Rowden v. Fulton County

WOOD, J., (after stating the facts). Act 296 of the Acts of 1911 is an act entitled, “An act to amend Act No. 70 of the Acts of Arkansas for the year 1909, fixing the fees and salaries of the clerk, sheriff and assessor of Fulton County, Arkansas.” The sections of the act affecting sheriffs are as follows: “Sec. 2. The fees and salary of sheriff and ex-officio collector of said county shall not exceed the sum of twenty-two hundred ($2,200) dollars per annum, and out of this sum he shall pay for all deputies and assistants; provided, he may be allowed, in addition to the above salary, seventy-five cents a day for feeding prisoners confined in the county jail of said county.” “Sec. 4. It shall be the duty of said sheriff * * * to charge and collect the same fees as are now -allowed by law, and he shall, on the first day of the regular July term of the county court of said county, file a sworn statement in said county showing the amounts of all fees charged and collected by him, and shall make settlement with said court by paying all amounts in excess of the salary due him since the last settlement into the treasury, and file the treasurer’s receipt therefor as a voucher in said settlement, and in said settlement he shall be chargeable and liable for all fees and commissions that it was his duty to charge and collect; provided, he shall receive such fees in addition to the fees allowed him by said act for collecting delinquent taxes as is now prescribed by law. No officer shall receive any pay from Fulton County in excess of the fees collected. ’ ’ Section 5 provides, that “at each settlement made by any sheriff as aforesaid, he shall pay over to the treasurer of said county all funds received by him as such officer in excess of his salary, and take the treasurer’s receipt therefor; provided, that such excess may be paid in Fulton County script, except such as has been charged to and paid by or that may be payable by said county to said officer.” “Sec. 6. Each officer shall keep a full and perfect record of all fees and commissions collected by him from any source whatever, and as such officer he shall enter the same upon said record, as soon as the services are rendered, showing the services rendered; the legal fees therefor, and the kind of money received or to be paid, which record shall, at all times, be open for inspection and a failure to comply with any of the provisions of this section shall be a malfeasance in office.” Section 7 provides, if he “shall fail or refuse to make settlement with the county court of said county, as required by this act, or to pay any and all funds into the treasury that it is his duty under this act to pay, unless for good cause such settlement be by the court continued, he shall be deemed guilty of a misdemeanor,” etc. Section 9 provides: “All money paid into the treasury of said county, arising from fees and commissions as aforesaid, shall be covered into the general revenue funds of said county, and charged to the treasury by the cleric. ’ ’ (1) Article 7, section 46, of the Constitution fixes two years as the term of office of sheriffs and collectors. In naming the salary at an amount not exceeding the sum of $2,200 per annum to be paid the sheriff and collector of Fulton County out of the fees collected by him the Legislature necessarily had in mind the term of his office as fixed by the Constitution, and in the absence of express language showing an intention upon the part of the Legislature to limit the amount of the salary so fixed for a period less than his term of office, the Legislature must be held to have intended that the salary named by them should continue during his entire term. The statute, therefore, should be interpreted as if the words “for the term of his office” were written into the second section supra, after the words “per annum.” For unless so construed the act would not conform to the Constitution. The term of office of the sheriff began October 30, when he qualified and entered upon his duties and continued thereafter for a period of two years. The words “per annum” were not intended to and did not have the effect of fixing or limiting the time to a period less than the full term during which the amount of the salary fixed in the act is to be paid. Section 2, therefore, means that the sheriff and collector shall receive an annual salary for the term of his office not exceeding $2,200. In Independence County v. Young, 66 Ark. 30, the court was called upon to construe a statute substantially similar to the one now under review, the only difference being that it was made the duty of the officer in that case to make quarter-annual settlements, whereas it is the duty of the officer, in the present case, to make annual settlements. The statute under consideration was manifestly modeled after the Act of 1895, fixing the salaries of county officers of Independence County. See Acts 1895, pages 66-69. In Independence County, v. Young, supra, the petitioner prayed the county court to be allowed to retain as salary for the year all fees collected by him, instead of paying into the treasury the amount in excess of his salary ‘for every quarter, as contemplated by the act of the Legislature of 1895. The transaction involved the fees collected by the officer for a period of only one year, and the settlement which he asked the court to approve as final was for a period of one year, beginning the first of November, 1895, and ending’ the 31st of October, 1896. In the present ease the petitioner asked that he be allowed to retain as salary the excess of fees over salary due him as shown by his first July settlement with the county court and that such excess of fees be taken into consideration and that he be allowed credit for the same in subsequent settlements in order that he might-retain all fees that had been collected by him, provided the sum total of fees thus collected did not exceed the amount of his salary at the rate of $2,200 per annum, earned and due him at the time of his final settlement with the county court. In other words, appellant contends that he is entitled to a salary, under the act, of $2,200 per annum to be paid out of the fees which he had collected and those uncollected, but with which he was charged and which it was his duty to collect; that when the settlement is had on this basis the county court would be due him the sum of $310.65 which he had collected and paid into the treasury in excess of fees over salary during the first eight months of his incumbency, because since that time and during his whole term down to the final settlement with the county court he had not collected sufficient fees, including the sum above named, to pay the salary that was due him at the time, of this settlement at the rate of $2,200 per annum. The appellant is correct in his contention. In Independence County v. Young, supra, w.e said: ‘' The design of the Legislature, we think, was to fix the salary of the county clerk of Independence County at the sum of $1,800 per annum, provided the fees and emoluments of the office for the year amounted to that sum. If the fees and commissions collected by or chargeable against the clerk during the year do not equal the sum of $1,800, then the clerk gets as salary all he collects, but if the fees and commissions collected during the year, including the fees and commissions with which the clerk is chargeable, equal or exceed $1,800, then the clerk receives that sum, and if there be an excess of that sum collected during the entire year, such excess at the end of the year, when the last or final settlement is made with the county court, is covered into the general revenue fund of the treasury. * * * There is nothing in any section prescribing when the excess of fees over salary shall be covered into the revenue fund. The treasurer, therefore, when these quarter-annual settlements are made, shall receive whatever excess may be paid in at that time, and hold the same in the treasury; but the act of setting it apart to the general revenue fund does not take place until after the last and final settlement with the county court shall have been made; because prior to that time it can not be known whether the amount of fees collected and chargeable against the clerk for the entire year will exceed his salary for the year, and, unless they do, there would be nothing in the treasury to cover into the general revenue fund. If, at any quarter annual settlement, there shall have been paid into the treasury an excess over the salary due at that date, the treasurer simply holds the same in his official capacity until the final settlement of the officer is made. The treasurer holds such excess of any quarter annual settlement prior to the last for the party who shall be determined, in the final settlement of accounts between the county and officer, to be entitled thereto. What we said in Independence County v. Young, supra, had reference, under the facts of that case, to a final settlement of the salary due the officer for a period of one year. But, under the facts of this record, the doctrine of that case is equally applicable to a final settlement for a period embracing the entire term of the officer. If, as we have already stated, it was the intention of the Legislature to fix the officer’s salary at. a sum not exceeding $2,200 per annum for his entire term of office, then this case is concluded, by analogy in principle, by the construction given the similar statute in Independence County v. Young, supra. (2) Under the statute, while the officer had to make annual settlements with the county court and pay over to the treasurer of the county all funds received by him in excess of his salary for the year, these settlements, under the doctrine of the above case, were not final settlements as to the amount of salary that might be due the officer on final settlement at the end of his term. At such final settlement it was the duty of the county court to determine whether the fees collected by the officer and those uncollected but with which he was charged, and which it was his duty.to collect, during his entire term of office, had been sufficient to pay his salary during such term at-the rate of $2,200 per annum. If the fees did not equal the salary, then he received as salary all he collected during the entire term, and if the fees were in excess of that sum, then such excess was due the county, and when paid should be covered into the general revenue fund of the treasury. It follows that the court erred in not allowing the appellant the amount claimed by him. The judgment is therefore reversed and the cause will be remanded with directions to the circuit court to enter its judgment in accordance with this opinion, and, when so entered, to certify such judgment to the county court to be entered as the judgment of that court.