State ex rel. Braatelien v. Drakeley

• Decision Date: 09 October 1913
• Citation: 143 N.W. 768,26 N.D. 87
• Parties: STATE ex rel. BRAATELIEN, State's Atty., v. DRAKELEY et al., County Com'rs.
• Court: North Dakota Supreme Court

26 N.D. 87

143 N.W. 768

STATE ex rel.BRAATELIEN, State's Atty.,

v.DRAKELEY et al., County Com'rs.

Supreme Court of North Dakota.

Oct. 9, 1913.

Syllabus by the Court.

When a county auditor retains fees which belong to the county, and fails to account for them and pay them to the county treasurer, and the board of county commissioners neglects and refuses on demand to adjust the account of such fees and determine the amount thereof as required by section 2430, Revised Codes of 1905, a resident, taxpayer, and citizen of the county is qualified to act as a relator in proceedings in the name of the state to compel action by the county commissioners.

The adjustment of such fees by the county commissioners when not paid into the county treasury is a ministerial duty, and mandamus will lie to compel them to audit or adjust the same, but will not lie to compel a determination of any particular sum due or not due the county from the auditor.

Neither the criminal prosecution nor the removal of county officials who fail to perform their duties furnishes an adequate remedy to the public or to taxpayers of the county to which funds unaccounted for belong, and hence are not the other adequate remedies which inhibit the maintenance of proceedings to mandamus the commissioners to adjust such accounts.

As to whether the state's attorney of a county can bring an action against the auditor, to collect fees retained by him which belong to the county, without being directed so to do by the board of county commissioners, is not decided.

By chapter 70, Laws of 1907, fixing the salary of county auditors, the different counties are classified with reference to the assessed valuation of the property in the counties of each class, and this statute reads that no county auditor shall receive more than ------ dollars for his personal services in any one year; the amount depending on the valuation of the property in his county. Held, that this enactment fixes the salary of the county auditor at the sum named as applying to the class in which his county belongs.

Chapter 70, Laws 1907, was enacted to fix the salaries of all the county auditors of the state, and relates to that subject alone, and provides that all moneys received as fees for certifying to abstracts or deeds in excess of the salary as thereby limited shall be paid by the county auditor at the end of each month into the revenue fund of the county. Held, that this requires an accounting by the auditor, at the end of each month, of such fees, and that if the amount exceeds his salary for the month, it is his duty to pay the excess into the revenue fund of the county.

Chapter 219, Laws of 1907, was enacted for the purpose of enforcing the payment of taxes before the transfer of real property, by requiring a certificate of the county auditor as to the facts, before deeds, with certain exceptions, are entitled to record, and as an incidental matter provided for the fee to be collected by the county auditor for such certificate, and that the auditor might retain such fee as compensation for making his certificate. Held, that in view of the fact that chapter 70, supra, requiring such fees to be turned into the county treasury, was enacted by the Legislature subsequent to the enactment of said chapter 219, the history of the legislation on the subject, and other considerations set forth in the opinion herewith, the requirements of chapter 70 control, and such fees belong to the county; and it is the duty of the county auditor to account for the same monthly and turn any sum in his hands received therefor in excess of his salary for the month into the county treasury.

The provision regarding turning such fees into the county treasury, found in chapter 70, is construed to require such fees received in excess of the salary fixed for the class of counties to which any particular county belongs to be turned into the county treasury, and not, as contended, that each auditor is entitled to retain such fees to an amount equaling the salary provided for the counties embraced in the maximum class.

While in some cases a course of conduct indicating a common understanding by administrative officers as to the meaning of a statute, when they have followed a usage which has been acquiesced in by all parties concerned for a long period of time, may be entitled to weight in determining its real meaning, it is held, in view of the legislation on the subject and the facts of the case, that such understanding and usage on the part of auditors on a subject in which they are personally interested, and in the face of the denial by appellant that there has been such a custom or construction of the statute on the part of at least some of the auditors, that such understanding is not controlling, and would not justify the court in so holding.

Where the policy of the Legislature has been to place county officials on a salaried basis and to turn all fees into the county treasury, such fees belong to the county unless the statute shows a clear and plain legislative intent to grant them to the salaried officer; and doubts should be resolved in favor of the public.

A statute which deals with one subject only will ordinarily control in case of conflict between it and a statute dealing with the same subject only incidentally, and having some other main object.

The county commissioners having undoubtedly entertained in good faith the opinion that the fees in question belonged to the auditor, and for this reason having refused to order suit brought to recover anything due the county, this court will not assume that, when advised of the law and the duty of the board to make an adjustment with the auditor, the auditor will refuse or fail, if anything is found due the county, to pay the same, or that in the event that he does so refuse the board will neglect to order the state's attorney to bring suit therefor; hence it is held that to mandamus the board to bring suit at this time would be premature, even if mandamus will lie against the board to compel such order.

Appeal from District Court, Williams County; Burr, Special Judge.

Application for mandamus by the State, on relation of H. W. Braatelien, State's Attorney within and for Williams County, against George O. Drakeley and others, as county commissioners, within and for Williams County. From the sustaining of a demurrer, plaintiff appeals. Reversed.

The relator as state's attorney of Williams county and also as a freeholder, taxpayer, resident, and elector of said county, on behalf of himself and other taxpayers similarly situated, procured an order to show cause, addressed to George O. Drakeley, C. J. Helle, C. O. Houglum, and Frank Banks, as county commissioners of Williams county, why a writ of mandamus should not issue. His application set forth, among other things: That the respondents were commissioners of said county. That the assessed valuation of the county as returned by the State Board of Equalization for 1906 was $2,241,792; for 1907 was $3,323,029; for 1908 was $5,386,519; for 1909 was $7,699,807; and for the year 1910, $8,517,387. That the salary of the county auditor for said county by reason of the valuation aforesaid was, for 1907, $1,500; for 1908, not more than $1,600; for 1909, not more than $1,900; and for the year 1910, not more than $2,000; and not more than $2,200 for the year 1911. That the said auditor was in duty bound to pay into the revenue fund of the county, at the end of each month, all moneys received for certifying to abstracts and deeds in excess of such salary. That one E. M. Atterberry had been the county auditor of said county at all times since the 1st day of July, 1907, and had, during the time when he held such office and from the 1st day of July, 1907, to the commencement of these proceedings, received a large sum of money in the form of fees for certifying to abstracts and deeds. That he had been paid the salary allowed by law out of a salary fund of the county by warrants which were paid upon presentment at about the dates of their issue, at or about the end of each month, and specifying the amount of salary paid him for each month during the time of his said incumbency in such office. It is further alleged that said Atterberry at no time accounted for the fees which he received in his official capacity for such services, but had neglected and refused to account therefor and failed to pay or cause the same to be paid to the county of Williams, as required by law, at any time, but had converted to his own use and still retained the same, and that the amount thereof so collected and retained by said Atterberry aggregated about $1,500. Facts are then recited showing that the board of county commissioners had failed, neglected, and refused, though demanded, to adjust the accounts of said Atterberry as to such fees, or to ascertain the balance due the county arising therefrom, and had refused to order suit brought against said Atterberry for the fees retained by him above the amount authorized by law. Facts are further pleaded showing that the attention of the board had been called to the delinquency of the auditor, and their refusal to ascertain the amount of such excess of fees so collected and retained, and to order suit brought in the name of the county therefor, although they knew that the auditor had been paid the full amount of his salary, and that such fees had been received in excess of his salary as limited by law. It is then alleged that relator has no plain, speedy, and adequate remedy at law to protect his rights as a taxpayer and resident of the state of North Dakota and the county of Williams, or the rights of the other taxpayers of such county, unless such board of county commissioners performs its duty in the matter as required by law. A writ was prayed for requiring such county commissioners to adjust the accounts of said county auditor as to any and all amounts received by him in his...