Gregory v. Milwaukee County

| Wis. | Mar 10, 1925

The following opinion was filed December 9, 1924:

Vinje, C. J.

The law no doubt contemplates that applications for both marriage and hunting licenses shall be'complete, including the verification, before the county clerk can be required to act upon them. And it must be admitted that any service rendered in perfecting the application is rendered to the applicant. But the question arises, When such service is rendered the applicant, is it rendered to him by the county or by the assistant or deputy clerk as an individual? The trial court held it was rendered by the assistant clerk as an individual and not by the county through him. There is much to be said for this view as a matter of pure logic. But logic sometimes leads to absurd or at least undesirable results which should not be reached except upon the most clear and explicit demands of written law.

The county clerk, his deputy and assistants were upon a salary basis, and by statute they were required to turn over to the county all official fees received by them. Sub. (8), sec. 59.15; sub. (16), sec. 59.17, Stats.

This was reinforced by a resolution of the county board of Milwaukee County passed November 12, 1895, which required the county clerk “to pay into the county treasury all fees and emoluments of office received by him.”

The evidence clearly shows that the services were rendered by the deputy and assistants during the ordinary office hours. They were therefore rendered on time paid for by Mihvaukee County, and must be held to have been services which Mihvaukee County and not the clerks individually rendered the applicants. As the issuance of hunting and marriage licenses must practically be conducted in a county with the population of Milwaukee, it becomes inevitably necessary to’assist applicants in the filling out of applications and in the administration of' oaths. The office has the blanks, and few applicants take them away from the office. To enable the county clerk to expedite the business and not cause too much trouble and delay to the applicants he must, ex necessitate, aid them in filling out blanks and in administering oaths. This work is practically a necessary incident to the duty of issuing the licenses. And the clerk and his assistants, being on a salary basis, are paid by Milwaukee County for the time they spend in rendering such assistance. The work being incidental to their official duties, the county may require the clerk and his assistants to perform it. But whether it can or not, when, as. in this case, they voluntarily undertake to do it on county time the county should receive the fees therefor.

The trial judge found that the services “were not performed voluntarily within the scope of their official duties.” This must be held to mean only that they did not voluntarily consider them official acts. There is no evidence that they refused to perform the services or made any objection thereto. Under such state of facts it becomes a question of law whether or not they were done for the county or for the applicants.

The better rule in such cases is to. consider all work incident to the discharge of purely official duties to be work done for the county and not for the applicants. The time of a salaried.public official consumed in work incidental to his official duties and done during office hours belqngs to his employer and not to him, and if a charge is made for such work it inures to the benefit of the. employer and not to that of the public employee. Any other rule would tend to make a salaried public office a place for private gain in addition to the salary. It was to abolish the difficulties connected with the fee system that salaries were substituted. Fees should not be allowed to creep in again except by express legislative direction. We therefore hold that,’ in-the case of salaried public officials who are required to turn in all fees of office, fees for work done during office hours and incidentally connected with their official duties belong to the public and not to the employee unless there is a clear, valid direction to the contrary, such as the ten-cent fee allowed the county clerk for the issuance of every hunting license. Sub. (7), sec. 29.09, Stats.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint upon the merits.

A motion for a rehearing was denied, without costs, on March 10, 1925.