State ex rel. Gray v. Wilder

POX, J. This is an original proceeding in this court by which it is sought by the relator to obtain from this court a peremptory writ of mandamus compelling the respondent to audit certain items of expenses incurred by the relator in holding court in the city of Joplin, Jasper county, Missouri. We deem it unnecessary to set out in detail the petition of the relator. It will suffice to briefly state the facts upon which this proceeding is predicated. Judge Gray, the relator in this proceeding, is a resident of the city of Carthage, Jasper county, Mo., and ever since the first Monday in January, 1905, he has been and he is now the judge of Division No. One of the circuit court of Jasper county, and said county constitutes the 25th Judicial Circuit. Both the cities of Carthage and Joplin in Jasper county constitute the entire circuit. Under an act of the General Assembly of the State of Missouri three terms of court are held each year in the city of Joplin. Judge Gray, relator herein, held the October term, 1905, at Joplin, and on Nov. 15, 1905=, he filed with the respondent his itemized account of expenses necessarily incurred in holding said term, as is provided by section 9701, Revised Statutes 1899. The respondent, who is the State Auditor of Missouri, refused to allow the account for expenses filed by the relator on the ground that the provisions of section 9701, Revised Statutes 1899, were expressly repealed by the act of the General Assembly, approved March 10, 1905, and that there is no law'now in force applicable to the [546] demand of the relator, authorizing the auditing or payment of such claims. There is no dispute as to the facts. That the relator is the regularly elected and qualified judge of Division No. One of the twenty-fifth judicial circuit is conceded. The fact that he held the October term of court in 1905 in the city of Joplin and incurred the expenses evidenced by the itemized account filed with respondent is not questioned. The respondent admits the allegations as contained in the petition and simply by demurrer presents the question that, conceding the facts stated in the petition and alternative writ to be true, plaintiff is not entitled to the relief asked. This is a sufficient statement of the nature and character of this controversy to enable us to determine the legal propositions involved. OPINION. As indicated in the foregoing statement the only legal proposition disclosed by the record in this cause is, does the act of March 10', 1905' (Laws 1905, pp>. 291-292), repeal section 9701, Revised Statutes 1899? In other words, under the law as now in force is .there any authority for the respondent to audit the itemized account as presented by the relator, predicated upon the provisions of section 9701, Revised Statutes 1899'? Section 9701, Revised Statutes, 1899, provides: “Every judge of a circuit court or of a criminal court in this State shall be allowed and paid all sums of money actually expended by him in necessary expenses while engaged ini holding any regular, special or adjourned term of court at any place in his circuit other than the place of his residence therein, or while engaged in going to and from any such place for the purpose of holding such terms of court, and such sums of money for said expenses shall be paid out of the state treasury in the same manner that the salaries of circuit [547] judges are now paid by law; but no money shall be paid from the treasury under the provisions of this section until such judge shall file an itemized account with the state auditor, showing all such actual expenses incurred by him.” The expenses of circuit judges were paid in accordance with the provisions of the above-quoted section until the enactment of section 9701 by the G-eneral Assembly, approved March 10, 1905: That act provided: “ Section-1. That section 9701 of the Revised Statutes of Missouri of 1899:, as the same appears in chapter 152, page 2251, volume 2 of the Revised Statutes of the State of Missouri of 1899, relating to expenses of judges of circuit courts and criminal courts, be and the same is hereby repealed and the following section enacted in lieu thereof relating to the same subject to be known as section 9701, as follows, to-wit: “Section 9701. Every judge of a circuit court or of a criminal court in this State shall be allowed and paid the sum of one hundred dollars per month as and for his expenses incident to the holding of all regular, special or adjourned terms of court at any place in his circuit other than the place of his residence therein, and such sum of money for said expenses shall be paid out of the State treasury monthly in the same manner that the salaries of circuit judges are now paid by law: Provided, that this act shall not apply to circuits in cities of this State- containing over 300,000 inhabitants nor to circuits consisting of one county only.” It is manifest that the lawmaking power, by the act last above cited, intended to change the manner and method of paying the expenses of the circuit judges, and there is no escape from the conclusion that the act of 1905 in express terms repeals the entire section of 9701, Revised Statutes 1899, and in lieu of that section provides entirely a different method of paying the expenses of the circuit judges of this State. [548] It is- insisted by relator that the proviso at the end of section 2. of the act of 1905 is not limited to that section and does not read “this section shall not apply, ’ ’ but reads ‘ ‘ this act shall not apply, ’ ’ and therefore it is urged that the judges of the circuit courts defined in the proviso are not affected by the act. We are unable to give ou.r assent to this insistence of the learned relator. The General Assembly by the provisions of the act of 1905 simply intended to repeal the law as it then existed applicable to the subject of paying expenses of circuit judges, and enact a new law applicable to that subject. The only authority prior to the enactment of section 2 of the act of 1905 which authorized the payment of expenses of circuit judges was section 9701, Revised Statutes 1899, and by the act of 1905 that section was absolutely repealed and a new section known by the same number, 9701, was enacted as applicable to the sub>ject, and that is the only law in existence which authorizes the payment of expenses of circuit judges, and it provides how the circuit judges shall be paid and then also provides that “this act shall not apply to circuits in cities of this State containing over 300,000' inhabitants nor to circuits consisting of one county only.” It is certainly clear that the proviso did not exempt from the operation of this act any part of the provision of the old law applicable to the payment- of expenses of circuit judges, and if it be insisted that the proviso did intend that the repealing clause in section 9701 should not apply to circuits in cities in this State containing over 300,000 inhabitants nor to circuits consisting of one county only, then we would have as applicable to those circuits an entirely different method of paying the expenses of circuit judges than the one provided by the new section 9701, and such was clearly not the purpose or intention of the lawmaking power. Section 1 of the act of 1905 is the mere formal [549] provision for repealing the old section. Then follows the enactment in lieu thereof relating to the same subject, section 9701, and it is too plain for discussion that the General Assembly, when they provided that “this act shall not apply,” etc., had sole reference to the substance of the real enactment which treated of the subject under consideration. We have given careful consideration to the numerous authorities cited by relator and we have no fault to find with the announcement of the rules in those cases; however, we are of the opinion that 'they do not support the insistence of the relator in the case at bar. It is fundamental and one of the cardinal rules in the construction of statutes that the true intent and meaning of the lawmaking authority, as expressed in the language employed, should, if possible, be ascertained and declared. On the other hand, it is equally well settled that words and phrases shall be taken in their plain or ordinary and usual sense, and that it is incumbent upon the' courts to construe a statute as written, without regard to the results of the construction, or the wisdom of the law as thus constructed. There is no ambiguity in the terms used in section 9701, and they are susceptible of but one construction and that is, that by the proviso it was not intended to embrace circuits in cities of this State containing over 300,000 inhabitants or circuits consisting of one county only; therefore those circuits were left without the pale of the provisions which authorize the payment of expenses of the judges of those circuits, and there is no law in existence now which would authorize the payment of such expenses. We have thus indicated our views upon the leg-al propositions disclosed by this record, which results in the conclusion that the peremptory writ of mandamus must be denied, and it is so ordered. All concur.