White v. Fox, 22 Me. 341

White v. Fox

22 Me. 341 | Me. | 1843

The opinion of the Court was afterwards prepared by

Sherley J.

— This is an action of debt brought by the Treasurer of the State against Charles Fox, formerly clerk of the Judicial Courts in this county, and his sureties, on his official bond. It appears from the agreed statement of the facts, that Mr. Fox was appointed clerk, and that he entered upon the performance of his duties on April 28, 1841, and that he continued to hold the office and to perform the duties until Jan. 26, 1842.

The statute, which authorized the appointment, c. 90, § 1, provided, that the person appointed should be clerk of all the Judicial Courts. The second section provided, that the clerks should “ keep a true and exact account of all the moneys they .shall receive by virtue of their office, and shall on the first *344Wednesday of January annually, render to the treasurers of the respective counties, under oath, a true account of the whole sum thus by them received.” Mr. Fox rendered his account to the treasurer of the county on January 5, 1842, of fees received as clerk of all the Judicial Courts for the past year; but did not include therein the fees received by him for services performed by him as clerk of the County Commissioners. It is contended, that they ought not to have been included, because his appointment as clerk of the Judicial Courts did not include that clerkship ; and that those fees were not received by virtue of his office. It is true that by virtue of that appointment and commission only, without the aid of the law, he would not become the clerk of the County Commissioners. But in the act providing for their appointment, c. 500, 2, it is declared, “and the clerks of the Judicial Courts within the several counties shall be clerks of the County Commissioners.” And in the Revised Statutes, c. 99, § 9, is a like provision, that, “ the clerk of the Judicial Courts in each county shall be the clerk of the Commissioners.” He was therefore entitled to perform the duties and to receive pay as clerk of the Commissioners, because he was clerk of the Judicial Courts, and without doing it, by virtue of holding that office, he could lawfully have done neither. By virtue of the above statute provisions those duties became part of the regular and established duties of the office ; and are therefore quite distinguishable from the duties of another office, such as the register of deeds, which the clerk in case of a vacancy is required to perform for a limited time only; not as a part of his own duties as clerk, but as the duties of the vacant office. The compensation, which he received as clerk of the Commissioners, could have been lawfully claimed and received by virtue of his office, and only by virtue of it; and the money so received should have been accounted for to the county treasurer.

It is also contended, that he ought not to have accounted for any fees or compensation not provided for in the fee bill; and that the amount received in payment for making dockets *345and indexes was not received by virtue of the office, but as an individual employed to perform that business. Clerks may by virtue of their office claim and receive for fees more, than the law allows ; but it appears to have been the design of the law, and such is its language, that they “ shall keep a true and exact account of all the moneys, they shall receive by virtue of their office.” The only question therefore is, whether the amount received for doing that business was received by virtue of the office. The statute provides, that the clerk “shall have the care and custody of all the records, files and proceedings,” and that he “ shall do and perform all the duties, services, acts, matters and things, which he as clerk of either of said Courts ought by law to do and perform.” The statute does not profess to enumerate every duty which the clerk ought by law to perform ; or in the fee bill to annex a compensation to every such duty. The omission thus to provide for a compensation for the performance of many duties, well known to have been always performed by the clerks, does not indicate an intention on the part of the legislature, that they should not continue to be performed by them as a part of their duties of office ; or that they should be specifically paid for them, or for their daily attendance in Courts. All these matters were doubtless expected to be compensated by the fees, which are allowed for other duties. And hence it will be perceived, that it is very short sighted legislation to reduce the fees of such officers to the sums, which would only be a reasonable compensation for the performance of each act named in the fee bill. For the duties of the clerk are much more extensive and burdensome, than these would be. Many of Ms duties are not named in the statutes, but are imposed by the common law, which regards him as the assistant and servant of the Court, to enable it to perform its duties with more facility, economy, and usefulness to the citizens, as well as to make a record of its proceedings. Among other duties not enumerated in the fee bill he is required to examine the returns upon the venires and to make out a list of the jurors, to call and swear them, to take their verdicts, to impanuel them for the trial of persons *346accused of offences, to read the indictments, to produce papers from the files, to make out a list of the actions, or docket, for the use of the Court with an index and a notice of what has been the disposition of each action at the former terms of the court, to make indexes to the records, and to perform various other matters. These matters, although not named in the fee bill, are matters properly appertaining to the duties of the office of clerk; and the amount received for the performance of them must be considered as received by virtue of the office. And the larger portion of the amount contained in the accounts allowed by the County Commissioners should have been included in the account rendered to the county treasurer. If there should be any difficulty respecting the amount, it may be determined on a hearing in chancery.

But it is contended further, that as the act, under which he was appointed clerk, was among those enumerated as repealed by the Revised Statutes, that his former appointment as clerk terminated on. the first day of August, 1841; and that the accounts should commence anew from that day upon a new appointment.

The fourth section of the repealing act provides, that “ all the provisions of the laws” repealed, “ which are contained in the Revised Statutes, shall be deemed to have remained in force from the time when such previous laws began to take effect, so far as they may apply to any office or trust, “ notwithstanding the repeal of the statutes.” The provision of the statute, c. 90, for the appointment of clerks, and most of its other provisions, are contained in c. 100, of the Revised Statutes. The first section of ihe chapter last named provides, that “ the clerks now in office shall continue to hold their offices according to the tenor of their respective commissions.” The effect of these provisions, considered together, is to continue the clerks in office in the same manner, as if the Revised Statutes had not repealed the former act. It is not indeed repealed so far as it respects the office of clerk. There is therefore no just reason for contending, that there was a new appointment made by law on the first day of August, 1841. *347And of course the accounts should not commence anew on that day.

It is also contended, that the sureties were discharged by a clause in the Revised Statutes providing that “ in case he shall neglect or refuse to pay over any sum, for which he is accountable under the provisions of this chapter, he shall pay interest thereon at the rate of twenty-five per cent, by the year until paid.” The sureties were bound for the faithful performance of the duties of the office, that is, for the faithful performance of such duties, as the laws for the time being should require to be performed by the clerks of the judicial courts. If the sureties on the official bonds of persons holding offices created by law, and the duties of which are prescribed by law, were to be discharged by every change of the law relating to the duties, it would in these days of over frequent change, be to little purpose to trouble the officers to obtain sureties. There, is little of similarity between such cases, and those arising out of offices or trusts, whose duties are assigned or regulated by contract.

Defendants are to be defaulted.