Nation v. Tulley

• Decision Date: 10 February 1912
• Docket Number: 17,866
• Citation: 86 Kan. 564,121 P. 507
• Parties: JAMES M. NATION, Plaintiff, v. MARK TULLEY, as State Treasurer, etc., and W. E. DAVIS, as State Auditor, etc., Defendants
• Court: Kansas Supreme Court

121 P. 507

86 Kan. 564

JAMES M. NATION, Plaintiff, v. MARK TULLEY, as State Treasurer, etc., and W. E. DAVIS, as State Auditor, etc., Defendants

No. 17,866

Supreme Court of Kansas

February 10, 1912

Decided January, 1912.

Original proceeding in mandamus.

Writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATE AUDITOR--Registration of Public Utility Bonds--Fees. Section 744 of the General Statutes of 1909 requires registration with the state auditor of public utility bonds issued by cities, "and said auditor shall be entitled to a fee of not exceeding fifty cents for each bond so registered in his office." Held, that such fees collected by the plaintiff when auditor belonged to him and he was not required by section 9007 of the General Statutes of 1909 to account for or turn them over to the state treasurer.

2. FEES--Paid to State Treasurer by Mistake--Recovery Back. The plaintiff, while holding the office of state auditor, collected such fees and by mistake paid them to the state treasurer who credited them to the general fund. An act appropriating to the plaintiff the sum so paid, on condition that his right thereto first be determined by this court, was passed by the legislature and such appropriation was vetoed the veto message inferentially expressing a willingness that the plaintiff's right to the money should be judicially determined. Held, that permission to sue the state or exemption from suit not having been expressly given or waived the plaintiff should look to the legislature rather than to the court for relief.

James M. Nation, for the plaintiff; E. W. Grant, of counsel.

John S. Dawson, attorney-general, and S. M. Brewster, special assistant attorney-general, for the defendants.

OPINION

WEST, J.:

The plaintiff was state auditor from January 14, 1907, to January 9, 1911. His salary was fixed by statute at $ 2500 a year. Section 744 of the General Statutes of 1909 provides that bonds issued by cities for public utilities shall be registered with the state auditor and bear his certificate of registration, "and said auditor shall be entitled to a fee of not exceeding fifty cents for each bond so registered in his office." The plaintiff collected under this provision $ 2843.50, and he alleges that he paid this to the state treasurer by mistake and that the treasurer converted it into the general revenue fund of the state but that it never rightfully belonged there and is and has been the property of the plaintiff, and having made a proper demand he asks that the plaintiff be required by mandamus to return the money to him. It appears that the legislature by chapter 58 of the Laws of 1911 appropriated this sum out of the general revenue fund to repay the plaintiff, providing, however, that the warrant should not be drawn by the auditor nor paid by the treasurer until plaintiff's right to retain the fees should have been determined by this court, authorizing plaintiff to have the question of his right determined by mandamus or other proper action and providing that he was not to be prejudiced by the fact that such fees were voluntarily paid into the state treasury by him. This appropriation was vetoed by the governor, who in the message made the following statement:

"There seems to be so much doubt about the rights of the ex-state auditor to these fees that he did not feel warranted in collecting them during his term of office. His right to this money can only be determined by a decision of the court, and it will be sufficient time to appropriate funds to cover this item when the court decides to whom it belongs."

The answer alleges that the fees under the act of 1905 when collected belonged to the state, that under section 9007 of the General Statutes of 1909 it was the duty of the auditor to account for and pay these fees to the treasurer for the benefit of the general revenue fund.

Since 1879 section 8867 of the General Statutes of 1909 has been in force and reads as follows:

"The auditor shall keep an official seal, which shall be used to authenticate all writings, papers and documents required by law to be authenticated from his office, and copies of all papers, writings and documents legally deposited in his office, which, when properly certified and so authenticated, shall be received in evidence in the same manner and with like effect as the originals. He shall, when required by any person, make out a copy of any record, document or paper deposited or kept in his office, and shall attach thereto his certificate and the seal of his office. He shall receive for making any such copy, ten cents per folio; for his certificate and seal, fifty cents."

Until the passage of the act of 1905 (Gen. Stat. 1909, §§ 744-747), the law did not require registration of utility bonds with the auditor and hence no fees could be charged therefor. It is argued that after its enactment and such bonds were required to be registered the auditor was required to charge for his certificate and seal the fifty cents provided for in section 8867, just quoted. But the only reasonable construction which the section will justify is that the charge of fifty cents is to be made for his certificate and seal when used to authenticate any writing, paper or document required to be authenticated from his office or legally deposited in his office or any certified copy of such document. It will be observed that the act of 1905 requires that when utility bonds are registered they shall bear the auditor's certificate of registration. This is not a certificate of any document required by law to be authenticated from his office or of a copy of any paper or document deposited in his office, but is a mere authentication of the fact that the bond has been registered in his office.

Sections 744-747 of the General Statutes of 1909 do not merely authorize the auditor to collect or receive a certain fee for registering a utility bond but specifically provide that upon its registration he shall be entitled to a fee not exceeding fifty cents. Had the legislature intended that the auditor should collect a fee for the state it could easily have indicated such intention, which was not done by the use of the language employed, neither is it reasonable to presume that the legislature, intending the state to have the benefit of a fee, would have left it to the whim or discretion of the auditor, as was done in this case, whether he should charge fifty cents, or a less sum, or nothing. Our attention has been called to no statute requiring the collection of fees for the benefit of the state which leaves the amount discretionary with the collecting officer. We conclude and decide, therefore, that under this provision it was the auditor's duty to register upon the proper record or book of his office each utility bond presented for registration and to place upon such bond his certificate authenticating the fact that such registration had been made, whereupon he was entitled to such fee as he desired, not exceeding fifty cents, and that when collected it belonged to him and not to the state.

This brings us to the consideration of another statute on which the right to retain these fees depends. In 1891, chapter 181 of the Laws of that year was enacted to establish the salaries of state officers, their assistants, clerks, judges, officers and employees of the legislature; section 16 thereof being as follows:

"All fees received by any of the salaried officers mentioned in this act shall be accounted for in a monthly detailed statement to the state treasurer, at which time all such fees shall be paid into the general fund of the state treasury; the officer to make sworn detailed statement to the auditor of state, and take duplicate receipts from the treasurer, one of which he shall retain, and shall deliver the other to the auditor of state, to be filed in his office." (Gen Stat. 1909, § 9007.)

In the act appropriating salaries for state officers (Laws 1909, ch. 5) section 4 reads as follows:

"It shall be the duty of all salaried state officers, their assistants and clerks, and they are hereby required, as provided in section 6091, General Statutes of 1901, to account for and deliver to the treasurer of state all fees received by them, and to account for and turn over to the treasurer of state all fees collected by them, or either of them, for making certified copies of any and all documents, requisitions, or of any and all other papers for which they may charge and receive a fee; which said fees shall be credited by the treasurer of state to the general revenue fund of the states as is now provided for by...