Devils Lake inter-ocean. (Devils Lake, Ramsey Co., Dakota [N.D.]) 1884-1905, 1886-08-14
LAW AND COMMON SENSE.

coed. The ~lNTER.OCEAN is ut q dlsad-
vantage in discussing this commission
question, for the reason that we have
never studied law while On the part of
the News there are FIVE lawyers-or men
who claim to be lawyers-and ever since
the fight commentaries since the
county board ordered that suit be
brought against Mr.. Maher and his
bondsmen to recover the $339.5O which
he claimed as commissions-there has
been unusual legal industry at Tin Tube
headquarters. Codes and commentaries
have been flying through the air, and
out of the great legal research the News
has evolved, what? Why, an Obaer Die
tan! The News has said that everybody
knows what an obier dictum is, SO it is
useless for us to explain it. Everybody
will kindly permit us to remark, how
ever, that there is no more connection
between an obier dictum and Mr.. Makers
commission claim than there is between
Devils lake and the Atlantic zeal
Now for u little law on our side of the
case, and we promise to make it SO clear
that he who runs may read. We have
before us volume 10 of the Northwest
ern Reporter, and we find it filled with
supreme court decisions. On page Alb
we find the case of the commissioners
of Grand Forks county VS.. Cavanagh. 1t
is an appeal from the district court of
that county, and reads as follows. This
is the language of the supreme court:
During the years 1s79-sO the appellant
was treasurer of the County Of Grand
Forks. In the year 1879 the respondents
issued the bonds of said county to build
and by said respondents sold, without
Intervention of the appellant, except that
he received the money as treasurer. In
1881 said treasurer settled with the our
ty commissioners, retaining out of the
county funds in his hands the sur of
$500, claimed as commissions on the pro-
ceeds of the bonds, $4,000, at 4 per cent.
The respondents rejected such settle
ment, and demanded the full sum in his
L udIllS, WuICll uOA1taliu was lOANS0uS
| whereupon. at the April term of the dis
trict court, the respondents filed a petit
| tition for a writ of mandamMs to compel
said treasurer to pay over said $500; and
thereupon the court ordered an alterna-
| tive writ of issue, returnable at the same
term. Upon the return of said writ the
appellant appeared bycounsel and moved
to quash the writ, which motion was
o%verruled by the court. Thereupon the
appellant filed his answer. The court,
after hearing the proofs, ordered a per-
emptory writ of mandamus to issue,
from which order this appeal is taken.
The writ of mGndGnns can issue in all
cases where there is not a plain, speedy,
and adequate remedy in the ordinary
course of law. If there is such remedy
in the ordinary course of law, it is very
clear this writ cannot be invoked. We
think the Political Code (section IS Of
chapter 2s) has provided such remedy by
making it the duty Of the county clerk
on receiving instructions for that pur
pose from the territorial auditor, or from
the county commissioners of his county
to causes suit to be instituted against sucl
treasurer and his suretles, or any o
them, in the district court of his county
to recover all money in tho hands of thu
county treasurer which he shall fail t.
pay over. Under this provision it il
clear that a plain, speedy, and adequate
remedy in the ordinary course Of Law
maintained. This is decisive of the case
but the question of the right of the coun
ty treasurer to commissions upon thi
fund was much discussed, and, as tn
question is of some Importance, it seem
proper tina this question should receiy
a little attention.
The compensation of the county treas
urer provided by law for all money col
, lected by him for each fiscal year is 4 pc
cent. The section of the statute provid
ing for advertising and selling lands 70
delinquent taxes gives an additional fe
, of 4 per cent, to be paid only so far as tn
, lands arc actually sold, and out of tn
fund received therefor, and to be collect
ed in each case where the lands are sold
and from the purchaser; but for all othe
cases and services the treasurer shall b.
paid in the same pro rata from the re
5 spective funds collected by him. whethe
the same be in money, territorial or cOun
ty warrants. Those provisions on tn
intended to fix the commission of tina
8 office for collecting the ordinary revenu
! of the county, and have no application t
a fund brought into the county treasur,
. without his instrumentality. It canno
7 apply to the proceeds of bonds issued an
: negotiated by the county Commissioners
, His commissions are upon money col
lectcd by him; but he did not collect tn
proceeds of the bonds.
: Counsel contends that the words $50
all other services" etc., in the last cas-
, above quoted, gives his commissions OF
> the "fund created by the sale of bonds.
But these words haye reference only t,