Platz v. Hamilton

• Decision Date: 04 November 1982
• Docket Number: No. 82-64,82-64
• Citation: 653 P.2d 144,201 Mont. 184
• Parties: Lois PLATZ, Clerk of Court, Big Horn County, Montana, Plaintiff and Appellant, v. Lorraine HAMILTON, Treasurer, Big Horn County, Montana, Defendant and Respondent.
• Court: Montana Supreme Court

Page 144

653 P.2d 144

201 Mont. 184

Lois PLATZ, Clerk of Court, Big Horn County, Montana Plaintiff and Appellant, v. Lorraine HAMILTON, Treasurer, Big Horn County, Montana Defendant and Respondent.

No. 82-64.

Supreme Court of Montana.

Submitted Sept. 16, 1982.

Decided Nov. 4, 1982.

Robert J. Emmons, argued, Great Falls, for plaintiff and appellant.

James E. Seykora, County Atty., argued, Hardin, for defendant and respondent.

SHEEHY, Justice.

Lois Platz, clerk of the District Court of Big Horn County, appeals from a summary judgment in favor of the county treasurer, Lorraine Hamilton, entered in the District Court, Thirteenth Judicial District, Big Horn County.

Lois Platz filed an action for declaratory judgment to determine whether a clerk of District Court is required to remit to the county treasurer the fees collected by the clerk in the issuance and execution of passports. Platz alleges that a clerk of court should be allowed to retain the execution fee for his or her personal use.

Because no genuine issue as to any material fact existed, both parties moved for summary judgment under Rule 56, M.R.Civ.P. The District Court granted Hamilton's motion for summary judgment, and thereby required the clerk of court to remit the fee to the county treasurer.

The United States Congress has the exclusive authority to regulate the issuance and execution of passports, and has exercised that authority by enacting 22 U.S.C. 211a, et seq. It also implemented federal regulations which designate persons before whom passport applications can be executed and oaths can be administered. These persons include, among others, state clerks of court of record, state judges, clerks of probate courts, and post office personnel. 22 C.F.R. § 51.21(b). The execution of passports is not, however, a mandatory function imposed upon these public officials by the Congress. Any of the designated officials could refuse, without violating a duty of office, to handle passport applications.

The federal statutes and regulations also state that two fees can be collected. The first is a $10 passport fee which must be paid to the United States Treasury. 22 U.S.C. § 214. The collection of this passport fee is not disputed by the parties in this case. The second fee, which is the center of this dispute, is a $5 execution fee which "may be collected and retained by any State official before whom an application is executed." 22 C.F.R. § 51.61(b). Platz contends that she should be allowed to retain this execution fee for her personal use. Hamilton, conversely, contends the execution fee should be remitted to the county general fund.

In Montana, no specific statute exists which imposes an official duty upon a clerk of District Court to execute passport applications. Nor is there a specific Montana statute which requires that an execution fee collected by a clerk of District Court be paid over to the county treasurer. The legislature did, however, enact a general statute relating to the collection of fees, which states in part:

"No salaried county officer may receive for his own use any fees, penalties, or emoluments of any kind, except the salary as provided by law, for any official service rendered by him." (Emphasis added.) Section 7-4-2511(2), MCA.

In 1972, Attorney General Woodahl issued an opinion interpreting this statute in light of execution fees. He stated, "There being no statutory duty imposed upon the clerks of court concerning the issuance of passports, it is not a duty of their office for which they are regularly compensated ... Therefore, ... the ... fee collected for issuing passports may be retained by the clerks of court in the various counties of the state, and the clerks of court are not required to deposit the same with the county treasurer for deposit in the county general fund." 34 Opinion of Attorney General (1972), 41.

In 1979, Attorney General Greely reversed the 1972 opinion, finding that the execution of passports was an "official service" as used in section 7-4-2511(2), MCA. He stated, "The fact that a state official performs a function under federal rather than state law does not necessarily mean that he or she is not rendering an official service. When the individual is permitted to perform the function solely because of his or her official status, he or she renders an official service, regardless of whether the service is authorized by state or federal law." 38 Opinion of Attorney General (1979), 46. Therefore, the Attorney General concluded that county clerks of court must pay the execution fees to the county treasurer.

We do not agree with the latest Attorney General opinion. Instead, we would apply the rationale set forth in Anderson v. Hinman (1960), 138 Mont. 397, 357 P.2d 895. Anderson involved the question of whether the clerk of the Supreme Court could retain fees paid by West Publishing Company for copies of opinions of the Supreme Court. Anderson, who was then the attorney general, took the position that the fee paid by West Publishing Company was paid for an official duty of the clerk of the Supreme Court, and therefore the fee must be remitted to the State Treasury. The Supreme Court held, however, that the clerk of the Supreme Court could properly retain the fee for his or her own use.

The court in Anderson stated several reasons why the clerk was allowed to retain the fee. First, "[t]he right of the state to monies collected depends upon some legislative enactment clearly identifying them as compensation owing to the state." Anderson, 138 Mont. at 408, 357 P.2d at 901. To determine whether a clear legislative enactment existed, the court in Anderson reviewed the following two statutes:

"82-504 [R.C.M.1947]. Duties. It is the duty of the clerk [of the Supreme Court] to ... perform such other duties as may be required of him by the supreme court.

"82-503(2) [R.C.M.1947]. Fees. All fees collected by [the clerk of the Supreme Court] must be paid into the state treasury, all of which shall be credited to the credit of the State law library fund."

In light of these statutes, the court could find no legislative enactment clearly identifying fees paid by West Publishing Company to the clerk as compensation owing to the state.

In the present case, no state statute exists which imposes a duty upon a clerk of District Court to execute passport applications. Nor is there a statute which clearly requires the clerk to remit the execution fee to the county treasurer. Therefore, there is no "legislative enactment clearly identifying [monies collected] as compensation owing to the State." supra.

Anderson stated a second reason why clerks should be allowed to retain the fee: "Under Section 82-504, supra, the State is clearly entitled to any monies collected by the clerk while acting in his official capacity and performing the duties therein enumerated and the converse is equally true that the State is not entitled to any fees except those set by law." Anderson at 409, 357 P.2d at 901. In the present case, the State has not provided for the disposition of execution fees, even though Congress gave the State the power to do so. 22 U.S.C. § 214. Therefore, the State has not "set by law" any fee relating to the execution of passports.

A third reason stated in Anderson is that a function performed by a clerk must be "demanded by law." Anderson at 409, 357 P.2d...