Jackson v. Siglin

By tbe Court, Lord, C. J.: To properly understand tbe question in controversy, it is sufficient to state that it appears from tbe transcript tbat — 94 — while the appellant was county cleric of Ooos county, one J. D. Fry obtained a judgment in the circuit court of that county for a large sum of money, against Tom Utter et al., upon which execution was issued and real property sold to the amount of $41,000. The respondent, as the agent and attorney of said Fry, bid off the premises at this sum, but no money was paid to the sheriff except his fees, the credit being endorsed on said execution,' and thus returned. The appellant seems to have considered this return as equivalent to the return of the money made on the execution, and claimed the legal commissions “for receiving, keeping and disbursing the whole amount.” The respondent denied the legal right of the appellant upon this state of facts to collect the commissions, b.ut upon being threatened with legal proceedings, and to prevent, as he alleges, any misunderstanding with Fry, with whom he had entered into a valid agreement to pay all legal costs and expenses incident to such sale, he agreed with appellant to pay, and did pay him a portion of such commissions, and gave him the due bill sued on for the balance, upon which the appellant released Fry from further liability. Upon this state of facts, the court below held that no action would lie to recover the amount of the due bill. The only question really presented by this record is: Was the clerk entitled to the per centum allowed by law for receiving, keeping and disbursing money, when no money was actually received, kept or disbursed by him? As the decision of this question involves the construction to be given to our statute regulating the fees of officers, it must be borne in mind that it was long ago settled by eminent judicial authority that statutes which give costs must be construed strictly, (Dwarris on Statutes, 253.) Our statute allows the sheriff “for all moneys actually — 95 — made on any process and returned to tlie clerk, under one thousand dollars, three per centum,” (Or. Laws, p. 602,) and the clerk “for receiving, keeping and disbursing money, on the first five hundred dollars, one per centum” (Or. Laws, p. 601,). The facts concede that no money was actually received, kept or disbursed by the clerk. Will the rule of strict construction, applicable to such statutes, admit of the argument that there was a constructive receiving, keeping and disbursing of this money, which entitled the clerk to his commissions? No one will deny that whoever renders service for another ought to be suitably compensated for such service. As a general principle this is equally true in morals as in law, and applies with equal force to services rendered in public station as in private life. Our laws fixing the salaries, and in prescribing the fees of officers for services rendered, recognize the soundness of, and put in practical operation, this just principle. The instances wherein officers are required to perform services for which no compensation is provided are rare, and usually applied to officers considered honorary in their character, or include the performance of other services for which there are compensating advantages. But where an officer claims compensation without having rendered any service, or assumed any responsibility, the statute upon which he bases such right to compensation ought to express that intention in clear and unmistakable terms. For it is hardly probable that the legislature intended to require the public or individuals, to pay officers fees or their compensation without the performance of some official acts or service, and the courts certainly will not impose such liability by mere construction. The basis of allowance to an officer, Mr. Chief Justice Hosmer says, is his trouble and — 96 — risk, or in other words, his actual service and responsibility. (Preston v. Bacon, 4 Conn., 478.) The evident intention of our statute was to pay the clerk for his labor and responsibility imposed in receiving, keeping and disbursing money. But where, as in the present case, there was no money received, kept or disbursed by the clerk, there could be no service performed, or official responsibility assumed by him, which would put his claim to commissions within the terms of the statute. The statute contemplates service, official acts, the performance of which are essential to establish the officer’s legal right to the commission. It provides for doing certain things, the officer shall receive a certain fee or per centum, and without doing these things the statute does not contemplate that the officer is entitled to the fee or per centum. It is “for receiving, keeping and disbursing” money returned on execution which entitles the clerk to his commissions, and unless he has rendered such service he is not entitled, nor did the legislature contemplate he should receive, any compensation. (2 Wallace Ch. R., 477.) The rule is said to be inflexible that an officer can demand only such fees as the law has fixed and authorized for the performance of official duties. (Carlisle v. Crump, 25 Ark., 235.) A strict enforcement of this principle is regarded by the courts as essential to the protection of the people and will not be repealed. “Every officer,” says Mr. Justice Caruthers, “must beware that he takes no compensation for services not sanctioned by some law on the subject. He collects costs at his peril, and for each and every item he must be able to put his finger upon some particular act.” (The State v. Merrill, 37 Tenn., 68.) Ignorance of the law excuses no man, least of all an officer, for, having undertaken to perform the duties of his — 97 — office, fie must know and perform them at Ms peril. (York v. Clopton, et al., 32 Ga., 364.) And again, in the American Steamship Co. v. Young, 89 Penn. St., 192, the court say: “It is his special business to be conversant with the law under which he acts and to know precisely how much he is authorized to demand for his services, but with the public it is different. They have neither the time nor the opportunity of acquiring the information necessary to enable them to know whether he is claiming-too much or not, and as a general rule, relying on his honesty and integrity, they acquiesce in his demands.” The demand of the appellant of the per centum charged, was without warrant or authority of law; he had performed no service which entitled him to demand such compensation; it was therefore an illegal charge, which the facts show was exacted under threats of litigation and settled by a due-bill, to avoid misunderstanding, and which, if he wilfully and knowingly charged, was an ofíense against public justice. (Crim. Code, sec. 636, p. 429.) It is a doctrine of the common law, founded in public policy, that an officer shall be confined to the compensation or fee prescribed, and therefore a promise to pay money for doing that which the law did not suffer him to take anything for, or to pay more than was allowed by law, was void, however freely and voluntarily made. (Hatch v. Mann, 15 Wend., 44.) This became the settled law at an early day in England, and has been constantly adhered to by the courts of that country, and followed by the highest courts of the several states of the union. (Lane v. Seawall, 1 Chitty, 176; Morris v. Burdette, 1 Camb., 218; Preston v. Bacon, 4 Conn., 471; Bussin v. Pry, 7 Sergt. & Rawle, 447; Churchill v. Perkins, 5 Mass., 541; Gilman v. Lewis, 12 Ohio, 281.) — 98 — So, too, where an officer by virtue of his office demands and takes unauthorized and illegal fees, he may be compelled to make restitution, although such fees were paid without protest or notice of intention to.reclaim. Public policy requires that such payments shall not be considered voluntary. (American Steamship Co. v. Young, supra.) “It should be deemed sufficient,” says Judge Woodruff, “that the officer takes advantage of his official position to make the exaction; due protection to those whose necessities require them to deal with persons exercising official powers, or discharging duties in their nature official, requires that money so paid should be the subject of reclamation.” (The Fire Ins. Co. v. Button, 8 Bosw., 148.) Nor in sustaining a civil action against a public officer for money illegally demanded and paid, is it necessary any turpitude should be proved against him. The action rests on no illegal purpose of the defendant in exacting the payment. It is well sustained if his official power was exercised in the collection, without warrant of law. (Ogden v. Maxwell, 3 Blatch., 319.) The difference between a civil action and an indictment for taking illegal fees, is that in the indictment it must be shown that the illegal charge was made “wilfully and knowingly,” while in an action the officer is liable, although the charge was made by mistake, and without any intention to extort. (Miller v. Lockwood, 17 Penn. St., 258.) Certainly then, if such illegal charges may be recovered back when • voluntarily paid to the officer, they never can constitute a valid consideration for any contract. Indeed it is an elementary principle that a bill or note which is founded upon an illegal consideration is void. It matters not whether such illegal consideration is opposed to public policy or interdicted by some statute, or both, the law uni — 99 — versally condenas all contracts founded upon them. (Daniels on Negotiable Instruments, sec. 196; Story on Promissory Notes, sees. 189 and 190.) To forbear to prosecute a claim, or to compromise a doubtful one, is a good consideration for a note or bill, but, Mr. Daniels says, “the compromise of one clearly illegal is not,” (sec. 196, supra.) The due-bill of the respondent is admitted in the pleadings to have been given to the appellant in payment of fees which he claimed against Pry, but which were clearly illegal and without warrant of law. Such illegal charges cannot be made the basis of any valid agreement. The due bill is therefore without any valid consideration to support it and cannot be enforced. The judgment of the court below is affirmed. Judgment affirmed.