The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1913-10-11
ALL FEES BELONG TO THE COUNTY:
new DECISION ON THE QUESTION
Supreme Court Makes Finding in Action Brought bv the
States Attorney of Villa ms County for Accounting
-Mandamus is Refused. 49,

-ManQdrnus
Under a decision of the supreme
our made today all fees collected
by county auditors belong to the
county. Statutes have been provided
with express salary provisions, while
auditors to nve into the county
treasury fees they may collect.
This ruling is made in the case of
II. W. Braatlein. states attorney OF
Williams county. against the Will
liams board Of county commissioners.
He sought to compel that board to
bring suit against the auditor of Will
lians county to make an accounting,
the commissioners refusing to do so.
The mandamus applied for was not
granted. it being held that such order
would be premature in view Of the
fact that a definite decision on the
fee question had Just been made and
no sufficient time having been allowed
to permit of action by the commits
sioners,
Association Fought Case.
The County Auditors association
fought the action of the states at
torney, contending that fees involved
did not have to be turned over to the
county treasurer.
The syllabus follows:
The state of North Dakota upon
the relation of H. W. B~raatelien. as
states attorney within and for Will
iiams county. North Dakota, plaintiff
ley. c. o. Borstad. C. j. Helle, c. o.
Houshlum. Frank Banks as county
commissioners within and for VIII
.:iams county, North Dakota, defend
ants and respondents.
l. When a county auditor retains
fees which belong to the county and
fails to account for them and pay
them to the county treasurer. aad
the board Of county commissioners
n%eglects and refuses on demand to
adjust the o Of such fees and
determine the amount thereof as re-
quired by section 2430, revised codes
Of 1905. a resident. taxpayer and citi-
zen Of the county is qualified to act
as a relator in proceedings in the
name Of the state to compel action by
the county commissioners.
2. The adjustment Of such fees
by the county commissioners when
not paid into the county treasury is
a ministerial duty and mandamus will
the same. but will MOI lie to compel a
determination of n particular sum
due or not due the county from the
auditor.
3. Neither the criminal prosecu-
ton nor the removal of county Off
Gals who fail to perform their duties
furnishes an adequate remedy to the
public or to taxpayers of the county
to which funds un%accounted for be-
long, and hence are not the other
adequate remedies which inhibit the
maintenance of proceedings to man
damus the commissioners to adjust
such accounts.
4. As to whether the states attor-
ney Of a county can bring an action
against the auditor to collect fees re-
tanned by him which belong to the
do by the board Of county commits
sioners. is not decided.
5. BY chapter 20, laws Of 1907. fix
ing the salary of county auditors. the
different counties are classified with
reference to the assessed valuation
of the property in the counties Of
each class. and this statute reads that
no county auditor shall receive more
than - dollars for his personal
depending on the valuation of the
roperty in his county. Held. that this
enactment fixes the salary of the
county auditor at the sum named as
applyin- to the class in which his
county belongs.
s. Chapter 20. supra, was enacted
to fix the salaries of all the county
that subject alone and provides that
all moneys received as fees for GER
tifying to abstracts or deeds in excess
of the salary as thereby limited shall
be paid by the county auditor at. the
end Of each month into the revenue
fund of the county. Held. that this
requires an accounting by the audi
tor. at the end Of each month. of such
fees. and that II the amount exceeds
his salary for the month it is his duty
to pay the excess into the revenue
fund of the county.
z. Chapter 219, laws Of 1907. was
enacted for the purpose OF enforcing
the payment Of taxes before the trans
fer Of real property, by requiring a
certificate Of the county auditor as
t o the facts. before DEEDS deeds " with nscee +
and as an incidental matter provided
for the fee to be collected by the
county auditor for such certificate
and that the auditor might retain such
fee as compensation for making his
certificate. Held. that in view OF the
fact hat chapter 70. supra. requir-
ing such fees to he turned into the
county treasury. was enacted Ny Sne
legislature subsequent to h enact
ment OF said chapter 219. the history
of the legislation on the subject, and
other considerations set forth in the
opinion herewith. the requirements Of
chapter 20 CONTROL; and such fees be-
long 10 the coutny and 1t is the duty
Of the county auditor to account for
the same monthly and turn any sum
in his hands received therefor In ex-
ces. ~ Mis- .alarv for the month into
the county treasury.
8. The provision regarding turn
ing such fees into the county treas
ury, found in chapter 70. is con-
strued to require such fees received
in excess Of the salary fixed for the