Opinion
No. 35558.
April 24, 1944.
1. CLERKS OF COURTS. Sheriffs and Constables.
The word "fees," as used in statute providing that county court clerk and sheriff shall receive same fees for attendance, and for other services, as are allowed by law to clerk and to sheriffs for like duties in circuit and chancery courts, is to be interpreted, according to its common usage, as a charge fixed by law for services of a public officer (Code 1930, sec. 699).
2. CLERKS OF COURTS.
A circuit clerk, who was also ex officio county court clerk and who was allowed by circuit court $600 "for public services not particularly provided for," was not entitled to a similar allowance as county court clerk, since, under the statute, the compensation of county clerk is confined to fees "allowed by law" for like duties in circuit and chancery courts which requires that county clerk look to fixed schedules of fees for such services (Code 1930, secs. 699, 1788(c)).
APPEAL from the circuit court of Quitman county, HON.E.H. GREEN, Judge.
T.N. Gore, of Marks, for appellant.
This case is based on a claim filed before the county court of Quitman County by the clerk for his services as clerk of the county court under Section 1788, subsection C of the Code of 1930.
The purpose of this statute was evidently to allow the clerks additional compensation for duties they might be required to perform, arising out of the very nature of the office, the clerks of the smaller counties being allowed more by the assessed valuation than those of the larger. It will be noted that it provides "for other services the same as are allowed by law for like duties to the Circuit and Chancery Clerks."
The county judge raises the question of his authority to make the allowance for these services. There is bound to be authority for some agency to make the allowance. It would not be provided that such compensation was due, without some authority authorized to make the allowance.
Van D. Stone and E.C. Black, both of Marks, for appellee.
This case is based on a claim filed by the clerk of the county court, in the county court of Quitman County, for an allowance for six hundred dollars for each of the years 1936 to 1939, all inclusive, as and for compensation for services as clerk of the county court under the provisions of Section 699 and subsection C of Section 1788 of the Code of 1930.
It is our contention that the county court clerk under Section 699 is allowed only such fees as are specifically allowed the circuit clerk as set out in the schedule of fees allowed by law under Section 1788, in fact, said section provides that the county court clerk shall be allowed the fees allowed by law, and since the compensation authorized under subsection C is not allowed by law but is allowed by order of the court and specifically provides that the circuit court may allow said compensation, the county court was not authorized to make such allowance, and if authorized such allowance is within the discretion of the court and if denied the clerk could not complain.
Ex parte Thomas, 59 Miss. 522; Hooker et al. v. Gully, State Tax Collector, 182 Miss. 36, 180 So. 65.
I think it is generally understood by the bench and bar that the legislature intended by the subsection C under Section 1788 to increase and boost the total compensation of the circuit clerk because the allowance thereunder authorized is larger in the smaller counties than in the larger counties. If this is true, this provision has served its purpose when the allowance is made by the circuit court, and the duties of the circuit clerk as county court clerk makes it possible for him to earn additional fees which add to the total compensation and in counties in which there is a county court make the total compensation of the clerk sufficient to attract competent and suitable candidates for the office.
Appellant was the circuit clerk and ex officio county court clerk of Quitman County during the years 1936 to 1939, inclusive. He was allowed by the circuit court for each of said years the sum of $600 "for public services not particularly provided for," the amount being the maximum that could be allowed in that county. After the expiration of his term, appellant filed a petition the county court praying that he be allowed a similar sum for each of said years as compensation as county court clerk, that is to say, for public services not particularly provided for. The petition was denied by the county court, and the circuit court affirmed.
Section 699, Code 1930, in the County Courts Chapter, so far as material to this case reads as follows: "The clerk and sheriff shall receive the same fees for attendance, and for other services as are allowed by law to the clerk and to the sheriffs for like duties in the circuit and chancery courts," etc. We will underline the words "fees" "allowed by law" and "in the circuit and chancery courts," and note particularly that the word fees, as used in statutes of this nature, is to be interpreted, according to its common usage, as a charge fixed by law for the services of a public officer.
It was found some years ago that the fees fixed by law for services of the circuit clerk in the circuit court, together with those fixed by law for the services which he was required to render outside of those strictly in the circuit court, were not adequate to cover all the public services which that officer was obliged to render, and did render; and successive statutes were enacted which by Sec. 1788, subsection (c), Code 1930, and as applicable to the county here involved, is in the present form: "For public service not particularly provided for, the circuit court may allow the clerk, per annum, to be paid by the county on the order of the board of supervisors, to be entered on presentation of the circuit court's order, the following amounts: In counties where the assessed valuation of real, personal and public service corporations property does not exceed eight million dollars, an annual sum not exceeding $600."
And statutes of a similar, although not exactly the same, import were enacted for the allowance of additional compensation to the chancery clerk. The present statute on that feature is Sec. 1786, subsection (y), Code 1930, and reads as follows: "For other services as clerk of the board of supervisors and as clerk of the chancery court, an allowance may be made to him, within the discretion of the board of supervisors, upon the approval of the chancellor of the district, payable semi-annually," etc.
A close examination of the quoted statutes is sufficiently informative. In the subsections there is no mention of fees in the circuit and chancery courts, but as already stated, these subsections were designed to cover services rendered to the public beyond and outside of the fixed fees. These services are many and varied in character. The subsections do not deal with fees allowed by law, but with an additional or extra compensation allowable by law, and which do not become due at all unless or until the circuit judge has determined the amount within the statutory limitation to be paid to the circuit clerk, or until the chancellor has approved the amount to be allowed to the chancery clerk.
When we turn to the above quoted statute governing the compensation to the county court clerk, who by law is the same person as the circuit clerk, it is at once to be observed that the compensation of the county clerk is, by express language, confined to the fees allowed by law for like duties in the circuit and chancery courts, which means that the county clerk must look to the fixed schedule of the fees allowed by law for services in the circuit and chancery courts, must look to the fees specifically provided for, and that no authority is given to make allowance to the county clerk as such "for public service not particularly provided for" — except that perhaps the circuit judge in determining what he will allow the clerk under Sec. 1788 (c) may take into consideration the public services by the county clerk, entirely aside from his character as circuit clerk, for which fees are not particularly provided, and which are of small comparative importance, but as to this we express no opinion, that phase of the matter not being here presented.
Affirmed.
CONCURRING OPINION.
The judgment of the court below should be affirmed, but not for the reason set forth in the controlling opinion.
Section 699, Code 1930, provides, in plain and unambiguous language, that the clerk of the county court shall "receive the same fees for attendance, and for other services as are allowed by law to the clerk . . . for like duties in the circuit and chancery courts."
Section 1788, Code 1930, provides what fees the clerk of the circuit court shall receive. One of the subdivisions of that section expressly provides that "for public service not particularly provided for, the circuit court may allow the clerk, per annum, to be paid by the county on the order of the board of supervisors, to be entered on presentation of the circuit court's order, the following amounts: In counties where the assessed valuation of real, personal and public service corporations property does not exceed eight million dollars, an annual sum not exceeding $600." Under Section 699 of the Code, that paragraph of Section 1788 thereof applies to the clerk of the county court and should be enforced as to him as if it read: "for public service not particularly provided for, the county court may allow the county clerk, per annum," etc. That the compensation for the service here contemplated is not fixed automatically but must be allowed by the court, does not remove it from the category of fees allowed by law. Except for the allowance thereof by law, the judge would have no power to fix the amount thereof. The attempted distinction here made between fees "allowed by law" and "allowable by law" is one without a difference, for all of the fees which the clerk may collect under Section 1788 are such as are allowed by law, although the amount thereof under some of its paragraphs must be fixed by order of the court.
The $600 which the county could have here allowed the appellant is not a flat sum. What the court was authorized to allow the appellant was compensation for public services rendered by him by virtue of his office not particularly provided for, not to exceed $600; and in order to determine what allowance, if any, to make, the court should have been furnished with an itemized statement of the services rendered, without which it could not determine whether the services were such as the clerk was called on to render by virtue of his office, and what amount should be allowed therefor. This information was not here furnished by the appellant to the county court.