88 N.W. 734 | N.D. | 1903
The defendants who constitute the board of county commissioners of McIntosh county, appeal from a judgment of the district court of said county awarding a peremptory writ of mandamus commanding them, as such board, to appropriate from the general fund of said county and pay to the relator the sum of $692 as and for money expended by him for clerical assistance in the office-of county superintendent of schools of said county. The relator bases his right to such appropriation and payment upon the following provision contained in § 652, Rev. Codes 1899: * * * In counties having sixty schools the board of county commissioners shall appropriate $100 for clerical assistance in the county superintendent’s office, and $5 for each additional school, to be paid monthly. * * *” This proceeding was instituted by the relator on January 7, 1901,— the day upon which his term of office as county superintendent expired. His affidavit, the allegations of which are embodied in the alternative writ, in substance states as grounds for relief that during the years 1897, 1898, 1899, and 1900 he was the duly elected, qualified, and acting county superintendent of schools in an„d for McIntosh county; that the defendants constitute the board of county commissioners for said county; that during the years above named there were in said county the following number of schools under the official supervision of the relator, to-wit: In 1897, 71 schools; in 1898, 72 schools; in 1899, 78 schools; in 1900, 83 schools; that the' defendants have failed, refused, and neglected to appropriate any sum of money whatever for clerical assistance in the county superintendrit’s office of said county during any of said time; that the amount required by law to be appropriated during said period was $717; that during said period relator had clerical assistance in his office; that, by reason of defendants’ failure and neglect to make the appropriation therefor, the relator was compelled to, and did, pay for such clerical assistance from his individual funds. In answer to the allegations of the alternative writ, the defendants deny that there were during the years in question the number of schools alleged by the relator, and deny that there were during said years 60 schools or more in said county in which school was taught for three months or more, or at
A motion was presented by counsel for respondent to affirm the judgment in his favor upon the ground that the statement of the case, wherein the appellants have demanded a retrial and review of the entire case in this court, does not contain all of the evidence offered. An examination of the statement makes it evident that it was settled with a view to securing a retrial of the entire case under § 5630, Rev. Codes 1899. It contains the statutory demand for a re
We still have before us the judgment roll proper, after eliminating from consideration the defective statement. Error is predicated thereon, and the same is presented to us for review by a proper assignment in appellants’ brief. The single error assigned upon the statutory judgment roll is that “the conclusion of law and judgment are not justified by the findings of fact.” The conclusion of law made by the trial court which is assailed by this assignment of error is that the relator is entitled to a peremptory writ of mandamus requiring the defendants to appropriate and pay to him the sum of money in question as and for clerical assistance in the county superintendent’s office during the years named. The question presented is whether the facts found authorize this conclusion. We are of opinion that they do not. Briefly stated, the facts upon which the judgment rests are that during relator’s term of office there were a sufficient number of schools' under his supervision to authorize and require the county commissioners to make an appropriation for clerical assistance in his office in the sum of $692; that defendants did not make such appropriation; that the relator had clerical assistance in his office, and paid for such clerical assistance from his own funds, and payment therefor has not been made by the county either to the
It is also urged that, even if the remedy by mandamus was proper, it was abandoned by the relator by appealing to the-district court from the action of the county commissioners rejecting his claim; and it is also urged that, in- the absence of a previous appropriation for clerical assistance, the employment of clerks in his office was without authority of law, and created no legal obligation against the county. On these propositions we find it unnecessary to express an opinion. We base our conclusion upon the broad ground that the facts found and previously stated do not establish a legal obligation in relator’s favor against the county. In other words, we are of opinion that, had the facts here found been established in an ordinary civil action, a judgment against the county in relator’s favor could not be sustained. In this view, the question as to remedy is unimportant. The relief which the relator seeks in this proceeding, and which is awarded to him by the judgment apealed from, is the recovery of the sum $692. It is patent that this recovery can be sustained only upon the ground that the county owes a legal obligation to pay the relator said sum. The grounds upon which counsel for relator seek to- sustain the recovery are not clear. It would seem, however, to be their contention that the statute which requires county commissioners to appropriate moneys for clerical assistance in the superintendent’s office when there are the requisite number of schools also requires that such moneys be paid directly to the superintendent, to be expended by him in his discretion; in other words, that he is made the custodian of the funds so appropriated, and is vested with authority to disburse the same, and also with authority to audit and allow or reject accounts of persons rendering clerical assistance in his office. We find no language in the statute which will warrant this interpretation. It is true; under the section referred to, county commissioners are required to make an appropriation for clerical assistance for county superintendent’s offices when there are the necessary number of schools. It is not a matter of discretion with them, as in the case of clerks and deputies for county auditors, registers of -deeds, treasurers, county judges, and clerks of district courts. See § § 2063, 2069, 2074, 2078, 2081, Rev. Codes 1899. The fact, however, that 'the county commissioners are required to make the appropriation for clerical assistance - does not authorize the inference that it is to be paid to the superintendent, and that he, instead of the county treasurer, is made the custodian of the funds, or that he, instead of the county commissioners, is to audit and allow the ac
It follows from what we have said that the trial court erred in awarding the relator the peremptory writ. The judgment of the district court is reversed. The appellants will not be permitted to recover the costs of printing the aljortive statement of the case. They will be allowed for 20 pages of the printed abstract, and no more.