The defendant Vinsonhaler was county judge of Douglas county from January 4, 1900, to January 3, 1906, a
1. Prior to the act of 1877 (laws 1877, p. 215) the fees collected by the county judge and other officers named in said act belonged to such officers, and the county had no interest therein. These fees had been fixed upon such a liberal scale that the offices mentioned had in some localities already become more lucrative than in the opinion of the legislature their dignity and importance justified. To meet this condition it was necessary to either reduce the scale of fees allowed or to limit the amount which such officers might retain. As many localities were
“Section 2. Each of the officers named in section one of this act shall on the first Tuesday of January, April, July and October of each year make a report to the board of county commissioners under oath showing the different items of fees received, from whom, at what time and for what service, and the total amount of fees received by such officer since the last report, and also the amount re-received for the current year. *
“Section 3. Each of the officers named in section one of this act shall keep a book, which shall be provided by the county, and which shall be known as the fee book, and shall be a part of the records of such office, and in which shall be entered each and every item of fees collected, showing in separate column the name of the party, from whom received, the time of receiving the same, the amount received, and for what service the same was charged.
“Section 4. Any of the officers named in section one of this act, who shall omit to comply with the provisions of this act, or shall fail or neglect to keep a correct account of the fees by him received, or shall fail and neglect tó make a report to the board of county commissioners as herein provided, or shall wilfully or intentionally omit to charge the fees provided by law, with intent to evade the provisions of this act, shall be deemed guilty of a misdemeanor, and, upon conviction, shall for each offense be fined in any sum not less than twenty-five dollars, nor*814 more than one hundred dollars; and any officer named in this act who shall make a false report under oath, shall be guilty of perjury, and punished accordingly.”
It is significant that in each of these provisions it is the amount of fees received that is uniformly mentioned; and the fees earned, and not received, are nowhere alluded to. Section 2 provides that officers shall make a report of the items of “fees received, * * * the total amount of fees received” since the last report, also the “amount received” for the current year. Section 3 directs that the officer shall keep a fee book upon which shall be entered every item of “fees collected,” showing the name of the party from whom “received,” and the time of “receiving” the same, and the amount “received.” If we are to construe the language used. in its ordinary meaning, no interpretation is necessary. The statute simply requires the fees received or collected to be put upon the books and reported, and the language is too plain to be misunderstood. The principal reason urged upon the argument and in the briefs submitted for the interpolation of the word “earned,” or some Avord of similar meaning, into this statute, so as to require fees Avhich the officer had earned, but for any reason not collected, to be included in the report, is that this court has already so decided in cases which have been cited, and which we shall presently examine.
Before proceeding to do so, we will consider whether there exists any cause Avhich Avould require such a construction of the statute in question, were it now being construed for the first time. It is suggested that the legislature had a right to and did assume that the officer Avould in each case collect the prescribed fee, and that all fees would therefore be received. If the statute had made no provision for the failure to collect fees, we might conclude that all fees were to be regarded as collected for services performed under such circumstances as would justify the officer performing the service in refusing to act until and unless his fees were paid in advance. The statute
It is said that the provisions of section 31, ch. 28, Comp. St. 1899, permitting a county judge to require fees to be paid in advance or security given therefor, furnish a reason why the statute of 1877 should be construed to hold a county judge liable for all fees earned. This section was enacted when all the fees collected belonged to the officer, and was evidently intended to assist the officer in the collection of such fees; but, if it be construed as a contemporaneous enactment, it is permissive in form, and contemplates the giving of credit for fees, for it provides that the officer may require payment in advance or security for such fees. If this statute has any bearing upon the proper construction of the act of 1877, it tends to show that the legislature recognized the practice of giving credit for fees.
In cases where the words used in the statute are doubtful, we may consider the consequences of any proposed construction, and should always prefer that which is consistent with acknowledged principles of constitutional law, and which is the least likely to result in hardship or end in absurdity. To require a county judge to collect fees provided for strictly ministerial acts before rendering the service would impose no hardship upon such officer, nor greatly inconvenience him in the performance of such duties. To make the same requirement in respect to fees earned in judicial trials or in the ex
There aré fees for services not performed for either party, like the fee provided for the continuances arising by operation of laAv. In the exercise of the original jurisdiction given by the constitution in matters of probate, settlement of estates of deceased persons, appointment of guardians, etc., there frequently occur cases in which there is no responsible person to pay or guarantee fees that imperatively demand the performance by the county judge of services for which fees are prescribed. The argument of inconvenience is therefore not opposed to the plain meaning of the words used, but is in harmony therewith. So with the argument of contemporaneous construction. It is conceded that ever since the enactment of this statute it has been construed by the officers whose duty it was to enforce it as requiring county judges to account only for fees received, and this consideration, which sometimes constrains courts to give the words of a statute a different meaning from that which they would otherwise infer therefrom, is here in accord with the ordinary meaning of the words actually used.
This brings us to the consideration of the cases which, it is urged, have committed this court to a construction of the statute which would practically substitute the word
In State v. Hazelet, 41 Neb. 257, a county clerk, who was required to furnish the sheriff with' a certificate showing the amount of all lands and incumbrances upon lands about to be appraised and sold as upon execution, for each of which he was entitled to charge a fee of $2, entered on his fee book 25 cents for each certificate. Upon an order to show cause why a peremptory mandamus should not issue to require him to report the full fee of $2 for each certificate, he answered, not that the fee was uncollected, but that the actual work of examining the record and preparing the certificates had been performed by some clerk or employee in his office other than his deputy, and that whatever sum had been paid by the sheriff in excess of the 25 cents reported had been paid to the person who performed the labor connected with the examination of the records and the preparation of the certificates. This presented the question, not whether the. county clerk was liable for uncollected fees, but whether the county clerk might, by the device employed, sequester a portion of the fees earned and collected by some one under his control. Such a proceeding was clearly inhibited by the fourth section of the act, which provides a penalty for the officer who, with intent to evade the provisions of the act, wrongfully or intentionally omits to charge the fees provided by law; and the court very properly held the answer insufficient. But in so doing the court said: “There is no room for doubt, under the sections above referred to (laws 1877, p. 215, secs. 1-3), that it is the duty of each county clerk to keep a fee book, and to enter therein every item of fees received or earned by him for official services, and to make an accurate report of the same to the county board.” The process of reasoning by which the word “earned” was read into the statute is not given; and, since it was unnecessary to the determination of the question before the court
Hazelet v. Holt County, 51 Neb. 716, was an action against the clerk and his bondsmen to recover fees received for making road books and assessors’ books, and fees collected for making the certificates of incumbrances mentioned in State v. Hazelet, supra. There was no question in the case of fees earned, but not collected; and, while the language of the opinion in State v. Hazelet was quoted with approval, that portion of it which relates to fees earned and uncollected had no bearing upon the case then being considered.
In Sheibley v. Dixon County, 61 Neb. 409, the question was presented Avhether the county clerk was required to enter in his fee book and report fees received for making a certificate to abstracts and fees received for taking the acknowledgments to deeds and mortgages. It was held that he was required to report such fees. The pleadings charge that the fees were collected. What the evidence established concerning this fact does not appear from the opinion; but the last paragraph contains this statement: “Another matter urged is that, although acknowledgments were taken by plaintiff, he did not in fact charge any fee for taking the same, and, therefore, should not be called upon to account for the same, never having received any money to account for. 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 Avas with him, and he should be compelled to account for the same. State v. Hazel, 41 Neb. 257.” It is conceded that the statute
Boettcher v. Lancaster County, 74 Neb. 148, was an action against the clerk of the district court and the surety upon his bond for failing to account for the fees of his office in excess of the amount allowed him as compensation. It appeared from the record that at the expiration of his term fees to a considerable amount which Boettcher earned during his incumbency' were uncollected; and the question was there presented whether the clerk of the district court was chargeable with such fees. It was there’ held that the county had a pecuniary interest in the services of the clerk and the earnings of the office, and that to the extent of that interest he was the agent of the county and was without authority to extend credit. This conclusion was partially, at least, based upon the theory that section 31, ch. 28, Comp. St. 1899, which provides that a clerk of the district court and other offiers 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, forbade the giving of credit by the clerk. It is not explained what the result would be if the clerk took the security provided for by statute and it should prove inadequate. If we are correct in what we have already said concerning this section, it offers no support to the argument that credit is not to be given. That circumstances might excuse a district clerk for failure to collect the prescribed fees was recognized in the opinion, when it was said: “Whether special circumstances might excuse a clerk for a failure to collect his fees is a question which does not arise in this case.” And neither this case nor that of State v. Several Parcels of
2. The plaintiff concedes that no specific fee can be collected for a public service unless it is authorized by statute ; that, even where a duty to perform the act is imposed without the provision of any fee therefor, such duty must be performed for the compensation provided in other ways. The defendant contends that the power to perform marriage ceremonies conferred upon county judges is permissive, and not mandatory, and that no fees were provided for the performance of such ceremonies by the statutes in force during the period of defendant’s incum
3. This brings us to an examination of the statutes which the plaintiff contends gave to the county judge a fee for the performance of the marriage ceremony. We are much indebted to counsel, who have with great learning and laborious research given an exhaustive history of our legislation upon this subject from territorial times to the present. We think, however, that the provisions of the statute in force during the period of defendant’s incumbency, considered as contemporaneous acts, are too plain to make it necessary for us to extend this opinion by recapitulating their history. In addition to the probate jurisdiction and his jurisdiction concurrent with the district court, a county judge is by section 2, ch. 20, Comp. St. 1899, given the ordinary powers and jurisdiction of a justice of the peace. His authority to charge fees is found in section 8, ch. 28, Comp. St. 1899, where he is given, first, authority to charge, for any services performed by him in any matter within the jurisdiction of a justice of the peace, the same fees as are allowed by law to justices of the peace for like services; second, for all civil actions triable in the county court, of which a
There is no doubt that the word “jurisdiction” may be and is sometimes used in such connection that it should be construed as meaning “poAver” or “authority,” and it is urged by the plaintiff that it should be so interpreted here. It is argued that, since section 2, ch. 20, gives to county judges the ordinary powers and jurisdiction of a justice of the peace, it was the intention of the legislature to fix for the services granted by said section 2 the same compensation as was given to justices of the peace for like services, whether they were ministerial or judicial. Conceding this, it could only apply to the jurisdiction and powers conferred upon a county judge by section 2, which he would not otherwise have possessed. We think it Avas the intention of the legislature to give to the county judge fees for the exercise of the jurisdiction and powers which he acquired solely by the grant to him of the ordinary poAvers and jurisdiction of a justice of the peace. But no reason is suggested why the legislature should give to a county judge the fees of a justice of the peace for the exercise of powers which were directly granted to him by other provisions of the law, merely because such powers were also included in the grant to him of the
4. It is conceded that the statute of 1877 has been construed by the administrative officers, whose duty it was to enforce the same, so as not to give a county judge the right to charge a fee for performing a marriage ceremony, or, at least, so as not to require any compensation which such county judge may have received for such performance of that ceremony, as the fees of his office, to He accounted for under the statute. It is one of the principles governing the interpretation and construction of statutes that, where the meaning of a statute is dubious, long usage is a just medium by which to expound it. Franklin v. Kelley, 2 Neb. 79; State v. Holcomb, 46 Neb. 88; State v. Sheldon, 79 Neb. 455; United States v. Hill, 120 U. S. 169. We think the operation of such a rule is just and salutary; and this court has gone so far as to hold that a construction so made will in some cases be regarded as adopted by the legislature, although the language of the statute would indicate a different meaning. State v. Sheldon, supra. That the right of the county judge to charge a fee for performing marriage ceremonies was doubtful, in the opinion of the legislature, is indicated by the fact that in 1907 section 8, ch. 28, supra, was amended so as to expressly allow him a fee for performing the same. If a contemporaneous construction may be considered to give the language used a different meaning, it may certainly be invoked as an aid where there is any doubt about the meaning that should be given to the language used, and the fact that we here find it in harmony with the interpretation arrived at from a considera
With reference to the $21.55, the defendant’s answer alleges, and the plaintiff’s reply admits, a tender and p'ayment into court of that amount. As this sum equaled the amount which should have been found due the plaintiff, the judgment should have been-for the defendant. It follows, from what we have already said, that the district judge should have found for the defendant upon all the issues.
The judgment of the district court is therefore reversed and the cause remanded, with instructions to enter judgment dismissing the plaintiff’s petition, with costs.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and cause remanded, with instructions to enter judgment dismissing the plaintiff’s petition, with costs.
Reversed.