142 Wis. 519 | Wis. | 1910
The following opinion was filed February 22, 1910:
The defendant was clerk of the circuit court for Barron county upon a salary basis under the provisions of ch. 411, Laws of 1901, and a resolution of the county board passed in pursuance thereto by which he was to receive for his services as such clerk a fixed salary in lieu of all fees, per diem, and compensation for services rendered by him or his deputy. The resolution provided that all such fees, per ■cliem, and compensation for services rendered should be turned over to the county treasurer according to law. The amount in dispute was collected by the defendant as fees under the naturalization laws of the United States and which he claims the right to retain. The manifest purpose of the legislature as indicated in ch. 411, Laws of 1901, was to make the salary fixed full compensation to the clerk for all services performed by him as such clerk, and it therefore provided that he should pay to the county treasurer “all fees,
The language of this statute is about as broad and, sweeping as it could well be, and would seem to leave no doubt that it was the purpose of the legislature to make the salary full compensation for all services performed by the clerk as clerk and vest the county with all moneys earned by the clerk in his capacity of clerk of the circuit court.
But it is argued with much ability by counsel for appellant that the statute only contemplates the fee system under state laws and was not designed to cover, and does not cover, fees earned under the act of Congress relating to naturalization. The question is not free from difficulty. The act of Congress was passed in 1906, being an act to establish a uniform rule for the naturalization of aliens throughout the United States, and providing fees to be charged by clerks of courts exercising jurisdiction in naturalization cases, and further providing that such clerks are authorized to retain a certain portion of the fees received and pay over the balance to the Bureau of Immigration and Naturalization. Act 59th Congress, June 29, 1906, ch. 3592, § 13, 34 U. S. Stats, at Large, 600 (U. S. Comp. Stats. Supp. 1909, p. 483).
Before the passage of the above act of Congress, the state courts, under power conferred by Congress, naturalized aliens, and the clerks were by state statute allowed certain fees for their services. Sec. 147, Stats. (1898). Much stress is placed by counsel for appellant upon the act of 1906 as a uniform rule of naturalization as affecting the fees of clerks of circuit courts in naturalization proceedings and removing them from the fee system of state courts. And it is argued that since the passage of said act of Congress, ch. 411, Laws of 1901, does not include fees in naturalization proceedings. This argument is based upon the exclusive power
It is further argued that the words of the act of Congress that the clerks are “authorized” and “permitted to retain one half of the fees” involve the granting of a privilege to hold the fees as their own. We think the words used in this ■connection have reference solely to the adjustment under the •act of Congress between the clerks and the bureau. Clearly they cannot be held to authorize or permit the clerks on salary basis to hold them as against the counties, if they are fees ■or emoluments which belong to the counties. So we come back to the proposition whether they are or are not.
It is insisted that such services are performed in a nonof-ficial capacity, therefore belong to the clerks exclusively and -are not covered by the state law or the resolution requiring fees and emoluments received by clerks in their official capacity to be turned over to the county. And it is argued that clerks would not be obliged to turn over money earned in work purely nonofficial, as, for example, time not required in discharge of official duty spent in bookkeeping. This might be admitted, but it does not reach the question, because in the case before us the services were strictly official. The naturalization proceedings are proceedings in
We shall briefly refer to some of the principal authorities relied upon by appellant’s counsel. In U. S. v. Hill, 120 U. S. 169, 7 Sup. Ct. 510, under an act of Congress providing in effect that the clerk shall not be allowed to retain of the fees and emoluments of his office for his personal compensation over expenses, including clerk hire, to be audited and allowed by the proper officer, a sum. exceeding $3,500, and that the accounts should be examined and certified by the judge and he subject to revision by the accounting officers, it appeared in the case that for a great number of years naturalization fees had not been included in such fees in the clerk’s return. All the facts were known to the judge who
“It is for services rendered under these rules, and as a special officer of the court, and not as clerk, that these fees have been permitted. They were not duties pertaining to the office of clerk. They could as well have been performed by any other person designated by the court for the purpose; as by the district attorney, or a commissioner of the circuit court, or an attorney, or any suitable person not an officer of the court.”
In U. S. v. McMillan, 165 U. S. 504, 17 Sup. Ct. 395, the court followed the decision in U. S. v. Hill, supra. In U. S. v. Brindle, 110 U. S. 688, 4 Sup. Ct. 180, Brindle held a public office upon a salary, and the act of Congress prohibited receiving compensation for discharging the duties of any other office. He was appointed to perform a service in no way connected with the office he held, and which was not an office known to the law, and it was held that the service had “no affinity or connection, either in its character or by law or usage, with the line of his official duty.” Mechem, Public Officers, § 863, lays down the general rule that one holding an office is not rendered legally incompetent to discharge duties clearly extra-official, outside of the scope of his official duty. In Evans v. Trenton, 24 N. J. Law, 764, the treasurer of the city of Trenton performed services not paxt of the duties of his office, and it was held that he was entitled to compensation therefor in addition to his salary as treasurer. In Leavenworth Co. v. Brewer, 9 Kan. 307, it was held that a county attorney is not bound to go beyond his county to do business for the county, and if he does he is entitled to reasonable compensation therefor in addition to his
We have found this case by no means easy of solution. Some cogent reasons have been presented by counsel for appellant in support of their contentions. However, after a ■careful examination of the case, the court have reached the conclusion that the judgment below should be affirmed.
By the Courts — The judgment below is affirmed.
A motion for a rehearing was denied April 26, 1910.