State ex rel. Hickory County v. Dent

• Decision Date: 24 March 1894
• Parties: The State ex rel. Hickory County v. Dent et al., Appellants
• Court: Missouri Supreme Court

25 S.W. 924

121 Mo. 162

The State ex rel. Hickory County v. Dent et al., Appellants

Supreme Court of Missouri, Second Division

March 24, 1894

Appeal from Hickory Circuit Court. -- Hon. W. I. Wallace, Judge.

Reversed.

Wm. O Mead and J. H. Childers for appellants.

(1) It is provided by section 5627, Revised Statutes, 1879, that the defendant, Dent, might retain fees by him collected to the amount of $ 1,100 for his salary for each year he was clerk of the county court. (2) It is provided by section 5626 that the defendant, Dent, as clerk of the county court, should make returns quarterly to the county court of all fees by him received to date of such return and for what service and from whom received, and the amount of money paid to deputies and assistants and verify the same by his affidavit, and that the county court shall examine the same and allow all necessary clerk hire, and shall ascertain the amount in excess above his salary and clerk hire and shall make an order directing such clerk to pay such excess into the county treasury, which order in this case was never made. When the defendant, Dent filed the statement offered in evidence it conferred jurisdiction on the county court and a suit could not be commenced in the circuit court that would oust that jurisdiction, and could only acquire jurisdiction by appeal from the order in relation to payment of excess. The jurisdiction of the county court is original and exclusive. Pearce v. Calhoun, 59 Mo. 271; French v Stratton, 79 Mo. 562; Hammon v. Renfro, 84 Mo. 340. (3) The defendant, Dent, was entitled to apply any excess of fees in his hand for the year 1884 and appropriate the same to the payment of the amount which his fees received for the year 1883 was short of the salary allowed by law. Pugh v. Evans, 31 Mo.App. 290. (4) The defendant, Dent, was entitled to the compensation allowed by the county court for keeping the county accounts over and above the salary of $ 1,100 under the provisions of sections 5387 and 2410, Revised Statutes, 1879. (5) This case is the same in principle as the State ex rel. McGrath v. Walker, 97 Mo. 162. See Constitution of Mo. art. 10, sec. 18; R. S. 1879, sec. 5643 and secs. 6666 to 6669.

T. G. Rechow with W. D. Harryman, Prosecuting Attorney, for respondent.

(1) On the first point, we submit that it has been the uniform practice for the circuit court to entertain jurisdiction of suits on official bonds, and we have never before heard it questioned. State ex rel. v. O'Gorman, 75 Mo. 370; State ex rel. v. Hickman, 84 Mo. 74; State to use v. Thornton, 8 Mo.App. 571. We think the above cases are decisive of this point. (2) And on the second point, section 5009, Revised Statutes, 1889, being section 5626, Revised Statutes, 1879, leaves no question. The language is too plain for construction; after stating that he shall make returns quarterly, it proceeds: "Such statement shall include all fees for all services of whatever character, done in his official capacity." Now, appellant's contention is that the services rendered by the county clerk under sections 3182 and 3184, Revised Statutes, 1889, and the payment for which is provided for in section 3207, are not "rendered in his official capacity." We are at a loss to find any warrant for this contention. The law says the county clerk shall "keep regular accounts between the treasurer, and the county," and to "keep just accounts between the county and all persons, bodies politic and corporate, chargeable with moneys payable into the county treasury," etc. Section 3184, supra. We can not discover the analogy between the services rendered by the secretary of state ex officio a member of the board of equalization. These services were rendered by Mr. McGrath as a member of the board of equalization, and not as secretary of state. But the services rendered by appellant were rendered as county clerk, and in no other capacity. We think the case of State ex rel. v. Hickman, is decisive of this point..

OPINION

Sherwood, J.

This cause, an action on the bond of the county clerk of Hickory county, has been transferred to this court on the ground, as recited in the order of the Kansas City court of appeals, that "it involves a constitutional question."

I. We do not discover any constitutional question involved in this record, but under the ruling in State ex rel. v. Tate, 109 Mo. 265, 18 S.W. 1088, the county of Hickory is the real party in interest as plaintiff, and so this court has jurisdiction in conformity to article 6, section 12 of the constitution.

II. The circuit court was the only court in which a suit on the bond in suit could be brought. The county court had no jurisdiction in such case. Numerous authorities in this court show this.

III. This action was brought in 1889, on the bond of Dent, as principal, and others, his sureties, for arrearage in his official capacity, and it was clearly shown that he was behindhand in his accounts for the years 1884 to 1886, inclusive, having been elected clerk at the general election in 1882. Under the provisions of section 5626, Revised Statutes, 1879, it became Dent's duty to "make return quarterly to the county court of all fees by him received to date of return; from whom received and for what services, giving the amount of each fee received, and of the salaries by him actually paid to his deputies or assistants, stating the same in detail and verifying the same by his affidavit."

The section further provides that: "Such statement shall include all fees for all services of whatever character, done in his official capacity," etc. And the section still further provides: "The county court shall, at each regular session, examine such statement, and may examine any person as to the truth of the same and allow all necessary clerk or deputy hire, not exceeding the amount allowed in the next succeeding section of this chapter for deputies or assistants, and deduct the same from the aggregate amount received by the clerk, and if there be an amount still in the hands of the clerk exceeding the sums specified in the next section succeeding, the court shall ascertain the amount of such excess over and above the amounts allowed to be retained by the clerk, and paid to deputies and assistants, and make an order directing such clerk to pay the amount so ascertained into the county treasury."

Section 5627 provides that "in all counties having a population of ten thousand and less than fifteen thousand persons, the clerks shall be permitted to retain one thousand, one hundred dollars for themselves," etc. Section 5628 provides that "it shall be the duty of such clerk, within fifteen days after such order has been made, to pay into the...