388 S.W.2d 823 | Mo. | 1965
In this appeal two separately instituted actions, one for a declaratory judgment and the other in mandamus, have been consolidated for all purposes. The ten plaintiff-relators are the duly elected superintendents of schools of their respective counties: Vossbrink, St. Louis County, Hale, Greene County, Atkinson, Lafayette County, Jenkins, Hickory County, Smith, Cole County, Holt, DeKalb County, Ingenthron, Taney County, Frieberger, Callaway County, Stewart, Cass County, and McCubbin, Miller County. The defendant-respondents are the State Treasurer, the Comptroller, the Commissioner of Education and the members of the State Board of Education.
In addition to their regular salaries as superintendents of schools, the statutes relating to county superintendents provide that they shall also receive certain additional sums, depending in some instances on the class county, “as supervisor of school transportation” and for the preparation of “a detailed budget of estimated receipts and disbursements.” Sections 167.050-167.260 RSMo 1959, V.A.M.S. The General Assembly has appropriated the necessary funds for the support and maintenance of the public schools of the state but by reason of an Attorney General’s opinion and a recommendation or determination of the Commissioner of Education, since April 1961, the State Board of Education, the State Treasurer and the State Comptroller have refused to perform their functions and certify and disburse to the ten counties represented by these plaintiff-superintendents the funds necessary for the payment of these two items of additional compensation. Consequently, as stated, the superintendents in
The cases were submitted on stipulated or agreed facts, from the defendant-appellants’ standpoint the most important fact being, at least in most of the counties, that there were no common school districts (presumably all districts have been consolidated) and that in these counties there are town or city districts employing a school superintendent who devotes at least one half his time to the direct work of supervision. The court found the issues in favor of the plaintiffs in detail, it is not necessary here however to set forth the judgment and decree in full. The essence of the court’s view which obviously is the crux of the case is illustrated by this quotation from the judgment: “the Legislature of the State of Missouri has enacted no provision which abolishes the office of County Superintendent of Schools or withdraws the contribution made by the State of Missouri to the counties for compensation of County Superintendent or provides that the salary of County Superintendent of Schools ceases on accomplishment of complete reorganization of the schools of the county, or abolishes the function of acting as supervisor of school transportation or abolishes the function of preparing a detailed budget for each school district under the County Superintendent’s supervision, either expressly or by implication, or by virtue of the accomplishment of complete reorganization of the schools of a county.”
It was stipulated that Cole, DeKalb and Taney counties each contained school districts whose superintendents devoted less than half their time to the direct work of supervision and so, quoting from the defendant-appellants’ brief, “Smith, Holt and Ingenthron (superintendents in those three counties) have been and still are receiving compensation for the preparation of the budget for each school district under his supervision. There is no controversy with respect to their respective rights thereto.” It also appears from the pleadings of the parties that three of the superintendents, Stewart (Cass County), McCubbin (Miller County) and Frieberger (Callaway County), do not fall in the categories relied on by the appellant and unless Frieberger is disqualified for another reason these three parties are admittedly entitled to compensation for bus and budget supervision. These tacit or plainly admitted concessions serve to sharply point up the only meritorious issues involved on the appeal. The defendant-respondents have briefed and argued five principal points but in their essentials three of the points are but another way of presenting the same problem as is indicated by their citation of the same authorities under all three points. It will suffice to present their contentions against the judgment and decree to extract two or three quotations from their brief: “The Court erred in failing to find and declare that Sections 167.050 and 167.060, RSMo [V.A. M.S.], do not require or permit defendants to disburse or expend out of funds appropriated for the support and maintenance of public schools or otherwise any money to be used as compensation of county superintendents of schools as supervisors of school transportation in counties which have no common school districts and in which by reason thereof there is no school transportation established by such districts and the county superintendents of schools in
In support of their respective claims the parties have invoked the general rules of statutory construction but the auxiliary rules are of but limited persuasive force in compelling a conclusion. Perhaps it should suffice to say that this court agrees with the trial court’s conclusion and disposition of the cause but it is necessary in response to the appeal to indicate certain reasons and factors convincingly supporting the judgment and decree. In the first place, the state’s appropriations for the support of free public schools “shall be paid at least annually and distributed according to law.” Const.Mo. Art. IX, Sec. 3, V.A.M.S. The counties have not been made parties to this action, but the tenor of all the statutes involved in these proceedings is that funds appropriated by the General Assembly are to be distributed to the counties and paid out by them through their local officials, not the state treasurer or comptroller. “The several counties of this state shall receive funds from the state of Missouri to be used as compensation of county superintendents of schools as supervisors of school transportation as follows.” Section 167.060 RS Mo 1959, V.A.M.S. As to the budget in certain class counties, “The state of Missouri shall pay annually to each county of the second class six hundred- dollars, pursuant to an appropriation out of moneys regularly appropriated and set aside for the support of the free public schools.” Sections 167.160(2), 167.200(2) RSMo 1959, V.A.M. S. And again as to bus supervision, “The county treasurers of such counties shall pay over such compensation monthly, out of funds received by said county treasurers from the state of Missouri for the purpose of compensating county superintendents of schools for their duties as supervisors of school transportation, at the same time they pay the county superintendent of schools his salary for the performance of his other duties.” Section 167.180 RSMo 1959, V.A. M.S. As to third and fourth class counties: “The state of Missouri shall appropriate annually, out of the general revenue fund of state of Missouri, four hundred dollars to each and every county of the third class.” Sections 167.210, 167.240(2), 167.260 RSMo 1959, V.A.M.S. Thus plainly the legislature has entrusted the counties, the local level in school administration, with the function and business of distributing the funds appropriated for supervision of transportation and budget preparation. From the general tenor of these statutes it is the function of the appellants to distribute these funds to the counties.
In the second place, as bearing on the judgment here, there is no claim that these superintendents have abandoned their office, and “the faet that he does not perform all or any of its duties will not affect his right to the salary attached thereto unless a statute otherwise provides.” Ann. Cas.1918B, p. 435; Coleman v. Kansas City, 351 Mo. 254, 173 S.W.2d 572; Luth v. Kan
Not only could the General Assembly have attached conditions to the superintendents’ receipt of compensation in connection with school transportation and budget, it could have authorized the appellants, the Commissioner of Education, the State Board of Education, the State Treasurer and the Comptroller or some other official to make the determination that there were no duties to perform and that therefore this part of the appropriated school funds should not be transferred to the counties as provided in chapter 167, but as the judgment implies that has not been done. Annotation 172 A.L.R. 1366, 1383, Little River Drainage Dist. v. Lassater, 325 Mo. 493, 29 S.W.2d 716. In the fields in which the legislature has deemed it necessary to delegate power to the Commissioner and State Board of Education insofar as county and local school matters are concerned, it has done so as illustrated by State ex inf. Eagleton v. Van Landuyt, Mo., 359 S.W.2d 773. But in the absence of the delegation of authority to determine the necessity or propriety of official compensation “then under our Constitution and theory of government, these are legislative powers.” The legislature has acted, it has attached no conditions or delegated no authority and in these circumstances “our fundamental laws do not support the right of one appointed executive officer to fix compensation of all other appointive officers by agreements with them in disregard of the action of the body exercising legislative power.” State ex rel. Rotbrum v. Darby, 345 Mo. 1002, 1012, 1013, 137 S.W.2d 532, 536, 537.
Against the writ of mandamus the appellants urge that the plaintiffs do not have a clear, unequivocal right to the writ, that the writ is vague, indefinite and uncertain “and wholly fails to specifically state the acts to be performed by the defendants and the sums to be paid,” that there is no allegation or proof that any funds are available for the purpose of making the payments and finally that there is “no allegation or proof that plaintiffs are not receiving payments from the county treasurers of their respective counties.” Aside from its unduly technical aspects, particularly in view of their conduct and the essential issues presented by their appeal, these arguments of the appellants are paradoxical. In
As stated in the beginning, Mr. Frieber-ger, the duly elected County Superintendent of Schools of Callaway County, presents a separate and unique problem. In accordance with the special issue made by the pleadings it was stipulated that Mr. Frie-berger was born on April 4, 1889, that in April 1955 he was elected county superintendent for a term of four years ending June 30, 1959, and that on April 7, 1959, he was again elected to the office and has since been performing the duties of the office. The importance of the stipulation is that in 1959 Mr. Frieberger was seventy years of age and, unless disqualified by age, has all the statutory qualifications for a county superintendent of schools. Ch. 167 RSMo 1959, V.A.M.S. The Teacher and School Employee Retirement Systems Act includes in its definition of a “teacher” “any county superintendent of schools * * * who shall be duly certified under the law governing the certification of teachers.” Section 169.010(6) RSMo 1959, V.A. M.S. In view of this provision the appellants contend “that plaintiff Frieberger was automatically retired from the office of county superintendent of schools of Call-away County on July 1, 1959, by operation of law, (and) is not thereafter qualified to act as such county superintendent of schools nor entitled to receive any compensation as county superintendent of schools, and that defendants may not legally disburse state funds for said purpose * * *”
In support of their argument as to Mr. Frieberger the appellants rely only on the general rules of statutory construction and the language of the statute, §§ 169.010 to 169.130, which they say must be reasonably construed and by its terms “by operation of law” automatically retired him from the office of county superintendent. As contended, whether a retirement law is self-executing or mandatory or directory or compulsory or elective depends upon its terms. 3 McQuillin, Municipal Corporations, Sec. 12.141, p. 587. And it may be assumed that the act involved here is compulsory at age seventy, but that assump
For the reasons indicated the judgments in the consolidated actions are affirmed.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.
PER CURIAM.
Appellants’ motion for rehearing complains that the court’s opinion does not decide the question of the effect of Section 169.320, RSMo 1959, V.A.M.S. (a section of the chapter on the teacher retirement system) on Ben Frieberger and his right to continue to hold the office of County Superintendent of Schools after he attained the age of seventy. The question of the effect of that statute need not be reached for the reason that Section 167.010, RSMo 1959, V.A.M.S., which defines the qualifications of the County Superintendent of Schools, contains a grandfather clause which would be and was applicable to Ben Frieberger. That section provides in part as follows:
“ * * * At the time of his election he shall hold a certificate authorizing him to teach in the public schools of Missouri, and shall have completed at least one hundred twenty semester hours of college work, including at least fifteen hours in the field of education, not less than five of which shall have been in school supervision and administration; or he shall be serving as county superintendent of public schools.” (Emphasis added.)
Ben Frieberger was serving as County Superintendent when he reached his seventieth birthday and had been so serving for many years. That qualified him under the statute, even if he held no certificate to teach. Obviously, the provisions of the teacher retirement system statute did not take away that qualification.
The motion for rehearing is overruled.