State v. Stockwell

CourtUnited States State Supreme Court of North Dakota
Citation134 N.W. 767,23 N.D. 70
PartiesSTATE v. STOCKWELL et al
Decision Date12 October 1911

134 N.W. 767

23 N.D. 70


Supreme Court of North Dakota

October 12, 1911

On petition for rehearing February 14, 1912.

Appeal by defendant Stockwell from a judgment of the District Court for Grand Forks County, Templeton, J., in plaintiff's favor in an action brought to recover certain unexpended balances retained by defendant under claim of ownership after expiration of his term of office.


Gray & Myers, for appellant.

That portion of § 84 of the Constitution, "and all fees and profits arising from any of said offices shall be covered into the state treasury," is not self-executing. Woodworth v. Bowles, 61 Kan. 569, 60 P. 331; Rowland v. Forest Park Creamery Co. 79 Kan. 134, 99 P. 212; Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380; State ex rel. Ohlquist v. Swan, 1 N.D. 5, 44 N.W. 492; Roesler v. Taylor, 3 N.D. 546, 58 N.W. 342; Engstad v. Grand Forks County, 10 N.D. 54, 84 N.W. 577; Lewis v. Lackawanna County, 200 Pa. 590, 50 A. 162; Re Cahill, 110 Pa. 167, 20 A. 414; State ex rel. Barron v. Cole, 81 Miss. 174, 32 So. 314; French v. Teschemaker, 24 Cal. 518; Chittenden v. Wurster, 152 N.Y. 345, 37 L.R.A. 809, 46 N.E. 857.

Concluding clause of § 84 of the Constitution does not, directly or otherwise, impose a limitation upon the right of the legislative authority to thereafter compensate those officers thereby affected, by means of specific fees, for the performance of such new duties as might be legislatively required of them. State ex rel. Edgerly v. Currie, 3 N.D. 317, 55 N.W. 858.

Fund created by §§ 869 and 876 of Code not necessarily composed of "fees" and "profits." State ex rel. McGrath v. Walker, 97 Mo. 162, 10 S.W. 473.

Andrew Miller, Attorney General, Alfred Zuger, and C. L. Young, Assistant Attorneys General, for the State.

Provision of § 84 of the Constitution, with reference to covering all fees and profits arising from any of the state offices into the state treasury, is self-executing. Cooley, Const. Lim. pp. 119-123; Willis v. St. Paul Sanitation Co. 48 Minn. 140, 16 L.R.A. 281, 31 Am. St. Rep. 626, 50 N.W. 1110, 53 Minn. 370, 55 N.W. 550; State ex rel. Roberts v. Weston, 4 Neb. 216; Thomas v. Owens, 4 Md. 189; Reynolds v. Taylor, 43 Ala. 420; Miller v. Marx, 55 Ala. 322; People v. Hoge, 55 Cal. 612; Swift & Co. v. Newport News, 105 Va. 108, 3 L.R.A. (N.S.) 404, 52 S.E. 821; Davis v. Burke, 179 U.S. 399, 45 L.Ed. 249, 21 S.Ct. 210; State ex rel. Lincoln v. Babcock, 19 Neb. 230, 27 N.W. 94; Ex parte Snyder, 64 Mo. 58; United States v. Reese, 92 U.S. 214, 23 L.Ed. 563; Parker County v. Jackson, 5 Tex. Civ. App. 36, 23 S.W. 924; State v. Holmes, 12 Wash. 169, 40 P. 735, 41 P. 887; San Francisco & N. P. R. Co. v. State Bd. of Equalization, 60 Cal. 12; Day v. Day, 12 Idaho 566, 86 P. 531, 10 Ann. Cas. 260; State ex rel. Murray v. Voorheis, 50 La.Ann. 985, 24 So. 132; Winchester v. Howard, 136 Cal. 432, 89 Am. St. Rep. 193, 64 P. 692, 69 P. 77; Mallon v. Hyde, 76 F. 388; Nickerson v. Crawford, 74 Minn. 366, 73 Am. St. Rep. 354, 77 N.W. 292; Farmers' Loan & T. Co. v. Funk, 49 Neb. 353, 68 N.W. 520.

No claim for additional compensation can be made in the absence of an express legislative grant of such compensation. Mechem, Pub. Off. § 862; Throop, Pub. Off. 478-479; 1 Dill. Mun. Corp. § 233, 4th ed.; Evans v. Trenton, 24 N.J.L. 764; People v. New York, 1 Hill, 362; United States v. King, 147 U.S. 676, 37 L.Ed. 328, 13 S.Ct. 439. See also Broaddus v. Pawnee County, 16 Okla. 473, 88 P. 250.

Person who accepts office to which no compensation is attached is presumed to undertake to serve gratuitously, and cannot recover anything upon the ground of implied contract to pay what the services are worth. Johnson v. Black, 103 Va. 477, 68 L.R.A. 264, 106 Am. St. Rep. 901, 49 S.E. 633; Jones v. Lucas County, 57 Ohio St. 189, 63 Am. St. Rep. 710, 48 N.E. 882; United States v. Saunders, 120 U.S. 126, 30 L.Ed. 594, 7 S.Ct. 467; Throop, Pub. Off. 443.

General usage cannot be resorted to, to escape liability, and therefore the defendant is liable. Whittemore v. People, 227 Ill. 453, 81 N.E. 427, 10 Ann. Cas. 44. See also Throop, Pub. Off. § 445, and Lewis, Stat. Constr. § 473; Ogden v. Maxwell, 3 Blatchf. 319, F. Cas. No. 10,458; Albright v. Bedford County, 106 Pa. 582.

GOSS, J., BRUCE, J. MORGAN, Ch. J., concurs, BURKE, J., concurs specially. FISK and SPALDING, JJ., dissenting. Chief Justice MORGAN having resigned before the petition for a rehearing was filed, Mr. Justice BRUCE participated in his place.

OPINION [134 N.W. 768]

[23 N.D. 74] 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 § 876 of the Revised Codes of 1905, or chap. 85 of the Session Laws of 1901. Under this statute each applicant for 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 [23 N.D. 75] defendant as state superintendent he disbursed $ 11,815, 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 §§ 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 [134 N.W. 769] provides the official may disburse it, designating, however, the purposes for which it may be so expended.

This legislation originates with chap. 62 of the Session Laws of 1890, the important features of which defines the duties of the office of superintendent of public instruction; providing in § 5 of the law that it shall be the duty of such officer to prepare all questions used in the examination of applicants for teacher's certificates, prescribe the rules and regulations for conducting all such examinations, and issue or revoke state certificates when provided by law. His duty in such respect remained unaltered as § 626 of the Code of 1895, and § 736 of the Code of 1899; and until 1901 this duty and the work involved rested upon the various county superintendents. By chap. 85 of the Session Laws of 1901 this duty was placed with the state superintendent. And in addition to the fee of $ 1 formerly required to be paid by the applicant to the county superintendent, used by the county superintendent in support of teachers' institutes in the county or in the support of teachers' training schools (see § 743, Code of 1899) a $ 1 addition to the fee was required, making the fee paid by the applicant for certificate $ 2. The section of statute requiring the fee as enacted in chap. 85 of the Session Laws of 1901 is as follows: "Sec. 743. Fee for Certificate. Each applicant for a county certificate shall pay $ 2 to the county superintendent, $ 1 of which shall be paid into the county teachers' institute fund, to be used in support of teachers' institutes or the teachers' training schools in the county, as otherwise provided, and $ 1 of said fee shall be used by the superintendent of public instruction for such clerical assistance as he [23 N.D. 76] may deem necessary and competent for the reading of teachers' answer papers and work connected therewith. It shall be the duty of the county superintendent immediately after each examination to forward $ 1 for each applicant for teachers' certificate to the superintendent of public instruction, such sums to be used by him as hereinbefore provided."

Under another and preceding section of the same law a fee of $ 1 was required to be paid into the institute fund of the county in cases of removal or validation of certificates by indorsement by the county superintendent as by law provided.

The question before us for determination is: Do the provisions of §§ 869 and 876 authorize the claim of the defendant in this case that the balance of the unexpended fee provided in those sections belongs to him under a reasonable construction of the two sections referred to? One basic fact must be considered as having an important bearing in this matter. We are dealing with one of the state funds. This surplus is but a balance remaining of a fund collected by virtue of official employment in the exercise of official duty by a county officer in a matter germane to the duties of such officer, and is, in its collection and transmission to a state officer charged by law with the duty to receive it, a state fund,--public money. The mode of collection impresses it with these characteristics. Indeed, an equal amount, the other one half the fee collected from the same source, goes into a designated public fund created by the same statute, named the "teachers' institute fund" of the county wherein it is collected. It would be strange reasoning, indeed, that would conclude that $ 1 of every collection belonged to some person individually, holding public office, while the entire collection is made as a collection of...

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