The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-10-13

ton is and has remained a public fund
and the balance unexpended lis a bal
ance of one of the public funds OF the
state for which the defendant Is ac-
countable to the state.
q. That the legislature, in provid-
ing this fund and authorizing Its use
for declared purposes and constituting
the incumbent OF the office of state
superintendent Of public instruction
the paymaster authorized to dis
burse from the fund for certain du-
ties for which he was allowed to en-
ploy clerical assistants. did not there
by constitute the officer the owner of
the fund The right Of use conferred
was the right to disburse in payment
for such service germane to the duties
of the Office.
3, That the legislative intent must
be clear and the statute must evil
dence q plain intent to grant public
funds to a public officer occupying a
salaried office, otherwise the fund re-
mains the property Of the state, con-
ceding without deciding the authority
of the legislature to give to the officer
the ownership OF such funds.
4. That the collection Of the moneys
by the defendant under color OF office
being admitted, the burden Of estab-
fishing title thereto in the individual
is upon such public officer claiming
to own the fund and not upon the
state to establish want Of ownership
on the part of the state officer.
5. A public officer cannot increase
his salary by performance OF official
duty under claim OF it's performance
after regular closing hours. nor by
himself performing office duty in lieu
of employing office assistants author
lied by statute. And the officer can
make no claim to public moneys a
necessity for the expenditure Of which
is avoided by his own performance of
official duty.
8. There being no plain statutory
intent that the fees in question should
belong to the officer as emoluments of
Office, any practical construction of
such statute by the previous incum-
bent Of the office and OF other state
executive officers is immateriaI. as
such construction cannot be permitted
to contradict, override or supplement
the plain terms of the statute.
Z. That the salary attached to q
public office is but an incident OF the
office, and an increase In official duty
does not necessarily imply or exact
an increase OF salary.
s. That under the statutes Of this
state sections 420 and AL Revised
Codes of 1905, formerly existing as
section S5S Revised Codes of 1895, Sec
ton 50, 101 and 10s of the Code of
1905, In force throughout defendants
incumbency of this Office. 1t was the
duty OF the defendant at a no later
date than the expiration Of each term
OF Office, to account to the state and
cover into the state treasury any ball
ance remaining OF the fees collected
from this source during such two-year
term Of office.
8. Under the above holding that
the state is the owner of the moneys
in suit ans that the defendant must
account and Is liable therefor to the
state on hsy official bond. the consti-
tutional question that would be in
volved by a contrary construction Of
the statute is without the case and Is
not passed upon.
10. This balance in suit are fees
and, profits arising from said office
mentioned In, covered by and within
the meaning OF section 81 of the state