Bd. of Cnty. Com'Rs of Creek Cnty. v. Bruce
| Decision Date | 05 October 1915 |
| Docket Number | Case Number: 5274 |
| Citation | 1915 OK 737,51 Okla. 541,152 P. 125 |
| Parties | BOARD OF COUNTY COM'RS OF CREEK COUNTY v. BRUCE et al. |
| Court | Oklahoma Supreme Court |
¶0 1. OFFICERS--Compensation--Imposition of Additional Duties. A public officer is bound to perform the duties of his office for the compensation fixed by law. This is true as to additional duties imposed upon the office by the Legislature after he enters upon his term, provided such duties are germane to the office.
2. COUNTIES--County Clerks--Compensation--Additional Duties--Issuance of Hunting Licenses. Chapter 19, sec. 1, Sess. Laws 1905, put in force in the State of Oklahoma by section 18 of the Schedule of the Constitution, fixed the salary of the county clerks of the various counties of the state. The authority conferred upon county clerks to issue hunting licenses, under the act of the Legislature approved March 8, 1909, (chapter 19, Sess. Laws 1909), are additional duties conferred upon the office of county clerk, and are germane to such office; and the fees authorized to be retained by clerks for issuing hunting licenses under section 9, art. 4, of such act should be accounted for by them, and they are not entitled to retain the same as additional compensation for such services.
3. OFFICERS--County Clerks--Emoluments of Office--Increase During Term. The salary of county clerks being definitely fixed by chapter 19, sec. 1. Sess. Laws 1905, and the duties imposed upon the office of county clerk under chapter 19, Sess. Laws 1909, being additional, the fees authorized to be retained under section 9, art. 4, of said act could not be retained by the clerks as additional compensation, for to do so would violate section 10, art 23, of the Constitution, prohibiting the increase of the emoluments of an office during its term.
Error from District Court, Creek County; Wade S. Stanfield, Judge.
Action by the Board of County Commissioners of Creek County against Abner Bruce and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.
W. Morris Harrison and Vick S. Decker, for plaintiff in error.
J. E. Thrift, for defendants in error.
¶1 The parties occupy the same position here that they did in the trial court, and for convenience we shall refer to them accordingly. The defendant Bruce was the duly elected, qualified and acting county clerk of Creek county from the advent of statehood to January 7, 1911. He gave bond for the faithful performance of his duties, with the defendants Jones, Cummins, and Humphreys as sureties thereon. Under the law in force in the Territory of Oklahoma at the time of the adoption of the Constitution, the full compensation to be allowed him as county clerk was $ 1,600 per annum. Chapter 19, sec. 1, Session Laws 1905. Under the act of the Legislature of the State of Oklahoma approved March 8, 1909, entitled "An act to protect fish, game, birds," etc., known as the Game Law, county clerks of the various counties of this state were authorized to issue hunting licenses and charge and retain a fee of 25 cents for each license issued by them. Section 9, art. 4, c. 19, Session Laws 1909. After the passage and approval of this act the defendant Bruce, as county clerk of said county, received, collected, and retained $ 402.25 as fees for issuing hunting licenses. He did not report and account for these fees to the county, but retained and appropriated the same to his own use and benefit.
¶2 In April, 1912, the plaintiff, the board of county commissioners of said county, commenced this action in the district court of said county against the defendant Bruce and the sureties upon his bond to recover the amount of the hunting license fees so collected, received, and retained by the defendant Bruce as county clerk. A demurrer was sustained to the petition and exceptions saved. The plaintiff stood upon its petition and declined to plead further. Whereupon judgment was rendered against it, dismissing the action at its cost, from which it has perfected an appeal to this court.
¶3 The only question presented by the record is whether or not the defendant Bruce had a right to retain these fees, in addition to the salary allowed him by law at the time of his election and qualification. If so, the judgment of the trial court should be affirmed; otherwise, reversed and remanded. Under section 2, art. 17, of the. Constitution, county clerks of the various counties of this state were county officers. The law in force in the Territory of Oklahoma at the time of the adoption of the Constitution controlled as to the salaries of the county clerks of the state. Section 18 of the Schedule of the Constitution provides:
"Until otherwise provided by law, the terms, duties, powers, qualifications, and salary and compensation of all county and township officers, not otherwise provided by this Constitution, shall be as now provided by the laws of the Territory of Oklahoma for like named officers. * * *"
¶4 Chapter 19, sec. 1, Session Laws 1905, was in force in the Territory of Oklahoma at the time of the adoption of the Constitution. This act fixes the salary of the defendant Bruce at $ 1,600 per year, and, by virtue of the foregoing constitutional provision, this act was continued in force in the State of Oklahoma. It follows, therefore, that the full compensation to be allowed the defendant Bruce as county clerk was $ 1,600.
¶5 The defendants contend that the duties imposed upon the county clerk, under section 9, art. 4, c. 19, Session Laws 1909, are extra-official duties, and not additional, and therefore defendant Bruce is entitled to receive the compensation provided for the performance of such duties. Upon the other hand, the plaintiff contends that the duties are additional, and that he should perform them without additional compensation.
¶6 As a general rule, a public officer is bound to perform the duties of his office for the compensation fixed by law. This is true as to additional duties imposed upon an officer by Legislature after he enters upon his term, so long as these duties are germane to the office. Finley v. Territory of Oklahoma, 12 Okla. 621, 73 P. 273; Mechem on Public Officers, sec. 862; Throop on Public Officers, sec. 478; Evans v. Trenton, 24 N.J.L. 764; People v. Supervisors, 1 Hill (N. Y.) 362; Moore v. Nation, 80 Kan. 672, 103 P. 107, 23 L. R. A. (N. S.) 1115, 18 Ann. Cas. 397; Anderson v. Board of Commissioners of Grant County, 44 Okla. 164, 143 P. 1145; Broaddus v. Commissioners of Pawnee County, 16 Okla. 473, 88 P. 250. In Mechem on Public Officers, supra, it is said:
¶7 And in the case of Moore v. Nation, supra, in the syllabus it is said:
"
¶8 Are the duties imposed upon the clerk by section 9, art. 4, supra, germane to the office of county clerk? If so, they are additional duties, and the defendant should perform them without extra compensation. We think these duties are germane. The Legislature, in conferring this authority upon the county clerk, intended to make it convenient for citizens of the various counties to obtain hunting licenses. The duty is a public one to the citizens of the various counties, and is germane to the office of county clerk. The authority is conferred upon the office, and not the individual. Finley v. Territory, supra. Under the law, a county clerk may take acknowledgments to deeds and other written instruments. The law provides that he may charge a fee for this service. In performing this service he does not serve the county in purely county business, but he serves the public generally in this capacity. This is a duty that is germane to the office of county clerk, made so by law. We can see no reason why the duty of issuing a county hunting license is not germane to the office of county clerk. The defendants urge, however, that this power could have been conferred upon any individual in the county or upon any other county officer. This may be true, but it was not done. The Legislature conferred it where it thought best to...
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