6 Utah 409 | Utah | 1890
Lead Opinion
This is an original proceeding in this court, in which the plaintiff prays that a writ of mandate issue herein against the defendant, as clerk of the county court of Salt Lake county, requiring him to issue the plaintiff a warrant on the treasurer of said county for $208.33 as salary alleged to be due plaintiff for services. rendered in the month of December, 1889, as “superintendent of county "affairs.” The plaintiff alleges in his petition that he is, and since October 23, 1889, has been, the legal and acting probate judge of Salt Lake county, and, as such probate judge, a member of the county court of said county; that on the 19th day of November, 1889, by resolution of the county court, he was appointed superintendent of county affairs, and that his duties as such superintendent were and are “to have and exercise supervision and control of the public buildings of said county, and of its public roads and bridges, and work
1 Comp. Laws 1888, Sec. 178, provides that “each county shall have a county court, consisting of a probate judge of such county and three selectmen.” Section 184 provides that “the county courts must be held at their respective county-seats on the first Monday in March, June, Septem
By the provisions of section 90 of the statute above quoted, it will be seen that for any service rendered by plaintiff as probate judge, where no fee for such service is fixed by law, he is entitled to a reasonable compensation. The claim for such compensation is to be allowed by the county court upon a bill therefor being presented, itemized and verified, showing the particular service rendered,” etc. Section 196 Comp. Laws, It will further be seen that, as a member of the county court, plaintiff is entitled to “$4 per day for each day actually employed in attending to business pertaining to the county court, together with mileage.” Any and all claims of plaintiff “for per diem or mileage, or other services rendered” by him, mugt be presented to the county court “itemized and verified as other claims, and must state that the service-
Tbe rule is well settled that a public official is bound to perform tbe duties of bis office for tbe compensation fixed by the law. 1 Dill. Mun. Corp 815; Evans v. City of Trenton, 24 N. J. Law, 764; Territory v. Carson, 16 Pac. Rep. 569; Jones v. Supervisors, 14 Wis. 518; Fawcett v. Woodbury Co., 55 Iowa, 154, 7 N. W. Rep. 483. In Evans v. City of Trenton, supra, it is said: “This rule should be very rigidly enforced. Tbe statutes of tbe legislature, and tbe ordinances of our municipal corporations, seldom describe with much detail and particularity tbe duties annexed to public offices; and it requires but little ingenuity to run nice distinctions between what duties may, and what may not be considered strictly official, and, if these distinctions are much favored by courts of justice, it may lead to great abuse.” The plaintiff bases bis claim in this case on the resolution of tbe county court appointing him superintendent of county affairs, and fixing bis salary as such superintendent at 12,500 per year; and bis acceptance of such appointment, and performance of tbe duties it imposed. But section 201, heretofore quoted, prohibits any member of such court from being interested, directly or indirectly, in any contract made by tbe court or other person, in behalf of tbe county, for any purpose. Tbe resolution of tbe court appointing plaintiff superintendent of connty affairs, and bis acceptance of suüh a position, constituted a contract, and was void because prohibited by tbe statute. Its effect, also, if carried out, would be or might be to increase bis compensation as an officer; and it was, therefore, void as against public policy,, independently of tbe statute. Gilman v. Railroad Co., 40 Iowa, 200, and cases cited.
It is probably true that tbe business of tbe county is such as to require attention between tbe regular sessions of tbe county court; and we think, under 1 Comp. Laws, •Sec. 191, tbe court may appoint one or more of its mem
Under the arrangement between plaintiff and the county court, he would be entitled to draw from the county treasury, as superintendent, nearly seven dollars per day for every day in the year, including Sundays and legal holidays, when he could perform none of the duties of his position. During the sessions of the county court, he would also be entitled to four dollars per day as a member of such court, and, while engaged in his duties as probate judge, he would be entitled to the fees provided by law for those duties, and yet, notwithstanding the performance of his duties as probate judge and member of the county court would, while so engaged, prevent the performance of his duties as superintendent, his salary as superintendent would continue without interruption. The alleged fact that such has been the former practice of the county court does not add strength to the plaintiff’s claim. We think the court has no such power, and its exercise would lead to great abuses. The appointment of plaintiff as a so-called superintendent of county affairs, at a fixed salary, was without authority of law, and void, and created no liability against the county for salary. The application for a writ of mandate is therefore denied.
Concurrence Opinion
I concur in tbe judgment o£ tbe court, but I think when a member o£ the court does county business by appointment, when the court is not in session, he is entitled to a reasonable compensation for such services, and is not limited to a per diem allowance of four dollars.