(After Stating the Facts.) — The plaintiff contends that section 2, article 5 of the constitution of the state of Idaho, prohibits the probate judge from receiving and retaining more than $2,000 per year for all services rendered by him. By the terms of section 3844 of the Revised Statutes of Idaho, it is provided that there shall be a clerk of the probate court, to be appointed by the judge thereof, or the probate judge may act as the clerk of his own court. This law is still in full ferce and effect. This is in no sense a county office. The probate judge, therefore, may appoint a clerk, or he may act as the clerk of his own court. In either case, such clerk may receive the fees provided by law, when performing the duties of such position. Section 7 of article 18 of the constitution provides that the probate judge, who is ex-officio county superintendent of public instruction, shall receive for his services not more than $2,000, and not less than $500, per annum. Section 8 provides that such compensation shall be paid by fees or commissions, as prescribed by *368law, and all fees and commissions in excess of the maximum must be accounted for and paid to the county treasurer. If the probate judge, under the law, acts as his own clerk, as he may do, all three positions or offices are united in one person. .The language of the court in the case of Hillard v. Shoshone Co. 3 Idaho, 103, 27 Pac. 678, is peculiarly applicable to this case. The court says of the clerk of the district court: “Thus far the constitution has provided for a clerk of the district court for each county, and has made this officer ex-officio auditor and recorder. He is still one person and one ■officer,, although he holds two or three distinct and separate offices, if we please to call them such, and performs the duties •of all. We must not confound the office with the officer, or person who holds the office.” So, with the probate judge, he is made ex-officio superintendent of public instruction, and the statute provides that he may act as the clerk of his own court. He is still one person, although performing the duties of all three of these positions; and the constitution (section 18) limits the fees and commissions he may retain for performing such duties to the sum of $2,000 per annum. He may receive fees and commissions in excess of this sum, but must account for and pay over such excess to the county treasurer. It is the opinion of the court that it was the intention of the framers of the constitution to limit the compensation that may be received and retained for the performance of all the duties of probate judge, superintendent of public instruction, and clerk of the probate court, to. the sum of $2,000 per annum; and therefore the probate judge may unite all these offices or functions in himself, and receive all the fees, to the limit named, or he may appoint another person clerk, and permit him to receive such fees. But the fees and commissions received by such judge and such clerk, in excess of $2,000, must be paid to the county treasurer. Any other construction would defeat the plain intent of the constitution. As the probate judge may, and usually does, unite in himself all three of these positions, and perform the duties of each, when doing so, he cannot retain fees and commissions in excess of $2,000 per annum. We think it was the intent of the constitution that this office should not cost the people of the county more *369than $2,000 per annum, under any circumstances. The judgment of the lower court is reversed, and the cause remanded for further proceedings in accordance with this opinion. Costs awarded to appellant.
Sullivan and Huston, JJ., concur.