County of Ada v. Ryals

• Decision Date: 26 February 1895
• Citation: 39 P. 556,4 Idaho 365
• Parties: COUNTY OF ADA v. RYALS, PROBATE JUDGE
• Court: Idaho Supreme Court

39 P. 556

4 Idaho 365

COUNTY OF ADA v. RYALS, PROBATE JUDGE

Supreme Court of Idaho

February 26, 1895

FEES OF PROBATE COURT-JUDGE OR CLERK MAY RECEIVE SAME.-The probate judge may appoint a clerk of the probate court, or he may act as the clerk of his own court, and in either case such clerk may charge and receive the fees provided by law when performing the duties of such position.

MAXIMUM COMPENSATION OF PROBATE JUDGE.-When such judge acts as probate judge, superintendent of public instruction, and clerk of his own court, he can receive and retain from fees and commissions allowed by law the sum of $2,000 per annum any sum so received in excess of said amount must be paid over to the county treasurer.

APPOINTING OF CLERK BY PROBATE JUDGE-NOT ENTITLED TO EXTRA COMPENSATION.-When said judge appoints another person clerk of his court the amount of fees and commissions received and retained by both the judge and clerk can amount to only $2,000 per annum.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded. Costs awarded to appellant.

Hawley & Puckett, for Appellant.

It will be urged without doubt that the constitution of the state being a limitation of the legislative power only and not a grant of authority, there is no restriction upon the legislative assembly forbidding the creation of new offices and that the right to create the office of clerk of the probate court exists. But subdivision 6 of article 18 of the constitution expressly provides that no other county offices than those named in the constitution shall be established. We submit that the clerk of the probate court, if it is intended to segregate the position from that of the judge of probate court is a county officer and that the act of the first session prescribing his fees is unconstitutional. But the constitution, page 21, article 5, makes the probate court a court of record; this implies that the acts and proceedings of such court shall be enrolled for memorial and testimony. (3 Blackstone's Commentaries, 24.) It does not follow however, that it necessarily implies the appointment of a clerk. Our statutes have always contemplated that the judge shall act as his own clerk in the probate court.

William F. Ryals, for Respondent.

Section 3844 of the Revised Statutes says: "There shall be a clerk of said court, to be appointed by the judge thereof, or the probate judge may act as clerk of his own court." (1st Sess. Laws, sec. 3, p. 178.) The clerical function of this court must be performed by some person legally endowed with clerical authority so to do, who shall officially sign and seal such documents and records as require his signature and the seal of his office. It is the duty of the clerk of the probate court to keep the office; to keep the seal; to keep the records; to file the papers; to make and keep the dockets of the court, both civil and criminal, etc. Nearly all of these official acts are functions which the probate judge, as such officer, cannot perform at all. The clerk of the probate court is not a county officer at all, within the meaning of the constitution, it not being an elective office and, therefore, his compensation is not fixed or limited by the constitution. And therefore, there is, by the laws of this state, such an office as clerk of the probate court, and there is no limitation in the constitution upon the power of the legislature to fix the compensation of such clerk.

Defendant was elected probate judge of Ada county, Idaho October 1 1890; qualified and entered upon the duties of his office; continued to exercise the duties and hold said office from January, 1891, to January, 1893; was re-elected in November, 1892, and entered upon his second term the second Monday of January, 1893; and was still in said office, at the time of commencement of this suit, March 8, 1894. Said defendant was probate judge and ex-officio superintendent of schools during said time, and acted also as ex-officio clerk of probate court. During 1891 said defendant received from fees and commissions the sum of $ 2,344.01, all of which was retained by defendant. During the year 1892, defendant received as fees and commissions by virtue of his said office, and as fees as clerk of the probate court, the sum of $ 2,284.59, all of which was retained by defendant. During 1893 the defendant received by virtue of said office, and as clerk of probate court, the sum of $ 2,085.57, all of which was retained. 1. The fees charged by defendant, and received and collected, as clerk of said probate court, in 1891, amounted to more than the sum of $ 344.01; in 1892, amounted to more than $ 284.59; and, in 1893,...