Opinion No. 53-73
Topics:
COURTS.
PROBATE COURTS.
RETIREMENT.
Summary conclusion
Commissioners of the probate courts appointed under the provisions of Section 481.115, RSMo, applicable to probate courts of counties having more than 400,000 inhabitants are not entitled to receive any compensation under Sections 476.450, RSMo et seq., which provide for the appointment of retired judges and commissioners as special commissioners or referees.
Contents of opinion
March 1, 1973
Honorable Donald L. Manford
Missouri Senate, District 8
Room 425 State Capitol Building
Jefferson City, Missouri 65101
Dear Senator Manford:
This opinion is in response to your question with respect to Sections 476.450 to 476.510, RSMo, which deal with the appointment of retired judges as special commissioners.
Your questions are as follows:
"Is a Commissioner of the Probate Court, appointed pursuant to Section 481.115, RSMo., 1969, who has served twelve (12) years continuously in that capacity and who has attained the age of sixty-five years, entitled to receive the benefits provided by Section 476.450, ibid., by reason of Section 476.45.6, ibid.?
"If the answer to the preceding question is in the affirmative, is the individual required to do any affirmative act prior to the date he becomes fully qualified under said sections?
"If the answer to the first question is in the affirmative, is his retirement compensation based upon one-third of his annual compensation earned during the year immediately preceding the date he attains the age of sixty five? If not, then on what basis is his retirement compensation calculated?"
Section 481.115, RSMo, to which you refer, provides:
"The judge of the probate court of any county, which has more than four hundred thousand inhabitants, may appoint, as one of the assistants authorized by section 483.585, RSMo, a person to be known as probate court commissioner, who shall possess the same qualifications and take and subscribe a like oath as such judge. The compensation of the commissioner shall be limited, determined and paid as provided by sections 483.475 and 483. 585, RSMo; provided, however, that said commissioner shall receive a per diem of twenty dollars per day as compensation unless said commissioner is a regular salaried employee of the probate court in which event he shall receive no per diem allowance; and his service shall extend until terminated by order of the judge entered of record but not beyond the term of office of such judge. Subject to approval or rejection by the judge, the commissioner shall have all the powers and duties of the judge; but the judge shall by order of record reject or confirm all orders, judgments, and decrees of the commissioner within the time such judge could set aside such orders, judgments, or decrees, had the same been made by him; and if so confirmed such orders, judgments, and decrees shall have the same effect as if made by the judge on the date of such confirmation."
Under the provisions of the above section such probate commissioners are paid as determined by Sections 483.475 and 483.585, RSMo.
Section 483.475 (Senate Bill No. 423, 76th General Assembly, Second Regular Session), provides:
"1. In counties having more than thirty thousand inhabitants, the probate judges shall appoint their own clerks, assistants and stenographers, and shall determine their number and their salaries by order of record and may remove them when in the discretion of the judges it is deemed advisable. All salaries of the judges and their appointees shall be paid monthly by the county, upon requisition issued by the probate judges.
"2. In counties having more than thirty thousand and less than two hundred and fifty thousand inhabitants, the total salaries of all clerks, assistants and stenographers in the probate court for any one calendar year shall not exceed the total sum of fees received and accounted for by the judge of the court for the preceding year, except that in no event shall the total sum exceed thirty thousand dollars except as provided hereinafter in paragraph 3, and except that in counties where the total sum of fees received and accounted for by the judge for the preceding year shall be less than four thousand two hundred dollars, the total salaries of all clerks, assistants and stenographers shall not exceed the sum of four thousand two hundred dollars.
"3. In counties having more than one hundred and fifty thousand and less than two hundred fifty thousand inhabitants, and in counties of the second class in which the circuit court sits in more than one city, the total salaries of clerks, assistants and stenographers in the probate court for any one calendar year shall not exceed the total sum of thirty-five thousand dollars.
"4. In any county where need exists, the county court is authorized to provide such additional clerks, deputy clerks or other employees in the probate court as the county court in its discretion believes are required and is authorized to provide funds for payment of salaries or parts of salaries of the clerks, deputy clerks and employees in addition to the maximum amounts allowed by subsection 2.
"5. In any county having two hundred and fifty thousand or more inhabitants, the total salaries of all clerks, assistants and stenographers for any calendar year shall not be such that the total salaries of the judge and his appointees shall exceed the total sum of fees received and accounted for by the judge for the year."
Section 483.585, provides:
"In all counties now or hereafter having a population of two hundred and fifty thousand inhabitants or more, and in cities not, within a county, the probate judge shall, at the end of each month, pay to the county treasurer, or in a city not within a county, to the city treasurer, all fees charged and collected on beha-lf of the judge or clerks of said court, and said treasurer shall receipt therefor. The probate judge shall fix the salaries of his clerks, assistants and stenographers, and out of the fees paid over to the treasurer shall be paid the salary of the probate judge, the salaries of his clerks, assistants and stenographers, and all expenses incurred by him for supplies and office equipment used in the office, upon requisition drawn by the judge of said court on said county or city treasurer. The total of all salaries, judge's salary and expenses so paid out during any calendar year shall. not exceed the total fees collected by such judge during such year."
The two applicable sections with respect to such judges' retirement provisions are Sections 476.450 and 476.456; RSMo.
Section 476.450, provides:
"Any person having reached the age of sixtyfive years and having in this state served an aggregate of twelve years, continuously or otherwise, as a judge or commissioner of the supreme court, or as a judge or commissioner of any of the courts of appeals, or as a circuit judge, or as a judge of a court of criminal correction, or as a judge of a court of common pleas, or either or both as judge or commissioner of any of said courts, and who shall have ceased to hold such office by reason of the expiration of his term, or voluntary resignation or retirement by reason of having reached the age of seventyfive years, under section 25, article V, of the Constitution of Missouri, shall, if he so elects as hereinafter provided, be made, constituted and appointed a special commissioner or referee for and during the remainder of his life and shall, while he remains a resident of Missouri, be entitled to and shall receive an annual compensation, salary or retirement compensation during the remainder. of his life a sum equal in amount to one-third the salary or compensation then or thereafter provided for by law for the office from which he has retired, and said sum shall be payable monthly out of the general revenue of the state of Missouri." (Emphasis added)
Section 476.456, provides:
"1. Any person whether or not a licensed attorney having reached the age of sixty-five years, and having any prior judicial service except as a police judge, or justice of the peace of twelve years or more on October 13, 1969, or having served an aggregate of twelve years continuously or otherwise as , judge or commissioner of any of the courts provided for under the provisions of sections 16 and 18, article V of the constitution, shall have the same rights and privileges upon the same conditions as are provided for the judges and commissioners specified in section 476.45.0
"2. Any judge presently serving as a magistrate or probate judge is entitled to include any time he has served as a justice of the peace of this state in computing the prior judicial service required by this section;"
First of all, it is clear that Section 476.456 refers to judges or commissioners "of any of the courts provided for under the provisions of sections 16 and 18, article V of the constitution, . . ." Section 16 of Article V refers to the probate courts and Section 18 of Article V refers to the magistrate courts.
However, as can be seen from our above quotation of Section 476.450, the eligible judge or commissioner is to receive "as annual compensation, salary or retirement compensation during the remainder of his life a sum equal in amount to one-third the salary or compensation then or thereafter provided for by law for the office from which he has retired . . ." Further, as we have noted by our quotations of the provisions of Sections 481.115, 483.475 and 483.585, the salaries of the commissioners of such probate courts are not set by law but are determined by the judges of the court as provided therein.
While it is true, of course, that a determination of salary by a judge under such provisions may have the force of law, it is not a determination by the legislature and is not "provided for by law for the office . . . ." In this regard, we note that Section 21 of Article III of the Missouri Constitution provides that no law shall be passed except by bill (although the initiative power is reserved to the people under Section 49, Article III). While there are some cases holding that "prescribed by law" does not have the limited connotation of "prescribed by statute", we do not believe that such cases are applicable in the premises. Cf. In re McKinney's Estate, 173 S.W.2d 898, 902 (Mo. 1943) and United States Fidelity & Guaranty Co. v. Guenther, 281 U.S. 34, 50 S.Ct. 165, 74 L.Ed. 683 (1929).
We realize that there is no ambiguity in Section 476.456, quoted above, which expressly provides that qualified commissioners as well as judges of ". . . any of the courts provided for under the provisions of sections 16 and 18, article V of the constitution, shall have the same rights and privileges upon the same conditions as are provided for the judges and commissioners specified in section 476.450." There are, of course, no commissioners of the magistrate courts (Section 18, Article V) and the reference to commissioners must necessarily have been to commissioners of the probate court, (Section 16, Article V). All other judges have salaries fixed by law and commissioners of the courts of appeals and of the Supreme Court have salaries which are by law, Section 477.081, RSMo Supp. 1971, the same as that of the judges appointing them. The problem then hinges not on interpreting the legislative intent as such intent is clearly expressed in Section 476.450. The problem is one of giving effect to the legislative intent. Absurdities are not attributed to legislatures unless there is no rational means of escape. State v. Board of Curators, 188 S.W. 128, 135 (1916).
As we have noted the salaries of the commissioners of the probate court are fixed by the judges and theoretically at least have no determinable certainty or uniformity. This creates an illogical and unworkable situation if an attempt is made to compute present or future benefits of such commissioners under the provisions of Section 476.450. In practical application it would place the determination of retirement benefits in the hands of the judge who sets the commissioner's salary and subsequent computations would vary depending upon the amount paid a successor commissioner. We do not believe that the legislature intended such a result.
In these circumstances it should be considered probable that the legislature in providing that the retirement amount would be as then or thereafter provided by law meant exactly that. That is, that the legislature intended that such commissioners would be entitled to retirement benefits at such time as the amount of the compensation of such commissioners is provided for by law.
Since no such compensation has been provided by law, the legislature has not, in our view, implemented the provisions of Section 476,456 and thus there is no quantitative measure with which to ascertain compensation entitlement.
We note by comparision that Section 476.515, RSMo Supp. 1971, of the new retirement sections defines "Judge" as:
. . . any person who has served or is serving as a judge or commissioner of the supreme court or of the court of appeals, or as a judge of any circuit court, probate court, magistrate court, court of common pleas or court of criminal corrections of this state or as a justice of the peace;"
Inasmuch as the above definition obviously excludes such commissioners of the probate courts, it seems clear that the legislature abandoned any desire to bring such probate commissioners under a retirement plan. Considering both plans together we see no logical reason why the legislature would include them in one plan and exclude them from the other. Notably, the new retirement plan by its definition of judges does not even include time spent in service as a probate court commissioner in determining length of service.
We believe that the above answers the remaining questions you pose.
CONCLUSION
It is the opinion of this office that commissioners of the probate courts appointed under the provisions of Section 481.115, RSMo, applicable to probate courts of counties having more than 400,000 inhabitants are not entitled to receive any compensation under Sections 476.450, RSMo et seq., which provide for the appointment of retired judges and commissioners as special commissioners or referees.
The foregoing opinion, which I hereby approve, was prepared by my assistant, John C. Klaffenbach.
Very truly yours,
John C. Danforth
Attorney General