State ex rel. Buchanan County v. Imel

BROWN, J. The object of this suit is to determine the constitutionality of that part of section 10695, Revised Statutes 1909, which provides that each probate judge in this State shall keep a true and correct account of all fees annually earned and collected by him, and “that 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 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 expiration 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.” — 299 — The plaintiff in his petition alleges that defendant, while acting as probate judge of Buchanan county during the year 1907, collected fees aggregating the sum of $5557.68; that after deducting from the fees so collected a salary equal to the salary of the circuit judge of Buchanan county and all necessary clerk hire and also ten per cent of the remainder of said fees, there was due from said defendant to Buchanan county a balance of $926.18, for which judgment was prayed, with six per cent interest from January 1, 1908. Plaintiff also alleges that defendant as such probate judge, during the year 1908, collected fees aggregating the sum of $6675.30; that after deducting therefrom a-salary equal to the salary of the circuit judge of Buchanan county, and all necessary clerk hire, and also ten per cent of the remainder of said fees, there was due to Buchanan county a balance of $1500, for which plaintiff prayed judgment, with interest at six per cent from January 1,1909. The defendant admitted the collection of fees in the amount and manner charged in plaintiff’s petition and deposited in court the sum of $2426.18, being the amount claimed by the plaintiff; and pleaded that said section 10695, supra, in so far as it requires defendant to pay a part of his fees into the county treasury, is unconstitutional and void, and prayed the court to determine the constitutionality of said section, and order the fees so deposited, returned to him. The court below gave judgment for the defendant on the ground that so much of section 10695', Eevised Statutes 1909, as requires probate judges to pay over to county treasurers a part of the fees received by them, is in conflict with section 12 of article 9 of our State Constitution, which reads as follows: “The General Assembly shall, by a law uniform in its operation, provide for and regulate the fees of all county officers, and for this purpose, may classify the counties by population.” — 300 — In the ease of Henderson v. Koenig, 168 Mo. 356, this court held that the words “county officers,” as used in the foregoing section of the Constitution, include probate judges; and in that case we also held that a statute which attempted to place probate judges in cities of 300,000 inhabitants upon a salary, and required their clerks to collect the fees earned by such judges and pay the same into the city treasury, was unconstitutional. Almost the same issue arises again in this case; and it becomes necessary for us to reexamine the contraction placed upon said section 12 of article 9' of the Constitution in the Henderson case, supra, and determine whether or not in this case we will follow the rules of law announced in that case. The rule announced in the Henderson case depends for its correctness almost entirely upon the' proper construction to be placed upon the words “county officers,” as used in the aforesaid section of our organic law. The words “county officers” have two well defined meanings. In their most general sense, they apply to officers whose territorial jurisdiction is coextensive with the county for which they are elected or appointed. In a more precise and restricted sense, those words mean officers “by whom the county performs its usual political functions, its function of government.” [Sheboygan County v. Parker, 70 U. S. 93, l. c. 96.] The Constitution of Tennessee contains a provision. that “no county office created by the Legislature shall be filled otherwise than by the people or by the county court.” In State ex rel. v. Glenn, 54 Tenn. (7 Heisk.) 489, it was held that the above quoted clause of the Constitution did not include county judges because they are judicial officers. That as county judges in Tennessee possess jurisdiction to try certain classes of civil actions between individuals, they — 301 — did not come under the classification of county officers, and therefore the Governor was authorized to fill a vacancy in that office by appointment. “The established rules of construction applicable to statutes also apply to the construction of Constitutions.” [8 Cyc. 729.] One of the established rules for construing statutes is to examine closely the context of the act where the words to be construed occur, and thereby ascertain what meaning they were intended to convey. [Riggs v. Railroad 120 Mo. App. 335, l. c. 340; State v. Snyder, 182 Mo. 462, l. c. 500.] Applying this rule in the case at bar, we observe that said section 12 of article 91 of our Missouri Constitution, declaring that all laws regulating the fees of “county officers” shall be uniform in their operation, is not found in that article of the Constitution which creates and prescribes the duties and jurisdiction of probate judges; but is part of article*9', entitled “Counties, Cities and Towns.” In this last named article (9), nothing is found specifically referring to probate judges, their duties or compensation; but instead, that article treats of the organization and change of boundaries of counties, cities and townships (sections 1 to 9), the offices of sheriff and coroner (sections 10 and 11), a limitation on the fees of executive and ministerial officers of counties and municipalities (section 13), the creation of new county, township and municipal officers by the General Assembly (section 14), and other provisions for the government and consolidation and enlargement of cities. In this article we would not expect to find any provision respecting or affecting the judiciary of the State. Judges of the probate court are not charged with the performance of any governmental functions of the counties for which they are elected; in fact, some of them do not have jurisdiction coextensive with the counties where their offices are held. Their functions — 302 — are to administer the laws' pertaining to estates of deceased persons, minors and persons of unsound mind. From the context of said section 12 of article 9, supra, it will be seen that there is very little if any better reason for classifying probate judges as “county officers” than for so designating judges of the circuit court when their circuits are composed of a single county. After a careful review of said section 12 of article 9 of the Constitution of Missouri, - we' are fully convinced that it was not intended to embrace or include judges of probate courts; and that in holding that it does embrace those officers, the case of Henderson v. Koenig, supra, is erroneous, and the same is therefore overruled. The second contention of defendant is that the title of the bill under which section 10695 was enacted did not conform to section 28 of article 4 of our State Constitution, requiring the subject of each bill to be clearly expressed in its title. The title to said bill is as follows: “An Act to repeal section 3240, chapter 27, article 1, of the Revised Statutes of 18991, relating to fees; and to enact a new section in lieu thereof, to be known as section 3240.” Defendant cites and relies upon: State v. Great Western Tea and Coffee Co., 171 Mo. 634; Williams v. Railroad, 233 Mo. 666; State v. Parker D. Co., 237 Mo. 103; Mobile v. Railroad, 124 Ala. 132; Pratt v. Browne, 135 Cal. 649; People v. Curry, 130 Cal. 82; Crowther v. Fid. Ins., etc. Co., 85 Fed. 41; Equitable G. & T. Co. v. Donahoe, 3 Penn. (Del.) 191, 49 Atl. 372; Henderson B. Co. v. Alves, 122 Ky: 46; State v. Am. S. R. Co., 106 La. 553; Steifel v. Maryland Inst., 61 Md. 144; Citizens Sav. Bank v. Auditor, 123 Mich. 511; Union Pacific Ry. Co. v. Sprague, 69 Neb. 48; State v. Sullivan, 73 Minn. 378; C. B. &. Q. Ry. Co. v. — 303 — Smyth, 103 Fed. 376; State v. Railroad, 115 Ala. 250; Hann v. Bedell, 67 N. J. L. 148. The cases cited do not sustain defendant’s contention. It is scarcely necessary for us to cite authorities on the point that the title to a hill which designates and repeals section 3240, Revised Statutes 1899, was ample notice to the members of the General Assembly that the new section enacted in lieu of section 3240, supra, would deal with the same subject contained in the repealed section, to-wit, fees and compensation of probate judges; and no reasonable legislator could have been misled by said title into believing that the new section would contain only the same provisions as the repealed section. When a section is repealed and re-enacted, there is invariably some change made in the old law. The title to the bill under consideration, by referring to the old section fixing fees of probate judges and containing also a further recital that the new law related to fees, was broad enough to give notice of any change to section 3240 (now Sec. 10695, R. S. 1909) which the Legislature saw fit to make, so long as said amendment related in any manner to the fixing, collection or distribution of fees of probate judges. [State ex rel. v. County Court, 128 Mo. 427; State ex rel. v. Heege, 135 Mo. 112.] Salaries are a form of compensation prescribed for paying public officers and others for their services. It takes the place of and produces very much the same result as paying fees to public officers for their services. We therefore hold that the subject of salaries is germane to the subject of fees, and it was entirely competent for the General Assembly under the title to the bill under consideration to provide for paying probate judges a salary out of their fees and requiring part of their fees to be paid into the public — 304 — treasury to the credit of the school fund. [State ex rel. v. Mead, 71 Mo. 266; State ex rel. v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo. 163; Ferguson v. Gentry, 206 Mo. 189; State ex rel. v. Vandiver, 222 Mo. 206; State v. Bixman, 162 Mo. 1.] In the Bixman case, supra, the validity of the beer inspection law was assailed on the ground that its title did not indicate that it was intended to be a revenue measure for the purpose of replenishing the State Treasury; and in fact, the title of the bill did not indicate how the fees of the beer inspector were to be disposed of; neither did the title of that bill refer to the fact that the beer inspector was to receive any fees whatever; yet this court, speaking through Gantt, J., held that the fact that the title of the bill did not specify that the inspector’s fees were to be paid into the public treasury, did not vitiate that part of the law which required such payment. That the title of the bill which defendant assails is sufficient to support all the provisions of said section 10695 is too clear to justify us in citing additional authorities. Plaintiff asserts that defendant is estopped from denying the constitutionality of any part of the law under which the fees in controversy were collected, for the reason that he assumed to act under the law in collecting the fees, and cannot be allowed to treat that part of the law as valid under which the money was collected and dispute the validity of another part of the samé section which prescribes how the fees collected shall be disbursed. A very similar issue arose in the State of California under a law which provides that the “ Commissioner of Immigration” shall collect fees for services in the inspection of immigrants, and after deducting his salary from such fees, pay the remainder thereof into the public treasury for the support of a hospital. After collecting a large amount of fees, the Com — 305 — missioner of Immigration refused to pay any part of them into the treasury, claiming that as the law under which they were collected was in conflict with the Federal statutes, he could not he compelled to make such payment.' In construing that law, the Supreme Court of California, in the case of People v. Bunker, 70 Cal. 214, said: “The defendant having assumed to act under a statute of this State, and having collected moneys according to the letter of that statute, cannot be heard to say that the statute was in conflict with the Constitution of the United States . . . and that he was not bound to pay them over to the proper officer. ’ ’ We think the foregoing is a correct statement of a sound rule of estoppel. The defendant in the case at bar having collected the fees under section 10695, Revised Statutes 1909, is estopped from asserting that any part of said section is invalid. The law under which defendant collected the money in controversy was in force when he accepted the office of probate judge of Buchanan county. By voluntarily accepting that office and collecting the fees which the law prescribed for his services, he waived the right to assail the constitutionality of that law. This doctrine also finds support in the case of State v. Speed, 183 Mo. 186, l. c. 200, and Board of Education v. Kenan, 112 N. C. 566. We find, however, that that portion of section 10695, Revised Statutes 1909, which requires defendant to pay a certain portion of his fees into the county treasury for the benefit of the school fund, is not unconstitutional; and that the Legislature has full constitutional power to place probate judges upon a salary or upon fees, as in their judgment may seem likely to promote the public welfare. In their oral argument, learned counsel for defendant assert that the law under consideration, in so — 306 — far as it authorizes probate judges to collect fees for their services and pay the same into the county treasury, amounts to ‘ ‘ a sale of justice,1 ’ and therefore is in conflict with section 10, article 2, Constitution of Missouri, prescribing that justice shall be administered 41 without sale, denial or delay.” There is no such issue in the pleading in this cause, and it will be time enough to consider that issue when some person makes complaint that he has been required to purchase jus- ■ tice. It, therefore, follows that the judgment of the circuit court of Buchanan county should be reversed, with directions to enter judgment in favor of the plaintiff according to the prayer of its petition. It is so ordered. Valliant, G. J., Lamm and Ferriss, JJ., concur; Kennish, J., concurs in all except what is said about estoppel to contest validity of law; Graves, J., dissents, and Woodson, J., dissents in opinion filed.