165 P. 748 | Mont. | 1917
delivered the opinion of the eourt.
In a proceeding had under the provisions of section 9006, Revised Codes, the appellant, Nelson Story, Jr., was found by
I. The main contention of appellant is stated in the language of his counsel as follows: “We contend that the word ‘fees,’ as used in the section under consideration, refers only to the statutory charges for official services rendered by an official to the different members of the general public, and does not in any way include, refer to, or contemplate the compensation, whether by way of salary or per diem, paid by the state or the county direct to its officials for services rendered; that the statute was intended for the protection of the individual members of the general public who, dealing with the officer, as such, may have been compelled to pay an illegal fée for the services rendered; that it was never intended to protect the county, the state, or the municipality from charges by the officer against it for services rendered by the official which were either illegal or wrongful or which were covered by his compensation or salary fixed by the statute regulating the compensation which he should receive for his services; that the statute is both penal and criminal, and that it cannot be extended to charges made by officials (however
1. Neither in common parlance nor in legal usage has the word “fees” any such narrow limit as that assigned to it by appellant’s counsel. It has many meanings, general and particular. Generally it signifies a reward or payment of money (Trench’s Select Glossary) ; money paid or bestowed; emolument (Century Dictionary); reward or compensation for services rendered or to be rendered (Webster’s International Dictionary). In its particular sense it imports a recompense or reward fixed by law for the services of a public officer. (Century Dictionary.) Legally, it means a reward or wages given to one for the execution of his office, differing .from costs in that fees are a recompense to the officer for his services. (Bouvier’s Law1 Dictionary.) Nowhere is it said to connote a particular source, as from individuals, and not from nation, state or county. So that, considered in its ordinary significance, the term “fees,” as used in section 9006, would cover the appellant’s charges made upon and paid by the county, and the phrase “collecting illegal fees for service rendered” accurately describes his receipt of the money if there was no legal warrant for its payment.
2. Confining ourselves to the historical data submitted, we might possibly conclude that prior to 1895 the word “fees” was understood as counsel now defines it, but a wider survey convinces us that this would not be correct. In the Bannack Stat
But, whatever may be the correct, or even just, inference from previous legislation, there cannot be the slightest doubt that, when the Codes of 1895 were enacted, including as section 1545 of the Penal Code the present section 9006 of the Revised Codes, the term “fees” was not confined in its significance to specific charges for particular services rendered to individuals,
3. Besides the Payne Case, supra, this court had occasion in State ex rel. Rowe v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 Pac. 1103, to consider some of the aspects of appellant’s present contention. There one Booher was sought to be removed from office under section 9006 for collecting illegal fees. The collection was from the county in good faith for services rendered, but it was held nevertheless that, since there was no legal warrant for it, the transaction constituted a collection of illegal fees for which removal, under section 9006, was possible. Elsewhere, too, the same result has been reached. Under the statute in North Dakota, Idaho and Utah, as here, county commissioners received per diem and mileage payable by the county; and in State v. Richardson, 16 N. D. 1, 109 N. W. 1026, State v. Borstad, 27 N. D. 533, Ann. Cas. 1916B, 1014, 147 N. W. 380, Rankin v. Jauman, 4 Idaho, 53, 36 Pac. 502, Rankin v. Ja/wman, 4 Idaho, 394, 39 Pac. 1111, Ponting v. Isaman, 7 Idaho, 283, 62 Pac. 680, and Robinson v. Huffaker, 23 Idaho, 173, 129 Pac. 334, it was expressly determined that a county commissioner who receives from his county per diem and mileage to which he is not entitled, either because not earned or not authorized by law, is guilty of collecting illegal fees for services rendered in his office, and subject to removal under provisions similar to section 9006 of our Code. And the same conclusion was reached in Skeen v. Craig, 31 Utah, 20, 86 Pac. 487, respecting a city councilman. In this case the court, upon the first appeal reversing a judgment below for the defendant, said: ‘ ‘ Counsel for defendant insist that the facts as disclosed by the record do not bring the case within the provisions of section 4580; their contention being that this section refers to officers only who are paid by fees for specific services, or, being salaried officers, are yet required to charge and collect fees for specific services, and that, as a city
It has been suggested — though it is not exploited in appellant’s brief — that the only illegal fees for collecting which an officer can be removed under section 9006 are those received for services rendered in his office, and if the service for which collection be made is not required of the officer or authorized by law to be performed by him as such, it is not service rendered in his office; so that, whatever legal animadversion he may be subjected to for the collection, assuming the charge to be without legal warrant, there can be no removal under section 9006. In a certain sense this is obvious; but it is not illuminating. At the time involved here county commissioners had general supervision over highways (Laws 1915, Chap. 141, sec. 2), were charged with the establishment, maintenance and control of the same (Laws 1915, Chap. 141, sec. 2; Rev. Codes, sec. 2894, subd. 4); it was their function to manage and care for highways as other interests committed to their charge (Rev. Codes, sec. 2894, subd. 22), and in that behalf they could do or cause to be done whatever might be necessary (Rev. Codes, sec. 2894, subd. 25; Laws 1915, Chap. 141, see. 2). If these provisions mean anything at all, it is that county commissioners could in virtue of their office personally superintend and effectively direct the work of construction and repair upon highways and could' depute one of their number to see and speak for them respecting the same; but, unless payment is authorized for such service none can be lawfully made, and to charge and collect for it is to charge and collect illegal fees for service “rendered in his office.”
“3194. Members of the board of county commissioners each receive eight dollars per day and fifteen cents per mile for the distance necessarily traveled in going to and returning from the county seat and his place of residence.”
“2952. All claims against the county presented by members of the board for per diem and mileage, or other service .rendered by them, must be verified as other claims, and must state that the service has been actually rendered.”
If these two sections were the only provisions reflecting on the subject, it might be possible to imply from the phrase “or other service rendered,” in section 2952, and from the absence of any express restriction in section 3194, that the commissioners should have compensation for any service whatever rendered to the county — Tor those to which per diem properly applies at the rate of $8 per day, together with mileage, and for other services on some basis not stated, perhaps the reasonable value of the service. Section 2952, however, is in itself no authorization to take money from the public treasury for any purpose, and cannot be employed to bolster up a claim for which independent authority does not exist (Irwin v. County of Yuba, 119 Cal. 686, 52 Pac. 35); it is a mere prescription, touching the maimer in which commissioners’ claims for compensation, elsewhere authorized, shall be formulated and is designed in connection with section 2945 to enable the board to determine in the first instance whether it will even consider the claim (Christie v. Board of Supervisors, 60 Cal. 164). Moreover, these sections are not the only ones upon the subject. Section 2893 provides: “Each member of the board of county commissioners is entitled to eight dollars per day for each day’s attendance on the
It is doubtless true that, in the case of a commissioner acting honestly and with a view to the efficient discharge of the duties of his office, the conclusion is a harsh one which results not only in the restoration of moneys actually earned, though illegally claimed, but also in his removal from office. This, however, cannot be helped. Section 9006 is general, makes no distinctions, leaves no room for judicial discretion. It was designed to serve a far-seeing public purpose, and to deny its application to this case, upon the grounds urged here, would be to destroy its value in other eases .where its effect may be more certainly needed.
The judgment appealed from was- commanded by the facts stated, and is therefore affirmed. . „
Affirmed.
