State ex rel. Axen v. Meserve, No. 10549

No. 10549 | Neb. | Apr 6, 1899

Sullivan, J.

This is an original application for a writ of mandamus to compel the respondent, John B. Meserve, as state treasurer, to issue to the relator, as treasurer of Stanton county, duplicate receipts for state funds sent by express from the city of Stanton to the city of Lincoln on or about December 1, 1898. The amount forwarded was $731.57, but the express charges not having been prepaid the sum actually received by the respondent and paid into the state treasury was only $719.72. The relator contends that he is entitled to be credited with, and to receive receipts for, the entire amount delivered by him to the express company, and not merely for the net amount received by the respondent after paying the cost of carriage. The validity of this claim is the only question for decision in the case and is raised by demurrer to the petition, which, by mutual consent, stands for the alternative writ.

We have carefully considered the various statutory provisions, as well as the text-books and adjudged cases, to which our attention has been directed, but without being persuaded that the respondent is under legal obligation to issue receipts for money which never.came into his hands. Section 165 of the revenue act is as follows: “The treasurers of the several counties shall pay into the state treasury all funds in their hands belonging thereto, on or before the tenth day of February and tenth day of October in each year, and at such other times as’ the state treasurer shall require, and funds so paid in shall be the identical state warrants, if any, received by the treasurer for payment of the taxes, or in coin, or in treasury notes of the United States.” This section, in plain terms, imposes on the treasurer of each county the duty of paying into the state treasury all the funds in his hands belonging to the state. Delivery to a carrier is obviously not a fulfillment of this obligation. The proposition needs no elaboration; it is enough to state it. With the equity of the rule.we have nothing to do. ' A public officer' must perform every service required of him by law, and he must look to the statute for his compensation. If it provides none, then the services are gratuitous. (State v. Silver, 9 Neb. 85" court="Neb." date_filed="1879-07-15" href="https://app.midpage.ai/document/state-ex-rel-board-of-commissioners-v-silver-6642767?utm_source=webapp" opinion_id="6642767">9 Neb. 85; Bayha v. Webster County, 18 Neb. 131" court="Neb." date_filed="1885-07-15" href="https://app.midpage.ai/document/bayha-v-county-of-webster-6644512?utm_source=webapp" opinion_id="6644512">18 Neb. 131; Adams County v. Hunter, 78 Iowa 328" court="Iowa" date_filed="1889-10-07" href="https://app.midpage.ai/document/adams-county-v-hunter-7104173?utm_source=webapp" opinion_id="7104173">78 Ia. 328; Decatur v. Vermillion, 77 Ill. 315" court="Ill." date_filed="1875-01-15" href="https://app.midpage.ai/document/city-of-decatur-v-vermillion-6958195?utm_source=webapp" opinion_id="6958195">77 Ill. 315; Troup v. Morgan County, 109 Ala. 162" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/troup-v-morgan-county-6516432?utm_source=webapp" opinion_id="6516432">109 Ala. 162; Sampson v. Rochester, 60 N. H. 477.) A person accepting a public office takes it with its burdens, and whenever those become insufferably oppressive he may resort to that excellent and adequate remedy which a wise legislative foresight has provided, viz., a letter of resignation addressed to the proper authority. The petition does not state a cause of action and the writ is therefore denied.

Writ denied.