Gage County v. Wright

• Decision Date: 28 March 1910
• Docket Number: 15,955
• Citation: 125 N.W. 626,86 Neb. 347
• Parties: GAGE COUNTY, APPELLANT, v. W. W. WRIGHT ET AL., APPELLEES
• Court: Nebraska Supreme Court

125 N.W. 626

86 Neb. 347

GAGE COUNTY, APPELLANT, v. W. W. WRIGHT ET AL., APPELLEES

No. 15,955

Supreme Court of Nebraska

March 28, 1910

APPEAL from the district court for Gage county: LEANDER M PEMBERTON, JUDGE. Affirmed.

AFFIRMED.

F. O McGirr and Menzo W. Terry, for appellant.

Sackett & Brewster, contra.

OPINION

BARNES, J.

This appeal and Gage County v. Wright, p. 436, post, which we have just decided, are companion cases, and differ in law and fact upon one proposition only. This action was brought to recover from the defendants the sum of $ 2,200, money alleged to have been unlawfully retained by defendant Wright as treasurer of Gage county for the payment of clerk hire. The county had judgment in the district court for $ 261.75, and, being dissatisfied with the amount of the recovery, has brought the case here by appeal.

It appears that defendant Wright was the treasurer of Gage county for a second term of two years, ending on the 4th day of January, 1906; that for the first year of his said term the county board duly allowed him to employ one deputy or chief clerk, with compensation at the sum of $ 1,200 per annum; one clerk at a salary of $ 1,000 per annum, and one additional clerk at a salary of $ 200, making a total of $ 2,400. This it appears was the amount retained by the treasurer and actually paid out by him for necessary deputy or clerk hire. It also appears that in his annual settlement with the county board his action in that behalf was approved and ratified. As was held in Gage County v. Wright supra, this was authorized by the county and by the statute, and none of this money can be recovered by the plaintiff. It further appears that in January, 1905, the county board of Gage county allowed the treasurer to employ three clerks, one at $ 1,200 a year, one at $ 1,000 a year, and another for four months at $ 50 a month. The defendant treasurer employed the two clerks first named at the salaries above stated for the first quarter of the year, and paid them their salaries amounting to $ 300 and $ 250. respectively. The legislature of 1905 amended the law at that session by inserting some more definite provisions. Among the others so inserted is a provision that "in counties having over 25,000 and less than 60,000 inhabitants the county treasurer shall receive the sum of three thousand ($ 3,000) dollars per annum, and shall be furnished by the county board with the following clerks or assistants: One deputy or chief clerk whose salary shall be fourteen hundred ($ 1,400) dollars; one clerk whose salary shall be one thousand ($ 1,000) dollars, and one clerk whose salary shall be six hundred ($ 600) dollars per annum." Laws 1905, ch. 72, sec. 1. By the amendment the amount to be expended for clerks to the county treasurers in counties of this class was increased to $ 3,000. Upon the taking effect of this amendment the treasurer continued the employment of the clerks above mentioned, and for the remaining three quarters of that year retained out of the fees of his office and paid to the deputy a sum which added to what was paid him for the first quarter amounted to $ 1,400. This it seems was $ 50 more than he was entitled to. He also paid the other clerk $ 1,000 for the year, which was the amount of compensation to which that clerk was entitled. In the last three quarters of the year the defendant also employed two other clerks, to one of whom he paid $ 425, and to the other $ 175. The first of these clerks was authorized by the county board, while the other was not. Under the law the defendant might have paid to the first clerk $ 450, but it appears that he only paid him $ 425, so, as found by the...