Opinion
No. 33147.
April 4, 1938.
1. CLERKS OF COURT.
Under statute allowing chancery clerk certain fees for particular services and, for "other services," fees allowed circuit clerk for similar services, and subsequently providing for general allowance for other services, "other services" referred to in first provision must be similar to services for which fees are particularly provided in statute governing fees of circuit clerk, and hence chancery clerk is entitled to general allowance for "other services" only under second provision of statute governing his fees, and not under statute governing fees of circuit clerk, providing for general allowance for services not particularly provided for (Code 1930, section 1786, subsecs. (t), (y); section 1788, third subsec. (c).
2. STATUTES.
The Supreme Court was required to accept construction of provision of Code of 1880 governing fees of chancery clerk, where such construction was brought forward in subsequent codes and treated as part of the statute itself (Code 1930, section 1786).
APPEAL from the circuit court of Pontotoc county; HON. THOS. H. JOHNSTON, Judge.
J.A. Covington, Jr., of Meridian, and A.M. Mitchell, of Pontotoc, for appellants.
Under 1930 Code, Section 1786, it is apparent that the Chancery Clerk is entitled to the compensation particularly provided for including that under subsection (y) "For other services as clerk of the board of supervisors and as clerk of the Chancery Court." Under sub-section (t) he is entitled "For all other services, the same fees as are allowed clerks of the Circuit Courts for similar services."
Section 1788 sets out a fee schedule for circuit clerks and under "additional fees (c)" it says: "For public services not particularly provided for, the circuit court may allow the clerk, per annum, to be paid by the county on the order of the board of supervisors, to be entered on the presentation of the circuit court's order, the following amounts:"
It appears that the only case we have which bears directly upon the point is Ex parte Thomas, 59 Miss. 522, which was cited by the plaintiff in the lower court. That decision was in construction of provisions of the Code of 1880 and obviously is not applicable to the statutes as they now appear in the 1930 Code.
Section 1786 provides specific fees for the chancery clerk and in addition provides payment for acting as clerk of the court and of the board from the county treasury. For the various official duties not specifically mentioned he is compensated under sub-section (t) "for all other services, the same fees as are allowed clerks of the circuit courts for similar services." In other words, he is compensated under Section 1788, Additional (c), upon same terms as the circuit clerk.
There is no sound reason why a statute providing certain compensation for one clerk should necessarily be balanced off, so to speak, with a corresponding statute for the benefit of the other clerk and nothing is to be gained by undertaking to weigh Section 1786 against Section 1788 or subsection (y) of 1786 against subsection additional (c) of 1788. There is no reason on earth why the legislative authority should make the compensation for these two offices equal or even nearly equal.
The circuit clerk has a fee schedule. He is paid for services in criminal matters. In addition, there is a blanket provision under which he is paid "for public service not provided for." The chancery clerk has a fee schedule. He is paid for services as clerk of the court and board and in addition Sec. 1786 (t) makes available to him the blanket provision "for public service not provided for." Each plan of compensation is complete with itself and neither is dependent on the other.
E.C. Sharp, of Booneville, for appellee.
By comparing Sections 1786 and 1788, Code of 1930, it will be seen that the circuit clerk is allowed specified fees for many services that are not enumerated in Section 1786, but the same services as are therein specified and compensated for are performed by the chancery clerk.
The chancery clerk is frequently called upon to perform all the duties enumerated in Sec. 1788 and but for subsection (t) of Section 1786, he would receive no compensation for these services. It was evidently the intension of the legislature to allow to chancery clerks compensation for these services when rendered, and instead of enumerating them in Section 1786, it authorized the collection of these fees by subsection (t) which provides that the chancery clerk shall receive: "For all other services (other than those enumerated in Section 1786) the same fees as are allowed clerks of the circuit court for similar services;" the fees allowed under subsection (t) being fees that are paid by the litigants and taxed as cost and are not paid out of the county funds.
Subsection (t) Section 1786 is the same as the provision set out in Section 442, Code 1880. The concluding sentence of said section being as follows: "For all other services the same fees as are allowed clerks of circuit courts for similar services." And our court construed this provision of Section 442, Code of 1880, in the case of Ex parte Thomas, 59 Miss. 522, said: "The `other services' for which the clerk of the chancery court may charge such fees as are allowed clerks of the circuit courts, are such services" as are named in Section 443.
The decision in the above case appears to definitely determine the correctness of the circuit court's ruling in this case.
The Chancellor must approve the allowances made under subsection (y) section 1786, but that subsection specifies exactly what services the clerk shall render for the compensation therein allowed, and in the present case the Chancery Clerk had allowed to him and drew the compensation provided for in subsection (y). The ex parte approval by the Chancellor of an illegal and unauthorized allowance cannot make such an allowance legal.
Chatters v. Coahoma County, 73 Miss. 351.
Section 445 of the Code of 1880 is almost word for word like the provisions set out in Section 1788 of the Code of 1930, and provides for the allowance of fees in cases in which the state fails or in felony cases where the costs cannot be made out of the estate of the convict.
Argued orally by E.C. Sharp, for appellant.
J.B. Gully, State Tax Collector, brought suit against T.B. Gilmore, Chancery Clerk, and the surety on his bond, and J.E. Hooker, E.L. Johnson, John Morris Tutor, J. Frank Butler and Kelly Stewart, members of the Board of Supervisors, and the sureties on their respective bonds, for allowances made to T.B. Gilmore for $200 for each year of the period from 1932 to 1936, on warrants issued every six months on claims presented to the Board of Supervisors by Gilmore for alleged services under subsection (t) of section 1786, Code of 1930, such claims reading as follows: "Pontotoc County, Dr., to T.B. Gilmore, Chancery Clerk. To amount for services first half of 1932 as other service of the Chancery Court, Laws 1930, 1786, $100.00. Examined and approved for $100.00, this the 12th day of July, 1932. [Signed] James A. Finley, Chancellor. Filed on the 12th day of July, 1932. Claim No. 1350. Paid by warrant No. 573 on 8/4/32, at regular meeting of Board on 8/4/1932." At intervals of six months other warrants of the same character and wording were filed, and allowances made therefor, and paid out of the county treasury.
It was alleged in the amended bill that said T.B. Gilmore, the defendant, had claimed and been allowed $500 under subsection (y) of section 1786, Code of 1930; that said Gilmore collected and received from the common county fund of Pontotoc county, Miss., the sum of $500 for each of the years; that the sums allowed Gilmore by the Board, and drawn from the common fund of the county by him, as set out in the original declaration, were claimed by him under and by virtue of the provisions of subsection (t), section 1786, Code of 1930; and that such sums were allowed by the said Board of Supervisors, acting in their official capacity, without authority of law, were illegally withdrawn from the common fund of Pontotoc county, and received by Gilmore without authority of law; that the said Gilmore was not entitled to receive from Pontotoc county, or from any fund belonging to said county, any compensation, under the provisions of subsection (t) of section 1786, Code of 1930.
To the amended declaration a plea was filed by the defendants, alleging that the plaintiff should not recover against them, because, during the period in which the several payments were made to the defendant Gilmore, Pontotoc county was, by its assessed valuation of real, personal, and public service corporations property, a member of a statutory class of counties in which circuit clerks were entitled by law to compensation of $200 per annum for public services not specifically provided for, if allowed and ordered by the court; that section 1786, Code of 1930, under subsection (t) thereof, provides that the chancery clerk is entitled to the fees allowed clerks of the circuit court for similar services; that from the nature of the office and otherwise T.B. Gilmore, as chancery clerk, rendered public services not provided for, and became entitled to such compensation as was allowable to clerks of the circuit court under third subsection (c), section 1788, Code of 1930, for such additional fees for public services, not provided for, if the chancery court saw fit to allow the same; that, in view of the statutory provisions, and under the facts set out in this plea, the said payments complained of were entirely legal and proper, and authorized by law; that the chancery court of Pontotoc county adjudicated that the defendant was entitled thereto; and that the Board of Supervisors had a right to pay the claims, and he to receive them.
This plea was demurred to, the demurrer was sustained, and, the defendants declining to plead further, judgment was entered in favor of the State Tax Collector for the said sums demanded in the declaration; from which judgment this appeal is prosecuted.
It will be noted from a comparison of section 1786, Code of 1930, allowing fees of the chancery clerk, and section 1788 of the Code, allowing fees to the circuit clerk, that there are specific fees allowed to the circuit clerk which are not specifically enumerated in section 1786 allowing fees to the chancery clerk. But subsection (t) of section 1786 reads as follows: "For all other services, the same fees as are allowed clerks of the circuit court for similar services." In subsection (y) of section 1786 it is provided as follows: "For other services as clerk of the board of supervisors and as clerk of the chancery court, an allowance may be made to him, within the discretion of the board of supervisors, upon the approval of the chancellor of the district, payable semi-annually at the July and January meetings out of the county treasury as follows: In counties where the assessed valuation of real, personal and public service corporations property does not exceed five million dollars, an annual sum not exceeding $500.00." This is the provision applicable to the county here involved. There are provisions applicable to other counties, increasing the amount of the allowance to the chancery clerk.
Under third subsection (c), section 1788, Code of 1930, it is provided: "For public service not particularly provided for, the circuit court may allow the clerk, per annum, to be paid by the county on the order of the board of supervisors, to be entered on presentation of the circuit court's order, the following amounts: . . . In counties where the assessed valuation of real, personal and public service corporations property exceeds fifteen million dollars, an annual sum not exceeding $200.00."
It is manifest that the Legislature did not intend to provide in two separate specific sections for these services not otherwise enumerated, so as to allow the chancery clerk compensation twice for the same services.
It was held in Ex parte Thomas, 59 Miss. 522, construing section 442, Code of 1880, in connection with section 444 of the same Code, providing for fees for circuit clerks, which is the same as subsection (t) of section 1786, Code of 1930, that the chancery clerk was not allowed other than specified fees stated in the fee bill of the circuit clerk for similar services. The court said: "The `other services' for which the clerk of the Chancery Court may charge such fees as are allowed clerks of the Circuit Courts, are such `services' as are named in section 443. By comparison of the fees allowed to clerks of the Circuit Courts by sections 443, 444, it will be seen that the fees for the same services are not the same in civil and criminal causes. In civil causes, a fee of seventy-five cents is allowed for each writ other than those specifically named. In criminal cases the fee is for each writ other than subpoenas. In civil cases, he is allowed for each subpoena with one name twenty-five cents, and for each additional name ten cents, while in criminal cases he is allowed twenty-five cents for one name and five cents for each one additional. In civil cases, for entering each motion and order twenty-five cents, while in criminal cases the fee is fifteen cents. It is apparent that the criterion for fixing the charges must be one or the other, and not both, of these sections. The services rendered by clerks of the Chancery Courts are in civil cases only, and the fees to which they are entitled are chargeable only to litigants."
This is a construction of the statute brought forward in subsequent Codes to 1880, and is treated as part of the statute itself, which the court must accept. It is manifest that the Legislature did not intend to allow double compensation for unspecified services, and the court below was correct in entering judgment sustaining the demurrer to the plea, and rendering final judgment, and the judgment is affirmed.
Affirmed.