### 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.onsargued, 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 feewhich must be paid tothe United States Treasury. 22 U.S.C. § 214. The collection of thispassport fee is not disputed by the parties inthis case. The second fee, which is the center of this dispute, is a $5 execution feewhich "may be collected and retained by any State officialbefore whom an application is executed." 22 C.F.R. 

### 5 51.61(b), Flatz contends that she should be allowed toretain this execution fee forher personal use. Hamilton, conversely, contends the execution fee should be remitted tothe county general fund. In Montana, no specific statuteexistswhich imposes an officialduty upon a clerk of District Court toexecute passport applications. Nor 

### is there a specificMontana statutewhich requires that an execution fee collectedby a clerk of DistrictCourt be paid over tothe county treasurer. The legislature did, however, enact a general statute relating tothe collection of fees, which states inpart: "No salaried county officermay receive for his own use any fees, penalties, or emoluments of any kind, except the salary asprovided 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 interpretingthis statuteinlightof execution fees. We stated, "There being no statutory duty imposed upon the clerks of court concerning the issuance of passports, 

### it isnot a duty of theiroffice forwhich they areregularly compensated 

# . .

# . Therefore,. 

# . . the 

# . .

# . fee collected for issuing passports may be retained by the clerks of court inthe various counties of the state, and the clerks of court arenot required todeposit the samewith the county treasurer for deposit inthe 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 "officialservice" 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 courtmust pay the execution fees to the county treasurer. We do not agree with the latestAttorney 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 inAnderson 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 determinewhether a clear legislative enactment existed, the court inAnderson 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 asmay be required of him by the supreme court. "52-503(2) [R.C.M. 19471. Fees. Allfees collected by [theclerk of the Supreme Court] must be paid intothe statetreasury, allof which shallbe credited tothe credit of the State law library fund." In light of these statutes, the court could find no legislative enactment clearly identifying feespaid by West Publishing Company tothe clerk as compensation owing 

### to the state. In the present case, no statestatuteexistswhich imposes a duty upon a clerk of DistrictCourt toexecute passport applications. Nor 

### is there a statutewhich clearly requires the clerk toremitthe execution feetothe county treasurer. Therefore, there 

### is no "legislativeenactment clearly identifying [monies collected] as compensation owing to the State.

### " supra. Anderson stated a second reason why clerks should be allowed toretain the fee: "Under Section 82-504, supra, the State 

### is clearly entitled to any monies collected by the clerk while actinginhis officialcapacity and performing the duties therein enumerated and the converse 

### is equally true that the State 

### isnot entitled toany fees except those 

### set by law." Anderson at409, 357 P.2d at901. In the present case, the Statehas not provided for the disposition of execution fees, even though Congress gave the Statethe power todo so. 22 U.S.C. S 214. Therefore, the State has not "setby law" any fee relating tothe execution of passports. A third reason stated inAnderson is that a function performed by a clerkmust be "demanded by law." Anderson at

### 409, 357 P.2d at 902. In the present case, a clerk of District Court is not "demandedby 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 "anofficer is not obliged,because his office is salaried, to perform all manner of public servicewithout 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 StatesConstitution, in the area of passports, the Statecannot fixa fee for execution of passport applications. The statelegislature can, however, provide that any feecollected for the execution of applications shallbe paid tothe county treasurer. InMontana, the legislaturehas failed toenact a specific statutewith regard toexecution fees. Therefore, no debt is owed by the clerks tothe county treasurer for execution fees in passport cases, Wehold that since the execution of passport applications isnot an officialduty imposed upon a clerk of District Court by state statute, and since the legislaturehas not enacted a specific statutewith regard tothe disposition of execution fees, the clerk has no duty toremit the fees to the county general fund. The summary judgment of the District Court is reversed, with instructions toenter summary judgment in favor of the clerk-appellant.

WeConcur: 9. r 

### I I 2%

. b- 

## ( Justice 

## BMr. Justice Daniel J. Shea dissenting:

I would affirm the trialcourt's judgment requiring the county clerk to

### remitthe passport fees tothe county treasurer. The clerk collects the passport fees during business hours, county 

### time

### is used, county personnel is used toprocess the applications, county equipment 

### is used and preswtably county postage 

### is used tomail the passport applications toSeattle for finalprocessing. The service 

### isrendered by the clerk solely because of the clerk's official status. I agree with the opinion of theAttorney General which held that: "The fact that a stateofficialperforms a function under federal rather than state law does not necessarily mean that he orshe 

### is not rendering an official service. When the individual 

### ispermitted toperform the function solelybecause 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) at46. The clerks collect the feesunder color of their office. Absent a statute specifically allowing clerks to retain the fees, the fees should be turned over tothe county treasurer. When the clerks took officethey did so

on the assumption that their compensation was governed by section 7-4-2503, MCA. This statutedoes not permit the clerks toalso collect compensation inthe form of passport fees.