62 Neb. 505 | Neb. | 1901
Albert 1-T. Barnes, at the general election held, in November, 1893, was elected county treasurer of Red Willow county for the term of two years commencing on January 4, 1894. He duly qualified, entered upon and discharged the duties of said office from said last named date until .March 24, 1894, when lie died, and his successor was appointed. Barnes earned as fees on moneys collected by him while in office $915.14. He was allowed a deputy at a salary of $700 per annum. Out of said fees he paid his deputy as compensation for his services $175 and retained the balance, $740.14. Letters of administration were granted upon the estate of said Barnes, and Red Willow county filed a claim against said estate for the sum of $240.14, on account of moneys retained by Barnes as fees in excess of the amount allowed by law. That claim was disallowed by the county court, an appeal Avas prosecuted by the county to the district court, where the county filed a petition to Avhich a general demurrer Avas interposed. The demurrer was overruled and judgment was rendered in favor of the county for the amount of the claim. The petition contains no averment of the amount of fees the office of county treasurer earned by Barnes and his successor for the year 1894 nor any statements of facts shoAving that the fees collected by both aggregated more than $2,000 for the year 1894. For the -lack of these averments it is argued that the petition is fatally defective and fails to state a cause of action in favor of the county.
Section 20, chapter 28, Compiled Statutes, 1893, follows: “Each county treasurer shall receive for his services the folloAving fees: On all moneys collected by him for each fiscal year, under three thousand dollars, ten per cent. For all sums over three thousand dollars and under five thousand dollars, four per cent. On all sums over five thousand dollars, tAVO per cent. On all sums collected, percentage shall be alloAved but once; and in computing the amount collected, for the purpose of charging percent
The provisions of the foregoing section are clear and free from any ambiguity. They fix the fees or compensation of the county treasurer. If the section stood alone npon the statute book, there could be no room to doubt that a county treasurer would be entitled to retain and keep as his own all fees by him earned. But said section 20 is to be construed in the light of section 42 of said chapter 28. It provides “that every * * * county treasurer * * * whose fees shall in the aggregate exceed the sum of * * * two thousaud ($2,000) dollars * * * per annum, shall pay such excess into the treasury of the county in which they hold their respective offices. * * * And provided further, That if the duties of any of the officers above named in any county of this state shall be such as to require one or more assistants or deputies, then such officers may retain an amount necessary to pay for such assistants or deputies, not exceeding the sum of seven hundred ($700) dollars per year for each of such deputies or assistants, except in counties having over seventy thousand (70,000) inhabitants, in which case such officer may retain such amount as may be necessary to pay the salaries of such deputies or assistants as the same shall be fixed by the board; but in no instance shall such officers receive more than the fees by them respectively and actually collected,” etc.
Reversed and remanded.