70 Neb. 606 | Neb. | 1903
The plaintiff in error filed its petition in the district court against the defendant, praying for a writ of mandamus to compel him, as register of deeds of Lancaster county, to enter certain sums of money, received as hereinafter stated, on his fee books, and to account for and pay the same over to said county. Defendant filed his answer to the alternative writ, and on the issues thus joined,
It appears from the record that, during the time the defendant was the register of deeds of Lancaster county, the excise hoard of the city of Lincoln required every person applying for a saloon license in said city to obtain a certificate of the register of deeds, to the effect that the persons signing his petition were freeholders; that, during the defendant’s two terms of office, he made search of the records and furnished such certificates for 224 applicants; that he charged each of such persons, for his investigation of the records, $3.50 and 50 cents for his certificate as register of deeds; that, in each case, he reported the 50 cents for the certificate, as fees, placed the same upon his fee book and duly accounted for and paid the same over to the county.
It further appears that • his salary fixed by law was $2,500 a year; that he received and retained that sum for each fiscal year, which included the sums so reported for certificates as aforesaid; that he refused to enter the amount paid him for searching the records on his fee book, and refused to pay it over to the county, claiming that such service was no part of his official duties; that he had the right to contract with the applicants for his work in examining the records, and. receive from each of them such a sum as they should agree to pay him for the services so performed. It is contended, however, on the part of the relator, that the sums so received by the defendant were collected and received by him by virtue of his office; that he was entitled to receive only $2,500 a year from all sources, and that, therefore, the court erred in denying the Avrit and dismissing the action. This is the sole question presented for our consideration.
It may be stated at the outset that, if the services, for Avhich respondent received the money in question, were any part of the duties of his office, he AArould be required
Counsel also calls out attention to the case of the State v. Wallichs, 16 Neb. 110. The only question involved in that case was whether or not a county, presenting its refunding bonds to the auditor for registration, must pay one fourth of one per cent, on the dollar for each bond registered as proAdded by law. Our attention is also called to State v. Kelly, 30 Neb. 574. In that case it was held that, Avhere a county clerk, Avho was also á notary public, took acknowledgments of deeds, mortgages, affida\its and depositions, as a notary public, it was his duty to enter upon his fee book, as county clerk, and report to the
So it would seem that our decision must be based upon the sole question as to whether or not the services rendered for the applicants, as above stated, were a part of the official duties of the respondent. If they were, then he must account for • and pay over the money received therefor to the relator. If, however, they were no part of his official duties, then the question falls within the rule announced in the case of the State v. Obert, 53 Kan. 106, 36 Pac. 64, where it was held that a county treasurer who, for compensation, made searches and answered letters of inquiry and charged therefor, without a statute authorizing a charge, did not have to report such fees except for his certificate alone. The law of Kansas on this question, is the same as the law of this state. It whs provided by the Kansas statutes that, in counties having a population of more than five thousand and not over ten thousand, the treasurer should receive $1,500 per annum; and that he should account for and pay over to the county, all of the money collected by him as fees in excess of that amount. It was stated in the body of the opinion that, under the general statutes relating to fees and salaries, county officers are entitled to no more compensation than the salaries fixed by law; and that all fees received by them for official services should be accounted for, and deducted
“We do not think that the fees Obert collected for making and certifying abstracts of title, and in writing letters and giving information therein as to taxes, etc., should be reported or accounted for. Such services are no part of the official duty of the county treasurer, as that duty is defined by statute,” citing Mallory v. Ferguson, 50 Kan. 685, 32 Pac. 410.
The same rule was announced in the case of the County of San Bernardino v. Davidson, 112 Cal. 503, 44 Pac. 659. In that case it was shown that it was a custom of miners to have the county recorder record notice of mining claims. There was no statute requiring such work, but the clerk kept a record and charged for it. It was held that it was no duty imposed by law and no fees were fixed by law for it, and hence he need not account for such fees. The case of Cornell v. Irvine, 56 Neb. 657, seems to throw some light on this question. There it was said that where a state officer has rendered services outside of, and not incompatible with, his duties as such officer, it is not proper for the auditor of public accounts to refuse to issue a warrant in payment of such extra services, merely because the salary of such officer was already paid for the period during which said extra services were rendered. And so it was held that judge Irvine was entitled to receive compensation for lectures delivered to a law class of the state university, and that such services were not incompatible with, and were not included within the scope of, his duties as supreme court commissioner. We have recently held, in Shepard v. Easterling, 61 Neb. 882, that a county judge might be allowed the sum of $300 by the county board, for docketing several hundred old cases, and for making an index to the records of the probate court, because such services were extra official; in other words, that the county judge could not be required, as a part of the duties of his office, to perform the services which should have been performed by his predecessor, and, although no fees were fixed
For the reasons above given we recommend that the judgment of the district court bé affirmed.
for the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.