¶1Appellee, as clerk of the district court of the second judicial district of this territory, rendered services in actions brought to collect delinquent taxes under the provisions of Act No. 92 of the Twenty-second Legislative Assembly. Provision is made in the act referred to for the collection of the clerk’s fees as costs in the ease; it being further provided that in no ease shall the territory or county be liable for any such costs. In the cases in which the fees involved in this action were earned, the judgments are not collected, and therefore the clerk has received no compensation for his services, and seeks to collect from the county. The county demurred to the complaint upon the ground that it did not state a cause of action, which demurrer was overruled, and, the county electing to stand upon its demurrer, judgment was entered in favor of the clerk, whereupon the county brought this appeal.
¶2The theory upon which the court overruled the demurrer was that the clerk is entitled to his fees under the provisions of the laws of the United States, and that it was not competent for the legislature to require him to perform services *152without paying for the same, evidently relying largely upon the holding of the supreme court of the United States in United States v. McMillan, 165 U. S. 504, 17 Sup. Ct. 395, 41 L. Ed. 805. But the clerk is not in a position to claim that the laws of the United States should govern as to this claim. An examination of the account presented discloses that in each instance the fees sought to be recovered are those provided by an act of the territorial legislature, and not those provided by the laws of the United States. If the matter is one to be regulated by the legislature, it is competent for the legislature to require the clerk to perform the services without compensation from the territory or county, and the clerk, therefore, cannot recover. If, as contended by appellee, the subject is governed entirely by the laws of the United States, it is apparent that the fees that can be recovered are those fixed by Congress, and not by the territorial legislature, and as claimed by the clerk. We express no opinion as to whether, in any event, the county, rather than the territory, would be liable for the fees. The demurrer of the defendant should have been sustained.
¶3The judgment of the district court is reversed, and the cause is remanded to that court, with directions to sustain the demurrer.
¶4KENT, C. J., and LEWIS and DOE, JJ., concur.