delivered the opinion of the Court:
The controversy in this case has exclusive reference to plaintiff’s claim for services of a clerk, in disbursing what is called the “refunding fund,” under the act of Harch, 1875, being the excess of State tax collected for 1873 above what was lawful, and which, under provisions of that act, was to be refunded to tax-pavers from whom it had been collected. ISTo compensation was ever fixed for plaintiff as county treasurer at any time, during his term of office, by the county board, as was its duty under sec. 10, art. 10, of the constitution.
It is provided by statute, that in counties of the class to which the county of Henard belongs, the county treasurer shall be allowed one per cent for receiving, and one per cent for paying out all funds belonging to the county, or pertaining to his office. Accordingly, the court, by its judgment, seems to have allowed plaintiff statutory fees on the amount of the “refunding fund” that came to his hands, and small sums expended for sundry articles for the use of his office, but rejected all claim for clerk hire. Whether the court decided correctly in allowing plaintiff statutory fees or not, the county has assigned no cross-errors, as was its privilege under the statute, and we must presume it is satisfied with the judgment in that respect.
Under the law, there can be no doubt it was the duty of plaintiff, as county treasurer, to receive these taxes for the use of the people of the county, like other funds belonging to the county. The 12th section of the refunding act declares it shall be the duty of the county board, in counties having this fund to distribute, to provide for such additional compensation for such clerk hire, and for all necessary books, as may be deemed proper. It is under that section plaintiff claims compensation for clerk hire.
There is a ground upon which this judgment may be affirmed, without discussing other questions raised. It is conceded, that after the 12th day of July, plaintiff had no duties pertaining to his office to perform that would engage him for any considerable time, except the distribution of this particular fund. Prior to that date, plaintiff had paid out $2408.41 of that fund, and the county board had made him a liberal allowance for clerk hire. Under the discretion given by statute, to allow such compensation for clerk hire as should be deemed proper, for the distribution of the remaining portion of the “refunding fund” in the hands of plaintiff, the board might well say none was necessary. During a period of one hundred and twenty-three days, plaintiff paid out a sum less than $700, and, with no other duties of his office to engage his attention, it can not be said a clerk was necessary to assist him.
The fact, the county board ' may have allowed plaintiff for clerk hire prior to 12th of July, can not be construed into an agreement to continue to do so. That was a mere gratuity.
The judgment will be affirmed.
Judgment affirmed.
Mr. Justice Craig:I concur in affirming the judgment, but not in the reasoning of the opinion. In my judgment, this case is governed by the decision of Purcell v. Parks, 82 Ill. 346.
Mr. Justice Walker:I concur in the views expressed by my brother Craig.