Young v. Greene County.

• Decision Date: 17 August 1938
• Docket Number: No. 35016.,35016.
• Citation: 119 S.W.2d 369
• Parties: R.A. YOUNG v. COUNTY OF GREENE, Appellant.
• Court: Missouri Supreme Court

119 S.W.2d 369

R.A. YOUNG v. COUNTY OF GREENE, Appellant.

No. 35016.

Supreme Court of Missouri.

Division Two, August 17, 1938.

Appeal from Greene Circuit Court. — Hon. Warren L. White, Judge.

AFFIRMED.

Nat W. Benton and John F. Carr for appellant.

(1) The Act of 1929, upon which respondent's petition is based, is unconstitutional because it violates Article IV, Section 28 of the Constitution of Missouri, which provides: "No bill ... shall contain more than one subject, which shall be clearly expressed in its title." (a) Because the numerical reference to the section sought to be repealed is erroneous. Numerical reference to a section sought to be repealed, if employed alone, must be exact. Southard v. Short, 8 S.W. (2d) 903; State ex rel. v. Wiethaupt, 231 Mo. 460. (b) Because there is more than one subject contained in the act in that it not only sets the compensation of county court judges, but also attempts to abolish Section 10684, Revised Statutes 1919, which provides for compensation of members of the Board of Road Overseers. State ex rel. v. Walker, 34 S.W. (2d) 124; Commonwealth v. Humphrey, 288 Pa. 280, 136 Atl. 213; 59 C.J., 802. (c) Because the subject of the act is not clearly expressed in the title in that numerical reference alone is used to designate the subject and there is no mention whatever made in the section sought to be repealed, as specified, of the compensation of members of the Board of Road Overseers. Mayes v. Garment Workers, 6 S.W. (2d) 333; Clark v. Atchison Ry., 6 S.W. (2d) 954, 313 Mo. 160; State ex rel. v. Thomas, 282 S.W. 34, 313 Mo. 160; State v. Mullinix, 257 S.W. 121, 301 Mo. 385; Ex parte Hutchins, 246 S.W. 186, 296 Mo. 331; State ex rel. v. Marion County, 30 S.W. 103, 31 S.W. 23, 128 Mo. 427; State ex rel. v. Schmoll, 282 S.W. 705; 25 R.C.L., pp. 870, 871; State v. Burgdoerfer, 107 Mo. 30; State v. Great Western Tea Co., 71 S.W. 1011; Vice v. Kirksville, 280 Mo. 348; State v. Sloan, 258 Mo. 305, 167 S.W. 500. (2) The Act of 1929, upon which respondent's petition is based, does not apply to the County of Greene, State of Missouri, because of the existence of another statute, not specifically repealed, particularly applicable to counties of its population as determined by the last preceding decennial census, treating of the identical subject matter. Laws 1925, p. 176; Sec. 2095, R.S. 1929; Davis v. Jasper County, 300 S.W. 493, 318 Mo. 248; State ex rel. v. Grinstead, 282 S.W. 715, 314 Mo. 55; State v. Imhoff, 291 Mo. 603; State v. Taylor, 224 Mo. 466; McVey v. McVey, 51 Mo. 420.

Mann, Mann & Miller, J.R. Schweitzer and James E. Ruffin for respondent.

(1) The determination of respondent's salary as judge of the Greene County Court is governed by the Laws of Missouri, 1929, page 151 (Sec. 2092, R.S. 1929), and by Section 11808, Revised Statutes 1929. (a) The title to the Act of 1929 correctly refers to Section 2588, Revised Statutes 1919, the section which it repeals and reenacts. This is a sufficient expression of the subject matter, since the act is restricted to the general subject covered in the section to which it refers. The numerical reference to the section sought to be repealed constitutes a sufficient title to the act, especially since it pertains only to the subject covered by the properly designated section. State ex rel. Buchanan County v. Imel, 242 Mo. 303, 146 S.W. 783; State v. Doerring, 194 Mo. 413, 92 S.W. 489; State ex rel. Dickason v. County Court, 128 Mo. 440, 30 S.W. 103; Parks v. Santa Fe Ry. Co., 6 S.W. (2d) 960, 319 Mo. 865; Asel v. City of Jefferson, 287 Mo. 205, 229 S.W. 1046; Burge v. Wabash Ry. Co., 244 Mo. 87, 148 S.W. 925; State ex rel. Harmony Drainage Dist. v. Hackmann, 267 S.W. 611, 305 Mo. 685; State v. Brodnax & Essex, 228 Mo. 55, 128 S.W. 177; St. Louis v. Tiefel, 42 Mo. 592; State ex rel. Kirkwood v. Heege, 135 Mo. 118, 36 S.W. 614. (b) All the provisions of the Act of 1929, upon which respondent's petition is based, fairly relate to the compensation of county judges, the same subject contained in the act repealed; all are germane to that subject, and have a natural connection with it. The act deals exclusively with the subject of the section which it repeals, has a natural connection therewith, and attempts to cover only that subject. State ex rel. Buchanan County v. Imel, 242 Mo. 303, 146 S.W. 783; State ex rel. Wiles v. Williams, 232 Mo. 75, 133 S.W. 1; Asel v. City of Jefferson, 287 Mo. 204, 229 S.W. 1046; State v. Doerring, 194 Mo. 408, 92 S.W. 489; Parks v. Santa Fe Ry. Co., 6 S.W. (2d) 960, 319 Mo. 865; State v. Brodnax & Essex, 228 Mo. 53, 128 S.W. 177; Johnson v. Denser, 56 S.W. (2d) 803. (2) The Act of 1925 (Laws 1925, p. 156), upon which appellant attempts to rely, was repealed by the Act of 1929, since both statutes deal with the same subject matter and are in direct conflict. In such a case, both cannot stand and the latter act, by inference, repeals the former, even though it contains no express repealing clause. State ex rel. Mo. Pac. Ry. Co. v. Pub. Serv. Comm., 275 Mo. 60, 204 S.W. 395; State v. Walker, 34 S.W. (2d) 124, 326 Mo. 1233; State ex rel. McCaffrey v. Bailey, 308 Mo. 444, 272 S.W. 921; State ex rel. O'Connor v. Riedel, 329 Mo. 616, 46 S.W. (2d) 131. (3) Appellant having assigned no error as to the action of the trial court in sustaining respondent's demurrer to appellant's counterclaim or in rendering judgment for respondent on appellant's counterclaim, such action of the trial court is not here presented for review and should be affirmed. Burch v. Cleveland, C.C. & St. L. Ry. Co., 328 Mo. 59, 40 S.W. (2d) 693; Perryman v. Mo. Pac. Ry. Co., 326 Mo. 176, 31 S.W. (2d) 7.

COOLEY, C.

This action, instituted in the Circuit Court of Greene County, is to recover the balance of compensation claimed by plaintiff respondent to be due him from Greene County, defendant appellant, for services as judge of the county court and ex officio member of the Board of Equalization and Board of Appeals for the years 1931-1934 inclusive, as provided by Section 2092, Revised Statutes 1929 (Mo. Stat. Ann., p. 2664). Defendant filed a demurrer to plaintiff's petition, and also filed a counterclaim, alleging that plaintiff's compensation is determined by Section 2095, Revised Statutes 1929 (Mo. Stat. Ann., p. 2666), that he had been overpaid, and seeking recovery of the alleged overpayment. Plaintiff demurred to the counterclaim. The trial court overruled defendant's demurrer to plaintiff's petition and sustained plaintiff's demurrer to defendant's counterclaim. Defendant refused to plead further. The court heard evidence on plaintiff's petition and rendered judgment for plaintiff. The evidence is not abstracted. We have for review only the record proper. The appeal presents the question of the constitutionality of said Section 2092, and its applicability to Greene County.

At the general election in November, 1930, plaintiff was elected presiding judge of the county court for the four year term beginning January 1st, 1931, and expiring December 31st, 1934. He qualified and served the full term. His petition alleges in effect that during the time involved the salaries of county judges were fixed according to population, determinable under Section 11808, Revised Statutes 1929 (Mo. Stat. Ann., p. 7025), by multiplying by five the highest number of votes cast at the last previous general election; that by said method of computation Greene County in 1931 and 1932 had a population of 117,060, entitling him, under said Section 2092, to a salary of $2500, which had been paid; that in 1933 and 1934, by said method of computation, the population was 161,595, making his salary $4500 per annum plus $5 per day for services on the Board of Equalization and Board of Appeals, which had not been fully paid. He sues for the difference. The petition sufficiently alleges plaintiff's election, qualification, etc., the amounts paid and claimed to be yet due, and the statutory provisions invoked.

[1] Defendant's demurrer was upon the ground that said Section 2092 is unconstitutional and void because in violation of Section 28 of Article 4 of the State Constitution, which provides that "No bill ... shall contain more than one subject, which shall be clearly expressed in its title;" and upon the further ground that Section 2092, if constitutional, does not apply to Greene County.

In disposing of the demurrers the learned circuit judge, Hon. Warren L. White, filed a "memorandum opinion" which, though not part of the record, is presented to us in respondent's brief. We take the liberty of quoting therefrom. After quoting Section 11808, Judge WHITE thus succinctly, and we think sufficiently, epitomized the history of the statutory provisions involved:

"In 1925 and prior thereto, the compensation of county judges was set at a per diem of $5.00 for each day the county court was in session, by Sec. 2588, R.S. 1919, which made no distinction between different counties. In 1925 an act was passed which is now Sec. 2095, R.S. 1929, which provided a salary of $1500.00 in lieu of the per diem in counties of 70,000-90,000 inhabitants as shown by the last decennial Federal census... . The population of Greene County as shown by the census (of which the court takes judicial notice), was in 1920 69,698 and in 1930 82,929, so that Greene County did not come into the class covered by Sec. 2095 until after the census of 1930. This Act of 1925 is an amendment of the article and chapter governing county courts, and in my opinion did have the effect of repealing Sec. 2588, R.S. 1919 (fixing the $5.00 per diem), in the counties of 70,000-90,000, per the last census, but not repealing Sec. 2588 as applied to other counties.

"In 1929 another act was passed to repeal Sec. 2588, R.S. 1919, and substituting a new Section 2588, providing a salary in lieu of the per diem, varying according to the population as follows: In counties of 60,000 to 90,000 $2,500.00, in counties...