74 Neb. 148 | Neb. | 1905
This is an action on the official bond of Charles O. Boettcher, ex-clerk of the district court for Lancaster county. He was appointed to that office on the 14th day of September, 1899, to fill a vacancy caused by the death of Joseph H. Mallalieu, and held until the 4th day of January, 1900, when he surrendered it to his successor, who
In order to understand what follows, it should be kept in mind that the statutory provision above quoted is
Among other items included in the judgment of the district court are fees, aggregating $1,150.91, for making up complete records which, in the due and orderly conduct of the clerk’s office, should have been made up by Boettcher’s predecessor, who had collected the fees therefor, but failed to do the work. Boettcher, during his incumbency, did this work, at the request of the representatives of his predecessor, and received therefor from them the amount of fees just mentioned. The defendants now contend that the court erroneously charged Boettcher with the fees he received for making up such records. In support of this contention, it is argued that it was no part of Boettcher’s official duty to make up records, which should have been made up by his predecessor in the discharge of his duties, and that whatever fees Boettcher received for such services are for services rendered in his private capacity, and not in his capacity as clerk of the district court. Counsel in their brief say: The test is whether Boettcher, without receiving extra compensation therefor, would have been compelled by proper procedure to make up these records which should have been made up by his predecessor. That is not the test. Section 31, chapter 28, Compiled Statutes, 1903 (Ann. St. 9057), provides that a clerk of the district court, and other officers therein mentioned, may in all cases require the party for whom any service.is to be rendered to pay the fees in advance, or give security. From this provision it seems clear that the test is not whether he could have been compelled, without compensation, to make up these records, but whether, upon the payment of his fees therefor, which was done in this case, he could have been compelled by proper procedure to perform such services. Section ááá of the code requires
The trial court charged the defendants* with the fees received by Boettcher during his incumbency for his services as a member of the board of insanity, amounting to |66.30, and the defendants now challenge this charge. Section 17, chapter 40, Compiled Statutes, 1903 (Ann. St. 9606), provides for the organization of a board of insanity in each county, and that the clerk of the district court shall be ca? officio a member thereof. A subsequent section fixes the compensation of members of this board. This act was in force long before the amendatory act regulating fees of the clerk of the district court, and requiring him to
It appears from the record that at the expiration of his term fees amounting to $1,344.25, Avhich Boettcher had earned during his incumbency, Avere uncollected, and the question noAV arises whether the defendants are chargeable Avith such fees. The amendatory statute requiring a clerk to account for the fees of his office over and above a specified salary gives the county a pecuniary interest in the services of the clerk and the earnings of his office. To the extent of that interest, he is the agent of the county and is Avithout authority to extend credit. On the contrary, as Ave have heretofore seen, he has a right to demand his fees in advance, and since the enactment of the amendment giving the county a pecuniary interest in the income of the clerk’s office, it is not only the right of the clerk,
The rule laid doAvn in Sheibley v. Dixon County, 61 Neb. 409, is that a county clerk must account for all fees earned by him, whether collected or not. The controversy in that case arose from an item for which the clerk had made no charge. It was contended on behalf of the clerk that, having received no fee for the services, he should not be called upon to account for the same. The court in disposing of that contention said: “This is hardly a tenable position. The law cast upon him the duty of collecting this fee, and if he did not do so, the fault was with him, and he should be compelled to account for the same.” There is no great difference in principle between making no charge for services and • extending credit therefor Avhereby the fees are lost. We are clearly of the opinion that it was the duty of Boettcher to collect these fees, and to the extent that he failed to do so, he and his sureties are liable on his official bond. Whether special circumstances might excuse a clerk for a failure to collect his fees is a question which does not arise in this case.
It appears that some of these fees were collected by Boettcher after his term of office had expired. The question is raised whether his sureties are liable for the fees thus collected by him. But the view Ave have taken with respect to the collection of fees renders it unnecessary to discuss this proposition because, if they were liable for all the fees uncollected at the expiration of his term of office, their liability should not be affected by the fact that he afterwards collected some of these fees.
Another item with which defendants claim they are not properly chargeable is made up of certain fees earned by Boettcher’s predecessor before the amendatory act regulating the salary of clerks of the district court took effect,
After allowing credit for the amount allowed the clerk by law, the court found a balance due the county of $2,700. The items which we have heretofore found properly chargeable to the defendants aggregate $2,561.49. This amount, with accruing interest, would justify the finding of the trial court, at least so far as the defendants are concerned.
It is recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.