State ex rel. Pearson v. Cornell

• Decision Date: 21 April 1898
• Citation: 54 Neb. 647,75 N.W. 25
• Parties: STATE EX REL. PEARSON v. CORNELL, STATE AUDITOR.
• Court: Nebraska Supreme Court

54 Neb. 647

75 N.W. 25

STATE EX REL. PEARSON

v.CORNELL, STATE AUDITOR.

Supreme Court of Nebraska.

April 21, 1898.

Syllabus by the Court.

1. Under section 20, c. 28, Comp. St. 1897, in computing the amount of taxes collected by a county treasurer, for the purpose of charging percentage, all sums collected for each fiscal year, from whatever funds derived, except school moneys, whether belonging to the state or county, or any of its subdivisions, must be included together; the fees to be allowed but once, and charged pro rata to the different funds.

2. A county treasurer is not entitled to 10 per cent. commissions on the first $3,000 of state taxes, and a like percentage on the first $3,000 of county moneys, collected by him for each fiscal year, but a fee of 10 per cent. alone is chargeable on the first $3,000, from whatever source derived, without regard to the year the taxes were levied, except school moneys; and such fees or commissions are to be apportioned pro rata among the various funds on account of which the collections were made.

3. The fiscal year of a county is the calendar year.

4. The words “fiscal year,” as employed in said section 20, c. 28, Comp. St. 1897, mean the fiscal year during which the taxes are collected, and not the year in which they were levied or imposed.

5. Where the legislature re-enacts a law of the state, it thereby adopts the judicial construction which has been placed thereon by the highest court of such state.

6. The auditor of public accounts is powerless to draw a warrant upon the treasury for commissions due a county treasurer upon moneys collected by him for the state, and paid into the treasury, unless a specific appropriation has been made for that purpose by the legislature.

Application for a writ of mandamus by the state, on the relation of John A. Pearson, against John F. Cornell, state auditor. Denied.J. S. Kirkpatrick and W. S. Morlan, for relator.

C. J. Smith, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for respondent.

NORVAL, J.

This is an application to this court, in the exercise of its original jurisdiction, by John A. Pearson, on relation of the state, for a peremptory writ of mandamus to compel the respondent, as auditor of public accounts, to draw his warrant upon the state treasury, in favor of relator, for the sum of $808.24, in payment of fees and mileage alleged to have been earned by him, as county treasurer of Phelps county, in the collection of the revenues belonging to the state, between January 1, 1897, and January 5, 1898. The application sets forth the total amount of taxes collected by relator during that period on account of each of the several funds, as well as the amount received by him from the levy of taxes from 1885, and during each year subsequent thereto, and avers that respondent has audited and allowed as commissions and mileage for the collection of the state's money the sum of $411.87, and no more. The cause has been submitted upon a general demurrer to the application. The question involved is one of statutory construction, namely, the manner of computing the commissions authorized to be paid to a county treasurer for the collection of the revenues of the state. Section 20, c. 28, Comp. St. 1897, reads as follows: “Sec. 20. Each county treasurer shall receive for his services the following fees: On all moneys collected by him for each fiscal year, under three thousand dollars, ten per cent. For all sums over three thousand dollars and under five thousand dollars, four per cent. On all sums over five thousand dollars, two per cent. On all sums collected, percentage shall be allowed but once; and in computing the amount collected, for the purpose of charging percentage, all sums, from whatever funds derived, shall be included together, except the school fund. For going to the seat of government to settle with the state treasurer, and returning therefrom, a traveling fee of ten cents per mile, to be paid out of the state treasury. The treasurer shall be paid in the same pro rata from the respective funds collected by him, whether the same be in money, state or county warrants. On school moneys by him collected, he shall receive a commission of but one per cent. * * *” The construction given the foregoing section by counsel for relator is that the commissions of a county treasurer for the collection of state taxes, other than school moneys, are ascertained by making a computation alone on the amount of the revenues of the state collected by him for each fiscal year, disregarding the county, city, and other taxes which he has collected, and that the sums received on account of the assessment for one year are not to be included with collections made on taxes imposed for any other year. If the basis of calculation just suggested is the correct one, relator is entitled to the amount of fees demanded; otherwise not. It is noticeable that the statute authorizes the treasurer to charge certain percentages on “all money collected by him for each fiscal year.” The fiscal year of a state commences on December 1st, and ends on November 30th following. Comp. St. c. 83, art. 3, § 17; Id. art. 4, § 9. The fiscal years of cities of the several classes begin and end at different times. Thus, in cities of the metropolitan class, the fiscal and calendar years are the same. Comp. St. c. 12a, § 40. In cities of the first class, having over 25,000 inhabitants, the financial year commences on the first Monday in September, while in cities belonging to the second class, having a population of over 5,000, and not exceeding 10,000, the fiscal period begins on the second Monday in August. Section 38, art. 2, c. 14, Comp. St. And the first Tuesday in May marks the beginning of the fiscal year in villages, and all the cities having less than 5,000 inhabitants. Comp. St. c. 14, art. 1, § 85. The legislature has not in express terms defined what period of time shall constitute the fiscal or financial year for county purposes, but it is conceded by relator that it is the calendar year. A consideration of the various provisions of the revenue law relating to the levy, collection, and disbursement of the public moneys of the county, the statute requiring the usual levy of taxes for county purposes to be made annually upon estimates prepared by the county board in January of each year, and forbidding such board from contracting any indebtedness for any object not enumerated in such yearly estimate of expenditures, and the exactment that the compensation of the county treasurer cannot exceed a specified sum per annum, make it reasonably certain that the lawmakers intended that the fiscal period of a county should correspond with the calendar year.

It is strenuously argued that the purpose of the legislature to allow the county treasurer 10 per cent. on the first $3,000 of state moneys collected is manifest from the fact that the fiscal years for the state and the county do not begin or end at the same time. The conclusion suggested is unsound. It is contrary to the plain import of the statute. The lawgivers never intended that the state should pay the treasurer a commission of 10 per cent. on the first $3,000 collected for the state for the fiscal year commencing on December 1st, a like percentage on the same amount of village taxes first received by the treasurer after May 1st, and a like commission on the first $3,000 of county revenues collected in any calendar year. Had it been the purpose of the legislature that commissions on the collection of taxes should be so computed, language more appropriate to indicate the intent would doubtless have been chosen in framing the section under consideration. The words “fiscal year,” as employed therein, do not refer to the various fiscal periods already mentioned, but to the fiscal year as applied to counties alone. This is indicated by the fact that a county treasurer is not a state officer, but a county official. He collects in that capacity the state's revenues, and the section treats alone of his compensation. The legislature must have intended that his fees should be calculated on collections made with reference to a single, fixed period. Any other rule would render it exceedingly difficult, if not almost impossible, to adjust his commissions in accordance with the provisions of the statute. It is specified that the county treasurer shall receive for his services, “on all moneys collected by him for each fiscal...