Opinion on rehearing delivered October 9, 1972
1. Sheriffs & collectors — compensation—use of statutory commissions. — A sheriff and collector is permitted to use statutory commissions charged for collection of school taxes in defraying combined expenses of the office.
2. Sheriffs & collectors — allocation of expenses — constitutional requirements. — A sheriff and collector may deduct his combined expenses from the combined receipts of the two offices and there is no constitutional provision requiring allocation of the expenses.
3. Sheriffs & collectors — compensation—accounting for fees, necessity of. — A sheriff and collector has only to account for fees and commissions when the total thereof exceeds his total expenses and $5,000, for up to that amount the fees belong to the sheriff and collector to use for salary and in the conduct of business of the office.
Conley Byrd, Justice.Four school districts in Chicot County and nine citizens and taxpayers of that county, hereafter referred to as appellants, instituted the present action in the Chicot County Chancery Court against Max Brown individually and as sheriff and collector of Chicot County, hereafter referred to as sheriff, seeking injunctive relief for unlawfully diverting school monies to other purposes, and to recover judgment against him for monies diverted and lost to the school districts for the years 1967 and 1968. The chancellor restrained and enjoined the sheriff from using tne statutory commissions charged for the collection of school taxes to pay the expenses of the office of sheriff, but refused to enter judgment against the sheriff for any sums so used. The four school districts and nine citizens and taxpayers have appealed from that part of the decree denying them a judgment and the sheriff has cross appealed. Because of our disposition of the case on cross appeal, we need not reach the matters urged by the appellants.
The real question here is whether income from the collector’s office can be used to support valid sheriff’s office expenses. The issue arises because of Article 19 § 23 which provides:
“No officer of this State, nor any county, city or town, shall receive, directly or indirectly, for salary, fees and perquisites more than five thousand dollars net profits per annum in par funds, and any and all sums in excess of this amount shall be paid into the State, county, city or town treasury as shall hereafter be directed by appropriate legislation.”
Admittedly Sheriff Brown complied with the provisions of Ark. Stat. Ann. § 12-1805 and § 12-1807. The first statute requires any county officer to report to the judge of the circuit court the total amount of money received by him whether from salary, fees or other emoluments of such office. The latter statute provides that if the total receipts exceed $5,000, the county officer shall report the amount expended by him in the conduct of the business of his office and that the amount so allowed shall be deducted from the total collections for purposes of determining whether the balance remaining in his hands exceeds $5,000. Any excess over $5,000 shall be paid into the county treasury.
Appellants contend however that Sheriff Brown must account for those funds emanating from commissions allowed by statute to the collector’s office and used by the sheriff as expenditures in discharging his duties as sheriff. In doing so, however, they do not attack the statutes authorizing the fees but content themselves with attacking the expenditures. This attack by appellants is based upon decisions of this Court, McCabe, Ex parte, 35 Ark. 396 (1878), and Falconer v. Shores, 37 Ark. 386 (1881), to the effect that the office of sheriff and the office of collector are separate and distinct although the same person performs the duties of both offices. While there may be some language in some of our decisions which could be used to support such contention, appellants have cited no case in point.
In McCabe, Ex parte, supra, the issue was whether the county court or the circuit court was to approve the collector’s bond. This court there held that by the Act of March 1, 1875, required the bond to be approved by the circuit court.
In Falconer v. Shores, supra, Shores had been elected to the office of sheriff at the 1880 general election. Upon receipt of his commission from the Governor, he made the sheriff’s bond required by statute but neglected to file his collector’s bond before the first Monday in January, 1881, as required by law. Thereupon, the Governor appointed Falconer to serve as collector. In holding, upon a demurrer to the pleadings, that Falconer was entitled to the office of collector and that election was not a prerequisite to his holding the office, we said:
“This, as above observed, leaves the office of collector under legislative control, and doubtless the legislature has power to provide by law for collector to be appointed by the Governor. . . .”
In Crowell v. Barham, 57 Ark. 195, 21 S.W. 33 (1893), we held invalid a tax sale by a deputy sheriff appointed by a sheriff who was also ex-officio collector because the deputy had not been appointed by the sheriff as a deputy collector. This holding was on the basis that the office of sheriff and the office of collector are two distinct offices.
In Gray v. Matheny, 66 Ark. 36, 48 S.W. 678 (1898), under consideration was a salary act requiring all fees of the county treasurer in excess of $800 to be paid into the county general fund. The court held the requirement that the excess fees be paid into the county general fund was invalid’ under Art. 16 § 11 of the Constitution because it allowed moneys levied for one purpose to be used for another purpose.
In County Board of Education v. Austin, 169 Ark. 436, 276 S.W. 2 (1925), there was involved an act which required that fees of county officers in excess of a certain amount be paid into the county general fund. We there held that the legislature was wholly without power to command that fees, emoluments and commissions allowed for the collection and handling of school funds in excess of official salaries be paid into the county general fund because of Art. 16 § 11 of the Constitution.
In State ex rel Poinsett County v. Landers, 183 Ark. 1138, 40 S.W. 2d 432 (1931), the sheriff contended that, under Art. 19 § 23 of the Constitution, he was entitled to $5,000 for his duties as sheriff and an additional $5,000 for his duties as ex-officio collector. We held to the contrary and in doing so we said:
“While it is true that the sheriff, under the Constitution (Art. 7 § 46) holds two separate and distinct offices (Ex parte McCabe, 33 Ark. 396, Falconer v. Shores, 37 Ark. 393) and must give a separate bond for each office, it does not follow that he becomes two officers. We think that he is necessarily only one officer, but holding two separate and distinct offices, until such time as the Legislature sees fit to separate them. . . . Until the Legislature sees proper to separate the offices of sheriff and collector and require them to be filled and the duties performed by separate persons, we think the plain provisions of both the Constitution and the statute are that the two offices shall be filled by one officer, and that he is entitled to receive for performing the duties of both offices only the net compensation fixed by the Constitution for one officer. Art. 19 § 23. ...”
In State use of Union County v. Harmon, 190 Ark. 621, 80 S.W. 2d 619 (1935), the sheriff in filing his accounting pursuant to Ark. Stat. Ann. § 12-1805 and § 12-1807, did not account for the fees and expenses of feeding federal prisoners and expenses derived from the sale of motor vehicle licenses. In a suit against the sheriff, his sheriff’s bondsman and his collector’s bondsman, this court pointed out that pursuant to sections 4637 and 4639 of Crawford’s and Moses Digest (Ark. Stat. Ann. § 12-1805 and § 12-1807), the sheriff’s emoluments, including the fees from federal prisoners and motor vehicle licenses could not exceed $5,000. In doing so it was said:
“In the case of State v. Landers, supra, it was held that, where the offices of sheriff and collector are held by the same indivudial, he is entitled only to $5,000 a year as his entire compensation. In the case at bar the $5,000 salary is charged against the fees collected by Harman as ex-officio collector of revenue. Certainly he would be entitled to this sum, although the fees of the sheriff’s office did not aggregate this amount, and he might justly take a sufficient amount from the fees collected by him as collector of revenues for that purpose. The sheriff’s salary should be distributed between the two offices in proportion to the amount of fees collected in each, and we hold this to be the just rule.
“In determining the question of liability of the sureties on the sheriff’s bond and of the sureties on the Collector’s bond, the court will apportion in conformity to the rule announced the salary of the sheriff and ex-officio collector, and, if the sheriff and collector be adjudged due the county any excess of fees on the items involved in this proceeding retained by him over the constitutional limit of his salary, the sum due from fees collected as ex-officio collector shall be ascertained and judgment rendered against his several sureties accordingly.’’
In the case of Marshall v. Holland, 163 Ark. 449, 270 S.W. 609 (1925), we pointed out that the power of the legislature is supreme in the fixing of fees and emoluments of county offices. If it were not for the limitation set forth in Art. 19 § 23, the fees and emoluments here collected by Sheriff Brown would be his to do with as he pleases. What right then do the appellants have to attack the allocation of the fees until the total amount of the fees collected exceeds the $5,000 limit and the reasonable and necessary expenses of the combined offices? There is no constitutional provision requiring allocation of the expenses as appellants request. The statutory allocation, used by Sheriff Brown, Ark. Stat. Ann. § 12-1805 et seq. was enacted on February 1, 1875, following the adoption of the Constitution at the 1874 General Election. Under this enactment we have held in the Landers case, supra, that the $5,000 limitation applies to the combined receipts of the two offices. The same logic would dictate that the sheriff in settling under the statute is entitled to his combined expenses.
The appellants’ contention that the combined expenses amount to a diversion of funds in violation of Article 16 § 11, is based purely upon the supposition that the commissions allowed by the General Assembly as the fair share of the expense of collecting the school funds remain as school funds at all times. This supposition of course ignores the holdings of this court and the provisions of Ark. Stat. Ann. § 12-1805 and § 12-1807, that the sheriff is only required to account for that portion of the fees that exceed his .expenses and $5,000. Up to that amount, the fees and commissions belong to the sheriff and ex-officio collector to use for salary and in the conduct of the business of his office.
The language from some of our opinions unfortunately is subject to being read as both affirming and reversing the trial court’s ruling on the issue. Typical of such language is that in State use of Union County v. Harman, supra, where we said:
“In the case of Crowell v. Barham, 57 Ark. 195, 21 S.W. 33, this court, following and approving the doctrine announced in Ex parte McCabe, 33 Ark. 396, and in Falconer v. Shores, 37 Ark. 386, held that the offices of sheriff and collector, although usually filled by one and the same person, are as separate and distinct as though held by separate incumbents. The doctrine announced in these cases was reaffirmed and approved in the recent case of State ex rel. Poinsett County v. Landers, 183 Ark. 1138, 40 S.W. (2d) 432. Therefore, the fees collected and the expenditures incurred in the discharge of the office of sheriff have no relation to the office of collecter, and vice versa. Accordingly, the one holding the office of sheriff and ex-officio collector should prepare and file separate statements of account of the fees and disbursements of each office, and where any liability exists for failure to account and pay into the treasury excess fees collected as sheriff, the sureties on the collector’s bond are not liable; and, in cases where the fees are collected by the sheriff as ex-officio collector of revenues, the sureties on his bond as collector are liable and not the sureties on his bond as sheriff.” (Emphasis ours).
When it is remembered that the same opinion points out that the sheriff is entitled to take a sufficient amount from the fees and commissions of the collector’s office to make up his $5,000 salary irrespective of the emoluments of each office above expenses, it at once becomes obvious that the above quoted language must be taken to mean that separate books must be kept when dealing with fees and commissions in excess of the expenses and the $5,000 salary limit. This construction comports with the holdings in County Board of Education v. Austin, supra, and Terry, County Judge v. Thornton, 207 Ark. 1019, 183 S.W. 2d 787 (1944). In those cases the fees and commissions had been vested in the county, whereas when the sheriff and collector is operating under the fee system, there is only a contingent right in the respective taxing agencies —that right being contingent upon the fees and commissions exceeding the expenses of the sheriff and collector and his $5,000 salary limit.
As can be seen from the foregoing discussion Article 16 § 11, has only been applied when the fees and commissions have become vested or where the total amount thereof exceeded the $5,000 salary limit and the total expenses of the office of sheriff and collector. This is in accord with the Constitution which placed the duties of sheriff and collector upon one officer until such time as the legislature should provide otherwise. The very first legislature following the adoption of the Constitution provided, pursuant to Article 19 § 23, that the sheriff and collector had only to account for the fees and commissions when the total thereof exceeded his total expenses and $5,000, Ark. Stat. Ann. § 12-1805 and § 12-1807 (Repl. 1968).
For the reasons herein stated the decree of the trial court enjoining the sheriff and ex-officio collector from using the statutory commissions charged for the collection of school taxes in defraying the combined expenses of his office is set aside.
Reversed and remanded for entry of decree dismissing appellants’ complaint.
George Rose Smith, Fogleman and Jones, JJ., dissent.