Opinion No. 67-77
Topics:
CIRCUIT CLERKS.
PROBATE CLERKS.
COUNTY OFFICERS.
MAGISTRATE CLERKS.
Summary conclusion
Clerks of courts of record in second class counties are county officers under Section 29.230.2, RSMo 1969, pertaining to audits by the State Auditor upon petition. Section 29.230.1, RSMo 1969, pertaining to audit of county officers during the terms for which they were chosen, does not apply to counties with an elected auditor and therefore does not apply to second class counties.
Contents of opinion
July 11, 1977
WITHDRAWN
Honorable Thomas Keyes
State Auditor
State Capitol Building
Jefferson City, Missouri 65101
Dear Mr. Keyes:
This opinion is in response to the question you have asked as follows:
Are clerks of the courts of record in second class counties county officers for the purposes of Section 29.230.1 and .2, RSMo 1969?
The courts of record in this state include the supreme court, courts of appeals, circuit courts, courts of common pleas, magistrate courts, probate courts, and the St. Louis court of criminal corrections. See Sections 476.010 and 479.010, RSMo 1969. Your opinion request is not directed to the clerks of the supreme court or courts of appeals. Therefore, this opinion does not deal with clerks of those courts.
Section 29.230, RSMo 1969, reads as follows:
"1. In every county which does not elect a county auditor, the state auditor shall audit, without cost to the county, at least once during the term for which any county officer is chosen, the accounts of the various county officers supported in whole or in part by public moneys. The audit shall be made as near the expiration of the term of office as the auditing force of the state auditor will permit.
"2. The state auditor shall audit any political subdivision of the state, including counties having a county auditor, if requested to do so by a petition signed by five percent of the qualified voters of the political subdivision determined on the basis of the votes cast for the office of governor in the last election held prior to the filing of the petition. The political subdivision shall pay the actual cost of audit. No political subdivision shall be audited by petition more than once in any one calendar or fiscal year."
Section 55.050, RSMo 1969, states in part as follows:
"At the general election in the year 1946, and every four years thereafter, a county auditor shall be elected in each county of the second class. . . ." (Emphasis added)
Traditionally, the state auditor has treated clerks of courts of record in third and fourth class counties as county officers under Section 29.230. Longstanding interpretations by an agency which administers a particular law are entitled to serious consideration when trying to determine legislative intent. Springfield General Osteopathic Hospital v. Industrial Commission, 538 S.W.2d 364 (Mo. Ct.App. at Spr. 1976). The interpretation and construction of a statute by an agency charged with its administration is entitled to great weight. Missourians For Honest Elections v. Missouri Elections Commission, 536 S.W.2d 766 (Mo.Ct.App. at St.L.Banc 1976).
While it is well recognized that circuit clerks are in many respects mere ministerial officers, the circuit clerk is not a judicial officer nor is he the court. See dictum in State ex rel. Webb v. Pigg, 249 S.W.2d 435, 440 (Mo.Banc 1952), 14 C.J.S. Clerks of the Court § 1.
In circuits having several counties, there is a circuit clerk for the court in each county. Circuit clerks are elected for a particular county or for the City of St. Louis. Section 483.050, RSMo 1969. They are required to account to the county court and treasurer of the county in which they are elected for the amount they have collected in fines. Section 483.155, RSMo 1969.
With specific reference to the clerks of the circuit courts and courts of common pleas in second class counties, it would appear that they serve in dual capacities. First, they are clerks of the court acting in a ministerial capacity. Secondly, they have direct responsibilities as officers of the county with regard to the recording of fines, penalties, forfeitures, and judgments made or rendered in favor of the state and/or county by the respective court and to distinguish those payable to the state from those payable to the county and keep those records open for inspection of the judges of the respective courts and county treasurers. Section 483.150, RSMo 1969. With respect to probate and magistrate clerks in second class counties, our comments concerning the circuit clerks are similar. It is recognized, however, that magistrate and probate clerks are appointed officials. Sections 483.475 and 483.485, RSMo 1969. They serve the courts in a ministerial capacity the same as a clerk of the circuit court. Yet, they have responsibility to the county courts in terms of reporting fees and investing registry funds. Sections 483.530.5 and .6 and 483.650, RSMo Supp. 1975, and Section 483.620.1 and .2, RSMo 1969. Thus, it appears that magistrate and probate clerks also serve in dual capacities as ministerial officers of the court and as county officers.
Section 29.230.1 refers to every county which does not elect a county auditor. As it has been noted, in counties of the second class the county auditor is elected. Section 55.050. Section 29. 230.2 pertains to all counties including counties having an elected county auditor.
CONCLUSION
It is the opinion of this office that clerks of courts of record in second class counties are county officers under Section 29. 230.2, RSMo 1969, pertaining to audits by the State Auditor upon petition. Section 29.230.1, RSMo 1969, pertaining to audit of county officers during the terms for which they were chosen, does not apply to counties with an elected auditor and therefore does not apply to second class counties.
The foregoing opinion, which I hereby approve, was prepared by my assistant, Terry C. Allen.
Very truly yours,
John Ashcroft
Attorney General