103 N.W. 423 | N.D. | 1905
- This action was brought by Dickey county to recover certain alleged overpayments on defendant’s salary as county superintendent of schools, also certain sums 'paid to him' for clerk hire, all of which payments were made during his term of office and between April 27, 1897, and January 6, 1903. The defendant admits in his answer that he was paid the several amounts stated in the complaint, but alleges, in substance, that the amounts paid as salary were lawfully due, and that the amounts which he received for clerk hire were to reimburse him-for moneys which he had necessarily -expended in employing clerical assistance in his office. The case was tried to the court without a jury, and all of the facts were stipulated. As a conclusion of law the trial court found that the plaintiff was entitled to judgment for the full amount demanded. From the judgment entered in pursuance thereof the defendant has
The several items for which plaintiff was given judgment'are of two kinds:' (1) Alleged overpayments on salary; and (2) alleged unlawful payments for clerk hire. These w-e will consider in their "order. - ‘ '
The findings- show- that the defendant drew a salary during' his entire term of office which -was -based upon ah enumeration of the schools in his county, which included the schools and departments of schools in the special school districts of the city of Oakes and the city of EÚeñdalé. It is conceded that if these schools- should not have beeif included in' the computation the amount awarded for overpayment'on-salary is correct. Counsel for -plaintiff contend that the inclusion o'f -these schools was without authority of law, and we agree with this' contention; Section 652, Rev. Codes 1899, provides a graduated saláry for county superintendents corresponding to “the actual number- of schools or‘separate departments of graded schools over which such -superintendent had official supervision during the'preceding year.” -Section 639, Rev. Codes 1899, expressly excepts schools in special districts from the general superintendence of county superintendents. This particular question was involved in Dickey County v. Denning, in which the opinion- has just been handed down,' and we hold thát schools in special - districts are not under the “official supervision” of county superintendents. It follows that the award for overpayment on salary- was proper.
The findings further show that the county' auditor in issuing to the defendant his monthly salary warrants included in each ah additional sum for clerk hire. Counsel for the county contend that the county auditor was not authorized to pass upon claims for clerk hire and to make payments therefor either to the defendant or direct to-clerks, and that the obligation of the county was to the clerks, and not to the defendant in whose office they were employed. That this is a correct statement of the auditor’s authority and the county’s liability is* sustained by State v. Heinrich, 11 N. D. 31, 88 N. W. 734. It is upon this basis that the county claims the right to recover the various sums paid to the dé'f-endant for clerk hire as money paid under mistake. The- authority for the employment of clerks is contained- in section 652, Rev. Codes 1899. So far as pertinent it reads as follows: “In counties having sixty schools the board of count)' commissioners shall appropriate one
The district court is directed to modify its judgment by striking out the amount awarded for payments made to the defendant for clerk hire, and as thus modified the judgment will be affirmed. Appellant will recover costs in this court.