
    McLENNAN COUNTY v. BOGGESS et al.
    (Supreme Court of Texas.
    May 24, 1911.)
    1. Statutes (§ 199) — “Clekk.”
    The word “clerk,” when used in the statutes, means clerk of the court in which an action is brought, or is pending, or in which a px-oeeeding is had (quoting 2 Words and Phrases, 1226).
    [EM. Note. — Por other eases, see Statutes, Cent. Dig. § 277; Dec. Dig. § 199.]
    2. Justices oe the Peace (§ 16) — Commissions on Pines — Clerk.
    Code Cr. Proc. 1895, art. 1143, entitling the clerks of courts in which fines, etc., are recovered to a commission thereon, does not authorize compensation to justices of the peace for clerical services performed by them in cases in which fines were collected.
    [Ed. Note. — Por other cases, see Justices of the Peace, Dec. Dig. § 16.]
    Certified Question from Court of Civil Appeals of Third Supreme Judicial District.
    Action by McLennan County against Albert Boggess and others. On certified question from the Court of Civil Appeals, Third District.
    Question answered.
    J. N. Gallagher, for appellant. Cross, Gross & Street, for appellees.
    
      
       For other oases see same topic and section NUMBER in Dee, Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DIBRELL, J.

The cause comes to this court upon certified question from the Court of Civil Appeals of the Third Supreme Judicial District, and involves the construction of article 1143 of the Code of Criminal Procedure, as it relates to the commission of 5 per cent.'on all fines, forfeitures, or moneys collected for the state or county,'authorized to be paid to the clerk of that court, in which such judgments are rendered, when collected. In order to get a thorough understanding of the questions propounded, we'quote the certificate in full, as follows:

“McLennan county instituted this suit against Albert Boggess and the sureties on his official bonds as- justice .of the peace, seeking to recover judgment for $210.75, alleged to have been collected by Boggess in his official capacity as pecuniary fines assessed-by him and not paid overto the county. The defendants answered, and it is only necessary to state that the pleadings presented the question hereby certified. The case is submitted in this court upon the trial judge’s findings of fact, which are as follows:
“ ‘Findings of Fact.
“ ‘In the above styled .and numbered cause, before me, Thos. P. Stone, as special county judge, upon consideration of the evidence, I find that the defendant Albert Boggess was elected justice of the peace in and for precinct No. 1, McLennan county, Texas, on November 6, 1906, and qualified as such on December 12, 1906, by taking oath of office and entering into a bond with the other defendants, Mrs. N. E. Boggess, J. O. Latimore, and B. Rotan, as sureties, serving for the full term of two years; that on the 3d day of November, 1908, tbe defendant Albert Boggess was again elected justice of the peace of said -precinct, qualifying as such on December 12, 1908, by taking the oath of office and entering into a bond with the other defendants, Mrs. N. E. Boggess and E. Rotan, as sureties, entering upon the. duties of said office, and has continuously since said 12th day of December, 1906, performed the duties of said office, receiving the compensation provided by law for his services as such officer, and is now performing the duties of said office.
“ T find, among the duties incumbent on the defendant Albert Boggess as such justice of the peace, he was required to render judgments and assess fines and penalties against parties charged with crime in his court, and to collect the pecuniary fines and penalties assessed against said parties under said judgments rendered by him, which moneys, when collected .under said judgments, he was required to pay over to the county treasurer of McLennan county, Texas, less the commissions allowed by law, and make quarterly reports of said collections to the commissioners’ court of said county; that during the time commencing August 1, 1907, and ending April 30, 1910, the defendant Albert Boggess collected from various and sundry parties during each month thereof pecuniary fines and penalties imposed by him as judge of said court, aggregating a large sum of money; that in accordance with the law and his official duty he paid to the treasurer of said county the amounts of money so collected, less 10 per cent, due and payable to the county attorney of said county, 5 per cent, due and payable to the constable of said precinct, retaining 5 per cent as his commission for collecting said sums of money, and the other 80 per cent, he paid to the county treasurer of said county, making reports quarterly to the commissioners’ court of said county, as shown by Exhibit A-of plaintiffs petition, which I find to be correct, the total amount of the commissions retained by him out of the money so collected being the 5 per cent, here in issue on all fines collected for the period mentioned, and sued for herein, and judgment asked for being $210.75. I find that $84.40 thereof was collected and retained by the defendant Boggess under his first bond and prior to December 12, 1908, and the remainder, $126.35, was collected by said defendant under his second bond and subsequent to December 12, 1908.
“ T further find that since 1879 all justices of the peace in McLennan county have retained as their commission the 5 per cent, commission for collecting such judgments, and their accounts have been allowed and no question raised as to the correctness of their acts prior to August 1, 1907.’
“The trial court held that the defendant Boggess was the clerk of his own court, within the purview of article 1143 of the Code of Criminal Procedure, and therefore entitled to retain 5 per cent, of all fines received by him, and rendered judgment against the county. The latter has appealed, and, by brief containing proper assignments of error, etc., has presented that question to this court for decision; and it being doubtful whether the question can be brought before the Supreme Court in any other manner, and it being a question of public interest, affecting the rights of many counties and officers throughout the state, we deem it proper to certify the question to the court of last resort, with the suggestion that it be decided as soon as' possible. For the convenience of the court we here copy the article of the Code referred to:
“‘Art. 1143. The district or county attorney shall be entitled to ten per cent, on all fines, forfeitures or moneys collected for the •state or county, upon judgments recovered by him, and the clerk of the court in which such judgments are rendered shall be entitled to five per cent, of the amount of said judgments, to be paid out of the amount when collected.’
“With the foregoing statement and explanation, the Court of Civil Appeals certifies to the Supreme Court for decision the following question:
“Did the trial court commit error in holding that article 1143 of the Code of Criminal Procedure authorized appellee Boggess to retain 5 per cent, of the fines collected by him ,as compensation for clerical services performed by him in the cases in which such fines were collected?”

In the light of our system of laws there •seems to be little or no ambiguity in the lan- . guage of article 1143, Code of Criminal Procedure of 1895, in so far as it relates to those . officers entitled to receive a commission from all fines, forfeitures, or moneys collect- . ed for the state or county. 'It provides that the county or district attorney shall receive .. 10 per .cent, upon such judgments recovered ' by him, and the clerk of the court in which ’ .such judgments are rendered shall be entitled to 5 per cent, of the amount of said judgments, to be paid out of the money when collected. Evidently the statute relates to such judgments for fines, forfeitures, or money as may be recovered in the courts of justices of the peace, as such courts have jurisdiction to render judgments in such matters, as well as the county and district courts; and unless by a .construction of this statute the word “clerk” can be extended by im-plaction to mean “justice of the peace,” no provision has been made for paying the justices of the peace a commission out of such judgment when recovered in their courts. The Constitution of this state provides for the offices of county and district attorneys, county and district clerks, and prescribes the duty and authority of such officers, making the county clerk the clerk of the county and commissioners’ court (article 5, § 20), and provides for the election of district clerks (article 5, § 9). The office of justice of the peace is also created by the Constitution (article 5, § 18), and thereby he is made a judicial officer, with power, to try and determine cases, both civil and criminal. The law clearly provides for a clerk of the county and commissioners’ court and for the district court, but no provision, either by the Constitution or statute, is made for a clerk of the justice court. While the justice court is not recognized for all purposes as a court of record, and the presiding justice of such court is not recognized as a judge, yet his court is clothed with judicial powers as definitely as the county and district courts, and while his acts, functions, and duties are both judicial and ministerial he has never been recognized as a clerk by our Constitution, or by any statute of this state, or by any decision of this state that we are familiar with, nor has he ever been by any recognized authority in this state denominated a “clerk.” There exists in-this state no authority for the appointment of a clerk for the justice’s court. The law, as drawn from the several statutory provisions relating to the courts of justices of the peace, prescribing the duties of justices and fixing their compensation, seems to have contemplated that such officer should, in connection with his judicial functions, also exercise and perform those of a ministerial nature. Although the office of a justice of the peace is not remunerative, provision seems to have been made for fees for all such ministerial services; his duties as defined requiring little, if any, ex officio work.

With regard to the collection of fines, forfeitures, or money due the state or county, while article 1013, Code of Criminal Procedure, charges justices of the peace with the duty of collecting money, within the meaning of articles 1010, 1Ó11, ánd 1012 of the Code of Criminal Procedure, which relate to the collection of money in the name of the state, and the report thereof to- the respective district courts of their several counties, and of money collected for the county to the commissioners’ court for each county, and prescribing the nature of such report, it is clear that the exercise of such duty of collection means only their authority to receive the money from the person adjudged to pay, or from the officer by whom it is in fact collected, and pay over to the proper source. It is immaterial whether or not the justice, as such officer, should in the exercise of his duty be required to perform some services without compensation having been provided therefor by law. Such is held to be incident .to the office, upon the acceptance of which the obligation to perform is imposed. The mere fact that the nature of his office and the duties imposed require him to perform, in addition to judicial, certain ministerial services, is not sufficient to warrant the implication that, because 5 per cent, of the judgment collected is awarded the clerk of the court in which such judgment is recovered, therefore it was the intent and purpose of the lawmaker to include in the term “clerk” that of justice of the peace.

It may be profitable, as throwing light upon a proper construction to be given the article under discussion, to note the accepted legal definition of the word “clerk,” when used in statutes, which is as follows: “The word ‘clerk’ means the clerk of the court in which the action is brought, or is pending, or in which the proceeding is had.” Words and Phrases, vol. 2, p. 1226.

It is urged by appellees’ counsel that inasmuch as the statute uses the general term in speaking of clerk, and in describing the attorneys who shall receive a commission of 10 per cent, refers to them in limited terms as county or district attorneys, this fact indicates a purpose, and that the general term “clerk” was intended to include the justices of the peace, who occupy the dual position of judicial and ministerial officer. In other words, it is contended that, if it was not the purpose of the Legislature to include the justice as a clerk, the language would have been that the county or district clerk shall receive a commission of 5 per cent. There might be some significance in the suggestion, if it were not true under the law that either the district or county attorney may appear in either the' county, district, or justice court for the purpose of securing the judgment upon which the commission allowed is based, and the purpose of the law was to give the commission to the proper officer, whether county or district attorney, who procured the judgment. In awarding a commission to the clerk, it was not necessary to make the provision dis-junctively; for it was well known that the clerks could not alternate in the performance of their duties, as the one was the officer of the county court and the other of the district court, and if the judgment was rendered in the county court the county clerk would receive the commission, and the district clerk would receive the commission if rendered in the district court.

The courts of this state have adopted the rule of construing strictly those statutes prescribing fees for public officers and against permitting such fees by implication as regards both the fixing of the fees and the officer who is to receive them. In construing articles 2389 and 2393, Rev. Stat. 1895, before their amendment, the Supreme Court, in Hallman v. Campbell, 57 Tex. 55, had this to say, discussing the question whether the clerk or sheriff should make the copy of the citation without a fee, as bearing upon the rule of construction in such cases: “The statute, however, does not expressly give to either compensation for this service, and the sheriff, in the absence of a provision to that effect, would not, more than the clerk, be required to perform it gratuitously. Although the statute prescribing the fees for officers requires that the fee allowed the county clerks for issuing the original citation shall include that of the copy also, and the statute in regard to the fees of the district clerk does not contain a similar provision [Rev. St. acts 2389, 2393], yet we do not feel authorized to infer that the Legislature thereby intended that the district clerks shall, by implication, be allowed fees not expressly provided for.”

Again, in the case of State v. Moore, 57 Tex. 321, where the county attorney of Travis county sued to recover 10 per cent, commission on judgment recovered by him for the state against a defaulting tax collector, when the civil statute provided for a commission without fixing the amount, and it was attempted to justify 10 per cent, by virtue of the very article we are here construing, Judge Stay ton had this to say: “It is not believed that any well-considered case can be found in which a public officer has been permitted to collect fees, unless the same are provided for and the amount thereof declared by law. * * * No public officer can. withdraw from the" state treasury, or impede in its course to the treasury, any money without a law authorizing him to do so, and clearly fixing the amount.”

We cannot believe the Legislature intended, by giving to the clerk of the court in which the judgment for a forfeiture, fine, or money was rendered and collected, a commission of 5 per cent., to include the justice of the peace under the term “clerk”; but we rather think it was an oversight. This view is strengthened when we consider that, wherever the Constitution or the statute clothes the justice of the peace with some new official paraphernalia, it is done by express provision. He is by virtue of the office of justice of the peace a notary public; but he is such by express act of the Constitution. He is a magistrate and a coroner; but by virtue of direct legislative act. In short, whatever recognized official character he possesses in this state, in addition to that of judicial officer of justice of the peace, he possesses by virtue of positive constitutional or legislative declaration. He possesses nothing in the way of official character by implication.

We are cited to a number of cases by ap-pellees, particularly the following: Carter v. Louisiana Pur. Ex. Co., 124 Mo. App. 530, 102 S. W. 6; Scott v. Spiegel, 67 Conn. 349, 35 Atl. 262; Banister v. Wakeman, 64 Yt. 387, 24 Atl. 769, 15 L. R. A. 201; Tompkins v. Sands, 8 Wend. (N. Y.) 462, 24 Am. Dec. 48; McGourin v. U. S. (D. C.) 102 Fed. 557; Thompson v. Jackson, 93 Iowa, 376, 61 N. W. 1004, 27 L. R. A. 92. All the authorities cited in support of appellees’ contention are cases of other states, and no one of the cases cited, as appears from a careful inspection of each of them, had for determination the question involved in this case. Not only was the question in this case not involved in any of the cases so cited and relied upon by appellees, hut no question remotely analogous was there presented, unless perhaps in the case of McGourin v. U. S. The case of Carter v. Louisiana Purchase Exposition Co. involved the question whether the correction of an improperly entered judgment by a justice of the peace, or under his direction, was the revision of a judicial or ministerial act. The case of Scott v. Spiegel involved the validity of a mittimus issued after adjournment of court, and hinged upon the fact whether the issuance of said process by the justice was a judicial or ministerial act. If judicial, the writ was void, having been issued after adjournment of court; if ministerial, it was valid. The court held the act ministerial. The same, or almost the same, point was in the ease of Banister v. Wakeman, where the justice unlawfully issued the writ of mitti-mus pending an appeal and was sued for damages. The court held the act ministerial, and not judicial, and therefore the plaintiff had a cause of action. The case of Tompkins v. Sands involved the question whether the approval of an appeal bond by a justice was a judicial or ministerial act. The justice had corruptly refused to approve the bond, and if the act of approving the bond was a judicial act the plaintiff had no cause of action; but if ministerial, he had a cause 'of action. The court held the act ministerial. Likewise did the case of Thompson v. Jackson involve the question whether a certain act of the justice was judicial or ministerial. In all of these cases is found the declaration in substance, that the justice performs both the functions of judicial officer and clerk; but it is not decided in either of the cases referred to that the terms “justice” and “clerk” are synonymous. The cases do not, in our judgment, form a basis for the contention of ap-pellees.

In consequence of the views herein entertained and expressed we think the trial court committed error “in holding that article 1143 of the Code of Criminal Procedure authorized appellee Boggess to retain 5 per cent, of the fines collected by him as compensation for clerical services performed by him in the cases in which such fines were collected,” and we therefore answer the question in the affirmative.  