WOODSON
J.
This is
a petition for mandamus, instituted by the relator as
prosecuting attorney of Nodaway county against the
respondent, as treasurer thereof, seeking to compel the
latter to pay a warrant for $ 208.33, drawn by the clerk of
the circuit court of said county in favor of the former for
his salary as such attorney for the month of April, 1909, as
provided for by the Act of March 29, 1907, Laws 1907, p. 274.
An alternative writ of mandamus was issued by the circuit
court, and in due time the respondent filed his return
thereto. A trial was had before a special judge, selected
according to law, which resulted in a finding for respondent
and a judgment denying the peremptory writ. From that
judgment the relator appealed.
The
legal propositions presented for adjudication will better
appear by a presentation of the alternative writ, and the
respondent's return thereto. The former reads as follows
(formal parts omitted):
"To Samuel H. Williams, Treasurer of Nodaway
County, Greeting:
"Whereas,
It has been represented to the judge of the circuit court of
Nodaway county,
in the State of Missouri, by the petition of W. E. Wiles, as
follows, to-wit:
"Your
petitioner, W. E. Wiles, respectfully represents that he is
the duly elected, qualified and acting prosecuting attorney,
within and for the county of Nodaway and State of Missouri;
that on the 1st day of January, 1909, he entered upon the
duties of said office and has ever since and to this date has
performed the duties and services of such officer; that he
was elected to said office on the 3d day of November, 1908,
and duly commissioned by the Governor of said State to hold
said office for a period of two years, beginning on the first
day of January, 1909.
"Your
petitioner further represents that Eugene Rathbun and Samuel
H. Williams are respectively the duly elected, qualified and
acting clerk of the circuit court, and treasurer of said
Nodaway county.
"Your
petitioner further states that under and by the provisions of
the law of the State of Missouri, as contained in sections
numbered 3237 and 4949, Revised Statutes of 1899, and section
numbered 3237a, Laws of 1907, page 274, the salary of the
prosecuting attorney in all counties in said State, having a
population of 32,000 or over and less than 50,000
inhabitants, as ascertained by the United States census of
1900, is fixed at $ 2500 per year, to be paid monthly by
warrants drawn by the circuit clerk upon the county
treasurer; that said Nodaway county has a population of more
than 32,000 inhabitants and less than 50,000 inhabitants, as
is required by the aforesaid sections, and your petitioner as
such prosecuting attorney is entitled thereunder to the sum
of $ 2500 per year as his salary for the performance of the
duties of his said office.
"Your
petitioner further represents that on the 1st
day of May, 1909, he filed with the said Eugene Rathbun,
circuit clerk as aforesaid, a statement showing the amount
due him as his salary aforesaid for the month of April, 1909;
that thereupon the said Eugene Rathbun, as said circuit
clerk, issued and delivered to petitioner a warrant drawn on
the treasurer of said county in the sum of $ 208.33, the same
being the amount due petitioner as his salary for said month
of April, and which said warrant is in words and figures as
follows:
No. 4. $ 208.33. Treasurer of Nodaway County, Missouri. Pay
to W. E. Wiles, two hundred eight and 33/100 dollars. For one
month's salary as prosecuting attorney from April 1,
1909, to May, 1909. Out of money in the treasury appropriated
for Salary Fund. Given at my office in Maryville, Missouri,
this first day of May, 1909.
(Seal) EUGENE RATHBUN, Circuit Clerk.
"Your
petitioner further presents that on the 3d day of May, 1909,
he presented said warrant to the said Samuel H. Williams, in
the office of the said treasurer, and demanded of the said
Samuel H. Williams, as treasurer aforesaid, the payment
thereof; but that the said Samuel H. Williams, as such
treasurer, refused to pay the same or any part thereof to
petitioner; that at the time petitioner presented said
warrant to said treasurer as aforesaid, there was and now is
in said treasury in the keeping of said treasurer sufficient
money belonging to said county and duly appropriated to the
salary fund, to pay said warrant; that said Williams refused
to pay said warrant and declares an intention to continue to
refuse to pay the same, so that petitioner has been and is
unable to secure his aforesaid salary for the said month of
April, as is justly due him and evidenced by said warrant.
"Your
petitioner further states that he is remediless in the
premises by or through ordinary process of proceedings at
law.
"The judge of said court, being willing that due
and speedy justice be done to the said W. E. Wiles in this
behalf, commands you that immediately after the receipt of
this writ you do, without further excuse or delay, upon the
presentation of the aforesaid warrant, pay the same to the
said W. E. Wiles, in full amount as is represented by the
said warrant, or show cause before the circuit court of
Nodaway county, Missouri, held at Maryville in said county on
Monday, the 21st day of June, next ensuing, why you should
not do so.
"Herein
fail not at your peril, and have you then and there this
writ."
The
return of respondent is as follows (formal parts omitted):
"Comes
now Samuel H. Williams and for return to the alternative writ
of mandamus issued in the above entitled cause, says that
said writ should not be awarded against him for the following
reasons:
"1st.
Respondent denies that he is now or was at any time the
county treasurer of Nodaway county, but avers that he is now
and has since April 1, 1909, been the duly elected, qualified
and acting county treasurer and ex-officio collector
of the revenue in and for said Nodaway county, which office
respondent says is another and different office to that of
county treasurer; that Nodaway county is now and was at all
times hereinafter mentioned under and governed by chapter 168
of the Revised Statutes of Missouri of 1899, known as the
township organization laws, which was on the day of November,
1906, adopted in said county.
"2d.
Respondent says that relator is now and has been since
January 1, 1909, the duly elected, qualified and acting
prosecuting attorney in and for said county, having been
elected in November, 1906, and that Eugene Rathbun is the
clerk of the circuit court of said county, and that Nodaway
county had
a population of more than 32,000 and less than 50,000
according to the United States census of 1900; that on the 3d
day of May, 1909, relator presented to said
Samuel H. Williams a purported warrant for the sum of $
208.33, alleging on its face to be the salary of the
prosecuting attorney from April 1, 1909, to May 1, 1909,
which purported warrant was dated May 1, 1909, requesting
said treasurer to pay to relator out of the salary fund of
said Nodaway county said sum, and was signed by Eugene
Rathbun, circuit clerk, and that payment thereof was refused.
"3d.
Respondent denies that under the provisions of sections 3237
and 4949, 3237a, Laws of 1907, page 274, or under any other
sections or any law or statute of the State of Missouri, the
relator as such prosecuting attorney is entitled to a salary
of $ 2500 per annum, or that the same should be paid monthly
by warrants drawn on the county treasurer or any other
person, or drawn by the circuit clerk of said county or any
other person, or paid monthly or at any other time.
"4th.
Respondent denies that there was in the treasury of said
county on said 3d day of May, 1909, or at any time, any money
or funds whatever subject to or which had been lawfully
appropriated for the payment of the alleged warrant aforesaid
or any money or funds of said Nodaway county in his
possession or control which could be lawfully used for such
purpose.
"5th.
Respondent says that as such county treasurer and
ex-officio county collector of said Nodaway county
he has in his charge, possession and control the moneys and
funds belonging to and the property of said county collected
by taxation from its taxpayers; that he holds and retains the
same and pays out said funds as the agent and trustee of said
county and its taxpayers, and as such officer he has no right
and is not permitted by law to pay out or disburse any of
said money or funds to any person or for any purpose except
upon an order of record of the county court first had and
obtained, and upon a warrant therefor drawn and signed by the
presiding judge and clerk of said county court
and in the manner and form provided by article 4, chapter 97,
of the Revised Statutes of 1899.
"6th.
Respondent further says that the county court of said county
by its order of record duly made on April 26, 1909, ordered
and directed this respondent not to pay any warrant drawn by
said Eugene Rathbun out of any fund belonging to said Nodaway
county, which order is in words and figures as follows:
Whereas
the Attorney-General of this State has advised this court,
and this court after due consideration has found and
adjudged, that the act of the General Assembly of Missouri,
approved March 29, 1907, entitled, Fees -- Prosecuting
Attorneys, found on page 274 of the Laws of Missouri of 1907,
is void, unconstitutional and of no effect, it is therefore
ordered and adjudged by the court...
