State Ex Rel. Hall v. McElroy

This case in one sense is a companion case of State ex rel. Thomas B. Buckner et al. v. Henry F. McElroy et al., reported at page 595 of this Report. The Buckner case was first filed, and a commissioner appointed and evidence taken and reported to this court. That case by assignment fell to Division *Page 557 One, for disposition, and to the writer for an opinion. This case, although later in filing, was submitted to Court in Banc and by assignment fell to the writer for an opinion, but the opinion was delayed until State ex rel. Buckner v. McElroy could be heard orally. In the meantime satisfactory arrangements were made as to the waiving of no rights by reason of the acceptance of warrants.

Judge Hall, the relator here, is by the Acts of 1919 and 1921, a member of the Parole Board of Jackson County. The other circuit judges are likewise members of such board. As the greater stress in oral argument and in briefs were given in the Buckner case, we have written the principal opinion in that case, to which we refer for greater detail of the facts. In both cases the respondents challenged the validity of the Jackson County Parole Board Law, which received its final form by the Act of 1921, fully copied in the Buckner case. We have in the instant case the following stipulation as to our judgment:

"In the Supreme Court of Missouri, October Term, 1923. State of Missouri, at the relation of Willard P. Hall, Relator, vs. Henry F. McElroy and Harry S. Truman, Respondents.

"STIPULATION. "O.A. Lucas, Charles R. Pence, Nelson E. Johnson, Allen C. Southern, Samuel A. Dew, E.E. Porterfield, Thad B. Landon and James H. Austin, are judges of the Sixteenth Judicial Circuit, all of whom are similarly situated with relator with reference to the issues involved in the above entitled action.

"Now, therefore, to avoid the institution and prosecution of separate suits, it is stipulated and agreed that any final judgment on the merits herein may embrace and include all of the said circuit judges, as well as the relator, and the final judgment on the merits in this cause shall be a final determination of the issues with respect *Page 558 to and as affecting the said circuit judges as and with the same respect as to relator.

"THOMAS J. SEEHORN, "HENRY S. CONRAD, "A.L. COOPER, "WALLACE SUTHERLAND,

"Attorneys for O.A. Lucas, Charles R. Pence, Nelson E. Johnson, Allen C. Southern, Samuel A. Dew, E.E. Porterfield, Thad B. Landon and James H. Austin.

"RALPH S. LATSHAW,

"Attorney for Respondents, Henry F. McElroy and Harry S. Truman."

In view of our ruling in Buckner's case there is but a single question for determination in this case. The county court had been paying the salaries of the members of the parole board out of the pauper fund, which it is alleged was depleted. Relator Hall, and the other judges, members of such board, contend that their salary should be paid out of the salary fund, and that the county court should be compelled to so issue their warrants upon that fund. The Act of 1921 (Laws 1921, p. 544), as to the salary reads:

"The judges of the circuit court of said judicial circuit shall each receive as compensation for his services under this law as members of said parole board solely, a salary of fifteen hundred dollars per annum, said salary shall be paid by such county in equal monthly installments. The time, place and manner of meetings of said board of paroles and the rules for performing its duties shall be fixed from time to time by a majority of said board of paroles."

In the Buckner case we ruled that certain parts of the Parole Board Law were void as being in violation of Section 36 of Article VI of the Constitution. We ruled other constitutional questions against the respondents in that case, and held that there was a valid workable law left, and a valid and legal Parole Board of Jackson County, Missouri. The purpose of the instant suit (being *Page 559 one in mandamus) is to compel the County Court of Jackson County to draw warrants upon the salary fund of the county for the monthly payments due to the members of the Parole Board. When read in connection with the opinion in the Buckner case, this sufficiently outlines the case now before us.

I. There is much in the briefs in this case which was abandoned by learned counsel for respondents in the argument of the Buckner case, supra. We have set out in the Buckner case all the constitutional questions lodged in that case, but in the argument learned counsel abandoned all except that the county court was the constitutional forum for all county business, and that such business could not be granted to circuit judges. In our opinion in Buckner's case we ruled specifically that neither a circuit court, nor a board made up of circuit judges, could be empowered to transact county business, and this sufficed to answer both of the orally argued questions. We went further and ruled that there was no doubleness of title. In both the 1919 and the 1921 acts, the titles will be found to be single, and the bills to contain germane matter. The sole trouble was that the law-makers attempted to give the parole board some powers which, by the Constitution, had been lodged with the county court. Other constitutional questions were and are without substance, so that we finally ruled, in anticipation of this case, and of a short opinion therein, that, after striking out the unconstitutional portion, there was a valid workable law left for a parole board, whose members are entitled to pay for their services. This leaves us the single question as to whether or not the county court should pay out of the salary fund of the county, or out of the pauper fund. Of this next.

II. The law creates an office, i.e., members of the Parole Board of Jackson County. The law imposes additional duties upon the circuit judges, as members of this board. Under the general law the trial judge alone passes upon the application for parole. Under this *Page 560 law (an admirable feature of the bill) the applicant has a hearing before at least four circuit judges, including the one who actually tried him. The real merits of the application can be more thoroughly sifted under this law. The law after creating the office and prescribing the duties, fixes a salary of $125 per month for the performance of those duties. The law does not say from what fund this salary shall be paid. We realize that in the creation of an office, the law-makers might designate a fund out of which the salary shall be paid, and this fund may be other than the salary fund of the county. But such was not done in this case. In such situation it will be presumed that the Legislature intended the salary to be paid as other official salaries are paid, i.e. out of the salary fund of the county. We think this to be clear and without doubt. It is urged, however, that a parole board for St. Louis was enacted at the same time, and that such law, in terms, designated the salary fund. We do not think that this fact changes the presumptive intent of the Legislature in the act before us, discussed above. With these views it follows that our alternative writ of mandamus should be made permanent and absolute, and that the judgment should be entered, as per the stipulation set out in the statement of the case. It is so ordered. All concur, except Atwood, J., not sitting.