Barrett v. Board of County Commissioners , 109 Kan. 685 ( 1921 )

The opinion of the court was delivered by

Porter, J.:

During the year 1917-’18 Nelle Barrett held the office of register of deeds in Montgomery county. After the expiration of her term she brought this action against the county to recover one-half the excess fees of the office, under the provisions of chapter 193 of the Session Laws of 1917. The court gave judgment in her favor in the sum of $1,896.30, but deducted from her half of the excess fees the sum of $1,245.50 which had been paid for additional clerk hire. Claiming that this ruling of the court was erroneous, she brings the case here for review.

The case was submitted to the trial court substantially upon an agreed statement of facts. The amount plaintiff was entitled to recover depends upon the construction of certain language in the last clause of section 1 of the act of 1917. The language was construed in Voris v. Cowley County, 103 Kan. 876, 176 Pac. 976. The provision is in substance that whenever the fees collected by the register of deeds and paid over to the county treasurer for any quarter exceed the amount of salary and clerk hire paid to him for the quarter, he shall receive “as clerk hire in addition to the clerk hire heretofore provided an amount equal to one-half of sueh excess.” In the opinion in the Voris case this language was held to be “quite ambiguous,” but because of the “evident general policy of the section taken as a whole, to grade the personal compensation of the officer, not alone by the actual labor he performs, but also by the extent of responsibility he assumes, as measured by the volume of business transacted — a policy the fairness of which is obvious,” the court held the language to mean that where the fees collected in any one quarter exceed the quarterly salary and the amount allowed as clerk hire, the officer is to receive for his own benefit one-half of the excess, “the phrase ‘as clerk hire’ meaning in the nature of clerk hire, or in lieu of clerk hire, implying merely that if an additional clerk is employed he must be paid by the register.” (p. 879.)

The opinion then proceeds:

“This interpretation having been placed upon the words directly in dispute, the final clause of the section supplements it by providing that while one-half of the excess fees shall in any event inure to the personal benefit of the register, the commissioners may in their discretion allow any part of the remainder which they see fit to be used for the employment of additional clerical help.” (p. 879.)

In the present case the minutes of the board of county commissioners establish beyond question that the board exercised its discretion and employed additional clerks who were paid the sum of $1,245.50 on verified bills presented by them to the county clerk, the bills being allowed by the commissioners and paid by the county. It is true, as the appellant argues, that if the salaries for additional clerical help were to be paid by the register, there would be no reason why the commissioners should limit her in the number of additional clerks to be employed and the amount of their salaries.

The main contention of appellee is that an official may not present a claim for part of the salary due, making no claim for the balance until after the term of office has expired, and then maintain an action against the county for the balance. The contention is that by attempting to do this the appellant was splitting her cause of action. The amount of appellant’s salary each month was fixed by the statute, while any claim she might have for excess fees was contingent upon the amount collected in excess of her salary and clerk hire in each quarter. Her claim for salary and that for excess fees were not one single cause of action. Her right to excess fees was in no sense involved in the settlement at the end of each month.

Another contention of the appellee is that appellant is not entitled to recover because the act of 1917 was amended by chapter 198 of the Laws of 1919 by the provision that—

“If any register of deeds has collected fees allowed as clerk hire under the present law, such amount shall be deducted from any salary claimed under this act, and a cause of action shall accrue to the county for the recovery of such fees if the officer is out of office.”

Before the passage of the act of 1919, the appellant’s term of office had expired. When the services were performed,.she had a vested right to one-half the excess fees as provided by the act then in force, and, without attempting to construe the purpose of the legislature in the amendment of 1919, it is sufficient to say that the amendment cannot be given a retroactive effect so as to deprive the appellant of her vested rights.

The appellant was entitled to one-half of the excess fees and it was error to deduct from her claim the $1,245.50 which the county paid for clerical help employed by the commissioners. The judgment is reversed with directions to proceed accordingly.