The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1903-06-10
COURT ACTS
IN PROBATE
MATTER
Judge Ordered 10 Pay Back
Surplus Fees
CHARGES EX0RBlTANT
Many Other Opinions Are
Handed Down

Guthrie, o. T, June 9.-The Oklahoma
supreme court took action in the probate
judge cases today, that body ordering
Warren H. Brown, former probate judge
of Comanche county, to pay back to the
county all fess over and above his an
nual salary. In the Harris Finley case.
an opinion was handed down by Asso-
ciate Justice Hainer, in which the case
was reversed and remanded to the lower
court. 1t is presumed that the Finley
case will have the same outcome as has
the Brown case. w. l.. Crum was pro-
bate judge OF Caddo county and has d
case pending in the court.
At the opening Of the eKiowa-Comanche
country, probate judges for the three
counties were appointed by Governor W.
NJ Jenkins. Charges were made that
these officials had charged exorbitant fees
in opening townsites. Action was brought
in the courts 10 recover the fees paid
over TO the judges
The following opinions were handed
down today in the Oklahoma supreme
court:
BY Irwin, Tracey VS.. Racey, Grant
county, affirmed; Farmers Trust COM
pany VS.. freeman. Noble county. af-
firmed; Allen VS.. Rixie, Cleveland coUn-
ty. reversed and remanded; Farmers
State Bank VS.. Spencer. Garfield county
reversed and remanded.
By Gillette, Jordan VS.. Smith. Gar
field county. affirmed; Greely VS.. Greely.
Noble county. affirmed; Philips VS..
Thorp, Logan county. affirmed.
BY Hainer, Finley VS.. Territory, XII
owa county. reversed and remanded.
The supreme court today named the
following terms OF court in the Third dis
trict, Judge Irwin presiding: Washita
county. beginning September 10; Custer
county, September IS; Kingfisher county,
October Il; Cleveland county, November
.; Canadian county. November %.
The opinion in the Finley case. pre-
pared by Associate Justice Hainer. has
the following syllabus;
l. Congress. in addition to the juris-
diction granted by our legislature. has
conferred jurisdiction upon the probate
judges in townsite matters.
probate judges in townsite matters was
conferred upon the Office and not on the
individual and congress did not thereby
create a separate and distinct Office. or
trust
3. The probate judges are required to
report all fees and compensation for ser
vices performed by them by virtue Of
their office and they have no authority
to withhold any of them. no matter from
what source they are derived.
T. The probate judges are entitled 20
retain from such fees and compensation
for services performed by them only the
maximum salary allowed by law, based
upon the population OF their counties.
and the excess must be paid into the
county treasury. And this applies 10 all
fees. compensation OF emoluments re-
ceived by the probate judges when acting
in townsite matters.
s. a public officer is bound to perform
the duties of his Office. no matter how
onerous they may be. for the compensa-
ton fixed by law.
6. Where the law requires a public
officer to report all fees received by him
by virtue of his Office and he fails. neg
lects or refuses 10 do so. mandamus Is
the appropriate remedy.
Z. Where a writ Of mandamus is award
ed requiring a probate judge to report
all the fees of his Office and to pay into
the county treasury any excess above
the amount he was By law allowed TO re-
tain the action will not abate upon the
expiration of his term Of Office.
S. The pleadings in proceedings in man
damus are. by the code, TO be construed
as pleadings in ordinary actions. Hence
a demurrer to the answer can only be
rightfully sustained when the answer
in fact contains no defense to plaintiff
cansa Of action