No. 82-64 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

LOIS PLATZ, Clerk of Court, 

Big Horn County, Montana, 

Plaintiff and Appellant, 

LORRAINE HAMILTON, Treasurer, 

Biq Horn County, Montana, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Big Horn 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert J. Em.ons argued, Great Falls, Montana 

For Respondent: 

James E. Seykora, County Attorney, argued, Hardin, 

Montana 

Submitted: September 16, 1982 

Decided: November 4, 1982 

Filed: hi,^ 4- 1982 
Mr. Justice John C. Sheehy delivered the Opinion of 

the Court. 

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. 5 51.61(b), 

Flatz 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. We 

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 595. 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, "[tlhe right of 

the state to monies collected depends upGn some legislative 

enactment clearly identifying them as compensation owing to 

the state." Anderson, 138 Jlont. 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. 19471. 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. 

"52-503(2) [R.C.M. 19471. 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. S 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 at 902. In the present case, a clerk of 

District Court is not "demanded by law" to execute passpcrts 

applications. By federal law, the clerk of the District 

Court is merely authorized to execute passport applications. 

22 C.F,R. S 51.21(b). Mere authorization to perform an act 

does not impose a mandatory duty upon a public official. If 

a statute is permissive, as the federal regulation is here, 

there is no "clear mandatory duty" to perform the function 

enumerated by the statute. Dreyer v. Board of Trustees 

(1979) , Mont. - , 598 P.2d 205, 209, 36 St.Rep. 1396, 

Fourth, the court in Anderson stated that "an officer 

is not obliged, because his office is salaried, to perform 

all manner of public service without additional conpensation, 

and for services performed by request, not part of the 

duties of his office, and which could have been as appropriately 

performed by any other person, he may recover a proper 

remuneration." Anderson at 412, 357 P.2d at 903, quoting 67 

C.J.S. Officers, 326, S 88. When executing passport 

applications, a clerk of District Court is performing a 

discretionary act. It is not "part of the duties of his 

office," as prescribed in sections 3-5-501 to 3-5-515, PICA, 

to execute passport fees. In addition, many other persons, 

including post office personnel, may execute passport 

applications. Therefore, the clerk of District Court "may 

recover a proper remuneration." 

Finally, the court in Anderson emphasized that where 

there is no state statute fixing a fee, no debt is owing to 

the State Treasury. Anderson at 412-413, 357 P.2d at 903. 

Because Congress has imposed the supremacy clause, Art. VI, 
Clause Two of the United States Constitution, in the area of 

passports, the State cannot fix a fee for execution of 

passport applications. The state legislature can, however, 

provide that any fee collected for the execution of applications 

shall be paid to the county treasurer. In Montana, the 

legislature has failed to enact a specific statute with 

regard to execution fees. Therefore, no debt is owed by 

the clerks to the county treasurer for execution fees in 

passport cases, 

We hold that since the execution of passport applications 

is not an official duty imposed upon a clerk of District 

Court by state statute, and since the legislature has not 

enacted a specific statute with regard to the disposition of 

execution fees, the clerk has no duty to remit the fees to 

the county general fund. The summary judgment of the District 

Court is reversed, with instructions to enter summary judgment 

in favor of the clerk-appellant. 

We Concur: 

9. 

r I I 2% 

. b- ( 

Justice B 
Mr. Justice Daniel J. Shea dissenting: 

I would affirm the trial court's judgment requiring 

the county clerk to remit the passport fees to the county 

treasurer. The clerk collects the passport fees during 

business hours, county time is used, county personnel is 

used to process the applications, county equipment is 

used and preswtably county postage is used to mail the 

passport applications to Seattle for final processing. 

The service is rendered by the clerk solely because of the 

clerk's official status. 

I agree with the opinion of the Attorney General which 

held that: 

"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) at 46. 

The clerks collect the fees under color of their 

office. Absent a statute specifically allowing clerks to 

retain the fees, the fees should be turned over to the 

county treasurer. When the clerks took office they did so 

on the assumption that their compensation was governed by 

section 7-4-2503, MCA. This statute does not permit the 

clerks to also collect compensation in the form of passport 

fees.