The State ex rel. Chaney v. Grinstead

• Decision Date: 09 April 1926
• Docket Number: 26509
• Citation: 282 S.W. 715,314 Mo. 55
• Parties: THE STATE ex rel. WALTER L. CHANEY v. J. R. GRINSTEAD et al., Judges of County Court of Johnson County
• Court: Missouri Supreme Court

282 S.W. 715

314 Mo. 55

THE STATE ex rel. WALTER L. CHANEY v. J. R. GRINSTEAD et al., Judges of County Court of Johnson County

No. 26509

Supreme Court of Missouri

April 9, 1926

Peremptory writ awarded.

S J. Caudle and D. C. Chastain for relator.

(1) The Salary Act of 1921 (Laws 1921, page 574) is unconstitutional and the provisions of Section 734, R. S. 1919, govern as to relator's salary. State ex rel. Brunjes v Bockelman, 240 S.W. 209; State ex rel. McCaffrey v Bailey, 272 S.W. 921; O'Bryan v. Randolph County, 274 S.W. 356. (2) The payment of twelve hundred and fifty dollars in December, 1922, was only a partial payment and did not discharge the debt. State ex rel. Moss v. Hamilton, 260 S.W. 466; State ex rel. Jarvis v. Deering, 274 S.W. 477. (3) The testimony of the respondents as to the conversation, with relator prior to the employment of relator as special counsel, is incompetent and should not be admitted because that County Court, being a court of record, can speak only by its record. Sec. 2323, R. S. 1919; Medlin v. Platte County, 8 Mo. 235; Johnson Co. v. Court, 84 Mo. 489; Decker v. Diemer, 229 Mo. 296; Nodaway Co. v. Williams, 199 S.W. 224; Oldaker v. Spiking, 210 S.W. 59; Heinz v. Felkins, 288 Mo. 223. (4) Further, county contracts are required to be in writing and to have the consideration stated therein. Sec. 2164, R. S. 1919; Anderson v. Ripley County, 181 Mo. 146; Morrow v. Pike County, 189 Mo. 610. (5) Such testimony was further inadmissible because the contract of employment was reduced to writing and all prior negotiations are merged into the writing and parol evidence is not admissible to vary, contradict or explain its terms. 22 C. J. 1070; 10 R. C. L. 208; Tracy v. Iron Works, 29 Mo.App. 342, affirmed 104 Mo. 193; State ex rel. Yoeman v. Hoshaw, 98 Mo. 358; Jones v. Beck, 43 Mo. 266; Crim v. Crim, 162 Mo. 544; Hagar v. Hagar, 71 Mo. 610; Reigart v. Coal Co., 217 Mo. 142; State ex rel. v. Trimble, 256 S.W. 171; Boyd v. Paul, 125 Mo. 9; McPherson v. Kissee, 239 Mo. 664. (6) The alleged waiver was not based upon any consideration. This is required where substantial rights are involved. 27 R. C. L. 910; 40 Cyc. 263; Fairbanks v. Baskett, 98 Mo.App. 53; Maier v. Wallace, 211 Mo.App. 454; Haseltine v. Ausherman, 87 Mo. 410. (7) The statements relied on as an estoppel are not sufficient for that purpose, since they were not made by relator with the full knowledge of his legal rights, nor did the respondents act thereon to their injury. 10 R. C. L. 697; 21 C. J. 1119; Burk v. Murphy, 275 Mo. 397; Kline v. Groeschner, 280 Mo. 599; Thompson v. Lindsey, 242 Mo. 53; Freeland v. Williamson, 220 Mo. 217; Barnett v. Kemp, 258 Mo. 139; DeLashmutt v. Teetor, 261 Mo. 412; Harrison v. McReynolds, 183 Mo. 533; Commerce Trust Co. v. Keck, 283 Mo. 209; Mathews v. Van-Cleve, 282 Mo. 19. (8) The alleged estoppel could operate at the most only to protect the county against the payment of the two hunderd and fifty dollar attorney fee to relator. 10 R. C. L. 697; 21 C. J. 1200; State ex rel. Moss v. Hamilton, 260 S.W. 466.

Nick M. Bradley and W. E. Owen for respondents.

(1) If the Act of 1919, Laws 1919, p. 672, shall continue to receive the construction indicated by the cases of State ex rel Brunjes v. Bockelman, 240 S.W. 209; State ex rel. McCaffrey v. Bailey, 272 S.W. 921; O'Bryan v. Randolph County, 274 S.W. 356, then said act, now Sec. 734, R. S. 1919, is illegal, unconstitutional and void, as violative of Sec. 12, Art. 9, Constitution of Missouri. (a) Evidently this mandate of the Constitution requires that the Legislature shall, when it makes the attempt, classify the counties, by uniform law, in some appropriate manner according to the real or true population, approximately at least. There is no warrant here for the Legislature to make a classification by population and then proceed to provide a method of ascertaining that population that would give a fictitious, absurd or fabulous population to the various counties, and thereby destroy the classification made in the body of the act. It could not adopt a method of determining population for the counties, to be applied to the classification already made, so ridiculous and erroneous that it gives indicated populations of double and treble the actual populations of the various counties, largely increase salaries over the classifications set out, and become an added burden on the taxpayers. A statute should never be so construed as to convict the State of a breach of good faith. 25 R. C. L. 1029; Ketchum v. St. Louis, 101 U.S. 306. (b) A reading of the Act of 1919, now Sec. 734, R. S. 1919, shows that salaries were fixed according to classification of counties by population. There is nothing in the act to lead to the inference that the Legislature intended to make use of a method of determining the populations of the counties that would not be fair and approximately serve the purpose. It was the same method that had been in use in the State for over fifty years. But for that long period of time only males could vote, and it seems very evident that the Legislature used the term "votes" in the same way and with the same sense that it had been previously used for decades. If it now be held that the word "votes" as used in the act includes women votes also, it is apparent that the vote will be largely increased and in many counties even doubled, depending on how many of the women took advantage of the new franchise, for the number of males and females are practically the same. (c) This court has held that it will take judicial notice of the United States census returns and also of the election returns and contents of the Official Manual of the State. Carter Co. v. Huett, 259 S.W. 1057; State ex rel. v. Walker, 257 S.W. 470. If a plain simple construction be put on said act, one evidently in accord with the intention of the Legislature when the act was passed, and the census be the guide to the classification, all of these worries, inequalities, impossibilities, split and jumbled classifications disappear. (2) The word "voters" used in the concluding paragraph of the 1919 Act means "male votes," and should be so interpreted. Such was the sense in which it was used by the Legislature at the time of the passage of the act, which intention is controlling, and populations are to be based on the census of 1920. (a) Words are often omitted, or supplied by implication, and sentences transformed to render the statute a consistent whole and effectuate the legislative will, which is the paramount thing to be determined. 25 R. C. L. 1078; Dubois v. Hepburn, 10 Pet. 1; State v. Lowry, 166 Ind. 372; Bingham v. Birmingham, 103 Mo. 345; State ex rel. Auld v. Field, 112 Mo. 554; Henry & Co. v. Evans, 97 Mo. 52. (b) The real intent and purpose of the Legislature will prevail over the literal import of the words used. When the intention is discernible it will stand as the letter of the law, and will prevail over the strict letter. 25 R. C. L. 968, sec. 222, and page 959; Humes v. Mo. Pac. Ry., 82 Mo. 221; Grimes v. Eddy, 126 Mo. 168; Boyd v. Mo. Pac. Ry., 249 Mo. 110; Kane v. Ry., 112 Mo. 34; State ex rel. v. Talty, 166 Mo. 529; Riddick v. Walsh, 15 Mo. 519; Cole v. Skainka, 105 Mo. 303; Coonce v. Munday, 3 Mo. 337; United States v. Freeman, 3 How. 556; The Paquette Habana, 175 U.S. 677; United States v. Corliss Engine Co., 91 U.S. 321; McHenry v. Alford, 168 U.S. 196; State v. Husford, 35 R. I. 387; Young v. Regents, 87 Kan. 239; State v. Yay, 45 Utah 411. (c) When a statute is fairly susceptible of two constructions, the injustice, unreasonableness, absurdity, hardship or even inconvenience that may follow one construction may be properly considered, and a construction placed on it that will avoid such objectionable consequences and advance what will be presumed to be its true object and purpose. Lumber Co. v. Mo. Pac. Ry., 216 Mo. 658; 25 R. C. L. 1018, sec. 255; Norval Shapleigh Co. v. Cook, 178 Mo. 189; Bowers v. Smith, 111 Mo. 45; State ex rel. v. Ry., 105 Mo.App. 207; Neenan v. Smity, 50 Mo. 525; State ex rel. v. Becker, 233 S.W. 649. (3) The Act of 1921, classifying counties and fixing salaries of prosecuting attorneys, is a valid law, and only the second proviso is void, and the rest of the statute with that excinded should stand as the governing law. (a) The Legislature may reduce salaries of county officers, even during the term for which they were elected, and there is no constitutional inhibition against so doing. Givens v. Daviess County, 107 Mo. 603; Lycett v. Wolff, 45 Mo.App. 496; State ex rel. Bailey, 272 S.W. 921. (b) When called upon to pronounce invalid an act of legislation which has been passed with all of the forms and solemnities requisite to give it force of law, the question becomes one of high delicacy and discriminating use of judicial power. Courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt. State ex rel. v. McIntosh, 205 Mo. 602; State ex rel. v. Warner, 197 Mo. 656; People v. Thompson, 155 Ill. 460. (c) The natural and appropriate office of a proviso is to restrain or qualify some preceding matter. It should be construed to include no matter not within the letter of the proviso. Since the office of a proviso is not to repeal the main provisions of the act, but to limit their application, no proviso should be so construed as to destroy those provisions. Stump v. Hornbeck, 94 Mo. 25; Bingham v. Birmingham, 103 Mo. 345; Gist v. Const. Co., 224 Mo. 388; State ex rel. v. Bates, 225 Mo. 262; Greene...