Opinion
June 10, 1941.
1. CLERKS OF COURTS: Fees: Accounting. Under Sections 11810 and 11816, Revised Statutes 1929, it is the duty of a clerk of a court of record to file quarterly reports of fees collected with the county court, and the county court shall then ascertain the amount of any surplus over the amount the clerk is authorized to retain, and shall make an order directing the payment of such surplus, and if not paid within fifteen days shall cause suit to be commenced on the bond of the clerk.
"Cause suit to be commenced" means by an order of record.
Both orders of the county court are a prerequisite to suit, except that where fees are omitted from the clerk's report the order ascertaining the surplus is not required.
2. CLERKS OF COURTS: Fees: Accounting: Pleading. Where the petition alleged that the clerk of the circuit court had retained fees in excess of the authorized amount and that the county court had entered an order directing payment, it was not sufficient on demurrer. It fails to allege an order for the suit, and whether quarterly reports were made, or if made, whether the fees in controversy were omitted from the reports.
3. APPEAL AND ERROR: Demurrer. Where the record does not show on what ground general demurrers were sustained, this is immaterial if the petition for any reason fails to state sufficient facts to constitute a cause of action.
4. CLERKS OF COURTS: Drainage District Fees. It is not necessary to decide whether the clerk of the circuit court is entitled to additionally retain fees earned in drainage district cases under Sections 12468 and 12469, Revised Statutes 1939.
Appeal from Livingston Circuit Court. — Hon. Ira D. Beals, Judge.
AFFIRMED.
Charles S. Greenwood and R.B. Taylor for appellant.
(1) During defendant Virgil B. Hunt's tenure as circuit clerk all fees allowed to be retained by him for his services as circuit clerk were fixed by the provisions of Section 11786, Laws 1933, as found at page 369 thereof. (2) Section 11814, Laws 1933, as shown at page 372, required the circuit clerk to collect, report and pay over all fees in excess of fees allowed to be retained by Section 11786, supra. (3) It was the intent of the Legislature to limit circuit clerks in the amount of fees they could retain and such intent is clearly shown by the proviso to be found in Section 11786, Laws 1933, at page 369, which proviso is as follows: ". . . provided, further, that clerks of the circuit court shall be allowed to retain in addition to the fees allowed under this section all fees earned by them in cases of change of venue from other counties; . . . "The office of a `proviso' is to limit or restrict the general language preceding it, and not to enlarge the enacted clause." Brown v. Patterson, 224 Mo. 639. "As a rule, exceptions in statutes are strictly construed." State v. Breckenridge, 219 Mo. App. 587. (4) All services rendered by a circuit clerk to a drainage district in the filing of tax suits, issuing summons therein, filing other pleadings, etc., are official duties of that office, and all fees taxed and collected therein must be reported and all sums in excess of the fees allowed to be retained by Section 11786, supra, must be paid into the county treasury. All fees collected by the clerk in his official capacity are held by him as trustee for the county and must be accounted for under the penalty of his bond. State v. Thatcher, 92 S.W.2d 640. "The salaries of clerks of circuit courts are fixed or limited by law. Section 11786, Revised Statutes 1929 (Mo. Stat. Ann., sec. 11786, p. 7007). Circuit clerks receive for their services in all civil proceedings fees as scheduled in Section 11785, Revised Statutes 1929 (Mo. Stat. Ann., sec. 11785, p. 7005)." State v. Dishman, 68 S.W.2d 797. (5) Fees allowed to be retained by a circuit clerk by virtue of Section 11786, Laws of Missouri, 1933, page 369, are in fact a fixed salary in full payment for all services rendered, and any fees allowed by any other statute to the clerk are the property of the county and must be accounted for. State ex rel. v. Dent, 121 Mo. 162; Callaway County v. Henderson, 119 Mo. 32; State ex rel. Callaway County v. Henderson, 142 Mo. 598; Callaway County v. Henderson, 139 Mo. 510; State to use v. Hickman, 84 Mo. 74. (6) Defendant Hunt's claim that he is entitled to retain all fees earned in drainage district tax suits filed in the office of circuit clerk is without foundation. He bases his claim on the provisions of Chapter 64, Revised Statutes 1929, and especially under the provisions of Section 10879 thereof. That part of Section 10879, supra, which states that "(in addition to the fees and deputy hire allowed under the provisions of Section 11811, Revised Statutes 1929)," does not apply to circuit clerks. Perkins v. Burks, 78 S.W.2d 845; Ward v. Christian County, 111 S.W.2d 182. (7) Even though defendant Hunt was entitled to retain the fees mentioned in Section 10879, Revised Statutes 1929, they would be but a small part of the fees collected by him in each drainage district tax suit filed in his office. Said section provides: "for filing each paper relating to a drainage or levee district, five cents; for issuing each subpoena, summons or notice, and for approving and filing each bond, twenty-five cents; for recording or copying each one hundred words and numbers, eight cents." In any event the above-mentioned statutes do not take into consideration the many fees to be charged and collected by the clerk under the provisions of Section 11785, Revised Statutes 1929. All duties performed by the circuit clerk in these drainage district tax suits were of the same nature as performed by him in any other civil suit and he collected fees in same according to the schedule set out in Section 11785, Revised Statutes 1929. (8) The fees mentioned in Section 10879, supra, do not refer to fees to be earned in a civil suit but to fees that might accrue in the organization or administration of a drainage district. Circuit clerk's fees in civil suits are provided for by Section 11785, supra. State v. Dishman, 68 S.W.2d 798. (9) Some of the fees earned by the circuit clerk in the drainage tax suits filed in his office were for taking acknowledgements of tax deeds, affidavits, etc. The clerk's acts in so doing were official, a part of the duties of his office and the fees so earned must be accounted for and paid over to the county. State to use v. Hickman, 84 Mo. 74. (10) Article 4, Chapter 64, Revised Statutes 1929, relating to drains and levees, and especially the sections contained therein under which defendant Hunt claims the fees in controversy, relates only to fees to be paid to county officers in organizing and administering the affairs of a drainage district and not to fees earned or services performed incident to the official duties of a circuit clerk. The title of this act clearly shows this. The subject matter of an act cannot be broader than the title. "No bill shall contain more than one subject, which shall be clearly expressed in the title." Art. IV. Sec. 28 Mo. Const.; State ex rel. Attorney General v. Macklin, 13 S.W. 680; State ex rel. Attorney General v. Miller, 13 S.W. 677. (11) The legal effect of defendants' demurrers to the petition was an admission by defendants of all of the petition's allegations. Goodson, Admr., v. Goodson, 140 Mo. 206.
Kitt Kitt and Chapman Chapman for respondents.
(1) The circuit court properly sustained demurrer of defendants to plaintiff's petition, because said petition failed to state any facts showing a right on part of plaintiff to recover fees sued for. The fees sued for, under the law, belonged to defendant, Virgil B. Hunt. Secs. 10878, 10879, R.S. 1929; Laws 1913, pp. 321, 323; Little River Drainage Dist. v. Lassater, 29 S.W.2d 716; Harris County v. Charlton, 243 S.W. 458, 228 S.W. 969. (a) The words "in addition to" used in Section 10879, Revised Statutes 1929, signified "an increase of" or "an accession to." In re Daggett, 9 N.Y.S. 654; Walther v. McSherry, 21 Mo. 76; Hart v. White, 26 Vt. 260; Ferguson's Estate v. Gentry, 206 Mo. 203. (b) The law pertaining to the incorporation, organization and administration of drainage districts, to-wit: Chapter 64, Revised Statutes 1929, includes Sections 10878 and 10879, Revised Statutes 1929, and is a code unto itself. Graves v. Little Tarkio Drainage Dist., 134 S.W.2d 70; Buschling v. Ackley, 192 S.W. 722; State ex rel. Harrison v. Hill, 253 S.W. 448; State ex rel. Scott v. Trimble, 272 S.W. 66; Bushnell v. Mississippi Fox Drainage Dists., 111 S.W.2d 946; In re Mississippi Fox Drain. Dists., 270 Mo. 157. (c) Section 11786, Laws 1933, page 369, fixes compensation for circuit clerks for duties incident to office. While Sections 10878 and 10879, Revised Statutes 1929, fix clerks' fees for extra and additional services not incident to the office. Little River Drainage Dist. v. Lassater, 29 S.W.2d 716; 31 C.J., 391; 40 A.L.R., p. 1052; 22 R.C.L. (Supp.), Vol. 7, p. 5227; State ex rel. v. Sheehan, 269 Mo. 421. (d) Section 11786, Laws 1933, is a general statute and Sections 10878 and 10879, Revised Statutes 1929, are special statutes. If these statutes are in pari materia, then it is the duty of the court to harmonize them. And it is a rule of statutory construction that where there is one statute dealing with a subject in general and comprehensive terms and another with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view of giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them, the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one; and when the general act is later, the special will be construed as remaining an exception to its terms. Unless it is repealed in express words or by necessary implication. If there is any repugnancy between those two statutes, the general must yield to the special statute. Little River Drainage Dist. v. Lassater, 29 S.W.2d 716; State v. Smith, 67 S.W.2d 50; State v. Brown, 68 S.W.2d 55; State v. Fulks, 247 S.W. 129; State ex rel. v. Drainage Dist., 252 Mo. 345; State ex inf. v. Amick, 247 Mo. 271; State v. Imhoff, 238 S.W. 122; State v. Crawford, 262 S.W. 341; State ex rel. City of Springfield v. Smith, 125 S.W.2d 883, 344 Mo. 150; Collins v. Twellman, 126 S.W.2d 231, 344 Mo. 330; State ex rel. McDowell v. Smith, 67 S.W.2d 50, 334 Mo. 653. (2) To construe 11786, Laws 1933, at page 369, as appellant contends, as providing the entire compensation for all services performed by circuit clerks, and as including those extra, special and different duties imposed on those clerks which perform duties for drainage, would prevent that section from operating uniformly, as all counties do not have drainage districts, and therefore it would be unconstitutional. Sec. 12, Art. IX, Mo. Const.; Little River Drainage Dist. v. Lassater, 29 S.W.2d 716. (a) The operation of a law means its practical working. Anderson's Law Dictionary. (b) "Laws uniform in their operation" means that such laws shall bear equally, in their burdens and benefits. Northern Pac. Railroad Co. v. Barnes, 2 N.D. 310, 51 N.W. 386. (3) It is a prerequisite to the bringing of a suit, such as brought by plaintiff herein, that the county court make an order authorizing suit to be brought in official bond of clerk. There is no allegation in petition of plaintiff that such an order was made and therefore said petition is insufficient. Sec. 11816, R.S. 1929; State ex rel. v. Dent, 121 Mo. 162; State ex rel. v. Chick, 146 Mo. 645; State ex rel. v. Henderson, 142 Mo. 598. (4) The phrase "or of any other statute" following the words "accruing to their offices under the provisions of Sections 11785, 11787, 11788," used in Section 11814, Laws 1933, page 372, under the rule of "ejusdem generis" and the maxim, "noscitur a sociis," are to be held to refer to such other statute as are those comprehended by the preceding limited and definite terms; that is, the words, "or of any other statutes" refer to ordinary fee statutes, if any, such as are Sections 11785, 11787 and 11788, Revised Statutes 1929, they being the statutes preceding the phrase "or any other statutes" and which fix schedules of fees, to be charged by clerks, accruing to their offices, and do not apply to fees fixed under the provisions of Sections 10878 and 10879, Revised Statutes 1929, which are special fee statutes, not the ordinary fee statutes as are Sections 11785, 11787 and 11788, Revised Statutes 1929. Mangelsdorf v. Penn. Fire Ins. Co., 26 S.W.2d 818; Puritan Pharmaceutical Co. v. Penn. Ry. Co., 77 S.W.2d 508; Misch v. Russell, 136 Ill. 22, 26 N.E. 528. (a) That the phrase, "or of any other statute," used in Section 11814, Laws 1933, page 372, was not intended by the Legislature to include fees and compensation to circuit clerks provided for in Sections 10878 and 10879, Revised Statutes 1929, is shown conclusively by the provision that clerk issue fee bill when fees not paid by party liable, because no fee bill could be issued against drainage district or any other person in a suit to collect drainage taxes, as there is no personal liability for costs. Chilton v. Drainage Dist., 63 S.W.2d 421. (5) A proviso is a clause engrafted on the preceding enactment for the purpose of restraining or modifying the enacting clause, or to except something from its operation which otherwise would have been within it. 59 C.J., sec. 638, p. 1087; Costilo v. State Highway Comm., 279 S.W. 673, 312 N.W. 244. (a) The operation of a proviso is usually and properly confined to the clause of the enactment which immediately precedes it. 59 C.J., sec. 640, p. 1090; State ex rel. v. St. Louis, 174 Mo. 125. (6) It is a rule of statutory construction that the spirit or intention of the law prevails over the letter thereof. This rule is applicable when adherence to the letter would result in absurdity, or injustice, or would lead to contradictions, or would defeat the plain purpose of the act, or when the provision was inserted through inadvertence. In following this rule, words may be modified or rejected and others substituted. 59 C.J., sec. 573, pp. 964, 968. (a) While, as a general rule, every word in a statute is to be given force and effect, words inadventently used, words to which no meaning at all can be attached, or words having no meaning in harmony with the legislative intent as collected from the entire act, will be treated as surplusage, and will be wholly disregarded in the construction of the act in order to effectuate the legislative intent. 59 C.J., sec. 592, p. 992; Webster Groves Sanitary Sewer Dist. v. Smith, 115 S.W.2d 816, 342 Mo. 365; State ex rel. v. Mooneyham, 253 S.W. 1098, 212 Mo. App. 573. (b) The cardinal rule for construction of statutes is to ascertain the legislative intent as determined from the words of the statutes, and the plain meaning of the language used must be given. Hannibal Trust Co. v. Elzea, 286 S.W. 371; State ex rel. v. State Board of Health, 65 S.W.2d 943. (c) The title of an act is essentially a part of the act and is itself a legislative expression of the general scope of the bill; it may be looked to as an aid in arriving at the intent of the Legislature. Holder v. Elms Hotel Co., 92 S.W.2d 620; Dart v. Bagley, 110 Mo. 42; Connecticut Mut. Life Ins. Co. v. Allnut, 39 Mo. 181; Strottman v. Railroad, 211 Mo. 227. (7) Appellant cannot recover on a cause of action not supported by its petition, nor can it ask an adjudication in this court on an issue not presented by its petition. Kleinlein v. Foskin, 13 S.W.2d 648; Richards v. Earls, 133 S.W.2d 381. (a) Appellant cannot recover on a cause of action not set out in its petition, or on a cause of action entirely different than that contained in its petition. Silverthorne v. Lumber Co., 176 S.W. 441, 190 Mo. App. 716; Baker v. Sovereign Camp. 116 S.W.2d 513, 233 Mo. App. 13. (8) It must be presumed that the respondent, as circuit clerk, did his duty. Waterman v. Chicago Bridge Iron Works, 41 S.W.2d 575. (9) The phrase "administration of any drainage district," as used in Section 10878, Revised Statutes 1929, means those duties performed by the county officers in carrying out of laws, the administration of the laws, pertaining to drainage districts. Those duties imposed by the drainage law on county officers and which they perform in relation to tax suits instituted by drainage districts are performed in the administration of the drainage district. 1 C.J., p. 1239. (10) It is no concern of plaintiff what schedule of fees were charged by respondent for his services. That is a matter between respondent and those who paid fees. Henry v. Woods, 77 Mo. 277. (11) Demurrer does not admit mere conclusions of law. Knapp-Stout Co. v. St. Louis, 156 Mo. 343; Hand v. St. Louis, 158 Mo. 204; State ex rel. v. Aloe, 152 Mo. 436. (a) Demurrer admits the truth of the allegations of substantive fact, but does not admit facts not well pleaded. 49 C.J., p. 434, sec. 543, pp. 438, 439, 440, 441, sec. 545; Stonemets v. Head, 248 Mo. 243.
At the time this suit was filed in the Circuit Court of Livingston County, December 16, 1937, defendant Hunt was clerk of said court and defendant Western Casualty and Surety Company was surety on his official bond. By its petition plaintiff sought to recover on Hunt's bond for alleged breach thereof in failing and refusing to pay into the county treasury certain fees alleged to have been collected by him in his official capacity in excess of the amount he was authorized by law to retain. Each defendant filed a general demurrer to the petition, which the circuit court sustained. Plaintiff declined to plead further and the court entered judgment for defendants, dismissing plaintiff's suit and taxing the costs against it. Plaintiff appealed.
Hunt was elected circuit clerk and ex officio recorder of deeds at the November, 1934, election for a four year term beginning January 1, 1935. He gave bond in the sum of $5000, with the Western Casualty and Surety Company as surety, conditioned that he should "faithfully perform the duties of his office and pay over and account for all moneys which may come to his hands by virtue of his office" and deliver to his successor, safe and undefaced, all books, records, etc., belonging to his office. The bond was duly executed and approved. The fees in controversy were collected by Hunt in suits instituted in the Livingston County Circuit Court by drainage districts for the collection of delinquent taxes due such districts. Appellant contends that all fees earned by the circuit clerk in civil suits filed in his office, "whether drainage tax suits or otherwise" are fees earned by him in his official capacity as clerk and must be accounted for by him. Respondents in their brief contend that under the law governing drainage districts, which they say is a "code unto itself," the fees in question were for services rendered to the drainage districts and that the clerk is entitled to keep such fees as his own, in addition to the amount he is authorized under the ordinary (or general) fee statutes to retain for himself and his deputies or assistants. For a clear understanding of the contentions of the parties and of the question on which we think this appeal must be decided certain statutes should be mentioned, viz., Sections: 11785, R.S. 1929, 13407, R.S. 1939, Mo. Stat. Ann., p. 7005; 11787, R.S. 1929, 13409, R.S. 1939, Mo. Stat. Ann., p. 7009; 11788, R.S. 1929, 13410, R.S. 1939, Mo. Stat. Ann., p. 7010; 11810, R.S. 1929, 13432, R.S. 1939, Mo. Stat. Ann., p. 7026; 11816, R.S. 1929, 13438, R.S. 1939, Mo. Stat. Ann., p. 7033. In referring to those statutes we shall, for convenience and brevity, give only the section numbers of the 1929 Revised Statutes.
Section 11785 provides a detailed schedule of fees to be received by clerks of circuit courts "in all civil proceedings" and Section 11787 provides a similarly detailed schedule for such clerks' services in criminal proceedings. Section 11788 specifies certain fees for circuit clerks in naturalization proceedings. Other statutory provisions, not necessary to mention specifically, set forth the amounts circuit clerks in counties of various populations may retain for themselves and for payment of deputies or assistants.
Section 11810 provides that every clerk of a court of record shall make return quarterly (in detail as therein provided), to the county court of all fees received by him in his official capacity to date of return, and of the salaries (also in detail) by him paid to his deputies or assistants; that the county court at each regular session shall examine "such statement" (report), may examine "any person" as to the truth of the same, allow all necessary clerk or deputy hire, not exceeding the statutory allowance therefor, and deduct 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 (total amount allowed to be retained), 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." There is added in such Section 11810 a proviso not affecting the issue here involved. (The "next Section succeeding," referred to in Section 11810 fixed the then aggregate amount that might be retained by the clerk for himself and for deputy hire. It has been changed by subsequent legislation but the change does not affect the question we are now called upon to decide.)
Section 11816 makes it the duty of the clerk to pay into the county treasury the amount ordered by the county court to be paid, within fifteen days after such order is made, and take duplicate receipts therefor, one of which he shall file with the county clerk who shall charge the treasurer with the amount thereof. Said Section 11816 further provides: "If any clerk . . . shall fail to pay the amount of money so ordered to be paid into the county treasury, and file the receipt therefor, within the said fifteen days, the county court shall immediately cause suit to be commenced on the official bond of such clerk for such amounts of money, together with interest, at the rate of twenty per cent per annum from the end of said fifteen days till paid."
Plaintiff's petition does not allege, directly or indirectly, that the county court made an order that suit be commenced on Hunt's bond, or "caused" suit to be commenced. Respondents contend that the failure so to allege rendered the petition fatally defective. Appellant in its reply brief says the suit was not brought "under the provisions of Section 11816," and further that "no reports, correct or otherwise, as to the fees in controversy were filed in the county court by the defendant circuit clerk and the evidence on a trial of this case will so show."
The petition alleges Hunt's election and qualification as circuit clerk and ex officio recorder, the giving and approval of his bond, which is set out, the population of Livingston County and that during all the time involved circuit clerks in counties of such population were allowed to retain for their services the fees of their offices not to exceed $1900 per annum, together with fees earned in change of venue cases from other counties, and that said $1900 plus said fees in change of venue cases constituted the total amount of fees that could be retained by Hunt. (There is no mention at this point of payments to deputies. $1900 was the then statutory compensation of the clerk and did not include deputy hire.) The petition then alleges that in all cases filed in his office it was Hunt's duty as clerk to charge and collect every fee accruing to his office under the provisions of Sections 11785, 11787 and 11788, R.S. 1929, "or any other statute" of Missouri. "and to make quarterly reports thereof to the county court and quarterly such clerk shall pay into the county treasury the amount of all fees collected in excess of the sum permitted to be retained for his services or other purposes permitted by statute." (Was the phrase "or other purposes permitted by law" intended to refer to salaries paid for deputy hire? It is not explained in the petition.) The petition then pleads the alleged breach of the bond thus:
"Plaintiff further states that the defendant, Virgil B. Hunt, has been guilty of a breach of said bond, in this, that he, as the duly elected and qualified Circuit Clerk of Livingston County, Missouri, collected the sum of $9514.76 in excess of all fees and compensation allowed to be retained by him for his services or other purposes and has failed, refused and neglected to pay said excess fees into the county treasury; that the said sum of $9514.76 represents fees required to be collected by the Circuit Clerk of Livingston County, Missouri, in certain drainage district tax suits and to be paid over by said Circuit Clerk to the treasury of Livingston County, Missouri, quarterly; that said fees together with the title and number of the case as filed in the Circuit Court of Livingston County, Missouri, and by the defendant, Virgil B. Hunt, collected, are in words and figures as follows, to-wit:"
Here follows a list of several hundred cases. We quote the first, as illustrative of all: "Nov. 1st, 1935, Rich Hill D.D. v. Crookshanks et al., case No. 32112, $1.75."
Following said list of cases the petition alleges that the county court of Livingston County, by its proper order entered of record, (date not alleged) ordered Hunt to pay into the county treasury the excess fees collected by him "over the amount payable to him and allowed to be retained by him as his compensation and for other purposes," (again "other purposes" not explained), but that said Hunt failed and refused and still fails and refuses to pay over any part of such excess. (The order of the county court is not set out.)
The petition then proceeds:
"Plaintiff further states that the total monies so collected by defendant in excess of all fees allowed to be retained by him for any purpose is Nine Thousand Five Hundred Fourteen and 76/100 ($9,514.76) Dollars.
"Plaintiff further states that by reason of the breaches of bond aforesaid and the failure of said Virgil B. Hunt to pay over to said County the fees in excess of those to be retained by him for his services and for all other purposes allowed by law, the County is damaged in and entitled to the sum of Nine Thousand Five Hundred Fourteen and 76/100 ($9,514.76) Dollars.
"Wherefore, plaintiff prays that damages be assessed and that plaintiff have judgment against the defendants for Five Thousand $5,000) Dollars, the penalty of said bond, and that execution issue against the defendants for the amount of damages that may be assessed on said bond, together with interest thereon, and for all costs and general relief."
In State ex rel. Hickory County v. Dent et al., 121 Mo. 162, 25 S.W. 924 (which for brevity we shall call the Dent case), a suit on a county clerk's bond, the suit was for arrearages in the clerk's payments to the county treasury. The case was tried, resulting in a judgment for the plaintiff, which on the defendants' appeal this court reversed. This court referred to and quoted from Section 5626, R.S. 1879, then in force, requiring every clerk of a court of record to make quarterly reports to the county court and that such court should examine the report, ascertain whether there was an excess of money in the clerk's hands over what he was entitled to retain, and if there was such excess to order the clerk to pay same into the county treasury. The court also called attention to Section 5628, R.S. 1879, providing that if the clerk failed to obey such order within fifteen days the county court should cause suit to be commenced on his bond. The provisions of said Sections 5626 and 5628, R.S. 1879, requiring the filing by the clerk of quarterly reports, examination thereof by the county court and an order of such court to pay the excess, if any, and that upon his failure so to do the county court should cause suit to be commenced on his bond were the same as in Sections 11810 and 11816, R.S. 1929. They apply to both county and circuit clerks. In the Dent case this court held that the making of the order by the county court for the payment of the excess and that, upon the clerk's failure to pay, the county court should order suit brought, were both conditions precedent to the maintenance of the suit. It did not appear that the county court had made either of such orders. This court said, 121 Mo. l.c. 169, 25 S.W. 924:
"The general rule of the law is that, whenever a particular and statutory method of proceeding is pointed out as the one to be pursued, then such method is exclusive. And this is true, although there is a general power under which courts or officials would have been able to perform the act. Yet as the Legislature imposed a special limitation, it must be strictly pursued. [ Hudson v. County Court, 28 Ark. 359; Sutherland on Statutory Construction, sections 454, 392, 393.]
"Under these statutory provisions and authorities, it was a condition precedent to Dent's being in default that the county court should have had a settlement with him and at that settlement made an order requiring him to pay over the excess, to which he was not entitled, into the county treasury, and it was also a condition precedent that, on the failure of Dent to comply with such order within fifteen days after its making, such court should order suit to be brought on the bond of the clerk; but neither of such orders was made. Therefore judgment reversed." (Italics the court's.)
The county court is a court of record and speaks by its record. In the Dent case the court obviously treated the language "shall immediately cause suit to be commenced" as meaning that the county court should cause that to be done by an order of record.
State ex rel. Jackson County v. Chick et al., 146 Mo. 645, 48 S.W. 829 ( en banc), was a suit against the sureties on a county clerk's bond to recover fees alleged to have been unlawfully withheld by the clerk. On appeal it was urged by the defendants that the petition did not state a cause of action because it did not allege that the county court, after examination of the clerk's quarterly reports, had made an order directing him to pay the money sued for into the county treasury, nor that, upon the clerk's failure to pay, the county court had directed suit to be brought. The petition in that case charged that the clerk, in his quarterly reports, failed to include the fees in controversy, and at no time reported or accounted for them and that the county court approved the reports of fees without knowledge or information that the omitted fees had been received and not reported, and that the clerk obtained the approval of his reports by the false statements therein that they contained the total of all fees collected. The court, in holding that the petition stated a cause of action, distinguished the Dent case, saying that there the clerk made a correct report of fees received by him and there was no charge of fraud, deceit or failure to make a fair and proper return of his collections; and that "The petition in the case at bar proceeds on an entirely different theory. The charge here is, that the clerk wholly failed to report or account for the fees sued for, and that the county court was induced to approve his quarterly statements in ignorance of the fact that they had been collected, and in reliance upon the false statement that said reports contained the total fees received by him."
The court then said that the petition alleged that the county court had no knowledge or information of the collections and the clerk and his sureties could not, after his failure to mention them in his returns, escape liability or defeat the action because no order was made, upon approval of those settlements, for him to pay over the money "of which the court was kept in ignorance." The court further said that in the situation presented it was not a prerequisite that an order for suit upon the bond should have been made; that the statute making such requirement only applies when there is a failure for fifteen days to pay into the treasury the amount ascertained to be due, and "if the omission of an order to pay over the funds will not defeat this action, it follows, that the non-observance of the procedure directed to be taken for disobedience of such order cannot have that effect." (Italics the court's.) The court cited State ex rel. Callaway County v. Henderson, 142 Mo. 598, 44 S.W. 737, and Callaway County v. Henderson, 139 Mo. 510, 41 S.W. 241.
In State ex rel. Callaway County v. Henderson the petition alleged that the county clerk had made false quarterly returns, omitting therefrom the fees sued for and concealing the fact that he had collected them. There was no averment in the petition that the county court had complied with the statutory requirement that it ascertain the amount of excess, etc., and make an order directing the clerk to pay it into the county treasury. The court distinguished the Dent case on that point, as was done in State ex rel. v. Chick supra, and held that as to the fees received by the clerk and not reported it could not be said they were acted upon by the county court and that "The partial returns made by the clerk and approved by the court do not stand in the way of an action at law for money had and received to the use of the county, for they only cover a certain class of fees, and were so understood by both the clerk and the court." In that case, however, the petition alleged that the county court had made an order directing suit to be brought for the excess fees. The petition was held to state a cause of action.
In Callaway County v. Henderson, supra, the Dent case is not referred to but the petition alleged that the clerk had made a "pretended return" purporting to show the total amount of fees received by him but that said return was false in that it omitted fees (those sued for) which he had collected.
State ex rel. Christian County v. Gideon et al., 158 Mo. 327, 59 S.W. 99, was a suit against the circuit clerk and ex officio recorder and his bondsmen to recover fees alleged to have been collected in excess of the sums he was entitled to retain. The suit was brought after the expiration of Gideon's term of office. The petition alleged that Gideon had failed to keep correct accounts of fees received and that, while he had made returns to the county court purporting to show all fees received such returns were false, omitting many fees (set out) which he had collected and had not reported; that the county court, in ignorance of the falsity and omissions of the quarterly returns had approved them, but upon discovery of the facts had made an order directing Gideon to pay into the county treasury the excess ascertained by the court to be due and when he failed to do so within fifteen days ordered suit brought on his bond. The trial court sustained a demurrer to the petition. This court reversed that action, holding the petition sufficient and again distinguishing (but not disapproving or criticizing) the Dent case, saying, 158 Mo. l.c. 337:
"While the statute prescribes the mode of procedure for the recovery of the balance ascertained to be due upon the quarterly settlements of the clerk, and in such an action, it was held in State ex rel. v. Dent, 121 Mo. 162, that an order, requiring him to pay over the excess to which he was not entitled, and in case of his failure to do so, an order requiring suit to be brought on his bond, were conditions precedent, without which such action could not be maintained. It did not undertake to prescribe the mode of procedure for the recovery of damages for a breach of duty by the clerk in failing to make true and proper returns as required by the statute. The breaches assigned in the petition in this case are not for failure to pay over the excess found to be due on the settlements with the clerk, but for his failure to make true returns by which such excess could have been properly ascertained. To such a case the orders required by this statute are obviously not applicable, and their existence or averment is not essential to plaintiff's cause of action, as has been expressly ruled by this court." [Citing State ex rel. v. Chick, State ex rel. v. Henderson and Callaway County v. Henderson, supra.]
While the Dent case has been distinguished in subsequent decisions, as above pointed out, we have not been able to find any decision of this court criticizing its holding that an order of the county court to commence suit is a condition precedent to the maintenance of the suit in a situation where Sections 11810 and 11816, R.S. 1929 are applicable.
We are inclined to think the petition in the instant case presents such a situation. The theory of the petition, and the only theory on which plaintiff can recover, if at all, is that the fees sued for are fees which accrued to Hunt's office of circuit clerk — that is, fees which he received in his official capacity as such clerk. The petition is based upon the proposition that the fees sued for are fees of that character. If so, it was Hunt's statutory duty as clerk to make quarterly reports of such fees to the county court. The petition states that it was his duty so to do, but does not allege whether he did so or not. We cannot presume that he did not do his duty in that regard, nor can we accept as an averment of the petition the statement in appellant's reply brief that no reports as to the fees in controversy were filed in the county court. The petition must be judged on a demurrer to it by what it alleges or fails to allege, not by what counsel may say in their briefs are the facts. The petition charges breach of Hunt's bond in that he failed and refused to pay the alleged excess fees into the county treasury, not that he failed to make reports correctly showing such fees, as it was his duty to do. Failure to make such reports would constitute a breach of his bond, State ex rel. v. Chick, supra, 146 Mo. l.c. 654, 48 S.W. 829, but such failure is not pleaded. If he did make such reports, as he may have done for aught that appears in the petition, and the county court examined them, as in such event it would have been the court's duty to do, and approved them, questions might arise that are not presented by the petition in this case.
But, on the other hand, even if we are wrong in thinking that Section 11816, R.S. 1929, is applicable under the facts as pleaded, and if Hunt did not make reports, or if he made quarterly reports but omitted therefrom the fees in controversy, as in the Chick, Henderson and Gideon cases, supra, it seems to us the petition should have so alleged, as in those cases, so as to present the issue to be tried on this question. The petition alleges that Hunt had in his hands an excess of fees of $9514.76 over the amount he was authorized to retain, and that the county court, "by its proper order entered of record" directed him to pay said excess into the county treasury, but as we have said there was no allegation as to whether or not he had made quarterly reports or if he had, that he had omitted therefrom these fees, nor any allegation as to when the county court made its order to pay over said excess. That order must have been made after September 15, 1937, because that is the date of the last item of the alleged $9514.76 excess. When or how the county court ascertained that there was such excess, or why it did not act sooner, if it sooner made such ascertainment, are matters not disclosed by the petition.
The record does not show on what ground the circuit court sustained the demurrers. They were general demurrers, that the petition did not state facts sufficient to constitute a cause of action. If for any reason the petition so failed, the action of the circuit court must be affirmed. It is our conclusion that said demurrers were properly sustained for the reasons above indicated.
Both parties have briefed the question of whether the fees in controversy are fees earned by the clerk in his official capacity as clerk, like fees in civil cases generally, and to be accounted for accordingly, or whether, as respondents contend, said fees were for services rendered to the drainage districts and under Sections 10878 and 10879, R.S. 1929, Sections 12468 and 12469, R.S. 1939, Mo. Stat. Ann., p. 3578, belong to the clerk in addition to the compensation allowed under what respondents term the ordinary fee statutes and do not have to be accounted for by him. In view of our conclusion above announced, which disposes of this appeal, a discussion of this question might be considered somewhat obiter and anticipatory. If further proceedings are had in the circuit court the pleadings may present issues not presented by the petition herein. We deem it best to reserve consideration of this question for a case in which it calls for decision.
The judgment of the circuit court is affirmed. Westhues and Bohling, CC., concur.
The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur.