State ex rel. McNary v. Dunbar

• Decision Date: 29 December 1908
• Citation: 98 P. 878,53 Or. 45
• Parties: STATE ex rel. McNARY, Dist. Atty., v. DUNBAR.
• Court: Oregon Supreme Court

98 P. 878

53 Or. 45

STATE ex rel. McNARY, Dist. Atty., v. DUNBAR.

Supreme Court of Oregon

December 29, 1908

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Action by the State, on relation of J.H. McNary, as District Attorney of the Third Judicial District of Oregon, against F.I. Dunbar. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.

This is a suit originally commenced by J.K. Sears, a taxpayer, on behalf of the state, alleging that between January 14, 1899 and January 14, 1907, defendant, as Secretary of State, had received for the use and benefit of the state a large amount of money as fees for filing various papers, issuing commissions and licenses, recording documents, and copying public records, which money he had converted to his own use and asks that an accounting be taken of the sums of money so received and for a decree requiring defendant to pay such sums to the state. A demurrer to the complaint was sustained by the court for the reason that Sears has not capacity to maintain the suit, and thereupon by amended complaint the state, at the relation of J.H. McNary, district attorney for the Third judicial district, was substituted as plaintiff therein. The answer of the defendant admits that he was Secretary of State as alleged, and that the relator, J.H McNary, is district attorney for the Third judicial district as alleged, but denies all other allegations of the complaint.

Upon the trial the lower court found that defendant, as such Secretary of State, received the following sums:

                            For filing articles of incorporation
                            
                          
                            $ 9,144 50
                          
                            For issuing notarial commissions
                            ...........................
                          
                            17,186 00
                          
                            For recording trade-marks
                            ...................................
                          
                            1,285 00
                          
                            For copying laws and journals
                            ..............................
                          
                            11,684 75
                          
                            For issuing appointments of commissioners of deeds
                            ............
                          
                            148 00
                          
                            For issuing other commissions
                            .................................
                          
                            814 00
                          
                            For issuing agents' certificates to fire ins.
                            companies ....
                          
                            35,660 00
                          
                            For issuing licenses to life insurance agents
                            ...............
                          
                            3,759 00
                          
                            For issuing annual licenses to life insurance companies
                            ...
                          
                            21, 488 16
                          
                            For issuing requisitions and warrants of arrest
                            ...............
                          
                            912 00
                          
                            For registering titles in insurance matters
                            ...................
                          
                            380 00
                          
                            For issuing powers of attorney
                            ................................
                          
                            970 00
                          
                            For issuing certificates of authority to ins. companies
                            .......
                          
                            105 00
                          
                            For filing statements of mutual fire ins. associations
                            ........
                          
                            390 00
                          
                            
                          
                            -----------
                          
                            Total .................................................
                          
                            $103,926 41
                          
                

Judgment was rendered for the above total in favor of the state, from which the defendant appeals.

G.C. Fulton and Geo. G. Bingham, for appellant.

L.H. McMahon and John H. McNary, for respondent.

EAKIN, J. (after stating the facts as above).

At the trial the defendant, by motion and demurrer, questioned the power of the court to permit by an amended complaint a substitution of the state as plaintiff in place of Sears, and also the power of a district attorney of his own motion to institute a proceeding on behalf of the state to recover a debt due to it. The trial court denied the motion and overruled the demurrer, and the defendant presses these contentions here; but we find it unnecessary to consider them, as the case is disposed of in his favor on the merits.

The foundation of plaintiff's right of recovery, as disclosed by the complaint, is that these sums of money were collected by the Secretary of State for the use and benefit of the state; the contention of plaintiff being that the Constitution prescribes a salary for the Secretary of State and fixes that as his whole compensation, and that therefore the statute which allows to him certain fees and perquisites for work done is unconstitutional and void. Article 13 of the Constitution provides, among other things, that: "*** The Secretary of State shall receive an annual salary of fifteen hundred dollars *** (and) shall receive no fees or perquisites whatever for the performance of any duties ***" It is conceded that the fees received for filing articles of incorporation, issuing commissions to notaries, appointments of commissioners of deeds, miscellaneous commissions, and requisitions and warrants of arrest, were authorized by, and all collected under, section 2923, B. & C. Comp., which is section 11 of an act of the legislative assembly, entitled "An act to prescribe the fees of certain officers and persons," passed October 24, 1864 (see Deady's Gen.Laws 1845-64, p. 732, c. 18), section 1 of which provides: "The following fees shall be allowed to the officers and persons hereinafter named for the services herein specified." Section 11 (B. & C. Comp. § 2923) provides: "The fees of the Secretary of State shall be as follows: For certifying and affixing the seal of the state to any document or paper, two dollars; for making copies of any record or file, each folio, twenty-five cents; for filing articles of incorporation, two dollars and a half; for recording any paper or document by law required to be recorded by him, for each folio, twenty-five cents." Also, the fees received by him as insurance commissioner were exacted under a legislative act entitled, "An act to license and regulate insurance business in the state of Oregon," adopted February 25, 1887 (Laws 1887, p. 118), which, with amendments and additions thereto, constitute sections 3706-3756, inclusive, B. & C. Comp. Section 1 of the act provides that: "The Secretary of State shall be ex officio insurance commissioner of this state, and shall receive for his services as such commissioner the compensation hereinafter provided therefor." The fees received for filing trademarks were exacted under B. & C. Comp. § 4615, which provides: "A fee of two dollars and a half shall be paid to the secretary of state by the owner of said trade-mark as pay for recording." Assuming, without deciding, that the compensation provided for in these statutes is fees and perquisites and within the inhibition of the Constitution, then the legislative acts authorizing them are clearly void, to that extent, and cannot be construed as authorizing the collection of them for the use and benefit of the state. No such intention on the part of the Legislature is apparent. The right to exact such fees for...