84 Mo. 74 | Mo. | 1884
Lead Opinion
This action is on the official bond of Wm. Z. Hickman, as county clerk of Jackson county, for the term of four years, beginning the first Monday in January, 1879. It is against Hickman and his sureties, to 'recover the amount of fees of the office alleged to have been wrongfully retained by said Hickman. The petition is in the usual form, and contains two counts, •the first for $4084.48, fees .charged to have been wrongfully retained by Hickman out of the receipts of his office from the first Monday in January, 1879, to the thirty-first day of October, 1879, both inclusive; which amount, it is alleged, was ascertained by the county court on an examination of said Hickman’s reports covering that period, to be in excess of his salary at the rate of $2500 per annum, and the clerk hire allowance made Mm by said county court, and that he was ordered by said county court to pay into the county treasury such excess of fees in his hands, to-wit: $4084.48,- which he has refused to do. The second count is to recover fees to the amount of $823.72, alleged to be the excess of the' amount of the fees of the office for the year from November 1, 1879, to November 1, 1880, ascertained by the county court as in the other case, and ordered to be paid by said Hickman into the county treasury, and not by him paid.
The answer admits the allegations of the petition as to the giving of the bond, its condition, etc., and says that the county court on a re-examination, in January, 1881, of said Hickman’s annual reports from 1875 to October 31, 1879, after deducting from the receipts of Ms office his salary computed at the rate of $2500 per annum and the allowances for clerk hire, found there was due the county said sum of $4084.48. That in said reports, by the mistake of said Hickman, were e mbraced sums
The reply is that the $1318.75 and $306.03 were received by Hickman in his official capacity .for services
This stipulation was given in evidence: “It is hereby agreed by the parties herein, in addition to the facts admitted by the pleadings in this case, that the services rendered by the.. defendant, Wm. Z. Hickman, for the Kansas City, Independence, and Westport school boards, as set out in defendant’s answer, were performed by the deputy county clerks of said Hickman, and during office hours.”
The cause being submitted to the court sitting as a jury, appellants asked declarations of law on the theories advanced in their answer, all of which the court refused. The court found for the plaintiff, and assessed the damages on the first count at $4084.48, and on the second count at $517.69, allowing the credit of $306.03 as prayed in the answer. Judgment was rendered for the amount of the penalty named in the bond, $5,000, and costs; execution to go for the amount of damages assessed, $4602.17, with interest at twenty per cent, per annum from date of judgment, and costs. Motions for new trial and in arrest being overruled the cause was appealed to this court.
1. By the act of March 30, 1874, in relation to courts of record (Acts 1874, pp. 63, 64), the county clerk of the county of Jackson was entitled to retain annually out of the fees of his office two thousand five hundred dollars, and, in addition, such sum as the county court should allow for necessary clerk hire; and any funds then remaining from such fees were to go into the county treasury. This .law was revised and amended in 1879, and as revised and amended is to be found in the Revised Statutes, section 5626 to section 5630. An important change in the law consists in a reduction in the amount which the
The general rule certainly is that an act purporting to revise and amend another act and embracing its subject matter, whether old provisions are retained, excluded, or modified, and whether or not new provisions are incorporated, does by necessary implication, if not in express terms, effect the repeal of the old law, unless a different purpose is manifested. It is clear enough that the legislature did not intend that the old section two should be repealed before the new section 5627 should become the law. In section 3160, Eevised Statutes, it is provided that: “All acts of a general nature, revised and amended and re-enacted at the present session (1879) of the general assembly, so soon as such acts shall take effect,, ¡shall be taken and construed as repealing all prior
2. Did the court err in refusing to allow, as a credit, the $1318.75 received in 1875, 1876, 1877, and 1878, for services rendered for the school districts ? The services so rendered did not belong to the duties of the office of county clerk. Tlie school directors were charged with the duty of performing them (acts 1875, p. 144; R. S., sec. 7049). Hickman could not be said to have obtained this money as county clerk, and the receipts were not such as could be denominated fees of the office. But in this case the $1318.75 was earned by the deputy county clerks, as the parties agree, during office hours. These deputies were paid out of fees which, if. not 'paid to them, would have gone into the treasury. of the county. There is nothing in the record to show whether or not more was allowed by the county court for clerk hire during these years of 1875, 1876, 1877, and 1878, than it must have been necessary to allow, if the time of the deputies, during office hours,-had not been devoted, in part, to the performance of the labors that brought the aggregate of $1318.75 into the hands of Hickman. These receipts were for the four years prior to the execution of the bond sued on. It cannot, therefore, be objected that the
3. The exercise of the functions of appellant, Hickman’s, office put into his hands the $120.75, for which, as by mistake on his part reported, credit was asked. Section 5626. What the officer, as such, earned and received was properly regarded by the court as constituting a portion of the fees of the office.
Dissenting Opinion
Dissenting. — I concur in the opinion in this case, except as to its conclusion concerning the item of $1318.75. This suit was on Hickman’s official bond to recover money alleged to be due the county for .“fees for all services of whatever character, done in his official capacity,” etc., received by him over and above what is allowed by law. Sec. 5626, R. S. 1879. The state can recover nothing more. The securities on his bond are liable for nothing more. It is admitted that this item was not received by him in his official capacity. The plaintiff’s petition in the two counts where these items are claimed, are identical, and the answer to each count is identical. In the one, the three hundred and six dollars item, the court below allowed the credit. In the other it is refused. The thirteen hundred and eighteen dollars item arose under an old bond, and if Hickman is liable for this sum his bondsmen on the bond in suit were not. It required no further evidence as to the $1300 item than the written stipulation that this certain sum was not received by Hickman in his official capacity. The county is not legally entitled to this money and ought not to recover it. In my opinion Hickman and his securities ought to have credit for $1318.75.