¶1dissenting:
¶2I would affirm the trial court’s judgment requiring the county clerk to remit the passport fees to the county treasurer. The clerk collects the passport fees during business hours, county time is used, county personnel is used to process the applications, county equipment is used and presumably county postage is used to mail the passport appli*191cations to Seattle for final processing. The service is rendered by the clerk solely because of the clerk’s official status.
¶3I agree with the opinion of the Attorney General which held that:
“The fact that a state official performs a function under federal rather than state law does not necessarily mean that he or she is not rendering an official service. When the individual is permitted to perform the function solely because of his or her official status, he or she renders an official service, regardless of whether the service is authorized by state or federal law.” 38 Opinion of Attorney General (1979) at 46.
¶4The clerks collect the fees under color of their office. Absent a statute specifically allowing clerks to retain the fees, the fees should be turned over to the county treasurer. When the clerks took office they did so on the assumption that their compensation was governed by section 7-4-2503, MCA. This statute does not permit the clerks to also collect compensation in the form of passport fees.