State Ex Rel. Jasper County v. Gass

*747 GANTT, J. This is a suit on the official bond of the defendant Frank L. Gass, Probate Judge of Jasper County. The other defendants are sureties on the bond. The petition is in two counts, and the cause was tried before the court without a jury. The court made a finding in favor of the plaintiff on the- first count for $1203.23, and on the second count for $401.73, making a total of $1604.96. Thereupon, judgment was rendered in favor of the plaintiff and against the defendants for $4500. the penalty of the bond sued on, together with costs of suit, and that plaintiff have execution for $1604.96 and for costs. Plaintiff and defendants filed motions for a new trial, which motions were overruled, and both plaintiff and defendants appealed. The parties will be referred to as plaintiff and defendants. The first count is an action for excess fees collected by defendant Gass during the year 1923 above the amount he is allowed by law to retain as his salary. The second count is an action for excess fees collected by said defendant during the year 1924 above the amount he is allowed by law to retain as his salary. In addition, this count *748 seeks a recovery for an unreasonable and unnecessary amount deducted by said defendant from said fees for clerk hire during said year. The answer to both counts admits the election of defendant Gass to the office of Probate Judge of Jasper County; that he qualified and performed the duties thereof; that the bond ivas executed; that defendant Gass made up his report of the fees collected and filed same Avith the circuit clerk — all as alleged in the petition — and defendants deny eATery other allegation of the petition. The trial court found the probate judge AA’as entitled to retain out of the fees collected by him during the year as much as $3300, plus reasonable and necessary expenses for clerk hire and plus ten per cent of the excess fees over said amounts. To understand this conclusion it will be necessary to consider the folloAving sections of the statute: First, the pertinent part of Section 6640, Revised Statutes 1919, AA’hich is as íoIIoaa’s : “Each member of said board shall, as compensation for his services under this article, as jury commissioner solely, receive such salary as, added to the salary which is now or may hereafter be paid such member as judge, shall equal the sum of forty-five hundred dollars per annum.” Second, the Act of the General Assembly, approved March 25, 1901 (LaAA’s 1901, p. 120), divided the Circuit Court of Jasper County into two divisions,- and provided for íavo judges of said court. The salary of said judges was fixed at $3200 per annum, $2,000 of which Avas paid by the State, and $1200 of which was paid by the county. Third, the amendment to Section 10981, Revised Statutes 1919 (Laws .1921, p. 604), provided that the $1200 paid by the county should be paid by the State and designated said sum as an allowance for expenses. The trial court in determining how much compensation the circuit judges received added to the $2,000 paid by the State the $1200 allowed for expenses, making a total of $3200, AA’hich deducted from the $4500 referred to in Section 6640 fixed the compensation of the jury commissioner at $1300. The exception of the $1200 alloAved for expenses in the amendment to Section 10991, Revised Statutes 1919 (Law's 1921, p. 599), does not apply to the Probate Judge of Jasper County, for it is an alloAvance to the circuit judges for expenses when holding court in counties other than in the county in which the judge resides. The circuit judges of said county do not hold court in other counties. However, the $1200 alloAved for expenses is not an allowance for services of any kind. On the first of October, 1920, Ave held in the case of Macon County v. Williams, 284 Mo. 447, 224 S. W. 835, that said alloAvance Avas not compensation and was not to be considered in fixing the salary of a probate judge. The trial court was in error in holding the $1200 to be a part of the salary *749 of tlie circuit judges. To determine the compensation of a jury commissioner, the court should have added $2500 to the $2,000 salary of the circuit judge, which total equals $4500, thereby fixing the salary of a jury commissioner at $2500. Plaintiff contends the circuit judges of said county receive $2,000 compensation for their judicial services, and that is all the probate judge is entitled to retain out of the fees collected by him during the year, plus reasonable and necessary expenses for clerk hire and plus ten per cent of the excess fees above said amounts. It is argued that “the service of a judge as a jury commissioner is not a duty by virtue of the office of circuit judge. ’ ’ The words ‘ ‘ by virtue” as used mean “because of; through; in pursuance of.” [Stroud’s Judicial Dictionary; New Standard Dictionary; 'Webster’s New International Dictionary.] The circuit judge is not appointed or elected to the position of jury commissioner. No commission as jury commissioner is issued to him. He takes no oath oí office as jury commissioner, but performs this ministerial duty under Ills oath as circuit judge. To be jury commissioner one must be circuit. judge. When the term of office of the circuit judge expires he ceases to be jury commissioner. We think “the service of a judge as jury commissioner is a duty by virtue of the office of circuit judge, ’ ’ and so rule. It is next argued “that by the express language of the act they receive compensation for services as jury commissioner solely, which is the same as saying they do not receive such compensation as circuit judges.” We agree to this contention, but this does not change or alter the fact that the compensation is by virtue of the office of circuit judge. Plaintiff emphasizes the words “as jury commissioner solely” in Section 6640, fixing the compensation of a circuit judge for such services. The Legislature by the use of said words intended to and did make it clear that the compensation was not for judicial services. The lawmakers intended the circuit judges then in office to receive pay for services as jury commissioner. They did not have in mind the probate judges. Defendants contend the circuit judges of Jasper County receive for their services compensation as follows: Salary, paid by the State, $2,000 (Sec. 10977, R. S. 1919) ; compensation as jury commissioner, paid by the county, $2500 (Sec. 6640). Did the Legislature intend, by the amendment to Section 10991, to authorize the Probate Judge of Jasper County to consider the compensation paid to the circuit judges as jury commissioners in determining the amount of his compensation-during the year? This is the only question for solution. The salary of the probate judge is fixed by reference to the annual compensation of the judge of the circuit court having jurisdiction in the same county. [Sec. 10991, R. S. 1919, as amended, Laws 1921, *750 p. 599.] • This section was amended, in two particulars: First,' an amendment was inserted relating to fees in connection with the eotLection of inheritance taxes; second, an amendment was inserted relating’ to the amount allowed to be retained by the probate judge as salary out of the fees collected during the year. The pertinent part of the statute as amended, with the words inserted by this amendment in italics, is as follows: ‘.‘Whenever, after deducting all reasonable, and necessary expenses for clerk hire, the amount of fees collected in any one calendar year, by or for any one probate judge in any county in this.State, during his term of office, and irrespective of the date of accrual- of such fees, shall exceed a sum equal to the annual compensation in the aggregate from all sotuces and for all duties by virtue of'the office, except $1200 allowed for expenses when hoicking court in other counties, provided by law for a judge of the circuit court having jurisdiction in such county, then it shall be the duty of such probate judge to pay such excess less ten per cent thereof, within thirty days after the expii’ation of such year, into the treasury of the county in which such probate judge holds office, for the benefit of the school fund of such county. ’ ’ The lawmakers of 1921 knew the Supreme Court had, on the 13th of March, 1920, in the case of State ex rel. Buchanan County v. Imel, 280 Mo. 554, 219 S. W. 634, limited the compensation of the Probate Judge of Buchanan County to the $2,000 allowed to circuit judges as compensation for judicial services. They also knew, that on the' 1st of October, 1920, the Supreme Court, in the case of Macon County v. Williams, 284 Mo. 447, 224 S. W. 748, held the $1200 allowed to the circuit judges for expenses could not be considered by the Probate Judge of Macon County in determining the amount of his compensation during the year. They were not satisfied with the salary allowed probate judges, hence the amendment to said Section 10991. The circuit judges of Jasper County have only two sources of compensation: compensation for judicial services, and compensation for services as jury commissioner. The statute as amended provides that in determining the salary of the probate judges, the compensation of the circuit judges from all sources must be considered. If we follow the statute, we must hold that the words “from all sources” include the compensation of circuit judges as jury commissioners. It follows, and we hold, that from the taking effect of Section 10981, Revised Statutes 1919, as amended by the Laws of 1921, page 604, the compensation of 'the circuit judges of Jasper County and the amount allowed to them 'for expenses are as follows: Compensation for judicial services, $2,000; compensation for services as jury commissioner; $2500; for'expenses, $1200 making a total of $5700 per an-num. Of these items the Probate Judge of Jasper County was entitled to consider the $2,000 for judicial services and the $2500 for *751 services as jury commissioner in determining the amount he .was entitled to retain out of the fees collected by him during the year for his salary. By the pleadings it was admitted that the $1417.50 retained by defendant Gass in 1923 for clerk hire was reasonable and necessary, and that said sum was reasonable and necessary for clerk hire in 1924. H,e retained for clerk hire during 1924 $2405, an increase of $987.50 for clerk hire over 1923. On this issue the trial court found for the plaintiff on the second count in the sum of $401.73. We have, held that the Probate Judge of Jasper County was entitled to retain out of his fees collected during the year the sum of $4500 for his own compensation. The trial court found he was entitled to retain oiit of said fees $3300 for his own compensation. The difference of $1200 absorbs the $401.73 found to be due the plaintiff on the second count as an excess charge for clerk hire for the year 1924. The judgment should be reversed. It is so ordered. All concur.