Davis v. Adams ( 1909 )

Smith, J.,

delivered tbe opinion of tbe court.

In tbe latter part of tbe year 1903, W. R. McCutcbeon, treasurer of Yazoo county, died, and on November 16tb appellant, T. F. Davis, having duly qualified as his successor, assumed tbe duties of said office. In April, 1903, prior to bis death, being entitled thereto, McCutcbeon was allowed by tbe board of supervisors tbe sum of $805.95, commissions on moneys collected by him. Appellant claimed and was allowed by tbe board of supervisors tbe sum of $102.09 as commissions on moneys collected by him from November 6 to December 31, 1903, making a total of $1,508.04 received by McCutcbeon and Davis as commissions on moneys collected by them during tbe year 1903.

Section 2016, Ann. Code 1892, provides: “Tbe county treasurer shall be allowed two and one-half per centum on all money received by him for county purposes, except what be may receive from his predecessor in office; but when tbe amount on which be is entitled to commissions shall exceed twenty thousand dollars in any year, be shall be entitled to only one per centum on any such excess; but a county treasurer shall not receive more than one thousand dollars for his compensation.”

Section 901, Ann. Code 1892, is as follows: “If any county treasurer shall misapply, waste, or embezzle any money belonging to the treasury of tbe county, tbe board of supervisors shall forthwith cause suit to be brought on bis bond against such treasurer and bis sureties for money so wasted, misapplied, or embezzled; and such suit shall be tried at tbe return term, and shall have precedence over all other cases; and judgment shall be entered therein for double the amount found to have been wasted, misapplied, or embezzled.”

Claiming that appellant Davis had received and withheld tbe sum of $508.04 more than be was entitled to as commissions, and refund thereof having been refused, this suit was instituted by appellee to recover the statutory penalty prescribed by section 907, Ann. Code 1892. From a decree directing appellant to pay to appellee the sum of $1,016.08, double the amount claimed to have been withheld and misapplied by said appellant, this appeal is taken.

The contention of appellants is that, when the office of county treasurer is filled by more than one incumbent during any one year, each incumbent may receive full commissions on money collected by him, even though the aggregate amount paid to all of them exceeds the amount of $1,000; that each successive incumbent may receive commissions on all money collected by him, not to exceed, in each instance, $1,000. This position is not tenable. Under the statute, the amount of commissions which can be allowed for handling the public money of a county cannot exceed $1,000 in any one year. In other words, for the services of a treasurer in receiving money for county purposes, there cannot be paid in any one year a greater sum than $1,000. Barnes v. Red Willow County, 62 Neb. 505, 87 N. W. 319. The statute is plain; but even if it were ambiguous, we must give it that construction most favorable in the state.

The fact that this excess in commissions was allowed appellant by the board of supervisors can afford him no relief; for the board’s action was ministerial, and not judicial. Howe v. State, 53 Miss. 57. The case of Adams v. Coker, 85 Miss. 222, 37 South. 744, to which we have been cited by counsel, has no application here. Even if it should be held that the retention of this excess in commissions must have been willful before the penalty could attach, as to which we express no opinion, the act of appellant here was willful. However honest, and he undoubtedly was honest, in his intentions, he did the very thing which he intended to do, the doing of which is- prohibited by the statute.

The decree of the court below is therefore correct, and is afformed.