concurring. I concur in the results reached by the majority in this case. Article 19, § 23, reads as follows:
“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. ”
When Article 19 was adopted most, if not all, sheriffs and collectors were on a “fee basis.” They deducted their salaries from the fees they collected and paid the excess over to the county treasurers. In § 23 “perquisites” is in the same category as “salary” and “fees.”
Perhaps by dictionary definition, “perquisites” could include any and all amounts received over and above fixed income regardless of the nature and source of such amounts, but certainly it is my view that § 23 did not contemplate “perquisites” in the form of bribes, or illegal exactions.
I am not saying, or even insinuating, that the evidence of record in this civil action indicates the money here involved was obtained through bribes or illegal exactions; I am saying, however, that the manner in which it was paid by Southland and received by Thomas, negates the contention that it was “perquisites” Thomas should have taken, or that he or the county should be permitted to keep, or that his bondsman should be liable for in a civil action.
It is true appellant Thomas testified that he considered the amounts he received from Southland Racing Corporation as additional remuneration for services he performed in his official capacity, but it must be remembered that Thomas and also his bonding company were being sued for an accounting.
If the amounts paid Thomas by Southland were for extra deputies in directing traffic and policing the dog races, perhaps we would have a different situation than is presented on this appeal. But in that event, one would expect the payment to be made direct. There is no evidence as to whether the payments were made to enforce the law or to not enforce it.
To require an accounting and payment to the county of the funds here involved on the silent record as to why the funds were paid to Thomas in the first place, would, in my opinion, open the door to approving a county entitlement to funds coming into the hands of a sheriff while elected to office regardless of where the funds came from or how the sheriff obtained them.
If a sheriff or other officer mentioned in Article 19, § 23, could be forced in a civil action to account and pay over to the county money he should obtain through bribery or other unlawful means, it would only follow that such officer should account and pay over such funds without being forced by civil action. Such procedure could, of course, swell a public treasury with illgotten gains and result in an intolerable situation not contemplated or covered by Article 19, § 23.
It is entirely, possible from the record before us that neither Southland nor Thomas had any criminal intent or ulterior motive in paying and receiving the money here involved; but the devious method by which the payments were made indicates that Southland and Thomas knew the money should not have been paid or received, and indicates that it should not be passed on to the county treasury as “perquisites” under Article 19, § 23, of the Constitution.
For the reasons stated I concur in the majority opinion.