Boettcher v. Lancaster County

• Decision Date: 08 June 1905
• Docket Number: 13,823
• Citation: 103 N.W. 1075,74 Neb. 148
• Parties: IDA F. BOETTCHER, EXECUTRIX, ET AL. v. LANCASTER COUNTY
• Court: Nebraska Supreme Court

103 N.W. 1075

74 Neb. 148

IDA F. BOETTCHER, EXECUTRIX, ET AL. v. LANCASTER COUNTY

No. 13,823

Supreme Court of Nebraska

June 8, 1905

ERROR to the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

F. A Boehmer and Kennedy & Learned, for plaintiffs in error.

James L. Caldwell, contra.

ALBERT C. DUFFIE and JACKSON, CC., concur.

OPINION

ALBERT, C.

This is an action on the official bond of Charles O. Boettcher, ex-clerk of the district court for Lancaster county. He was appointed to that office on the 14th day of September, 1899, to fill a vacancy caused by the death of Joseph H. Mallalieu, and held until the 4th day of January, 1900, when he surrendered it to his successor, who had been elected at the preceding general election. The acts and omissions relied upon to show a breach of the conditions of the bond are, in substance, that Boettcher failed to account for the fees of said office as required by the provisions of section 3, chapter 28, Compiled Statutes, 1903 (Ann. St. 9029), which, so far as is material to the present controversy, are as follows: "If the fees of said clerk shall exceed sixteen hundred ($ 1,600) dollars per annum in counties having less than twenty-five thousand inhabitants, or if the fees shall exceed three thousand ($ 3,000) dollars per annum in counties having more than twenty-five thousand inhabitants and less than fifty thousand inhabitants, or if the fees shall exceed thirty-five hundred ($ 3,500) dollars per annum in counties having more than fifty thousand inhabitants and less than one hundred thousand inhabitants, or if the fees shall exceed five thousand ($ 5,000) dollars per annum in counties having more than one hundred thousand inhabitants, said clerk shall pay such excess into the treasury of the county in which he holds his office. Provided also, that the clerk of the district court of each county shall on the first Tuesday of January, April, July, and October of each year make a report to the board of county commissioners under oath showing the different items of fees received, from whom, at what time, and for what service, and the total amount of fees received by such officer since the last report, and also the amount received for the current year. Provided further, that if the county board of commissioners think necessary, said clerk may be allowed one deputy at a compensation not to exceed one-half that allowed his principal; and such other assistants at such a compensation and for such time as aforesaid board may allow, and that none of said clerks, deputies or assistants shall receive any other compensation than that accruing to their office." Judgment was given for the plaintiff and the defendants bring error.

In order to understand what follows, it should be kept in mind that the statutory provision above quoted is amendatory of an act whereby the clerk was not required to account to the county for the fees earned by him, but was permitted to retain them, regardless of their aggregate amount, as his compensation for his official services. The amendatory act was passed without an emergency clause, and was approved April 3, 1899.

Among other items included in the judgment of the district court are fees, aggregating $ 1,150.94, for making up complete records which, in the due and orderly conduct of the clerk's office, should have been made up by Boettcher's predecessor, who had collected the fees therefor, but failed to do the work. Boettcher, during his incumbency, did this work, at the request of the representatives of his predecessor, and received therefor from them the amount of fees just mentioned. The defendants now contend that the court erroneously charged Boettcher with the fees he received for making up such records. In support of this contention, it is argued that it was no part of Boettcher's official duty to make up records, which should have been made up by his predecessor in the discharge of his duties, and that whatever fees Boettcher received for such services are for services rendered in his private capacity, and not in his capacity as clerk of the district court. Counsel in their brief say: The test is whether Boettcher, without receiving extra compensation therefor would have been compelled by proper procedure to make up these records which should have been made up by his predecessor. That is not the test. Section 31, chapter 28, Compiled Statutes, 1903 (Ann. St. 9057), provides that a clerk of the district court, and other officers therein mentioned, may in all cases require the party for whom any service is to be rendered to pay the fees in advance, or give security. From this provision it seems clear that the test is not whether he could have been compelled, without compensation, to make up these records, but whether, upon the payment of his fees therefor, which was done in this case, he could have been compelled by proper procedure to perform such services. Section 444 of the code requires the clerk to make a complete record of every case determined; section 445 provides that these records shall be made up in the vacation next after the determination of the cause. The statute fixing the time within which such records shall be made must be regarded as directory, because it not infrequently happens that, because of the shortness of the vacation, or other reasons, it is impossible for the clerk to make up a complete record of each case determined at the preceding term. But the duty of making such record, like the other duties of the office, is a continuing one that devolves upon each successive incumbent. It is one that belongs exclusively to the clerk of the district court. No such thing as a complete record of a cause made by a private party, under a contract, is known to the code. The duty of making such record is one that the clerk is required to perform at the request of any person interested,...