Buffalo County v. Bowker

• Decision Date: 26 February 1924
• Docket Number: 22667
• Parties: BUFFALO COUNTY, APPELLANT, v. E. BOWKER ET AL., APPELLEES
• Court: Nebraska Supreme Court

197 N.W. 620

111 Neb. 762

BUFFALO COUNTY, APPELLANT, v. E. BOWKER ET AL., APPELLEES

No. 22667

Supreme Court of Nebraska

February 26, 1924

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Affirmed in part, and reversed in part.

AFFIRMED IN PART, AND REVERSED IN PART, AND REMANDED.

H. M Sinclair and H. H. Drake, for appellant.

N. P McDonald and John A. Miller, contra.

Heard before LETTON, ROSE, DEAN and GOOD, JJ., ELDRED, District Judge.

OPINION

ELDRED, District Judge.

This action was brought by Buffalo county to recover of appellee, Bowker, formerly clerk of the district court for such county, and the Chicago Bonding & Surety Company, as his surety, the sum of $ 1,099.95, alleged to be due appellant from appellee, Bowker, on account of fees earned and received by him as such official during the year 1920, over and above the amount he was entitled to retain as compensation for his services, and $ 800 additional for deputy. From a judgment in favor of the defendants in the court below, the plaintiff appealed.

Bowker was elected clerk of district court in 1916, for a term of four years beginning January 4, 1917, and held the office during said term. In the year 1920 he received fees of office aggregating $ 4,399.95, and was entitled to retain out of said sum $ 800 allowed by county board for deputy. In addition to the amount allowed for deputy, the clerk earned as fees in 1917, $ 2,557.65; 1918, $ 2,349.75; and 1919, $ 2,885.85.

On December 12, 1916, the board of county commissioners adopted the following resolution:

"Be it resolved that the election returns of the county of Buffalo, in the state of Nebraska, held on November 7, 1916, shows the fact to be that said county then had a population of more than twenty-five thousand inhabitants; therefore, it is by this board declared to be a fact that the population of said county then did and now does exceed the number of twenty-five thousand inhabitants."

The appellant contends that Buffalo county had less than 25,000 inhabitants in the year 1920, and that the clerk was entitled to retain only a maximum of $ 2,500 for the year for his services, and that he must pay the excess of fees into the county treasury. Appellee contends that it was officially determined by the county board December 12, 1916, that said county then had more than 25,000 inhabitants, and that such decision continued in effect during his term of office, and entitled him to retain $ 3,000 per annum as his compensation; and further contends that he is entitled to apply the excess fees of the year 1920 to the deficiency of preceding years during his term. The statute provides:

"If the fees shall exceed twenty-five hundred dollars per annum in counties having more than twenty thousand inhabitants and less than twenty-five thousand inhabitants, or if the fees shall exceed three thousand dollars per annum in counties having more than twenty-five thousand inhabitants and less than fifty thousand inhabitants, * * * said clerk shall pay such excess into the treasury of the county in which he holds office." Comp. St. 1922, sec. 2369.

By this section the amount of compensation the clerk was entitled to receive, if the fees earned were equal thereto, is established; but the statute fixes no method by which the population of a county should be ascertained or determined. The county officers are, by this law, classified upon the county attaining the required number of inhabitants. What the number of inhabitants may be is a question of fact which must be determined by some competent authority. The duty of settling with county officers, auditing their accounts, fixing the salaries of their deputies, as well as the general management of the affairs of the county, rests upon the county board. Before they can perform the duties devolved upon them by law, it becomes necessary that some determination should be made of the number of inhabitants of the county in order to classify the officers. For instance, in addition to classifying the officers, the section of the statute above referred to further provides: "If the clerk of the district court think necessary, said clerk may be allowed one deputy at a compensation of not to exceed one-half of the amount allowed his principal." How could that amount be determined without classification of the officers of the county, which requires determination of the number of inhabitants?

The board of county commissioners of a county are clothed not only with the powers expressly conferred upon them by statute, but they also possess such powers as are requisite to enable them to discharge the official duties devolved upon them by law. Berryman v. Schalander, 85 Neb. 281, 122 N.W. 990; Wherry v. Pawnee County, 88 Neb. 503, 129 N.W. 1013; Emberson v. Adams County, 93 Neb. 823, 142 N.W. 294.

The board of county commissioners of Buffalo county assumed jurisdiction to determine the number of inhabitants of the county, and on December 12, 1916, adopted the resolution heretofore set forth. There is no suggestion made that the commissioners were not acting in good faith in adopting this resolution. Since that date, up to and including the year 1920, the county board allowed all officers of the county to retain fees and salaries based upon a population of 25,000, and has fixed salaries of deputies and clerks in county offices based upon such population. In the absence of a law pointing out how the population should be ascertained, the county board has jurisdiction to determine the number of inhabitants of the county for the purpose of arriving at the classification of its officers; it may ascertain that fact by any competent evidence, just as it may determine any other question of fact arising in the discharge of its duties. Lewis County v. Montfort, 72 Wash. 248, 130 P. 115.

The county board, in ascertaining and determining the number of inhabitants of a county for classification and fixing the compensation of its officers and their deputies, acts quasi-judicially. Mitchell v. Clay County, 69 Neb. 779, 795, 96 N.W. 673; Lewis County v. Montfort, 72 Wash. 248, 130 P. 115. And where the board of county commissioners in good faith ascertain and determine the number of inhabitants of a county for the purpose of classification of the county officers, such determination is not subject to collateral attack, but is conclusive as to those to whom it applies until set aside or vacated by such county board or some other forum of competent jurisdiction in a direct proceeding instituted for that purpose. Thomas v. Whatcom County, 82 Wash. 113, 143 P. 881; Selectmen of Holliston v. New York C. & H. R. R. Co., 195 Mass. 299, 81 N.E. 204; Dexter Horton Trust & Savings Bank v. Clearwater County, 235 F. 743; Mitchell v. Clay County, 69 Neb. 779, 96 N.W. 673; Lewis County v. Montfort, 72 Wash. 248, 130 P. 115.

The appellant relies upon the government census of 1920, which shows the population of Buffalo county to be 23,787. While the evidence of such enumeration was, of course, competent, it does not necessarily control even in an action where the determination of the board is attacked directly, and not collaterally. Other competent evidence may be resorted to for the purpose of determining the number of inhabitants of the county at any given time. O'Connell v. Sioux County, 94 Neb. 826, 144 N.W. 779; State v. Davis, 66 Neb. 333, 92 N.W. 740.

It follows from what has been said that, during the year 1920, the appellant, Bowker, was entitled to retain out of fees earned by his office the sum of $ 3,000 as compensation for himself in addition to the $ 800 allowed for deputy.

According to the stipulation, the office of the clerk of the district court for Buffalo county earned, during 1920, the sum of $ 4,399.95; deducting therefrom $ 800 allowed for deputy and $ 3,000 which the clerk is entitled to retain as compensation for himself, there remains an excess of $ 599.95. During the three preceding years of the clerk's term of office, the fees earned aggregated, after allowing for salary of deputy, only $ 7,793.25, or $ 1,206.75 less than he would have been entitled to retain as salary during those three years, had the fees of his office equalled the sum of $ 3,000 each year. The question now is: May the $ 599.95 of excess fees for the year 1920 be retained by the clerk to apply on the deficiency in the amount of fees earned during the preceding years of his term of office?

Section 2369,...