180 Iowa 919 | Iowa | 1917
To the petition setting up the foregoing facts, the defendant demurred, on grounds as follows:
1. That, by the statutes of the state, any officer
2. That the order of the district court under which the services were performed by the clerk was without authority of law, and therefore void and of no effect.
3. That the money was paid voluntarily and under a mistake of law, and therefore is not recoverable in this action.
4. That the court has no jurisdiction of the subject matter of the controversy, as the matter of the clerk’s salary is fixed by statute.
The demurrer was sustained generally, and, the’plaintiff electing to stand without further pleading, judgment Avas entered against him for costs.
I. The appellee makes no argument in support of the proposition that the court was without jurisdiction of the subject matter of the controversy, and the point so made is evidently without merit.
It is argued, however, that the money sought (o he recovered Avas paid by mistake of law only, and the defendant is not liable for its repayment. While the petition is not drawn with technical nicety, Ave think that, as amended, it is not open to this objection. Read as a whole, the declaration made in the petition is fairly open to the construction that there Avas a difference in opinion between the clerk and the board of supervisors or county treasurer upon the question of the right of the former to retain as his own the compensation paid him as referee, and that plaintiff paid over in money and note the amount demanded from him, with the understanding or agreement that if,
“We know of no reason why such an understanding may not be had, and the rights reserved enforced. * * * The clause, ‘leaving difference to be adjusted later,’ has none of the elements of a protest. The wording of the letter clearly indicates that a voluntary payment was not intended.”
See Juneau v. Stunkle, 40 Kans. 756. There is no
“His duties are fixed by statute, and when these are performed, he is not required to do more.” Polk County v. Parker, 178 Iowa 936.
If, for example, he receives payment or fees as a witness in a civil action, or for service as one of a board of arbitrators, or as clerk of an election board, or as laborer in the harvest field, or indulges in literary work for which he receives more or less in royalties, or, being a merchant or banker or mechanic, wins profits wholly disconnected with the duties placed upon him by statute, no one would soberly contend that the county or any of its officers could rightfully lay claim to any part of the income or earnings so accruing. In each and every case cited and
“In matters of accounts of executors and administrators, the court may appoint one or more referees, who shall have the powers and perform all the duties therein of referees appointed by the court in a civil action.”
It is argued for the defense, among other things, that the appointment of the plaintiff in this case was in the form of a standing order, signed by the several judges of the district, and sought to be made applicable in all probate cases, when in truth, as counsel contended, the statute confers such authority on the court only, and not on the judges thereof, and it is to be exercised, if at all in probate cases, severally and not collectively. From this premise it is said that the referee’s fees in question were exacted wrongfully and without authority, and because thereof plaintiff cannot recover. In our judgment, there can be no question of the validity of the order of appointment. The probate court is always open for the transaction of business not requiring notice, and the usual, if not necessary, manner of making orders in probate, except those made in term time, is reducing them to writing, attesting them by the judicial signature, and filing the same with the clerk; and such appears to be what was done in this case. Nor do we think it any undue extension of the authority given by the statute for the court to provide that all reports of administrators and executors should be submitted to the examination of the referee so named. The enactment of the statute was doubtless prompted by the
It is further argued that, as the order in question appoints the clerk of the court referee, mentioning his official station only, and not naming him individually, it follows that whatever he received, as referee under such appointment was earned in his official capacity. But this does not follow. The court could add nothing to the duties of the clerk, as such, over or beyond that for which the statute expressly or impliedly provided. If, for example, the parties to a litigation should report to the court their desire to have their case referred, and their agreement that the clerk should be named the referee, and thereupon the court should enter an order, saying in substance, “By agreement of the parties, this cause is referred to the clerk of this court to hear, try and determine the issues joined, and report his findings of fact and conclusions of law thereon,” — would the fact that the court’s order designates the referee solely as clerk, and not by liis proper or individual name, have the effect to render him liable to the county for whatever fee or compensation he might receive for the service so performed? We are
“The court, under the circumstances, has as much power to have employed any competent attorney at law or other person to this work as it had to employ Flynn. * * * Tf immediate necessity had arisen for the repair of the elevator to the court room, and the court had employed him to make the necessary repairs, and allowed him therefor a reasonable compensation out of the county treasury, in reason it could not be asserted that he rendered official services in making such repairs, and must account to and pay over the money so received to the county, by reason of the mere fact that, at the time he performed the work, * * * he was the incumbent of the office of clerk. We are of the opinion that the court, if the necessity arose, had the power to employ Flynn unofficially to prepare and arrange the hand dockets for the use and purposes of the court, and had the authority, therefore, to allow him a reasonable compensation for such services out of the county treasury, as court expenses. Consequently, the money allowed him under such circumstances would be his own, and he would not be required to turn it over to the county.”
See also, from the same court, State v. Shutts, (Ind.) 69 N. E. 397. Mr. Mechem, in his work on Public Offices and Officers, Section 863, lays down the general rule that the incumbent of an office is not rendered legally incompetent to discharge duties clearly extra-official, or outside of the scope of his official duty. The mayor of a city, being a lawyer, and employed to defend the city in a law suit, has been held entitled to recover reasonable compen
“He was no more required, in consequence of his official position, to employ his time and talents as a counselor at law in conducting a suit brought against the city, than he was to pay the debts of the city out of his' own private funds.”
Indeed, we think this question is fairly ruled by the principle in our own recent case, Polk County v. Parker, supra. We find no apparent confusion in the precedents upon the proposition that, while the duty of a clerk to account for the fees and emoluments of his office extends to and includes every item of compensation received by him for services rendered in his official capacity, he is under no requirement to account for or pay over any compensation received by him for services performed otherwise than in his official character. The statute prescribes the nature and extent of his official service and the fees which may be demanded therefor; and, if the law imposes upon him any particular duty for which no fee or compensation is provided, he is bound to perform the same without fee or charge. But he is not by law disqualified from performing extra-official service and receiving payment therefor in his individual right, so long as the thing done by him is not incompatible with the duties which he-assumed in taking the office.
The ultimate and decisive question is, therefore, whether the money in controversj' was received by plaintiff in his official capacity as clerk of the district court. Upon the facts admitted by the demurrer, and under the statutes and precedents which we have cited, this question must be answered in the negative. The statute neither expressly nor by implication imposes upon the clerk the duty of referee. The authority to appoint a referee is by statute conferred without restriction upon the district 'court. The court is at liberty to appoint any competent person for
The ruling and judgment of the trial court upon the demurrer are therefore reversed, and the cause remanded for further proceedings in harmony with this opinion.— Reversed.