Opinion
June 4, 1929.
1. SALARY: County Superintendent: Population: Section 11352. Under the statute (Sec. 11354, R.S. 1919) the population of a county for the purpose of determining the salary of the County Superintendent of Schools was to be ascertained by multiplying by five the vote cast at the last Presidential election, and where by that method the population of the county was 18,180 at the time the Superintendent was elected in April, 1919, she was entitled, under Section 11352, Revised Statutes 1919, to a salary of $1500, if said Section 11352 was then in force; but that section was approved March 28, 1919, and did not go into effect until ninety days after the adjournment of the General Assembly, on May 8, 1919, unless the emergency clause attached to the act put it into immediate force, and if not in force at the time she was elected and qualified her salary was not fixed by it, but by the previous law.
2. ____: ____: Emergency Clause. An emergency clause attached to a law fixing the salary of county superintendents of schools will not put the law into immediate effect. Such a law is not included in the exception to the operation of the referendum clause of Section 57 of Article IV of the Constitution; and though an emergency clause is attached to such a law, it will not go into effect until ninety days after the adjournment of the General Assembly at which it is enacted. Section 11352, Revised Statutes 1919, fixing the salary of county superintendents of schools, was enacted at the session of the General Assembly which adjourned on May 8, 1919, and though it was approved on March 28th and to it was attached an emergency clause attempting to put it into immediate effect, it was not in force at the time of the school elections held in April, 1919, and the salary of a county superintendent elected at such school election was not fixed by it for the succeeding term of four years.
3. CONSTITUTIONAL QUESTION: Raised in County Court. There is nothing in the Constitution on statutes which prohibits a county court from considering and determining a constitutional question; and where a county superintendent of schools sues the county for back salary, in the county court, the constitutional validity of the statute on which she relies may be raised there, and if so raised it will be held on appeal to the circuit court that it was timely raised.
4. ____: Imbedded in Case. A constitutional question is raised from the inception of the case if the right of plaintiff to recover necessarily depends on the validity of a statute and the only ground on which her claim could have been disallowed is that under the Constitution the statute on which she relies was not in force.
5. COUNTY OFFICER: Superintendent of Schools: Emergency Clause. County superintendents of schools are county officers and come within the purview of Article XIV of the Constitution, though not specifically mentioned therein, and the validity of an emergency clause to a statute regulating their salaries is material.
Corpus Juris-Cyc. References: Courts, 15 C.J., Section 418, p. 994, n. 2; Section 520, p. 1094, n. 74. Evidence, 22 C.J., Section 69, p. 130, n. 30; Section 70, p. 138, n. 23. Schools and School Districts, 35 Cyc., p. 867, n. 31. Statutes, 36 Cyc, p. 1194, n. 23.
Appeal from Schuyler Circuit Court. — Hon. N.M. Pettingill, Judge.
AFFIRMED.
Higbee Mills for appellant.
(1) This cause was tried originally in the county court. From an adverse judgment rendered in that court appellant duly perfected an appeal to the circuit court, where the cause was tried de novo. By its answer, filed for the first time in the circuit court, respondent attempts to challenge the constitutionality of the emergency clause to the Act of 1919, Laws 1919, p. 694. A constitutional question must be injected into a case at the first possible moment. By its failure to present this question at the trial in the county court, respondent waived its right to question the constitutionality of the emergency clause referred to, and its attempt to raise the questions by answer in the circuit court is untimely. State ex rel. v. McQuillin, 246 Mo. 593; Estate of Strom, 213 Mo. 7; Cartright v. McDonald County, 5 S.W.2d 56; Meredith v. Claycomb, 212 S.W. 861. (2) The county court is a court of record. From its judgment an appeal will lie to the circuit court. An account rejected by the county court is appealable the same as any other cause. In the circuit court the cause is tried de novo. Secs. 2584, 2589, 2590, R.S. 1919. A decision of the county court may be a judicial act. If so, the proceedings of the trial and the decision is a judicial determination of the matter presented. State on Inf. Gentry v. Tolliver, 287 S.W. 312; State ex rel. v. Daues, 287 S.W. 430; County of Boone v. Corlew, 3 Mo. 12; State ex rel. Watkins v. County Court, 68 Mo. 29; States ex rel. Smith v. County Court, 83 Mo. 539; State ex rel. v. Heege, 40 Mo. App. 652. (3) A county superintendent of schools is not a county officer within purview of Art. 14, of the Constitution. Hence the question of the constitutionality of the emergency clause in connection with the Act of 1919, is immaterial to the issue at bar. State ex rel. v. Imel, 242 Mo. 293; Sheybogan County v. Parker, 3 Wall. 93, 18 L.Ed. 33; 11 Cyc. 414. (4) The Legislature in 1919, realizing the inadequacy of the salary of this office, amended the scale of salaries and in order to make the same effective before the spring election, the time the county superintendents of schools should be elected, declared that an emergency existed justifying the immediate taking effect of the new law. Throughout the entire State this emergency existed and it is now recognized. An emergency existed and it is not within the province of Schuyler County to question the legislative mandate.
H.M. Saxbury, Earl E. Fogle and Rolston Rolston for respondent.
(1) The constitutional question was before the county court at the time it denied appellant's claim. It was not necessary for the county court to write a note to itself advising it that the so-called emergency clause was unconstitutional. The county court in passing on this claim had to consider the question by which law appellant's salary was governed. It could not have reached the opinion it did by finding that Sec. 11392, R.S. 1919, was not the law fixing appellant's salary, without considering Sec. 57, Art. IV, of the Constitution. Where a litigated point cannot be decided without construing a particular clause in the Constitution, a constitutional question is involved, whether formally raised or not, and must be considered. State ex rel. v. Smith, 177 Mo. 69; State ex rel. Smith v. Smith, 152 Mo. 444; Railroad v. Flannigan, 218 Mo. 566. (2) There was no actual necessity for the constitutional question being formally presented to the circuit court on appeal. The Supreme Court has heretofore held that similar alleged emergency clauses are unconstitutional. State ex rel. Westhues v. Sullivan, 283 Mo. 575. And where the question has long before been settled in similar cases, it is a closed question. State v. Evertz, 190 S.W. 287. And this court has treated it as a closed question, and considered it unnecessary to raise the question in the county court, and in cases involving almost these identical questions. State ex rel. Harvey v. Linville, 300 S.W. 1066; Sims v. Clinton County, 8 S.W.2d 69. (3) A county superintendent of schools is a county officer. State ex rel. v. Imel, 242 Mo. 293, does hold, in effect, that a probate judge is a state officer, but the inhibition of Art. 14, Sec. 8, of the Constitution, applies to all state, county or municipal officers, who are elected or appointed for a definite term and whose compensation or salary has been fixed by statute. State ex rel. v. Smith, 87 Mo. 158; Givens v. Daviess County, 107 Mo. 603; Callaway County v. Henderson, 119 Mo. 32; State ex rel. Buchanan County v. Imel, 280 Mo. 554; State ex rel. Truman v. Jost, 269 Mo. 248.
The plaintiff, as Superintendent of Schools of Schuyler County, July 6, 1925, presented to the county court of that county a claim for salary. At the school election in April, 1919, she was elected for a term of four years, and during that term received $87.50 per month. She claims that she was entitled to $125 per month, under Section 11352, Revised Statutes 1919. This suit is for the balance claimed to be due her for each month, the total, with interest, amounting to $1,313.41. The claim was rejected by the county court and she appealed to the circuit court where, October 10, 1925, judgment was rendered in favor of the defendant. From that judgment she appealed.
A stipulation signed by the parties was filed in the circuit court showing that each month during her term she had presented an account for her salary at $87.50 per month, and other facts of which we take judicial notice; that Section 11352, Revised Statutes 1919, was a part of the act approved March 28, 1919, by the General Assembly which adjourned May 8, 1919; that the vote of Schuyler County for 1920 was 3636; that the decennial census of the United States for 1910 shows a population for Schuyler County of 9062, and the decennial census of the United States for 1920 shows a population of 8383.
I. Under Section 11354, Revised Statutes 1919, the population of the county for the purpose of determining the salary of County Superintendent of Schools should be ascertained Salary: by multiplying by five the vote cast at the last Section 11352: presidential election. The vote of 1920, 3636, Emergency multiplied by five would give a population of Clause. 18180, and under Section 11352, appellant claims she was entitled to receive $1500 per annum.
She was elected at the school election in April, 1919. Section 11352 was enacted by the General Assembly, and approved March 28, 1919, and in the usual course would not go into effect until ninety days after adjournment, which occurred May 8, 1919, therefore it was not in effect when appellant took office unless the emergency clause attached to the act was effective. [Laws 1919, p. 694-5.]
This matter was considered at length by this court in the case of State ex rel. Harvey v. Linville, 300 S.W. 1066, l.c. 1068, where it was held that the emergency clause of that act, Section 4, was contrary to Section 36, Article IV, of the Constitution, and was not included in the exception to the operation of the referendum clause in Section 57, Article IV, of the Constitution. The Act of 1919 was subject to the referendum and therefore did not go into effect until ninety days after the adjournment of the General Assembly of that year. The provision of Section 11352, fixing the salary according to population ascertained by the method provided in Section 11354 could not apply to the appellant.
II. When the case reached the circuit court on appeal the defendant county filed an answer and alleged among other things that the emergency clause in the Act of 1919 was Constitutional contrary to the provisions of the Constitution, Question: Section 36, Article IV. Appellant therefore Determined by contends that the constitutional question was not County Court. therefore presented at the earliest possible moment in that it was not presented when the matter was before the county court. Appellant cites in support of that proposition State ex rel. v. McQuillin, J., 246 Mo. 586, and In re Estate of Strom, 213 Mo. 1, l.c. 7, and quotes extensively from the latter case. That case went on appeal from a judgment of the probate court to the circuit court, and in the circuit court two constitutional questions were raised which were not presented in the probate court. This court said (l.c. 7): "It is obvious that the two constitutional questions imported into the case presented entirely new issues in the circuit court, issues which the probate court was not allowed to pass on, and this change of the cause of action, so to speak, was unauthorized."
The court also made this general observation (l.c. 7): "It is elemental in this State that on appeal from the probate court or a justice of the peace, the circuit court must try the case anew upon the same cause of action that was tried in the probate court or in the justice's court."
That, we take it, applies to an appeal from a county court. Now, in accordance with that principle the circuit court could not in an appeal from the justice's court try an issue involving the title to real estate because a justice of the peace had no jurisdiction to try such issue. But there is nothing in the statute, nor in the Constitution, which prohibits a justice of the peace or a probate court or a county court from considering and determining a constitutional question. When appeal is taken from a judgment of the county court, under Section 2584, it shall be prosecuted to the appellate court in the same manner as now provided by law for appeals from justices of the peace to the circuit court, "and such appellate court shall be possessed of the cause and shall proceed to hear and determine the same anew." There is nothing to prohibit the county court from determining a constitutional question, if such question arises in a matter over which it otherwise has jurisdiction.
III. But it is insisted that the constitutional question was not raised when the account was presented and passed upon in the county court. No particular pleading is required in the county court. From the stipulation all that appears is the Constitutional statement filed by the plaintiff in the county Question: court making demand as above mentioned for the Raised in balance due her. The record recites that the case County Court: was tried in the county court and the claim No Record. disallowed. We have no means of knowing whether or not the constitutional question was presented in that court. It could have appeared in the argument or in the defense advanced, but those are not preserved in the record. The question was necessarily in the case on the very face of the plaintiff's claim; she depended upon the applicability of Section 11352. That section must have been in force and effect when she was elected and qualified in order that she might have a legal basis for her claim. In denying that claim and her right to extra compensation the county court necessarily challenged the applicability of that section, and therefore the constitutionality of the emergency clause attached to it when it was enacted.
The county court is a court of record. We must presume that the judges of that court performed their duty in accordance with law. They could not have rejected the claim without holding that emergency clause unconstitutional. Therefore we must presume that they did hold it unconstitutional in the absence of any record showing to the contrary. A judgment is presumed to be regular and in support of its validity the court which rendered it must be presumed to have found every fact and correctly reached every conclusion of law necessary to its validity. Therefore the constitutional question was then in the case.
IV. It is further claimed by the appellant that the Superintendent of Schools is not a county officer within the purview of Article XIV of the Constitution, and therefore the constitutionality of the emergency clause is County immaterial. We are unable to understand how that could Officer. affect the situation, since the sections upon which appellant depends, 11352 and 11354, apply to superintendents of schools. The Superintendent of Schools is a county officer, though not specially mentioned in the Constitution. Article IX, Section 14, of the Constitution provides that the "General Assembly shall provide for the election or appointment of such other county, township and municipal officers as public convenience may require."
By Section 11343, Revised Statutes 1919, the Legislature created the office of Superintendent of Schools in each and every county in the State and in succeeding sections prescribed the duties of such office. Therefore, it is a county office, created by the Legislature under the authority of the Constitution.
The judgment is affirmed. All concur.