Durden v. Sebastian County

• Decision Date: 10 December 1904
• Citation: 83 S.W. 1048,73 Ark. 305
• Parties: DURDEN v. SEBASTIAN COUNTY
• Court: Arkansas Supreme Court

83 S.W. 1048

73 Ark. 305

DURDEN v. SEBASTIAN COUNTY

Supreme Court of Arkansas

December 10, 1904

Appeal from Sebastian Circuit Court, Greenwood District, STYLES T ROWE, Judge.

Affirmed.

STATEMENT BY THE COURT.

This cause was submitted to the court on the following agreed statement of facts:

"1. That during the period of time from the 1st day of July 1899, to the 31st day of October, 1900, the defendant and appellant earned and collected and retained as circuit clerk exclusive of recorder's fees, the full amount due him as salary at the rate of $ 3,500 per year, for said period of time.

"2. That during the said period of time, as above set out, the said defendant and appellant earned and collected as ex officio recorder the sum of $ 1,135.70. That this amount said defendant has retained, and has not charged himself with under the claim that he is not accountable for or chargeable with fees earned as such recorder."

The court found in favor of the county, and awarded judgment against Durden for $ 1,100, from which this appeal is taken.

Judgment affirmed.

Rose, Hemingway & Rose, for appellant.

The offices of circuit clerk and of recorder are separate and distinct. Const. 1874, art. 7, § 19,; 31 Ark. 571; 33 Ark. 398; 37 Ark. 391; 57 Ark. 197; 70 Ark. 326. Therefore the act of February 20, 1893 (p. 43), limiting the emoluments of the circuit clerk to $ 3,500, has no application to the fees collected as recorder, and will not be extended by construction so to do. 55 Ark. 197. See upon the general question of title to emoluments in cases of dual office: 110 U.S. 688; 21 How. 463; 15 F. 641; 15 Ct. Cl. 22; 9 Neb. 404.

Ira L. Oglesby and Ashley Cockrill, for appellee.

The circuit clerk and recorder are not separate and distinct offices. Const. 1874, art. 7, § 19; Sand. & H. Dig. §§ 6362-3, 4, 7, 8. The case of Lee Co. v. Abrahams, 31 Ark. 571, is not applicable, because it was decided prior to the Constitution of 1874. There is no analogy to be drawn between the relative positions of sheriff and collector and circuit clerk and recorder. The offices of sheriff and collector are separate and distinct offices. 57 Ark. 195, 197; 77 Cal. 45. But, unlike the circuit clerk, the sheriff, by qualifying as sheriff, does not also qualify as collector, while the circuit clerk is not required to qualify separately as clerk and recorder. This furnishes the distinction upon which the question must turn, and renders it apparent that the offices of circuit clerk and recorder are one and the same. 31 Ill. 271; 76 Ill. 548; Id. 554; 6 Ill.App. 62; 82 Ill. 78; 35 P. 880; 9 Cal. 203; 24 S.W. 437. Concedeing, for the sake of argument, that the clerk and the recorder are separate and distinct offices, the phrase "clerk of the circuit court," as used in the salary acts in question, includes "recorder." Such acts are construed liberally in favor of the government. Suth. Stat. Const. § 378; 55 F. 373. Recourse can also be properly had to the popular construction of the same and other similar acts. Suth. St. Const. § § 229, 247, 248. Cf. Acts 1895, 194, 203, 210; Acts 1897, 40; Acts 1899, 25; Acts 1901, 379; Acts 1903, 38, 101, 137; 61 Ark. 21. The intent of the act, as gathered from the occasion and necessity thereof, may also be properly considered. 32 Ark. 462; 48 Ark. 307; 3 Ark. 285; 5 Ark. 336; 13 Ark. 52, 58; 11 Ark. 44. The intention of the act, as gathered from its title and context, must also be considered. Cf. titles of acts of 1893 and 1891; Suth. St. Const. § 211.

T. B. Pryor and Rose, Hemingway & Rose, for appellant in reply.

OPINION

WOOD, J., (after stating the facts.)

Under the act of February 20, 1893, the clerk of the circuit court of Sebastian County receives a salary of $ 3,500 per annum. Is he entitled to any additional compensation for his services as recorder? We think not. The act of February 20, 1893, as amended by the act of May 8, 1899, when considered as a whole, shows that the purpose of the Legislature was expressed in the title of the act. It is an act entitled "An act fixing the fees and salaries of the county officers of Sebastian County." The act provides, section 1, "That the salary of the county judge of the county court of Sebastian County shall be $ 1,500 per annum. That the fees and salaries of the clerk of the circuit court and county courts of Sebastian County shall not exceed $ 3,500 per annum each, and out of such sums they shall each pay such deputies and assistants as may be required to discharge the duties of their respective offices. That the fees and salary of the sheriff of Sebastian County shall not exceed $ 3,500 per annum, and the salary of the collector of Sebastian County shall not exceed $ 1,200 per annum," etc. Other paragraphs of the first section of the act provide for the fees and salaries of various other officers of the county, including all of them. It is clear that the Legislature intended to provide in this act for the compensation of all the officers of Sebastian County, and not simply for some of them. The Legislature fixed the salary of the "judge of the county court." Nothing was said about an extra salary or additional compensation for the judge of the probate court. Why? Because the judge of the county court is ex officio judge of the probate court, and in providing the salary of the "judge of the county court" the Legislature intended to include compensation to him for whatever services he might perform as judge of the probate court. So, likewise, the "clerk of the county court" for his services as "clerk of the probate court," and the "treasurer" for his services as treasurer of the common school fund. And the "Clerk of the circuit court" for his services as recorder. It is clear that the Legislature intended, for the purpose of fixing salaries, at least, that these various officers (except the sheriff) having ex officio duties, should receive but one salary for all the duties performed. The Legislature intended that there should be but the one salary or compensation in the cases mentioned, even if it could be said that there were in each case named two offices and two officers in one.

But we think the proper view, under the Constitution of 1874, is to regard the office of clerk of the circuit court and ex officio recorder as but one office, filled by one officer, who has dual duties to perform. The constitutional and statutory provisions are as follows: "The clerks of the circuit courts shall be elected by the qualified electors of the several counties for the term of two years, and shall be ex officio * * * recorder. (Sec. 19, art. 7, Const. Ark.) There shall be established in each county in this State an office to be styled as the recorder's office, which shall be kept at the seat of justice." "The clerk of the circuit court shall be ex officio recorder for his county, and shall duly attend to the duties of such office." Sandels & Hill's Digest, §§ 6362, 6363. The clerk shall give bond as recorder. Ib. § 6364. "If any clerk of the circuit court shall fail to enter into bond as recorder within fifteen days after the receipt of his commission, his office shall be considered vacant, and such vacancy filled accordingly." Ib. § 6367. Section 6368 provides that "the seal of the circuit court shall be the seal of the recorder." These provisions show that the office of circuit clerk and recorder is but one; that, while the functions which the clerk performs as recorder may be separate and distinct from the functions which he performs as clerk, there is in fact but one office.

Appellant contends that the section of the constitution which provides that "the qualified electors of each county shall elect one sheriff, who shall be ex officio collector of taxes, unless otherwise provided by law" (art. 7, § 46, Const. 1874) is exactly similar, and that, as the offices of sheriff and...