The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1911-10-13
clerical assistance as he may deem
necessary and competent for the read
Ing of teachers answer papers and
work connected Herewith"

Ing of teachers answer papers and
work connected Herewith"
And that to do said work the state
superintendent may appoint such
clerical assistants as he may deem
necessary. but the expenditure there
for shall not exceed in the aggregate
the sum annually collected from the
applicants for county certificates for
this purpose" During defendants in
cumbency of said Office. there was col
lected from this course $17.714. Of
which s11.316 was disbursed, leaving
unspent $5.59S. This balance is re-
OF ownership found upon his claims,
VIZ: (A) That the fund was intended
Tor a private fund and that any ball
ance thereof remaining belonged to
him individually. (B) That the right
to use. necessary carried with it the
ownership of the fund, the statute not
recurring the same to be covered into
therefor from the officer. Co That
the. statute creating the fund pre-
scrlbed new and additional duties for
the office and that the legislative intent
should be that the balance remaining
OF the fund should belong to the Off
Ger as compensation for such added
iutIes of office. fD) That under the
pended. the use the defendant per-
sonally performed the duties during
times when not otherwise necessary
engaged in the performance of his Off
c1al duties. the defendant was entitled
70 tne reimbursement that otherwise
| would have been paid to clerical as
sistants, and that because the fund
tions. instead Of expended for clerical
assistance, defendant is entitled to said
| balance remaining of said fund, (E)
Ihat the practical construction of the
statute In question by such officer and
ms predecessor in the various execu-
i've state officers have always been,
that said balance of the fund belong
ed 10 the officer and such construction
Is urged as controlling. (F) That
me allowance of such additional com
pehsat1on does not contravene the
terms Of section 81 of the state con-
stifution against the increasing or de-
creasing of official salary during the
period for which the officer shall have
! been elected.
Under the above it is held that the
1und created by said one dollar paw
ment at all times since collection is
and has remained public fund and
the balance unexplained in balance
or one Of the public funds of the state.
for which the defendant Is accounta- :
| ole TO the state.
That the legislature in providing
thls fund and authorizing its use for
the declared purposes and constituting
the incumbent Of the office of state
superintendent Of public instruction.
the paymaster authorized to disburse
from the funds for certain duties for
which he was allowed to employ
clerical assistants. did not thereby
eohstltute the officer the owner of the
fund. The right of use conferred was
the right to disburse in payment for
sucn service germane to the duties
of the Office.
That the legislative intent must be
ciear ana the statute must evidence a
to public officer occupying a salaried
office, otherwise the fund remains the
property of the state. Concedine
without deciding the authority Of the
legislature to give to the officer the
ownership Of such funds that the COL
lection of the money for the defend
ant under color or Office being ad-
mltted, the burden of establishing title
thereto In the individual is upon such
pubic officer claiming to own the
,und and not upon the state to estab-
lish want Of ownership in the part OF
the state officer.
\ A public officer cannot increase his
salary by performance Of official duty
under claim Of its performance after
regular closing hours. nor by himself
performing office duty in lieu of en-
statute and the officer can make no
CAIN TO public moneys necessity for
the expenditure of which is averted by
ms own performance Of official duty.
mere being no plain statutory in
tent that the fees in question should
peiong to the officer as emoluments of
once. any practical construction Of
such statute by a previous Incumbent
OF the office and of other state execu-
i've omces is t-:lmaterial. as such con-
sIrletlon cannot be permitted to con-
tradlct. override or supplement the
plain terms of the statute
:. That the salary attached to a pub
nc once is but an incident Of the Office
ana an increase in official duty does
not necessarily imply or exact an in
crease of salary.
That under the statutes of this state
Sectlon 42O and 421. Revised Cod es
1905. formerly existing as 35s. Revised
Codes 1925. Section 9S. 1O1, 1O3 Of the
code of 1905. in force throuehout do
1endant's incumbency of this office. II
was the duty of the defendant at a NO
!ater date than the expiration Of each
term OF ottice to account to the state
! >''>'t III " luG state treasury anv
balance remaining of the fees collected
from TINS service during such two
years term of office.
Under the above holding that the
state is the owner of the moneys in
suit and that the defendant must ac-
count and is liable therefor to the
state on his official bond. the constitu-
tlonal question that would be involved
ny contrary construction of the stat
ute is without the case and is not
passed upon.
This balance in the suit are fees and
profits arising from said Office men
toned Is covered by and within the
meaning of section 81 of the state
constitution requiring the same to be
paid into the state treasury
Appeal fro mdistrict court of Grand
FORKS county. Templeton. ].
Affirmed opinion by Goss ]. Morgan.
c. j.. concurs: Burke. j.. concurs sne.
cially. Fisk and spalding. ~. dissent
| Gray and Meyers. attorneys for the
defendant and appellant.
00Il0l llT1n nll