
    The State ex rel. Hickory County v. Dent et al., Appellants.
    
    Division Two,
    March 24, 1894.
    1. County Clerk, Action on Official Bond of: jurisdiction: constitution. The county is the real party in interest as plaintiff in an action by the state at the relation of the county on the official bond of a county officer for the use of the county and the supreme court has in such ease appellate jurisdiction from the courts of appeals, under the provision of section 12 of article 6 of the constitution.
    2. Practice: jurisdiction : county officer, suit on official bond of. Suit on the official bond of a county officer should be brought in the circuit court. The county court has no jurisdiction in such ease.
    3. Offices and Officers: county clerk: fees. County clerks are chargeable with all fees received by them in their official capacity, as provided by Revised Statutes, 1879, section 5626, which includes the amount allowed them by the county court under section 5410 for keeping the county’s accounts with its officers.
    4. ———:-: - — : suitonbond. Suit can not be brought on the official bond of a county clerk, as required by Revised Statutes, 1879, section 5628, for failure to pay the excess over the amount allowed him into the county treasury, where the county court has failed to ascertain the amount of such excess and make an order for its payment, as provided by section 5626 and to order the suit to be brought, as provided by section 5628, upqn the failure of the clerk to make the payment.
    
      
      Appeal from Hickory Circuit Court. — Hon. W. I. Wallace, Judge.
    Reversed.
    
      Wm. O. Mead and J. H. Childers for appellants.
    (1) It is provided by section 5627, Revised Statutes, 1879, that the defendant, Dent, might retain fees by him collected to the amount of $1,100 for his salary for each year he was clerk of the county court. (2) It is provided by section 5626 that the defendant, Dent, as clerk of the county court, should make returns quarterly to the county court of all fees by him received to date of such return and for what service and from whom received, and the amount of money paid to deputies and assistants and verify the same by his affidavit, and that the county court shall examine the same and allow all necesssary clerk hire, and shall ascertain the amount in excess above his salary and clerk hire and shall make an order directing such clerk to pay such excess into the county treasury, which order in this case was never made: When the defendant, Dent, filed the statement offered in evidence it conferred jurisdiction on the county court and a suit could not be commenced in the circuit court that would oust that jurisdiction, and could only acquire jurisdiction by appeal from the order in relation to payment of excess. The jurisdiction of the county court is original and exclusive. Pearce v. Calhoun, 59 Mo. 271; French v. Stratton, 79 Mo. 562; Hammon v. Renfro, 8-1 Mo. 340. (3) The defendant, Dent, was entitled to apply any excess of fees in his hand for the year 1884 and appropriate the same to the payment of the amount which his fees received for the year 1883 was short of the salary allowed by law. Pugh v. Evans, 31 Mo. App. 290. (4) The defendant, Dent, was entitled to-the compensation allowed by the county court for keeping the county accounts over and above the salary of $1,100 under the provisions of sections 5387 and 2410, Revised Statutes, 1879. (5) This case is the same in principle as the State ex rel. McGrath v. Walker, 97 Mo. 162. See Constitution of Mo. art. 10, sec. 18; R. S. 1879, sec. 5643 and secs. 6666 to 6669.
    
      T. G. Rechoio with W. D. Harryman, Prosecuting Attorney, for respondent.
    (1) On the first point, we submit that it has been the uniform practice for the circuit court to entertain jurisdiction of suits on official bonds, and we have never before heard it questioned. State ex rel. v. O’Gorman, 75 Mo. 370; State ex rel. v. Rickman, 84 Mo.-74; State to use v. Thornton, 8 Mo. App. 571. We think the above cases are decisive of this point. (2) And on the second point, section 5009, Revised Statutes, 1889, being section 5626, Revised Statutes, 1879, leaves no question. The language is too plain for construction; after stating that he shall make returns quarterly, it proceeds: “Such statement shall include all fees for all services of whatever character, done in his official capacity.” Now, appellant’s contention is that the services rendered by the county clerk under sections 3182 and 3184, Revised Statutes, 1889, and the payment for which is provided for in section 3207, are not “renderedin his official capacity.” We are at a loss to find any warrant for this contention. The law says the county clerk shall “keep regular accounts between the treasurer, and the county,” and to “keep just. accounts between the county and ,all persons, . bodies -politic and corporate, chargeable with moneys payable into the county treasury,” etc. Section 3184, supra. We can not discover the analogy between the services rendered by the secretary of state ex officio a member of the board of equalization. These services were rendered by Mr. McGrath as a member of the board of equalization, and not as secretary of state. But the services rendered by appellant were rendered as county clerk, and in no other capacity. We think the case of State ex rel. v. Hickman, is decisive of this point..
   Sherwood, J.

This cause, an action on the bond of the county clerk of Hickory county, has been transferred to this court on the ground, as recited in the order of the Kansas City court of appeals, that “it involves a constitutional question.”

I. We do not discover any constitutional question involved in this record, but under the ruling in State ex rel. v. Tate, 109 Mo. 265, the county of Hickory is the real party in interest as plaintiff, and so this court has jurisdiction in conformity to article 6, section 12 of the constitution.

II. The circuit court was the only court in which a suit on the bond in suit could be brought. The county court had no jurisdiction in such case. Numerous authorities in this court show this.

III. This action was brought in 1889, on the bond of Dent, as principal, and others, his sureties, for arrearage in his official capacity, and it was clearly shown that he was behindhand in his accounts for the years 1884 to 1886, inclusive, having been elected clerk at the general election in 1882. Under the provisions, of section 5626, Revised Statutes, 1879, it became Dent's duty to “make return quarterly to the county court of all fees by him received to date of return; from whom received and for what services, giving the amount of each fee received, and of the salaries by Mm actually paid to bis deputies or assistants, stating tbe same in detail and verifying tbe same by bis affidavit.”

Tbe section further provides that: “Such statement shall include all fees for all services of whatever character, done in bis official capacity,” etc. And tbe section still further provides: “Tbe county court shall', at each regular session, examine such statement, and may examine any person as to tbe truth of tbe same and allow all necessary clerk or deputy hire, not exceeding the amount allowed in tbe next succeeding section of this chapter for deputies or assistants, and deduct the same from the aggregate amount received by the clerk, and if there be an amount still in the hands of the clerk exceeding the sums specified in the next section succeeding, the court shall ascertain the amount of such excess over and above the amounts allowed to be retained by the clerk, and paid to deputies and assistants, and make an order directing such clerk to pay the amount so ascertained into the county treasury.”

Section 5627 provides that “in all counties having a population of ten thousand and less than fifteen thousand persons, the clerks shall be permitted to retain one thousand, one hundred dollars for themselves,” etc. Section 5628 provides that “it shall be the duty of such clerk, within fifteen days after such' order has been made, to pay into the county treasury the amount of money so ordered to be paid, and take duplicate receipts,” etc. The concluding portion of the section makes provision that “if any clerk shall fail to pay the amount of money so ordered to be paid into the county treasury, and file the receipt therefor, within the said fifteen days, the county court shall immediately cause suit to be commenced on the official bond of such clerk for such amounts of money, together with, interest at the rate of twenty per cent, per annum from the end of said fifteen days till paid.”

Under the provisions of section 5626, supra, defendant Dent had kept an abstract of the fees received, etc., etc., and this abstract which was exhibited in evidence on the trial, as counsel for defendant say, “proves conclusively that the defendant Dent, as clerk, received from all sources for his services in the way of fees and as compensation for keeping accounts under the provisions of article 4, chapter 95, Revised Statutes, 1879 (which were then in force), $6,075.12, and that he paid out for deputy hire, $1,240.78, which' is shown by the quarterly returns or abstracts of moneys received, made by the defendant, Dent, as clerk. It is further shown that the county court never made an order directing the defendant Dent, as clerk or otherwise, to pay any part of such sums into the county treasury. It is also conclusively proved that of said sum of $6,075.12, the sum of $1,600 thereof was allowed him as compensation for keeping the county accounts under article 4, chapter 95, Revised Statutes, 1879.”

Section 5410 of article 4, chapter 95, provides that “the court shall allow to the clerk of the county court for his services under this article such compensation as may be deemed just and reasonable.” Under this last section it was claimed that as the county court had allowed Dent $100 per quarter for keeping the county’s accounts as provided for in the article and chapter referred to, that he was not required to account for those sums, but that they were entirely independent of the $1,100 allowed him under the provisions of section 5627. But this is altogether a mistake, because under section 5626, the statement the clerk is required tó make, “shall include all fees for all services of whatever character, done in his official capacity, ” and it was only by reason of such services being done in his official capacity that.Dent was entitled to such fees thus earned. There was, therefore, no error in the trial court making this declaration of law at the instance of relator:

“The court declares the law to be that the clerk is chargeable with all fees received by him in his official capacity including the fees received for keeping the accounts with the county officers and if the aggregate amount received by him in any one year after making a proper allowance for deputy hire exceeded $1,100 then plaintiff is entitled to recover said amount so in excess.”

State ex rel. McGrath v. Walker, 97 Mo. 162, has been cited as showing that defendant Dent was permitted to retain the fees for keeping the accounts with the county officers, but that case, when examined, will not sustain such contention, because, there, McGrath rendered the services in question not as secretary of state, but as member of the board of equalization, a distinct and independent office, created by the constitution, and for performing the duties of which that instrument makes special provision that the officers mentioned therein “shall receive for their services a "salary to be established bylaw.” On the foregoing point, therefore, our ruling must be for relator.

IV. But it will have been observed that section 5626 provides that the county court "shall ascertain the amount of the excess, etc., and make an order directing such clerk to pay the amount so ascertained into the county treasury.” The evidence in this case shows that no such order was made. And the evidence further shows that the county court did not obey the provisions of section 5628 by ordering suit to be brought on the bond of Dent. That bond was conditioned that Dent ‘ ‘should faithfully perform the duties of said office and pay over all money which should come into his hands by virtue of his office,” etc. R. S. 1879, section 617.

The general rule of the law is that, whenever a particular and statutory method of proceeding is pointed out as the one to be pursued, then such method is exclusive. And this is true, although there is a general power under which courts or officials would have been able to perform the act. Yet as the legislature imposed a special limitation, it must be strictly pursued. Hudson v. County Court, 28 Ark. 359; Sutherland on Statutory Construction, sections 454, 392, 393.

Under these statutory provisions and authorities, it was a condition precedent to Dent’s being in default that the county court should have had a settlement with him and at that settlement made an order requiring him to pay over the excess, to which he was not entitled, into the county treasury, and it was also a condition precedent that, on the failure of Dent to comply with such order within fifteen days after its making, such court should order suit to be brought on the bond of the cleric; but neither of such orders was made. Therefore judgment reversed.

All concur.  