Coleman v. Jackson County

Full title: ROBERT J. COLEMAN, Trustee, v. JACKSON COUNTY, Appellant

Court: Supreme Court of Missouri, Division One

Date published: Apr 16, 1942

349 Mo. 255 (Mo. 1942)

160 S.W.2d 691

Opinion

February 26, 1942. Rehearing Denied, April 16, 1942.

1. APPEAL AND ERROR: Motion to Dismiss Overruled. A dismissal of this appeal because of violation of Rule 15 would not be warranted.

2. TRIAL: Directed Verdict in Favor of Plaintiff. The documentary evidence consisting of court records showed that the plaintiff's assignors were duly appointed deputy clerks and were paid less than the claimed statutory compensation. If the documentary evidence showed as a matter of law that they were entitled to additional pay, peremptory instructions in favor of plaintiff were proper on these counts.

3. COURTS: Clerks of Courts: Determination by County Court of Number of Deputy Clerks. The approval of payrolls by the county court amounted to a finding that the number of deputy clerks included on such payrolls was a necessary one.

4. COURTS: Clerks of Courts: Approval of Court. The Circuit Court of Jackson County entered orders en banc approving the budget listing the number of deputy clerks appointed, and approving the appointment of each deputy clerk. These orders were judicial acts which included the finding that the number of deputies was not excessive.

5. COURTS: Approval by Majority of Judges. It will be presumed that the required majority of the judges concurred in the orders of the court en banc.

6. COURTS: Clerks of Courts: Appointment of Division Deputy Clerks. The statutes dealing with the appointment of deputy clerks for the Circuit Court of Jackson County do not limit the number of divisions to the number of judges.

7. COUNTIES: Clerks of Courts: County Budget Law Applies to Salaries of Deputy Clerks. Section 13466, R.S. 1939, fixing the salaries of deputy clerks in Jackson County, has been modified by the county budget law of 1933. Said law applies to employees of elective officers.

8. COUNTIES: Clerks of Courts: County Budget Law: When Reductions Proper. The budget officer, under the provisions of the county budget law, did not have the right to make reductions of the statutory amount estimated by the circuit clerk. And the written estimates filed by the clerk cannot be modified by oral statements of the clerk.

But where the clerk's estimates were below the statutory scale, they became the legal scale.

9. COURTS: Clerks of Courts: No Appointment by Tacit Approval. A written order of the court was necessary for the approval of the appointment of deputy clerks. The mere tacit understanding or failure of the judges to object would not constitute a valid approval.

10. TRIAL: Clerks of Courts: Instruction as to Application of County Budget Law. The requested instruction as to the application of the county budget law was not in proper form.

11. TRIAL: Refusal of Peremptory Instruction: No Ruling in View of New Trial. Though the evidence may not have justified submission to the jury of counts where valid approval of appointment was not proven, no ruling will be made on appellant's requests for peremptory instructions, as the case must be retried, and the evidence on a new trial may be different.

Appeal from Jackson Circuit Court. — Hon. Marion D. Waltner, Judge.

REVERSED AND REMANDED.

Hilary A. Bush, County Counselor, Virgil Yates, Assistant County Counselor, and John B. Pew for appellant.

(1) The court erred in giving respondent's instructions 1 to 30, inclusive, over the objections and exceptions of appellant. Many of these instructions are absolute mandates to find for the plaintiff in a fixed amount. The others require only the finding of appointment as elsewhere defined and except for that finding are mandatory. Under the law in Missouri a trial court cannot direct a verdict for plaintiff or the party upon whom the burden of proof rests unless the testimony is admitted to be true or the proof offered is of such documentary character as to estop the other party from denying it. Dunham-Buckley Co. v. Halberg, 69 Mo. App. 509; Jefferson v. Ins. Co., 69 Mo. App. 126; Wolff v. Campbell, 110 Mo. 114, 19 S.W. 622; Equitable Life Assur. Soc. v. Natl. Bank of Commerce, 197 S.W. 115; Doris v. Carney, 25 S.W.2d 495; F.B. Chamberlain Co. v. Kane, 264 S.W. 24; Goudie v. Natl. Surety Co., 288 S.W. 369; Fernandez v. Mutual Life Ins. Co. of Baltimore, 230 Mo. App. 857, 78 S.W.2d 526; Finch v. Hebbe, 231 Mo. App. 591, 107 S.W.2d 962; Williams v. Amer. Life Accident Ins. Co., 112 S.W.2d 909; Thrower v. Life Casualty Co., 141 S.W.2d 192; State ex rel. Strohfield v. Cox, 325 Mo. 901, 30 S.W.2d 462; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. (2) The court erred in refusing to give appellant's instructions, lettered and numbered B-1 to B-30, inclusive. The claimants herein were not de jure officers entitling them to sue for statutory salaries. De facto officers cannot sue for salaries. Abington v. Harwell, 201 Mo. App. 335, 211 S.W. 885; Schulte v. City of Jefferson, 273 S.W. 170; Cunio v. Franklin County, 285 S.W. 1007; Sheridan v. St. Louis, 183 Mo. 25, 81 S.W. 1082; Mullery v. McCann, 95 Mo. 579, 8 S.W. 774; 46 C.J. 1053; Sec. 11834, R.S. 1929; Sec. 13466, R.S. 1939; Sec. 11839, R.S. 1929; Sec. 13471, R.S. 1939; Sec. 11844, R.S. 1929; Sec. 13476, R.S. 1939; Sec. 11812, R.S. 1929; Sec. 13434, R.S. 1939; Sec. 1826, R.S. 1929; Sec. 1990, R.S. 1939. (3) The court erred in giving instruction 31 on behalf of respondent, over the objection and exception of appellant. County Budget Law, Chap. 73, Art. 2; Secs. 10910-10935, R.S. 1939; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543; Mo.-Kan. Chemical Co. v. New Madrid County, 345 Mo. 1167, 139 S.W.2d 457. (4) The court erred in giving instruction 32 on behalf of respondent, over the objection and exception of appellant. Authorities under Point (2). (5) The court erred in refusing to give instructions lettered and numbered V-1 to V-29, inclusive, requested by appellant, to which ruling in refusing to give said instructions appellant at the time duly excepted and still excepts. Authorities under Point (1). (6) The court erred in refusing to give instruction D requested by appellant, to which action of the court in refusing to give said instruction appellant at the time duly excepted and still excepts. Cases cited under Point (3). Sec. 11844, R.S. 1929; Sec. 13476, R.S. 1939. (7) The court erred in refusing to give instructions lettered and numbered W, W-1, W-2 to W-9, inclusive, to which action of the court in refusing to give said instructions appellant at the time duly excepted and still excepts. R.S. 1939, sec. 13466; id., R.S. 1929, sec. 11834; Emery v. Railway Co., 77 Mo. 339; Kegan v. Park Bank, 8 S.W.2d 858; Gordon v. Bruner, 49 Mo. 570; 57 C.J., p. 358. (8) The court erred in refusing to give instruction lettered T requested by the appellant, to which action of the court in refusing to give said instruction lettered "T" appellant at the time duly excepted and still excepts. R.S. 1939, sec. 13466, id., R.S. 1929, sec. 11834; R.S. 1939, sec. 13471, id., R.S. 1929, sec. 11839; Cases cited under Point (2).

William G. Boatright and Harry L. Jacobs for respondent.

(1) The court did not err in giving peremptory instructions as to thirteen counts covering periods of time admittedly not barred by limitations. Where the case is established by documentary evidence or it is made apparent to the trial judge during the progress of the trial that there is no dispute as to certain questions or one party is estopped by its own records to deny the facts relied on by the other, then even though the pleadings may have put the question in issue there is no issue to submit to the jury and the court should declare, as a matter of law, whether or not recovery should be had. Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S.W. 583; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; Keeney v. Freeman, 151 S.W.2d 532; Woods v. Moffitt, 225 Mo. App. 801, 38 S.W.2d 525; Jackson v. Security Benefit Assn., 139 S.W.2d 1015. (2) The court did not err in refusing to sustain the demurrers to each count offered at the close of the entire case by appellant. (a) If approval of the appointments by the county court were necessary, it was conclusively established by appellant's own payroll records for each month of the full period and which payrolls for each month bore upon their face the approval of the county court. Larson v. St. Paul, 83 Minn. 473, 86 N.W. 459. (b) If approval by a majority of the circuit judges of the appointments were required, the records of the Court en Banc showed such approval as to each deputy for the full period of time for which recovery was allowed, except as to seven deputies for a portion of the period covered by the verdict and judgment. As to five of these seven deputies, circuit court records showed approval by the Independence Division. As to two of them, there was no record entry of approval by the Court en Banc, or by any judge or division as to a portion of their time of service. As to each of the seven, however, there was, in addition to the presumption that the court knows who the officials of its court are, affirmative evidence to that effect and no evidence of any disapproval by a single judge or a majority of the judges. (c) There were never at any time more Class B deputies than the statute authorized and allowed. What is now Section 13466 at one time contained a provision limiting the number of Class B deputies for divisions but such limitation was omitted in the repeal of 1919. It has been omitted from three successive repeals and reenactments of the section. There is, therefore, no limitation as to the number of Class B division deputies. It will be presumed that any other Class B deputies shown by the record but not involved in this suit are division deputies. (d) Under appellant's own theory of counting, at least sixteen Class B deputies are authorized — not eleven or twelve. (e) Even if the record showed more Class B deputies than authorized, it would not defeat recovery because less than the number conceded by appellant to be legally permissible are involved in this suit. Respondent was not required to prove that other Class B deputies indicated to have been appointed were not duly and legally appointed, approved and qualified. Respondent was only required to prove and did prove that the Class B deputies in this suit were duly and legally appointed, approved and qualified. Collateral attack of such character and for such reasons is not permitted. State on inf. Gentry v. Toliver, 287 S.W. 312; State ex rel. v. Brown, 330 Mo. 220, 48 S.W.2d 857. (f) Any irregularity on the face of the commissions or records was supplemented by oral testimony, together with the payroll records. (g) There is no requirement that the appointments be in writing. Powell v. Buchanan County, 155 S.W.2d 172; 11 C.J. 911, sec. 139; Secs. 13466, 13299, R.S. 1939. (3) There was no error in instructions 31 and 32 requested by respondent and given by the court. (a) Instruction 31 correctly informed the jury as to the applicable salary schedule. It did not need to refer to it as a "statutory salary schedule." (b) Instruction 32 correctly informed the jury of what facts would need to be found in order to find a deputy was a duly appointed, qualified and approved deputy. This instruction was designed to take care of any situations where the documentary evidence in any particular might be incomplete or irregular and which was supplemented by oral testimony. (c) Even if the statute requires approval by the majority of the judges, it is not required that such approval be evidenced by a formal order entered on the records of the court en Banc. State v. Newsum, 129 Mo. 154, 31 S.W. 605; State v. Gillham, 174 Mo. 671, 74 S.W. 859; State v. Huett, 340 Mo. 935, 104 S.W.2d 252; State v. Horn, 336 Mo. 524, 79 S.W.2d 1044; Hoke v. Field, 10 Bush, 144. (d) But Section 13471 must be construed and interpreted in the light of Section 13299 as well as Section 13466. Properly construed, it only gives to the majority of the judges a supervisory control over the total number of deputies. It is in the nature of a veto power. Such approval of the number may be shown by affirmative act of the court en banc or of a majority of the judges or by total absence of disapproval. (e) The approval of the personnel of appointments is covered by Section 13299 and not by Section 13471. It is there expressly provided that such approval may be by a judge or a majority of the judges in vacation or by the court. Approval by any one of those methods is all that is required. (4) The court did not err in refusing to submit to the jury the ultimate question of whether or not appellant was indebted. (a) Appellant's requested and refused instructions V and V-1 to V-29, inclusive, were correctly refused because they undertook to submit an ultimate question of law to the jury. (5) The court did not err in refusing appellant's requested instruction D. (a) The salaries of deputy circuit clerks are fixed by statute. The county court, under the County Budget Law, has no power to disregard or revise, amend or change the salaries fixed by statute. Sec. 11834, R.S. 1929, as amended by the Laws of Missouri, 1933, page 374, at the same session of the Legislature that passed the County Budget Law. The section as amended now appears as Sec. 13466, R.S. 1939. (b) The Budget Law itself expressly negatives the power of the county court to change the estimates of the circuit court or the circuit clerk without their consent. No consent is claimed. Sec. 10931, R.S. 1939. (c) It is settled that under the County Budget Law, where salaries of officials are fixed by statute, the county court has no power to revise salaries but is required in making its appropriations and in setting up its budget to first provide for the fixed expenses, including salaries fixed by statute. Reed v. Jackson County, 142 S.W.2d 862; Gill v. Buchanan County, 142 S.W.2d 665. (d) Any attempt to withold salaries fixed by law or to cause officials to agree to take less or to waive a portion of their salary is contrary to public policy. State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532; Coleman v. Kansas City, 348 Mo. 916. (6) The court did not err in refusing to submit the alleged amounts claimed by appellant as recoupments. (a) Section 11834, which fixes the salaries of deputy circuit clerks, specifically authorizes payment of overtime to such deputies. (b) All amounts claimed by way of recoupment show on appellant's own payroll records to have been paid as overtime. Absent any contrary showing, and none was attempted, it is conclusively presumed that such amounts were lawfully paid under this express provision of the statute.

[693] HAYS, J.

The respondent brought the present action against the appellant Jackson County, Missouri, upon claims which had been assigned to him by 30 different individuals, hereinafter referred to as the assignors. Each of the assignors had acted in the capacity of a deputy or assistant to the Clerk of the Circuit Court of Jackson County at some time during the period from March 1, 1935, to December 31, 1939. The assigned claims are for salaries alleged to be due to the assignors for such services in excess of the amounts actually paid them by the county. The petition originally included claims for amounts falling due from 1931 to 1935, but the jury below found against the plaintiff on such items and the claims for our consideration may therefore be limited to the period from 1935 to 1939. On 13 of the 30 counts in the petition the court directed a verdict for the plaintiff (on one of the 13 the directed verdict was as to a portion of the claim only). The remaining 17 counts were submitted to the jury under instructions which required them to return a verdict for the plaintiff if they should find from the evidence that the assignors named therein were duly appointed and acting deputy clerks within the period under consideration. Upon these counts the verdict was for the plaintiff. Other facts necessary to a decision will be stated in the course of the opinion.

Respondent has moved to dismiss the appeal on the ground that the appellant's brief fails to contain "a fair and concise statement of the facts of the case" as required by Rule 15 of this court. While the statement contained in the brief of appellant is not as full and complete as might be desired, the nature of the case made it desirable to place much of the matter which would ordinarily be included in the statement in the argument. This practice is not generally to be approved but in the present instance we feel that a dismissal of the appeal would not be warranted on this ground. The motion to dismiss, which was submitted with the case, must therefore be overruled.

The appellant complains of the action of the trial court in directing a verdict for the plaintiff on certain counts of the petition. It is a generally accepted rule in this State that a verdict may not be directed in favor of the proponent, that is the party upon whom the law casts the final burden of proof. [Dunham-Buckley Co. v. Halberg, 69 Mo. App. 509; Wolff v. Campbell, 110 Mo. 114, 19 S.W. 622; Goudie v. National Surety Co. (Mo. App.), 288 S.W. 369, l.c. 374; State ex rel. Strohfeld v. Cox, 325 Mo. 901, 30 S.W.2d 462; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, l.c. 559.] There is, however, a well-recognized exception to the rule. If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is unimpeached and uncontradicted, the proponent will be entitled to a peremptory instruction. This is upon the theory that there is no question of fact left in the case and that upon the questions of law involved the jury has no right to pass. [Magoffin v. Missouri Pacific R. Co., 102 Mo. 540, 15 S.W. 76; Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S.W. 583; Wendorff v. Missouri State Life Insurance Co., 318 Mo. 363, 1 S.W.2d 99; Clemens v. Knox, 31 Mo. App. 185; Stephens v. Koken Barber Supply Co., 67 Mo. App. 587; Hoster v. Lange, 80 Mo. App. 234; Woods v. Moffitt, 225 Mo. App. 801, 38 S.W.2d 525; Jackson v. Security Benefit Assn. (Mo. App.), 139 S.W.2d 1014.]

It is the contention of the respondent that the undisputed documentary evidence in this case entitled him to a directed verdict on the counts mentioned. The claims of the various assignors are based upon the alleged fact that they were duly appointed deputy clerks and that they were paid a salary less than that provided for in Section 13466, R.S. Mo. 1939 [Mo. St. Ann., [694] sec. 11834, p. 7040], which section, they contend, governs the amount of their compensation. Each of the assignors involved in the counts we are now considering was shown to have been duly appointed as a deputy by the elected circuit clerk. The written appointments of these assignors were introduced in evidence taken from the files of the court. Plaintiff also introduced the records of the Circuit Court of Jackson County, en banc, showing that that court duly approved the above mentioned appointments. Plaintiff then introduced in evidence the county pay rolls, which are records approved by the county court and kept in the proper county offices, showing the names of these various assignors on such approved pay rolls and showing the actual amounts paid to them, which in each instance was less than the statutory rate. If this documentary evidence as a matter of law showed the due appointment of the assignors and if as a matter of law the assignors were entitled to pay in accordance with the statute schedule, then the plaintiff was properly granted peremptory instructions on the counts in question.

Appellant insists that the evidence fails to disclose that the county court had determined the number of deputies necessary "for the prompt and proper discharge" of the duties of the circuit clerk as is required by Section 13466, R.S. Mo. 1939 [Mo. St. Ann., sec. 11834, p. 7040]. We must rule this contention against the appellant. The county court is shown by the record evidence to have approved the pay rolls above mentioned. This was, in effect, a finding that the number of deputies included on such pay rolls was a necessary one.

But appellant next contends that the record does not disclose a determination by the majority of the circuit judges that the number of deputies employed was necessary for the carrying out of the business of the circuit clerk's office. In this connection Section 13466, R.S. Mo. 1939 [Mo. St. Ann., sec. 11834, p. 7040], must be read in connection with Section 13471, R.S. Mo. 1939 [Mo. St. Ann., sec. 11839, p. 7043]. The pertinent portion of the latter section reads as follows: "The appointment and number of all deputies and assistants of the clerk of the circuit court and of the sheriff of the county not expressly fixed by this article shall be subject to the approval of the majority of the judges of the circuit court, and such deputies and assistants shall not exceed the number determined by said judges to be necessary aids for the performance of the duties of such officers respectively." In so far as the period from 1935 up to and including the 1st of January, 1939, is concerned this matter is expressly covered by the order of the circuit court, en banc, made on Jan. 3, 1935, and contained in the record. This order expressly approves the budget of the clerk listing the number of deputies actually appointed. Further, on the 7th of January of said year the court, en banc, approved the appointment of each of the assignors involved in the counts now considered. Such an approval necessarily involved the finding that the number of deputies appointed was a necessary number. Moreover, for the year 1939 similar approval of the appointments is shown by the records of the court en banc. This approval was a judicial act and carries with it a finding of all facts necessary to make the approval, including the fact that the number of deputies was not excessive. [State ex inf. Gentry v. Toliver, 315 Mo. 737, 287 S.W. 312; State ex rel. v. Brown, 330 Mo. 220, 48 S.W.2d 857.]

[5, 6] Appellant, however, says that these orders of the court en banc do not show that the approval was made by a majority of the circuit judges, but simply that it was made by the court. A court, however, which consists of a number of judges can act only through the concurrence of a majority of those sitting, and it is to be presumed that where the concurrence of a majority of all of the judges is required, such concurrence will be obtained before an order is entered of record. Where, therefore, the record pronounces that a given act was performed by the court it is necessarily implied that it was concurred in by the requisite number of members of the court. Appellant next contends that these appointments were void because there were chosen and approved a larger number of Class B deputies than is permitted by law. Section 13466, R.S. Mo. 1939 [Mo. St. Ann., sec. 11834, p. 7040], divides deputies of county officers into several categories. Among them are Class B deputies and Class C deputies. It then provides: "There shall not be a greater number of deputies exclusive of division deputies in class B in any one office than one for each ten deputies and assistant clerks in class C." Appellant says that as [695] the Circuit Court at Kansas City is composed of nine judges, with one additional judge at Independence, there can be only ten division deputies in Class B, and as there were never more than twenty Class C deputies only two additional Class B deputies could be appointed, making a total of twelve. The record, however, shows a total of sixteen Class B deputies. However, under Section 2123, R.S. Mo. 1939 [Mo. St. Ann., sec. 1961, p. 2618], the Judges of the Circuit Court of Jackson County are required to try criminal cases, jurisdiction of which had been formerly vested in the criminal court of such county. It appears from the record and in particular from the aforementioned order approving the clerk's budget that two separate divisions are organized for the trial of such cases. The power to divide the work of the court and to assign the trial of criminal causes as well as civil cases is vested in the court en banc by Section 2116, R.S. Mo. 1939 [Mo. St. Ann., sec. 1954, p. 2615]. In none of the apposite sections is the number of divisions in the court mentioned. It further appears from the record mentioned above that an additional special division is created for the trial of condemnation cases. The court en banc is not limited by statute to the creation of a number of divisions equal to but not exceeding the number of judges. While, of course, a judge cannot preside in two divisions at the same minute of time, he obviously can divide his time between them. It would therefore seem that the number of division deputies is at least fourteen with a possible fifteenth for the assignment division. The total number of Class B deputies was only sixteen and the budget shows the appointment of twenty-two Class C deputies, entitling the clerk to two additional Class B deputies. So it appears that the statutory limit was not exceeded.

The principal contention of the appellant is that the salaries of deputy clerks are no longer fixed by Section 13466, R.S. Mo. 1939 [Mo. St. Ann., sec. 11834, p. 7040], but that said section has been superseded or at least modified by the county budget law of 1933. Section 11 of said last mentioned act, which now appears as Section 10924, R.S. Mo. 1939 [Mo. St. Ann., sec. 12126k, p. 6434], contains the following provision: "The budget officer shall have power to recommend and the county court shall have power to fix all salaries of employees, other than those of elective officers, except that no salary for any position shall be fixed at a rate above that fixed by law for such position." It will be borne in mind that Section 11834, R.S. Mo. 1929, was in part repealed and reenacted in 1933 by the same session of the Legislature which adopted the budget law and is now Section 13466, R.S. Mo. 1939 [Mo. St. Ann., sec. 11834, p. 7040]. But the reenactment of Section 11834, R.S. Mo. 1929, was approved May 2, 1933, while the budget law was approved May 12, 1933. It may be contended that the words "salaries of employees, other than those of elective officers" means salaries of employees other than the employees of elective officers. We think this construction cannot be sustained, but that the words refer to the salaries of all employees except the salaries of elective officers. We must look to the purpose for which the budget law was enacted. In 1933 the court was in the midst of a great depression. County finances generally were in a deplorable condition. This necessitated the centralization of fiscal authorities in the hands of one agency, the logical agency being the county court. Cf. Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543, and in particular l.c. 550[16, 17]. To make the new plan effective the court had to be given power over the rate of pay of county officers, but to maintain the independence of elective officials their pay was excepted from the grant of power to the county court. The last clause of the quoted portion of the section forbidding the court to pay such county employees more than the rates fixed by statute obviously implies the power to pay them less than the statutory rate, and it was inserted as a clear reference to the scale of salaries set out in Section 13466, R.S. Mo. 1939 [Mo. St. Ann., sec. 11834, p. 7040.]

The conclusion thus reached is not in conflict with the cases of Reed v. Jackson County, 346 Mo. 720, 142 S.W.2d 862, and Gill v. Buchanan County, 346 Mo. 599, 142 S.W.2d 665. The first of these cases involves salaries determined prior to the enactment of the budget law. The second had reference to the salaries of elective officials only. Nor are the cases of State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532; Coleman v. Kansas City, 348 Mo. 916, 156 S.W.2d 644; Whalen v. Buchanan County, 342 Mo. 33, 111 S.W.2d [696] 177; and Powell v. Buchanan County, 348 Mo. 807, 155 S.W.2d 172, in point. They do not involve the construction of the statutes now considered.

However, in considering the effect of the budget law upon these salaries due regard must be had to Section 10931, R.S. Mo. 1939 [Mo. St. Ann., sec. 12126r, p. 6434], of which the following portion is material: "The budget officer of the county court shall not change the estimates of the circuit court or of the circuit clerk without the consent of the circuit court or the circuit clerk, respectively, but shall appropriate in the appropriation order the amounts estimated as originally submitted or as changed, with such consent." It does not appear whether the original estimate for deputy hire in the clerk's office must come from the circuit court or from the circuit clerk. The matter, however, would ordinarily be one with which the clerk is more familiar than the judges. We are not holding that the clerk might make such an estimate in violation of direct instructions given him by the court; but, apparently, in the absence of such direct instructions, he might make his own estimate and submit the same to the budget officer. It appears that for the years here involved prior to 1938 the estimates submitted by the clerk to the budget officer were based upon the statutory rate of salary for his deputies. There is some evidence that in conversation with a budget officer or the county judges he orally consented to a reduction in this wage scale. But the written estimate was not amended, and the oral conversation [if any there was] of the clerk, not reduced to writing, cannot be counted upon to modify the written document which he is required by statute to file. Hence the modification of the salary scale by the county court during the years from 1935 to 1938 was not justified by law. However, in 1938 and 1939 the clerk's estimate filed with the budget officer was for the lower rate actually paid to the various assignors. The trial court in directing a verdict required the jury to find for the plaintiff at the statutory scale for the entire period from 1935 to December 31, 1939. Since the legal scale for the last two years of that period was lower than that fixed by Section 13466, R.S. Mo. 1939 [Mo. St. Ann., sec. 11834, p. 7040], the court erred in thus directing a verdict for the entire amount claimed.

Appellant complains of the action of the trial court in giving Instruction No. 32. Said instruction purports to set out the legal requisites for the appointment of deputy clerks, and, among other things, tells the jury that the appointment of such deputies is deemed to have been approved by a majority of the judges if they "knowingly permit the service of such deputy to be rendered in and about the work of the court in the Circuit Clerk's department and never at any time take any action calculated to apprise anyone that such appointment does not meet with the will, desire and approbation of a majority of such judges." The statutes above cited require an approval of the judges. The judges spoke through their record only. Unless a written order of approval be signed or a record entry be made there is no approval. The instruction in permitting a finding that the appointments were approved by a mere tacit understanding or failure of the judges to object is erroneous, and in the form it took should not have been given.

Appellant also complains of the action of the trial court in refusing to give its instruction concerning the applicability of the county budget law. Such instruction, however, failed to take into consideration the necessity of a modification of the original budget entry by the clerk or the circuit court before the same could be modified in the final budget of the county court. The trial court therefore properly refused the instruction in the form in which it was offered.

Appellant complains of the refusal of the trial court to direct a verdict in its favor on each of the thirty counts. In the case of certain of the assignors the record before us is silent as to approval of their appointments by the circuit court. In some instances the appointments were approved by a single judge only. In others no approval at all is shown. Obviously if the approval were made by only one judge, or were not made at all, the officers could not be said to have been legally appointed and if any assignor were a de facto, but not a de jure officer, he cannot claim statutory compensation. Since, however, the case must be retried and since it is possible that the evidence on such new trial will be of a different nature, it will be unnecessary to rule directly upon these requested peremptory instructions.

[697] Because of the errors herein pointed out the cause must be reversed and remanded for a new trial in accordance with the principles stated in this opinion. It is so ordered. All concur.