Callaway County v. Henderson , 119 Mo. 32 ( 1893 )

Black, P. J.

The defendant James D. Henderson was the duly elected and qualified clerk of the county court of Callaway county for two official terms of four years each, extending from the first Monday in January, 1883, to the first Monday in January, 1891. On the sixth of April, 1891, the prosecuting attorney filed a motion in the county court to require Henderson to account for fees received during both terms. At the time of filing the motion Henderson had filed no statement of fees received for the last quarter of 1890. He appeared in the county court and in answer to the motion filed an abstract of his accounts, showing the fees received by him, and the amounts paid out to hi& deputy and assistant during the year of 1890.

The county court, on the hearing of the motion, took up the statements filed by the clerk during the four years of the last term, and found the clerk indebted to the county for each year, except the last one; but the court refused to go over the statements filed during the first term. From the judgment entered on this finding the prosecuting attorney appealed to the circuit court.

On the trial of the cause in the circuit court, the prosecuting attorney offered in evidence the different statements made by the clerk during the seven years prior to 1890. The court, on an inspection of the statements or reports and the orders of the county court approving them, held that the orders of approval were judgments, and therefore conclusive as between the county and the clerk, and for this reason excluded the statements, to which ruling the prosecuting attorney excepted. The prosecuting attorney then read in evidence the quarterly statements for 1890, including the abstract of accounts before mentioned. On this and some other evidence the court found that. Henderson had received during the year 1890, fees to the amount of $3,125.52; that he had paid for deputy clerk services $700, and to an assistant the further sum of $550; that he was entitled to $1,500 for his own services, and ordered him to pay the excess of $375.52 into the county treasury. Erom this judgment Henderson appealed to this court.

1. The prosecuting attorney insists here that the orders made by the county court approving the various quarterly statements were not judgments; and that the circuit court should have reviewed the accounts for the eight years, and determined what, if any, amount the clerk collected in each year, in exc'ess of that allowed by law.

It is to be observed in the first place that these statements rendered prior to that year 1890, are not found in the record ■ before us. All we have is the statement that they were offered in evidence. But a full and complete answer to all of these claims of the prosecuting attorney is that the county did not appeal from any of the rulings of the circuit court. It is true the prosecuting attorney during the trial saved exceptions to the ruling of the court, in excluding the statements for the seven years prior to 1890, but ho filed no motion for a new trial and took no appeal. The' county has nothing in this record iipon which to base any complaint. Whether the orders, or any of them, made prior to 18§0, approving the statements, are to be deemed ju dgments is a question with which we have no concern on this appeal. We are, on this record, only' concerned with the adjustment of the accounts for 1890.

2. Coming now to the appellant’s case, it is proper to say we shall notice only those points urged on the argument; for the other points made in his briefs were in express terms abandoned.

The first claim is that the circuit court erred in not allowing the clerk an item of $400. Article 4 of chapter 45 concerning “county treasurers and county warrants” makes it the duty of the county clerk to keep regular accounts between the treasurer and the county, and to perform various other duties. Section 3207 of that article provides: “The court shall allow the clerk of the county court, for his services under this article, such compensation as may be just and reasonable.” For services rendered in 1890, under said article 4 of chapter 45, the county court allowed the clerk $400. 'He now insists that he has the right to retain this amount in addition to the $1,800 specified in section 5010, Revised Statutes, 1889.

Section 5010 is a part of chapter 64, being the act relating to fees. It provides: “The aggregate amount of fees that any clerk under this chapter shall be allowed to retain for any one year’s services shall not in any cáse exceed the amount hereafter set out. * * * In all Qounties having a population of twenty thousand and less than thirty thousand persons, the clerks shall be permitted to retain $1,800 for themselves, and to be allowed to pay for deputies and assistants not exceeding $1,000.’7

The point of the appellant’s contention is this, that the words, ‘‘the aggregate amount that any clerk under this chapter shall be allowed to retain for any one year’s services” mean the fees specified in other sections of that chapter, and do not include the fees allowed'by some other statute, and that therefore the clerk has the right to retain the $400 in addition to the $1,800.

We do not agree to such construction of those words. The preceding section (5009) makes it the duty of clerks of courts of record to render to the county court quarterly statements of fees received and salaries paid to deputy clerks and assistants. Such statements must include “all fees for all services of whatever character, done in his official capacity,” and it is then made the duty of the county court to examine the statements and allow the necessary clerk and deputy hire, “not exceeding the amount allowed by the next succeeding sections” and deduct the sum “from the aggregate amount received by the clerk,” and,, if there is an excess in his hands over the “sums specified .in the next section succeeding,” to order the excess to be paid into the county treasury.

From this section it is plain the clerk must report all fees for all services rendered in his official character; and it is equally clear that he can only retain for himself $1,800. It is true section 3207 speaks of compensation, the amount to be determined by the court, while section 5009 speaks of fees; but' the word fees as here used includes the compensation mentioned in the other section. “Fees are a reward or wages given to one as a recompense for his labor and trouble for the execution of his office or profession, as those of an attorney or physician. ” 7 Am. and Eng. Encyclopsedia of Law, p. 819-, Bouvier’s Law Dictionary. Our conclusion is that the clerk is not entitled to the $400 in addition to the $1,800. The latter amount is all that he can retain, no matter under what law the receipts of his office were earned.

3. The acts of the twenty-first of March, 1883, of the thirtieth of March, 1887, and of the twelfth of April, 1889, all limit the amount of fees which a clerk may retain for one year to the sum of $1,500, and the amount which he may pay out for deputies and assistants to $1,250, in counties of the population before mentioned. Under section 8, of article 14, of the constitution, the compensation of the clerk cannot be increased during his official term. The amounts,, therefore, which he may retain for 1890 are $1,500 for himself and $1,250 for deputy hire.

4. The record shows that the appellant received during the year 1890, $3,125.52. He should be allowed for his own services $1,500; for deputy and assistant hire, $1,250; and $177.25 paid by him into the county treasury, leaving in his hands only $198.27. The judgment is, therefore, reversed and the cause remanded,

Baeclay, J., absent. The other judges concur.