Musback v. Schaefer

Maeshall, J. The precise ground upon which the court decided the complaint insufficient does not appear. It is suggested as one of such grounds that there is m> law imposing upon a school-district clerk the duty of furnishing certified copies of the public records under his charge. Sec. 4148, Stats. 1898, makes such certified copies receivable <as evidence with like effect as the original records, and provides: “If any such officer [referring to school-district officers, among others], upon being tendered his legal fees therefor, shall unreasonably refuse to furnish any such certified copy to any applicant for the same he shall forfeit not less than twenty nor more than one hundred dollars, one half to the person prosecuting therefor.” That seems very clearly to impose upon school-district clerks the dirty of furnishing certified copies of their school-district records. The imposition of a penalty for failure to do a particular thing, by implication imposes a duty to do that thing, by the same reasoning that the imposition of a penalty for doing a particular act impliedly prohibits the doing of such act. 1 Dillon, Mun. Corp. § 308; Johnson v. Simonton, 43 Cal. 242. [360] It is argued, in effect, that admitting that sec. 4148, supra, imposes a duty as indicated in wliat we bave said, that duty only requires the officer to furnish a certified copy of a record under his charge upon the same being demanded for use as evidence, and his legal fees being tendered. The statute does not read that way. The language thereof is general. It provides that certified copies of public records may be used as evidence, and then imposes upon public officers the duty of furnishing them regardless of the use to which the applicant therefor may desire to devote the papers. This action is laid under secs. 2955-2957, Stats. 1898, which together prohibit a public officer from taking any compensation for official services other than “such as shall be allowed by the laws of this state,” from demanding or receiving compensation for official services except upon the actual rendition thereof and as otherwise provided by statute, and provide that every officer or person violating the law in that regard “shall be liable to the party aggrieved in the sum of twenty-five dollars damages and also for the actual damages sustained, to be recovered in an action.” The statutes being penal, by a well-established rule of law must be strictly construed. So understood, the term “allowed by the laws of this state” should be read in the sense of “allowed by any statute of this state” by the same reasoning, in part, that “liability created by law,” in sec. 4252, Stats. 1898, has been held to mean “created by statute law” (Gores v. Field, 109 Wis. 417, 84 N. W. 867, 85 N. W. 411), and to apply only to a sit-nation where there is a definite fee provided by some written law for official services. Counsel for appellant seems to concede that, and points to sec. 2959, Stats. 1898, as-.satisfying the test. That does not seem to reach the subject. It applies to where either of two officers may legally perform a particular act and a fee is specifically allowed to one and not to the other. Then the fee is made incident to the service, so it may he rightfully claimed by the officer performing the same. [361] The most that can be claimed bere is that various officers required by law to perform services similar to that required of appellant are given specific statutory fees. There is no statute allowing a school-district clerk any such compensation for furnishing certified copies, nor, expressly, any compensation whatever. Such officer is unquestionably entitled to reasonable pay for such services upon common-law principles and by implication from the statute imposing the duty. But that does' not satisfy the clause of the penal statute. Therefore the complaint fails to state a good cause of action, and the court rightly so decided and dismissed the cause with costs*. By the Court. — The judgment is affirmed.