
    PEASE v. THE TERRITORY OF WYOMING.
    County Treasurer — Bees.—A county treasurer, under the statute of Wyoming, is not entitled to a percentage for paying over at the expiration of his term to his successor the funds of the county then remaining in his hands as such treasurer. He should only receive a percentage on the money paid out by him while performing the ordinary duties of his office.
    Error to the Second District Court, for Albany County.
    
      C. W. Bramel, for plaintiff in error.
    
      M. C. Brown, for defendant in error.
   By the Court,

Blair, J.

The only question involved in the case in the court below or here is one of law arising upon an agreed statement of facts submitted to the court below by the defendant in error in this court. Plaintiff below and the plaintiff in error here being defendant below. .

The question presented by the record is simply this: Is an outgoing county treasurer entitled, under the laws of this territory, to a percentage on moneys received by him as county treasurer and by him turned over to his successor in office. The court below decided this question in the negative, and rendered judgment against the defendant and in favor of the plaintiff for the amount, with interest, which apj eared by tbe agreed statement of facts; that tbe defendant, as county treasurer, bad retained, as a percentáge on the’moneys turned over by bim to bis successor in office. From tbis deeisionand judgment of tbe court below, the defendant in tbe court below and plaintiff in error here, appealed, and assigns as error:

1. That tbe facts set forth in said statement of facts submitting controversy, are not sufficient in law to maintain tbe aforesaid action thereof against tbe said L. D. Pease.

2. That tbe said judgment was given for said Territory of Wyoming, when it ought to have been given for tbe said L. D. Pease, according to tbe law of the land.

A proper construction of that part of section 60, page 564 of compiled laws of tbis territory, which prescribes .the compensation to be received by the county treasurer for bis services as treasurer, cannot, we think, fail to determine whether either of tbe errors assigned by the plaintiff in error are well taken. Section 60, before referred to, after prescribing tbe duty of each county treasurer, declares: “ and for bis services as treasurer be shall be allowed three per cent, on tbe dollar on all sums received and paid out by bim.” It is admitted in argument, that there must not only be a receiving, but paying out, to entitle tbe treasurer to tbe percentage mentioned in tbe statute, but it is maintained by tbe plaintiff in error, that a turning over to bis successor in office of all moneys in bis bands as treasurer is such a paying out within tbe meaning of tbe statute as entitles tbe outgoing treasurer to the percentage prescribed by law. We do not think so. Such a construction of the statute would do violence to tbe evident intent of tbe legislature. We think it is apparent that tbe legislature intended, and tbe obvious meaning of tbe section is, that tbe county treasurer- should receive for bis services three per cent, on the dollar, on all sums received and disbursed by bim in tbe manner prescribed by law, during bis continuance in office. When tbe term of bis office expires bis successor assumes, and is clothed with all its functions, and all moneys in tbe possession of the outgoing county treasurer passes with the office to his successor, and consequently is not paid out within the meaning of the statute, but remains in the treasury.

Counsel for the plaintiff in error also assumed the position in his argument before this court, that if the court should hold that a delivery or turning over by an outgoing treasurer to his successor in office, of all moneys in his possession as county treasurer, is not such a paying out as would entitle the treasurer to the percentage named in the .statute; then, in that event, he would be entitled, under section 12, page 346, of the compiled laws of this territory, to a reasonable compensation for his services.

The section referred to reads as follows: ‘ ‘ That for any services rendered by an officer, wherein no fees are allowed by this act, or any other act or provision of law, such officer shall be allowed a reasonable compensation therefor.” There is certainly no ambiguity in this Section. It simply provides that where no fees are allowed by law to an officer for services rendered, such officer shall be allowed a reasonable compensation for such services. But, inasmuch as section 60, before referred to, does expressly fix the compensation the county treasurer shall receive for the services alleged to have been performed by the plaintiff in error, we fail to see that section twelve, cited by counsel, has the-slightest bearing on the point this court is called upon to decide. We see no error in the ruling of the court below, and its judgment is affirmed; but, inasmuch as it appears to the court that there were reasonable grounds for the proceedings in error, the five per cent, mentioned in the statute is not allowed in this case.  