Douglas County v. Vinsonhaler
| Decision Date | 05 December 1908 |
| Docket Number | 15,488 |
| Citation | 118 N.W. 1058,82 Neb. 810 |
| Parties | DOUGLAS COUNTY, APPELLANT, v. DUNCAN M. VINSONHALER ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Reversed with directions.
REVERSED.
F. S Howell and F. A. Shotwell, for appellant.
C. J Greene, M. A. Hall, Smythe & Smith, Baxter & Van Dusen, J. W. Woodrough, George W. Shields and Byron G. Burbank, contra.
The defendant Vinsonhaler was county judge of Douglas county from January 4, 1900, to January 3, 1906, a period embracing three terms, for each of which the defendant the American Surety Company was surety upon his official bond. During that time he reported all fees collected (other than fees for performing marriage ceremonies), and paid the excess, over and above the amount which he was permitted to retain as compensation for himself and deputies, into the county treasury, except the sum of $ 21.55, which sum was duly tendered to the plaintiff and by the plaintiff refused. He earned a large amount of fees which had not been collected nor received during his incumbency of office, and these he did not report; nor did he report having received any fees for marriage ceremonies, although it is conceded that he performed 1,819 such ceremonies. This action was upon his official bond to recover the amount of fees earned, but not collected, and the sum of $ 3 for each of said marriage ceremonies. The district court found that the defendant could not be charged with uncollected fees, except the marriage fees, and held defendant liable for $ 3 for each marriage ceremony performed, for which amount, with interest, and the $ 21.55 referred to, it rendered judgment in the sum of $ 6,862.92. From this judgment both parties appeal; the plaintiff challenging so much of the decision of the district court as refused to allow it to recover for fees earned and uncollected other than the fees earned for performing marriage ceremonies, while the defendant insists that the conclusion of the court in reference to the marriage fees is erroneous.
1. Prior to the act of 1877 (laws 1877, p. 215) the fees collected by the county judge and other officers named in said act belonged to such officers, and the county had no interest therein. These fees had been fixed upon such a liberal scale that the offices mentioned had in some localities already become more lucrative than in the opinion of the legislature their dignity and importance justified. To meet this condition it was necessary to either reduce the scale of fees allowed or to limit the amount which such officers might retain. As many localities were yet sparsely settled, it was urged that the existing scale of fees could not be generally reduced without impairing the efficiency of the public service in the newer sections of the state, and the plan of limiting the amount of fees to be retained by the officer, with the incidental provision of turning the excess into the public treasury, was adopted. Section 1 of the act fixed the aggregate amount of fees which the county judge should retain, and directed that he pay the excess into the county treasury. It also contained a classification of counties, and a provision for employing deputies and paying them out of the excess. Sections 2, 3 and 4 we quote in full:
It is significant that in each of these provisions it is the amount of fees received that is uniformly mentioned; and the fees earned, and not received, are nowhere alluded to. Section 2 provides that officers shall make a report of the items of "fees received, * * * the total amount of fees received" since the last report, also the "amount received" for the current year. Section 3 directs that the officer shall keep a fee book upon which shall be entered every item of "fees collected," showing the name of the party from whom "received," and the time of "receiving" the same, and the amount "received." If we are to construe the language used in its ordinary meaning, no interpretation is necessary. The statute simply requires the fees received or collected to be put upon the books and reported, and the language is too plain to be misunderstood. The principal reason urged upon the argument and in the briefs submitted for the interpolation of the word "earned," or some word of similar meaning, into this statute, so as to require fees which the officer had earned, but for any reason not collected, to be included in the report, is that this court has already so decided in cases which have been cited, and which we shall presently examine.
Before proceeding to do so, we will consider whether there exists any cause which would require such a construction of the statute in question, were it now being construed for the first time. It is suggested that the legislature had a right to and did assume that the officer would in each case collect the prescribed fee, and that all fees would therefore be received. If the statute had made no provision for the failure to collect fees, we might conclude that all fees were to be regarded as collected for services performed under such circumstances as would justify the officer performing the service in refusing to act until and unless his fees were paid in advance. The statute does, however, recognize the fact that there might be a failure to demand the stipulated fees for services performed, and provides that, if such officer shall "wilfully or intentionally omit to charge the fees provided by law with intent to evade the provisions of this act," he shall be guilty of a misdemeanor. This provision would have been quite unnecessary if the statute were interpreted to require the report of fees earned, and not collected. For, if he were required to report fees, whether collected or not, the failure to collect would not evade the law, and the intent, which is made an element of the offense, could not exist.
It is said that the provisions of section 31, ch. 28, Comp. St. 1899, permitting a county judge to require fees to be paid in advance or security given therefor, furnish a reason why the statute of 1877 should be construed to hold a county judge liable for all fees earned. This section was enacted when all the fees collected belonged to the officer, and was evidently intended to assist the officer in the collection of such fees; but, if it be construed as a contemporaneous enactment, it is permissive in form, and contemplates the giving of credit for fees, for it provides that the officer may require payment in advance or security for such fees. If this statute has any bearing upon the proper construction of the act of 1877, it tends to show that the legislature recognized the practice of giving credit for fees.
In cases where the words used in the statute are doubtful, we may consider the consequences of any proposed construction, and should always prefer that which is consistent with acknowledged principles of constitutional law, and which is the least likely to result in hardship or end in absurdity. To require a county judge to collect fees provided for strictly ministerial acts before rendering the service would impose no hardship upon such officer, nor greatly inconvenience him in the performance of such duties. To make the same requirement in respect to fees earned in judicial trials or in the exercise of his probate jurisdiction would be not only impracticable, but it might in many cases result in an actual denial of justice. While the plaintiff may be compelled to pay or secure the payment of the costs made by him, he cannot be required to pay the costs made by the defendant; and it is quite conceivable that the refusal of a county judge to perform those services which would be necessary to enable a defendant to present his defense might result in a denial of the right to be heard in person and by witnesses, and infringe the provision of the constitution that all courts shall be open, and that every person shall have a remedy by the due course of law, and justice administered without denial or delay. Constitution, art. I, sec. 13.
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Neb. Const. art. I § I-13 Justice Administered Without Delay; Legislature; Authorization to Enforce Mediation and Arbitration
...those services which would be necessary to enable the defendant to press his defense." Douglas County v. Vinsonhaler, 82 Neb. 810, 118 N.W. 1058 Dismissal of action by district judge without determination of merits because of fraud or imposition on the court by one of the parties is denial ......