198 Mo. 351 | Mo. | 1906
This is an appeal from the judgment of the circuit court of Pettis county awarding a peremptory writ of mandamus in favor of the plaintiff against the defendants, as judges of the county court of said county, for a balance of $1,208.95, alleged to be due plaintiff as fees as justice of the peace of Sedalia township for the period from September 1, 1899, to June 1,1902. The total amount of said fees for the said period was $2,948.10, but as the county court paid relator $1,761.65 as salary for the same time under the act of 1899, known as the “Barnett Law,” being an amendent to section 5005, Revised Statutes 1889, the relator in no event is entitled to a judgment for more than $1,208.95.
The pleadings directly assail the constitutionality of the amendment of 1899, now section 3261, Revised Statutes 1899, and jurisdiction of this appeal is in this court.
I. If the amendment of 1899 was valid constitutional legislation then plaintiff was not entitled to recover. Section 5005, Revised Statutes 1889, prescribes the fees which should be allowed justices of the peace throughout the State, for the several duties they might perform, and they were entitled to no other compensation.
The amendment to that section in 1899, was in these words: “Provided, that in cities having a population of fifteen thousand and under thirty-five thousand and lying wholly within one township, except cities operating under special charters, all fees collected by justices of the peace in criminal cases shall be turned into the county court, and said court shall deposit said fees with the county treasury. The justices of the peace shall account to the county courts and turn
This amendment, if valid, went into effect August 20, 1899. In 1901 the section was further amended so as to make the salary seventy-five dollars a month instead of fifty dollars. [Laws 1901, p. 174.]
The county court of Pettis county accepted the amendment of 1899 as valid and controlling and began paying the justices'of the peace for Sedalia township, salaries from September 1, 1899, instead of allowing, them fees under the general law in force prior to the enactment of the amendment of 1899.
The defendants as judges of the county court now deny that relator is entitled to any fees, but must be content with the salary paid him by the court for the time for which he now claims fees.
It is conceded by all parties that the act of 1899, amending section 5005, Revised Statutes 1889, did not and could not apply to any city in Missouri except Sedalia. No other city was in the special situation at that time nor likely to be. The act was intentionally drawn to fit the peculiar circumstances surrounding Sedalia aud to exclude all other cities in the State of like population. Section 53 of article 4 of the Constitution of Missouri provides: “The General Assembly shall not pass any local or special law. . . . regulating the fees or extending the powers and duties of aldermen, justices of the peace, magistrates or constables.” The same section after enumerating divers other cases in which no special or local law shall be passed, further provides: “In all other cases where a general law can be made applicable, no local or special law shall be enacted. ’ ’
Pew of the provisos of our organic law are so eminently wise and salutary as this last-quoted section of the Constitution. It is of the highest interest to the
In the last-cited case this court in Banc had occasion to consider the right of an officer to waive an unconstitutional provision. In this case, as in that, where the constitutional right in question affects the protection of the property rights of the citizen, it is competent for him to waive the protection and consent to such action as would be. invalid if taken against his will. [Cooley on Constitutional Lim. (7 Ed.), p. 250; Merrill v. St. Louis, 83 Mo. 251.] In this case the only parties interested are the relator and Pettis county, and the issue involves the property rights of the relator to fees only. A waiver occurs when “one in possession of any right, whether conferred by law or by contract, and with full information of the material facts, does or forbears the doing of something inconsistent with the exercise of the right or of his intention to rely upon it; thereupon he is said to have waived it, and is precluded from claiming anything by reason of it afterwards.” [Williams v. Railroad, 153 Mo. 1. c. 519; Bishop on Contracts (Ed. of 1887), 792.]
In this case the plaintiff not only had all the information when he accepted the salary for nearly two years, that he has now, or had when he begun this suit, and yet month by month he accepted a warrant for the salary prescribed by the unconstitutional act. Moreover, it appears that he was taking legal advice during this time, and yet he took no steps to compel the county court to pay him his fees under the general law. The taking of his salary, monthly, was wholly inconsistent with his right to the fees. If entitled to the one he was not entitled to the other.. We think the evidence establishes a waiver within the meaning of our laws, and that relator is not entitled to recover.