#### Anna W. Sheibley v. John M. Hurley et al.

Filed June 8, 1905.

No. 13,613.

1. Public Officers: Fees. The statute allowing a public officer a fee of twenty-five cents for “each certificate and seal” does not contemplate that the officer must formulate a statement of facts to which he certifies. If he, upon request, performs such service, he will be entitled to reasonable compensation therefor. The fee allowed by the statute is for the act of certifying to the paper and affixing his seal thereto.

2.-: -. The clerk of the district court cannot be required to search the records of his office to ascertain what liens, if any, exist against lands described in an abstract of title, and make and enter upon, the abstract a compilation and statement of the result of such search. If he performs such service, he is entitled to reasonable compensation for making such statement and entering it upon the abstract. He is not entitled to a fee for making a search of his records necessary to the performance of another service “to which a fee is attached.”

3. Illegal Fees: Action fob Penalty. Section 34, chapter 28, Compiled Statutes, 1903, prescribing a penalty for taking illegal fees by a public officer is highly penal. In an action to recover such penalty, if it appears that the fee received was exacted by the officer for services that he was not required to render as such officer, and for which he was entitled to reasonable compensation, together with other services for which it would have been illegal to exact a fee, it will not be presumed (in the absence of proof upon that point) that the fee exacted was more than the service for which he was entitled to compensation was reasonably worth.

Error to the district court for Dixon county: Guy T. Graves, Judge.

*Affirmed.*

*W. E. Gantt,*for plaintiff in error.

*McCarthy & McCarthy*and *John V. Pearson, contra.*

Sedgwick, J.

The plaintiff below, who is plaintiff in error here, brought this action to recover from the defendant, as clerk of the district court for Dixon county, several pen*32alties for taking fees alleged to be illegal. The petition sets up several different counts, alleging as many different causes of action, and in each count it is alleged: “Plaintiff presented to the said John M. Hurley, clerk of the district court in and for said Dixon county, an abstract of title to (naming the land), and demanded from him a certificate, under his hand and seal, certifying that the liens and incumbrances shown in said abstract were all that were of record in the office of the clerk of the district court for Dixon county, Nebraska, or certifying that there were none,” with an allegation that the defendant demanded from and collected for making said certificate an amount stated in each count, which amount “was illegally taken and was in excess of the fee provided by law.” The amount stated is in each count more than twenty-five cents, which the statute prescribes as the fee for certificate and seal. The answer denies each allegation not expressly admitted, and denies specifically that the charges were made for “certificate and seal,” and alleges that in each and every cause of action stated in the petition the plaintiff “brought to the defendant, John M. Hurley, a memorandum, or sketch, of the chain of title to the real estate respectively mentioned and described in the several causes of action stated in plaintiff’s petition, showing the transfers of title thereof as shown by the numerical index and records of the office of the county clerk of said county, and requested the defendant to malee a search and examination of the books, records and files of his office and of the district court for said county, and to malee and indorse on said memorandum an abstract of each and every suit, proceeding, decree, judgment, transcript of judgment, execution, attachment or incumbrance of any kind, or affecting the real estate described in the caption of said memorandum, if any, which were at the time liens upon, or in any way affected the title to said real estate, as shown by the books, files and records of his office, certified by him as clerk of said court.” The answer then sets out in detail the search *33that the clerk was compelled to make of his records and documents in his office, and then alleges “that for the said examination and abstract he charged a uniform fee of fifteen cents for eacli name appearing in said chain of title, together with a fee of twenty-five cents, and no more, for this certificate and seal attached thereto,” with an allegation that these were acts not required by law of the defendant in performance of his official duty, and a further allegation that the service's rendered were Avell Avortli the sum charged. The pleadings in the case are very lengthy. They are somewhat complicated. The ansAver contains some inconsistent allegations; and the reply alleges that the charge in excess of tAventy-five cents for the seal Avas made for a search of the records. This allegation of course is inconsistent with the petition, hnd is a departure therefrom. There are also some inconsistent statements in the evidence. In some instances it is stated by both parties that the charges in excess of tAventyfive cents for the certificate and seal Avere made as compensation for the. search of the records. There is no objection made in this court that the allegations of the reply constitute a departure from the causes of action alleged in the petition, or that the allegations of the answer are inconsistent Avith themselves. The cause Avas evidently tried below as though the evidence Avas properly admissible under the issues, and that no variance existed between the allegations and the proof. The cause has been presented upon the same theory here, and we think it ought therefore to be determined upon that theory. The testimony of the plaintiff and the defendant is substantially the same, and it appears from the Avhole evidence that when these documents Avere presented to the defendant for his certificate, it was contemplated that an abstract statement of the result of the clerk’s search of his records should be entered thereon by him, and a formal certificate appended, to Avhich the clerk was expected to add his signature and the. seal of his office.

The determination of this case then depends upon *34whether the clerk-can he required to enter such a compilation npon the documents, and formulate a certificate thereto, and attach his signature and seal, for the compensation of twenty-five cents. If the theory contended for by the plaintiff is correct, then any statement, however- lengthy or however much in detail, that might be prepared from the records of the clerk’s office could be presented to the clerk, and he could be compelled to certify how much of the statement was true and how much false, and would be entitled to a fee of twenty-five cents for his certificate and seal. The certificate which the defendant made and for Avliich he was entitled to- charge is treated in the brief, and apparently Avas so treated by all parties upon the trial, as meaning the Avhole paper and its contents xipon which the certificate is'placed. It would seem rather to apply only to the act of certifying to the paper. When an abstracter of titles, Avho is himself a public officer under the law, has prepared a document purporting to be an abstract of title, which is complicated and may involve several descriptions of land, and many conveyances of each piece of land, and recites upon -this document that there are no judgments against any of the grantors of any of the pieces of land that are or might become a lien thereon, can he present such a document to the clerk of the district court, and demand that the clerk certify that all of the statements are true, and receive as compensation therefor twenty-five cents for such certificate? It seems clear that the clerk ought to be able to protect himself against such an unjust exaction. The clerk is no doubt required by law to make certified transcripts from his record Avhen the same are demanded and. his fees tendered therefor; but in such case he is entitled to fees not only for his certificate but for his transcript as Avell. One Avho requires such a transcript cannot prepare -it from the records himself and compel the clerk to certify thereto. He is under no obligations to certify to the truth of statements made or prepared by other parties, and if he consents to do so, In- may, no *35doubt, impose reasonable terms for his services. If he certifies to such statements on condition that he shall be paid for his services the same fee that he would have been entitled to if he had prepared the statement of facts himself, and had certified to its correctness, he violates no law in so doing.

Certainly the defendant could not be required to perform the services required of him in this case for the compensation to Avhich he is entitled for his certificate and seal. As before pointed out, the clerk Avas expected to make a compilation upon these documents of the result of his searches of his records. Just how extensive these compilations would necessarily be, is not clearly shown in the evidence. This Avork Avas no part of the duties of his office, and if he consented to x>erform it, he might, of course, make such reasonable charges therefor as he saw fit. The evidence, lioAvever, clearly sIioavs that the charge which he did make Avas intended to cover the work of searching the records, as Avell as the making of these comx>ilations upon the abstracts, and formulating the statements of fact to which he Avas expected to certify. Of course, he could not charge in this case a fee for making a search of' his record. The statute, after prescribing other fees of the district court, provides: “Every search made by the clerk, where no other service is rendered to which any fee is attached, fifteen cents.” Sec. 3, ch. 28, Comp.. St. 1903 (Ann. St. 9029). In *M’Caraher v. Commonwealth,*5 Watts and Serg. (Pa.) 21, 39 Am. Dec. 106, the court said:

> “No stronger evidence can be given of the duty of an officer, than that the laAV gives him a fee for the performance of it.”

Even if it should be thought that this statute imposes no duty upon the clerk to make search of his records, still it clearly authorizes him as such clerk to make such search, and in a proper case to make a charge therefor. If, therefore, he does at the request of an individual make such search, his fees for so doing are, Avithout any *36doubt, regulated by this provision of the statute. It is equally clear that the statute, by saying that he may have' a fee for searching the record “where; no other service is rendered to which any fee is attached,” forbids him to take a fee for such service when that condition does not exist. As already, seen, it ivas for this search for which he was not allowed to charge, and for other services for which he was entitled to compensation, that he received the fee of fifteen cents. There is no evidence in' the record to show the value of the service for which he was entitled to charge. If these services were really worth more than the amount charged, the fact that he supposed that he was also entitled to compensation for making the search of his record's, and that he accepted this fee as compensation for that service also, ought not in an action so highly penal as this to be treated as a violation of the statute. Demanding and receiving illegal fees by a public officer is deemed a *quasi*criminal act. If the amount involved is so small as fifteen cents, or even less, the officer is subjected to a penalty of $50. Under such a statute, all reasonable presumptions of innocence ought to be indulged, and we will not presume that the services rendered for which he was entitled to charge were of less value than the amount he received therefor.

We think, therefore, that the district court was right in instructing the jury to return a verdict for the defendant. The judgment is therefore

Affirmed.