4 Colo. App. 301 | Colo. Ct. App. | 1894
delivered the opinion of the court.
The plaintiff in error was county clerk of Pueblo county. On March 7, 1892, he presented to the board of county commissioners of that county, his bill for services as clerk of the board, for seventeen days in January, and twenty-four
The arguments of counsel are, for the most part, addressed to the interpretation of the general laws relating to the office of county clerk, and of the Salary Act of April 6, 1891. (Session Laws, 1891, p. 307). This act, which is entitled “ An Act to Provide for the Payment of Salaries to certain Officers, to Provide for the Disposition of certain Fees,” etc., Avas passed in pursuance of section 15 of article 14 of the Constitution, and substantially carries out its provisions and requirements. It is provided by section 12 of the act that the county clerks in the several counties shall receive as their only compensation for their services, an annual compensation, to be paid out of the fees and emoluments of their respective offices, actually collected, and not otherwise; which compensation or salary is, in counties of the second class, fixed at $3,500. Pueblo county is made by the act a county of the second class. Section 22 requires all fees collected by the several officers named in the act to be paid over to'the county treasurer, to be kept by him in separate funds, appropriately designated; the fees so paid by the county clerk to be known as the “ County Clerk’s fee fund.” The salary of each officer is to be paid out of his own fund and no other; and any balance left to the credit of any fund, after the salary for the year is paid, goes into the general county fund. Section 573, and the sections following, of the General Statutes of 1883, relate to the office of county clerk, and define his duties. He is ex offi.eio recorder of deeds, and clerk of the board of
Counsel for plaintiff, in an argument which may be said to possess the merit of ingenuity, contends that the county clerk holds three offices, namely, those of county clerk, clerk of the board of commissioners, and recorder of deeds; and that the salaiy to which he is limited by section 12 applies to him only as county clerk, leaving him the right to independent compensation for his services in his other two offices. Counsel, in undertaking to separate the clerk of the board of commissioners and the 'recorder of deeds from the county clerk, and from each other, has, we think, misconceived the law. The county clerk holds but one office. He discharges the duties of clerk of the board, and recorder of deeds, ex officio. These services are required of him solely by virtue of his office of county clerk. The law imposes these duties upon the county clerk, and the fees and emoluments which arise from their performance are the fees and emoluments of his one office. They are required by law to bo paid over to the county treasurer; and the salary, payable out of his fee fund, is the only compensation to which the county clerk is entitled for all the services with which his office is charged.
For his services as clerk of the board of commissioners the law allows the county clerk a fixed sum per diem ; and counsel ai'gues that charges for these service are not fees, but are in the nature of a salary, receivable by him for special services, which he is nowhere specifically required to pay into the treasury, and which he is therefore entitled to, in addition to the salary mentioned in section 12; and he finds an absurdity in the idea of the clerk collecting money from the county, paying it back to the county, and then receiving it again from the county. The difficulty which counsel has
But the condition upon which the board of commissioners approved the bill was unwarranted. The amount charged by the plaintiff for his services as clerk of the board was payable to him absolutely, and the board had no authority to annex to its payment a condition that it be paid into the treasury, or any other condition whatever. The Salary Act
The plaintiff’s bill should have been unconditionally allowed, and the amount paid to him ; and if he had failed or refused to pay it into the treasury, as the law requires, then the commissioners could have instituted the necessary and proper proceedings for the protection of the county.
Upon the facts the plaintiff was entitled to judgment, and because it was given against him, it must be reversed.
Reversed.