Montana Attorney General Opinion 15-287

Opinion No. 287 County Clerk-Fees-Bounties-Preda.- tOI"y Animals-County Treasurer. HELD: The county clerk must pay over to the county treasurer the fees received under Section 2, Chapter 109, Laws of 1H25, the act providing boun- ties upon certain predatory animals. Augnst 3, 1933. You inquire whether or not the coun- ty clerk of Phillips County may. under the pro"isions of Section 3, Chapter 109, Laws of 1n25, retain for his own use the sum of five cents which he re- ceives from the State Treasurer out of the bount~' fund for each scalp of a wolf or coyote or each lower jaw of a mountail; lion accounted for by him in his report to the Livestock Commis- sion. Section 4864. Revised Codes of 1!l21. as amended by Section 3, Chapter 141. La ws of 1!l25, reads as follows: "Ko county officer shall receh'e for his own use any fees, penaltie~ or emolumerits of any kind, except the salary us pro~vided by law, for any official service rendered by him, but all fees, .penalties and emoluments of every kind must be collected h~' him for .the sole use of the county and must be accounted for and paid tu the county treasurer as provided by sec· tion 4887 of this code nnd shall be credited to the general fund of the county." The courts generally hold thn t unller a statute like that just quotell the fees which a public officer collects belong not to him but to the county or municipality which he serves. (Mul- crevy Y. San Francisco, 231 U. R. 66!l. 58 L~w. Ed. 425; Lewis Y. United States, 244 U. S. 134, 61 Law. Ed. 103n; (Jregory v. Milwaukee Count~·. 201 N. W. 246: Dishman v. Coleman, 50 S. w. (2d) 5<». York County,·. Fry, 138 At\, 858; In re MacDonald, 248 ",,'ed. n8.'1: Duclos Y. Harris County, 291 S. W. 611.) It cannot he disputed that the duties which section 3 of Chapter 109 casts upon the county clerk are official in character and that the sum above men- tioned is paid him on account of the performance thereof. To justify him in claiming the money as his own he must be a·ble to point to some statute l'xpressly or impliedly authorizing him ~o to do. Our investigation has not dis· closed any such statute. It is our ~view, therefore, that the county clerk should pay the money in question to the county treasurer.