State Ex Rel. McCaffrey v. Bailey , 308 Mo. 444 ( 1925 )

At the general election held November 2, 1920, relator was elected Prosecuting Attorney of Nodaway County, and thereafter served as such for the term of two years, beginning January 1, 1921. At the time of his induction into office the salaries of prosecuting attorneys were provided for and regulated by Section 734, Revised Statutes 1919. Subsequently and at the session of 1921 the Legislature passed an act which purported to expressly repeal Section 734 and enact a new section in lieu thereof. [Laws 1921, p. 574.] Under Section 734 the salary of the Prosecuting Attorney of Nodaway County was $5,000 a year; the Act of 1921, if valid, operated to reduce it to $2,000 on and after June 21, 1921. Relator contends, however, that the act was void and consequently that he was entitled during the whole of his term to the salary provided for by Section 734. The constitutionality of the repealing act is, therefore, the sole subject of this controversy.

As a matter of fact the constitutionality of the Act of 1921 has already been passed upon by this court. While it was not expressly declared to be void in State ex rel. v. Bockelman, 240 S.W. 209, such holding was a necessary implication of the ruling therein made. We certainly would not have permitted counsel to stipulate that the act was without influence in the decision of that case, if we had not agreed with them that it was a nullity. In deference to the Legislature, however, we should have set forth explicitly that we found the statute unconstitutional, together with the reasons which impelled us to that conclusion. That duty we will endeavor to discharge now.

The new section intended by the Act of 1921 to replace Section 734, Revised Statutes 1919, is as follows:

"The prosecuting attorney shall receive for his services per annum, to be paid out of the county treasury, in all counties now having or which may hereafter contain a population of less than ten thousand inhabitants the sum of $1,000; in all counties now having or which may hereafter have a population of ten thousand and less than twelve thousand, the sum of $1,000; in all counties now having or which may hereafter have a population of twelve thousand and less than fifteen thousand, the sum of $1,200; in all counties now having or which may hereafter have a population of fifteen thousand and less than twenty thousand, the sum of $1,500; in all counties now having or which may hereafter have a population of twenty thousand and less than twenty-five thousand, the sum of $1,800; in all counties now having or which may hereafter have a population of twenty-five thousand and less than thirty thousand, the sum of $2,000.00; in all counties now having or which may hereafter have a population of thirty thousand and less than fifty thousand, the sum of $2,500; in all counties now having or which may hereafter have a population of fifty thousand and less than seventy thousand, the sum of $4,000; in all counties now having or which may hereafter have a population of seventy thousand and less than one hundred and fifty thousand, and not containing a city of more than seventy-five thousand inhabitants, or adjoining a city having a population of more than four hundred thousand inhabitants, the sum of $4,500; in all counties now having or which may hereafter have a population of seventy thousand and less than one hundred and fifty thousand and containing a city of more than seventy-five thousand the sum of $5,000; in all counties now having or which may hereafter have a population of one hundred thousand and less than two hundred thousand and adjoining a city having a population of more than four hundred thousand the sum of $6,000; to be paid monthly upon the warrant of the county court issued in favor of the prosecuting attorney to the county treasurer for that purpose. The number of inhabitants of any county shall, for the purpose of this section, be ascertained by multiplying the highest number of votes cast in said county for any one office at the last preceding presidential election by three, unless the assumed population thus determined shall be less than the actual population as shown by the last-preceding decennial census, in which event the population as shown by the last preceding decennial census of such county shall be used as a basis to determine the salary of the prosecuting attorney of said county; provided, the person now holding the office of prosecuting attorney in any county of this State shall to the end of the term for which he was chosen receive the same salary as was authorized by law to be paid to the person holding such office at the time of the general election on November 2, 1920; except, however, no prosecuting attorney shall receive a less salary than $1,000 per annum; provided, further, that nothing in this act shall be construed so as to prevent the county court of any county which now contains or which may hereafter contain a population of ten thousand or more from paying its prosecuting attorney hereafter elected the same salary as was authorized by law to be paid the prosecuting attorney of such county at the time of the general election on November 2, 1920."

The act is challenged from a number of angles on the ground that it does not operate uniformly throughout the State. Its most obvious defect in this respect is introduced by the second proviso, namely:

"Provided further that nothing in this act shall be construed so as to prevent the county court of any county which now contains or which may hereafter contain a population of ten thousand or more from paying its prosecuting attorney hereafter elected the same salary as was authorized by law to be paid the prosecuting attorney of such county at the time of the general election on November 2, 1920."

Under this provision the salary of the prosecuting attorney in different counties, falling within the same class according to population, will, or may, vary according to the attitudes of their respective county courts. For example, under the general schedule set forth in the preceding part of the act the annual salary of the prosecuting attorney "in all counties now having or which may hereafter have a population of 50,000 and less than 70,000" is the sum of $4,000; but the county court of any such county may, if it elects, pay $5,000, the salary fixed by the Act of 1913 (Laws 1913, p. 108), still in force on November 2, 1920. Again, it is a fact of which we take judicial notice that there is, and has been for several decades, a general drift of population from rural Missouri to the cities of the State. Each recurring Federal census shows a continued falling off of the population in a large number of the counties. During this process many counties will, as they have in the past, drop from one class to a lower one under the classification made for the purpose of fixing the salaries of county officers, thereby automatically diminishing the salaries of such officers. But in such cases the county courts may, if they see fit, continue to pay the prosecuting attorney the same salary as to amount that was payable to that officer on November 2, 1920. These illustrations are sufficient to demonstrate that under the operation of the act in question the salaries paid prosecuting attorneys in many of the counties of the State will vary as to amount, even though such counties fall within the same class as to population, this because in some of them the amount of the salary is dependent upon the uncontrolled discretion of the county court. The statute therefore fails to meet the constitutional requirement that it be "uniform in its operation," and is void. [Sec. 12, Art. IX, Const.] We deem it unnecessary to consider the many other alleged constitutional defects which are strenuously urged.

The judgment of the circuit court being in conformity with the views herein expressed is affirmed. All concur.