The following opinion on rehearing was filed February *79617, 1904. Former judgment vacated. Judgment of district court affirmed:
1. County Clerk: Salary: Fees. The salary allowed a county clerk for services as clerk of the county board must be accounted for as fees of his office. 2. -: -< — : -. The county board acts judicially in fixing the amount of the salary of the clerk when acting as clerk of the board, but when such fees have been allowed, as such, and paid to the clerk, if the total amount of his fees for the year, including the fees so allowed, is more than the limit of his annual salary as fixed by statute, he is liable to the county for the excess.- Sedgwick, J.Upon reargument of this case, we find that the conclusion reached by the commissioner upon the first hearing, ante, p. 779, is wrong. We have no doubt that the correct rule, by which to determine whether the action of the county board, in any given case, is ministerial or judicial, is announced in the opinion referred to. We are entirely satisfied with the reasoning of the commissioner, from which he derives his conclusion upon that point. We are equally well satisfied that, in the determination of this case, material facts disclosed by the record have been overlooked.
There is no doubt that the county board, in fixing the amount to be allowed to the county clerk as- compensation for his services as clerk of the board, acts judicially, but when the board has so acted, and the compensation has been so fixed, it is paid to the clerk as fees of his office; and as such must be accounted for as other fees. State v. Silver, 9 Neb. 85, State v. Russell, 51 Neb. 774; Hayes County v. Christner, 61 Neb. 272; Holcombe v. Dawson County, 1 Neb. (Unof.) 743. In this case, the fees received by the clerk, including the fee of $400 for each year allowed by the county board for his fees as clerk of the board, exceed the amount that he was entitled by law to retain, as found by the trial court.
It is suggested that, since the county board acted judicially in fixing these fees of the clerk, it must be held *797that the hoard allowed him the amount which he - has retained, as compensation for his services as clerk of the board. The record contradicts any such theory. At the end of each quarter during the years 1898 and 1899, the board fixed the amount of compensation of the clerk at $100 for the preceding quarter, and lie received the $100 then accordingly. The clerk neglected to enter these fees upon his book until after his term of office had expired, when, in the-year 1900, he appears to have made the entry, but the action of the board Avas plain and specific in allowing him $100 for each quarter for his services.
The judgment of the district court is therefore right; the former judgment of this court is vacated, and the judgment of the district court
Affirmed.