142 S.W.2d 665 | Mo. | 1940
Lead Opinion
This is an action to recover from Buchanan County $3000 for the balance of respondent's salary claimed to be due for the years 1933 and 1934 as a county judge. Plaintiff had judgment for the full amount claimed, with interest from the time he commenced suit, and defendant has appealed.
Plaintiff was elected in 1932 for a term commencing January 1, 1933, and ending December 31, 1934. Plaintiff was paid $3000 for each of said years, but claims that he was entitled to be paid $4500 per year, or $125 per month more than he was paid. [Laws 1931, p. 190, which repealed Sec. 2092, R.S. 1929, and enacted a new Sec. 2092; and Sec. 11808, R.S. 1929.] Defendant admits that plaintiff was entitled to collect a salary of $4500 for the year 1933. [See Ruffin v. Greene County,
[1] Defendant admits that the Buchanan County Court was in the $4500 salary class, made by Laws 1931, p. 190, enacting a new section in lieu of Sec. 2092, R.S. 1929, under the method of classification provided in Sec. 11808, R.S. 1929; namely, that "for the purpose of determining the population of any county in this State, as a basis for ascertaining the salary of any county officer for any year . . . the highest number of votes cast at the last previous general election, whether heretofore or hereafter held in such county, for any office, shall be multiplied by five." However, defendant relies upon Sec. 2092a (Laws 1933, p. 209) thereafter enacted, providing "that the number of inhabitants of any county for the purpose of the above section 2092 shall be ascertained by the last decenial census of the United States." Defendant recognizes our constitutional prohibition (Sec. 33, Art. 6) against diminishing compensation of judges of courts of record (which includes county courts, Sec. 36, Art. 6) "during the period for which they were elected." However, defendant says "that Sec. 11808, R.S. 1929, amounts in effect to a rule of evidence, by which the number of inhabitants in a county is to be determined;" that plaintiff's salary "was dependent on the population," which "was the sole test;" and that the 1933 Act (Laws 1933, p. 209, sec. 2092a) did not "change the rate of pay of any county judge;" but that "the method of ascertaining the truth about the population was all that was changed." The trouble with this argument is that it looks only to the form and not to the substance of the matter. The real effect of Sec. 11808, R.S. 1929, and other similar statutes, is to make the number of votes cast in a county, rather than the number of people living in it, the basis of classification for salaries of its county officers; and we have held that "actual population is not required for a valid classification," but instead, the Legislature "could take the presidential vote as a basis for classification, or could take any multiple of such vote as a basis of classification." (Likewise it could select taxable wealth or amount of taxes levied or some other reasonable basis.) [Perkins v. Burks,
[2] Defendant further contends that plaintiff cannot recover any additional amount for 1934 salary because of Sec. 12, Art. 10 of our Constitution. Defendant says: "The income and revenue provided for such year, has been completely exhausted by warrants issued against it during the year 1934, and consequently the rendering of any additional judgment based on a claim arising out of transactions and matters occurring in the year 1934 would necessarily result in `allowing' the county to become indebted in the year 1934 for a sum in excess of the income and revenue provided for that year." However, the evidence (agreed facts) upon which defendant relies is not sufficient to show that judgment for the balance of plaintiff's 1934 salary would be prohibited by this constitutional provision. After plaintiff's prima facie showing of an obligation which the Legislature had imposed on the county to pay, "the burden was on defendant as to any affirmative defense that such an obligation was void because of this constitutional provision." [Clarence Special School District v. School District No. 67,
[3] Defendant also contends that plaintiff is not entitled to recover because there was not a sufficient amount provided in the 1934 county budget for county court salaries to pay salaries of $4500 each. (Only $840 more than the total of salaries figured at $3000 each was included in the salary fund for the county court.) However, as hereinabove noted, salaries of county judges are fixed by the Legislature and the Constitution prevents even the Legislature from changing them during the terms for which they were elected. Surely, the county court cannot change them, by either inadvertently or intentionally providing greater or less amounts in the salary fund in *606
the budget. The action of the Legislature in fixing salaries of county officers is in effect a direction to the county court to include the necessary amounts in the budget. Such statutes are not in conflict with the County Budget Law but must be read and considered with it in construing it. They amount to a mandate to the county court to budget such amounts. Surely no mere failure to recognize in the budget this annual obligation of the county to pay such salaries could set aside this legislative mandate and prevent the creation of this obligation imposed by proper authority. Certainly such obligations imposed by the Legislature were intended to have priority over other items as to which the county court had discretion to determine whether or not obligations concerning them should be incurred. They must be considered to be in the budget every year because the Legislature has put them in and only the Legislature can take them out or take out any part of these amounts. This court has held that the purpose of the County Budget Law was "to compel . . . county courts to comply with the constitutional provision, Section 12, Article 10" by providing "ways and means for a county to record the obligations incurred and thereby enable it to keep the expenditures within the income." [Traub v. Buchanan County,
[4] Defendant, however, contends that plaintiff should be estopped from enforcing this claim both because he failed to demand payment during the year 1934 "before the income and revenue provided for that year had been fully expended, incumbered or exhausted;" and because he was guilty of a breach of duty (since he was one of the officers charged with the management of the county's financial affairs) in failing to comply with the County Budget Law and in participating in the authorization of expenditures in excess of the revenue provided for the year of 1934. As to the first, we find nothing in the agreed statement of facts about when plaintiff first claimed that he had not been paid his full salary. Nevertheless, this court has consistently held that mere failure to claim the balance at *607 the time is not a proper basis for estoppel in these cases. There are several reasons for this, all based upon the following differences between public office and private employment and the different situation of a municipal corporation or a governmental subdivision of the State from a private person or corporation:
First: Payment of salaries fixed by the Legislature is a duty imposed upon the county by the Legislature, and the county is not entitled to assume that by paying a part of this obligation it has discharged the entire debt.
Second: To permit estoppel in such cases would make it impossible for executive or administrative officers to encroach upon and exercise the legislative functions of fixing salaries of other officers and even ignore the action of the Legislature with regard to them. This is against public policy for many reasons.
Third: Failure to make a prompt claim cannot mislead a county to its detriment as it might in the case of an individual or private corporation, because a county can only be compelled to make payment out of tax revenue when there is a surplus in any year after all necessary charges have been met, or by a levy when it is not necessary to levy the full amount authorized by constitutional limitations to meet essential expenses; or, if it cannot thus create a surplus or raise funds by levy, to pay otherwise when a bond issue is authorized by the required majority of its citizens, willing to approve it by their votes. [See State ex rel. Moss v. Hamilton,
Plaintiff, therefore, as the result of the failure to make an earlier claim, has placed himself in a position where, even if he obtains judgment, he can only collect it under one of the above stated situations. Should plaintiff also be completely barred by estoppel from even obtaining a judgment for the valid obligation of the county to pay the balance of his 1934 salary because, as a member of the county court (with the duty to approve a correct budget and to keep obligations and expenditures within the revenue provided), he participated in authorization of expenditures during that year in total amount greater than the applicable amount of revenue? There is no claim of bad faith, willful neglect or of corrupt, malicious, fraudulent or wrongful intent; or that failure to budget or reserve funds to pay the full amount of salary provided by law for members of the county court was due to anything else than lack of knowledge as to the proper construction of applicable statutes fixing the amount *608
due. The number of cases in this court concerning county officers' salaries (determined on the basis of election votes), since the adoption of the 19th Amendment to the United States Constitution changed the original situation, shows that such misunderstandings have been common. The record in this case consists of the facts and figures of the agreed statement which are only what the written records of the county show. There is no evidence as to surrounding circumstances or to show what, if any, detrimental effects resulted or what subsequent conditions were. There was a credit balance in some county funds at the beginning of 1934; and while these funds may not have been available for 1934 obligations as defendant contends, it does not appear upon what advice plaintiff (or other members of the county court) acted or what they sought. The laws of this State fixing salaries of county officers were not clear (at least prior to the 1933 amendments) and set up different standards for various offices. These statutes were not plain (on the face of each statute itself); and the county court salary statute (Sec. 2092) did not settle the matter by its own terms but required construction with other statutes. Members of county courts are not required to be learned in the law, and they perform mainly executive and administrative functions. The Legislature fixes their salaries and also their duties. It has provided penalties for willful, corrupt or fraudulent violation or neglect of any official duty, including removal from office by the methods provided in Sections 11202-11209, R.S. 1929 (9 Mo. Stat. Ann. 6143-6146), and criminal prosecution under Sections 3945-3950, R.S. 1929.[4 Mo. Stat. Ann. 2761-2763.] Forfeiture may be declared and a fine imposed for such violation or neglect under quo warranto proceedings. [State ex inf. McKittrick v. Wymore,
The judgment is affirmed, as of the date rendered, except as to the sum of Eight Hundred Ninety-two and 50/100 Dollars, which has been remitted as of date of judgment, and said sum so remitted is to be deducted from said judgment of Three Thousand Sixty and No/100 Dollars and accrued interest. Bradley and Dalton, CC., concur.
Addendum
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.