dissenting.
As the principal opinion points out, the petition for review device resorted to in State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99 (Mo. banc 1970) was based on a doctrine of inherent power of the court to carry out its functions and it follows that the county judges in the case before us have selected an inappropriate title for their pleading when they denominated it a “petition for review”. But we are not inflexibly constrained by the title of the petition. We can look at the allegations for what they actually set forth, even if the parties have denominated the petition erroneously. “. . . The case is whatever the pleadings and the facts make it, regardless of what name plaintiff gave it.” W. A. Ross Const. Co. v. Chiles, 344 Mo. 1084, 130 S.W.2d 524, 528 (1939). “ ‘. . . [T]he character of a cause of action is determined from the facts stated in the petition and not by the prayer or name given the action by the pleader’ . . . ” McClellan v. Highland Sales and Investment Co., 426 S.W.2d 74, 77 (Mo.1967).
So viewed, I do not believe the matter can be disposed of on the basis that the petition for review device is not to be used in a dispute between a sheriff and a county court. What we have here is more a dispute between the circuit judges and the county court than it is between the county court and the sheriff, who is not even a party to the litigation. Both plaintiffs and defendants rely on § 57.250 as justifying their positions. All we have before us are the pleadings, affidavits and exhibits.
Taking the allegations of the petition as true (and, of course, we have no right to do otherwise in determining the sufficiency of the petition), the claim of the county judges is that the circuit judges have authorized the employment of three additional deputies for the sheriff when the county does not have the money to pay for them; that in making their order the circuit judges *15failed to have “due regard for the financial condition of the county” as required by § 57.250; that the salaries, social security, and mileage for the additional deputies would amount to approximately $20,000, which can be obtained only by reducing other budgeted items in the general revenue fund; that the circuit judges failed to consider the funds available to the county or the commitments by the county for the same.
I do not know who is correct on the facts in this dispute and I believe that responsible public officials should have been able to resolve a fiscal disagreement of this sort without resort to expensive litigation, but since they have not, I think we should appoint a special master to take evidence and make findings of fact on the issue of whether in authorizing three additional deputies and setting their salaries at approximately $20,000, the defendants had due regard for the financial condition of Bollinger county.
I believe the words “due regard” were inserted in the statute for a purpose and that the circuit judges cannot act in disregard thereof, if such be the fact. The circuit judges are part of the judicial system and when they act they act judicially. It would be a violation of the distribution of powers as set forth in Art. II, § 1 of the 1945 Missouri Constitution for them to act in a legislative or executive capacity.
Article II, § 1 prohibits one department from exercising any power belonging to another, “except in the instances in this constitution expressly directed or permitted.” Art. YI, § 7 provides that the county court “shall manage all county business as prescribed by law, and keep an accurate record of its proceedings.” I find nothing in the constitution which authorizes the judiciary to manage county business and whatever the circuit judges do as to setting the number of sheriff’s deputies and their salaries must be viewed as being done judicially, in my opinion, if it is to be constitutional.
While I do not find a Missouri case in point, in State ex rel. Richardson v. County Court of Kanawha County, 138 W.Va. 885, 78 S.E.2d 569 (1953), the court had under consideration the constitutionality of a statute which authorized a trial court to fix the salaries of the chief probation officer and various assistants and clerks within certain limits, with the same to be paid by the county court. The statute was held unconstitutional, as violating the separation of powers provisions of the West Virginia constitution, the court holding that the fixing of salaries of probation officers and other appointees was primarily nonjudicial. Under this view, of course, § 57.250, which includes fixing the number of appointees as well as fixing their salaries, would be unconstitutional. However, the general rule is that if a statute is subject to two constructions, one constitutional and the other unconstitutional, courts should adopt the former and it seems to me that the “due regard” portion of § 57.250, previously discussed, makes it possible to say that the circuit judges are acting judicially, not administratively.
The county court is responsible for the fiscal affairs of the county, both by constitutional and statutory provision. An examination of Chapters 46-67 of the 1969 Revised Statutes pertaining to county government shows that the county court, not the circuit judges, have charge of county finances and are responsible for maintaining a balanced budget. Necessarily, therefore, the provisions of § 57.250 that the circuit judges in fixing the number and compensation of deputies “shall have due regard for the financial condition of the county” mean that the order of the circuit judges cannot be immune to challenge by the county court. Otherwise, the circuit judges could order any number of deputies at whatever salaries they see fit, regardless of the financial condition of the county. This could nullify the efforts of the county court to live within the income of the county.
If we accept what the county judges say, there is no claim being made that law enforcement would otherwise suffer (in fact, the county judges say that one of the circuit judges stated to them that law enforce*16ment in Bollinger county was the best it had been in years and was the best available among surrounding counties), the county is already up to its maximum tax levy, the budget which the county court proposed for the sheriff’s office was substantially the same as the amount on which the sheriff’s office had operated for the past several years, and to give $20,000 additional to the sheriff meant the county court would have to take money from either the county roads and bridges, ambulance service, or the county landfill project, which the county judges did not believe was warranted.
On the other hand, if we accept what the defendants say, offenses' and arrests are climbing in Bollinger county, the amount of money authorized the sheriff by the county court is less than in comparable surrounding counties, the circuit judges assure us that they did have “due regard for the financial condition” of the county, and although the circuit judges attempted to meet with the county judges and arrive at a mutually satisfactory figure, the county judges were unwilling to talk.
If the circuit judges are acting in a judicial capacity in what they are attempting to do here, as I believe to be the case for reasons stated above, then under Art. V., § 4 of the constitution, this court or the court of appeals has general superintending control over the actions of the defendants as here challenged and we should ascertain the facts and dispose of the case on the merits.
For these reasons, I respectfully dissent.