26 Colo. 145 | Colo. | 1899
Lead Opinion
delivered the opinion of the court.
The questions raised by counsel for appellee on the propositions that the ruling on the demurrer to the complaint cannot be reviewed, or the materiality or sufficiency of the evidence to support the judgment rendered be determined, because no exception was taken to such ruling, and that no objections or exceptions were interposed to the introduction of evidence, will first be considered.
The question of the sufficiency of a complaint may be raised for the first time on appeal, and therefore, the failure to reserve air exception (if one was necessary), to the ruling of the trial court, on the general demurrer, is immaterial, because a failure to interpose it below would not be a waiver of the right to raise the question of the sufficiency of the complaint on appeal, and certainly, having demurred (although no exception was taken to the ruling), appellant is not in any worse position than if no dpmurrer had been interposed at all. The complaint sets out with great particularity the services rendered by appellee, and the itemized respective charges therefor, whether in the nature of statutory fees or reasonable compensation, and from the questions raised by appellant, the decision of this case depends entirely upon whether or not the complaint states a cause of action, and it, therefore, becomes unnecessary to pass upon the proposition, that the materiality or sufficiency of the evidence, in the absence of an objection or exception to its introduction, cannot be determined or reviewed, on a mere exception to the judgment. The sufficiency of the complaint must be tested by a construction of the statutes in force relative to the duties, fees and compensation of a county clerk in his several capacities during the period for which appellee was elected to that office, and rendered the services which are the subject-matter of this action, or, otherwise expressed, whether the items of his account constitute a proper charge against the county.
We shall first consider his claim for fees as clerk of the board. The statute relative to this compensation in that
The subject of the original, as well as the amended, section is compensation. By the former it was not expressly limited, but the latter provided that the clerk of the board shall be paid a reasonable sum for services for which no specific fees are allowed by the board, and paid by the county; but that in no event shall the board allow him, as a charge against a county of the third class, a sum in excess of $600 per annum. Or, in other words — for specific fees, the same was to be fixed and allowed by the board, if paid by the county; and so with respect to reasonable compensation, but the aggregate allowance, whatever might be the basis of computation, cannot exceed the maximum sum. It. is to this subject that the proviso is directed, for it is explicit in this particular, and refers to and limits his compensation, however determined, to a specific amount.
The only remaining question necessary to consider in connection with this branch of the case, is, whether or not a material issue was tendered by the affirmative defense pleaded by appellant. Appellee is not suing for a reasonable compensation for services as clerk of the board, but for fees which
We will now consider the account of appellee for fees and reasonable compensation for services claimed to have been performed as county clerk. Without attempting to notice them in detail, it will be sufficient to state that for many of these items, the compensation claimed is for services rendered as clerk of the board, because appellee, in that capacity, would be required, in the discharge of his duties, to perform all such services, clerical in their nature, as would naturally attach to that position in connection with matters over which the board exercised a control, within the scope of its authority, which would be necessary to enable it to fully perform its duties with reference to such matters (Roe v. County of Kern, 72 Cal. 353; Mechem’s Public Officers, §862); or if they related to those over which the board attempted to exercise a control, which were not within the legitimate scope of its authority, then the claim of appellee for services rendered in connection with such matters could not be sustained. Roberts v. People, 9 Colo. 458.
The remaining items in this account consist of claims for services performed, which are public in their character, like giving election notices, canvassing vote, recording abstract of official vote, issuing certificates of election, preparing tax list of county and state taxes and other services of a similar nature. The performance of these duties devolved upon
The complaint does not state a cause of action, and as none of the items of account sued upon, are a proper charge against the county, the judgment of the district court is reversed, and the cause remanded, with directions to enter judgment that appellee take nothing by his action, and that appellant recover its costs.
Reversed and remanded.
Dissenting Opinion
dissents from the construction placed on section 812, Mills’ Ann. Stats., in so far as it is held that the right to statutory fees thereunder, does not exist.