State ex rel. Braatelien v. Drakeley

143 N.W. 768 | N.D. | 1913

SpaldiNG, Ob. J.

The relator filed a brief and appeared in person on the argument in this court. The defendants neither appeared nor filed a brief, but Mr. George A. Bangs, an attorney of Grand Forks county, made application for leave to submit a brief on behalf of the state auditors’ association, whatever that may be, and he was permitted to do so, and we refer to and consider his brief the same as though it had been filed in behalf of respondents. lie makes certain joreliminary objections to a consideration of the matter, which will be disposed of before we turn to the question of whether the county or the auditor is entitled to the fees in question.

1. lie asserts that the relator is not a party beneficially interested as required by § 7823, Eev. Codes of 1905, and therefore cannot maintain this proceeding. lie argues that the acts sought to be compelled are governmental functions in which no one citizen has any beneficial interest or is directly affected. We have carefully examined the authorities he cites, but this question has been passed upon repeatedly by this court, and the relator, as a resident, citizen, and taxpayer of the county is qualified to act as a relator in this proceeding.

If the duty enjoined by the statute upon the county commissioners to audit or adjust the accounts of the auditor includes auditing or adjusting the items composed- of fees received for certifying to abstracts and deeds, it is a public duty and one in which all the taxpayers of the county are interested. State ex rel. McDonald v. Holmes, 19 N. D. 286, 123 N. W. 884; State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706; State ex rel. Schilling v. Menzie, 17 S. D. 535, 97 S. W. 745; State ex rel. Dakota Hail Asso. v. Carey, 2 N. D. 36, 49 N. W. 164; 26 Cyc. 404 (II) and authorities cited; 26 Cyc. 407, note, as to taxation; Union P. R. Co. v. Hall, 91 U. S. 343, 23 L. ed. 428; State ex rel. Romano v. Yakey, 43 Wash. 15, 85 Pac. 990, 9 Ann. Cas. 1071.

2. It is urged that the acts sought to be coerced are discretionary and that hence mandamus will not lie. Sec. 2428, Eev. Codes of 1905, reads: “All treasurers, sheriffs, clerks, constables, and other officers chargeable with money belonging to any county, shall render their account to and settle with the county commissioners at the time required by law, and pay into the county treasury any balance which may be due the county. . .

Section 2430 reads': “If any person thus chargeable shall neglect or refuse to render true accounts or settle as aforesaid, the board of county commissioners shall adjust the accounts of such delinquent according to the best information it can obtain, and ascertain the balance due the county, and order suit to be brought in the name of the county therefor; and such delinquent shall not be entitled to any commission, and shall forfeit and pay to the county a penalty óf 20 per cent on the amount of funds due the county.”

We are. now dealing with the act of adjusting the accounts of the auditor as they relate to the fees in question. It should be observed that the statute provides that if a person chargeable shall neglect or refuse to render true account, or settle, the board shall adjust the accounts of the delinquent. We are not concerned with how they shall be adjusted, that is, we are not permitted to determine that any specific sum is due, or that the commissioners shall find any sum due in case the facts alleged in the petition of the relator are found to be untrue; but on the facts as stated it is the ministerial duty of the board to examine and adjust those accounts, including the items in question, if the items belong to the county rather than to the auditor. The only thing required of the commissioners is the ministerial duty of acting upon the facts set forth in the petition and which are alleged to be within their knowledge, namely, that there are such items and that they have not been accounted for, and to proceed to make an accounting or an adjustment, and thereby determine, according to the best information they can obtain, the amount of such items unaccounted for and unpaid to the treasurer, if any.

While it is true that the subject of the controversy pertains to the fiscal affairs of the county, yet this does not alter the situation when the board refuses to perform its ministerial duty. The terms of the statute quoted above are mandatory. The taxpayers of the county are entitled to know, and the legislature contemplated that they should be informed, as to the amount of fees collected and unaccounted for, and while the courts cannot direct- the findings of the board they can set the commissioners in motion by directing them to proceed and investigate and ascertain by computation whether anything is due, and if so how much of the county’s property has been retained by the auditor. Many authorities are cited by respondent on this subject, but not one of them sustains bis argument. They go to the effect that the court cannot direct the board to find a specific or definite amount due. We think they are uniform to the effect that courts may set the board in motion. We shall not review the authorities cited, but will say that People ex rel. Damron v. McCormick, 106 Ill. 184, is illustrative. It rests on facts practically parallel with those in the instant case, but it was there sought to compel a specific result, while here, in so far as the accounting is concerned, it is only sought to set the board in motion by requiring it to perform the acts which may result in finding something or nothing due. See 26 Cyc. 161; State ex rel. Heffron v. District Ct. ante, 32, 143 N. W. 143; Stephens v. Jones, 24 S. D. 97, 123 N. W. 705. In fact this proposition is so elementary that citation of authorities is unnecessary.

3. It is next urged that the writ will not lie, because there are other adequate remedies provided by statute, viz., those authorizing proceedings for the removal of officials who fail to perform their duties; and criminal prosecution. We think counsel labors under a misapprehension of what is meant by other adequate remedy. The provisions for the removal of officials and for criminal prosecution furnish no remedy whatever to the taxpayers or to the public for the diminution of the funds of the county. They simply serve as a warning, and tend to prevent a recurrence of the neglect or refusal, and to punish the officials for their dereliction. Such proceedings would not replenish the public treasury nor provide additional funds for conducting the public business, nor would they diminish the taxes assessable against the property of the taxpayers of the county. They furnish, in a measure, a remedy for the crime committed, if any, but no civil remedy. Hence we say they furnish no remedy in the statutory sense; and, if doubt exists, that doubt should be resolved in favor of the solution of the question which will afford a remedy. 19 Am. & Eng. Enc. Law, 747; State ex rel. Cutter v. Kamman, 151 Ind. 407, 51 N. E. 483; 26 Cyc. 173; Temple v. Superior Ct. 70 Cal. 211, 11 Pac. 699.

Kerr v. Superior Ct. 130 Cal. 183, 62 Pac. 479, is cited as an authority, but we deem the dissenting opinion of the chief justice and Judge Temple to state the better reasons. In any event, the reasons given, in the majority opinion, if in point, are in conflict with our conclusions in State ex rel. Heffron v. District Ct. ante, 32, 143 N. W. 143.

Both parties devote considerable space to attempting to establish that the state’s attorney can only bring an action against the auditor on the facts alleged, when directed by the county commissioners so to do. They agree on this question; hence we do .not examine it, and express no opinion thereon further than to say that this is apparently in accord with the statute and seems to be supported by authority. See §§ 2428 and 2430, Rev. Codes of 1905, supra; Kerby v. Clay County, 71 Kan. 683, 81 Pac. 503; Looscan v. Harris County, 58 Tex. 511; State ex rel. Rosbach v. Pratt, 68 Wash. 157, 122 Pac. 987.

We now appi'oach the important question in this case, viz., to whom do the fees collected by the auditor for certifying to deeds and abstracts ■belong ? Are they the property of the county or of the auditor ? The difficulty in determining this question arises largely from the apparent conflict between the provisions of chap. 70, Laws of 1907, and chap. 219, enacted at the same session of the legislature. While chapter 70 precedes chapter 219 in the published laws of that session, this is purely accidental, and in no manner indicates which was intended to take precedence. The chapters in the laws of that session are numbered and arranged alphabetically with reference to subject-matter, and chapter 70 is under the title, as arranged, of “County Officers,” while chapter 219 is under the title of “Kevenue and Taxation.” In fact,, chapter 219 was introduced and passed prior to the passage of chapter 70, and likewise was approved before the approval of chapter 70, the latter having been approved by the governor on the 14th of March, 1907, while chapter 70 was not approved until March 19,' 1907. Neither chapter contains any emergency clause. Chapter 219 is entitled, “Bequirements of Tax Deeds,” and is an act to amend § 1597 of the Bevised Codes of 1905 relative to the duties of county auditors, and requires such auditor, when any deed is presented to him for transfer, to ascertain from the books and records of his office whether there are any delinquent taxes, special assessments, or tax sales on the land covered by the deed, and prescribing the certificate which the auditor is required to make on such deed as applicable to the facts found, viz., that he shall enter on every deed of real property so transferred over his official signature, “delinquent taxes and special assessments or instalments of special assessments paid and transfer entered,” or “paid by sale of tbe land described within,” or “transfer entered,” whichever may be applicable to the facts found. It also prescribes the duties of the register of deeds, requiring him to refuse to receive or record a deed unless the proper certificate is first obtained from the auditor. It also provides penalties for failure to comply with the law, and makes exceptions of United States patents and some other forms of transfer from these requirements. The last sentence reads: “The county auditor shall keep a record of such transfers in a book kept for that purpose, showing the names of the grantor and grantee, a description of the property and the date of transfer, and shall receive, 25 cents for each certificate, from the person or persons presenting. the same for certification, and said auditor may retain such fee as compensation for making such certificateThe purpose of this statute, like others referred to, was to secure the payment of taxes, rather than to increase the compensation of the auditors. Section 1591, of which this is an amendment, contained the same provision relating to this fee and was enacted in 1903 by chapter 16Y of the laws of that year: “To provide that all taxes and assessments shall be paid before transfer of property,” which, when so enacted, was an amendment of § 1278 of the Revised Codes of 1899, relating to “deeds not to be recorded without auditor’s certificate of taxes paid.” And this act, which is chap. 144, Laws of 1901, contained the same provision permitting the auditor to retain such fee.

Sec. 1278, Rev. Codes of 1899, was enacted as chapter 135 of the Laws of 1899, the subject of which was, “Auditor’s Certificate Required,” and was an amendment to chapter 126 of the Laws of 1897. This chapter 135 concludes with this provision: “The county auditor shall keep a record . . . and shall receive 25 cents for each certificate from the person or persons presenting the same for certification, and shall cover the same into the county treasury for the credit of the county general fund; provided, in counties in which the auditor is not paid the maximum salary allowed by law, said auditor may retain such fee as compensation for making such certificate.” Chap. 135, Laws of 1899, was enacted to amend § 95 of chapter 126 of the laws of 1897, which contained the unqualified requirement that the auditor should cover the fee into the treasury for the credit of the general fund, and such section was contained in tbe general law relating to revenue and taxation enacted by that session of tbe legislature, and repealing all acts or parts of acts in conflict therewith. Prior to 1897, by chap. 113, Laws of 1893, tbe auditor bad been permitted to collect and retain this fee, as be bad been by § 91, chap. 132, Laws of 1890; but by chapter 52 of Laws of 1889 be bad been required to turn all fees into tbe county treasury received in excess of tbe salary provided by that chapter, based on a percentage of tbe assessed valuation; and to tbe same effect was § 14 of chapter 10 of tbe Laws of 1887, which was tbe first general law providing for the compensation of county auditors. Tbe law providing for certifying to abstracts was enacted as chap. 1, Laws of 1901, and provided a fee of 25 cents, but contained no provision permitting him to retain it. When that chapter was enacted chapter 56 of tbe Laws of 1899 was in effect, which chapter prescribed tbe salary of county auditors and contained no provision regarding fees. So much for the history of tbe legislation regarding fees for tbe certificates relating to • deeds, to which we shall have occasion to refer later.

Chapter 70 of tbe Laws of 1907, heretofore referred to and here in question, is entitled “Salary of County Auditor,” and provides that “tbe salary of tbe county auditor shall be regulated by tbe value of tbe property in bis county as fixed by tbe state board of equalization for tbe preceding year, as follows :■ Provided that no county auditor shall receive more than $1,200 for bis personal services in any one year in counties where tbe valuation of taxable property is less than $1,500,000, nor more than $1,400 in counties where tbe assessed valuation exceeds $1,400,000, but does not exceed $2,000,000.”

Then follow provisions like tbe last, increasing tbe salary between certain valuations in counties of higher valuation until tbe last provision is reached, which is: “Nor more than $2,500 in counties where tbe assessed valuation exceeds $12,000,000; and all moneys received as fees for certifying to abstracts or deeds in excess of tbe salary as limited by this article shall be paid by tbe county auditor at tbe end of each month into tbe revenue fund of the county.”

It thus appears that chapter 70 contains no positive declaration of tbe amount of salary that any auditor shall receive, tbe only statement on tbe subject being tbe one quoted, under tbe proviso providing for a maximum only. A brief reference to the history of legislative provisions for the compensation of county auditors and the salaries provided will aid somewhat in ascertaining the meaning of this chapter and its relation to chapter 219, supra.

The Revised Codes of 1877 provided for no officer known as the county auditor, but by §§ 61 to 64 of chapter 21 of the Political Code it imposed upon the register of deeds the duties, ex officio, of county clerk, which duties were later transferred to the office of the county auditor, and are those now performed by that official. The compensation for the county clerk was fixed by § 8 of chapter 39 of the Political Code of 1877. That section, as far as material, reads: “For performing the duties of the clerk of the county commissioners and attending to the business of the county, the county clerk shall receive such salary per annum, to be paid by the county quarterly, as the commissioners of the county shall allow, not exceeding in any year the sum of $600.” In 1883, by chap. 1, Special Laws of that year, the office of county auditor was created for Pembina, Walsh, Grand Porks, Lincoln, Traill, Cass, and Richland counties, and the duties formerly performed by the county clerk were transferred in those counties to the auditor. Sec. 14 fixes their salaries as follows: . “The salary of the county auditors shall be regulated by the value of the property in their respective counties as fixed by the territorial board of equalization for the preceding year as follows: In counties where the amount of assessable property does not exceed the sum of one and one-half million dollars they shall be entitled to receive 5 mills, on each dollar of the first $100,000, and 1 mill on each dollar of all amounts in excess of said last-named sum, and less than $200,000, and one tenth of one mill on each dollar of all amounts in excess of said last-named sum; in counties where the value of taxable property for the preceding year, as fixed by the said board of equalization, exceeds the sum of one and one-half million dollars the county auditor shall be entitled to receive 5 mills on each dollar of the sum of the first $100,000, and -g- of 1 mill on each dollar in excess of such sum and less than $2,000,000, and £ of 1 mill on each dollar of all sums in excess thereof; . . . provided that no county auditor shall receive more than $1,500 for his personal services in counties where the valuation does not exceed $4,000,000, nor more than $2,000 for his personal services in counties where the valuation does exceed $4,000,000, and does not exceed $6,000,000; nor more than $2,500 in counties where such valuation exceeds $8,000,-000, and does not exceed $10,000,000; nor more than $3,000, where such valuation exceeds $10,000,000; and all moneys received as fees or percentage in excess of the amounts provided for in this act shall he paid hy the auditor at the end of each year into the revenue fund of the county

Section 16 provided that whenever the term “county clerk” occurred in any of the existing laws of the territory, it should be deemed and held synonymous with, and construed to mean, county auditor. Here we have the foundation for the phraseology of most of the enactments relative to the fees received by county auditors down to and including the session of 1907, and it is clear to the members of this court that the meaning of that statute was that the county auditors of the counties first mentioned constituted one class, namely those where taxable property did not exceed $4,000,000; the second class was all having property between $4,000,000 and $6,000,000. In the first class the county auditor received a salary not to exeeed $1,500, and if the percentage on the valuation did not amount to $1,500, then he was entitled to retain moneys received as fees sufficient to make his salary $1,500, and any excess of fees over that sum was to be turned into the revenue fund of the county. In the last class he was entitled to retain such fees sufficient to bring his salary up to $3,000; if the percentage amounted to less than that sum. Above $3,000, it was to be turned into the revenue fund,'but no auditor in the last class could receive, for himself, to exceed $3,000, regardless of valuation or amount of fees.

The next legislation on the subject is found in the Laws of 1885, when the legislature, by chapter 2 of Special Laws, provided for auditors of Brown and certain other counties; and by chap. 37, Special Laws of that year, auditors were provided for Spink, Stutsman, and other counties, and the- law creating the office of county auditor for the counties of Pembina, etc., above referred to, was made to apply to the auditors of the counties of Spink, etc. Thus stood the law until 1887, certain counties having auditors and others being without them, with their duties performed by the register of deeds under the title of county clerk. By chap. 10, Laws of 1887, a general law, the office of county auditor was created and Ms duties defined. Sec. 14 of the act fixed the salary, the language employed being the same as that in the act establishing the office in Pembina and other comities, but it reduced the maximum salary to $2,000, and contained the same proviso requiring the fees or percentage in excess of the amounts named as the maximum to be paid into the revenue fund of the county at the end of each year. It is likewise clear that this proviso applied to each class of counties established in the act, separately, that is to say, of one class no auditor could receive to exceed $1,500 per annum; in the other class he could not receive to exceed $2,000; and the excess of fees and percentages, after he retained enough to amount to the maximum for his class, was to be turned into the county revenue fund. The same phraseology and arrangement of the provisions on this subject were carried into the law of 1889. From a knowledge of contemporaneous history and conditions existing during the eighties, we may say with assurance that the reason for the provision that they turn into the revenue fund the excess of fees, and percentages received over their salary instead of being required to account for them monthly or otherwise, was to enable the auditor to receive a portion of his compensation in cash. During those years the warrants of most counties in the territory were considerably below par. The treasuries were empty, and generally warrants could not be paid until many months, and those of some counties several years, after issuance. By employing this phraseology the legislature permitted the auditors to receive the benefit of at least part cash for their services. This condition changed later, and a corresponding change was made requiring the accounting to be made monthly instead of yearly. By chap. 52, Laws of 1891, chap. 5.0, Laws of 1881, which had regulated the salaries of registers of deeds and treasurers of counties, and permitted the register of deeds to retain fees received for making and certifying to abstracts, was repealed, as was § 14 of chapter 10, relating to auditors. The phraseology of the provisions of § 1, fixing the salaries of county auditors, was similar to the preceding enactments on the subject, but here a change occurred in the proviso which we need not interpret here. It was provided that he should not be required to account for fees for certifying to deeds, and further that all fees received by such officer, “in excess of the above provisions in this act, shall be paid into the salary fund of the county at the end of each month.” 'By chap. 56, Laws of 1899, the salary of the county auditor was again changed. The phraseology was also changed and the section read, in part': “The salary of the county auditor shall be regulated by the value of the j>roperty in his county as fixed by the state board of equalization for the preceding year as follows: He shall be entitled to receive not to exceed $7 50 in counties where the assessed valuation does not exceed $500,000.” Then followed increases in salary for counties with greater valuations, and last: “Two thousand dollars in counties where the assessed valuation exceeds $9,000,000, provided that no county auditor shall receive for his personal services an amount to exceed $2,000 in any one year.”

At the same session, chapter 135, relating to the auditors’ certificate to deeds, was enacted, to which we have heretofore made reference. The law fixing this salary seems not to have again been changed until the enactment of chap. 70, Laws of 1907, above referred to and here under consideration. After long consideration and careful investigation of the subject in an attempt- to harmonize chapter 70 and chapter 219, supra, we have reached the conclusion that the peculiar phraseology of chapter 70 was undoubtedly employed by the legislature by reason of having overlooked some of the changes made previously in the method of computing the auditor’s salary, and we conclude that the phrase: “No county auditor shall receive more than . . . dollars for his personal services in any one year in counties where,” etc., can, as the correlated laws now stand, only be construed as fixing the salary of the auditor in each county of the valuation by which his county is classified at the sum named, no more and no less. Bor instance where the valuation is less than $1,500,000, his salary is $1,200 per annum, and the maximum salary of $2,500 is the salary fixed for counties in which the assessed valuation exceeds $12,000,000.

We have thus given a history of the legislation, peiffiaps at greater length than is necessary, but because when act is compared with act we think it throws some light on the meaning of chapter 70, supra. It will be seen that the duties of the office of auditor were first performed by the register of deeds. His salary was fixed by the board of county commissioners. Then the duty was transferred to the newly created office, and the salary was at -first based on a percentage of the assessed valuation, and later the valuation was employed only for the purpose of classifying the counties with reference to salary, and an arbitrary salary was fixed for the counties of each separate class. Legislation on tbe subject was undoubtedly enacted without any member having performed the burdensome task of tracing the origin of the phrase^ ology of the statute which he was seeking to amend, or the application of such phraseology. They unquestionably assumed that it had a special and correct application in the law amended, and no retrospective examination was made.

Now what effect, if any, does chapter 219, supra, have upon the provision of chapter 70,-requiring the fees mentioned to be paid into the revenue fund of the county at the end of each month % It is elementary that when two laws relating to the same subject-matter are passed at the same legislative session they are to be construed together, if possible, so as to give effect to each, but if the two laws are irreconcilable the one which is the later expression of the legislative will must prevail. The provisions in question clearly conflict, and as clearly cannot be harmonized within the limits of any rule of reason. This being apparent, which provision controls ? Chapter 219, first enacted, as we have indicated, relates to the duties of the county auditor in certifying to the payment or nonpayment of taxes on deeds offered for record. The prime subject of the chapter is the requirement that there be such certificate. The object was to compel the payment of taxes. The permission given the auditor to retain the 25 cents fee is the last paragraph of the chapter, and is only incidental to the main purpose of the law. There is nothing in the chapter indicating that the object of its enactment was to either increase or diminish the compensation received by county auditors. It is a general law, dealing with a specific subject; namely, requiring the certificate of the auditor to deeds before they can be entitled to record. Chapter 70 is a general law fixing the salaries of county auditors. It is general in the sense that it applies to all county auditors, but it deals with only a specific subject. That subject is the salary of the county auditor. The purpose of its enactment was to readjust the salaries of county auditors, while the purpose of the legislature in enacting chapter 219 was to further regulate the requirements necessary to entitle a deed to record, by that means com-, pelling the payment of taxes before the transfer of lands, and serving as an aid in the collection of taxes.

It is also elementary that a statute, special in the sense that it deals with one subject only, will control over the terms of another conflicting statute in which the conflicting subject is only incidentally treated, and having some other main object. We think this has some bearing on the construction of these statutes, and tends to indicate that the provisions of chapter 70 govern as against those of chapter 219, but there are other reasons why this seems clear. That there is a conflict cannot be questioned. Chapter 70 was the later enactment. The body of this chapter increased the salaries of county auditors, and the last clause deprived them of the fees in question. To say nothing about the reasonable probability that the legislature did not intend to both increase their salaries and give them the fees, but rather figured that the increase was adequate, it is clear that the later enactment, in view of the conflict, must control, and repeals the repugnant provision of the earlier statute. This question has been so recently discussed and decided by this court that we need not make further reference to authorities. See State v. Cooper, 18 N. D. 583, 120 N. W. 878. The character of this legislation is such that this rule must overcome any presumption against an implied repeal. When chapter 219 was introduced and passed, the subject of an increase in the salaries of the auditors was not before the legislature, and it is reasonably certain, considering the history of the two bills, that when chapter 70 was considered, the legislature intended to make a flat raise of the salaries of the auditors, and pursue the policy followed by the legislature generally in recent years, of putting officers onto a flat salary and turning all fees over to the state or the county, as the case might be. This is the most reasonable interpretation to place upon the acts of the legislature, viewed in the light of the history of the two bills when before the legislature. Undoubtedly when chapter 70 was considered by the committee and reported, and later when it was passed, the two houses had under consideration the fact that chapter 219, previously passed, had given the auditors the fees. When chapter 219 was under consideration the subject of a flat increase in the salaries of auditors had not been considered; in fact the bill for chapter 70 was only introdixced the day prior to the final passage of chapter 219, and was not reported by the committee for a week or more thereafter.

But it is urged that a proper construction of chapter 70, if repugnant to chapter 219, permits the auditor in any class of counties to retain the fees until they increase his salary to the amount allowed in the class of counties having tbe highest valuation, or in other words, to collect the maximum salary provided in the chapter. While the language is not entirely clear standing by itself, yet, from a consideration of the whole act and the other legislation on the subject, we think it very clear that each class of counties is to be considered and treated by itself; that the maximum salary referred to means the salary of the class of counties fixed by the valuation to which that maximum is applied. In other words, the last phrase of the section is employed to limit the compensation of an auditor in any class of counties to the sum fixed in that class. It does not mean that each auditor in each class of counties except the last shall be entitled to retain fees until they raise his salary to the sum of $2,500, the amount fixed for counties of the highest valuation. Such a construction would be absurd. It might result in giving the auditor of the county having the smallest valuation, and in which the smallest salary is prescribed, the same compensation provided for the county having the largest valuation, even though the auditor of the latter county received as great or a greater amount in fees than did the auditor of the smallest county. The proper construction of the chapter is that it was intended to mean precisely the same as though a separate act or chapter had been enacted for each class of counties, each containing the provision regarding paying over the fees, instead of including the counties of all classes in one chapter, and not repeating the language of the paragraph relating to fees after each classification. While the language employed is not the most apt, and while the intent might have been made more plainly apparent, yet we are clearly of the opinion that this is the proper construction to place upon this law. No such conflict exists as to fees for certifying abstracts, and no attention need be given them. The fund collected by the auditor belongs to the county unless the statute shows a clear and plain legislative intent to grant it to a salaried officer. In other words, any doubt should, in case of a salaried officer, be resolved in favor of the public. If we were in doubt on the subject the rule announced in State v. Stockwell, 23 N. D. 70, 134 N. W. 767, would apply.

But it is next argued that all the auditors of the state have construed this statute as permitting them to retain the fees collected in addition to the salary prescribed, and that on the principle that a course of conduct indicating a common understanding by the administrative officers should have great weight in determining its real meaning, where such usage has been acquiesced in by all parties concerned and has extended over a long period of time; and a vast array of authorities is cited in support of this proposition. We need not consider them. Neither need we controvert the general principle enunciated. It has no application, however, in this case. Respondent says that all auditors have so construed the law. The appellant says that it has been construed by a large number of them in .harmony with the conclusion of this court. We are not advised as to which is correct; but be the fact as it may be, the law had only been in force a relatively short time; the parties construing it were those interested, rather than other departments of government, and it appears that the legislature, by chap. Ill, Laws of 1911, evinced its dissent from the construction placed upon the laws by those county auditors who had retained such fees. See also State v. Stockwell, supra.

6. Having determined that the relator is qualified to act in that capacity, that mandamus will lie to set the board of county commissioners in motion, that the feos belong to the county, there remains hut one other question for consideration. It is sought, as we have shown, not only to direct the board to adjust the account, but also to instruct them to order the state’s attorney to bring suit against the auditor. Some authorities are cited holding that this is a matter within the sound discretion of the hoard, on which its members must exercise their judgment and determine whether a suit is advisable. Without holding that these authorities are not in point under our statute, we will say that we do not feel justified in holding that the board should at this, time be directed to order suit. The state of the law has been such that we cannot say that they have not acted in good faith, nor can we say that when advised by this court as to the ownership of the fees they will refuse to perform their duty in the premises. The refusal to order suit was undoubtedly grounded upon their opinion that there was nothing due the county by reason of the erroneous assumption that the fees belonged to the auditor, and it will be early enough to pass upon the power of the court to order the board to direct the state’s attorney to bring suit when the necessity for doing, so arises, if it ever does, by reason of a refusal or failure of the auditor to pay any sum found due the county after the adjustment, and the subsequent neglect of the board to order suit. To pass upon it at the present time would be to assume that the board of county commissioners of Williams county, after being fully advised in the premises, will deliberately attempt to aid the auditor in retaining what does not belong to him but does belong to the county.

The order of the District Court is reversed, and this case is remanded for further proceedings in accordance with law.