
    STATE ex rel. ST. LOUIS COUNTY, Missouri, Relator-Respondent, v. Frank L. MALONE, (Formerly) Constable for the First Constable District, St. Louis County, Missouri, Defendant-Appellant.
    No. 50014.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.
    Rehearing Denied Dec. 9, 1963.
    William J. Becker, Joseph J. Becker, Clayton, and Lovell W. George, Clayton, for appellant.
    Norman C. Parker, St. Louis County Counselor, Joseph B. Moore, Asst. County Counselor, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

This suit and the issues involved are identical to those in St. Louis County v. Litzinger, case No. 50013, Mo. 372 S.W.2d 880. The relator St. Louis County, Missouri, filed what was designated as a “Petition for Writ of Mandamus or in the Alternative for Mandatory Injunction.” In case No. 50013, the petition was called “Petition for Mandatory Injunction.” The relief sought in the two cases is the same. The County asked the Court to order the defendant Frank L. Malone, Constable of the First Constable District of St. Louis County, to deposit in the County treasury any and all sums in his hands which came to him as deposits for constable fees. Malone, just as Litzinger in case No. 50013, did deposit in the County treasury the fees actually, earned. Malone retained any sums which were in excess of the amount earned. At trial time, Malone had an amount estimated at $1000 which he was holding to be refunded to litigants entitled thereto.

The judgment of the trial court reads in part as follows:

“ 'As in the Litzinger case, the Court feels that the simple measure of returning to the litigants or their attorneys by mail any excess deposits they had, as reflected by their books, would have been the simplest manner of disposing of the matter, and the respondent in this case has apparently been making such refunds. The amount involved here is somewhere in the neighborhood of One Thousand ($1,000.00) Dollars, indicating to the Court the respondent’s efforts in making such refunds. However, as agreed by the Stipulation of Facts in this case, there is no controversy as to the amount and the respondent has readily offered to comply with any decision o'f the Court in the event that the Court rules m favor of the relator. The respondent by his agreed statement has indicated his willingness to present any accounting to the relator that relator may desire.
“ ‘The Court therefore orders that the respondent deposit all funds now in his possession over to the Treasurer of St. Louis County, together with any ■interest accumulated thereon, if any, .all in accordance with the St. Louis County Revised Ordinances numbered 104.390, 303.010, and 303.020. Costs .against the respondent.’ ”

For reasons stated in case No. 50013, the judgment of the trial court in the case before us is hereby affirmed.

PER CURIAM.

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the -opinion of the Court.

All of the Judges concur.  