Sewell v. Placer County

By the Court, Niles, J.: The plaintiff’s right to recover depends upon the construction of the Act of February 25th, 1858, “ concerning the office of County Clerk of Placer County.” (Stats. 1858, p. 29.)

Section one of the Act provides that the County Clerk shall “ receive, for all services required of him by law in his said office, * * * a salary at the rate of three thousand five hundred dollars per annum, which salary shall he in full for all services required of Mm. * * * And the money for the payment of the same shall be collected and retained by said Clerk in the manner hereinafter provided.”

Section three provides that the Clerk shall collect all official fees, “ and upon the first Monday in each and every month shall pay the same over to the County Treasurer of said county, less his salary for the next preceding month.”

The plaintiff was County Clerk, and during several months of his term the receipts for official fees did not equal the amount of his salary proportioned to those months; but the receipts for the entire year exceeded the amount of his salary. The Board of Supervisors refused to allow the plaintiff’s claim for the difference between the receipts for fees [653]and the salary for these months, and the plaintiff sues to recover it.

The defendant claims that the salary of the Clerk is only payable from the fund arising from collected fees. This is a forced construction of the statute. The provision of section one, that “the money for the payment of the same (the salary) shall be collected and retained by the Clerk,” and that of section three, requiring him to pay over the surplus of collected fees to the Treasurer, were evidently intended to secure to the county the revenue derivable from the excess of fees over salary upon the one hand, and to provide a convenient method for the payment of the salary upon the other. But they were not intended to lessen the amount of the annual salary as fixed by the Act.

This construction of these sections is aided by a consideration of the second section of the Act. This section authorizes the employment by the Clerk of a deputy, at a certain salary, but provides that the salary of the deputy shall not be allowed by the Board, “ unless there shall have been paid over to the County Treasurer, by the County Clerk, a sum or sums equal to, or greater, than the sum claimed to be due for services rendered by the said Deputy Clerk.” This restriction upon the allowance of the deputy’s salary, and the absence of any restriction in the case of the Clerk, shows satisfactorily that it was not the intention of the Legislature to limit the salary of the Clerk to the amount of fees received by him.