Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-10-13

Last evening the supreme court of
North Dakota handed down decision
IN the famos case of the State VS..
Walter l.. Stockwell. affirming the de-
cision of Judge Templeton in the low
er court and sustaining the verdict
that the former superintendent of
public instruction must refund to the
state the fees collected by him while
holding public office. The syllabus of
the decision as handed down is as
follows:
State of North Dakota, plaintiff and
respondent, VS..
Walter L. Stockwell. defendant and.
appellant; the United States Fidelity
and Guaranty Company, a Corpora
ton, and the Northern Trust C>m.
pany, corporation, defendants.
Chapter IS of the Session Laws of
1901 (Secs. 1858 to 876, Code 19O5) pro-
vided for the payment of a two dollar
fee for each applicant for teachers
certificate aid that one dollar thereof
should be transmitted to the superin-
tendant of public instruction ITO be
used by him for such clerical assist
ance as he may deem necessary and
competent for the reading of teach
ers' answer papers and work con-
nected Herewith" and that to do said
work the state superintendent may
appoint such clerical assistants as
he may deem necessary, but the ex-
penditures therefor shall not exceed
in the aggregate the sum annually
collected from applicants for county
certificates for this purpose" During
defendants incumbency of said Of
fee there was collected from this
source $17,714, of which $11,816. was
disbursed, leaving unexpended 1888.
This balance is retained by defendant
under his claim of ownership founded
upon his claims, viz: (a) That the
fund was intended as private fund
and that any balance thereof remain
ing belonged to him individually.
I'd That the right to use necessarily |
carried with it the ownership of the |
fund, the statute not requiring the
same to be covered into the state
treasury nor an accounting therefor
from the officer. (c) That the statute
creating the fund prescribed 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 officer as
for such added duties
of office. (d) That under the facts
that the balance remains unexpended
because the defendant personally per-
formed the duties during times when
not otherwise necessarily engaged IN
the performance of his official duty,
the defendant was entitled to the re-
that otherwise would
have been paid to clerical assistants;
and that the fund was saved by MS
own personal exertions instead OF
amended for clerical assistants de-
is entitled to said balance re-
naming of said fund. (e) That the
practical construction of the statute
In question by such officer and his pre-
1ecessor and the various executive
state offices has always been that
said balance of the fund belonged 10
the officer and such construction IS
urged as controlling. (f) That the
terms of Sec. "a of the state con-
stitution against the increasing or
decreasing of official salaries during
the period for which the officer shall
have been elected.
Under the above it is held: i
(1) That the fund created by SAID
one dollar payments at all times SINCE
collection is and has renamed pun
lie fund and all the balance unex-
pended is a balance of one OF the
3ublic funds of the state for which
The defendant is accountable to the
state.
(2) That the legislature in provid-
ing this fund and authorizing Its use
for declared purposes and constituting
The incumbent of the office OF state
of public instruction
the paymaster authorized to disourse
from the fund for certain duties for
which he was allowed to employ clerl-
cal assistants, did not thereby con-
stituto tho officer the owner of the