The State ex rel. Kinsey v. Messerly
| Decision Date | 03 July 1906 |
| Citation | 95 S.W. 913,198 Mo. 351 |
| Parties | THE STATE ex rel. KINSEY v. MESSERLY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. George F. Longan, Judge.
Reversed and remanded (with directions).
C. C Kelly for appellants.
(1) Relator having compromised his claim for fees under the general law relating to fees of justices of the peace, and the compromise having been fully effected, relator can not now claim fees that were earned prior to February 4, 1902 the date of such compromise. (2) A public officer may accept as full payment less than the amount due under the law for fees for past services and is bound by such acceptance. Thompson v. Cullers, 35 S.W. 412; Bank v Fink, 24 S.W. 937; Oberborfer v. Louisville School Board, 85 S.W. 696; People v. Dayton, 50 How. Pr. 143; Ciples v. Blair, Rice Ch. 60.
W. D. Steele and John D. Bohling for respondent.
(1) The act of May 15, 1899, amending section 4997, Revised Statutes 1899, is in direct conflict with section 53, article 4, of the Constitution. State v. Walsh, 136 Mo. 400; State v. Buchardt, 144 Mo. 84; Cooley, Const. Lim. (6 Ed.), 482; State v. Hill, 147 Mo. 68; Holden v. James, 11 Mass. 396; Lewis v. Webb, 3 Me. 326; Wally's Heirs v. Kennedy, 2 Yerg. (Tenn.) 544; Calder v. Bull, 3 Dal. 388; In re Picquet, 5 Pick. 65; Durham v. Lewiston, 4 Greenl. (Me.) 140; Budd v. State, 3 Hump. (Tenn.) 483; Officer v. Young, 5 Yerg. (Tenn.) 320; Van Zant v. Waddell, 2 Yerg. (Tenn.) 260; Daly v. State, 13 Lea (Tenn.) 231; Woodward v. Brien, 14 Lea (Tenn.) 523. We admit that legislation has been upheld in various States based upon the population of cities, but this rule is not even uniformly. Devine v. Comr's, 84 Ill. 590. The act in question does not restrict its operation to the population of cities, but exempts all cities of a certain population from its provision that do not lie wholly within one township, and cities operating under a special charter. The duties of the justice of the peace in a township containing a city of the specified inhabitants named in the act are identical in every particular with the duties of a justice of the peace of a township containing a city of like inhabitants operating under a special charter, or a city not lying wholly within one township, so the act might as well have provided that it should apply to every city of a certain specified population containing a certain number of churches, or a certain number of schoolhouses, or certain kinds of churches, or waterworks. If this kind of legislation can be upheld, then every city in the State that contains some distinguishing feature, whatever it may be, from certain other cities in the State can have a local law enacted regulating the fees of the justices of the peace within its borders. (2) The contract pleaded in bar to the suit is against public policy and not binding. A public officer is not entitled to compensation by virtue of a contract, expressed or implied; the right of compensation can only exist as a creation of law and as an instance of the office. Given v. Daviess County, 107 Mo. 603; Bates v. St. Louis, 153 Mo. 18; State ex rel. Walbridge, 153 Mo. 194. An agreement to reward a public officer for the doing of that which it is his duty by law to do is void as against public policy. Kick v. Merry, 23 Mo. 72; Thornton v. Railroad, 42 Mo.App. 58. It is a matter of public policy; "public officers can not legally contract to increase or diminish their statutory compensation, nor can they bind themselves to forego resort to the statutory remedy for the collection of fees." 9 Am. and Eng. Ency. Law, 914. Where the salary or fees of an officer is illegally reduced during his term, the acceptance of the amount allowed will not estop him from claiming the remainder. Butler County v. James, 25 Ky. Law Rep. 801, 76 S.W. 402.
This is an appeal from the judgment of the circuit court of Pettis county awarding a peremptory writ of mandamus in favor of the plaintiff against the defendants, as judges of the county court of said county, for a balance of $ 1,208.95, alleged to be due plaintiff as fees as justice of the peace of Sedalia township for the period from September 1, 1899, to June 1, 1902. The total amount of said fees for the said period was $ 2,948.10, but as the county court paid relator $ 1,761.65 as salary for the same time under the act of 1899, known as the "Barnett Law," being an amendment to section 5005, Revised Statutes 1889, the relator in no event is entitled to a judgment for more than $ 1,208.95.
The pleadings directly assail the constitutionality of the amendment of 1899, now section 3261, Revised Statutes 1899, and jurisdiction of this appeal is in this court.
I. If the amendment of 1899 was valid constitutional legislation then plaintiff was not entitled to recover. Section 5005, Revised Statutes 1889, prescribes the fees which should be allowed justices of the peace throughout the State, for the several duties they might perform, and they were entitled to no other compensation.
The amendment to that section in 1899, was in these words: [Laws 1899, p. 215.]
This amendment, if valid, went into effect August 20, 1899. In 1901 the section was further amended so as to make the salary seventy-five dollars a month instead of fifty dollars. [Laws 1901, p. 174.]
The county court of Pettis county accepted the amendment of 1899 as valid and controlling and began paying the justices of the peace for Sedalia township, salaries from September 1, 1899, instead of allowing them fees under the general law in force prior to the enactment of the amendment of 1899.
The defendants as judges of the county court now deny that relator is entitled to any fees, but must be content with the salary paid him by the court for the time for which he now claims fees.
It is conceded by all parties that the act of 1899, amending section 5005, Revised Statutes 1889, did not and could not apply to any city in Missouri except Sedalia. No other city was in the special situation at that time nor likely to be. The act was intentionally drawn to fit the peculiar circumstances surrounding Sedalia and to exclude all other cities in the State of like population. Section 53 of article 4 of the Constitution of Missouri provides: "The General Assembly shall not pass any local or special law. . . . regulating the fees or extending the powers and duties of aldermen, justices of the peace, magistrates or constables." The same section after enumerating divers other cases in which no special or local law shall be passed, further provides: "In all other cases where a general law can be made applicable, no local or special law shall be enacted."
Few of the provisos of our organic law are so eminently wise and salutary as this last-quoted section of the Constitution. It is of the highest interest to the State that its laws should be general and operate as far as possible equally in all sections of the State and upon all subjects of legislation. This court has again and again defined what is a general and what is a special law, but in practical legislation it would be hard to define in one section a more pronounced example of each than is to be found in section 3261 since the amendment of 1899. The original section as it stood prior to the addition of that proviso, was a general law which affected every justice of the peace in the State. Whereas, the proviso was drawn with the greatest labor to insure that it should apply to but one township in the State, to-wit, Sedalia township. Notwithstanding the language of the act purports in some respects to be a general law, the numerous exceptions in the proviso of 1899...
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