Board of County Commissioners v. Bernuth

245 P. 490, 79 Colo. 300, 1926 Colo. LEXIS 340

• Court: Supreme Court of Colorado
• Decided: April 5, 1926
• Docket: No. 11,551.
• Status: Published

Opinion

Mr. Justice Adams

delivered the opinion of the court.

Plaintiee in error was defendant below. When not otherwise designated, we shall refer to it as defendant, or “the board,” and to defendant in error as plaintiff, in accordance with their alignment there,

Plaintiff obtained judgment upon a claim previously disallowed by tbe board, for plaintiff’s salary as clerk of the county court of Bio Grande county. Defendant brings error and asks for a supersedeas.

Plaintiff was duly appointed to tbe office, took oath and procured a bond in the sum of $5,000 for tbe faithful discharge of her duties; tbe bond was approved by tbe board and filed in tbe office of tbe county clerk and recorder of Bio Grande county. Plaintiff has performed tbe services.

Counsel for tbe board contends that tbe bond should have been filed in tbe office of tbe secretary of state; that not having been so filed, plaintiff did not qualify, hence not entitled to her salary. Tbe case is submitted upon this proposition.

C. L. 1921, section 5802, provides that judges of county courts may each appoint a clerk. It further provides: “If any clerk shall be appointed as aforesaid, be shall qualify and give bonds as clerks of tbe district court are required to do, and be subject to tbe same liabilities as are or may be provided by law in relation to tbe clerks of tbe district courts.”

C. L. 1921, section 7965, requires bonds of clerks of district courts to be filed in tbe office of tbe secretary of state. Counsel for tbe board argues from this that bonds of clerks of county courts should be filed in tbe same place. We cannot agree with this reasoning. Giving and filing tbe bond are two distinct things; tbe filing officer has nothing to do with tbe giving of bonds and tbe statute does not say where bonds of clerks of county courts shall be filed. We do not regard tbe word “qualify” as having so narrow a meaning as to require such a bond to be filed in tbe office of tbe secretary of state, in tbe absence of statute.

Counsel for tbe board cites Frost v. Board of County Commissioners of Teller County, 43 Colo. 43, 95 Pac. 289, but it is not in point. In that case tbe bond bad not been filed in tbe office of tbe secretary of state, nor with the clerk and recorder of Teller county until after the period involved in the accounting.

Counsel for defendant also calls our attention to Dixon v. People, 53 Colo. 527, 127 Pac. 930, to effect that the county judge is a state officer. From this he argues that the judge’s clerk must be a state officer too, and therefore required to file her bond in the office of the secretary of state. But he has overlooked People ex rel. v. Luxford, 71 Colo. 442, 207 Pac. 477, where we held that a clerk of a county court and his deputies are officers of the court and not state officers. Furthermore, C. L. 1921, section 7981, requires the bond of the county judge himself to be filed in the office of the county clerk.

We do not say that it would have been improper to file the bond in the office of the secretary of state; there is no such question before us. We hold that in the absence of a special statute, a clerk’s bond may be properly filed with the same officer as the bond of his superior. The main thing is that a good bond shall be given and that it shall be placed in the hands of a public custodian. This has been done and it is doubtless more conveniently located for Rio Grande county where it is, than it would be anywhere else.

No substantial rights of the county are involved, and plaintiff is entitled to her salary. The supersedeas will therefore be denied and the judgment affirmed.

Me. Justice Denison not participating.