
    U. S. Wolfe, Appellee, v. The Board of County Commissioners of the County of Lyon, Appellant.
    
    No. 16,539.
    SYLLABUS BY THE COURT.
    1. Clerk op the District Court — Fees and Salary. Under the ’ provision of section 3030 of the General Statutes of 1901 (Laws 1899, ch. 141, §1), a clerk of the district court in a ■ county having a population of more than 20,000 and not more than 30,000 is entitled to receive all the fees. of his office charged and collected for services rendered by him, if such fees do not exceed the amount of $1400 per annum; if they do exceed that amount, then he is entitled to receive one-half of the additional fees charged for services rendered by him.
    2. --Fees Collected by Successor. In such a county the clerk retired from office at the expiration of his term. He had received the sum of $1400 per annum during the time he was in office. He left a large amount of fees charged upon the books of his office for services rendered by him. These fees were collected by his successor from time to time, and paid to the county treasurer. Held, that one-half of such fees belong to the retiring clerk and one-half thereof to the county.
    Appeal from Lyon district court; Frederick A. Meckel, judge.
    Opinion filed May 7, 1910.
    Reversed.
    
      W. C. Harris, and O. S. Samuel, for the appellant.
    
      L. B. Kellogg, W. L. Huggins, and C. M. Kellogg, for the appellee.
   The opinion of the court was delivered by

Graves, J.;

This is an action against the board of county commissioners of Lyon county, commenced by a former clerk of the district court to collect fees claimed to be due him for services rendered while in office, but collected by his successor. The action was tried in the district court of that county, where judgment was rendered in favor of the plaintiff, and the county has appealed to this court.

The plaintiff claims that all back fees collected by his successor belong to him, while the county claims that he is entitled to only one-half thereof. The question involves an interpretation of the statute relating to fees and salaries, being section 3030 of the General Statutes of 1901 (Laws 1899, ch. 141, § 1), which reads:

“The clerk of the district court in the respective counties of this state shall charge, as full compensation for their services as required by law to be performed by clerks of the district court, the fees as hereinafter provided :
For filing each paper, five cents........................ $0.05 Docketing each action on appearance docket, or execution docket, each, fifteen cents............................15

[Here follows a list of the specific fees the clerk is allowed to charge and collect.]

“Provided, further, that the clerk of the district court in counties having the following population may retain all fees collected as hereinafter specified: . . . In'counties having a population of more than 25,000 and not more than 30,000, per annum, $1400; . . . 'and if in any year the fees collected shall be more than the sums above specified . . . the said district clerks shall pay to the county treasurer . . . one-half of such excess, when collected, taking duplicate receipts therefor, one of which they shall file with the county clerk; and such money shall become part of the general fund of the county.”

It is conceded that the population of Lyon county is such that this statute applies to it. The money in controversy represents the fees earned by the plaintiff while he was in office and by him charged upon the books of his office. His successor in office collected it and deposited it with the county treasurer; a small sum was paid to the county clerk.

It seems clear that the fees and salary law intended that the clerk should receive all the fees of his office if they did not exceed the sum of $1400 per annum; and, if they did exceed that sum, that he should receive, in addition to the sum of $1400 per annum, one-half of all other fees earned by him. The plaintiff received the sum of $1400 per annum while he was in office, and the fees in. controversy are in excess of that amount. He is therefore entitled to only one-half of such fees. The remainder belongs to the county.

We are unable to concur in the conclusion reached by the district court. Its judgment is reversed, with direction to divide the fund in controversy between the plaintiff and the county, equally, taxing the costs to the plaintiff.  