State Ex Rel. Saline County v. Price , 296 Mo. 121 ( 1922 )

This is a suit by the State of Missouri at the relation of Saline County, against Sterling T. Price, who was sheriff of said county during the years 1913 to 1916 inclusive, and the Equitable Surety Company, the surety on his official bond as such sheriff, to recover fees collected by him during his term in excess of $5000 per year, and not turned over to the county as provided by the statute, amounting in all to $9968.28.

The petition alleges that he had, during his term of office, failed in some instances to make returns to the county court of the full amount received by him, as required by law, and that some of the reports made by him were not verified by his affidavit and that others had not been signed.

The answer of Price pleads, in substance, that during all the time he was sheriff he was also jailer of said county in charge of the prisoners in the county jail, and was entitled to compensation for their board, which was annually fixed by the county court as provided by law, and that he included in his statements the moneys received on that account as well as sums received by him as compensation for his expense in taking prisoners to the Penitentiary at Jefferson City and to the Reformatory at Boonville, and also for taking insane patients to the state hospitals. It also pleads that Sections 10734 and 10735, Revised Statutes 1909, upon which the action is founded, are void because in violation of Section 13, Article 9, of the State Constitution, in that it seeks to change the amount of fees allowed by said section of the Constitution. It also pleads the three-year Statute of Limitations as a bar to the cause of action founded on the delinquency charged in 1913. In other respects it puts in issue the material allegations of the petition.

The defendant Surety Company filed a similar answer.

The parties entered into an agreed statement of facts, which it is unnecessary to copy in this statement, because counsel for appellant has, with commendable frankness, stated the issue as follows:

"Aside from the questions of the constitutionality of Sections 10734 and 10735, Revised Statutes 1909, raised by defendants in their answer and the plea of the Statute of Limitations, as a bar to the cause of action prosecuted in the fourth count of plaintiff's petition, by the Surety Company, in its answer, practically, the only questions left are, whether or not pay received by the sheriff from the county for board of prisoners in the county jail, and for his per diem in attendance upon courts of record in his county, and in conveying patients to asylums and prisoners to the Reform School and Penitentiary, are fees for which he is bound to account for the purpose of applying the limitation provided in Sections 10734 and 10735, Revised Statutes 1909, in determining the amount of fees which he may retain. If such are not among the fees for which he is required to account, then regardless of any other question in the case, the judgment of the court below should be sustained, but if they are such as he should account for, and said Sections 10734 and 10735 are constitutional, then the judgment should be reversed."

If it should become necessary in the course of our opinion to make any further computation of the amounts referred to in this statement we will refer to the agreed statement of facts for that purpose.

I. In citing the statutory provisions affecting the questions we shall consider, we will refer to the present edition (1919) where they are identical with those of the previous edition under which this cause of action accrued; otherwise, we will refer to the earlier edition.

The first question confronting us in the record arises upon the contention of the respondent that Section 11036, Revised Statutes 1919, is unconstitutional, because it reduces the maximum compensation allowed to public officers,Compensation of including the sheriffs of the severalSheriff: Constitutional counties, to be paid out of the fees ofStatute. the office, to $5,000 per annum, while Section 13, Article 9, of the Constitution fixes the maximum amount at $10,000.

The constitutional provision referred to is as follows:

"The fees of no executive or ministerial officer of any county or municipality, exclusive of the salaries actually paid to his necessary deputies, shall exceed the sum of ten thousand dollars for any one year. Every such officer shall make return, quarterly, to the county court of all fees by him received, and of the salaries by him actually paid to his deputies or assistants, stating the same in detail, and verifying the same by his affidavit; and for any statement or omission in such return, contrary to truth, such officer shall be liable to the penalties of willful and corrupt perjury."

It will be seen that this provision applies to all executive and ministerial officers of the counties and municipalities of the State, and there is nothing in the words in which it is expressed that either fixes the amount of their total compensation or the amount which they may retain from the fees of their respective offices for such compensation. It is simply a limitation on the maximum amount of compensation which may be allowed them by the Legislature, without interfering with its right to confine the compensation of any one or all of them to what it may consider the actual value of the service rendered in the office. The theory of the provision seems to be that all fees are imposed by the State through its laws, and that when collected by its officers they become the property of the State to be disposed of at its pleasure. This duty of collection may be and is performed by salaried officers, as well as by those depending upon the fees for their compensation, and in many instances they bear no relation to the service involved in connection with the matter to which they pertain. The prominent and only idea expressed in this constitutional provision is the protection of the State from unreasonable charges by ministerial and executive officers affected, and to provide for their compensation out of a fund created in the performance of their duties. The only limitation upon the legislative branch of the government, either expressed or implied is, as we have said, a limitation of the maximum amount of the compensation to be so paid. The provisions of Sections 11036 and 11037, Revised Statutes 1919, have no tendency to interfere with that purpose. This point must be ruled against the respondent.

II. The trial court held that sums received by the sheriff from the county for the board of prisoners in his charge as jailer, were not fees for which the defendant can be held to account, as a part of his compensation allowed by the statute. [Sec. 11036, R.S. 1919.] Section 12551, Revised Statutes 1919Board of provides that "the sheriff . . . shall have thePrisoners. custody, rule, keeping and charge of the jail within his county, and of all the prisoners in such jail, and may appoint a jailer under him, for whose conduct he shall be responsible." In this capacity it became his duty to see that the prisoners confined there were provided with food, bedding and medical attention. Section 11003 makes it the duty of the county court at the November term of each year to fix the fee for furnishing each prisoner with board for each day during the following calendar year. During the entire term of the defendant Price, the amount of this daily charge was limited to fifty cents, and the sheriff or jailer was forbidden to make any contract for the boarding of prisoners for a less sum.

From the agreed statement of facts it appears that unless the amount received by Price for the board of prisoners be charged against him in determining the amount which he was entitled to retain as his compensation, the amount which he did so retain in any year did not exceed the amount of $5,000 allowed him under the statutes. This is evidently the paramount question in this case, for the agreed statement shows, and the argument of both parties assumes, that the total amount of the receipts of Price, including the amount paid him for the board of prisoners, did not, after deducting that amount, and the amount paid by him for deputy hire, exceed the amount of $5000 which he was, by law, entitled to retain. In two of those years the amount received for board was greater than the amount retained as his compensation. Whether he realized any profit whatever in his capacity as a keeper of boarders does not appear in the record. It is not suggested that fifty cents per day was immoderate when fixed in 1913. The great war came on the very next year when millions of men were called from the fields where they helped to produce the world's supply of food, to the field of strife, where they became consumers, and some of the most fertile lands in western Europe were torn by shot and shell, so that no tickling by the plow could extort from them the laughter of the harvest. The price of foodstuffs mounted, but the Legislature acted slowly, and not until Price left the office and his successor entered, did it pass the Act of March 17, 1917, by which the maximum price of board at the jail was increased fifty per cent, and the sheriff forbidden to contract for the furnishing of such board for a less price than that fixed by the county court. We note, in passing, that the General Assembly, in the enactment of this law, evidently had no suspicion that it was violating the constitutional provision forbidding a change in the fees of the office during the term of the incumbent, and that it also had in mind the theory that the sheriff should not be permitted to profit by contracting with others to perform this duty for less than he himself should receive. The humane intent which pervades this law is that the county court, in its capacity as the representative of the people of the county, should itself assume the duty of providing reasonable sustenance for prisoners through the officer charged with their custody, who should not be permitted to profit by the performance of that duty. While his fees for compensation for other services pertaining to his official duties were fixed by law, and protected by constitutional immunity from change during his term of office, his compensation for feeding prisoners remained under the control of the county court to be fixed annually as circumstances might indicate. Neither the constitutional power of the Legislature, nor of the county acting within legislative authority to fix this compensation from time to time, has been questioned. It is founded in the very nature of the thing itself.

While the statute making it the duty of the county court to fix the daily allowance for the feeding of prisoners terms it a "fee" (Sec. 11003, R.S. 1919) the section creating that allowance (Sec. 11002, R.S. 1919) seems carefully to avoid any such designation. This case turns upon the question whether or not this allowance is included in the word "fees" as it is used in Section 11036, Revised Statutes 1919.

III. The appellant's counsel in their very elaborate argument devote no time to the contention that, during the four years of the incumbency of the sheriff's office by the defendant Price, the feeding of prisoners was a perquisite of any value whatever to the sheriff, nor do they even suggest that the serviceFees. was not rendered at an actual loss, although at times it exceeds in amount the entire net earnings of the office retained by him. They plant their argument upon the theory that having accepted the office of sheriff and held it during the term, he must abide by that action and be satisfied with the compensation, if any, to which the law entitled him, and that if, under the law, it had become necessary for him, in the performance of his duty to expend, in the board of prisoners, the entire revenue of the office, he ought not to be heard to complain in the courts which must consider the law as it is written. The question is whether, under the circumstances before us, the receipts of the sheriff or county for the boarding of prisoners must be accounted for by him as a part of the compensation which the law authorizes him to retain out of his office. The word "fee," as used in this connection, is the primary subject of the inquiry. It is a many-sided word used to designate many things from an estate of inheritance in land to the charge of a physician for his call upon a patient, or, as applicable to this case, the charge fixed by law for the performance of an official duty. The clear distinction between fees and costs is expressed by Bouvier as follows: "Fees differ from costs in this, that the former are, as above mentioned, a recompense to the officer for his services; and the latter, an indemnification to the party for money laid out and expended in his suit." Webster expresses the same thing as follows: "A charge fixed by law for the services of a public officer or for the use of a privilege under the control of the government; as sheriff's fees; customhouse fees; license fees." In no case except by a distortion of terms can the word be applied to the discharge of a pecuniary liability or the purchase price of goods or even to a board bill. Webster defines the word "service" as used in this connection as follows: "Act of serving; the occupation of a servant; the performance of labor for the benefit of another, or at another's command." This court in Callaway County v. Henderson, 119 Mo. 32, adopted a definition of the word fees as used in a similar case to the one now before us as follows: "Fees are a reward or wages given to one as a recompense for his labor and trouble for the execution of his office or profession, as those of an attorney or physician." The case then in judgment involved the question whether the compensation allowed by law and actually received by the county clerk for the labor and services of keeping the accounts of his office with the county treasurer were such as he should account for in determining the amount which he might retain as his compensation, and this court held that it must be so accounted for, adopting the rule that it included all compensation received for work done by him and his deputies in the performance of a duty imposed by law. We have been unable to find any case in which money paid by the State or county to an officer to reimburse him for expense incurred in performing a duty imposed by law, has been called a fee. Were such a rule to be applied in this case the evidence indicates that it might be easily possible that the expense imposed by law in the boarding of prisoners might well equal or exceed the entire amount which he would be allowed to retain as his compensation.

We do not think that there is any merit in this proposition.

IV. It is admitted by this record that in numerous instances during the term of Price, he neglected to verify his quarterly statements of fees received in his official capacity by his affidavit thereto, and that in each of the years of his term sheriff's fees were collected by him which were notReports. included in the report. Each quarterly report filed by him is, however, preserved, with an indorsement by the presiding judge of the county court that it was examined and found correct, and an order approving the same was spread upon the record. All omissions from these reports are carefully itemized and noticed in the agreed statement of facts for use as evidence where admissible. The facts were all properly before the trial court and, as we have already said, the attorneys are agreed upon the statement that if the compensation received by the defendant Price during his term of office for the board of prisoners is not to be considered in determining the amount he could lawfully retain in each year as compensation or salary for that year, its judgment should be affirmed.

The judgment of the circuit court is therefore affirmed.Ragland and Small, CC., concur.