Case 82 — Agreed Case Between S. J. Shackelford and J. Morgan as to Outstanding Fee Bills due the Olerk of the Court of Appeals.

Feb. 24.

#### Chinn v. Shackelford.

APPEAL FROM FRANKLIN CIRCUIT COURT.

From the Judgment Chinn Appeals.

Reversed.

Clerk of Court of Appeals — 'Expiration of Term — Uncollected Fees —Right to Collect — How Appropriated.

Held: 1. Acts 1893, p. 1157, c. 226, section 44, providing that, when the term of any chief officer shall expire, he or his personal representative, trustee or committee, as the case may be, shall at once deliver to his successor in office all accounts, claims, and fees due to such officer in his official capacity, applies only to those officers who are required monthly to report the amount in their hands, and pay it into the State treasury, and are allowed to draw hack from the treasury, for salaries and expenses, not exceeding seventy-five per cent, of the amount so paid in, and does not apply to the clerk of the court of appeals, who collects his fees, and pays the salaries and expenses of his office, and at the end of the year pays the balance into the treasury.

2. When the term of the clerk of the court of appeals expires, his successor takes up the office where his predecessor put it down, and may properly collect any outstanding fees due the office and apply the money to the- conduct of the office, just as his predecessor might have done had he continued as clerk.

Opinion of the court by

JUDGE HOBSON

Reversing.

The term of S. J. Shackelford as clerk of this court expired on the first Monday in January, 1904. He was succeeded by J. Morgan Chinn. At the expiration of the term there were a number of fee hills outstanding, and unpaid, due the clerk of this court for services rendered. This agreed case between Shackelford, Chinn, and the Auditor *701of the State was 'filed to determine what should he done with these fee bills. The question turns on the construction of the provisions of sections 38-54 of the act “relating to fees,” approved June 15, 1893 (Acts 1893, pp. 1156-1162, c. 226"), which with some amendments, now constitute sections 1761-1777 Ky. St., 1903. As the question before - us turns on the construction of the original act, we will refer to the sections of it.

Section 38 is in these words: “The clerk of the circuit court, the clerk of the county court, commissioners, receivers, examiners, and the sheriff .of each county having a population of seventy-five thousand or over, shall, after the terms of the present incumbents, respectively expire, and on the first day of each month, severally send to the Auditor of Public Accounts a statement, subscribed and sworn to by each of them, showing the amount of money received or collected by or for each of them the preceding month as fees or compensation for official duties, and shall, with such statement, send to the Auditor the amount so collected or' received.” Section 39 provides that each of the officers mentioned above shall receive an annual salary of $5,000, and that the number of deputies, their compensation, and the necessary expenses of the office shall be fixed by an order of court, which shall be forwarded to the Auditor. Section 40 provides that the chief deputy shall re-’ ceive a salary of $2,000, and the other deputies not exceeding $1,500 each. Section 41 provides that the salary of each officer and his deputies, and the expenses of the office, shall be paid monthly by the Treasurer of the State upon the warrant, of the Auditor, if 75 per cent, of the amount paid into the treasury during the month is sufficient to- pay them, and that if there is a deficit for any month it may be made *702up out of the amount paid in any succeeding month.. Section 42 provides a penalty if the officer fails to make the report or pay the money any month. Section 43 makes it a felony if the officer knowingly makes a false report. Then follows section 44, which is in these words: “When the term of any chief officer shall expire, or he shall die or resign, or be removed from office, he or his personal representative, trustee or committee, as the case may be, shall at once deliver to his successor in office all accounts-, claims, and fees due to such officer in his official capacity; and it shall be the duty of such successor to have such fees, claims and accounts collected, or the Auditor may, in his,.discretion, when said accounts, fees and claims are so delivered to the successor, appoint some person to collect them,, and if he does, the successor shall at once, or at any time when demanded by such person, deliver to him all accounts, fees and claims uncollected. The- successor or the person appointed by the Auditor^ as the ca&e may be, shall every sixty days after receiving such accounts, fees and claims report to the Auditor, under oath, the amount collected thereon, and at the same time, pay to the Auditor the amount so collected, and shall continue to so report for three years, unless the accounts, fees and claims are sooner collected.” Section 45 directs that the Auditor shall draw his warrant on the Treasurer in favor of the person collecting for an amount equal to 20 per cent, of the sums so paid into the treasury, and that this shall be in full of the compensation allowed to collector. Section 46 provides that, if the amount paid to any officer during his term shall not have been sufficient to pay the salaries and expenses of the office, the Auditor shall, out of the money so collected, pay to the person entitled thereto an amount sufficient to supply the deficit due for salaries and expenses, but that *703he must not so pay exceeding 75 per cent, of the amount of fees which accrued during the term, and were collected and paid into the treasury. Section 47 and section 48 provide penalties for the violation of the above provisions. Sections 49-52, make similar provisions as to the jailer in counties having a population of 75,000 or over, the principal difference being that the jailer is required to report monthly not only his collections, but also all sums due him, money due from the State being treated as paid. Section 53 regulates the jailer, county clerk, circuit cl.erk, commissioners, receiver’s, examiners, and sheriff in a county having a population of over 40,000 and under 75,000. These are required to make annual reports, and to pay over annually the balance in their hands. Then follows section 54, which is the only one in which the clerk of the Court of Appeals is mentioned. So far as material it, as originally enacted, reads as follows: “The Clerk of the Court of Appeals and each assessor in a county having a population of over seventy-five thousand shall annually in the month of January report to the Auditor under oath the amount received by him .on account of his -official duties or position, from all sources during the preceding year, as well as the amount paid out by him for deputies! or assistants, giving the amount paid to each and for expenses of his office; and if it shall appear from such statement that any such officer received as compensation on account of his office from all sources more than four thousand dollars ($4,000.00) after the payment of his deputies or assistants and all the expenses of his office, such officer shall with such statement pay to the Auditor the amount so received in excess of $4,000.00. . . . The salaries of the deputies of the clerk of the ■Court of Appeals shall be fixed by an order of the Court of Appeals, a copy of which order shall be filed with the Auditor *704by the clerk of said court when made.” By an act approved March 4, 1898 (Acts 1898, p. 85, c. 31), the following words were added to this section: “If it shall appear from the reports required to be made to the Auditor by the clerk of the Court of Appeals under this section, that the amount earned and received by said clerk on account' of his office is not sufficient to pay him $4,000.00 together with the salaries of his deputies or assistants and the other legitimate expenses of his office, in any year, then said officer may retain out of money earned or received by him on account of his official duties in said office during the year or years following, enough to make up such deficit.” Another amendment to the act was made by the act of March 21, 1900 (Acts 1900, p. 73, c. 25), but it refers only to commissioners and receivers in counties having a. population of 75,000 or over, being an amendment to section 38 above quoted, and is therefore not material here. The case before us turns on the question whether section 44, above quoted, applies to the clerk of the Court of Appeals. If it does not, the fees due at the end of Shackelford’s term, being due the office, may be collected by the incumbent of the office. But if this section applies, these fees, whether collected by Chinn or by a person appointed by the Auditor, must be paid into the treasury, and are not available for the payment of the salaries or expenses of the office under section 54.

It will be observed that section 38 refers only to the clerk of the circuit court, the clerk of the county court, commissioners, receivers, examiners, and the sheriff of each county having a population of 75,000 or over. After the amount of the salaries of the officers and their deputies, and the necessary expenses of the office, are regulated in sections 39 and 40, it is provided in section 41 that 75 per cent, of the amount paid in by them monthly may be used to pay *705these salaries and expenses. In other words, the officers named are required to make monthly payments and monthly reports to the Auditor, and are allowed to draw back 75 per cent, of the amount so paid in. Then follow two sections relating to penalties, and then comes section 44, on which the case turns. At first blush it must strike any one that this section refers to the officers above mentioned, and that the reason why the fees must be collected and paid into the treasury is that the salaries and expenses of the officers may be paid out of the treasury as provided in section 41; and that this is the meaning is shown by section 46, which provides that out of the money so collected the Auditor shall pay any deficit due for salaries and expenses, not. exceeding 75 per cent, of the amount paid into the treasury, which is the same provision as to the per cent, as contained in section 41, which by its express terms applies only to the officers named in section 38. The clerk of the Court of Appeals '■ is not so limited to 75 per cent, of the fees collected by him. The next four sections of the act, 49-52, apply only to the jailer in counties having a population of 75,000 or over.

Section 53 applies to officers in a county having a population of over 40,000 and under 75,000. Section 54 applies to the assessor, in counties having a population of over 75,000, and the clerk of the Court of Appeals. It will thus be seen that by the act the officers are divided into four classes: (1) The clerk of the circuit court, clerk of the

county court, commissioners, receivers, examiners, and the sheriff in counties having a population of 75,000 or over; (2) the jailer in counties having a population of 75,000 or over; (3) the jailer, county clerk, circuit clerk,, commissioners, receivers, examiners, and the sheriff in counties having a population over 40,000 and under 75,000; (4) the *706clerk of the Court of Appeals, and assessors, in counties having a population of over 75,000. In classes 1 and 2 the money must be paid into the treasury by the officer, and only 75 per cent, of the amount so paid can be paid back on account of salaries or expenses of the office. In these classes also, monthly reports are made and monthly payments. In-classes 3 and 4 the officer pays the salaries and expenses out of his receipts, and pays into- the treasury the balance in his hands. Annual reports are made, and an annual payment of the balance in the hands -of the officer. As to classes 3 and 4, there is -no provision of law* for any money which is paid into the treasury being paid back to the officer, in any event, on account of salaries or the expenses of the office; and, if section 44 were held applicable to the clerk of the Court of Appeals, it would follow -that, if the clerk should die or resign, all fees due the office would have to be collected and paid into the treasury, and only 75 per cent, of the money could be withdrawn to pay the salaries and expenses of the office; although if the clerk had lived or had not resigned, the whole fund might have been used for this purpose. In carefully -thus classifying the different offices, and making essentially different provisions as to them, the Legislature showed a clear purpose not to put the clerk of this court under the provision enacted for certain offices in counties having a population of over 75,000; the reason being, no doubt, that litigation in this court varies, and it was deemed uncertain what, if any, surplus woald be left to the State after paying the expenses of the office; so it was deemed unwise to place such restriction as might cripple th-e public service.

For these reasons we conclude that section 44 does not apply to the clerk of this court, but that, as shown by section 46 and the context, it applies only to those officers who are *707required monthly to report the amount in their hands and pay it into the State treasury, and are allowed to draw back from the treasury, for salaries and expenses, not exceeding 75 per cent, of the amount so paid in; that it is intended to carry out this plan in case of the death or resignation of these officers, or the expiration of their term; for without it there would be no way of paying the salaries and expenses of the office unpaid at the death of the occupant or the expiration of his term — the plan, being that, if the officer lives or continues in office, he shall collect the fees and pay the money into the treasury; and if he dies or his term expires, another shall do so*. But as to the clerk of this court, a different scheme is made. He collects his fees, pays the salaries and expenses of his office, and at the end of the year pays the balance in his hands into the treasury. There is no reason under this plan that there should be a change at the end of the term of the clerk, or when he dies or resigns. When Shackelford’s term expired and Chinn succeeded him, the incumbent of the office only being changed, the latter took up the work where the former put it down, and might properly collect any outstanding fees due the office, and apply the money to the conduct of the office, just as the former might have done had he continued as clerk. In order that a proper settlement may he had by the Auditor with each of them, a list of these unpaid fees should be made out, and Chinn should receipt to Shackelford for them. Then the record of the office will show just what each received, and proper settlements can be made.

Judgment reversed, and cause remanded for a judgment as herein indicated.