concurring.
I concur in the principal opinion. It makes what I consider to be the correct disposition of the “Petition for Review” filed by petitioners. In State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99 (Mo. banc 1970), we fashioned a remedy by way of a “Petition for Review” to permit resolution of disputes concerning expenditures ordered under the court’s inherent power to do those things necessary to enable the courts to function and perform their constitutional mandate. We were considering in that case situations wherein the action taken involved expenditures which were a part of the court’s budget for its activities. That is not true in this instance. Here, the dispute concerns employees in the executive branch of the government and was taken pursuant to statute, not inherent power of the courts. The “Weinstein” remedy is not applicable.
However, there are questions posed by this most unfortunate controversy which are not before us for decision in this case which may arise in the future. I address them briefly.
It is to be noted that prior to the filing of the “Petition for Review” in this court an order to show cause why the county court judges should not be held in contempt of court was issued. It is at least possible that dismissal of the petition herein may result in a continuation of the contempt proceedings. I have reservations as to the propriety of utilizing that method of enforcing the orders of February 10, 1977, and March 1, *141977, when other procedures are available. See State ex rel. Weinstein v. St. Louis County, supra. This is particularly true if the action of the circuit judges in approving the appointment of deputy sheriffs and fixing their compensation is an administrative rather than a judicial act. I recognize that Pogue v. Swink, 365 Mo. 503, 284 S.W.2d 868 (1955), held that a circuit judge’s action in approving appointment of a deputy circuit clerk and approving her salary was a judicial act but, in my view, that holding is debatable. In my judgment this court, when the issue is presented in an appropriate proceeding, should review this part of the decision in Swink.
In his dissenting opinion, Judge Seiler expresses the view that the judges, when acting pursuant to § 57.250, RSMo 1969, were acting in a judicial capacity, but he so concludes on the basis that if they were not so acting, the statute would be unconstitutional under Art. II, § 1, Mo.Const. A more plausible case can be made for concluding that the act of the judges in approving the number of deputy sheriffs and their salaries was not a judicial act but was an administrative act, something the county court does in the case of other non-judicial department employees and would have done with reference to the sheriff’s department in the absence of § 57.250.
If, when presented, it is determined that a circuit judge acts in an administrative rather than a judicial capacity when he approves the appointment of deputy sheriffs and fixes their compensation pursuant to § 57.250, RSMo 1969, then the question arises as to whether the assignment of such duties relating to appointment of and compensation for persons in the executive branch of government may contravene the provisions of Mo.Const. art. II, § 1. That is the section which provides for separation of powers between the legislative, executive and judicial departments and prohibits any department from exercising powers properly belonging to another department unless expressly directed or permitted by constitutional provision. State ex rel. Richardson v. County Court of Kanawha County, 138 W.Va. 885, 78 S.E.2d 569 (1953), cited in Judge Seiler’s opinion, is persuasive authority that § 57.250 may be unconstitutional.