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In Norberg, the Court was faced with deciding who, among two persons, was entitled to Jackson County's statutory title of "accounting officer" under the county budget law.
Summary of this case from Gasconade County v. Mo. Dept. of HealthOpinion
No. 38538.
June 8, 1943.
1. STATUTES: Construction. The several parts or sections of a statute should be construed together, and harmonized, if possible.
2. COUNTIES: Officers: Accounting Officer is County Clerk in Jackson County. The "accounting officer" of a county is the person named in Sec. 10934, R.S. 1939, who keeps the principal financial records of the county, being the county clerk in Jackson County.
3. STATUTES: Words and Phrases: Meaning of "Or". The word "or" is ordinarily used as a disjunctive to mean "either".
4. STATUTES: Rules of Construction not Used When Intent Clear. If the intention is clearly expressed, and the language used is without ambiguity, all technical rules of interpretation should be rejected.
5. STATUTES: Construction: Last Antecedent Rule Rejected. The last antecedent rule is merely an aid to construction and will not be adhered to where extension to a more remote antecedent is clearly required by consideration of the entire act.
6. COUNTIES: County Court not Empowered to Choose Accounting Officer. The power of the county court under the Constitution to transact all county business does not include the power to choose the accounting officer.
Appeal from Jackson Circuit Court. — Hon. Ben Terte, Judge.
AFFIRMED.
George K. Brasher and Ed. A. Harris for appellants.
(1) Section 10934 of the Revised Statutes of Missouri of 1939 authorizes the accountant appointed by the county court to be the "accounting officer." Secs. 10932, 10933, 10934, 13824, 13862, 13887, R.S. 1939. (2) The words "or other officer or employee keeping the principal records of the county," appearing in Section 10934 of the Revised Statutes of Missouri of 1939, do not qualify or annul the preceding provision in said section that the term "accounting officer" shall be deemed to mean the accountant. Fulkerson v. Great Lakes Pipe Line Co., 335 Mo. 1058, 75 S.W.2d 844; State v. Eckhardt, 232 Mo. 49, 133 S.W. 321; Cades v. Mosberger Lbr. Co., 291 S.W. 178; Mangelsdorf v. Penn. Fire Ins. Co., 224 Mo. App. 265, 26 S.W.2d 818; State v. Broderick, 7 Mo. App. 19; State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990; State ex rel. School District v. Harter, 188 Mo. 516; State ex rel. Major v. Ryan, 232 Mo. 77; Lauck v. Reis, 310 Mo. 184; Castillo v. State Highway Comm., 312 Mo. 244; Hannibal Trust Co. v. Elzea, 315 Mo. 485; Dyer v. Sutherland Bldg. Contr. Co., 321 Mo. 1015, 13 S.W.2d 1056; Mack v. Byrd, 131 Mo. 682; DeJarnett v. Tickameyer, 328 Mo. 153; Elsas v. Montgomery Elevator Co., 330 Mo. 596; Bowers v. Mo. Mut. Assn., 333 Mo. 492, 62 S.W.2d 1058; State ex rel. St. Louis Pub. Serv. Co. v. Public Serv. Comm., 326 Mo. 1169, 34 S.W.2d 486; 59 C.J. 985. (3) The provision of Section 10933 of the Revised Statutes of Missouri of 1939 that the accounting officer shall be liable on his bond does not disqualify the accountant as the "accounting officer." Sec. 10933, R.S. 1939; State ex rel. Coleman v. Blair, 245 Mo. 680; Coonce v. Munday, 3 Mo. 373; State ex rel. O'Connor v. Riedel, 329 Mo. 616, 46 S.W.2d 131; Bowers v. Mo. Mut. Assn., 333 Mo. 492, 62 S.W.2d 1058; State ex rel. McCaffrey v. Mason, 155 Mo. 486; State ex rel. Johnson v. Caulfield, 245 Mo. 676. (4) The county court has power to determine which of the officers mentioned in Section 10934 shall be the accounting officer. State ex rel. Buckner v. McElroy, 309 Mo. 595, 274 S.W. 749; Rinehart v. Howell County, 348 Mo. 421, 153 S.W.2d 381.
Harry L. Jacobs for respondent.
(1) Sec. 10934, R.S. 1939, part of county budget law, defines "accounting officer" as follows: "Wherever in this act the term `accounting officer' shall appear, it shall be deemed to mean the county clerk, county comptroller, county auditor, accountant or other officer or employee keeping the principal records of the county." (2) County clerk keeps the principal records of the county. Sec. 13823, R.S. 1939. (3) "Keeping the principal records of the county" modifies the antecedent "accountant" as well as other antecedents. The frame of the sentence shows this. Dodd v. Indep. Stove Furn. Co., 330 Mo. 662, 51 S.W.2d 114. (4) Amendment of 1939 striking comma after "accountant" shows "accountant" and "officer or employee" were coupled together, with a common modifier, viz., "Keeping the principal records of the county." Laws 1939, p. 658. (5) "Last antecedent" rule inapplicable. Appellant themselves concede modifier goes back farther. Where several words are followed by a clause as much applicable to the first as the last, it modifies all. 59 C.J. 986, sec. 583; State ex rel. v. St. Louis, 174 Mo. 125. (6) The duties of "accounting officer" are such that he must necessarily be the county's principal record keeper. Sec. 10932, R.S. 1939. (7) The liability imposed on "accounting officer" is such as to indicate that a mere accountant employee, unable to protect himself, was not intended to be "accounting officer" under the county budget law. (8) The quality of "keeping the principal records of the county" is an attribute of the county clerk, the first named in the definition. The modifier at the conclusion of the definition was derived from this quality aptly descriptive of the county clerk. Where a modifier fits the first word of a series just as much as the last it applies to all. United States v. Standard Brewery, 251 U.S. 210, 64 L.Ed. 229; Porto Rico Ry., L. P. Co. v. Mor, 253 U.S. 345, 64 L.Ed. 944; Johnson v. So. P. Co., 196 U.S. 1, 49 L.Ed. 362; In re Graves Estate, 27 F. Supp. 717; 59 C.J. 986, sec. 583. (9) Appellants' argument based on inclusion of "county comptroller" and "county auditor" in definition is untenable, for specific statutes definitely make them the "accounting officer" in their respective counties. Besides "county comptroller" was not in the definition as originally enacted. Laws 1933, pp. 351, 352; Laws 1937, pp. 427-430; Secs. 10919-10921, R.S. 1939; Sec. 1388, R.S. 1939; Secs. 13887-13908, R.S. 1939. (10) Amendment of 1939 inserting "county" before "auditor" confirms construction that a mere auditor accountant was not contemplated by the definition as "accounting officer." State ex rel. McNeil v. St. Louis County Court, 42 Mo. 496. (11) Purpose of creating office of "accounting officer" was to provide for a check on county expenditures. The county court is the county spending agency. The purpose of the act would be defeated if a mere employee of the county court were, without further qualification, held to be qualified as "accounting officer." It would in effect be a case of the county court checking itself. State ex rel. McNeil v. St. Louis County Court, 42 Mo. 496. (12) The "accountant" whom the county court is authorized to employ to aid it in its auditing functions is not the accountant contemplated by the definition. Sec. 13824, R.S. 1939; Blades v. Hawkins, 133 Mo. App. 328, 112 S.W. 979; Blades v. Hawkins, 240 Mo. 187, 144 S.W. 1198, Ann. Cas. 1913B, p. 1082. (13) "Accounting officer" if undefined would mean a mere auditor, like the appellant Bergin. The enactment of a special definition shows an intention to exclude such mere auditing accountants. McKnight v. United States, 13 Ct. of Claims 292; Hauck v. State, 45 Ohio St. 439, 14 N.E. 92; Brunaugh v. State, 173 Ind. 483, 90 N.E. 1019. (14) Explanation of inclusion of word "accountant" in definition. Similar word in statute defining State Auditor's duties, and in previous legislation referring to county officers. In each such case the "accountant" referred to did keep the principal records. Secs. 10895-10909, R.S. 1939; Sec. 13021, R.S. 1939; State ex rel. Daily v. Auditor, 41 Mo. 13; State ex rel. McNeil v. St. Louis County Court, 42 Mo. 496. (15) Even if restrictive phrase does not modify "accountant," still respondent will be "accounting officer" because "county clerk" is the first officer specified in the definition. (16) The definition is constitutional. Traub v. Buchanan County, 341 Mo. 727, 108 S.W.2d 340; St. Louis County Court v. Griswold, 58 Mo. 175; State ex rel. Atty. Gen. v. Vallé, 41 Mo. 29. (17) County court has no power to appoint "accounting officer." The statute gives it no such power. The Constitution expressly delegates the power of prescribing the manner of appointment of county officers to the Legislature. Sec. 14, Art. IX, Sec. 9, Art. XIV, Mo. Constitution. (18) County courts have no implied powers, except those necessary to carry out powers expressly granted. Walker v. Linn Co., 72 Mo. 650; Steines v. Franklin County, 48 Mo. 167; Blades v. Hawkins, 240 Mo. 187, 144 S.W. 1198; Lewis v. Petroleum County, 92 Mont. 563, 17 P.2d 60, 86 A.L.R. 575; 14 Am. Jur., sec. 28, p. 200, note 10. (19) The county budget law plainly shows on its face that the power of appointment was not intended to be given to the county court, because such a power was specifically conferred with respect to "budget officer." This emphasizes the failure to give a like power with respect to "accounting officer." Laws 1933, pp. 340, 346, 351; Sec. 10922, R.S. 1939; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543.
This is a declaratory judgment action brought in the circuit court of Jackson County to determine who is the "accounting officer" of Jackson County under the county budget law. (Sections 10910-10935.) The trial court adjudged that the county clerk was the "accounting officer" under that law.
All sections of statutes referred to are the 1939 Revised Statutes of Missouri.
On January 1, 1943, the county court of Jackson County entered an order of record employing Harry M. Bergin as County Accountant under Section 13824, and, also, by this order, appointed him as County "accounting officer" as defined by Section 10934.
Section 13824, provides that "if the county court finds it necessary to do so, it may employ an accountant to audit and check up the accounts of the various county officers." It is conceded that the county court had the authority to employ an accountant, but respondent says that under Section 10934, he cannot be the accounting officer under the county budget law, because he is not the keeper of "the principal records of the county." Section 10934, reads: "Whenever in this act the [389] term of `accounting officer' shall appear, it shall be deemed to mean the county clerk, county comptroller, county auditor, accountant or other officer or employee keeping the principal records of the county."
Appellants contend that the modifying clause " keeping the principal records of the county" applies only to the preceding words "officer or employee" and that the county court can appoint either the county clerk, county comptroller, county auditor, accountant, or any officer or employee, provided such officer or employee keeps "the principal records of the county." On the other hand, the respondent contends that such modifying clause applies to all those persons above named. In other words, if the county clerk is the person "keeping the principal records of the county," then he, and he only, is the person who can be the "accounting officer," and if he does not keep the principal records, then the comptroller, auditor, accountant, or officer or employee who does keep such records is the "accounting officer."
Both parties agree that the respondent, as county clerk of Jackson County, is the person who is keeping the principal records of that county. (See Section 13823.) In the oral argument, the appellants, while denying that this modifying clause applied to the county clerk, admitted that if it did, the respondent was the "accounting officer" under Section 10934.
Both parties, also, agree that under the law, Jackson County does not have a county comptroller or county auditor. The ultimate question presented for our determination as stated by the appellants, is: "May the accountant provided for by Section 13824 act as the `accounting officer' within the meaning of Section 10934?"
The "several parts, or sections, of such a statute are to be construed in connection with every other part, or section, and all are to be considered as parts of a connected whole, and harmonized, if possible, so as to aid in giving effect to the intention of the lawmakers." State ex rel. Dean et al. v. Daues et al., 321 Mo. 1126, 14 S.W.2d 990, l.c. 1002. See, also, Holder v. Elms Hotel Co., 338 Mo. 857, 92 S.W.2d 620, 104 A.L.R. 339; State ex rel. Kansas City Power Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; State v. Wipke, 345 Mo. 283, 133 S.W.2d 354; State ex inf. McKittrick v. Carolene Products Co., 346 Mo. 1049, 144 S.W.2d 153.
Section 10932 provides in substance that no contract or any financial obligation shall be binding on a county unless it be in writing and unless there is a balance unencumbered to the appropriation to which the same is to be charged, and such contract or order shall bear the certification of the "accounting officer" so stating.
Section 10933, among other things, provides that the "accounting officer" shall be personally liable and liable on his bond for the amount incurred by his erroneous certification.
The "accounting officer" referred to in these two sections is defined by Section 10934, already quoted.
Section 10919 provides that in all counties that have more than two hundred thousand and less than four hundred thousand inhabitants shall elect a county comptroller who shall be the county budget officer and "accounting officer," and Section 10920 describes his duties and states that "He shall keep accounts of all appropriations and expenditures made by the county court, and no warrant shall be drawn or obligation incurred without his certification that an unencumbered balance, sufficient to pay the same, remains in the appropriation account against which such warrant or obligation is to be charged."
Section 13862 provides that all counties that have a city containing fifty thousand and less than one hundred and fifty thousand shall elect a county auditor, and Section 13881 describes his duties, among which it states that "He shall keep accounts of all appropriations and expenditures made by the county court, and no warrant shall be drawn or obligation incurred without his certification that an unencumbered balance, sufficient to pay the same, remain in the appropriation account . . ."
Section 13887 provides for the election of county auditors in counties having more than eighty thousand and less than one hundred and fifty thousand inhabitants, where the circuit court is held in more than one place, and defines his duties.
In those counties that are authorized to elect a county comptroller by virtue of Section 10919, he is specifically named the "accounting officer," and Section 10920 defines his duties in almost identical language as Section 10932, which states the duties of the "accounting officer."
Also, in those counties that elect a county auditor under Section 13862, he must be [390] the "accounting officer" because Section 13881 that defines his duties, also, uses language almost identical with the language used in Section 10932.
In counties coming within the provision of Section 10919, the county comptroller, and he alone, can be the "accounting officer." Also, in those counties electing county auditors by virtue of Section 13862, such auditor only is the "accounting officer." Such county comptrollers and county auditors are the persons "keeping the principal records of the county," which show the financial records of the county, and in those counties, the county courts are not free to choose the "accounting officer" from a list of persons named in Section 10934.
We think the "accounting officer" is the person named in Section 10934 who keeps the principal financial records of the county. In some counties, it is the county clerk, because he keeps the principal records, in others it is the comptroller, for the same reason, and in still others, it may be the auditor, etc.
As that section is applied to Jackson County, we believe it was the intention of the Legislature that the county clerk shall be the "accounting officer."
We believe the grammatical construction of the statutory definition of "accounting officer" supports our conclusion. It is to be noted there is no comma after the word "accountant," the last comma appearing after the words "county auditor" and just before the word "accountant," so that the remaining part of the sentence reads "accountant or other officer or employee keeping the principal records of the county." This modifying phrase must apply not only to the word "employee" but also to the words "officer" and "accountant." The word "or" is ordinarily used as a disjunctive to mean "either" as "either this or that." Dodd v. Independence Stove Furnace Co., 330 Mo. 662, 51 S.W.2d 114. Therefore, the word "or" as used between the words "accountant" and "officer" means either accountant or officer or employee who happens to be keeper of the principal records of that particular county. As previously stated, it is agreed that the appellant, Bergin, as county accountant, is not such keeper. He could not, therefore, be the "accounting officer" of Jackson County. As that county has no comptroller or auditor, the county clerk must be the "accounting officer" under the county budget law.
We think the language of the Statute is plain and unambiguous, and the intent of the Legislature is clear, as we have already found. "Rules for the interpretation of statutes are only intended to aid in ascertaining the legislative intent, `and not for the purpose of conrolling the intention or of confining the operation of the statute within narrower limits than was intended by the lawmaker.' Sutherland on Statutory Const., sec. 279. If the intention is clearly expressed, and the language used is without ambiguity, all technical rules of interpretation should be rejected." State ex rel. Wabash Ry. Co. et al. v. Shain, 341 Mo. 19, 106 S.W.2d 898, l.c. 899-900.
However, if we do apply the technical rules of construction relied upon by the appellants, we would be forced to the conclusion that the appellant, Bergin, is not the "accounting officer" as that is termed under the county budget law.
Appellants contend that under the last antecedent rule, the modifying clause in question applies to "officer or employee." "By what is known as the doctrine of the `last antecedent,' relative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote. This rule is, however, merely an aid to construction and will not be adhered to where extension to a more remote antecedent is clearly required by consideration of the entire act. Slight indication of legislative intent so to extend the relative term is sufficient. Where several words are followed by a clause as much applicable to the first and other words as to the last, the clause should be read as applicable to all." 59 C.J. 985, Sec. 583. Applying this rule to appellants' contention, the last antecedent is the word "employee," but the appellants state it should also include the word "officer." These two words are connected by the word "or," but so is the word "accountant" and the word "employee" connected by the word "or." The phrase reads, "accountant or other officer or employee," so if the modifying phrase "keeping the principal records of the county" applies to "officer or employee," it must also apply to the word "accountant." The words "accountant," "officer," and "employee," [391] as used in Section 10934, put them in the same class if we use only the first part of the definition of the last antecedent rule. But we think this modifying clause applies to the first noun "county clerk" as well as to the last noun "employee," and, under the last part of the definition, it should be applicable to all the persons named.
Such a construction would then follow the technical rule that every sentence, phrase, or word should be given some meaning if possible. State ex rel. McKittrick v. Carolene Products Co., supra.
It is suggested by appellants that under Section 36, Article VI, of the State Constitution, since the county court is vested with the power "to transact all county . . . business," it has the right to choose the "accounting officer" from the persons named in Section 10934. We are not impressed with this contention. If this be true, the county court could employ a person not named in that section as its "accounting officer." The appellant admitted in oral argument in this court that this could not be done. Besides, Section 14, Article IX, and Section 9, Article XIV, of the State Constitution, provide that the manner of appointment and election of county officers is left to the Legislature.
It follows the judgment of the trial court should be affirmed. It is so ordered. All concur.