Territory of Oregon v. Norris

Olney, J. This is an agreed case submitted to this court. The facts, as stated, are, that Norris, one of the commissioners to erect the penitentiary, was chosen by the board as their secretary, and, for his services as such, received from them two hundred and fifty dollars; and this suit is brought to recover it back. The statute requires the board to have a secretary, but makes no provision for his appointment or compensation. The duty to have a secretary implies the power to appoint one, in the absence of all other legal means of procuring the services of such an officer. The duties of a secretary do not appear to be incompatible with those of a member of the board. Both could be performed as effectually by the same person as by different persons; and in neither capacity would he be likely to have views or interests inconsistent with his duties in the other capacity. There is no reason, therefore, why a member of the board could not be employed as secretary. The fund which ought to pay for that service being subject to the order of the board, the power to employ might include power to compensate out of that fund. But, however that may be, the defendant having, according to the agreed statement of facts, received but a reasonable compensation, is entitled to retain it against the territory. By the Court—judgment for defendant.