State ex rel. v. Imel.

The plaintiff in his petition alleges that defendant, while acting as probate judge of Buchanan county during the year 1907, collected fees aggregating the sum of $5557.68; that after deducting from the fees so collected a salary equal to the salary of the circuit judge of Buchanan county and all necessary clerk hire and also ten per cent of the remainder of said fees, there was due from said defendant to Buchanan county a balance of $926.18, for which judgment was prayed, with six per cent interest from January 1, 1908.

Plaintiff also alleges that defendant as such probate judge, during the year 1908, collected fees aggregating the sum of $6675.30; that after deducting therefrom a salary equal to the salary of the circuit judge of Buchanan county, and all necessary clerk hire, and also ten per cent of the remainder of said fees, there was due to Buchanan county a balance of $1500, for which plaintiff prayed judgment, with interest at six per cent from January 1, 1909.

The defendant admitted the collection of fees in the amount and manner charged in plaintiff's petition and deposited in court the sum of $2426.18, being the amount claimed by the plaintiff; and pleaded that said section 10695, supra, in so far as it requires defendant to pay a part of his fees into the county treasury, is unconstitutional and void, and prayed the court to determine the constitutionality of said section, and order the fees so deposited, returned to him.

The court below gave judgment for the defendant on the ground that so much of section 10695, Revised Statutes 1909, as requires probate judges to pay over to county treasurers a part of the fees received by them, is in conflict with section 12 of article 9 of our State Constitution, which reads as follows: "The General Assembly shall, by a law uniform in its operation, provide for and regulate the fees of all county officers, and for this purpose, may classify the counties by population."

State ex rel. v. Imel.

In the case of Henderson v. Koenig, 168 Mo. 356, this court held that the words "county officers," as used in the foregoing section of the Constitution, include probate judges; and in that case we also held that a statute which attempted to place probate judges in cities of 300,000 inhabitants upon a salary, and required their clerks to collect the fees earned by such judges and pay the same into the city treasury, was unconstitutional.

Almost the same issue arises again in this case; and it becomes necessary for us to reexamine the contruction placed upon said section 12 of article 9 of the Constitution in the Henderson case, supra, and determine whether or not in this case we will follow the rules of law announced in that case.

The rule announced in the Henderson case depends for its correctness almost entirely upon the proper construction to be placed upon the words "county officers," as used in the aforesaid section of our organic law.

The words "county officers" have two well defined meanings. In their most general sense, they apply to officers whose territorial jurisdiction is coextensive with the county for which they are elected or appointed. In a more precise and restricted sense, those words mean officers "by whom the county performs its usual political functions, its function of government." [Sheboygan County v. Parker, 70 U. S. 93, 1. c. 96.]

The Constitution of Tennessee contains a provision that "no county office created by the Legislature shall be filled otherwise than by the people or by the county court." In State ex rel. v. Glenn, 54 Tenn. (7 Heisk.) 489, it was held that the above quoted clause of the Constitution did not include county judges because they are judicial officers. That as county judges in Tennessee possess jurisdiction to try certain classes of civil actions between individuals, they

State ex rel. v. Imel.

did not come under the classification of county officers, and therefore the Governor was authorized to fill a vacancy in that office by appointment.

ap

"The established rules of construction plicable to statutes also apply to the construction of Constitutions." [8 Cyc. 729.] One of the established rules for construing statutes is to examine closely the context of the act where the words to be construed occur, and thereby ascertain what meaning they were intended to convey. [Riggs v. Railroad 120 Mo. App. 335, 1. c. 340; State v. Snyder, 182 Mo. 462, 1. c. 500.]

Applying this rule in the case at bar, we observe that said section 12 of article 9 of our Missouri Constitution, declaring that all laws regulating the fees of "county officers" shall be uniform in their operation, is not found in that article of the Constitution which creates and prescribes the duties and jurisdiction of probate judges; but is part of article 9, entitled "Counties, Cities and Towns."

In this last named article (9), nothing is found specifically referring to probate judges, their duties or compensation; but instead, that article treats of the organization and change of boundaries of counties, cities and townships (sections 1 to 9), the offices of sheriff and coroner (sections 10 and 11), a limitation on the fees of executive and ministerial officers of counties and municipalities (section 13), the creation of new county, township and municipal officers by the General Assembly (section 14), and other provisions for the government and consolidation and enlargement of cities. In this article we would not expect to find any provision respecting or affecting the judiciary of the State.

Judges of the probate court are not charged with the performance of any governmental functions of the counties for which they are elected; in fact, some of them do not have jurisdiction coextensive with the counties where their offices are held. Their functions

State ex rel. v. Imel.

are to administer the laws pertaining to estates of deceased persons, minors and persons of unsound mind.

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From the context of said section 12 of article 9, supra, it will be seen that there is very little if any better reason for classifying probate judges as county officers" than for so designating judges of the circuit court when their circuits are composed of a single county.

After a careful review of said section 12 of article 9 of the Constitution of Missouri, we are fully convinced that it was not intended to embrace or include judges of probate courts; and that in holding that it does embrace those officers, the case of Henderson v. Koenig, supra, is erroneous, and the same is therefore overruled.

The second contention of defendant is that the title of the bill under which section 10695 was enacted did not conform to section 28 of article 4 of our State Constitution, requiring the subject of each bill to be clearly expressed in its title.

The title to said bill is as follows: "An Act to repeal section 3240, chapter 27, article 1, of the Revised Statutes of 1899, relating to fees; and to enact a new section in lieu thereof, to be known as section 3240." Defendant cites and relies upon: State v. Great Western Tea and Coffee Co., 171 Mo. 634; Williams v. Railroad, 233 Mo. 666; State v. Parker D. Co., 237 Mo. 103; Mobile v. Railroad, 124 Ala. 132; Pratt v. Browne, 135 Cal. 649; People v. Curry, 130 Cal. 82; Crowther v. Fid. Ins., etc. Co., 85 Fed. 41; Equitable G. & T. Co. v. Donahoe, 3 Penn. (Del.) 191, 49 Atl. 372; Henderson B. Co. v. Alves, 122 Ky. 46; State v. Am. S. R. Co., 106 La. 553; Steifel v. Maryland Inst., 61 Md. 144; Citizens Sav. Bank v. Auditor, 123 Mich. 511; Union Pacific Ry. Co. v. Sprague, 69 Neb. 48; State v. Sullivan, 73 Minn. 378; C. B. &. Q. Ry. Co. v.

State ex rel. v. Imel.

Smyth, 103 Fed. 376; State v. Railroad, 115 Ala. 250; Hann v. Bedell, 67 N. J. L. 148.

The cases cited do not sustain defendant's contention.

It is scarcely necessary for us to cite authorities on the point that the title to a bill which designates and repeals section 3240, Revised Statutes 1899, was ample notice to the members of the General Assembly that the new section enacted in lieu of section 3240, supra, would deal with the same subject contained in the repealed section, to-wit, fees and compensation of probate judges; and no reasonable legislator could have been misled by said title into believing that the new section would contain only the same provisions as the repealed section.

When a section is repealed and re-enacted, there is invariably some change made in the old law. The title. to the bill under consideration, by referring to the old section fixing fees of probate judges and containing also a further recital that the new law related to fees, was broad enough to give notice of any change to section 3240 (now Sec. 10695, R. S. 1909) which the Legislature saw fit to make, so long as said amendment related in any manner to the fixing, collection or distribution of fees of probate judges. [State ex rel. v. County Court, 128 Mo. 427; State ex rel. v. Heege, 135 Mo. 112.]

Salaries are a form of compensation prescribed for paying public officers and others for their services. It takes the place of and produces very much the same result as paying fees to public officers for their services. We therefore hold that the subject of salaries is germane to the subject of fees, and it was entirely competent for the General Assembly under the title to the bill under consideration to provide for paying probate judges a salary out of their fees and requiring part of their fees to be paid into the public