*1 TERM, APRIL 1928.
Bеnjamin Cartright County, Appellant. A. v. (2d) 54. April 11, One,
Division
849- *2 R.O. Fuchett appellant.
R. W. Tener for back plaintiff C.—The sued
ELLISON, county superintendent public him as salary alleged be due *3 county general a peti- filed demurrer his The schools. defendant being oyerruled, county plead refused to tion. The demurrer judgment prosecutes appeal from the this entered for further and of issues will sufficient to sum- plaintiff. In view the raised be following setting closely language, its but petition not marize the it out in full. respondent September .9, 1921, the was the alleged that on
It is Superintendent of qualified Schools of McDonald and duly appointed April .10, in to serve the office until County and that he continued in 1920 рresidential there cast in election at the that votes, and under the law then in force 5,288 salary 24,000 27,000 and less than having population of a counties per of county $1800 schools was superintendеnt year, of the by multiplying the total number of votes to be determined population -presidential five, preceding by county election at the last cast in the county of McDonald w¡hich poрulation and make would 26,440, per year salary from date of his $1800 at fix the of his term. appointment to the end required county alleged pay law court to that the is further It county monthly county treasury; of thе that salary out salary plaintiff monthly at the above rate pay his faffed to
court contrary, paid him but, at the rate of aforesaid, on the period n respondent salary took and that rеceived per year; his $1350 year per ignorance $1350 at the of during in office rate his tenure that, greater sum, ato but did not waive was entitled of the fact he was no larger salary; that there -settlement-whatever right his to the county court, simply but the him and the court between of the matter year per $1350 at rate he received him warrants issued to salary right $1800. to a of his ignorance them ap- respondent from the The then states there is dne petition county salary period pellant upon his for the sum aforesaid 2, 1924, demanded. payment on June thereof was $712.50, and that Judgment prayed $712.50, per with intеrest at six cent for the and for demand, date of costs. from the judgment
The contends the is erroneous because appellant entered applicable make a case under law pleaded facts did not the stakite obviously statutes, The based on two Sections thereto. though Statutes neither is mentioned Revised case) (in pleading. its to this fixes the The former relation county superintendent public in counties schools 18,000 $1350; having population 15,000 between at counties a $1500; having 18,000 21,000 at and in population between 24,000 27,000 having $1800. between counties ascertaining provides The seсtion latter any county in in order to this State determine the highest county schools, the superintendent of number election shall be votes cast agree by parties applies Section multiplied five. Both says case; applicable 11354 also is Section and the using $1800 therein the formula fixed appellant county The contends first mentioned statute. under the applicable Statutes is not thаt Section Revised because 652) (Laws April 1, 1921, p. Act of appointed September year. of that before the rejoins in his brief that the is im amended statute controlling b constitutional, if valid and but even сase per year, to a that the entitled thereunder permit allegations enough, are him to broad recover *4 on that basis. question
At
it should be said the constitutional
is not
the outset
properly
petition
the сourt and will
be noticed. The
is
before
not
wholly
any
appellant
only general
issue.
silent as to
such
The
filed
a
and,
demurrer,
judgment, a brief motion
arrest
the usual
after
point
nothing in
record to show the
was ever
form. There is
the
all,
presented in
circuit court at
unless we draw
inference
the
far
judgment below was for
So
fact that the
from the
respondent’s
A
appears it
the first
brief.
as
is raised for
time
right
recovery
supposed
to
on the
uncon
plaintiff who founds his
question simply
the
stitutionality
statute cannot raise
of an amended
amendment,
basing his
law as it
by ignoring
on the
the
opportunity.
first
must tender thе issue at the
previously stood. He
unconstitutionality
attack the
of
is to
purpose
If the
Nolte,
specifically.
ex
v.
315
rel.
a
attack
[State
statute
it—
89,
282
501;
Board,
ex rel. v. Mo. Dental
84,
State
Mo.
285 W.
292, 302,
Mo.
221 S. W.
quеstion
Sometimes
constitutional
70.]
will
though
be decided
properly raised,
not
if
in the
imbedded
case
absolutely necessary
disposition
but,
to a
thereof,
theory
own
constitutionality
determination of the
of the statute
change
will not
the result in this
nothing
action.
So there
to take
controversy
question
outside of
is,
the usual rule and
we
as
say, not before
court.
Chaney
ex rel.
Grinstead,
v.
[State
55, 66, 282
Mo.
S. W.
Bland,
ex rel.
v.
State
Horton
Mo.
691, 701,
actment is as purpose
“For ascertаining of any county of this provided State order to preced- determine the as ing highest sections, the number of votes east at multiplied by election in said shall be one-half, three and the result will be considered and held for the aforesaid as county: the time persons such Provided that the now holding by the salaries offices, tvhich are determined this sec- end, tion, shall, they to the terms which chosen, are draw paid persons holding sam.e that was such offices genertd 2, the time election November 1920.” emphasized part by appellant printed proviso, is the above to italics. Attention is first сalled the fact that while re spondent holding not is, adoption office “now”—'that at the yet appointed later, appointment the act—but was fill was to unexpired four-year out the pоrtion of a term which was current (Sec. 11343, 1919); when the law became effective R. S. and from argued proviso this it is fully is bound if as as person originally he words, were the elected that term. In other appеllant four-year proviso position to insists the refers or term running passed office per when the enactment vras to not holding sons office—the If is so, incumbents time. entitled, only under terms to statute, pеrtained such that, the office November n we may judicially notice from the official election returns provisions of Sections 11352 and Revised Statutes already was the he has received. says,
But wе are bound what the section are unable agree appellant’s proviso construction correct. The *5 “persons holding (of county superin- declares the the now offices” schоols) paid that was tendent of shall draw the same on 1920, they for which 2, November end of the terms were contemplate language to say “chosen.” To does not and refer
853 holding persons spеcified, the only, office the time them to go contrary directly plainly to what the statute It would states. striking amount to proviso reading law, out the whole into'the in thereof, lieu preceding a reservation that all part the section the shall not Tuesday April, 1923, become effective until first in the (S'ee. 11343, 1919) It. S. super- that in the all county meantime shall respective intendents draw the salaries payаble to their offices on 2, departure November 1920. This is such a the stat- from what say ute does lan- would no have foundation whatever in the .that guage of proviso the enactment. in There not word the indicat- ing designed it was to apply passage, to incumbents inducted its after and we being case, hold does preceding part not. This the govern determining respondent’s salary. statute must
Did support judgment state facts sufficient to respondent says favor 1921 It based act? Superintendent County
was of Schools óf from September 9, April 1921, 10,1923; paid period was for that he that per year, $1350 the rate that pay he received his vouchers ignorance rights; county of his that vote cast preceding presidential 'at made election that he 2, demand for the additional These him, due June allegatiоns sufficient, against respondent’s gen were we think, as (Rodgers eral demurrer Co., 248, v. Western Fire Ins. Mo. Home erroneously 255, 369), notwithstanding W. S. further charged population 24,000 that the was between 27,000 by multiplying as ascertаined the 1920 vote five, $1800, the annual should have been and that amount allegations $712.50. due was All inserted, these were course, pleader because fancied re entitled to Revised, lief 11354, under Section 1919, Statutes instead section, they really but law did not conclusions of petition. pleaded aid entitled to recover facts may rejected allegations under the plusage. law and the other as sur- Ry.
[Taylor v. L. B. Co., 500, St. M. T. 207 Mo. 495, Multiplying 740. the vote of 5288 one-half three and ] provided, 18,508 there made
salary computation, 1919, 11352, and under Section Revised Statutes year. per counties For period tenurе this would in ex $237.92 come to per simple cess of what he At six cent received. interest from June judgment Accordingly, have $254.25. been for judgment the cause is remanded with directions for re to enter spondent $254.25, original August judgment, as of date simple per the same bear interest at six from date per Lindsay Seddon, GO., annum, cent and for costs. concur. *6 adopted Ellison, C., is opinion by The.foregoing PER CURIAM:— Bagland At- Gravеs, Gantt, P. J., opinion court. JJ-,
wood, concur. Tapley Maggie H.W. Lewellen, Annie H. Lewellen, James (2d) 4. W. v. Susie C. Lewellen. 5 S. Appellants, Tapley, One, April Division Logan W. II. and W. W. appellants. Boils for E. Holloway Bussell ATWOOD, Appellants plaintiffs partition suit filed J.— Circuit Court of Audrain an interlocutory which
decree was entered, ordering consent of parties, all a sale all the land for cash, including homestead, reserving disposition hearing homestead value thereof determination final order of distribution. Respondent Lewellen, is the widow of B. who died intestate
April 10, 1923, estate, including seized of certain said real home- stead. The surviving deceased’s sole H. Lewellen heirs were J.