The State ex rel. Summers v. Hamilton

• Decision Date: 22 December 1925
• Docket Number: 26493
• Citation: 279 S.W. 33,312 Mo. 157
• Parties: THE STATE ex rel. GEORGE S. SUMMERS, Clerk of Circuit Court of Crawford County, v. GEORGE B. HAMILTON et al., Judges of County Court of Crawford County
• Court: Missouri Supreme Court

279 S.W. 33

312 Mo. 157

THE STATE ex rel. GEORGE S. SUMMERS, Clerk of Circuit Court of Crawford County, v. GEORGE B. HAMILTON et al., Judges of County Court of Crawford County

No. 26493

Supreme Court of Missouri

December 22, 1925

Writ made absolute.

Gratia Woodside Monegan for relator.

(1) The Act of 1921, Laws 1921, p. 606, attempting to regulate the salary of circuit clerks, is unconstitutional and should not have been followed by the county court in determining the relator's salary. Art. 12, sec. 9, Mo. Const. It was the duty of the Legislature to pass a law that would regulate the fees of all county officers, and that law was required to be uniform in its operation. This provision is mandatory and a law passed which does not comply with it is void. State ex rel. McCaffrey v. Bailey, 304 Mo. 444; State ex rel. Moss v. Hamilton, 303 Mo. 302. (2) Sec. 11016, Ch 100, R. S. 1919, is general and uniform in its operation and provides that the population of any county shall be determined (for the purposes of ascertaining the salaries of county officers) by multiplying the vote cast at the last general election by five. This section was not referred to in any way by the amendment of 1921. And this law is in effect until amended by the Legislature. Secs. 10995, 11016, Ch 100, R. S. 1919. (3) If a law operates upon all persons alike who come within its scope it is general and not subject to the denunciation of Sec. 53, Art. 4, of the Constitution, but if upon the other hand it operates only upon a portion of such persons it is a special law and subject to the inhibitions of said constitutional provision. State ex rel. v. Taylor, 224 Mo. 447. A statute which relates to persons or things as a class is a general law while a statute which relates to particular things or persons of a class is special and that classification does not depend upon numbers. State ex rel. Lionberger v. Towle, 71 Mo. 650. (4) The Constitution provides that no law shall contain more than one subject which shall be clearly expressed in its title. Sec. 28, Art. 4, Mo. Constitution. It cannot be said that in attempting to amend Chapter 100, the title of the act denominating it Chapter 123, clearly expressed the subject. (5) There is no merit in the contention that the judges of the county court having fixed the salary of the circuit clerk immediately following the presidential election it was fixed and determined for a period of four years, and that it could not be changed. (a) No action of the county court in fixing and determining the relator's salary at a wrong amount is so binding upon relator as to preclude his recovery of the balance of the amount due him. State ex rel. Moss v Hamilton, 303 Mo. 302. Transactions between public officials as to public funds are governed by the laws and statutes prescribing the duties of such officials. A mistake upon the part of one of them whether as to law or as to fact is open to question and must be rectified, so as to conform to the requirements of the law. State ex rel. Moss v. Hamilton, supra. (b) There is nothing in this case that would estop relator from demanding and receiving from the County of Crawford the full legal salary due him. Relator was bound under penalty to pay the fees of the office into the county treasury at the end of each month. And the court was equally bound to pay relator his lawful salary at the end of each month. R. S. 1919, sec. 11021. Receiving a part of his salary would not constitute an estoppel against relator so as to prevent him claiming the balance due him. Burke v. Murphy, 272 Mo. 411; United States v. Langston, 118 U.S. 389. (c) The essential element of equitable estoppel is that the person claiming it must have been misled into such action that he will suffer injury if the estoppel is not declared. That is, the person setting up the estoppel must have been induced to alter his position in such a way that he will be injured if the other person is not held to the representation on which the estoppel is predicated. State ex rel. Moss v. Hamilton, 303 Mo. 302; Driskell v. Masters, 31 Mo. 325; Kline v. Croeschner, 280 Mo. 613; Lamar Township v. Lamar, 261 Mo. 171; State ex rel. v. Scott, 270 Mo. 153. (6) Res adjudicata does not apply in this case. In order to have a former adjudication of the matters in this suit, there must have been a court of competent jurisdiction before whom the matters in controversy have been submitted, trial had and judgment rendered. 23 Cyc. 1219. It is a well-settled doctrine in this State that settlements with a county court are not judicial proceedings. Scott ex rel. Christian Co. v. Leftwich, 145 Mo. 32; Marion Co. v. Phillips, 45 Mo. 75; Sear v. Stone, 105 Mo. 242; Cole v. Dallmeyer, 101 Mo. 57; Carroll Co. v. Roberts, 62 Mo. 388; Carroll Co. v. Roberts, 60 Mo. 404.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On June 5, 1925, George S. Summers, Clerk of the Circuit Court of Crawford County, Missouri, as relator, filed in this court an application for a writ of mandamus, to compel George B. Hamilton et al., as judges of the County Court of Crawford County aforesaid, to issue warrants on the county treasurer of said county for the sum of $ 700, the amount claimed to be due him on his salary for the years 1923 and 1924, and for the sum of $ 29.17 per month for the time he has served during the year 1925, in settlement of the balance claimed to be due him on his salary as clerk aforesaid, and for such other relief as may be proper, etc.

The petition alleges that relator was elected Clerk of the Circuit Court of Crawford County, at the November election, 1922; that he duly qualified as such officer and has discharged all the duties thereof from the first day of January, 1923, to the commencement of this action, on June 5, 1925; that respondents are the judges of the County Court of Crawford County aforesaid; that under the law during the period aforesaid it was the duty of relator to pay to the county treasurer of said county all the fees that accrued in his office as clerk aforesaid, and that he faithfully performed said duty; that under the law it was the duty of respondents to pay relator monthly from the county treasury his salary as such clerk; that said salary was based by law on the population of the county and that said population should have been ascertained by multiplying the vote cast at the last Presidential election prior to the time of such determination, by five; that at the Presidential election of 1920, held in November of said year, there were cast in said county 4,359 votes, which, multiplied by five, would make 21,795, the population of said county upon which to fix the salary of relator as clerk aforesaid; that at the Presidential election in 1924, there were cast 4,189 votes, which, multiplied by five, would make the population of said county 20,945 upon which to base the salary of said clerk; that under the law in counties having a population of 20,000 and less than 25,000, during all the term of service of said relator as such clerk, the salary of the clerk of the circuit court was $ 1950 per annum, and during all the time of the service of the relator as such clerk his salary was fixed by law at $ 1950 per annum; that respondents have refused to pay relator his salary as such clerk at the rate of $ 1950 per annum, but on the contrary have paid him as salary at the rate of $ 1600 per annum; that relator was ignorant of the population of said county and of the amount of salary that was due him, and that he took and received his salary as aforesaid at the rate of $ 1600 per annum, without any intent on his part to waive any rights which he had, or might have, to receive a greater salary than that offered him by the county court; that there was no settlement whatever of the matter between him and the county court, but the latter simply caused to be issued to him warrants at the rate of $ 1600 per annum, and relator took the same in ignorance of the amount due him; that there is now due relator the sum of $ 700, on his salary for the years 1923 and 1924, and $ 29.17 per month for the time that he has served as such clerk in the year 1925; that relator has made demand from the said County Court of Crawford County for the payment of the same, but said county court has failed and refused to pay the same to relator; that he is informed that said county court bases its refusal to pay him his salary at the rate of $ 1950 per annum, on an act passed by the Legislature and approved April 1, 1921, under which it was provided that, for the purposes of said act, the population of any county should be determined by multiplying by three and one-half the total number of votes cast in such county, at the last Presidential election prior to such determination; that in determining the population of any county as a basis for ascertaining the salary of any county officer, the highest number of votes cast at the last previous Presidential election should be multiplied by five; that Section 11016, Article 2, Chapter 100, Revised Statutes 1919, is the law that has been in force during the whole of relator's occupancy of said office; that said Act of 1921, which respondents have followed in fixing the population aforesaid, is unconstitutional; that Section 12 of Article 9 of the present Missouri Constitution provides as follows:

"The General Assembly shall, by a law uniform in its operation, provide for and regulate the fees of all county officers and for this purpose may classify the counties by population."

It is further alleged by relator, that at the session of the Legislature of Missouri in 1921, an act was passed providing for the determination of the population of the different counties in the State for fixing the salary of prosecuting...