| Mo. | Oct 15, 1888
This case is here on defendants’ appeal from the action of the circuit court in overruling - their demurrer to the petition and rendering judgment for plaintiff. The sole proposition which the record presents for our determination is this, viz. : Can the fees earned by a circuit clerk, each year he was clerk, though' not collected in the year they were earned, be applied when collected to the payment of his salary as clerk, and for deputy-hire, as fixed, by law ? An affirmative answer to this proposition affirms, and a negative answer reverses, the judgment of the circuit court.
The solution of the question propounded depends on the constitutional and statutory provisions hereinafter referred to. Previous to the adoption of the constitution of 1865, the clerks of circuit courts were entitled to receive, without limit as to amount, all fees earned by them, whenever collected. By section 24, article 6, of the constitution of 1865, this right was so limited and restricted as to forbid such a clerk from applying to his own use from the fees and emoluments
To carry out this constitutional provision the legislature, in the Acts of 1868 (p. 54), provided that the clerks of the several courts, at the end of each year, should deliver to the judge or judges of their courts a statement in detail, under oath, showing the aggregate amount of all official fees received by them as clerks during the year last past. By this' act, it is made the duty of the courts to examine such statement, and if the same exceed the sum of twenty-five hundred dollars, after deducting such sum or sums for assistants and deputies in his office as the court may allow, to order the clerk to pay the surplus into the county treasury. In 1874, the said act of 1868 (R. S. 1879, secs. 5626, 5627) was so amended as to require clerks of courts of record to make quarterly returns to the county courts. It was further amended by classifying the counties according to population, and fixing the amount that the clerks in each class of counties should be permitted to retain, and allowed to pay deputies and assistants.
In 1883 (Acts 1883, p. 93) the act of 1874 was amended, increasing the amounts authorized to be retained by clerks for deputy-hire. The obvious intent of the constitutional and statutory provisions above referred to was to fix the annual compensation which a clerk of a court of record might receive out of the fees ' and emoluments of the office, and the amount of such fees which he might appropriate to the payment of deputies and assistants. If the fees of the office of clerk annually earned by him amounted to a sum sufficient to
The question as to whether one of these trusts would be to supply any deficiency in the receipts of a former year to cover expenses and salaries was neither before the court nor decided in that case. If the annual fees earned by a clerk, as is held in the case above cited, are chargeable with a trust in favor of such clerk to the extent of his salary and the compensation allowed his deputies, it logically follows that whenever collected they should be applied to the discharge of that trust. This deduction is consonant not only with reason but the justice of the case. Under any other ruling a clerk might in a given year earn in fees a sufficient amount to pay his salary, and be deprived of a large part of it if he failed to collect the whole of the fees so earned either because earned in suits which were not determined during the year or from any other cause.
The views above expressed return an affirmative answer to the proposition stated, and result in an affirmance of the judgment, and it is hereby affirmed.