MILO J. FLANDERS, plaintiff in error, plaintiff below, instituted a derivative action against Austin G. Kochenberger as clerk and recorder of Pueblo county and the Board of County Commissioners of the county to compel Kochenberger to account to the board for fees, perquisites, commissions and emoluments of his office and for judgment for the amount found to be due; for the removal of Kochenberger from office, and other relief. Upon trial to the court, defendants' motion for summary judgment was granted, and the action dismissed at plaintiff's costs.
In his amended complaint plaintiff alleged that Kochenberger is the duly elected, qualified and acting clerk and recorder of Pueblo county, Colorado, and has served as such officer since January, 1933; that upon demand the Board of County Commissioners has refused to institute any action against defendant Kochenberger; that plaintiff is a taxpayer in Pueblo county; that his property has been assessed and that he has paid taxes thereon; that by reason of the acts of defendant Kochenberger of which complaint is made, plaintiff's taxes have been, and will be, increased; that "he brings this action on behalf of himself and all others who are similarly situated and interested, for the use and benefit of Pueblo county and the taxpayers thereof."
He further alleges:
"The defendant, Austin G. Kochenberger, as Clerk and Recorder of Pueblo County, has collected for the use and benefit of Pueblo County, fees, perquisites, commissions and emoluments of his office of county clerk pertaining to the issuance of certificates of title to motor vehicles, *Page 106 motor vehicle operators' licenses, chauffeurs' licenses and for the collection of specific ownership taxes on motor vehicles during all of his tenure of office. Said fees, commissions, perquisites and emoluments amounting in the aggregate to two hundred sixty-five thousand eight hundred sixty-one dollars and sixty cents ($265,861.60). During all of his term of office the salary of said defendant, Austin G. Kochenberger, as Clerk and Recorder of Pueblo County, has been paid by the defendant, The Board of County Commissioners of the County of Pueblo, and the fees, perquisites, commissions and emoluments aforementioned are over and above the amount of the salary of said defendant, Austin G. Kochenberger, as Clerk and Recorder of Pueblo County.
"During all of his tenure of office, said defendant, Austin G. Kochenberger, as Clerk and Recorder of Pueblo County, has failed to make a monthly sworn statement and to pay over to the county treasurer of Pueblo County all fees, perquisites, commissions and emoluments of his office as provided by law (Vol. 2 C.S.A. '35 Chap. 45, sec. 180) and has failed and neglected to make a written report of said fees, perquisites, commissions and emoluments to the chairman of the board of county commissioners of Pueblo County as provided by law (Vol. 3 C.S.A. '35 Chap. 66, Sec. 39) and has failed and neglected to pay said fees, perquisites, commissions and emoluments to the County treasurer as provided by law. (Vol. 3 C.S.A. '35 Chap. 66, Sec. 43 [38] and Vol. 2 C.S. A. '35 Chap. 16, Secs. 93 and 94 as amended Laws of '37 and Laws of '41) Said defendant, Austin G. Kochenberger, as Clerk and Recorder of Pueblo County has unlawfully and illegally appropriated said fees, perquisites, commissions and emoluments or a portion thereof to his own use."
Defendant Kochenberger filed his answer in which he admitted his official capacity and denied each and every other allegation in said complaint contained. Further answering, he alleged the collection of the fees enumerated *Page 107 in the quoted portion of the complaint herein, but denied that funds resulting from said collections were "perquisites, commissions or emoluments of the defendant as clerk and recorder, or as an individual." He further alleged that the sums collected for the services alleged in the complaint had "been accounted for and distributed as provided by law."
Subsequently, and on the day before the trial, defendant tendered an amended answer in which, as a first defense, he alleged that the "amended complaint fails to state a claim against defendant upon which relief can be granted;" a second defense being a general denial; and in a third defense he pleaded the six-year statute of limitations.
Plaintiff moved to strike the plea of the statute of limitations, which motion was denied. The motion of the Board of County Commissioners to dismiss the action as to said board was granted, and plaintiff does not specify error on this ruling.
Subsequently defendant Kochenberger moved for summary judgment upon the ground that there was no "real issue tendered by the amended complaint of plaintiff." The pertinent part of said motion is as follows:
"That there is no real issue tendered by the amended complaint of the plaintiff for the reason that the said complaint alleges that the said defendant has failed to make a monthly sworn statement and pay over to the County Treasurer fees, perquisites, commissions and emoluments of his office collected for the use and benefit of Pueblo County pertaining to the issuance of certificates of title to motor vehicles, motor vehicle operators' licenses, chauffeurs' licenses, and for the collection of specific ownership taxes on motor vehicles, and that by reason of such failure, he has appropriated said fees, perquisites, commissions and emoluments, or a portion thereof, to his own use.
"That in truth and fact, under the provisions of the statute providing for the collection of fees for said purposes, *Page 108 the sums so collected are not fees, perquisites, commissions or emoluments of the defendant, as county clerk and recorder, or individually, but the express provisions of such statutes are for the purpose of paying the expenses of clerk hire and other expenses of the administration of the motor vehicle Department of said county clerk's office.
"Further, said defendant represents and shows to the court that the attorney for plaintiff has openly stated that he cannot prove, and does not expect to prove, that either the County of Pueblo, or the State of Colorado, has lost any money whatsoever on account of the matters and things in said complaint alleged.
"That the plaintiff herein claims and purports to have brought this action and to be prosecuting the same as a taxpayer, whereas, by reason of the facts aforesaid and the admissions of the attorney for plaintiff, said plaintiff is not qualified to maintain this action in that it is impossible for him to establish any injury as a taxpayer.
"Said defendant offers in support of this motion his affidavit to the effect that all moneys collected by him on account of the matters and things aforesaid have been accounted for, paid over, expended and distributed in accordance with the provisions of the statutes in such case made and provided, and that any balance over and above the amounts expended for clerk hire and other expenses of administration of the provisions of the applicable statutes by him, as agent of the Motor Vehicle Department of the State, or the Secretary of State, and the portion of said excess deposited with the County Treasurer is in his custody and control and are ready to be paid over to the County Treasurer if this court shall decide that the proper construction of said statutes requires such payment, and said defendant offers to prove by competent witnesses the statement attributed herein to the attorney for plaintiff."
This motion for summary judgment was granted by the court, and the cause dismissed. *Page 109
There are two specifications of points: First, "The court erred in overruling plaintiff's motion to strike the plea of the statute of limitations;" and, second, "The court erred in sustaining defendant's motion for summary judgment." These will be discussed in this order.
[1] In Owers v. Olathe Silver Mining Co., 6 Colo. App. 1,39 Pac. 980, and in Curtis v. City of Pueblo,11 Colo. App. 446, 54 Pac. 649, our Court of Appeals held that the statute of limitations might not be pleaded by an amendment to the answer after the issues have been made up. The rule announced in these decisions has been modified by Rule 15 (a), R.C.P. Colo., and by our holdings in Walters v. Webster, 52 Colo. 549,123 Pac. 952; Maryland Casualty Co. v. City and County of Denver,90 Colo. 20, 6 P.2d 6, and many other decisions announced by us.
In Maryland Casualty Co. v. City and County of Denver,supra, after issue joined, an amended answer setting forth as a special defense the statute of limitations was tendered, and, by order of court, permitted to be filed. Plaintiff moved to strike the amended answer, which was denied. Passing upon this point we said: "After issues joined and a cause has been set for trial, a court may in the exercise of reasonable discretion and in the interest of justice permit the filing of an amended answer pleading additional defenses [citing authorities]."
There was no error committed, under the circumstances appearing in the present case, in permitting the filing of the amended answer pleading the statute of limitations, and denying the motion to strike the same.
[2] Under the provisions of subsections (b) and (c), section 133, chapter 16, '35 C.S.A., certain fees are allowed the county clerk and recorder for the services therein authorized to be rendered and performed by him, and under the provisions of section 93 of the same chapter, as amended by S. L. 1937, p. 334, and S. L. Colo. 1939, p. 231, and section 94 of chapter 16, '35 C.S.A., as *Page 110 amended by S. L. Colo. 1939, p. 232, the county clerk and recorder is designated as the authorized agent of the department (Motor Vehicle Department) for the administration of the provisions of the article relating to the registration of motor vehicles in his county, and by these sections he is authorized to collect and retain certain fees for the purpose of defraying his expenses in connection with the duties imposed upon him by these sections. In 1937, when section 93, supra, was first amended, section 3, chapter 94, p. 334, S. L. '37, was enacted, and its provisions pertain entirely to the fees allowed the county clerk and recorder for services rendered and performed in the discharge of his duties as statutory agent. Under the provisions of section 3, the county clerk and recorder is authorized to retain certain fees, and with reference to the disposition of these fees it is provided that the county clerk and recorder "shall deposit in the general fund * * * of said county, all such sums so retained hereunder; and the necessary costs of said collection and administration shall be paid by regular warrant of said * * * county, upon voucher duly submitted and approved."
As we understand plaintiff's contention, it is that the moneys here involved were collected by the county clerk and recorder by virtue of the authority vested in him by subsections (b) and (c), section 133, and by sections 93 and 94, amended as hereinabove noted.
In the complaint it is alleged, and in the answer denied, that a portion of the moneys collected was converted by defendant Kochenberger to his own use.
So far as the statutes here involved affect the matter in controversy, the authority to make registrations, give examinations, collect specific ownership taxes, and receive the statutory fees provided therefor, is conferred upon the county clerk and recorder, not in his individual capacity, but by virtue of his office. The authority follows the office, and is by no means a personal right or privilege of the incumbent who at the time is empowered *Page 111 to perform the services and receive the prescribed fees by reason of his incumbency of the office.
It is said by defendant that the fees provided in the sections enumerated are not fees, emoluments, perquisites or commissions of his office. The same contention was made in Glaister v. Kit Carson County,22 Colo. App. 326, 123 Pac. 955, and in passing upon the question the court said: "The expression all fees, perquisites and emoluments' seems to require neither explanation nor definition. Words could scarcely have been better chosen to express the idea that the salary provided by law should be the sole compensation of the officer, and that all that was collected or received, above the amount of the salary, for services performed in his official capacity, should be turned into the county treasury. To argue that the provision means something different from or less than the obvious import of the words used would be palpable sophistry." To the same effect see, El PasoCounty v. Shelden, 59 Colo. 499, 149 Pac. 616; People v.Brown, 62 Colo. 125, 160 Pac. 1038.
It may be contended that some statutes respecting fees, emoluments, perquisites and commissions collected by county clerks and recorders are somewhat indefinite and ambiguous, but the provisions of sections 38, 39, 43 and 102, chapter 66, '35 C.S.A., are positive and definite. Section 41 of said chapter was repealed by S. L. 1945, p. 338, and the General Assembly, by enacting section 16, chapter 125, p. 337, S. L. 1945, again evinced a legislative intent to require all fees, emoluments, perquisites and commissions collected by a county clerk and recorder to be accounted for and placed in the proper fund in the office of the county treasurer, to be withdrawn therefrom only on warrants properly issued in payment of the salaries of such deputies and assistants as are necessary in the performance of their statutory duties.
[3] When defendant moved for a summary judgment he had the burden of demonstrating clearly the *Page 112 absence of any genuine issue of fact, and any doubt as to the existence of such an issue should have been resolved against him. Hatfield v. Barnes, 115 Colo. 30,168 P.2d 552; Avrick v. Rockmont Envelope Co., 155 F.2d 568;Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620,64 Sup. Ct. 724, 88 L. Ed. 967.
[4] Here, as we have said, plaintiff alleged that defendant had collected fees, emoluments, perquisites and commissions, a portion of which he had unlawfully and illegally appropriated to his own use, and that his taxes have been and will be increased by reason of such illegal and unlawful appropriation. These allegations are denied by defendant. True it is that defendant alleged in his third defense: "That all of said fees and taxes, as well as the portion thereof allowed to plaintiff [defendant] for the payment of extra clerk hire and other expenses of the administration of said act have been properly distributed, paid over and applied in accordance with said acts." These allegations and their denial clearly and positively demonstrate beyond doubt that there is presented a genuine issue of fact as to a material matter. Whether defendant had unlawfully and illegally appropriated fees, perquisites, commissions and emoluments or a portion thereof to his own use, and whether or not plaintiff was damaged directly or indirectly by reason thereof or by reason of defendants failure or neglect to strictly comply with the statutes, can only be determined upon a trial of these issues. Issues of fact are for determination by the court or jury at a trial and may not be considered by the court on a motion for summary judgment. Avrick v. Rockmont Envelope Co.,supra; Sartor v. Arkansas Natural Gas Corp., supra.
The record considered, the motion for summary judgment should have been denied.
The judgment, accordingly, is reversed and the cause remanded to the district court for further proceedings in harmony with the views expressed herein. *Page 113
MR. JUSTICE HILLIARD dissents.