Campbell Cnty. v. Overby

• Decision Date: 27 June 1906
• Citation: 108 N.W. 247,20 S.D. 640
• Parties: CAMPBELL COUNTY v. OVERBY.
• Court: South Dakota Supreme Court

20 S.D. 640

108 N.W. 247

CAMPBELL COUNTY

v.OVERBY.

Supreme Court of South Dakota.

June 27, 1906.

Appeal from Circuit Court, Campbell County.

Action by Campbell county against Samuel O. Overby. From a judgment for plaintiff, defendant appeals. Affirmed.Albert Gunderson, for appellant.

H. J. Krueger, Frank Alexander, and G. N. Williamson, for respondent.

HANEY, J.

This action was tried upon an agreed statement of facts from which it appears that the plaintiff is an organized county in this state; that defendant was its treasurer from February 2, 1894, to January 10, 1895; that the defendant presented a claim to the plaintiff's commissioners at their regular July, 1895, meeting, duly verified, containing these items: “To five per cent. commission on $3,960.24 of real estate sold to Campbell county, November 5, 1894, $198.01; to 181 tax sale certificates at 50 cents each, $90.50;” that the board allowed such claim for which a warrant was issued to the defendant in the sum of $288.51; that payments were made on such warrant to the amount of $266.44, which sum was received and retained by the defendant; “that the payments so made were collected by subsequent county treasurers out of sales made by the defendant;” and that before the commencement of this action plaintiff demanded of the defendant the return of such money and cancellation of such warrant. The learned circuit court decided that the plaintiff was entitled to recover all sums so paid with interest at the rate of 7 per cent. and possession of the warrants so issued, together with its costs and disbursements, and judgment was entered accordingly. Under the law in force during defendant's term of office he was entitled to receive a salary not exceeding $1,500 per annum, payable monthly from the special salary fund. If the fees paid into the county treasury by him did not equal that amount he was “entitled to receive a sum equal to the fees paid into the treasury.” Any deficiency during any quarter year or fractional quarter year was to be made up from any excess of fees paid into the treasury by him for services rendered during the calendar year in which such deficiency occurred. Laws 1890, p. 293, c. 134. He could receive no compensation for his services other than the salary so provided. Laws 1891, p. 175, c. 65. His claim, therefore, on its face, was illegal, its allowance was wholly unauthorized, and the warrant issued therefor was invalid.

The contention that an appeal from...