Laws 1921, p. 599) amended Section 10991, first, by adding a provision relating to fees in connection with the collection of inheritance taxes; and, second, by changing the wording of Section 10991 referring to the amount to be retained by the probate judge, and making it read that when the fees collected in any calendar year, after deducting all reasonable and necessary expenses for clerk hire, "shall exceed a sum equal to the annual compensation in the aggregate from all sources and for all duties by virtue of the office, except $ 1200 allowed for expenses when holding court in other counties, provided by law for a judge of the circuit court having jurisdiction in such county, then the probate judge shall pay such excess, less ten per cent thereof" to the county treasurer. (a) This is a statute relating to official salaries and must be strictly construed against the officer Greene County v. Lydy, 263 Mo. 100. (b) The amendment interpolates the words "in the aggregate from all sources and for all duties by virtue of the office, except $ 1200 allowed for expenses when holding court in other counties." But the basis of the amount the probate judge may retain remains unchanged; no words are eliminated; and the statute still provides that the probate judge may retain from his collections a sum equal to the annual compensation provided by law for a judge of the circuit court, etc., plus ten per cent of the excess only. Where an officer is required by law to perform the duties of another position not incompatible with the first, he is entitled to the compensation attached to each in the absence of any law to the contrary. State ex rel. v. Hackman, 300 Mo. 59, 254 S.W. 53. (c) This is applicable to the circuit judges, and accordingly they are entitled to accept compensation for the services as jury commissioners, in addition to their compensation as circuit judges. They receive the former under Sec. 6640, R. S. 1919, which provides, as to Jasper County that the judges of the circuit court shall constitute a jury commission board, and provides that "each member of said board shall, as compensation for his services under this article, as jury commissioner solely, receive such salary as, added to the salary which is now or may hereafter be paid such member as judge, shall equal the sum of forty-five hundred dollars per annum" to be paid by the county. Defendants cannot properly take into account this compensation, paid to the man who holds the office of circuit judge for services as jury commissioner solely, in computing the amount to be retained by the probate judge for his services. State ex rel. v. Imel, 280 Mo. 554, 219 S.W. 634. (d) If the 1921 amendment to Section 10991 is not confined, basically, to the "annual compensation provided by law" for a circuit judge, then it is so ambiguous as to be meaningless.

S. N. Wilson, Allen McReynolds and Howard Gray for defendants.

(1) In the amendment to Section 10991, Laws 1921, page 599, two distinct things were provided for: First, the Legislature added to the fee schedule a new item to be charged by the judge to estates of two and one-half per cent on inheritance tax of such estates. This charge was not his compensation. Second, the Legislature in defining what should be the probate judge's compensation, added in the seventieth line of the statute and after the word compensation therein the following words: "in the aggregate from all sources and for all duties by virtue of the office, except $ 1200 allowed for expenses when holding circuit court in other counties." Therefore it is evident the intention of the Legislature in making this amendment, was, first, to add to the fees a new fee of two and one-half per cent of inheritance taxes, and second, in order that the probate judge could get extra pay from the fees in bulk collected by him the law as amended allowed probate judge an increase in his compensation, such increase being designated by foregoing words in quotations which were placed into the new law. Hence it follows, that if a Circuit Judge of Jasper County was entitled to a salary of $ 2,000 under Section 10977 as a judge; also an additional salary of $ 2500 as compensation for his services as a jury commissioner under Section 6640, aggregating $ 4500 salary or compensation, then the defendant is also entitled to retain out of the fees collected each year, if sufficient, a compensation of $ 4500 after payment of his clerk hire each year. (2) The meaning of the words, "in the aggregate from all sources and for all duties of the office," used in the amendment of Section 10991 by Laws 1921, page 599, is in dispute in this case. (a) State ex rel. Buchanan County v. Imel, 242 Mo. 293 (affirmed by State ex rel. Buchanan County v. Imel, 280 Mo. 565 and Green County v. Lydy, 263 Mo. 77), holds it is constitutional to fix compensation of a probate judge at a sum equal to the compensation of a circuit judge as is done by said Section 10991. (b) It is only when the phraseology of an act is ambiguous that resort may be had to the intention of the Legislature to aid in its construction. State ex rel. Atty. Gen. v. Gammon, 73 Mo. 421. The great fundamental rule in construction of statutes is to ascertain and give effect to the intent of the Legislature. If the meaning of the language is plain it must be given effect by the court. Lincoln University v. Hackmann, 295 Mo. 125; Forgrave v. Buchanan County, 282 Mo. 604; Wagner v. St. Louis, 284 Mo. 417. Nothing is ambiguous in the words quoted above. Said words are ordinary, simple English words and are plainly stated, with no hidden meaning or indirect reference.

OPINION

Gantt, J.

This is a suit on the official bond of the defendant Frank L. Gass, Probate Judge of Jasper County. The other defendants are sureties on the bond. The petition is in two counts, and the cause was tried before the court without a jury. The court made a finding in favor of the plaintiff on the first count for $ 1203.23, and on the second count for $ 401.73, making a total of $ 1604.96. Thereupon, judgment was rendered in favor of the plaintiff and against the defendants for $ 4500, the penalty of the bond sued on, together with costs of suit, and that plaintiff have execution for $ 1604.96 and for costs. Plaintiff and defendants filed motions for a new trial, which motions were overruled, and both plaintiff and defendants appealed. The parties will be referred to as plaintiff and defendants.

The first count is an action for excess fees collected by defendant Gass during the year 1923 above the amount he is allowed by law to retain as his salary. The second count is an action for excess fees collected by said defendant during the year 1924 above the amount he is allowed by law to retain as his salary. In addition, this count seeks a recovery for an unreasonable and unnecessary amount deducted by said defendant from said fees for clerk hire during said year.

The answer to both counts admits the election of defendant Gass to the office of Probate Judge of Jasper County; that he qualified and performed the duties thereof; that the bond was executed; that defendant Gass made up his report of the fees collected and filed same with the circuit clerk -- all as alleged in the petition -- and defendants deny every other allegation of the petition.

The trial court found the probate judge was entitled to retain out of the fees collected by him during the year as much as $ 3300, plus reasonable and necessary expenses for clerk hire and plus ten per cent of the excess fees over said amounts. To understand this conclusion it will be necessary to consider the following sections of the statute:

First the pertinent part of Section 6640, Revised Statutes 1919, which is as follows: "Each member of said board shall, as compensation for his services under this article, as jury...