Petition for mandamus by W. E. Wiles against Samuel H. Williams. From a judgment denying a peremptory writ, relator appeals. Affirmed.
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 1st 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 [pages 1838, and 2638, Ann. St. 1906], and section numbered 3237a (Laws 1907, p. 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 $2,500 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 $2,500 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, Mo. 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 1, 1909, out of money in the treasury appropriated for salary fund. Given at my office in Maryville, Mo., this 1st 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, Mo., 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:
"(1) 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 [Ann. St. 1906, p. 4638], known as the township organization laws, which was on the ____ day of November, 1906, adopted in said county.
"(2) 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.
"(3) Res...
