Hughes v. Bd. of Com'Rs of Okla. Cnty.
| Decision Date | 08 June 1915 |
| Docket Number | Case Number: 3989 |
| Parties | HUGHES et al. v. BOARD OF COM'RS OF OKLAHOMA COUNTY. |
| Court | Oklahoma Supreme Court |
¶0 1. CLERKS OF COURTS--Compensation--Statutes. Section 828, c. 16, tit. "Judiciary," Rev. St. U.S. (U. S. Comp. St. 1913, sec. 1383), relating to the fees and compensation of clerks of the district court of Oklahoma Territory, by virtue of section 13 of the Organic Act. (Rev. Laws 1910, vol. 1, p. lviii), is inconsistent and repugnant to the Constitution, and is locally inapplicable, and was therefore not extended to and did not remain in force by reason of section 2, art. 25, of the Schedule to the Constitution, in the State of Oklahoma after the adoption of the Constitution.
2. OFFICERS--Change of Compensation--Validity of Statute. There being no provision of the statutes or the Constitution fixing the compensation for the several clerks of the district courts prior to the passage of the act by the special or extraordinary session of the Legislature on March 19, 1910 (Sess. Laws 1910, c. 69, pp. 129, 139), the action of said Legislature in fixing the compensation of such officers is not in conflict with Const. art. 23, sec. 10, forbidding the enactment of a law diminishing or increasing the emoluments or salary of a public officer after his election or appointment or during his term of office.
3. CLERKS OF COURTS--Compensation--Fee and Salary Act--Time of Taking Effect. The fee and salary act (Laws 1910, c. 69), passed by the Legislature March 19, 1910, without the emergency clause, wherein the salaries of the various county officers were based, for the respective counties, on the population thereof, to be determined by the federal census of April 15, 1910, went into effect and became operative as to clerks of the district courts on June 17, 1910, by virtue of section 58, art. 5, Constitution, regardless of the fact that on that date the census showing the population of such counties had not been officially promulgated by the federal officers.
4. SAME--Counties--Compensation--Per Diem Fee--Recovery of Payment. The federal fee bill, in force in Oklahoma Territory prior to statehood, not having been continued in force by section 2, Schedule, Const. (section 366, Williams' Ann. Const.), there was no law authorizing clerks of the district courts of the state of Oklahoma to claim or receive a per diem fee of $ 5 per day for attending sessions of the court. And, where such claims have been made to and paid by the board of county commissioners, the same may be recovered back from such clerk receiving them.
5. COUNTIES--Officers--Compensation--Recovery. A board of county commissioners is without jurisdiction to allow a claim of a county officer for salary, fees, or other compensation not authorized by law; and an officer who receives such sums from the county treasurer, not being entitled thereto, is liable therefor at the suit of the county, regardless of the fact that no appeal has been taken from the action of the board allowing same.
6. APPEAL AND ERROR--Harmless Error--Admission of Evidence. In a suit on an official bond, where a full and complete copy thereof is attached to and made a part of the petition, which avers the execution and obligation of the bond, and the breach thereof, and where the answer is unverified, and pleads special defenses, in which the execution of the bond is admitted, and where the case is tried to the court on an agreed statement of facts, in which it is agreed that defendant executed a bond and it was filed and approved on the date shown by the exhibit, and where the case was tried and determined in the light of the terms of the bond, and the parties and court treated it as in evidence, the fact that it was not formally introduced in evidence is immaterial and harmless.
7. OFFICERS--Official Bond--Change in Powers and Duties. In the execution of an official bond of a county officer, it is within the contemplation of the parties that the Legislature has the power to change, add to, or modify the powers and duties of such officer from time to time and as may be thought necessary; and therefore, where a law is passed placing a clerk of a court on a salary, and requiring him to account for certain fees, where theretofore his compensation had been on a fee basis, such change and added powers and duties, being germane and appropriate to his office, will not have the effect of discharging his bond from liability.
8. CLERKS OF COURTS--Officers--Official Bond--Liability. Sureties on an official bond are only answerable for the acts of their principal, while engaged in the performance of some duty imposed by law, or for an omission to perform such duty; and therefore the bond of a court clerk is liable for all moneys coming into his hands as such clerk under the law and by virtue of his office and unaccounted for by him.
9. OFFICERS--Official Bond--Liability of Sureties. To constitute color of office, such as will render an officer's sureties liable for his wrongful acts, something else must be shown besides the fact that in doing the act complained of the officer claimed to be acting in an official capacity.
10. CLERKS OF COURTS--Official Bond--Liability of Sureties--Extent. Sums paid illegally and without authority or warrant of law to a court clerk by the board of county commissioners, who are themselves charged with the duty of administering the county business and protecting its finances, are not within the obligation of his bond as sums properly coming into his hands by virtue of his office.
11. SAME--Liability--Deposits for Costs. Deposits made in court cases, in accordance with the law, to secure court costs, which, as earned, belong to the county, are sums coming into the hands of the clerk by virtue of his office, and his bond is liable upon his failure to pay them to such party as may be entitled to receive them.
12. SAME--Liability for Fees. Sheriff's fees and so-called stenographer's fees coming into the hands of the clerk in cases in the court he serves, and which fees belong wholly or in part to the county, are sums received by virtue of his office.
Error from District Court, Oklahoma County;
Action by the Board of County Commissioners of Oklahoma County against W. C. Hughes and another. Judgment for plaintiff, and defendants bring error. Modified and affirmed.
J. H. Huckleberry, Stuart, Cruce & Gilbert, and Arthur G. Moseley, for plaintiffs in error.
C. W. Stringer and Sam Hooker, for defendant in error.
¶1 The board of county commissioners of Oklahoma county brought this suit against W. C. Hughes, who served said county as clerk of the superior court from June 28, 1909, to January 9, 1911, and the Southern Surety Company, surety on his official bond, for the purpose of recovering certain fees and emoluments received by him in excess of the compensation to which he was justly entitled; for certain deposits in his hands when he went out of office, which should have been turned over to his successor; and for certain fees and fines, collected by him and not turned into the county treasury, etc. The cause was tried, by agreement of parties, by the court upon an agreed statement of facts, upon which the court gave judgment against defendant Hughes for $ 10,087.25 and against the surety company for the sum of $ 10,000; the same being the extent of the obligation of its bond.
¶2 Inasmuch as the surety company raises different questions relative to the different items entering into the judgment, we find it expedient to analyze the statement of facts and findings of the court based thereon, and to set out and classify the items entering into the judgment, as follows: (1) $ 4,438.95, in the hands of the clerk when he went out of office, same being deposited by various litigants in various causes, out of which costs, witness fees, etc., were to be paid as earned, and which ought to have been turned over to his successor; (2) $ 21.65, erroneously allowed the clerk by the county on claims filed; (3) $ 1,607.90, criminal fees allowed and paid the clerk by the county after June 17, 1910; (4) $ 196.12, excess of civil fees collected after June 17, 1910, above the salary for himself and assistants allowed by the act of the Legislature of that date; (5) $ 1,598.33, charged and collected as criminal fees, fines, and as sheriff and stenographer's fees in excess of the sum turned over to the county; (6) $ 47.50, allowed by the county for expenses of operating office prior to June 17, 1910; (7) $ 1,521.80, paid him by the county as per diem fees of $ 5 per day for attending court prior to June 17, 1910; (8) $ 655, paid him by the county as such per diem fees after June 17, 1910. The total of the items, as enumerated above, aggregates the sum of $ 10,087.25, the amount of the judgment against the principal defendant.
¶3 As to defendant Hughes, it may be said that his defenses are quite similar, if not identical, with those set out in the case of Hathaway Harper v. Board of County Commissioners of Oklahoma County, 149 P. 1102, 154 P. 529, handed down with this opinion (modified on rehearing January 11, 1916), not yet officially reported. These defenses, generally and briefly stated, are to the effect that, under the act creating superior courts and providing for each a clerk (Sess. Laws 1909, p. 181), it was provided that his compensation should be the same as that of clerks of the district courts, and that the clerks of the district courts were allowed certain fees and emoluments, under the federal fee bill, in force after statehood; that he was therefore entitled to all fees taxed under such fee bill that came into his hands, including the per diem fee of $ 5 per day for attending court; and, further, that inasmuch as he was holding office, with fixed fees and emoluments appertaining thereto, at the date the fee and salary act was passed by the Legislature and approved by the Governor on March...
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