Tutt v. Williams

| Mo. Ct. App. | Oct 28, 1890

Thompson, J.

On the twelfth day of June, 1885, Dent G. Tutt exhibited in the probate court of the city of St. Louis his final settlement as surviving partner of the late firm of D. G. Tutt & Co. In that settlement he took credit for a commission of three per cent, on all moneys, which had come into his hands in the course of the administration. The probate court disallowed this credit. On appeal to the circuit court, it was likewise disallowed ; and he now appeals to this court.

In 1884 the supreme court decided, in the case of Gregory v. Menefee, 83 Mo. 413" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/gregory-v-menefee-8008063?utm_source=webapp" opinion_id="8008063">83 Mo. 413, that a surviving partner is not entitled to compensation for his services in administering upon the partnership estate. The legislature, at its next session, namely, on the seventh of March, 1885, passed an act changing this rule, by amending section 229 of the Revised Statutes of 1879, by inserting in it this provision:

“That a surviving partner or partners in administering upon the effects of the copartnership shall be allowed a commission of three per cent, on the interest of the deceased partner for like services and trouble.” Laws of 1885, p. 25. This statute had no emergency clause, and it, therefore, took effect on the twenty-third day of June, 1885, ninety days after the adjournment of the session of the legislature at which it was enacted. Const., art. 4, sec. 36.

It is perceived that the statute did not take effect until after the final settlement of the surviving partner had been filed. All the services in respect of which he claims commissions must, therefore, have been rendered before its passage. It is not.by its terms retrospective; and statutes are not construed as being retrospective, unless such is the plain intent of the legislature. It is an obvious suggestion of reason that the' right of compensation for services, if,any exists, is governed by the law in force at the time when the services were rendered. But the soundness of this conclusion is also shown by the decision of the supreme court in State ex rel. v. Auditor, 33 Mo. 287" court="Mo." date_filed="1862-10-15" href="https://app.midpage.ai/document/state-ex-rel-register-of-public-lands-v-auditor-of-public-accounts-8001283?utm_source=webapp" opinion_id="8001283">33 Mo. 287, where it was held that the right of a public officer to compensation for services accrued according to the law in force at the time when the-services were rendered, and became a vested right in such a sense that the legislature could not afterwardstake it away. We can understand no principle upon which such a right can be governed by the law which happens to be in force at the time when the probate-court happens to take up the final account of the surviving partner for examination. If such were the rule, a repeal of the law giving such commissions would cut off the right to them, although the repealing statute had been enacted after the services were rendered, which, as already stated, our supreme court has held cannot be done.

This case is, therefore, plainly governed by the-rule in Gregory v. Menefee, supra; the surviving partner was not entitled to the commissions claimed, and the judgment of the circuit court will accordingly be-affirmed. It is so ordered.

All the judges concur.