Colorado § 30-1-116 - Officers shall collect fees in advance.

§ 30-1-116. Officers shall collect fees in advance.

(1) Except as provided in section 30-1-106, every officer shall collect every fee, as prescribed, for services performed by him or her in advance, if the same can be ascertained, and when any officer negligently or willfully fails to collect any such fee, the same shall be charged against his or her salary.

(2) In proceedings where a public administrator, special administrator, receiver, or other person is appointed by the court to take possession of assets of an estate in which there are no funds immediately available to pay fees, the fees need not be paid in advance, but shall be paid as soon as funds become available.

(3) No officer shall collect fees in advance in any collection action initiated pursuant to section 18-1.3-506, C.R.S.

Source: L. 1891: p. 314, § 23. R.S. 08: § 2550. C.L. § 7898. CSA: C. 66, § 37. CRS 53: § 56-4-19. L. 61: p. 383, § 1. C.R.S. 1963: § 56-4-20. L. 89: (3) added, p. 887, § 2, effective April 6. L. 2002: (3) amended, p. 1542, § 286, effective October 1. L. 2010: (1) amended, (HB 10-1057), ch. 118, p. 398, § 6, effective August 11.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (3), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Law reviews. For article, "Justice Courts", see 24 Dicta 184 (1947).

This section imposing a liability in the nature of a penalty is strictly construed; and the penalty is not to be extended to cases not within the terms of the statute, or increased beyond the limit prescribed. Bd. of Comm'rs v. Law, 3 Colo. App. 328, 33 P. 143 (1893); Colo. Fuel & Iron Co. v. Lenhart, 6 Colo. App. 511, 41 P. 834 (1895); Hazelton v. Porter, 17 Colo. App. 1, 67 P. 170 (1902); Price v. Bd. of County Comm'rs, 22 Colo. App. 315, 124 P. 353 (1912).

By this section the duty of collecting fees in advance is imposed upon the officer where the same can be ascertained. Frost v. Bd. of County Comm'rs, 43 Colo. 43, 95 P. 289 (1908).

This section makes the officers responsible for the collection of their fees. Bransom v. Bd. of County Comm'rs, 5 Colo. App. 231, 37 P. 957 (1894).

Penalty stimulates collection. The fact is recognized that sometimes such prior ascertainment may be impossible, and therefore the fees may not be so collected, and in order to stimulate or coerce the collection of the fees earned and belonging to the county, to wit, the excess above the sums necessary to make up the officer's salary, the penalty of charging the uncollected portion thereof against his salary is provided. Frost v. Bd. of County Comm'rs, 43 Colo. 43, 95 P. 289 (1908).

Negligent or wilful failure results in forfeiture. This section makes it the duty of the clerk to collect every fee for services performed by him, and provides a forfeiture if he shall wilfully or negligently fail to do so. Henderson v. Bd. of Comm'rs, 4 Colo. App. 301, 35 P. 880 (1894).

This penalty is not to be enforced unless the failure to make such collection is due to the negligence or wilfulness of the delinquent official. Frost v. Bd. of County Comm'rs, 43 Colo. 43, 95 P. 289 (1908).

As to uncollected fees, a county judge was only liable for the negligent or wilful failure to collect. Price v. Bd. of County Comm'rs, 22 Colo. App. 315, 124 P. 353 (1912).

In a literal sense, the uncollected fees cannot be charged against the officer's salary, since the county is only entitled to fees collected above the amount necessary to make up the salary. Price v. Bd. of County Comm'rs, 22 Colo. App. 315, 124 P. 353 (1912).

But salary is maximum limit of penalty. The amount of the salary received by the officer must be taken as the maximum limit of the penalty for the negligent or wilful failure to collect. Price v. Bd. of County Comm'rs, 22 Colo. App. 315, 124 P. 353 (1912).

Negligent or wilful failure must be alleged. Under this section a complaint against a county judge for surplus fees uncollected had to allege that his failure to collect the same was negligent or wilful. Frost v. Bd. of County Comm'rs, 43 Colo. 43, 95 P. 289 (1908).

Burden of proof. In a suit against a county judge to recover the surplus uncollected fees of his office, the burden of proof was on the county commissioners to show that the fees were negligently or wilfully left uncollected. Frost v. Bd. of County Comm'rs, 43 Colo. 43, 95 P. 289 (1908).

Slight evidence was sufficient to shift the burden of proof on the officer to establish the exercise of reasonable diligence in endeavoring to collect such unpaid fees. Frost v. Bd. of County Comm'rs, 43 Colo. 43, 95 P. 289 (1908).

Lack of record only affects proof. The alleged neglect to make a record of such fees, as in this case, could only affect the matter of proof. Price v. Bd. of County Comm'rs, 22 Colo. App. 315, 124 P. 353 (1912).