State Ex Rel. Lack v. Melton

WELLIVER, Judge,

dissenting in part and concurring in part.

I respectfully dissent as to case one.

The issue in the first case is whether the Dade County assessor could hire an employee, who was ultimately to serve as a deputy assessor, without first having received the express approval of the Dade County Court (now Commission).1 The principal opinion concludes that the county *306court need not approve the assessor’s hiring of an employee (deputy assessor) if the county court has already approved a budget.

The issue herein should have been easily resolved by following the plain language of § 137.715, RSMo Cum.Supp.1984. The legislature could not have expressed its intent more clearly than it did by requiring “the approval of the governing body of the county.” A similar requirement for prior approval can be found in other statutes. See § 54.215, RSMo Cum.Supp.1984; § 54.-230, RSMo 1978; § 55.100, RSMo 1978; § 55.110, RSMo 1978. Where the legislature has not considered prior approval necessary, it has omitted this language and allowed county officers to hire deputies and clerical help without requiring approval of the governing body. See § 52.280, RSMo 1978. Although not controlling prior authority, a number of Attorney General opinions demonstrate the State’s strict compliance with the language. No. 60, Paul, 5-8-77; No. 413, Holman, 9-18-70; No. 124, Davis, 5-2-67. No one disputes that the Dade County Court was the governing body. Equally undisputed is the fact that the assessor did not receive the approval of the county court before hiring Linda Thei-man. The assessor, therefore, did not comply with the unambiguous requirement of the statute.

The principal opinion disregards § 137.-715 when it holds that the approval of a budget by the county court waived that body’s right to approve or reject a subsequently hired employee.2 A number of reasons illustrate why such a conclusion is unsupportable. First, the principal opinion overlooks the simple fact that the county court examines and may revise the budget pursuant to wholly separate statutory provisions. See e.g., §§ 50.600, 50.610, RSMo 1978. And, if not otherwise provided by law, the county court may set the salaries of county employees. § 50.540.4, RSMo 1978. The salaries for county assessors, but not their employees, are governed by the provisions of chapter 53.

Second, the pertinent language in § 137.-715 reflects a deliberate choice by the legislature to vest the right of approving appointments in the county court. Prior to § 137.715, county assessors were not required to seek the approval of the county court. See § 10946, RSMo 1939; § 53.060, RSMo 1949. However, specific statutes governed the number of deputies that could be hired and these statutes also provided for the allowable salaries. See e.g., § 53.070, RSMo 1969; § 53.080, RSMo 1959; § 53.090, RSMo 1969; § 53.095, RSMo 1959. The legislature subsequently altered a number of these statutes. See § 53.071, RSMo 1978 et seq. See also § 53.065, RSMo Cum.Supp.1984. In effecting these and other changes, the legislature omitted any provision for the assessor’s staff. This omission was addressed in an Attorney General opinion, where it was urged:

Section 53.060, RSMo, recognizes the authority of the assessor to appoint deputies by providing that the deputy assessors shall take the same oath and have the same power and authority as the assessor himself and that the assessor is responsible for the official actions of his deputies. Section 137.710, ... is based on the premise that the county shall provide funds for payment of deputy assessors.
While it is our view that the authority of the assessor to appoint a deputy and to employ clerical assistance is not clearly and specifically provided for by statute after the effective date of Senate Bill No. 277, and is thus a proper subject for legislative action; it is also our view that the provisions which we have noted indicate that it was not the legislative intent to preclude the assessor from hiring deputies and assistants. * * * We believe that the confusion which has resulted from the changes made by Senate Bill *307No. 277 simply indicates careless drafting combined with an apparent thought on the part of the drafters that the rearrangement of the subject matter covered the entire question of the payment of such employees as well as the authority to hire such employees.

No. 211, Ratcliff, 12-22-77. The party’s position was affirmed by the Office of the Attorney General. Three years later, in 1980, the legislature passed § 137.715. The statute apparently has two functions. It addresses the problem expressed in the Attorney General opinion No. 211, supra, by allowing the assessor to appoint a staff, but it conditions that right on the approval of the governing body. It also establishes that such officers are to be paid by both county and state funds pursuant to §§ 137.710, 137.750. The statute, therefore, provides both a limited grant of authority to the assessor and a system for compensation. To suggest that the approval of the budget has anything to do with the approval of appointments authorized under § 137.715 is to ignore the scheme the legislature during the past fifty years has worked to establish.

Third, the principal opinion errs when it holds that “[w]e are of the opinion that the legislature did not intend to subjugate the autonomy of the assessor’s office to the political whims of the county commission via an ‘advice and consent’ stratagem.” Quite the contrary, the legislature undoubtedly did not want to allow the establishment of a patronage system by the assessor without any concern for need or merit — a problem alleviated by requiring the approval of the governing body.

Fourth, the principal opinion fails to recognize that when the county commission acts as the governing body it performs many functions comparable to that of overseeing hirings. See e.g., § 55.010, RSMo 1978; § 55.030, RSMo 1978; § 55.120, RSMo 1978; § 55.150, RSMo 1978. For example, the county commission, and not the assessor, establishes a system or method of bookkeeping to be employed by the county assessor. § 137.395, RSMo 1978. Such statutes, I believe, indicate a clear legislative intent that county commissions maintain both a close and direct role in supervising all facets of running the county. Overseeing the hiring of both agents and assistants is just such a task entrusted to the county commission. E.g. § 50.753, RSMo 1978.

In view of the efforts devoted during recent years to the upgrading of county governing bodies to their newly recognized status as “county commissions,”3 it is especially unfortunate that they must so soon find themselves so effectively stripped by the judiciary of their governing power.

I would quash the writ of mandamus as to ease one.

I concur as to ease two.

. It should be noted at the outset that respondent unnecessarily engaged in this litigation. When respondent presented the county court with the warrant for paying Thieman, one of the judges had some reservations about signing the warrant because a full panel was not present. He told respondent to wait until the full panel could vote on the warrant the following week. Respondent has not provided a satisfactory explanation for why he could not wait a week until all three judges could vote on the warrant, at which time the warrant might have been issued. Instead, respondent opted for the more lengthy and costly course of litigation.

. Under such an interpretation, the assessor could hire employees right before the budget is approved and then after the approval of the budget he or she could replace all the employees without the approval of the county court.

. § 59.010, RSMo Cum.Supp.1984.