State v. Stockwell

• Citation: 134 N.W. 767,23 N.D. 70
• Parties: STATE v. STOCKWELL et al.
• Decision Date: 14 February 1912
• Court: United States State Supreme Court of North Dakota

23 N.D. 70

134 N.W. 767

STATE

v.STOCKWELL et al.

Supreme Court of North Dakota.

Oct. 12, 1911.

On Petition for Rehearing, Feb. 14, 1912.

Syllabus by the Court.

Chapter 85 of the Session Laws of 1901 (sections 869 to 876, Code 1905) provided for the payment of a $2 fee for each applicant for teacher's certificate and that $1 thereof should be transmitted to the Superintendent of Public Instruction “to be used by him for such clerical assistance as he may deem necessary and competent for the reading of teachers' answer papers and work connected therewith,” and that to do said work the State Superintendent “may appoint such clerical assistants as he may deem necessary, but the expenditures therefor shall not exceed in the aggregate the sum annually collected from applicants for county certificates for this purpose.” During defendant's incumbency of said office, there was collected from this source $17,714, of which $11,816 was disbursed, leaving unexpended $5,898. This balance is retained by defendant under his claim of ownership founded upon his claims, viz.: (a) That the fund was intended as a private fund and that any balance thereof remaining belonged to him individually. (b) That the right to use necessarily carried with it the ownership of the fund, the statute not requiring the same to be covered into the state treasury nor an accounting therefor from the officer. (c) That the statute creating the fund prescribed new and additional duties for the office and that the legislative intent should be that the balance remaining of the fund should belong to the officer as compensation for such added duties of office. (d) That under the facts that the balance remains unexpended because the defendant personally performed the duties during times when not otherwise necessarily engaged in the performance of his official duty, the defendant was entitled to the reimbursement that otherwise would have been paid to clerical assistants, and that because the fund was saved by his own personal exertions, instead of expended for clerical assistants, defendant is entitled to said balance remaining of the fund. (e) That the practical construction of the statute in question by such officer and his predecessor and the various executive state officers has always been that said balance of the fund belonged to the officer, and such construction is urged as controlling. (f) That the allowance of such additional compensation does not contravene the terms of section 84 of the state Constitution against the increasing or decreasing of official salaries during the period for which the officer shall have been elected.

Under the above it is held:

That the fund created by said $1 payments at all times since collection is and has remained a public fund, and the balance unexpended is a balance of one of the public funds of the state for which the defendant is accountable to the state.

That the Legislature, in providing this fund and authorizing its use for declared purposes and constituting the incumbent of the office of State Superintendent of Public Instruction the paymaster authorized to disburse from the fund for certain duties for which he was allowed to employ clerical assistants, did not thereby constitute the officer the owner of the fund. The right of use conferred was the right to disburse in payment for such service germane to the duties of the office.

That the legislative intent must be clear, and the statute must evidence a plain intent to grant public funds to a public officer occupying a salaried office, otherwise the fund remains the property of the state, conceding without deciding the authority of the Legislature to give to the officer the ownership of such funds.

That the collection of the moneys by the defendant under color of office being admitted, the burden of establishing title thereto in the individual is upon such public officer claiming to own the fund, and not upon the state to establish want of ownership on the part of the state officer.

A public officer cannot increase his salary by performance of official duty under claim of its performance after regular office hours, nor by himself performing office duty in lieu of employing office assistants authorized by statute. And the officer can make no claim to public moneys a necessity for the expenditure of which is avoided by his own performance of official duty.

There being no plain statutory intent that the fees in question should belong to the officer as emoluments of office, any practical construction of such statute by the previous incumbent of the office and of other state executive officers is immaterial, as such construction cannot be permitted to contradict, override, or supplement the plain terms of the statute.

That the salary attached to a public office is but an incident of the office, and an increase in official duty, does not necessarily imply or exact an increase of salary.

That under the statutes of this state sections 420 and 421, Revised Codes 1905, formerly existing as sections 357 and 358, Revised Codes 1895, sections 101 and 103 of the Code of 1905, in force throughout defendant's incumbency of this office, it was the duty of the defendant, at a no later date than the expiration of each term of office, to account to the state and cover into the state treasury any balance remaining of the fees collected from this source during such two-year term of office.

Under the above holding that the state is the owner of the moneys in suit and that the defendant must account and is liable therefor to the state on his official bond, the constitutional question that would be involved by a contrary construction of the statute is without the case and is not passed upon.

This balance in suit are fees and profits arising from said office mentioned in, covered by, and within the meaning of section 84 of the state Constitution, requiring the same to be paid into the state treasury.

Additional Syllabus by Editorial Staff.

In Rev. Codes 1905, § 869, requiring the State Superintendent of Public Instruction to examine or cause to be examined all teachers' answer papers submitted to him, the phrase “cause to be examined” is, as regards official action, the equivalent of the individual performance of it by the officer (citing Words and Phrases, vol. 2, p. 1012).

On Petition for Rehearing.

Under Supreme Court rule 32 (91 N. W. xii), providing that a motion for rehearing must show either that some question decisive of the case and duly submitted by counsel has been overlooked by the court or that the decision is in conflict with an express statute to which the attention of the court was not called or which has been overlooked by the court, a motion for rehearing in an action against a former Superintendent of Public Instruction for the unexpended balance of a fund provided for clerical assistance for the reading of teachers' answer papers, in which the only points raised are that a similar practice to that adopted by the defendant prevails among the district judges and that a constitutional question was argued in a concurring opinion by one of the judges, which it is claimed was waived by the Attorney General in his brief and oral argument, was insufficient to authorize a rehearing, where the concurring opinion referred to concurred fully in the main opinion and only gave the constitutional argument as an additional reason for the decision.

Appeal from District Court, Grand Forks County; Templeton, Judge.

Action by the State against Walter L. Stockwell and others. From a judgment for plaintiff, defendant Stockwell appeals. Affirmed.

Fisk and Spalding, JJ., dissenting.

Gray & Myers, for appellant. Andrew Miller, Atty. Gen., and Assistant Attorneys General Zuger and Young, for the State.

GOSS, J.

There is no conflict as to the facts in this case. It stands admitted that during the three terms defendant and appellant served in public office as the Superintendent of Public Instruction in this state there came regularly into his possession by virtue of his office the sum of $17,714, as the proceeds of that number of $1 payments contributed by that number of teachers under the provisions of section 876 of the Revised Codes of 1905, or chapter 85 of the Session Laws of 1901. Under this statute each applicant for a teacher's certificate on examination therefor paid a fee of $2 to the county superintendent of schools of such county wherein the examination was held, $1 of which $2 fee the county superintendent was obliged by law to pay into the county teachers' institute fund, and the other $1 thereof to forward to the Superintendent of Public Instruction. It is admitted that of such total collection by the defendant as State Superintendent he disbursed $11,816, leaving unexpended $5,898 as a balance retained by him personally after the expiration of his term of office, under his claim in good faith that he is entitled to retain same as owner thereof; and that acting thereon to determine the law involved this action has been brought. The lower court awarded judgment in favor of the state, and defendant appeals.

This matter is primarily one of statutory construction. The sections to be construed are sections 876 and 869, providing for the collection and creation of the fund and for its expenditure. The statute creating the fund does not expressly or explicitly command an accounting by the officer to the state for the fund, or direct disposition of any balance that may remain unexpended therein, while the statute itself in terms provides the official may disburse it, designating, however, the purposes for which it may be so expended.

This legislation originates with chapter 62 of the Session Laws of 1890, the important features of which define the duties of the office of Superintendent of Public Instruction, providing, in section 5 of the law, that it shall be the duty of such officer to prepare all questions used in the examination of applicants for teachers'...