Opinion
No. 41566.
April 10, 1950.
APPEAL FROM THE CIRCUIT COURT OF WEBSTER COUNTY, SAM C. BLAIR, J.
John C. Pope, Marshfield, for appellant.
Roy C. Miller, pro se, and Ellsworth Haymes, Marshfield, for respondent.
Initially, this was a suit in two counts. In the first count the Prosecuting Attorney of Webster County stated that in complying with the County Budget Law, Mo.R.S.A. § 10910 et seq., he submitted in his budget estimate to the County Court an item of $600.00 for necessary stenographic hire for the year 1949 but the County Court, arbitrarily, contrary to the public interest, and without good cause, struck the item from the county's budget and made no allowance for stenographic hire for his office. As to that count the Prosecuting Attorney asked that the County Court's modification of the budget be set aside and the item of $600.00 for necessary stenographic hire be included in the 1949 budget. When the cause came on for trial the Prosecuting Attorney dismissed the first count of his petition. In the second count the Prosecuting Attorney alleged that "for the month of February, 1949, he made a reasonable and necessary outlay for stenographic hire in carrying out the official duties of the office of Prosecuting Attorney of said County in the amount of Forty-Three ($43.00) Dollars" for which he alleged the county is justly indebted to him. In answer to the second count Webster County plead that "no provision is made by law to authorize the payment of a stenographer for the office of prosecuting attorney" of Webster County and that he was not entitled to recover the sum of forty-three dollars because it was not included in and no provision was made for the payment of such an item in the 1949 budget, and "stenographic help is not an indispensable outlay or expense for the necessary and efficient operation of the office of prosecuting attorney" of Webster County. As indicated, the case was tried on the second count of the petition and the trial court found that Webster County was justly indebted to the plaintiff in the sum of forty-three dollars. The county appeals from that judgment.
As we have said, in answer to the second count the county plead that stenographic hire was not an indispensable outlay or expense for the necessary and efficient operation of the office of Prosecuting Attorney of Webster County. The Prosecuting Attorney now insists, since the county has not specifically briefed the point upon this appeal, that it has abandoned that defense and is limited to the two questions or defenses that the item is not recoverable because (a) it is not provided for by statute and (b) was not included in the 1949 budget. The elimination of that defense and the fact that "the County Budget Law was not interposed in defense" distinguishes this case from Rinehart v. Howell County, 348 Mo. 421, 153 S.W.2d 381. It also distinguishes Ewing v. Vernon County, 216 Mo. 681, 116 S.W. 518 and Harkreader v. Vernon County, 216 Mo. 696, 116 S.W. 523, because the County Budget Law was not involved in those cases. While "reasonable and necessary outlay for stenographic hire in carrying out the official duties of the office of Prosecuting Attorney" is eliminated as a defense it may nevertheless have some incidental bearing upon the respondent's claim that the county unreasonably, capriciously and arbitrarily struck the item from his budget estimate.
As it is with the official himself, 20 C.J.S., Counties, § 109, p. 914, so it is with his deputies, assistants and stenographers, "compensation for services rendered by assistants, deputies, and other employees can be allowed directly to them or to their superiors only as authorized by law; and where no provision is made for the payment, or for the appointment or employment of deputies and assistants, the latter must look exclusively to their employers for compensation, and such employer cannot look to the county for reimbursement." 20 C.J.S., Counties, §§ 122, 129; Alexander v. Stoddard County, Mo.Sup., 210 S.W.2d 107. This is not to deny in every instance certain specific items of expense merely because they are not provided for by statute. For example, where the "officer in performing a duty enjoined on him by statute necessarily expends his own funds, there being no statutory provision for meeting these expenses out of the public treasury, he may be reimbursed for such expenses." Maxwell v. Andrew County, 347 Mo. 156, 164, 146 S.W.2d 621, 625; Ewing v. Vernon County, supra. And in this case reimbursement is not denied merely because the statutes relating to prosecuting attorneys make no provision for stenographers or stenographic hire in counties of the third and fourth class. But, since the statutes relating to prosecuting attorneys in certain other classes of counties do make provision for stenographic hire and the statutes relating to prosecuting attorneys in third and fourth class counties make no such provision, the plain implication of the statutes and particularly of the County Budget Law is that the County Courts in those counties have been invested with the discretionary quasi-legislative function and duty, State ex rel. Dietrich v. Daues, 315 Mo. 701, 287 S.W. 430, of determining the necessity and amount of expenditures not otherwise specifically provided for by statute. "Of course, the Legislature could have provided for salaries for stenographers of prosecuting attorneys in counties of the class including Phelps County, quite as have been provided by statute in counties of other classification. * * * The Legislature has not done so. This does not mean the County Court of Phelps County should not, in the exercise of its discretion, make allowance for the expense of necessitous stenographic service to the prosecuting attorney. But, in the absence of legislation providing a salary or allowance for a stenographer or for stenographic service for the prosecuting attorney of Phelps County, the County Budget Law means the County Court of Phelps County has the power to make whatever allowance for stenographic service as it, in its discretion, may deem necessary with a regard to the efficiency of the prosecuting attorney's office, and to the receipts estimated to be available for that and other estimated expenditures, in short, to approve such an estimate as will promote efficient and economic county government. To put it in another and summary way — since Prosecuting Attorney could not rely on a statute particularly providing pay for his stenographic service, he should have necessarily expected such an allowance as the County Court of Phelps County in the honest, nonarbitrary performance of its duty under the County Budget Law would make." Mo.R.S.A. §§ 10912-10917. Bradford v. Phelps County, 357 Mo. 830, 836, 210 S.W.2d 996, 1000.
In this case it was stipulated that the county had sufficient funds with which to pay this item and that the allowance of the item or the inclusion of the estimated item of $600.00 would not unbalance the budget. It was also stipulated that the item of forty-three dollars for stenographic hire was a reasonable charge for the service rendered, provided it was a lawful and recoverable charge or demand against the county. The Prosecuting Attorney testified to the nature and amount of his work, particularly to the type of work requiring the services of a stenographer. Rinehart v. Howell County, 348 Mo. 421, loc. cit. 424, 153 S.W.2d 381, loc. cit. 383. On the other hand, the Presiding Judge of the County Court said, "Well, we didn't think it was necessary. I know quite a bit about Mr. Miller's activities, and all, and we didn't think it was necessary; and the Prosecuting Attorney before, Mr. Smith, gave good service, and, therefore, we struck it off." As to whether he had any other motive than the county's welfare, he said, "Well, other attorneys had seemed to handle it all right, and we didn't think Mr. Miller had any more work than the other attorneys did; and for other reasons that I wouldn't care to state. * * * Well, for the reason I thought Mr. Miller should spend more time in his office than he did; we called several times, and especially on road day, when we would have need for an attorney, and several times he wasn't there, and I thought we should have the help of the prosecuting attorney on road days." One of the associate judges said, "but my idea was to knock that extra work out as much as possible. * * * I understood that his predecessors, some of them, were old men, and they got along; Mr. Miller was a young man, and full of pep, and undoubtedly he could run the office without help if the others could." The other associate judge said, "Well, it was just that we thought he could handle it without this extra pay, because others had before that; we were acting for the benefit of the county in general. * * * I didn't think it was necessary; others had handled it without it." The evidence does not demonstrate that the County Court, in refusing to make an allowance for stenographic hire for the Prosecuting Attorney of Webster County acted so arbitrarily and capriciously or so abused its discretion that either this court or the circuit court may substitute their judgment for that of the County Court in the circumstances. Bradford v. Phelps County, supra.
Accordingly the judgment is reversed.
WESTHUES, and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.