Cullom v. Dolloff

• Decision Date: 31 January 1880
• Citation: 1880 WL 9951,94 Ill. 330
• Parties: SHELBY M. CULLOM, Governor,v.SAMUEL F. DOLLOFF et al.
• Court: Illinois Supreme Court

94 Ill. 330

1880 WL 9951 (Ill.)

SHELBY M. CULLOM, Governor,

v.SAMUEL F. DOLLOFF et al.

Supreme Court of Illinois.

January Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District; the Hon. CHAUNCEY L. HIGBEE, presiding Justice, and Hon. OLIVER L. DAVIS and Hon. LYMAN LACEY, Justices. On appeal from the Circuit Court of McLean county; the Hon. CYRUS EPLER, Judge, presiding.

This was an action of debt, brought in the name of Shelby M. Cullom, Governor of the State of Illinois, for the use of McLean county, against Samuel F. Dolloff and others, his sureties, upon the official bond of Dolloff as clerk of the circuit court of McLean county. It appears that, on the application of the sureties, the clerk was required to give a new bond, which was given on March 16, 1875. The other material facts appear in the opinion of the court.

Messrs. FIFER & PHILLIPS, and Messrs. WILLIAMS, BURR & CAPEN, for the appellant:

This case involves a construction of section 10, article 10 of the constitution of the State. That section requires the county board to fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel and other expenses, and provides that the compensation of no officer shall be increased or diminished during his term of office; and that all fees or allowances received by them in excess of their said compensation shall be paid into the county treasury.

The compensation of the officer is what he gets for his services, independent of the expenses of conducting the office, and is to be paid out of the fees earned and collected by him, and this compensation is to be fixed separate from the expenses, and, when once fixed, can not be changed.

But the expenses of the office should at all times be under the control of the board, and in no case exceed what is necessary. If this construction is not correct, what limitation is there in the constitution as to the amount that may be allowed under the name of compensation and expenses?

If the word necessary is not a limitation on the amount to be allowed for expenses, there is none at all; and a board may increase or diminish the compensation of the officer, from time to time, by increasing or diminishing his allowance for expenses; and even if the amount so allowed was left at a uniform sum, it would necessarily increase or diminish his compensation, as the expenses must necessarily vary.

It can not be presumed that the words, necessary expenses, can cover more than the sum actually expended; and the county was clearly entitled to a judgment for the amount collected over and above the salary and the sums paid out for expenses.

That the constitution can not be frittered away in this way and overreached by indirection, would seem to need the citation of no authorities, but we refer the court to the following: Hall v. Hamilton, 74 Ill. 437; Hughes v. The People, 82 Id. 78; Purcell v. Parks, Id. 346; The People v. Lippincott, 67 Id. 333.

In Kilgore v. The People, 76 Ill. 548, this question was not before the court. The contest in that case was, could the county treasurer be allowed compensation as treasurer and collector both; and the court held that the treasurer was ex officio collector, and that his allowance as treasurer covered his compensation for his whole duties.

Mr. W. S. COY, and Messrs. TIPTON & POLLOCK, for the appellees:

Counsel submitted four propositions, with authorities in their support:

1. The resolution of the board of supervisors of September 12, 1872, fixing the salary at $2500 and the necessary clerk hire at $4000, was conclusive, and neither the salary nor the clerk hire could be changed during the official term of Dolloff. Art. 10, sec. 10, Constitution; Rev. Stat. 1874, chap. 34, sec. 38; Kilgore v. The People, 76 Ill. 551; Hughes et al. v. The People, 82 Id. 80; Purcell v. Parks, Id. 348.

2. Even if the board had the power to change the allowance for necessary clerk hire, it was not changed so as to affect the questions in controversy in this suit, either by the resolution of June 15, 1874, or that of September 10, 1874.

3. The evidence offered in regard to fees collected after December 1, 1874, was properly excluded.

4. Even if there was money in the hands of Dolloff, belonging to the county, on the first day of December, 1874, he was under no obligation, under the evidence in the case, to pay the same into the county treasury, and the amount can not be collected under this bond and in this case. The evidence does not show that the board ever audited any of his reports, or that it ever struck a balance after deducting any salary or any unpaid salary due to him, from the gross amount received by him as clerk, and ordered him to pay the same into the county treasury.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

Appellee, Dolloff, was elected to the office of clerk of the circuit court of McLean county at the general election in 1872, for four years. He entered upon the duties of the office on the first day of December of that year, having executed the bond required by the statute, and upon which this suit was brought. It is conditioned that he shall faith-fully perform the duties of the office and deliver up the papers, etc., appertaining thereto when lawfully required.

Prior to the election, the board of supervisors, on the 12th day of September, 1872, had fixed the compensation of the circuit clerk at $2500 per annum, and also fixed the amount of his necessary clerk hire at $4000 per year. It so remained until the 15th day of June, 1874, at which time the board passed this resolution:

“ Resolved, That from the first day of July, 1874, this board will allow the circuit clerk only the necessary clerk hire of his office in lieu of the $4000 per annum heretofore allowed.” And on the 10th day of the following September the board passed another resolution, which is this: “ Resolved, That from and after December 1, 1874, the allowance for clerk hire of the clerk of the circuit court shall in no case exceed the amount actually paid for the same, as shown by his bills, verified by his affidavit.”

At the February term, 1875, of the circuit court of McLean county, Dolloff was required to give a new official bond, and on the 16th day of March following he executed a new bond, which was then approved. A trial was had by the court, by consent of the parties, without a jury. The court allowed Dolloff $2500 for compensation per year for two years, ending on the first of December, 1874, amounting to $5000, and $4000 each year for clerk hire, amounting to $8000, aggregating the sum of $13,000, and found that on that day the county owed him $33.07. On the trial plaintiff offered to prove that a large sum of money came into his hands between the 1st day of December, 1874, and the 16th day of March, 1875, as fees of the office, which belonged to the county, but this evidence was rejected. This, then, presents two questions for consideration. First, was the clerk entitled to the amount fixed by the board for clerk hire before his election? And second, was the rejected evidence admissible?

By the 10th section, article 10 of the constitution, it is provided that “The county board * * * shall fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel and other expenses, and in all cases where fees are provided for, said compensation shall be paid only out of, and shall in no instance exceed, the fees actually collected.” The latter clause provides “That the compensation of no officer shall be increased or diminished during his term of office. All fees or allowances by them received in excess of their said compensation shall be paid into the county treasury.”

The 11th section of the same article provides that “The fees of township officers and of each class of county officers shall be uniform in the class of counties to which they respectively belong.” The 12th section provides that “All laws fixing the fees of State, county and township officers shall terminate with the terms respectively of those who may be in office at the meeting of the first General Assembly after the adoption of this constitution; and the General Assembly shall, by general law, uniform in its operation, provide for and regulate the fees of said officers and their successors, so as to reduce the same to a reasonable compensation for services actually rendered.” The 13th section provides: “Every person who is elected or appointed to any office in this State, who shall be paid in whole or in part by fees, shall be required by law to make a semi-annual report, under oath, to some officer to be designated by law, of all his fees and emoluments.” These seem to be the only constitutional provisions having any bearing on this case.

The 13th section of the Fees and Salary act (Rev. Stat. 1874, p. 503) divides the counties into three classes, and McLean county is placed in the second. And in pursuance of the 10th section of the constitution the board fixed the compensation of the clerk, and his clerk hire. It is contended that he is entitled to retain the sums thus fixed annually from the fees of the...