Haradon v. Coffey

Mr. Justice Moore delivered the opinion of the court. The county clerk of any county containing more than 50,000 inhabitants, which limitation applies to Multnomah County, is required to collect in advance from the party instituting any civil suit, action or proceeding the sum of $10 on account of fees. If before the termination of the cause the money thus paid has been earned by the county, a further deposit is demanded, which sums are to be held by the clerk until earned by the county or returned to the parties: § 1114, L. O. L. An additional sum of $1 must be collected in that county as law library fees: § 1125, L. O. L. A schedule of fees is prescribed, and the county clerk is required to collect in advance, for the benefit of the county; the sum so ordained for the performance of his official duties in the causes specified: § 3106, L. O. L. He is also commanded to enter in the register, under the date of performance, the charge for such service rendered, and also to note all sums of money paid or advanced on account of fees. On the fourth of each month he is required to ascertain from the register the amount earned by the county during the preceding month and immediately to pay to the county treasurer from the sum so deposited all fees that have been earned. When a case is dismissed or otherwise finally determined, the clerk must refund to the party, depositing any fees on account, the remainder of the money which he had advanced, after the payment of all fees charged against him: § 3107, L. O. L. If the provisions of the statute referred to are strictly to be enforced in the case at bar, the defendant must inevitably pay to the county, as the fees are earned, or refund to the parties entitled thereto, $15,522.43, or so much thereof as may legally be de [84] inanded during Ms term of office. He is not in the least responsiMe for the loss of any of that money, and every principle of natural justice demands that he should not be required to repay any part of the fund that has been dissipated. The duty which the law specially enjoins upon him by virtue of his office, the performance of which will be compelled by writ of mandamus, is safely to keep and carefully to account for all moneys coming into his possession as county clerk. With respect to causes begun prior thereto, on account of which his predecessor in office received $54,410.95, the defendant can pay to the county or to the other parties entitled thereto only $38,888.52, or 71 per cent of the fees to be earned or of the remainder that should be returned. It is unnecessary for the court to command the payment-of that ratio, for by the return to the writ the defendant practically offers to pay upon that basis, if he can be relieved from further obligation in the matter with respect to fees received by another during his incumbency in office. The defendant must comply with the requirements of the statute, regulating the collection and payment of fees in all civil suits, actions, and proceedings that have been commenced since January 5, 1913, when he took his office. It was the duty of the defendant’s immediate predecessor to keep all property appertaining to his office and to pay and deliver the same to the person entitled thereto: § 3026, L. O. L. As the only person having a right to the possession of the money collected as fees and remaining on hand January 5, 1913, was the defendant, he was obliged to accept the sum delivered to him, but his receipt therefor did not obligate him to answer for the loss of any part of the $15,522.43 that was dissipated by the bank which failed. [85] Whether or not Multnomah County is, by reason of the undertaking given to the state by the defendant’s predecessor, conditioned faithfully to pay over according to law all moneys that might have come into his hands by virtue of such office, which bond was undoubtedly approved by the county court of such county, made that municipality liable in the excess of 71 per cent to the parties entitled thereto to shares of the money lost, and for that reason must remit 29 per cent of the fees when earned, cannot now be determined, for the county is not a party to this proceeding. The parties who have advanced fees in civil suits, actions or proceedings instituted prior to January 5, 1913, and are now compelled again to pay small sums before any papers in such cases will be received for filing, when they have prepaid such fees, are necessarily subjected to vexatious burdens, but it is better that the ultimate settlement of their just demands, not exceeding in any instance $10, should be deferred for a short time rather than unjustly to impose on the defendant a burden of $15,522.43, for the payment of no part of which is he legally or morally responsible. No error was committed in overruling the demurrer, and the judgment is affirmed. Affirmed. Mr. Chief Justice McBride and Mr. Justice Burnett concur. Mr. Justice Ramsey dissents.