Gray v. Matheny

Wood, J., (after stating the facts.) The legislature of 1895 passed an act entitled “An act to fix the fees and salaries of the county officers of Independence county.” So much of the act as- is necessary to consider in the decision of the present suit is as follows: “See. 2. * * * The fees and emoluments of the treasurer of Independence county, Arkansas, shall not exceed the sum of eight hundred dollars per annum, and out of such sum he shall pay such deputies and assistants as may be required to discharge the duties of said office; * * * Provided, further, that nothing in this act shall be so construed as to give any officer more than the fees and emoluments arising from his respective office. “Sec.' 3. That it shall be the duty of * * *' the treasurer of Independence county, Arkansas, to charge and collect the same fees as are now allowed by law, * * * and they shall each, on the first day of the regular term of the Independence county court of Arkansas, file a report in said court showing the amount of all fees and commissions collected by them, respectively, and make settlement with said county court by paying in all amounts in excess of the amounts of salai’y due each one of them to that date into the county treasury of said county, and file the treasurer’s receipt therefor, as a voucher in said settlement, and in such settlement said officers, as aforesaid shall be chargeable and liable for all fees and commissions that it was the duty of said officers to charge and. collect, whether the same was collected or not. “Sec. 4. That at each and every settlement made by an officer of Independence county, as aforesaid, he shall pay over to the treasurer of said county, in kind, the funds received by him in excess of his salary, and shall file his affidavit with the county court of said county that said settlement is true, just and correct, that he has faithfully pei’formed his duty as prescribed in this act.” ' . (Sec. 5 requires the keeping of a public record of fees and commissions by each officer.) “Sec. 6. That if any of said officers of Independence county, Arkansas, shall fail to make his settlement with the county court of said county, or to pay the excess into the county treasury of said county, at each term of the court, as above required, unless for good cause such settlement be continued by order of the court, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof in the circuit court, shall be fined in any sum not less than one hundred dollars nor more than one thousand dollars, and be removed from his office. “See. 7. That all moneys paid' into the treasury arising from said fees and commissions in Independence county, Arkansas, shall be covered into the general revenue of the county.” What we have said in Independence County v. Young, ante p. 30, is decisive of this case. There is this difference, however, in the case of the treasurer. He receives fees or commissions on funds paid into the treasury derived from taxation. Section 11, art. 16, of the constitution of Arkansas provides:. * * * “and no moneys arising from a tax levied for one purpose shall be used for any other purpose.” Section 4 of the special act under consideration requires the officers to pay over in kind the funds received by them in excess of their salaries. We are of the opinion that section 7 of the act is obnoxious to the above provision of the constitution, in so far as it requires the excess over the treasurer’s salary of eight hundred dollars, to be covered into the general revenue fund of the county. The excess of funds in the hands of the treasurer over his salary belongs to the county, and goes to the respective funds for which the tax was levied and collected. This provision, however, as it relates to the treasurer, may be stricken out, and the act be left complete without it. State v. Marsh, 37 Ark. 357; Little Rock & F. S. Ry. v. Worthen, 46 Ark. 312; State v. Deschamp, 53 Ark. 490; Cribbs v. Benedict, 64 Ark. 555. Reversed and remanded for further proceedings not inconsistent with this opinion-