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poration or by the individual 497 for whom the service is rendered. The cases passing upon the payment of fees involve the construction of special and local statutes and form no basis for the establishment of a general rule or principle which controls. It might be said, however, that all laws relating to the compensation of public officers whether it is paid by salary, through commissions or fees are construed strictly and the right of the official to payment in a specific instance should clearly appear." The pay

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and just compensation for work done should be given. Baker County v. Benson, 40 Or. 207, 66 Pac. 815.

the aggregate of the per diem the discretion of the court, a fair charges and mileage cannot exceed this maximum. Henderson v. Pueblo County Com'rs, 4 Colo. App. 301, 35 Pac. 880; Kane County Sup'rs v. Pierce, 60 Ill. 481; Bourke v. Sanitary Dist. of Chicago, 92 Ill. App. 333; Vigo County Com'rs v. Fischer, 86 Ind. 139; Kerlin v. Reynolds, 142 Ind. 460, 36 N. E. 693, 41 N. E. 827; Howegler v. Greiner, 89 Iowa, 476, 56 N. W. 655; Fournier v. West Bay City, 94 Mich. 463, 54 N. W. 277; In re Town of Hempstead, 36 App. Div. 321, 55 N. Y. Supp. 345; State v. Beman, 15 Wash. 24, 45 Pac. 652.

496 City of Chicago v. O'Hara, 60 Ill. 413; Taylor v. Kearney County, 35 Neb. 381, 53 N. W. 211.

497 Baldwin v. Kouns, 81 Ala. 272, 2 So. 638; Ex parte Ashley, 3 Ark. 63; Prairie County v. Vaughan, 64 Ark. 203, 41 S. W. 420; Kitchell v. County of Madison, 5 Ill. (4 Scam.) 163; State v. Cripe, 5 Blackf. (Ind.) 6; Bartholomew County Com'rs v. Bryan, 22 Ind. 397; Stiffler v. Delaware County Com'rs, 1 Ind. App. 368, 27 N. E. 641; Peters v. City of Davenport, 104 Iowa, 625, 74 N. W. 6; State v. Allen, 23 Neb. 451, 36 N. W. 756. A public officer is entitled to reasonable fees for services rendered where none are fixed by statute. Pomeroy v. Mills, 35 N. J. Eq. 442. Where the question of fees to be allowed for auditing is left to Abb. Corp. Vol. II — 43.

498 Wailes v. Smith, 157 U. S. 271; United States v. Clough (C. C. A.) 55 Fed. 373, disapproving 40 Fed. 813. "We do not concurr in the opinion of the court in McKinstry v. United States, 40 Fed. 813, as to the principle to be followed in the construction of the fee bill. We do not know any rule of public pol icy or of practical experience which requires that where a statute allowing an officer's compensation 'admits of two interpretations, the words should be construed liberally in favor of the officer, and not strictly in favor of the United States.' The well known abuses: under the fee system, by which the government has been defrauded of large amounts through unconscionable charges, and the lax administration of the law in this respect, would seem to require a strict interpretation in favor of the United States rather than in favor of the officer."

Troup v. Morgan County, 109 Ala. 162, 19 So. 503; Crittenden County v. Crump, 25 Ark. 235. An official is entitled only to such fees as are prescribed by statute. Cole V. White County, 32 Ark. 45; Leonard v. Garfield County Com'rs, 8 Colo. App. 338, 46 Pac. 216; Alex

ment of an excessive commission through a mistake of law is usually binding where the amount has been ascertained by an offi cial or an official body charged with this as a discretionary duty.499

§ 690. Fees; itemized statements of services rendered.

It is customary when public officials receive fees or commissions as compensation from the corporation to regard them as a claim against it and to require their presentment to the proper officials in an itemized form; 500 to be passed upon in the manner provided by law for the determination of all claims.501 Where this legal requirement exists, it is scarcely necessary to add that a compliance with it is necessary in order that there can be a recovery of the fees claimed.502 The collection of excessive charges or fees is

ander County v. Myers, 64 Ill. 37; City of New Albany v. Smith, 16 Ind. 215; Hilton v. Saline County Com'rs, 5 Kan. App. 429, 49 Pac. 323; State v. Wofford, 116 Mo. 220, 22 S. W. 486; In re Brown, 15 Neb. 688; State v. Trousdale, 16 Nev. 357; State v. Boyd, 19 Nev. 356, 11 Pac. 36; People v. Trustees of Haverstraw, 11 App. Div. 108, 43 N. Y. Supp. 135. The acceptance of an official position where no appro priation has been made at the time does not preclude the appointee from claiming compensation under a statute authorizing it. Erie County Sup'rs v. Jones, 119 N. Y. 339, construing N. Y. Laws 1880, c. 580; Laws 1881, cc. 441 and 557; Tyrrell v. City of New York, 159 N. Y. 239, 53 N. E. 1111; Taylor v. Umatilla County, 6 Or. 401; McGuire v. Baker City, 27 Or. 340, 41 Pac. 669; Morrison V. Fayette County, 127 Pa. 110, 17 Atl. 755; State v. Allen (Tenn. Ch. App.) 46 S. W. 303.

499 Harrison County Com'rs V. Benson, 83 Ind. 469. The rule also holds that a county official collecting less than the legal commission is entitled to recover the full

amount. State v. Shipman, 125 Mo. 436, 28 S. W. 842.

500 Irwin v. Yuba County, 119 Cal. 686, 52 Pac. 35; White v. Hayden, 126 Cal. 621, 59 Pac. 118; State v. Roderick, 25 Neb. 629, 41 N. W. 404; Smith v. Portage County Com'rs, 9 Ohio, 25.

501 Yuma County v. Pendleton, 17 Colo. App. 159, 67 Pac. 911; Otero County Com'rs v. Wood, 11 Colo. App. 19, 52 Pac. 214; Merwin v. Boulder County Com'rs, 29 Colo. 169, 67 Pac. 285; Outagamie County v. Town of Greenville, 77 Wis. 165, 45 N. W. 1090. An allowance is not warranted by a board of audit for claim itemized as "hotel expenses, railroad fare, etc."

502 McFarland V. McCowen, 98 Cal. 329, 33 Pac. 113. Where a constable's claim for fees has been examined and allowed by the county board of supervisors, the auditor cannot refuse to draw a warrant for the payment on the ground that the services for which the fees were charged were never rendered.

Burks V. Dougherty County Com'rs, 99 Ga. 181, 25 S. E. 270. Where periodical statements of business transacted are required to

usually made an offense and one for which a public official may, upon conviction, be punished by fine, imprisonment or both.503 Restitution can also be compelled.504 It might be said, however, that the collection of an illegal fee does not render invalid the act or services for the performance of which the fee is charged.

§ 691. Actual rendition of services.

The rendition of services authorized or in the manner authorized, is necessary to the payment of compensation 505 and where officials are paid a per diem this can only be recovered for the days actually employed in public business,500 and in some instances

be made, the commission on the balances shown by these statements cannot be charged nor included in the succeeding statement. Sheibley v. Dixon County, 61 Neb. 409, 85 N. W. 399. A county clerk should account for all fees earned by him whether collected or not.

503 Gray v. Matheny, 66 Ark. 36, 48 S. W. 678; Marcotte v. Allen, 91 Me. 74, 40 L. R. A. 185. Excessive fees may be recovered by the one paying them. Cobbey v. Burks, 11 Neb. 157. Mistake or ignorance without corrupt intent is no defense in an action on statutory penalty for an officer taking excessive fees. Garber V. Conner, 98 Pa. Hamer v. Weber County, 11 Utah, 1, 37 Pac. 741. Where the question of illegal fees is at issue the presumption exists that the charge is valid.

551;

504 Ingram v. Wilson, 19 Ky. L. R. 1797, 44 S. W. 420; American Steamship Co. v. Young, 89 Pac.

186.

505 San Bernardino County V. Davidson, 112 Cal. 503, 44 Pac. 659; Fremont County v. Brandon, 6 Idaho, 482, 56 Pac. 264; Miller v. Smith, 7 Idaho, 204, 61 Pac. 824; Eley v. Miller, 7 Ind. App. 529, 34 N. E. 836; Stropes V. Greene County Com'rs, 84 Ind. 560; Pick

ett v. Adams, 12 Ky. L. R. 957, 15 S. W. 865, 16 S. W. 132; Pistorius v. Saginaw County Sup'rs, 51 Mich. 125; Nordin v. Kandiyohi County Com'rs, 23 Minn. 171; Wade v. Lewis & Clarke County, 24 Mont. 335, 61 Pac. 879. A county surveyor in order to recover mileage under laws 1897 must have actually traveled the distance. State v. Boyd, 49 Neb. 303, 68 N. W. 510; Hazelet v. Holt County, 51 Neb. 716, 71 N. W. 717; State v. Russell, 51 Neb. 774, 71 N. W. 785; Martin v. Ivins, 59 N. J. Law, 364; Richmond County Sup'rs v. Ellis, 59 N. Y. 620; Brown v. Com., 2 Rawle (Pa.) 40; Shepherd v. Keagle (Cal.) 53 Pac. 702.

506 Smith v. County Com'rs of Jefferson, 10 Colo. 17, 13 Pac. 917. The law recognizes no fraction of a day and under Gen. St. Colo. § 3015, a county superintendent of schools is entitled to a per diem allowance for every day in which he necessarily renders any substantial official services without regard to the time occupied in its performance. Rankin v. Jauman, 4 Idaho, 394, 39 Pac. 111; Fisher v. Bannock County Com'rs, 4 Idaho, 381, 39 Pac. 552; McCollom v. Shaw, 21 Ind. App. 63, 51 N. E. 488; Mont

it has been held necessary to show affirmatively in a statement of account that public business was transacted on the days charged.507 The payment of mileage, commissions, or fees in doubtful cases or where the charges are based upon constructive services, is usually discountenanced 508 as against public policy,

gomery County Com'rs v. Bromley, 108 Ind. 158. Where a per diem charge is allowed, an official cannot claim pay from two different sources for one day's services.

White v. Dallas County, 87 Iowa, 563, 54 N. W. 368. It is not necessary in order to recover a per diem compensation that services should have been performed during the entire day. Officers are entitled to the full per diem compensation whenever they perform services on a given day irrespective of the number of hours spent in such employment.

Sumner County Com'rs v. Simmons, 51 Kan. 304, 33 Pac. 13. A county surveyor cannot recover a per diem in the absence of a showing that public business was transacted merely by testifying himself that it was necessary for the convenience of the public that his office should be kept open on those days.

Ewing v. Ainger, 96 Mich. 587, 55 N. W. 996; State v. Thompson, 37 Mo. 176. A member of the legislature receiving a per diem cannot recover pay for the time during which the legislature adjourns over holidays. In re Town of Hempstead, 36 App. Div. 321, 55 N. Y. Supp. 345; State v. Merry, 34 Ohio St. 137; Corr v. Lackawanna County, 163 Pa. 57, 29 Atl. 745; Mansel v. Nicely, 175 Pa. 367, 34 Atl. 793. A showing that work alleged to have been performed by a county commissioner Icould have been done in much less time than that for which compen

sation is claimed does not preclude such an officer from collecting for the time claimed if he was in attendance at his office and ostensibly performing public business on such days.

State v. Hastings, 16 Wis. 337. Members of a legislature are not in attendance on legislative duties and are not entitled to the usual per diem when there is an adjournment for such a period of time as to forbid a reasonable inference that it was not to facilitate the business of the session but to operate as a cessation of it for a given period in order to give the members an opportunity to return temporarily to their homes.

507 Reilly V. Cochise County (Ariz.) 53 Pac. 205.

508 Hamilton County Com'rs v. Sherwood (C. C. A.) 64 Fed. 103. A county commissioner can recover compensation at the legal rate for special services authorized and the fact that they were rendered outside of the county is immaterial. Howes v. Abbott, 78 Cal. 270, 20 Pac. 572, construing Cal. St. 1883, p. 299, relative to mileage.

Vannatta v. Brewer, 85 Ill. 114; Graham County Com'rs v. Van Slyck, 52 Kan. 622, 35 Pac. 299; Wortham v. Grayson County Ct., 76 Ky. (13 Bush) 53. The right must be expressly conferred by statute to enable an officer to charge a public corporation with fees or compensation; an authority by implication to do this does not exist. Gilbert v. Justices of Marshall County, 57 Ky.

and this rule is uniformly applied for the principle holds that the interests of an individual should at all times, be subordinated to the public advantage or welfare.509

§ 692. Change of compensation during term of office.

Public officials are entitled to protection in the exercise of their duties against an arbitrary or illegal exercise of legislative power. To effect this, constitutional and statutory provisions are found. throughout the United States prohibiting a change in the compensation of a public officer during his term of office.510 In some, a

(18 B. Mon.) 427; Cook v. Auditor General, 129 Mich. 48, 87 N. W. 1037; State v. Norris, 111 N. C. 652, 16 S. E. 2; Higgins v. Logan County Com'rs, 62 Ohio St. 621, 57 N. E. 504. 509 United States v. Clough (C. C. A.) 55 Fed. 373, disapproving McKinstry v. United States, 40 Fed. 813; Cole V. White County, 32 Ark. 45.

510 Weeks v. Texarkana, 50 Ark. 81; Gross v. Kenfield, 57 Cal. 626; Larew v. Newman, 81 Cal. 588, 23 Pac. 227. The provision applies to one appointed to fill a vacancy as he is subject to "all liabilities, duties and obligations of the officer whose vacancy he fills."

Kirkwood v. Soto, 87 Cal. 394, 25 Pac. 488. Cal. Const. art. 11, § 9, relative to change of compensation does not apply to traveling and other incidental expenses attached to his office. Marquis v. City of Santa Ana, 103 Cal. 661, 37 Pac. 650; Carlile v. Henderson, 17 Colo. 532, 31 Pac. 117; Smith v. City of Waterbury, 54 Conn. 174; Garvie v. City of Hartford, 54 Conn. 440; Polk v. Minnehaha County, 5 Dak. 129; Purcell v. Parks, 82 Ill. 346; Stadler v. Fahey, 87 Ill. App. 411.

Briscoe v. Clark County, 95 Ill. 309. Art. 10, § 10, of Ill. Const., providing against a change of compen

sation of a county officer during his term of office is merely a limitation in this respect in the performance of his personal and official duties and does not apply to necessary clerk hire or other current expenses which may vary from time to time as necessities require.

Ryce v. City of Osage, 88 Iowa, 558; Com. v. Addams, 95 Ky. 588, 26 S. W. 581; City of Paris v. Webb, 17 Ky. L. R. 1006, 33 S. W. 87; Com. v. Carter, 21 Ky. L. R. 1509, 55 S. W. 701; State v. Hickman, 9 Mont. 370, 23 Pac. 740, 8 L. R. A. 403; Douglas County v. Timme, 32 Neb. 272, 49 N. W. 266; State v. Moores, 61 Neb. 9, 84 N. W. 399, construing Neb. Const. art. 3, § 16, and holding that a police judge of an incorporated city is included within its terms. State v. Kelsey,

44 N. J. Law, 1; Greene v. Chosen Freeholders of Hudson County, 44 N. J. Law, 388; Torrez v. Socorro County Com'rs, 10 N. M. 670, 65 Pac. 181; Swift v. State, 89 N. Y. 52, reversing 26 Hun, 508; Lancaster County v. Fulton, 128 Pa. 48, 18 Atl. 384, 5 L. R. A. 436; Collins v. State, 3 S. D. 18, 51 N. W. 776; Neal v. Allen, 76 Va. 437; City of Tacoma v. Lillis, 4 Wash. 797, 31 Pac. 321, 18 L. R. A. 372; Bogue v. City of Seattle, 19 Wash. 396; Mud

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