
    The County of Delaware v. Griffin.
    1. Fees! redemption. The fees paid to the treasurer of the county for a certificate of redemption, under § I1!1! of the Revision of 1860, should be accounted for by that officer to the county, and applied as other fees collected by said officer are applied by law.
    
      Appeal from Dubuque District Court
    
    Friday, October 14.
    The defendant was Recorder and Treasurer of Delaware county, duly elected and qualified, for two years from the first Monday in January, 1860. For each year he received from the county the salary to which he was entitled under §§ 422 and 428 of the Revision; but aside from this sum, received no salary as Treasurer. During the time that he was thus in office, he, as treasurer, issued to the' purchasers at tax sales, under chapter 45 of the Revision, 2,858 certificates, for which he received from said purchasers, thirty-five cents each, amounting in the aggregate, to $825.30. This sum, the said treasurer retained for his own use, and did not pay, or account for the same to the county. All these facts are admitted, and the question submitted is, whether this sum belongs to the county, or to said defendant. Upon an agreed case, embodying the above facts, the court below found for plaintiff, and defendant appeals.
    
      Bissell & Chiras for appellants.
    
      Cooky & Mghmay for appellee.
   Weight, Ch. J.

By § 777 of the Revision (being a part of chap. 45), it is declared that the County Treasurer shall make out, sign and deliver to the purchaser of any real estate, sold for the payment of taxes, a certificate of purchase; and that for each certificate so delivered, the purchaser shall pay a fee of fifteen cents to the clerk of the board of supervisors, and thirty-five cents to the treasurer. The question submitted for our consideration is, does this fee of thirty-five cents belong to the treasurer, or must he account for it to the county ? A recorder is to be elected in each county every alternate year. The person thus elected is the treasurer of the county; he holds said office for the same time, and is charged with the duty of collecting the taxes. He is required to give bond and qualify, both as recorder and treasurer; and an omission to qualify as either, is a refusal of both offices. (Rev., §§ 473, 3589.) Tbe recorder is to receive “as tbe only compensation for tbe performance of tbe several duties of bis office (unless as otherwise expressed), an annual salary, to be paid quarterly from tbe county treasury, and to be ascertained and graduated as follows,” &e. He is required to keep an account of all tbe fees received by bim as prescribed by law for bis office, entering tbe date, amount, and name of tbe person paying them. These fees be receives to bis own use to the extent of Ms salary, but must render an account as often as once in each quarter; and if tbe amount thus received is less than his salary for tbe quarter, be may draw tbe balance from tbe county treasury. (Rev., §§ 422-424.) All fees of tbe recorder are to be deemed a part of tbe county revenue, and appropriated as provided by law, but are to be paid in cash (§ 4162), and no officer is allowed fees, or other compensation for any services, further than is expressly permitted by law. (§ 4131.) Tbe recorder is required to charge certain fees for recording, which are to be paid in advance, and be is to be charged with them as so much money actually received. (§§4143,4144.) Under these provisions it is claimed that, though tbe person elected recorder is ex officio treasurer, the offices are distinct, that the fees in dispute were given to the treasurer as compensation for extra services, to be paid by tbe person receiving tbe certificate, and tbe county cannot compel the treasurer to account for tbe same. In this construction we cannot concur. Tbe section providing for tbe election of this officer, styles bim “treasurer and recorder.” And, while another section declares that the recorder shall be tbe treasurer, this by no means makes tbe two offices distinct. Tbe same officer collects and accounts for the county revenue, and attends to tbe registry and recordation of deeds and all other instruments properly filed for record. But be is to receive but one salary — tbe same annual compensation for tbe discharge of all tbe duties devolving upon him, in both capacities. Tbe fees received by him when acting as treasurer be is as much bound to account for as those received as recorder. In either relation, be is tbe trustee of tbe county, and must receive and account for them to tbe county. They are a part of tbe county revenue, but be may retain sufficient to pay tbe salary allowed him by law. If this is not so, then be is not required to account for any fees that be may receive as treasurer, but may retain the same as extra compensation, in tbe face of tbe statute, which says that all fees received by this officer, belong to tbe county revenue, and that be shall receive no compensation farther than is expressly permitted by law. Tbe statute allowed the same salary to tbe county judge, clerk and recorder. From this, we. argue that tbe salary to tbe latter officer was to cover bis duties as treasurer. For we are warranted in saying that tbe recorder’s duties, as such, were not so onerous as those devolving upon the clerk and judge. Neither are tbe duties imposed upon one who attends to tbe separate work of recorder, so responsible as in tbe other offices, and hence, their several salaries were arranged in view of tbe duties attached to each.

Then, again, if this salary is not to be treated as compensation for tbe duties of treasurer, as well as recorder, there is a large, and by far tbe heaviest part of tbe treasurer’s work, for which be receives nothing. We have seen that be is collector of tbe taxes in bis county. This includes tbe state, county, school, road and other levies, and yet no provision is made for paying him for all this labor and responsibility unless it is through tbe salary allowed him as recorder. Now, bow improbable and even unreasonable is tbe theory which gives tbe treasurer extra compensation for tbe little matter of issuing certificates, and jet allows bim nothing for the main labor and responsibilities of his office. And yet, if the offices are to be treated as distinct, he is required to incur all the risk, and* perform all the labor of collecting the revenue for nothing. If thus distinct, then the legislature has failed to pay him for that which occupies the greater portion of his time in some counties, and yet has been careful to give him the fees for work occupying but little time, involving but little labor, and yet in the line of, and connected with, his duties as such treasurer and collector. Not only so, but the theory of the statute, and of our system of compensation to officers, in force when their services were rendered, was to give salaries a fixed and definite compensation, rather than to pay them in fees. In some, and indeed most of the States, this officer receives his compensation in fees. Under such a system the compensation in some counties would be very large and ample remuneration, while in others it would be the smallest pittance. Our law graduated the compensation in some proportion to the population of the county, and it was intended to cut off all other compensation than that named as salary, unless, in some special cases, extra allowance should be made by the proper accrediting officer or board. And it never was contemplated, as in the case before us, that beyond this salary, the recorder, or judge or clerk should receive four hundred dollars, or a greater amount even, to his own use, without liability to account for the same. Not only so, but the law provides that if any tax, interests or costs are paid, which are found to be erroneous or illegal, they are to be refunded by the treasurer on the order of the board of supervisors. If the county does not get this fee, or this part of the costs, why should it refund it ? And will it be pretended that the county must pay that which the treasurer retains as extra compensation? Then again, if land is sold by tbe mistake or wrongful act of tbe treasurer, tbe county is to bold tbe purchaser harmless, by paying him tbe principal, interest and costs to which be would have been entitled from tbe owner or party redeeming, if it bad been rightfully sold. We ask again, why make tbe county thus liable for costs, if a part of them belong to tbe treasurer, without any liability to account for tbe same. But without referring to other provisions of tbe statute, or presenting more at length tbe reasons leading to tbe construction, we conclude that it was tbe duty of defendant to account to tbe county for these fees. Tbe main foundation of appellant’s argument, to wit: that tbe salary is for tbe recorder, and for tbe duties of that office proper, and that it was not intended thus to compensate him for bis duties as treasurer, is not well founded, and as a consequence, bis whole superstructure falls. Tbe money received by him is “fees,” within tbe meaning of tbe law, and be has no more right to retain it than any other fee paid him as recorder. If tbe duty required of him involves extra work, or tbe employment of a deputy, or other clerical aid, tbe county board may allow him extra compensation. But be cannot retain such fees, and thus by bis own act increase tbe compensation given him by law.

Affirmed.  