Wiles v. McIntosh County
| Decision Date | 31 December 1901 |
| Citation | 88 N.W. 710,10 N.D. 594 |
| Court | North Dakota Supreme Court |
Appeal from District Court, McIntosh County; Lauder, J.
Action by George C Wiles against the county of McIntosh. Judgment for plaintiff. Defendant appeals. Reversed.
Reversed and remanded.
A. W Clyde, State's Atty., and Morrill & Engerud, for appellant.
Herried & Williamson, for respondent.
Plaintiff commenced this action to recover from the county of McIntosh the sum of $ 200, which he alleged was due to him from said county as a balance of salary as county superintendent of schools. The defendant, in its answer denied that any balance was due to plaintiff, and pleaded the statute of limitations against plaintiff's cause of action. The answer also set up a counterclaim in defendant's favor and against plaintiff for an alleged overpayment of salary, amounting to $ 700, and prayed for an affirmative judgment for that sum. The case was tried to a jury. At the close of the testimony, upon motion of defendant's counsel, a verdict was directed against plaintiff on his cause of action, and upon motion of plaintiff's counsel a verdict was directed against the defendant on its counter claim. Separate judgments were entered upon the verdicts so directed. The defendant has appealed from the judgment dismissing its counterclaim, and in a statement of case duly settled has specified for review a number of alleged errors.
The only error assigned which we shall have occasion to consider relates to the verdict directed against the defendant's counterclaim. The ground for such directed verdict, as stated by plaintiff's counsel in his motion therefor, was "that the plaintiff is not liable upon the counterclaim * * * for the reason that the evidence shows that the plaintiff, in drawing his salary, acted upon the opinion of the superintendent of public instruction, * * * and for the further reason that the money was regularly paid by the regular auditing board of the county under the law, and is therefore a voluntary payment." No other reasons than those just stated were urged, or were relied upon, apparently, by the trial court in granting the motion. It seems to have been conceded at the trial that the plaintiff had been overpaid; at least it was not seriously controverted. The plaintiff's entire contention in the trial court--and that is his chief contention in this court--was that the payments were voluntary, and that they cannot, therefore, be recovered back by the county. This contention we cannot sustain. The answer alleges that during the years 1896, 1897, 1898, 1899, and 1900 the plaintiff presented quarterly accounts for salary to the board of county commissioners, in which he claimed salary in excess of the amount limited and prescribed by law; that for the purpose of procuring the allowance of such accounts he misrepresented and overstated to said board the number of schools which were in the county, which determined the amount of his salary, and by so doing induced said board to allow each of said accounts, which covered not only the sum lawfully due him, but amounts greatly in excess of the sum due; that the sums so allowed above his lawful salary and paid by the defendant, amounted to $ 700. Counsel for plaintiff urge in this court two propositions in support of the verdict: (1) That there is no competent evidence of overpayment; (2) that, conceding that the plaintiff was overpaid, the payments were voluntary and cannot be recovered back. The evidence offered by the defendant in support of its counterclaim was exceedingly unsatisfactory. But we cannot agree with counsel that there is no competent evidence of overpayment. During the entire period here in question the plaintiff's salary was fixed by law. Section 652, Rev. Codes 1895, provided that the salary of county superintendents of schools shall be as follows: By the amendment embodied in chapter 75, Laws 1897 (§ 652, Rev. Codes, 1899), county superintendents were allowed $ 10 for each additional school, instead of the $ 100 allowance for 10 schools or a major fraction thereof, as under the previous statute. The statute is not ambiguous. It furnishes an absolute means of measuring the salaries of county superintendents. In the determination of such salaries it requires merely a mathematical computation upon existing facts. The controlling fact is the number of schools or separate departments of graded schools presided over by the county superintendent, which schools or departments have been taught at least three months in the year preceding that for which the salary is claimed. Neither counties nor county officials have authority either to increase or diminish the compensation so fixed by the legislature. No special method was provided for determining the number of schools which serves as a basis for the computation of salaries. Evidently the lawmaking body considered that question might, at least primarily, be left to the integrity of superintendents. When, however a dispute arises as to the number of schools, the question is one of fact, to be determined like any other question of fact. The effect of a dispute as to the number of schools is merely to delay a computation of the amount of salary until the number can be ascertained by the county auditor, or judicially, when such course is necessary. We find from an examination of the record before us that there was before the trial court when it directed the verdict against the defendant on its counterclaim substantial evidence fairly tending to show that the plaintiff during his incumbency of the office of county superintendent of schools presented quarterly accounts for salary to the county commissioners greatly in excess of the amount due; that such accounts were verified by his oath, wherein he stated that the charges were just, and were such as were allowed by law, and that no part of the same had been paid; that the defendant relying upon such verified accounts, paid the sums so claimed by the plaintiff as and for salary. There is evidence to the effect that plaintiff overstated the number of schools in the county. Counsel for plaintiff strenuously urge that there is no evidence tending to show that the number of schools in McIntosh county, during the years in question, was less than the number necessary to authorize the payment of the salary which the plaintiff claimed and was paid; in other words, they claim that there is no evidence of overpayment. This contention is not sustained by the record. The evidence on this point is contained in a certain public document, prepared by the superintendent of public instruction, which purports to contain reports of the county superintendent of schools for McIntosh county for the years in question, in which is set forth the number of schools in which no school was taught, the number of schools taught one month and less than three months, and the number of schools taught three months and upwards. In addition to the foregoing, the defendant offered in evidence the sworn statement of the plaintiff, showing the number of schools for one of the years in question, which statement had previously been filed by him with the county commissioners. The evidence afforded by the public document referred to was admitted without objection as to its competency, and no objection was made that the same was hearsay; on the contrary, the plaintiff seems to have, at least tacitly, admitted the accuracy of the statements...
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