Hardy v. The Board of County Commissioners of The County of Kingman

• Decision Date: 10 May 1902
• Docket Number: 12,296
• Citation: 65 Kan. 111,68 P. 1078
• Parties: CHARLES B. HARDY et al. v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF KINGMAN
• Court: Kansas Supreme Court

68 P. 1078

65 Kan. 111

CHARLES B. HARDY et al. v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF KINGMAN

No. 12,296

Supreme Court of Kansas

May 10, 1902

Decided January, 1902.

Error from Kingman district court; P. B. GILLETT, judge.

Judgement affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW -- Fees and Salaries -- Act of 1897. The subject of accounting by county officers for fees collected by them and paying a portion collected into the county treasury, as required by chapter 131, Laws of 1897 (Gen. Stat. 1901, §§ 3023-3070), is included in the title of the act, to wit: "An act fixing the fees and salaries of certain persons and officers therein named."

2. CONSTITUTIONAL LAW -- Invalidity of Forfeiture Section does not Destroy the Act. Assuming, but not deciding that the provision contained in section 14 of chapter 131, Laws of 1897, imposing a penalty on the register of deeds of a money forfeiture of ten dollars per day to be paid to the county for each day's failure by him to account for and pay into the treasury one-half the fees collected by him, is unconstitutional, as being an attempt to divert the proceeds of fines for breaches of the penal laws from the common-school fund, such invalidity does not impair any other parts of the act, because the penal provision is not such an integral portion of the whole law as to be inseparable from it, and it may fall of itself without destroying the remainder.

C. W. Fairchild, John C. Foley, and Chas. v. Hardy, for plaintiffs in error.

J. Q. Jenkins and Geo. L. Hay, for defendant in error.

DOSTER, C. J. All the Justices concurring.

OPINION

DOSTER, C. J.:

This was an action by the board of county commissioners of Kingman county against Charles B. Hardy, as register of deeds, and the sureties on his official bond, to recover fees collected by him and not accounted for as required by chapter 131, Laws of 1897. Judgment went against the defendants, to reverse which they have prosecuted error.

Chapter 131, Laws of 1897 (Gen. Stat. 1901, §§ 3023-3070), is entitled "An act fixing the fees and salaries of certain officers and persons therein named." It applies principally to county officers. It specifies the compensation, by way of fixed salary, which they shall receive, schedules a list of fees which they are entitled to charge the patrons of their offices as additional compensation, and provides that a portion of the fees collected shall be covered into the county treasury. The provision in that respect relating to the register of deeds is as follows (Gen. Stat. 1901, § 3035):

"And if, in any one year, the fees charged shall be more than the sums above specified in their respective counties, the said registers of deeds shall pay to the county treasurer of their respective counties one-half of such excess, when collected, taking duplicate receipts therefor, one of which they shall file with the county clerk, and such money shall become part of the general fund of the county."

Section 14 of the act reads as follows:

"The county treasurer, county clerk, county attorney, clerk of district court, sheriff, probate judge and register of deeds shall keep a book to be called 'fee-book,' to be provided by the county commissioners. They shall keep a true and accurate account of all fees by them charged and collected, setting forth against whom said fees are charged, by whom paid, for what service rendered, and the date of such charges, rendition, and payment. Said book shall be open to public inspection during office hours. Each of the officers named in this section shall, on the first day of the regular session of the board of county commissioners in the months of January, April, July and October of each year make out and file with the county clerk and present to said board a true and itemized statement verified by affidavit, which statement shall show all fees by him charged and collected during the preceding quarter and the fees due and uncollected, against whom charged, by whom paid, for what service, and the date thereof, and the number and page of the fee-book in which such items are entered: Provided, That if any of the officers herein named in this section shall fail to keep a full and correct account of fees charged and received, or shall fail to make the report...