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HARDIN v. JEFFERSON COUNTY

Supreme Court of Missouri, Division One.

Feb 14, 1941

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W. Oliver Rasch and Edgar Matthes for appellant. (1) This court will take judicial notice of the actual population of Jefferson County, Missouri, as based on the decennial census of 1930 which according to Official Manual of Missouri 1931-1932, page 180, was 27,563. State ex rel. Moseley v. Lee, 5 S.W.2d 91; State ex rel. v. Roach, 258 Mo. 541, 167 S.W. 1008; Heather v. Palmyra, 276 S.W. 875. (2) Under the provisions of Section 7892, Revised Statutes 1929, a board of road overseers could not have existed legally in Jefferson County, for 1931, because Jefferson County did not have a population of at least 50,000 for said year but had a population, according to Official Manual of Missouri, 1931-1932, page 180, of 27,563. (3) In determining the population of Jefferson County, in 1931, and for purpose of this case, the decennial census of 1930 governed, and the provisions of Section 11808, Revised Statutes 1929, did not apply. State ex rel. Moseley v. Lee, 5 S.W.2d 91. (a) The provisions of Section 11808 applied only to offices already created and existing and could not be used for purpose of creating an office, which is the effect of judgment rendered by trial court. (4) There were only three counties in Missouri which had a population of not less than 50,000 and not more than 200,000 without a city of first class in 1931, based on decennial census of 1930, Official Manual of Missouri 1931-1932, and therefore only said counties could legally have a board of road overseers under provisions of Section 7892, Revised Statutes 1929. State ex rel. Moseley v. Lee, 5 S.W.2d 91. (5) The statutes applicable to this case, clearly contemplate that the county court of a county that could legally have a board of road overseers, must organize as such board during term of office of the county judges; and shall as members of said board, see that roads are kept in good repair; and that the county judges shall set aside a sum to take care of salary of board members, which must be paid in monthly installments; and also contemplate that the county clerk shall keep accurate and complete record of proceedings of board. Secs. 7892, 7895, 9874, R.S. 1929. (6) When a cause is submitted and tried on an agreed statement of facts, the rule that Supreme Court cannot weigh evidence, if fact findings of court are supported by any evidence, is inapplicable. City of Stanberry v. Jordan, 145 Mo. 371; Jewel Tea Co. v. Carthage, 165 S.W. 743; Ransford v. Natl. Protective Ins. Assn., 16 S.W.2d 663; Bartlett v. Natl. Finance Corp., 73 S.W.2d 451. Sam McKay and Smith Roberts for respondent. (1) The County Court of Jefferson County, Missouri, in the year 1931, constituted a board of road Overseers. Sec. 7892, R.S. 1929; State ex rel. Mosley v. Lee, 5 S.W.2d 83. (2) A county judge who is a member of the board of road overseers, under Section 7892, Revised Statutes 1929, is a county officer. 20 C.J.S., p. 888; Hastings v. Jasper County, 282 S.W. 700; State ex rel. Buchanan County v. Imel, 146 S.W. 783; 15 C.J. 481. (3) The population of Jefferson County, Missouri, for the purpose of determining salaries of county officers was in excess of 50,000 and less than 200,000. Sec. 11808, R.S. 1929; State ex rel. Summers v. Hamilton, 278 S.W. 37; Hastings v. Jasper County, 282 S.W. 701; State v. Hoffman, 294 S.W. 431.

JUDGES

GANTT, P.J.

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1. COUNTY BOARD OF ROAD OVERSEERS: Population. For the judges of the county court to constitute a board of road overseers the population of the county shall not be less than fifty thousand nor more than two hundred thousand inhabitants. [Sec. 7892, R.S. 1929.]

Since the Legislature provided no special statutory method to determine the population of a county under that section, the question of population is fixed by the last decennial census under which the population of Jefferson County was 27,563.

Therefore the judges of the county court of that county did not constitute a board of road overseers.

2. COUNTY BOARD OF ROAD OVERSEERS: Population. In an action by a judge of the county court for his salary as a member of the board of road overseers of Jefferson County where the parties agreed that Jefferson County had a population of not less than fifty thousand nor more than two hundred thousand, by the vote cast at the last general election multiplied by five, as provided in Section 11808, Revised Statutes 1929, but that section provides a method for fixing the salaries of county officers which is not a question in this case, the question being whether the judges of the county court were members of the board of road overseers of the county under Section 7892, Revised Statutes 1929.

GANTT, P.J.

Action originating in the Jefferson County Court. Plaintiff, as a judge of that court, claimed that the county owed him $1200 salary as member of a Board of Road Overseers of the county for the year 1931. The judges of that court being interested, the cause was certified to the circuit court under Section 2079, Revised Statutes 1929. In that court plaintiff had judgment for $1200. Defendant county appealed.

The question for determination is whether or not the judges of that county in 1931 constituted a Board of Road Overseers under Section 7892, Revised Statutes 1929. To be so constituted, the county, among other requirements, must "have a population of not less than fifty thousand nor more than two hundred thousand inhabitants."

The Legislature provided no special statutory method to determine the population of a county under Section 7892. Absent such a method, the question of population is fixed by the last decennial census, which is the census of 1930. [Sec. 654, R.S. 1929; State ex inf. v. Evans, 166 Mo. 347, 355, 66 S.W. 355; State ex rel. Moseley et al. v. Lee et al., 319 Mo. 976, 5 S.W.2d 83, 91.] Under said census the population of Jefferson County was 27,563 in 1931. (Official Manual of Missouri for 1931-32, p. 180.) Thus it appears that the county judges of Jefferson County in 1931 did not constitute a Board of Road Overseers under Section 7892. If so, the county did not owe the plaintiff $1200 annual salary fixed by said section for services as a member of said board.

At the trial the parties agreed that Jefferson County in 1931 had a population of not less than fifty thousand nor more than two hundred thousand, if the vote cast at the last general election be multiplied by five, as provided in Section 11808, Revised Statutes 1929. That section provides a method for fixing the salaries of county officers. There is no question of fixing salaries in this case. The salary of a member of the Board of Road Overseers is fixed by Section 7892 at $1200 per annum. Section 11808 is without application and the judgment should be reversed. It is so ordered. All concur.