*1
OCTOBER TERM.
1922.
y.
County
State
rel. Saline
Price.
ex
(See.
1919)
appellants
R.
invoke the
statute
S.
provides:
goods
a remainder in
or
“Where
lands
tenements,
or
chatties, shall he
deed or
limited,
otherwise,
person
any
take
on
or
effect
the death
without
of
heirs,
body,
heirs
or
of his
or without
on failure of
issue,
issue,
‘heirs’
shall he
or.‘issue’
words
construed mean
living
person
heirs or issue
at the
of the
death
named as
j
;
(cid:127)ancestor.”
purpose
This statute was enacted
ab-
early
rogating
common-law
rule under which
leaving
words “die without
issue”
construed
[Naylor
.-mean an
failure of
indefinite
issue.
Godman,
v.
543, 550;
Mo.
Yocum Siler,
STERLING T. PRICE EQUITABLE SURE- TY COMPANY. One,
Division December Compensation:- 1. SHERIFF: Reduction Statute: Constitutional. provision (Sec, 13,’Art. 9) Constitution “the any county municipality or ministerial no executive officer MISSOURI, SUPREME COURT OE ex v. Price. rel. Saline , dollars for . . shall exceed the sum of ten thousand year” one does fix the amount the total *2 retain, simply they may but, such the officers or amount fees exceed, Legislature and a cannot fixes maximum limit which the 1919) fixing general (Secs. the S. statutes R.' any year compensation one of a at five thousand dollars transgress provision. in no wise said constitutional moneys by the -: Board of The Prisoners. 2.-: charge county prisoners in his as for sheriff from jailer part charged his fees he as not for which can compensation by his the statute. Where the statute fixes allowed annum, sheriff, per compensation after at five thousand dollars paid deducting amount of fees received total may deputy hire, by said sum of five thousand him retain for paid by dollars, “such in addition to be is entitled prison- for order of the each sum” as allowed only jailer, 'which is method of him the State’s er boarded as expense feeding housing re-imbursing for prisoners. -: -: Fees. The word “fee” used in Re- 3. Section requiring the to Statutes court make an order vised “fixing furnishing fee” to allowed sheriff “for day,” prisoner, each each is not used the same sense for as 11036, declaring word “fees” used Section “the any county, or ministerial officer of no executive exclusive necessary actually paid deputies, shall exceed the salaries year.” dollars for one of five thousand word “fee” sum sum,” paid by “such used in Section means said county, county court, may, Section prisoner furnishing prior order, allow the sheriff “for each day,” board, part such not to sum be counted as a for each authorized of five thousand dollars said of his Section
Appeal from Saline Circuit Court.—Hon. Samuel Davis,
Judge.
Affirmed. Beynolds appellant. for and B. M.
A. B. James Sterling (1) T. Price was entitled defendant year keep each retain Vol. OCTOBER TERM. 1922. County
State ex v. Price. rel. Saline during out such his term office of the fees earned for year by, during him and sum of term, collected deducting paid five thousand dollars after the amount year provided deputy out hire, him for such years during fees so earned and collected such such term If were sufficient therefor. such fees purpose, entitled, sufficient for such after he was deducting paid deputy whatever amounts hire, year. equal remained for such If deputy such fees were an amount in hire and said excess sum five thousand dollars to he retained him there- so required pay then of, he was excess into county treasury. 1909; R. S. Secs. 10734, 10735, Secs. County Callaway R. S. 11036,11037, Henderson, 1919; Callaway 119 Mo. 39; Henderson, 139 -Mo. *3 '510; State rel. 598, 606; ex v. 142 Mo. Henderson, Scott County v. Mo. ex Leftwich, 26; State rel. Chick, 145 v. 146 Mo. rel. Mo. 645, 654; Gideon, State ex v. 158 327, (2) determining 337. the amount thus to be re- any by required by tained the defendant or excess him paid county treasury, necessary be into the it was the, by report that he should all of him fees County Callaway and from whatever source derived. County Callaway v. 119 Mo. Henderson, 39; v. Hender- son, 510; 139 ex rel. 142 Mo. State v. Mo. Henderson, County 598, Scott 606; v. 145 Leftwich, Mo, State 26; rel. ex 146 Chick, rel. 645, 654; Mo. State ex Gideon, v. v. (3) only 158 Mo. 327, 337. Not was the defendant required Price for to account all but he fees, said was required quarterly to make return statements to by court of all fees him earned and received, actually paid by deputies, and of the salaries to stating verifying by in the same detail and the same affidavit. R.' 10734, 1909; 11036, S. Sec. R. S. 1919; Sec. reports 13, See. 9, Art. Mo. Constitution. These he required, failing did not make as the law do so, committed as set out his bond the 39; breaches petition. Callaway County Henderson, v. 119 Mo.
124 MISSOURI, COURT SUPREME. OF County v. Price. ex rel. Saline
State County ex Callaway 510; 139 Mo. State Henderson,. v. n County 606; v. Scott Henderson, v. Mo. rel. Mo. Chick, rel. v. 26; State ex 145 Mo. Leftwi'ch, (4) 337. It Mo. Gideon, rel. v. ex 654; the sheriff duties of is made statute one custody, keeping and rule, to have each county, (cid:127)charge jail and of all within jail- may appoint jail, while jailer. responsible for such er he remains him, pris- part duty see as is a paid him the fed and all sums oners are he must are fees for which of such the board (5) “Fees are R. Secs. S. account. . compensations paid rendered for acts or services duty, expressly public in the line of their des- officers ignated while is- but, true, law; authorized appears yet, goes, where it schedule far as it shall full for all services statutes of fees and the payments capacity, in his official rendered officer any rendered his official ca- services which are for pacity A term fee a re-
will be included fees. recompense or labor, trouble service work, ward Series) (1 expenses & Phrases incident.” 3 (cid:127)and Words p. 119 Mo. Henderson, 32; 2713; Calhoun County, App. 4 Colo. 301. Besides Pueblo Henderson declaring what should considered matter office for the sheriff’s other classed county delegated Constitution office Legislature duty Legislature. *4 It of the to became provide what should fees. has so define de- moneys by classified sheriffs clared, has prisoners, per diem received for board sheriffs on of record and for the for attendance courts con- penitentiary, veyance as fees, where has character such items is no such been done the open longer question. Art. 12, 9, Sec. Mo. Consti- Dickey, Hennepin County v. 86 Minn. 3 tution; 331; p. (1 Series) & Henderson 2713; Phrases v. Words TERM. OCTOBER 1922. y. Sta,te County Price. reí. Saline ex App. County, Callaway County v. 301; Pueblo Colo. (6) quarterly The so-called 39. 119 Mo. Henderson, reported Price made defendant to have been returns They and cannot be so treated. fact, not sucb in were affidavit as sheriff’s' were verified defendant they required contain and neither did law, by the in detail all the fees collected defendant set out required making by law, of each time to the omitted, many, were and be- therefrom, of such but fees plain- only then. The were made now and sides by any approval county not'bound which the They, tiff was may . county have . thereon. entered merely the sheriff, considered admissions' money. Callaway receipts county for much so Henderspn, County County 520; v. 139 Mo. Scott' 510, ex rel. Christian Leftwich, 32; 145 Mo. 327, 158 Mo. Gideon, Bellamy respondents. Harvey & (1) provisions By pertaining of the statutes and fees officers, salaries defendant retain to receive and Price was entitled fees earned year collected him for each term paid of the $5000, office the sum of exclusive salaries year. deputies during Only necessary such to his paid exclusive, deputies, of the fees, case such required pay $5000, the sum of exceeded treasury. into the Secs. 10734 and excess paid (2) E. The amounts defendant S. 1909. Price for ing not fees within the mean- pro- These of the above sections. sections follow the Article of Section visions Constitution subject-matter. and refer to the same Missouri, This deals with Constitution officers and article their compensation, provides and Section thereof oper- Assembly by uniform in the General a law provide regulate for and ation, shall of all county officers. Section 10705, Revised Statutes
126 SUPREME COURT OF MISSOURI, County
State ex rel. Saline
v. Price.
provides
per
that the
courts
fix a
shall
diem al-
charge
lowance to the
sheriff
other
officers
county jail
prisoners.
feeding
for the
Section 10740,
provides
of more than
present
inhabi-
150,000
counties
tants,
shall
marshal
at
end of each
expenses
month to the
court, all
incurred for that
providing
causing
month in
to he furnished food
prisoners,
shall
and that the
same
allow
expenses
and issue a warrant for the exact
so incurred
prisoners.
If
is
meaning
within the
12
of Sections
and 13,-Article
of9,
uniformity
then there
a lack
.Constitution,
is
be-
(a)
(3)
tween said
10705 and 10740.
Sections
gives
Sayler
fees as a
law
services.
Nodaway
(b)
v.
BROWN, C. This State of Missouri suit County, Sterling against at relation of the T. Saline during county years Price, who was sheriff of said Equitable Surety to 1916 and Com- inclusive, pany,. surety on official bond sheriff, by during recover his term in fees collected excess per year, county not turned to the over $5000 provided by amounting in all to statute, $9968.28. petition alleges during that term had, some instances to office, failed in make returns county by him, full amount received as re- quired by reports and that some made law, him were not verified his affidavit and that others signed. had not been pleads,
The answer of Price in substance, that jailer all the time he was sheriff he. also charge said in of in the jail, and was entitled to for their board, annually pro- which was fixed court as vided moneys by in law, that included his statements the on account well as sums received expense taking pris- him as Penitentiary City oners to the at Jefferson and to the Reformatory taking Boonville, at also insane patients hospitals. pleads to the state also that Sec- upon 10735, tions Revised Statutes 1909, which action is founded, void because vio- lation of Section Article of the State Constitution, change it seeks amount of fees allowed pleads said section of the Constitution. It also three-year Statute Limitations bar as a to the cause COURT OP MISSOURI, SUPREME Price. State ex rel. Saline . delinquency charged of- action on founded respects puts allegations other it issue material- petition. of the Surety Company
The defendant filed a similar an- swer. parties agreed into an statement of entered copy unnecessary it in this
facts, statement, appellant because counsel for has, commendable frankness,.stated issue as follows: questions constitutionality
'. “Aside of Sections 10734 and Statutes Revised plea raised. their defendants answer *7 to the Limitations, Statute bar cause of ac- prosecuted plaintiff’s tion by petition, the fourth count of Surety Company, practically, in its answer, only questions pay left- whether are, or not the sheriff from- the jail, per county, upon and for his diem attendance county, conveying patients
courts record and in asylums to to the Reform School and Pen- itentiary, are fees for to which is account for bound purpose applying provided the limitation in Sec- 10734 and tions Revised Statutes de- termining may fees amount of which he retain. If among required such the fees for regardless any question then account, to other in the judgment of the court case, should below be sus- they if but -are-such as he should tained, account for, Sections 10734 said are constitutional, judgment then the should be reversed.” necessary If it should become the course of our opinion computation any to make further of the amounts agreed in this we referred'to statement will refer purpose. of facts statement for that citing provisions statutory affecting I. questions present we shall consider, we will refer (1919) edition where are identical with those of the OCTOBER TERM. 1922. ex rel. Saline v. Price. previous edition under which this cause action ac- crued; we will refer otherwise, edition. the earlier question confronting
The first in the us record upon respondent arises the contention of the that Sec tion 11036, unconstitutional, Revised Statutes
because it reduces the maximum com Compensation of public pensation allowed to in officers, Sheriff: Constitu cluding sheriffs several coun tional Statute. paid to be ties, out of fees the of per fice, $5,000 while Article annum, Section of9, the Constitution the maximum at $10,000. fixes provision
The constitutional referred to is as fol- lows :
“The no fees of executive or ministerial officer of any county municipality, exclusive of the ac- salaries paid deputies, tually necessary to his shall exceed the- any year. Every sum dollars for one of ten thousand quarterly, return, such officer shall mate court of all him and'of the received, salaries paid deputies actually stating assistants, to his verifying in detail, the same the same his af- and for statement or omission in such fidavit; re- contrary truth, officer shall liable to turn, penalties corrupt perjury.”
of willful and provision applies will seen to all ex- ministerial ecutive and officers counties *8 municipalities nothing of the there in State, and is expressed it words in which is that either fixes the compensation amount they their of total or the amount which respective may retain of the fees their from offices compensation. simply such a limitation on may compensation amount of- maximum which be al- by Legislature, interfering lowed them the without with compensation right its to confine the one of or all may of them to what it consider the actual of the value theory pro- service in rendered the office. The of imposed by vision seems to be that all the State through laws, that when and collected its officers
296 Mo.—9 MISSOURI, OP COURT SUPREME County v. Price. rel. Saline
State ex disposed they property of the Státe to be become may duty and pleasure. of This collection of at its performed as well as those officers, salaried compensation, upon and depending fees for their in- many no relation the service bear instances they per- to which the matter volved connection with expressed prominent only idea this and tain. The protection provision is the constitutional charges ministerial executive and from unreasonable provide for their and affected, officers performance their óf duties. a created out of fund legislative upon only branch limitation The expressed implied government, as we have is, either amqunt compen- the maximum a limitation said, paid. provisions of Sections to be so sation tendency have no Statutes Revised point purpose. This must be ruled interfere with respondent. against the court held that sums
II. trial prisoners for the board of sheriff jailer, charge not fees for defend part account, a held ant-can be [Sec. the statute. R. allowed S. Board Prisoners. 1919.] Section Reviséd Statutes 1919 provides sheriff . “the . . shall charge custody, keeping jail have the rule, county, jail, within his of all may appoint jailer him, whose conduct responsible.” capacity he shall it this became duty pro confined see that there were bedding vided with medical food, attention. Sec duty tion it the makes at the year furnishing term each fix the fee N'ovember prisoner day during each for each the fol lowing year. During the calendar entire term of the daily charge Price, defendant was jailer fifty and the cents, for- limited to- *9 TERM. OCTOBER rel. State ex Saline v. Price. any pris-
bidden to make contract for tbe oners a less sum. appears agreed
From tbe it that statement facts .by unless tbe amount received Price for tbe board of charged against determining be in bim tbe compen- amount entitled to retain as bis was any year sation, tbe amount wbicb be in did so retain not did tbe amount of exceed allowed bim $5,000 evidently paramount question tbe statutes. This is tbe agreed in tbis for tbe statement case, and tbe shows, argument parties of both that tbe total assumes, amount receipts including paid of Price, tbe tbe amount bim prisoners, deducting for tbe not, board of did after that paid by deputy tbe amount, and amount bim for hire, exceed tbe amount wbicb be was, law, en- $5000 years titled retain. two of those tbe amount re- greater ceived board than was tbe retained compensation. profit bis Whether realized keeper capacity whatever in bis as a of boarders does appear suggested fifty not in tbe record. is not per day immoderate cents great when fixed 1913. Tbe year very
war came on tbe next when millions helped they of men were called from tbe fields where produce supply of the world’s food, tbe field of strife, where and some consumers, became of tbe most Europe fertile lands western were torn shot and tickling by ploW so that no tbe could shell, extort from laughter price them tbe of tbe harvest. Tbe of food- Legislature slowly, tbe stuffs but mounted, acted left the office Price and bis until successor entered, pass Act of March 17,1917, did it tbe wbicb tbe max- price jail fifty per at tbe imum of board was increased and tbe forbidden to contract cent, for the fur- nishing price a less of such than that fixed passing, court. We note, tbe that the General' Assembly, evidently lav/, enactment tbis had no suspicion violating it was pro- tbe constitutional change forbidding vision tbe tbe office incumbent, tbe of tbe and that term it also bad mind *10 MISSOURI, COURT OF SUPREME County v. Price. rel. Saline ex permitted theory to not the sheriff be the that should duty perform profit contracting others to with this receive. The hnmane than he himself shonld for less pervades county court, is that the intent which this law people capacity representative of the the of as the duty providing county, rea- itself the should assume of through prisoners officer for the sonable sustenance custody, permitted charged their should not with who duty. profit performance of to the While pertaining compensation to other for for services protected by by law, fixed official duties immunity change during his term constitutional feeding re- of office, the of the mained under control fixed might annually indicate. the as circumstances Neither power Legislature, nor constitutional of the legislative county acting authority fix this within questioned. compensation from has time, time been thing very nature in the itself. It is founded duty making it of the the statute While daily feeding pris for the allowance fix the court to (Sec. 1919) R. “fee” the sec it a S. oners terms 1919) (Sec. creáting R. that allowance S. tion carefully designation. any This to avoid seems upon question whether not al case turns it “fees” included the word is used lowance Revised Section Statutes appellant’s very counsel their elabo III. The argument time to contention that, devote no rate years incumbency during of the four sheriff’s feeding Price, of- the defendant office perquisite of value whatever to the awas Fees. suggest sheriff, that the nor do even service although loss, an actual at times it rendered at earnings net of the the entire office in amount exceeds argument upon They plant their him. retained accepted having theory the office sheriff and held by that action he must abide and be term, it TERM. 1922. OCTOBER COCO County v. Price. State ex reí. Saline any, compensation, the law if satisfied which it become had him, if, law, entitled and that necessary performance duty to in the of his him, expend, prisoners, in the the entire revenue ought complain in not to be office,he heard courts which must question as it is written. consider law us, under the circumstances before is whether, receipts the prisoners for the part
must be accounted him re- authorizes law *11 tain out his 'in “fee,” of office. The word as this used primary subject inquiry. is the the It is connection, of many-sided things designate many a word used charge phy- an estate in of inheritance land to the of a upon patient, applicable sician for his call a to this or, performance charge the for case, fixed law the of an duty. official The clear distinction between expressed by costs is Bouvier “Fees differ as follows: in from costs the this, are, that above men- former recompense a tioned, the officer for services; party money an indemnification to the for latter, expended expresses laid out and in his Webster suit.” thing charge the same “A fixed follows: law public priv- services a officer or for the of a use ilege government; control of the as sheriff’s fees; customhouse license fees; fees.” In no ex- case cept applied a distortion terms can word be discharge pur- pecuniary liability to the or of a price goods chase or even to a bill. Webster defines word “service” as used in this connection as serving; occupation “Act follows: of a servant; performance labor the benefit of or another, Callaway at another’s in command.” court This Coun- ty adopted Henderson, Mo. a definition of word fees as used in similar a case the one now be- wages given fore us as “'Fees follows: are a reward or recompense to one for his as a labor trouble profession, of his execution office or as those of an at- MISSOURI, SUPREME COURT OF Price. State ex rel. Saline ’’ judgment torney physician. in- or then The case question allowed volved the by whether actually clerk for law keeping of- labor accounts and services fice such as should with the treasurer were might determining account for the amount which compensation, held that it retain as and this adopting it in- that must be so accounted the rule for, by him all cluded received for work done deputies duty imposed performance and his a any in which find case law. We have been unable to money paid by officer reim- to an performing duty expense burse him for incurred imposed by a fee. such a law, has been called Were applied indicates rule to be in this the evidence case might possible expense imposed easily that it by that equal prisoners might in the well law exceed the entire he would allowed to amount which compensation. retain as his prop- do
We not think there merit this osition.
IV. It is numerous admitted record *12 verify during neglected instances his he Price, the term of quarterly fees received his official statements capacitv thereto, and that each of his affidavit bv years terjp of his sheriff’s were collected Reports. report. him not included in the which were Each, pre report quarterly filed is, however, presiding judge an indorsement served, with county court that it examined found cor was and spread upon approving the same was an rect, and order reports All omissions these are care the record. agreed fully statement of itemized and noticed facts for use as evidence' where admissible. facts properly trial court as we have and, all before the were already attorneys agreed upon state said, by the ment that if the defendant pris- board of of office for the Price his term TERM. 1922. OCTOBER v, McCoy Hill. determining
oners not to be tbe considered lawfully year be conld retain each salary year, judgment be affirmed. for that should s judgment af i therefore the circuit court Ragland firmed. concur. Small, CG., foregoing opinion PER CURIAM:—The Bbown, A]1 hereby adopted opinion court. C., judges concur. Appellant, W. E. HILL. McCOY, ALBERT One, 18, 1922. Division December Reputation: of Other Girls to Wife-: Credi- 1. ALIENATION: Visit bility. af- In a suit husband for the alienation his wife’s fections, plaintiff wherein has on direct examination testified that reputation” person visited his home of bad had while “no consent, present had his wife that he his seen was with together, talking questions on cross-examination defendant girls his house and certain visited as to whether he knew that chastity bad, reputation morality tended their whether credibility properly and his thereto ad- his answers to affect mitted; questions to whether had observed and likewise girls frequently talking said more than with his defendant admitted, properly since his answers thereto were wife and intimacy explain comparative between defendant and tended girls. said Step Contradicting Children: Petition. —-: Mistreatment charged peti- plaintiff has in his suit alienation Where affections, wife’s, has alienated his enticed defendant has tion comfort, society deprived away him of her and assist- and has her permit ance, to ask him on cross- defendant it is not error to step-son did not cause her if treatment examination allege him, not in suit for divorce if did her she leave step-children conduct towards his she abusive of his account on *13 questions him, longer tended to live with since no' could leaving him those al- wife’s than different reason elicit petition. leged in his