Board of Com'rs of El Paso County v. Shelden

• Decision Date: 07 June 1915
• Docket Number: 8207.
• Citation: 59 Colo. 499,149 P. 616
• Court: Colorado Supreme Court
• Parties: BOARD OF COM'RS OF EL PASO COUNTY v. SHELDEN, County Clerk.

149 P. 616

59 Colo. 499

BOARD OF COM'RS OF EL PASO COUNTY v. SHELDEN, County Clerk.

No. 8207.

Supreme Court of Colorado, En Banc.

June 7, 1915

Error to District Court, El Paso County; J. E. Little, Judge.

Action between the Board of County Commissioners of El Paso County and Elroy C. Shelden, as County Clerk and Recorder of El Paso County. Judgment for Shelden, and the Board of County Commissioners brings error. Reversed and remanded, with direction to enter judgment for the Board of County Commissioners.

Clarence M. Hawkins and Willis L. Strachan, of Colorado Springs, for plaintiff in error.

P. M Kistler, of Colorado Springs, for defendant in error.

BAILEY J.

Elroy C. Shelden, as County Clerk and Recorder of El Paso County during the years 1909, 1910 and 1911, issued a total number of 2,737 hunting and fishing licenses at one dollar each, and under statutory provisions authorizing it, kept twenty-five cents for each license, or a total of $684.25 in addition to his regular salary. The sum of $223.00, representing the fees so collected for 1909, he paid into the general fund of the county, under protest, but the sum so collected, amounting to $461.25, for the years 1910 and 1911 he retained.

The case was submitted for decision upon an agreed statement of facts, presenting the sole question as to whether the County Clerk was entitled, over and above his regular, fixed annual salary, to keep that portion, designated by statute, of fees collected for hunting and fishing licenses, or whether the same should be covered into the county treasury. Upon trial findings were made and judgment and decree entered in his favor against the county for the return of the $223.00 already paid over to it, and allowing him to retain the fees so collected for the other two years. To review this judgment the Commissioners prosecute this writ of error.

By statute enacted in 1907 (Laws 1907, p. 416), amending the law of 1903 (Laws 1903, p. 230), it was provided, in substance that when any hunting or fishing license is issued by the County Clerk the fee therefor should be one dollar, one-fourth of which should be retained by the Clerk as compensation for filing the application, issuing the license, keepting a record and making a report thereof, and all other services connected therewith, one-fourth to be paid into the general fund of the county, and the remaining one-half to be paid to the Game and Fish Commissioner. By Chapter 167 of the Session Laws of 1909, Section 2838, page 391, approved April 28th, 1909, the game and fish law was amended, but the new enactment contained a provision similar to that of the statute of 1907, reading as follows:

'When a license is issued by a county clerk, the fee shall be the same as if issued by the commissioner, and 25 cents thereof shall be for the personal compensation of such clerk for filing the application, issuing the license, keeping a record thereof, making a report, and all other services connected therewith, and shall be in addition to any other salary or compensation, the remaining 75 cents to be remitted to Fish and Game Commissioner.'

The legislature thereby undertook to increase the compensation of the County Clerk and Recorder by allowing him certain fees in addition to his regular salary. The question is whether that could lawfully be done under Section 15, Article XIV of the Constitution, which is as follows:

'For the purpose of providing for and regulating the compensation of county and precinct officers, the general assembly shall, be law, classify the several counties of the state according to population, and shall grade and fix the compensation of the officers within the respective classes according to the population thereof. Such law shall establish scales of fees to be charged and collected by such of the county and precinct officers as may be designated therein, for services to be performed by them, respectively, and where salaries are provided, the same shall be payable only out of the fees actually collected in all cases where fees are prescribed. All fees, perquisites and emoluments above the amount of such salaries, shall be paid into the county treasury.'

Pursuant to this provision the following statute, Section 2573, R. S. 1908, was enacted in 1899:

'The county clerks in the several counties in this state shall receive...