In re Appeal of Rice

AILSHIE, J. The only question to be determined on this appeal is whether or not the fees collected by the public administrator in administering upon estates under appointment and in the capacity of public administrator must be turned [308] in to the county or may be retained by him for his personal and individual benefit. Section 6 of article 18 of the constitution makes the county treasurer ex-officio public administrator. Chapter 13 of title 10 of the Code of Civil Procedure of 1887 prescribes the duties of the public administrator. By the provisions of that chapter he is required to give a separate bond in a sum not less than $2,000, conditioned as other official bonds; and section 5681 makes it his duty to take charge of certain estates therein enumerated without appointment and to administer same forthwith (section 5682). Section 5351, Revised Statutes, prescribes the order in which various persons and classes of persons are entitled to administer upon estates of deceased persons, and names the public administrator as ninth in order. An examination of the constitution and the various statutory provisions makes it clear to us that the county treasurer has certain official duties to perform and discharge as public administrator, and it is equally as clear that any fees or compensation received or collected by him for the discharge of such duties are necessarily received in his official capacity and chargeable to him in the same capacity. The fifth amendment to the constitution, being the amendment to section 7 of article 18, provides that all county officers and their deputies shall receive as “full compensation for their services fixed annual salaries to be paid -quarterly out of the county treasury as other expenses are paid.” The same section further provides that; “All fees which may come into his hands from whatever source over and above his actual necessary expenses shall be turned into the county treasury at the end of each quarter. He shall, at the end of each quarter, file with the clerk of the board of county commissioners a sworn statement accompanied by proper vouchers, showing all expenses -incurred and all fees received, which must be audited by the board as other accounts. ’ ’ Section 9 of article 18 makes it a felony for any county officer to neglect or refuse to comply with the provisions and requirements of section 7. Section 1 of the salary act of 1899 (Sess. Laws, 1899, p. 405) is a substantial reiteration of the [309] constitutional requirements hereinbefore referred to, and especially provides that the salaries of the various county officials shall be full compensation for the discharge of all their official duties and services. We have no hesitancy, therefore, in holding that all fees and compensation received by the public administrator as such, and in his official capacity, must be accounted for by such officer, and are chargeable against him by the. county. In the case at bar it is stipulated that the officer “collected various fees for services performed by him under appointments made by the probate court, which said appointments were made because he was public administrator, in administering upon divers estates of deceased persons by virtue of such appointments.” It will be seen from the stipulation that the appellant admits in this case that he has received fees and compensation in his capacity as public administrator. It therefore becomes unnecessary for us to determine in this case as to whether or not the public administrator is'in fact entitled to charge and collect fees for administering on estates. We do hold, however, that he must account to his county for any and all fees which he has collected as such officer. The same course of reasoning adopted by this court in Hillard v. Shoshone County, 3 Idaho, 107, 27 Pac. 678, Guheen v. Curtis, 3 Idaho, 443, 31 Pac. 805, Ada County v. Gess, 4 Idaho, 611, 43 Pac. 71, and Ada County v. Ryalls, 4 Idaho, 365, 39 Pac. 556, is applicable in the case at bar. Counsel for appellant has placed considerable stress upon the fact that one who is holding the office of county treasurer might, under section 5351, Revised Statutes, become entitled to administer upon an estate by reason of the relation he sustained to the deceased person and in preference to his right as public administrator, and that in such event he could not be required to account for the fees and compensation received in the course of such administration. That question does not arise in this ease, and we do not feel called upon to discuss it here. It is- worthy of note that in every instance, except that of public administrator, it is necessary to petition the probate court for appointment, and give public notice and have a time fixed for hearing on the [310] application, and, after appointment is made, bond must be given. On the other hand, none of these things are necessary to entitle the public administrator as such to administer. It will be observed from section 5682, Revised Statutes, that letters may issue without notice, and that it is not even necessary for the public administrator to file an oath in each case. The judgment must be affirmed, and it is so ordered. Costs awarded to respondent. Stockslager, C. J., and Sullivan, J., concur.