Devils Lake weekly world. (Devils Lake, N.D.) 1911-1914, 1911-10-27

4tAS
Lake Sargent County Affair Meant
Much 70 Entire State Of North OAK
ota Affecting Every County Within
tho Bounds Of ths State.
n From tuesdays Dali aE5s in
The exclusive ae asa65I6aM&t a3pff Judge All
lens decision in the # s ~ Gases IN Saf-
gent county, which appeared in The
World state service yesterday, proved
of special interest and for this reason
the opinion of Judge Allen is given in
full as follows: ID
Register Of Deeds.
Section2595 of the revised codes pro-
vides for the keeping by each register
of deeds CT a book in which, shall be
entered each item Of fees for services
and provides further that he shall de-
post with the county treasurer the to.
tai sum of such fees.
Sec. 1857 provides fee for making
and continuing abstracts, and section
1886 provides specifically that all mon.
ey received for compiling or continuing
abstracts shall be turned over to the
county treasurer. h q
Consequently I find that the county
is entitled to Judgment in accordance
with the stipulation of facts entered
into.
County Judge.
Certified Copies.--I have been unable
to- find any statute authorizing the
county judge to make any charge for
the furnishing of certified copies Of his
records, and notwithstanding the fact
that a few decisions may be found au-
thorizing county, under similar cir
cumstances, to recover from the officer
the unauthorized fees collected, never
theless, am Of the opinion that the
county has no interest in said fees, but
that the same may be recovered by the
parties who paid same to him. as other
wise the officer might be called upon,
after payment of said fees to the coun-
ty, to again pay same to the parties
from whom the original collection was
made.
Marriage License Fee.-Section 4039
of the revised codes provides that he,
the county judge, shall be entitled to a
fee Of $1.00 to be paid by the party
applying for the same. AS I view it,
the word tentitled'' means he may,
not must, collect such fee, but he may
waive that right if he sees fit. In
Thompson vs.. Thompson, 10 Southern,
247, the word " entitled is defined as
meaning to give title, right or claim,
and in Reed vs.. Union National bank
Of Winchester, 20 Graten, 719, it is held
that the use Of the word "entitled" in
the constitution, article IL, section 1,
cannot be construed as preventing him
from waving the right to which he is
entitled. is
Sec. 1854 Of our code provides that
clerks of the district court shall charge
and collect the following fees: and sec
ton 1897 uses the identical words in
reference to the register of deeds, and
both of said sections provide. for the
keeping Of a fee book and payment to
the county treasurer.
On the other hand, section 5000 pro.
vides that the sheriff, who personally
retains the fee collected by him, 81 shall
be entitled to charge and receive the
following fees:' and the same word
ing is used in reference to the coroner,
register, notaries public, jurors and wit
nesses in sections 1907, 1868, $500, 2elO,
2614 and 2615, all Of whom, without
Question. are entitled to retain the fees
SD collected. Is Is: &,
Under these circumstances I moi
tn eopinion that the intention of the
legislature was that the county Judge
shold retain marriage, license fees
collected by him, and consequently
judgment in this case should be in ia.
vor Of the defendant.
County Auditor
This matter comes up on demurrer
to the answer, and consequently do
not consider it necessary to cover in
detail the different fees ca11ed in nnns
tion by the pleadings.
The above Office was created by the
laws Of 1887. The first provision as
to certifying to deeds by the auditor
was section 81, chapter 1872 of the laws
OF 1890, and this provided that the aud.
ltor should retain said fees. Under
chapter 2of the laws Of 1891 the aud
itor was also authorized to retain said
fee. Chapter 1876 Of the laws of 1897
provided that the auditor should con-
vert said fees into the county treasury.
Chapter 1856 of the laws Of 1889 provid-
ed that he should retain same up TO
the maximum salary allowed by law.
Chapter Sc Of the laws of 1899 provided
maximum salary Of $4,000 per year.
There was no repeating clause on that
enactment; consequently in my opinion,
unde rthis law the county auditor could
retain the fee received for certifying
deeds, providing the same, added to
the specific salary provided for, did
not exceed $4,000 in any one year.
Chapter IA of the laws of 1901 pro-
vlded for the retention Of said fees
absolutely, and chapter 219 of the laws
Of 1907 was to the sam eeffect. The
above chapter 219 was approved March
10, 1907, chapter 20 Of the laws of 1907
was approved, which act provided for
the salary Of the county auditors, and
the last clause reads as follows: HAll
money received as fees for certifying to
abstracts or deeds in excess of hte sal
ary as limited by this article shall be
paid by the county auditor at the end
Of each month into the revenue fund of
the county," The above mentioned
chapter 70 increased the maximum com
pensation of county auditors from
50, 900 to $4,000.
l have been unable to construe this
statute SO as to give any meaning
whatever to the last clause thereof as
above quoted by constituting the words
the salary as limited by this article''
to mean his salary Gin the case ON the
treasurer Of Sargent county, 81, 800 per
annum, think) as limited by this ar.
ticle and the article tthe' and not the
pronoun his' preceding the word
salary has led me to the conclusion
that the words "the salary as limited
by this article'' should be construed as
meaning the maximum salar vas limit.
cd byb this article.
If nv construction of tho above ST.