State ex rel. Attorney General v. Leidtke

12 Neb. 171 | Neb. | 1881

Lake, J.

The sole question presented upon this relation and the ■agreed facts, is simply whether the fees collected by the respondent, while acting as auditor of public accounts, for services rendered by him in administering the act relative to “ Insurance Companies,” belong to the state, or to him. In view of the following provision of the constitution of this state, the question seems to ús to be a very simple one.

Sec. 24, Art. V., after fixing the salaries of various state officers, including that of the auditor of public 'accounts, provides that, “ they shall not receive, to their own use, any fees, costs, interest upon public moneys in their hands or under their control, perquisites of office, or other compensation, and all fees that may hereafter be payable by law for services performed by any officer provided for by this article of the constitution, shall be paid, in advance, into the state treasury.”

According to this provision, strictly speaking, all such fees should be paid in advance of the performance of the required service into the state treasury, the treasurer giving proper vouchers therefor, to be retained by the officer in his office as evidence of the required amounts having been so paid. But, inasmuch as the respondent received the fees in question to himself, and still retains the moneys, he must be held to have taken, and to hold them, in trust, for the use of the state, and in duty bound to hand them over to the state treasurer, the lawful custodian thereof.

As to the greater part of these fees, it is admitted that they were received by the auditor for strictly official duties required by said act, but the respondent contends that six hundred and forty-six dollars thereof were for services not official, which the insurance companies might have dispensed with, and which he was under no obligation to perform, but which he nevertheless did perform in compliance with their request. These particular services are described by the evidence as consisting of the preparation of “ statements for publication of life insurance companies, and procuring the same to be published, and issuing duplicate certificates for both fire and life -insurance companies.” These fees, it is strongly urged, the respondent is entitled to retain as his own, in any event. But we think otherwise; for although the services for which they were charged may not have been entirely indispensable to the proper enforcement ■ of the law, they were at least semi-official, and were performed by him as the agent of the state, whose obligations and duties preclude the idea that he could, at the same time, be in the private service and pay of the insurance companies. This act for the regulation of insurance companies is an important one, and its due observance essential to tlie protection of the inhabitants of the state against manifold impositions and wrongs. It vests in the auditor of public accounts a large discretion, and very grave responsibilities, and public policy, as well as the due execution of the law, requires that be have no divided allegiance in its enforcement.

• Section 32, of the act, provides the following fees, viz:

“ For examining and filing of the first application of any company, and issuing of the certificate of license thereon, fifty dollars, * * *; for filing each annual. statement herein required, twenty dollars; for each certificate of authority, two dollars; for every copy of paper filed as herein provided, the sum of ten cents per folio, and fifty cents for certifying the same, and affixing the seal of office thereto.” Now if the auditor, in violation of the law, exact larger fees than are here provided, or if the companies take a greater number of certificates of authority than are necessary, or folios of written matter that could be dispensed with, such excess does not go to the benefit of the officer, but, like any other portion of fees earned by him, to the state, whose servant he is; and under the provision of the constitution that “all fees that may hereafter be payable by law’ for services performed by” such officer, must be duly accounted for. Such being our views, we must hold that all of these fees belong to the state, and a peremptory writ as prayed is granted.

Writ Allowed.