State Ex Rel. Koehler v. Bulger

233 S.W. 486, 289 Mo. 441, 1921 Mo. LEXIS 27

• Court: Supreme Court of Missouri
• Decided: July 22, 1921
• Status: Published

Opinion

GRAVES, J.

This is a proceeding in mandamus. To relator’s petition, the respondents, who constitute the County Court of Jackson County, entered their appearance, waived the issuance of our alternative writ, and filed their demurrer to such petition as if it were the alternative writ. The questions are purely questions of law. Relator was elected County Surveyor of Jackson County in November, 1920, and took possession of his office January 1, 1921. The contest is over the amount of salaries to which he is entitled. By virtue of his election to the office of County Surveyor he avers that he became ex officio County Highway Engineer of said county. He avers that he is entitled to $250 per month as County Surveyor and Bridge Commissioner, which he says the respondents have regularly paid him. 'He also avers that he is entitled to $250 per month ex officio County Highway Engineer, which salary for the month of January the respondents duly paid to him, but that since said month of January the respondents have claimed that he was only entitled to the sum of $2,000 per year as ex officio County Highway Engineer, instead of $3,000, thus making his aggregate salaries for the two offices, $5,000 per annum, instead of $6,000 per annum. He avers that since January the respondents have tendered to him each month a warrant for his salary as ex officio County Highway Engineer in the sum of $166.-66%, which is the monthly salary if he is only entitled to $2,000 per annum, instead of $3,000 per annum. These warrants the relator declined to accept, but had throughout demanded $250 per month. The several sections of the statutes under which relator bases his claims are cited and set out in his petition, but these we leave for the opinion. As the demurrer admits all well pleaded facts, we have the simple issue as to whether or not the relator, under the law, is entitled to $250 or only $166.66% per month as ex officio County Highway Engineer.

* He asks that this court compel the respondents, as judges of the County Court of Jackson County, to issue him warrants for the months of February, March, April and May, in the sum of $250 each, or in the aggregate sum of $1000 for the four months. Such is the case for determination.

__ . I. It may be conceded, as suggested by the respondents, that it devolves upon relator to show a clear right to the remedy herein sought. If, however, the amount of a salary is fixed by law, and for that reason no discretion is left as to the amount, then mandamus is an appropriate remedy to enforce the payment of a salary to a public official against the officer or officers, whose duty it is to pay such official. In such cases the salary is a fixed amount, if it exists at all, and the sole question is the legal one as to whether or not there is a liability. In the insistence above, respondents do not mean to question the remedy used in this case, but what they mean is that it must be plain that the salary claimed is one allowed by law. This clearly appears from the whole brief.

Salary^10 II. Relator contends that he holds two offices, one by election and the other ex officio. These offices he contends are created and governed by separate laws, and the duties thereof are fixed by such separate laws, and further that the salaries are likewise fixed by these separate statutes. The county surveyor, and his duties and fees, are fixed by Chapter 117, Revised Statutes 1919. It is an ancient office coming to us from Territorial days. Highway engineer is much more modern (Laws 1907 p. 401), and the provisions of law governing this office is found in Article 6 of Chapter 98, Revised Statutes 1919. By the Act of 1907, supra, the office was first created. In 1909 this Act of 1.907 was repealed and a new law enacted in lieu thereof, which became Article Y of Chapter 1.02, Revised Statutes 1909. This Act of 1909 in its general provisions is substantially the same as the present law, Article 6 of Chapter 98, Revised Statutes 1919. There were, however, some changes made in 1919, which are material here.

It would perhaps be best to start with the Act of 1907, Laws 1907, page 401. By this act there was created in the several counties of the State ‘ ‘ the office of county highway engineer.” Such officer was to be appointed by the county court for a term of two years, the salary of which office should not be less than $300 nor more than $2,000 as might be fixed by an order of the county court. The office was separate and distinct from that of county surveyor. The county surveyor was not mentioned in the act. By the Act of 1909, which became Article Y of Chapter 1.02, Revised Statutes 1909, the first section (Sec. 10551, R. S. 1909) created the office of county high way engineer, such office to be appointed by the county court for term of one year, and until his successor was appointed and qualified. This Section 10551 applied to the “several counties” of the State. The fee provision of this Act of 1909 (which became Sec. 10553, R. S. 1909) reads:

“The county highway engineer shall receive such compensation as may be fixed by order of the county court of his respective county: Provided, his salary shall not be less than three hundred dollars nor more than-two thousand dollars per annum: Provided, further, that in all counties in this State which contain or may hereafter contain more than fifty thousand inhabitants, and whose taxable wealth exceeds, or may hereafter exceed, the sum of forty-five million dollars, and which adjoin or contain therein, or may hereafter adjoin or contain therein, a city of more than one hundred thousand inhabitants by the last decennial census, the county surveyor and ex officio highway engineer shall receive a salary of not less than two thousand dollars nor more than three thousand dollars, as may be fixed by the county court.”

By Section 10556, Revised Statutes 1909, the county court was authorized to appoint the county surveyor as county highway engineer, if he were competent. In which event, such county highway engineer should “receive the compensation fixed by the county court, as provided in Section 10553, in' lieu of all fees, except such fees as are allowed by law for his services as county surveyor.” Up to this date no fees had been established for a county highway engineer, nor is it a fee office now. It was a salary as fixed by the county court. There were fees then allowed to the county surveyor. [Sec. 10714, R. S. 1909.] See also Revised Statutes 1909, Section 11327, as to counties having 50,000 or more inhabitants and which adjoin a city of more than 300,000 inhabitants. In this Section 10556, Revised Statutes 1909, it was further provided:

“Provided, however, that in all counties in this State which contain or which may hereafter contain more than fifty thousand inhabitants, and whose taxable wealth exceeds or may hereafter exceed the sum of forty-five million dollars, or which adjoin or contain therein, or may hereafter adjoin or contain therein, a city of more than 100,000 inhabitants by the last decennial census, the county surveyor shall be ex officio county highway engineer, and his salary as surveyor and ex officio county highway engineer shall be not less than two thousand dollars and not more than three thousand dollars, as may be fixed by the county court, and all fees collected in such counties by the surveyor,, for his services as surveyor, shall be paid into the county treasury, to be placed to the credit of the county revenue fund.”

This covered Jackson County, but in 1907 the county surveyor of said county had been placed on a salary basis, and his salary fixed at $3,000 per year payable monthly. [R. S. 1909, sec. 10737; Laws 1907, p. 420.]

,Bearing in mind that both Sections 10556 and 10737 applied to Jackson County the question is, how is the expression ‘£ as to surveyor and ex officio county highway engineer” as used above, to be understood? We start with this Act of 1909, because we can best get the bearings at this date. Shall we, in the face of the fact that the County.Surveyor of Jackson County was a salaried office, and the salary fixed by law at $3,000 per annum, reasonably say that Section 10556 in this proviso, meant to combine both offices and make the salary of both dependent upon the order of the county court, with a maximum for both services of $3,000, or shall we say that the expression “salary as surveyor and ex officio county highway engineer,” as used here, has reference to the ex officio duties and the ex officio salaries? We are inclined to the latter view, when the history of the laws are considered. The surveyor has always been an elective officer, and this elective office had been and was upon a salary basis in Jackson County, and the counties of its class, when the office of county highway engineer was created. We had no county highway engineer prior to 1907, and by tbe Act of 1907 they were appointed by tbe county court and tbeir salary fixed by order of the county court. Not until 1909 were duties of tbis office made ex officio tbe duties of tbe surveyor in sucb counties as Jackson. It is hardly reasonable to bold that tbe lawmakers intended to have tbe county court fix tbe salary for tbe duties of tbe surveyor and for tbe county highway engineer, and be empowered to fix tbe salary of both at less than tbe statutory salary of tbe surveyor. We are inclined to tbe view that the term “as surveyor and county highway engineer’’’ bad reference to tbe office of engineer and not that of surveyor. If be were signing instruments in tbe capacity of engineer, be would properly sign “County Surveyor, and Ex officio County Highway Engineer. ’ ’ In fact to sign otherwise would be wrong. [Callahan v. Davis, 125 Mo. 27.]

We conclude that under tbe Act of 1909, Revised Statutes 1909, secs. 10551 et seq., tbe reference in Section 10556 as to salary has reference solely to tbe duties'as engineer. What we have said as to Section 10556 applies with equal force to Section 10553, both of which we have quoted, supra. Tbe amendments to tbe Act of 1909 we take next.

III. Going now to* more recent amendments, we shall try to find tbe present status of this office in Jackson County. It must be borne in mind that we are discussing tbe statutes applicable to that county and counties of its class, and not other counties or classes of counties. In 1919, Section 10551, Revised Statutes 1909, was amended. [Laws 1919, f>. 636.] By tbis amendment (which is now Sec. 10782, R. S. 1919) the county court appoints tbe county highway engineer for no fixed term, but for sucb time as that body finds advisable, and at a compensation to be fixed by tbe court. Tbis therefore left all county highway engineers to be appointed by tbe county courts, except the excepted classes found in tbe statutes. Jackson County belonged to an excepted class under the Act of 1909, and so continues today. [Sec. .1787, R. S. 1919.] In. 1919, Laws 1919, p. 634, Section 10556, Revised Statutes 1909, was amended and the substantial amendment was to change the old law where it gave the county court the right to allow from $2,000 to $3,000, so that the county court could allow from $3,000 to $5,000. This amended section is the present .Section 10787, Revised Statutes 1919. • .

What we said as to old Section 10556 applies with equal force to this new section, in so far as the office to which it refers is concerned. As said, the salary of the county surveyor was fixed by law. He is and was an elective officer. It must be kept in mind that the office of county highway engineer, and of county surveyor, are. separate offices, with separate and distinct duties. In this age of road building (the thing which called for a highway engineer) the duties of the office of highway engineer are extremely onorous, and it is not reasonable to conclude that the law-makers intended to abolish the salary of the surveyor (which was $3,000) and give the county the power to say that the duties of both officers must be performed for $3,000 per year. Yet, if respondents are right in their contentions, then the County Court of Jackson County could make an order that relator should be allowed only $3,000 for both offices. Their contention amounts to saying that the Act _ of 1909, as well as the Act of 1919, in effect, repealed Section 10737, Revised Statutes 1909, now Section 11041, Revised Statutes 1919, which fixed the salary of county surveyor at $3,000 per annum.

We do not believe that the Jaw-makers so intended. If it was intended to so combine the two offices by the Act of 1909, Section 10556, Revised Statutes 1909, that only one salary was to be paid, the intention would have been more specifically made, and some mention would have been made of the fixed salary of $3,000 to the surveyor alone. With the view urged by respondents, the real purpose of the Act of 1909, was to empower the county court, by order, to reduce the salary of surveyor (fixed by tbe existing law) from $3,000 to $2,000, and allow such officer nothing for the duties of “county surveyor, and ex officio county highway engineer.” Such would be the effect of the contention made by respondents, as to the Act of 1909. So, too, as to the present law.

If it be true that the present Section 10787 was an allowance for both offices, then by order of the county court the salary for both offices could be fixed at $3,000, whilst the existing laws allow $3,000 to the surveyor’s office' alone, and the Act of 1909 must have repealed the section which fixed the surveyor’s salary at $3,000, which section is now Section 11041, Revised Statutes 1919. This for the reason that such section fixed a salary by law, and Section 10737 (as respondents would have us construe it) vests the power of fixing the surveyor’s salary in the county court. The Act of 1909, Laws 1909, p, 755, which is the basic law involved, shows no legislative intent to make such a repeal.

It specifically mentions the things repealed, but no part of the Surveyor’s Act, or the act concerning his salary, are mentioned. So we repeat what we said as to the Act of 1909, that the words ‘ ‘ as county surveyor and ex officio county highway engineer” as used through all these acts has reference to the office and to the duties of the highway engineer, and the pay there mentioned is to cover those duties, and not to cover the duties of the county surveyor as such. For services as county survey- or, the salary is fixed at $3,000 per annum. For “county surveyor and ex officio county highway engineer” the salary is not less than $3,000 nor more than $5,000. More than the minimum of $3,000 cannot be claimed, unless the county court has so ordered. The $3,000 is fixed by law, and must be paid.

We conclude that relator is entitled to two salaries of $3,000 each, one as county surveyor, under Section 11041, Revised Statutes 1919, and one under Section 10784, Revised Statutes 1919.

It therefore follows thpt our alternative writ should be made permanent, and it is so ordered.

All concur.