Naylor v. Vermont Loan & Trust Co.

• Decision Date: 29 November 1898
• Citation: 55 P. 297,6 Idaho 251
• Parties: NAYLOR v. VERMONT LOAN AND TRUST COMPANY
• Court: Idaho Supreme Court

55 P. 297

6 Idaho 251

NAYLOR v. VERMONT LOAN AND TRUST COMPANY

Supreme Court of Idaho

November 29, 1898

PAYMENT OF SHERIFF'S FEES-SHERIFF MUST ACCOUNT FOR FEES EARNED.-Under the laws of Idaho, a sheriff may recover fees allowed by law for services rendered by him, although he failed to require payment of such fees in advance, but he must accourt to his county for all fees earned, whether collected by him or not.

PRACTICE-AMBIGUITY AND UNCERTAINTY IN COMPLAINT-REACHED BY SPECIAL DEMURRER.-Ambiguity and uncertainty in a complaint which states a cause of action, but not with that certainty contemplated by the code, cannot be reached by an objection to the introduction of evidence under the complaint, but only by special demurrer pointing out the ambiguity and uncertainty complained of by the defendant.

BILL OF EXCEPTIONS.-A bill of exceptions must state the evidence which was admitted by the court over the objections of the party excepting to the introduction of such evidence, with the grounds upon which the objection is made, or else such exception will not be considered by the court.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Affirmed with costs.

A. E Gallagher, for Appellant.

The contract on which plaintiff bases his action is void, as being contrary to the public policy of this state, which prohibits sheriffs from giving credit for fees and requires them to collect all fees in advance; that as the contract is void, it cannot be a basis on which to predicate this action. Section 2126 of the code, as amended in 1890 (Sess. Laws, p 175), fixes the plaintiff's compensation. (Rev. Stats., secs. 2120, 2137.) The plaintiff is claiming through a contract of credit which is contrary to the public policy of this state, and for this reason void, and cannot be the basis of an action. His acts are to a certain extent the acts of the county and state. He performs the services as agent of the county. He is not the employee of the litigant, so that he cannot make any contract with the litigant concerning his compensation or the mode of collecting it. The court erred in not sustaining the defendant's objection to the introduction of any evidence under this complaint and in making findings in favor of defendant. (Hawkeye Ins. Co. v. Brainard, 72 Iowa 130, 33 N.W. 603; Clark on Contracts, 419; Griswald v. Waddington, 16 Johns. 438; Winchester Electric Light Co. v. Veal, 145 Ind. 506, 41 N.E. 334, 44 N.E. 353; Jackson v. Shawl, 29 Cal. 268.) No contract founded on or growing out of an unlawful act can be enforced whether it be malum in se or malum prohibitum. (2 Pomeroy's Equity Jurisprudence, 1st ed., 935; Vermont Loan etc. Co. v. Hoffman, 5 Idaho 376, 49 P. 314; Robertson v. Robinson, 65 Ala. 610, 39 Am. Rep. 17; Bank v. Owens, 2 Pet. 527, 539; Snell v. Dwight, 120 Mass. 9.)

E. C. Steels, for Respondent, cites no authorities on the points decided by the court not cited by attorney for appellant.

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

This is an action brought by the plaintiff to recover fees for services rendered by him, as sheriff of Latah county, for the defendant. The findings of fact and judgment were in favor of the plaintiff. The contention of appellant, that public officers are prohibited by the laws of this state from performing official acts unless the fees allowed by law therefor are paid in advance, raises the first question for us to determine. This question is to be decided by the provisions of our constitution and statutes. By section 7, article 18 of the constitution, the compensation of sheriffs, exclusive of mileage, is fixed within certain prescribed limits, the maximum at $ 4,000 and minimum at $ 1,000 per annum. Section 8 of said article 18 is as follows: "The compensation provided in section seven (7) for the officers therein mentioned shall be paid by fees or commissions, or both, as prescribed by law. All fees and commissions, received by such officers in excess of the maximum compensation per annum provided for each in section seven (7) of this article, shall be paid to the county treasurer for the use and benefit of the county. In case the fees received in any one year by any one of such officers shall not amount to the minimum compensation per annum therein provided, he shall be paid by the county a sum sufficient to make his aggregate annual compensation equal to such minimum compensation." Section 2120 of the Revised Statutes of 1887, which provided for the payment of all compensation of county officers out of the county treasury, upon warrants, is repugnant, to some extent at least, to the above-quoted provision of our constitution. Sections 2137 and 2138 of the Revised Statutes, are as follows:

"Sec. 2137. The officers mentioned in this title are not in any case, except for the territory or county, to perform any official services unless upon the prepayment of the fees prescribed for such services except as in the succeeding section provided by law; and on such payment the officer must perform the services required. For every failure or refusal to perform official duty when the fees are tendered, the officer is liable on his official bond.

"Sec. 2138. No fee or compensation of any kind must be charged or received by any officer for duties performed or services rendered in proceedings upon habeas corpus."

Section 2140 of the Revised Statutes, is as follows: "If any clerk, sheriff, justice of the peace, or constable, shall not have received any fees which may be due him for services rendered in any suit or proceeding, he may have execution therefor, in his own name against the party from whom they are due, to be issued from the court in which the action is pending."

The act of March 13, 1891 (Sess. Laws 1890-91, p. 175), fixes the fees that may be charged by county officers. But there is nothing in the act that amends or repeals either section 2137 or 2140 of the Revised Statutes, quoted supra. In determining the question before us we must have due regard for all of the foregoing statutory and constitutional provisions that are now in force. The conditions relative to the payment of compensation to county officers are somewhat changed by the above constitutional provisions from what they were prior to statehood. It is argued by the respondent that there is no longer any necessity for the payment into the county treasury of the fees earned by public officers; except as to the fees earned in excess of the maximum salary, and with this contention we agree. The expression "fees received," both in the constitution and in the act of March 13, 1891, cited supra, was intended to and does mean fees earned and which the officer is entitled to receive. Construing section 2137 and 2140 of the Revised Statutes, together so as to give force to both, we are compelled to hold that section 2137, supra, is not a prohibition against an officer from performing services unless they are prepaid in advance, but that the said section was passed for his benefit and gives him the absolute right to require prepayment of his fees. Any other construction would take all force and meaning from section 2140, supra, as it would be idle to say that an officer shall not perform any service without prepayment of his fees, and then provide for an execution for such fees as he may have earned and which have not been paid. A county officer may perform services without prepayment, and then maintain an action to recover the same. If such officer, in the fullness of his heart, sees fit to waive his right to prepayment of his fees, which he may do, there is no good reason why he should suffer for his leniency. The county is not injured, because he must account to it for all fees earned, whether he collects them or not; and, where his earnings exceed the maximum compensation allowed him by law, he must pay such excess into the county treasury in cash, whether he collects it or not. He should have collected and received all fees earned by him, and, so far as his liability to the county and the latter's rights are concerned, that which he should have done must be regarded as done. This rule works no hardship on the litigant who has failed, from inability, inconvenience, or other cause, to pay fees in advance to the officer performing services for him.

On the trial of this cause the defendant objected to the introduction of any evidence by plaintiff on the ground that "the complaint did not state facts sufficient to constitute a cause of action," which objection was overruled by the court, and an exception taken to such ruling by the defendant, and upon such ruling prejudicial error is assigned by the appellant. After setting forth the official capacity of plaintiff and the corporate existence of the defendant, the complaint alleges as follows: "That during the said year of 1894 the said defendant, Vermont Loan and Trust Company, commenced a large number of actions...