Cunio v. Franklin County , 315 Mo. 405 ( 1926 )

This proceeding, instituted originally in the Circuit Court of Franklin County, but by change of venue tried in the Circuit Court of St. Louis County, Division No. 2, was brought to recover salary alleged to be due plaintiff as Probation Officer of defendant, Franklin County, for a period of ten months, from September 1, 1921, to June 30, 1922, inclusive. The judgment of the trial court was for the plaintiff and the county appealed.

The action was instituted, and proceeded, on the theory that plaintiff was the duly appointed Probation Officer of said county, and as such, entitled to the salary thereof under and by virtue of the provisions of Sections 1144, 1145 and 1147, Revised Statutes 1919.

The answer, insofar as the appointment of plaintiff to said office and his right to the salary thereof are concerned, is a general denial. As a further defense to plaintiff's cause of action, defendant attacks the constitutionality of the law upon which the action is founded. However, in deciding the case, we deem it unnecessary to pass upon the constitutional questions. The decision turns on the fact of plaintiff's appointment to said office. If he was appointed thereto, he is entitled to the emoluments thereof.

It is a well-established principle that a salary pertaining to an office is an incident of the office itself, and not to its occupation and exercise, or to the individual discharging the duties of the office.

On the other hand, it is equally well settled that, if a person exercising the functions of an office is not entitled to the office, he cannot maintain an action for his services.

In Luth v. Kansas City, 203 Mo. App. l.c. 113, the court said: "In this State it is held that a salary is attached to and depends upon the legal title to the office and that the de jure claimant is entitled to the salary even though he has not occupied the office or performed the duties thereof. [State ex rel. v. Walbridge, 153 Mo. 194, 203; State ex rel. v. Gordon,245 Mo. 12, 28, 29.] And following the logical result of the rule stated in those cases it was held in Sheridan v. St. Louis,183 Mo. 25, 38, 40, that a de facto officer who has performed the functions of the office cannot recover the salary attached to such office."

In Schulte v. City of Jefferson, 273 S.W. l.c. 172, the court said: "Plaintiff was not a de jure officer until at least confirmed by the council. If anything at all, he was a de facto officer, and such officer is not entitled to the emoluments of the office. [20 Cyc. 1393; Sheridan v. City of St. Louis,183 Mo. 25, 39, 40, 81 S.W. 1082, 2 Ann. Cas. 480; Luth v. Kansas City,203 Mo. App. 110, 113, 218 S.W. 901; Throop on Public Officers, sec. 517.]"

The statute, Section 1144, supra, provides: "The circuit judge shall designate or appoint an officer of the county or some other person to serve as probation officer under the direction of the court in cases arising under this article."

To establish his appointment under the foregoing section of the statute, plaintiff introduced a certified copy of an order of the County Court of said Franklin County of the tenor following:

"Sept. 1, 1919. Now on this day comes R.C.L. Cunio, probation officer for Franklin County, Missouri, and recommends that the salary of said officer be fixed at $50 per month."

To the introduction of this order counsel for defendant objected on the ground that said county court was without jurisdiction to appoint a probation officer. The trial court overruled the objection, counsel for defendant duly excepted to this action of the court and assigned same as error.

The statutes say that "the circuit judge shall designate or appoint" a probation officer.

"The word `designate' when used by the appointing power in making an appointment to office, is equivalent to the word `appoint.'" [3 Words Phrases, page 2027, citing People v. Fitzsimmons, 68 N.Y. 514, 519.]

"The word `appointed' means named or designated for or assigned to an office." [1 Words Phrases, page 458, citing Brown v. O'Connell, 36 Conn. 432, 447, 4 Am. Rep. 89.]

Did the circuit judge, in accordance with the provisions of the law, appoint plaintiff to the office of Probation Officer? We think not.

The circuit courts of this State are courts of record, "and shall keep just and faithful records of their proceedings." [Sec. 2323, R.S. 1919.]

Said courts speak through their records, which are the evidence of their official acts.

In 7 Ruling Case Law, pages 1017 and 1018, section 45, on the subject-matter of "Courts," we find the following language: "Formerly the acts and judicial proceedings of certain courts were enrolled in parchment for a perpetual memorial, which rolls were called the record of the court, and were considered of such high and supereminent authority that their truth was not to be called in question. It was from this fact that these tribunals derived their name of courts of record. In modern courts the parchment roll is discarded, but their records still retain their character as a judicial memorial of `high and supereminent authority.' The court hears arguments upon its records; it decides upon its records; it acts by its records: its openings and sessions and adjournments can be proved only by its records; its judgments can only be evidenced by its records — in a word, without its records it has no vitality. The acts of a court of record are known by its records alone and cannot be established by parol testimony."

The circuit judge of Franklin County, speaking by and through the records of the circuit court only, could legally appoint plaintiff to the office of Probation Officer, and the said copy of said order of the county court was inadmissible and incompetent as proof of his appointment to said office. Reversible error was committed in the admission in evidence of said record.

The plaintiff not having been duly appointed, and, as he was not a de jure officer of defendant county, this suit for salary cannot be maintained.

The plaintiff having failed in his proof, defendant's demurrer to the evidence should have been sustained. It follows, therefore, that the judgment of the circuit court should be reversed. It is so ordered. All concur, except Graves, J., absent.