The State ex rel. McCaffrey v. Bailey

• Decision Date: 23 May 1925
• Docket Number: 24241
• Citation: 272 S.W. 921,308 Mo. 444
• Parties: THE STATE ex rel. CHARLES F. McCAFFREY v. E. T. BAILEY et al., Judges of County Court of Nodaway County, Appellants
• Court: Missouri Supreme Court

272 S.W. 921

308 Mo. 444

THE STATE ex rel. CHARLES F. McCAFFREY v. E. T. BAILEY et al., Judges of County Court of Nodaway County, Appellants

No. 24241

Supreme Court of Missouri

May 23, 1925

Appeal from Nodaway Circuit Court; Hon. John M. Dawson Judge.

Affirmed.

A. F Harvey for appellants.

(1) In mandamus proceedings the relator must show that he has a clear legal right to what he demands, otherwise his suit must fail. State ex rel. Bigham v. Williams, 250 S.W. 44; State ex rel. Pub. Serv. Comm. v. Mo. Pac. Ry. Co., 280 Mo. 456; State ex rel. v. Stone, 269 Mo. 334; State ex rel. v. McIntosh, 205 Mo. 589, 610. (2) The salary of the Prosecuting Attorney of Nodaway County from and after June 21st is governed by the provisions of the Act of March 31, 1921, Laws 1921, p. 574. (3) Section 734, Revised Statutes 1919, did not govern the salary of the Prosecuting Attorney of Nodaway County on November 2, 1920, because said act only purports to fix such salaries "on and after the first day of January, 1921." Laws 1919, pp. 672, 673; State ex rel. Brunjes v. Bockelman, 240 S.W. 209. (4) The very purpose of the Act of 1921, (Laws 1921, p. 574) was to reduce the salaries of prosecuting attorneys then in office, as well as those thereafter holding such office, as the language of the emergency clause clearly indicates. Such reduction was proper and lawful and all such prosecuting attorneys thereafter continuing in office would be subject to the provisions of the 1921 law, and entitled to only such salary as it provided. Gregory v. Kansas City, 244 Mo. 523; State ex inf. v. Evans, 166 Mo. 347; Givens v. Daviess County, 107 Mo. 603; Westberg v. City of Kansas, 64 Mo. 493; State ex rel. v. Davis, 44 Mo. 129; Lycett v. Wolff, 45 Mo.App. 489. (5) The case of State ex rel. Brunjes v. Bockelman, 240 S.W. 209, is not authority on the effect of the Act of 1921, for the reason that in the Brunjes case the court was prevented from passing on the effect of the act on account of an agreement set out in respondents' brief to the effect that the amount of salary must be determined under the provisions of Sec. 734, R. S. 1919 (Laws 1919, p. 672), and could not be defeated or diminished by virtue of the amendatory Act of 1921. (6) If the Act of 1921 is to be challenged as unconstitutional, it must be done by the application for the alternative writ and not by reply. The application and alternative writ are insufficient to sustain the judgment in this cause. Jenning v. Cherry, 257 S.W. 441; Smissman v. Wells, 255 S.W. 937; Ross-Saskatoon Lbr. Co. v. Turner, 253 S.W. 123; State ex rel. Crow v. Carothers, 222 S.W. 1043. Laws enacted by the Legislature are presumed to be valid, and even if defective, because in violation of some provision of the Constitution, they are not void but merely voidable upon proper complaint. State ex rel. Insurance Co. v. Blake, 241 Mo. 107.

Willard P. Cave, amicus curiae.

(1) The Act of 1921, is constitutional and valid. (a) It concerns only one subject, to-wit: Salaries of Prosecuting Attorneys. Laws 1921, p. 574; Sec. 28, art. 4, Constitution of Missouri; State v. McEniry, 269 Mo. 228; Booth v. Scott, 205 S.W. 633; State ex rel. v. County Court, 128 Mo. 427; Burge v. Railroad, 244 Mo. 76; Booth v. Scott, 205 S.W. 633; Nalley v. Home Ins. Co., 250 Mo. 452; State ex rel. v. Farmer, 271 Mo. 306. (b) Said act does not violate Section 8 of Article 14 of the Constitution or any other section thereof, because it decreases the salary of prosecuting attorneys: Said Section 8 provides that the compensation or fees of no state, county or municipal officer shall be increased during his term of office. Gregory v. Kansas City, 244 Mo. 550; Lycett v. Wolff, 45 Mo.App. 489. "There is no vested right in an office or position created by the legislative department of the nation or of a state or municipality thereof." Gregory v. Kansas City, 244 Mo. 550; State ex rel. v. Davis, 44 Mo. 129; Butler v. Pennsylvania, 51 U.S. 402; People v. Brown, 83 Ill. 97; Crenshaw v. United States, 134 U.S. 99. The Legislature has power to fix the salaries of prosecuting attorneys, and may change them in any manner it sees fit to adopt, unless expressly limited by the Constitution. The only limitation contained therein, is found in Section 8, Article 14, of the Constitution, which forbids any increase in compensation during the term of office of the officer whose compensation is affected. (2) The result in the case of Brunjes v. Bockelman, 240 S.W. 209, does not bind the defendants in this case, because stipulations as to the law and the proper interpretation thereof, do not bind any one not a party to such stipulation. "There was nothing whatever said in the agreement as to the sufficiency of the petition, and even if there had been it would have availed nothing, for the reason that the sufficiency of the petition is a question of law, as to which no valid agreement could have been made." Wells v. Mutual Benefit Assn., 126 Mo. 639; Edmonson v. Phillips, 73 Mo. 63; Berkshire v. Mo. Pac. Ry., 28 Mo.App. 225. Agreed statements are as to the facts, and never as to the law; this is self-evident. The court's duty is to decide what the law is, and it is outside the province of litigants or their attorneys to attempt to bind the court by any stipulations or agreements as to the law of the case.

Ellis G. Cook, Cook & Cummins, E. E. Williams and John T. Barker for respondent.

(1) The lower court held the Act of 1921 unconstitutional. If such finding was correct, even though based on erroneous reasons, it will be upheld. State ex-rel. v. Smith, 141 Mo. 9; Bissell v. Ward, 129 Mo. 452; Heynbrock v. Hermann, 256 Mo. 37; Love v. Love, 250 Mo. 491; County v. County, 257 Mo. 392. (2) The case of Brunjes v. Bockelman, 240 S.W. 209, is controlling on all the issues in this case. Smith v. Webster County, 256 S.W. 829. (3) County officers constitute a class. The attempt to separate the prosecuting attorney from such class, and to fix his salary on a different ratio of population than other county officers, makes the Act of 1921 void. Sec. 12, art. 9, Mo. Constitution; State ex rel. v. Railroad, 246 Mo. 514; State ex rel. v. Taylor, 224 Mo. 477; State v. Julow, 129 Mo. 176; 1 Lewis's Sutherland on Stat. Con., 7199. (4) The Act of 1921 is unconstitutional because it is a local or special law. Sec. 53, art. 4, par. 32, Mo. Constitution; State ex inf. v. Hedrick, 241 S.W. 425; State ex rel. v. Gordon, 236 Mo. 162; State ex rel. v. Hermann, 75 Mo. 340; State v. Walsh, 136 Mo. 405; State ex rel. v. Kimmel, 256 Mo. 639; State ex rel. v. Roach, 258 Mo. 563; Wheeler v. Philadelphia, 77 Pa. St. 338; Cooley's Const. Lim. (6 Ed.) 481, 482; Lige v. Railroad, 204 S.W. 510. (5) The Act of 1921 is in conflict with Section 33 of Article IV, Constitution of Missouri. French v. Woodward, 58 Mo. 66; Lewis v. Dunne, 55 L. R. A. 833. (6) The Act of 1921 is in conflict with Section 53 of Article IV, Paragraph 33, Constitution of Missouri. Henderson v. Koenig, 168 Mo. 370. (7) It is now well settled that when an act is repealed and re-enacted, the repeal does not take effect until the law as re-enacted takes effect and begins to operate. State ex rel. v. Mason, 153 Mo. 58; State v. Thomas, 138 Mo. 100; Jodd v. Railroad, 259 Mo. 241; Copeland v. St. Joseph, 126 Mo. 417; Fahey v. Hackmann, 237 S.W. 752; Brown v. Marshall, 241 Mo. 728; State ex rel. v. Court, 53 Mo. 128.

M. J. Lilly and A. R. Hammett, amici curiae.

(1) The Act of 1921, Laws 1921, p. 574, attempting to repeal Sec. 734, R. S. 1919, is invalid and unconstitutional, and does not affect plaintiff's salary, for the following reasons: (a) It conflicts with Sec. 12, art. 9, Missouri Constitution, in that it does not, by law uniform in operation, regulate the fees of all county officers, and does not, by law uniform in operation, classify the counties by population. See provisos to Act of 1921; State ex rel. v. Roach, 258 Mo. 566. (b) The second proviso is in conflict with Section 33, art. 4, Missouri Constitution. Lewis v. Dunne, 55 L. R. A. 833. Prosecuting attorneys in office at the time of the passage of the act, are not to be paid according to population but according to the amount paid to their predecessors, who held office on November 2, 1920. (c) The 1921 Act, after providing for the salaries of future prosecuting attorneys upon a population basis, the population to be left to the county court to determine which means it would employ with reference to fixing the prosecuting attorney's salary, then excepting the prosecuting attorneys in office at the time of the enactment of the statute, leaves to the county court to use its discretion as to what salary it shall pay its future prosecuting attorneys. It leaves the entire law in clear violation of Sec. 12, Article IX, Constitution of Missouri. There can be no uniformity about such a law.

OPINION

Ragland, J.

At the general election held November 2, 1920 relator was elected Prosecuting Attorney of Nodaway County, and thereafter served as such for the term of two years, beginning January 1, 1921. At the time of his induction into office the salaries of prosecuting attorneys were provided for and regulated by Section 734, Revised Statutes 1919. Subsequently and at the session of 1921 the Legislature passed an act which purported to expressly repeal Section 734 and enact a new section in lieu thereof. [Laws 1921, p. 574.] Under Section 734 the salary of the Prosecuting Attorney of Nodaway County was $ 5,000 a year; the Act of 1921, if valid, operated to reduce it to $ 2,000 on and after June 21, 1921. Relator contends, however, that the act was void and consequently that he was entitled during the whole of his term to the salary provided for by Section 734. The constitutionality of the repealing act is,...