DISSENTING OPINION. I do not agree to the conclusion that the fees received by the clerk or his deputy as commissioner come within the statute fixing the salary of that officer. Nor do I think that any of the cases cited in the opinion of the majority sustain that conclusion. It is true the statute makes the clerk ex-officio commissioner and master in chancery in the event that the court does not appoint some one to act in that capacity in a cause, but fees thus received are not "fees, emoluments or commissions of said office," and are derived by virtue of the order of the court permitting the clerk to serve as commissioner or master and fixing the fees. In other words, such fees are received, not under the statute, but by virtue of the court's order. This statute is directory, not mandatory, for it reposes in the chancery court discretion to determine whether or not the clerk shall serve as commissioner in a given case. In this respect the case differs from those cases referred to where the fees were received ex officio by virtue of the Constitution or statute prescribing absolute duties and fixing the fees for discharging them.
Mr. Justice HART shares with me these views. *Page 234