
    State, ex rel. Luther P. Ludden, appellee, v. Silas R. Barton, Auditor, appellant.
    Filed February 28, 1911.
    No. 16,821.
    Schools: Normal School Board: Compensation oe Secretary. Evidence of a contemporaneous and long-continued construction by the executive, legal and legislative departments of the "state pf gections 2, 3 and 5, subd. XIII, ch. 78, laws 1881, allowing compensation to be paid to tbe secretary of tbe board of education of tbe state normal schools for bis services as such, together with an appropriation by the legislature for that purpose, with the full knowledge of the fact that a member of the board was holding the office of secretary, held sufficient to authorize the auditor to approve such a claim and draw a warrant for its payment.
    Appeal from the district court for Lancaster county: Albert J. Cornish, Judge.
    
      Affirmed.
    
    
      Arthur F. Mullen, Attorney General, for appellant.
    
      T. J. Doyle and G. L. De Lacy, contra.
    
   Barnes, J.

This proceeding in mandamus was commenced in the district court for Lancaster county to compel the auditor of public accounts to approve a voucher for the compensation of, and expenses incurred by, the relator from April 1, 1909, to Nov. 1, 1909, as secretary of the board of education in control of the state normal schools, and to issue a warrant for the payment of the same. The relator is a member of the board of education of the state normal schools, and the duly elected secretary of that board.

The petition, in substance, alleges that by reason of the establishment of several normal schools in this state, and the large enrolment therein, and on account of the largely increased appropriations thus made necessary, amounting to over $400,000, and for other reasons, it has become necessary for the secretary of the board of education to perform a large amount of labor of a clerical and accounting nature, which has been performed by the relator under the rules of the board; that, in payment for his services so rendered, the board of education allowed him at the rate of $25 a month, and the expenses incurred by him in performing his clerical duties; that there is due him therefor the sum of $175, and that there is an unexpended legislative appropriation made for that purpose upon which the warrant may be drawn. The answer denies the authority of the board of education to allow any compensation to'the secretary, and denies that any appropriation has been made to pay for such services. The court found in favor of the relator, and ordered a peremptory writ to issne, from which judgment the respondent has appealed.

The evidence shows that the establishment of the normal school at Kearney, together with the largely increased attendance at the Peru school, has vastly increased the volume of business required to be transacted by the board in order to keep a proper control, regulation and inspection of the financial affairs of these institutions. The appropriations made by the. legislature for the biennium amount to more than $400,000. These appropriations are paid out under the direction of the board, and the vouchers are prepared and inspected by its secretary. In addition to the bookkeeping required to take care of these large expenditures, both schools have a number of other funds derived from deposits made and fees paid by the students, disbursements from which are made by and under the direction of the presidents of the respective schools. In each of these funds an account is kept with the individual student. Triplicate receipts are prepared; one given to the paying student, one retained at the school, and one sent to the secretary Avith a monthly report. These monthly reports with vouchers attached are checked over and verified' in the secretary’s office. The- relator testifies that in order to do this au adding machine is used, and that he also procured the assistance of clerks and stenographers, who were paid by him from his personal funds. This system was devised and put in operation by the board of education some four or five years ago as a check upon the cash funds of the different institutions, and we have no doubt that it tends to a careful and efficient administration of their affairs. It is also sIioavu that a large correspondence is conducted by the secretary, and he testifies that he has made no charge for keeping the minutes or for duties imposed by tbe statute as a part of his official duties. It also appears that no office was furnished relator by the board, and he was compelled to use rooms in his own house in which to have this work performed; that the adding machine belonged to the state, but the typewriters used were his individual property. There is testimony by another member of the board that the amount represented by the voucher, in his opinion, was less than the necessary and required work would have cost if it had been done by others.

Prom the evidence in the case, we are thoroughly convinced that the work has been well performed by the relator and his assistants; that it was necessary, and has saved the state much more than the amount of the relator’s claim. The respondent has not attempted to controvert the foregoing facts, but takes the position that the payment of the relator’s claim is expressly prohibited by the provisions of sections 2, 3 and 5, subd. XIII, ch. 78, laws 188' ' nn. St. 1909, secs. 11721,11722,11724) which read ar mows: “Section 2. The members of the board of eduion shall annually elect a president and a secretary rom among their own number, and the state treasurer shall be the treasurer of the board by virtue of his office. Section 3. It shall be the duty of the secretary to keep an exact and detailed account of the doings of the board, and on the first day of January of each year he shall transmit to the governor a report of all expenditures made during the preceding years, vouchers for which shall be kept on file in the office of the secretary and open to the inspection of the governor, auditor, and members of the legislature. Section 5. The board of education shall receive no compensation for their services, but shall be reimbursed actual expenses incurred in attending upon meetings of the board.”

It is argued that the statute directly prohibits the board from receiving any compensation, and therefore it is apparent that no right exists in the relator to the compensation in question. On the other hand, it is contended that, although the board is prohibited from receiving any compensation, still there is no prohibition against the payment of compensation to its secretary, and since the claim filed by the relator is for services performed by him, not as a member of the board, but as its secretary, he is entitled to have it allowed.

In Territory v. Norris, 1 Or. 107, the board of commissioners, selected to control the construction of the state penitentiary, appointed one of its members to act as secretary, and paid him $250 therefor. A suit was brought to recover the money back. The territorial supreme court held that the board had authority to employ a secretary; that the duties of the members of the board and its secretary are distinct, but not incompatible, and can be performed by the same person, and, if a member of the board had been selected and had served, he had a right to his reasonable compensation. In this state, while the law requires the- board to elect one of its members as its secretary, still the duties of the board and the secretary are separate and distinct. He acts in a dual capacity while serving as a member of the board and in the performance of his duties as its secretary. He is not entitled to any compensation for performing his duties as a member of the board; but, while performing the' distinct, different and separate duties which devolve upon the secretary of the board, he is not acting, strictly speaking, as a member of that body. He is simply its agent or servant, and the law nowhere expressly provides that the secretary shall receive no compensation'for the performance of his duties. It therefore seems clear that the prohibition invoked by the respondent, if it exists at all, arises by implication or by a construction of the provisions of the sections of the statutes above quoted; To aid us in construing those provisions, we have the contemporaneous construction adopted by the legislature, the auditing department of the state, the governor, the legal department, and of the board itself, which has continued without interruption to the present time. It appears from the public records, of which we may take judicial notice, that when the state normal school at Peru was established, and the board of education created by the act of June 20, 1867 (Gen. St. 1873, ch. 48, sec. 12) provision was made to pay for the services of the board at a specified rate per day, as well as to pay its expenses. In 1881 this provision for compensation was repealed, and the law in force was enacted. Prior to that time, and for each of the two preceding bienniums, the legislature had appropriated the sum of $600 to pay the expenses and per diem of the board of education, and, although that compensation was abolished by the act of 1881, it was understood that the necessary expenses of the board, including compensation for its secretary, must be met, and therefore the legislature immediately thereafter, and at the same session, increased the appropriation for that purpose to $800, and at the following session that amount was further increased to $1,000. The legislature at the 1893, 1895, 1897, 1899, 1901,. and 1903 sessions appropriated $800 per biennium for that purpose. In 1903 provision was made for the construction of a state normal school at Kearney. In 1905 two schools were in operation, one at Peru, the other at Kearney, and an $800 item appears for expense of the board in the paragraph devoted to the Kearney normal school in the general appropriation bill, and a like sum in the paragraph which refers to the Peru normal. In 1907 and 1909 separate appropriations were made for the expenses of the state normal board; $1,900 being appropriated in 1907, and $2,000 in 1909.

Pursuing another line of investigation, the vouchers filed in the office of the state auditor since the change in the law in 1881 show that in each of the years 1881, 1883, 1885 and 1886 an allowance of about $50 was made to the secretary of the board for salary. No further claims for salary, as such, were filed until 1897, but the compensation of the secretary was paid under designations, such as expenses, etc. After the year 1897, and until December, 1904, salary claims of the secretary at the rate of $50 a year were filed and allowed. No claim for salary was filed from December, 1904, until October, 1906, because the secretary, during those years, was the state superintendent of public instruction, who is prohibited by the constitution from receiving any compensation, other than that provided thereby, for any purpose whatsoever. In 1906 the present secretary was elected, and thereafter filed a claim, which was allowed, for clerical work for the board. From that time until the present claims have been filed by the relator and audited and allowed for “services as secy./’ “clerical services,” “use of typewriter,” “office service,” etc. There is also testimony that, when the legislature of 1909 was considering the matter of appropriations, the relator went before that body and gave it a full statement of the items and amounts necessary to conduct the business of the board, including compensation for its secretary, as claimed.

. In view of the foregoing, we are of opinion that the contemporaneous and long-continued construction of the statute by the officers of the state so as to warrant the allowance and payment of compensation to the secretary of the board, and which has been concurred in by the legislature, should be adopted by the court as the meaning of the present law. In this connection it is proper to say that there seems to be no attempt on the part of the relator to obtain more than a fair equivalent for the services rendered, and not the slightest evidence of any moral turpitude. It is evident that the work which was light and trifling in amount in 1881, when the statute in question was enacted, has grown with the growth of the state, and that the law should have long ago been amended so as to provide a specific salary for the increased work which the secretary of the state board' of education is required to perform. It seems, however, that the legislature has seen fit to adopt a different course and make sufficient and specific appropriations for the payment of a reasonable compensation to the secretary at each of its biennial sessions, and we are of opinion that those appropriations constitute sufficient authority for the payment of the relator’s claim, and are as effective for that purpose, while continued, as a general law upon that subject. By this we do not abandon the rule that a public officer must perform all of his official duties for the compensation provided by law. Indeed, it may be said that the relator’s compensation as fixed and allowed by the board and approved by the legislative appropriation is his compensation as provided by law, and therefore this case is within'that rule.

For the foregoing reasons, the judgment of the district court is

Affirmed.

Eeese, C. J.,

dissenting.

I entertain no doubt of the justice of relator’s claim, and that he ought, in fairness, to be paid the small compensation allowed him by the board. Neither do I doubt the power of the legislature to provide for its payment by a proper appropriation. Indeed,. I believe it to be the duty of that body to do so. But the question with me is: Has it set aside any portion of the public money -for that specific purpose? It is provided in section 22, art. Ill of the constitution: “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law.” In State v. Wallichs, 12 Neb. 407, Judge Lake, in writing the opinion of the court upon this clause, says: “In construing this provision of the constitution, the rule that the words are to be given their usual, ordinary meaning must not be disregarded. . By this rule the term ‘specific appropriation’ means a particular, a definite, a limited, a precise appropriation.” This language is quoted with approval in State v. Wallichs, 16 Neb. 679, and it is also held in State v. Wallichs, 15 Neb. 609, that “there can be no implied appropriation of money by the legislature. The auditor has no authority to draw a warrant upon the treasury except in pursuance of a specific appropriation.” This, I think, has been the uniform holding of this court. I cannot believe that a “specific appropriation” has been made to pay this claim, however just it may be. , > - • ......- ■ -

Letton, J.,

dissenting.

While I agree with what is said in the opinion with respect to the value of the services rendered by the relator, I must dissent from the conclusion that a plain disregard by an officer of the state of the provisions of a statute, if continued for a long period of time, may mala1 that lawful which by express terms is prohibited, and thus defeat the legislative purpose. Neither can I agree that where the members of a board are expressly prohibited from receiving compensation as such members, and the secretary is required by the statute to be a member of tlx1 board, the statute may be evaded by providing a salary for the secretary.

It is a well-established principle of law that an officer is not entitled to compensation except where the same is allowed or awarded him by a constitution or a statute, that the compensation allowed by law for duties performed in an official capacity are paid in full of all official services, and that he is not entitled to receive any additional or further compensation for services pertaining to his office. Mechem, Public Officers, secs. 855, 856; Throop, Public Officers, secs. 446, 477, 478.

This has been the rule in this state ever since the question first came before this court. State v. Silver, 9 Neb. 85; Bayha v. Webster County, 18 Neb. 131; Stoner v. Keith County, 48 Neb. 279. Judge Sullivan says in the opinion in State v. Meserve, 58 Neb. 451: “A public officer must perform every service required of him by law, and lu1 must look to the statute for his compensation. If it provides none, then the services are gratuitous. State v. Silver, 9 Neb. 85; Bayha v. Webster County, 18 Neb. 131; Adams County v. Hunter, 78 Ia. 328; City of Decatur v. Vermillion, 77 Ill. 315; Troup v. Morgan County, 109 Ala. 162; Sampson v. Rochester, 60 N. H. 477. A person accepting a public office takes it with its burdens, and whenever those become insufferably oppressive he may resort to that excellent and adequate remedy which a wise legislative foresight has provided, viz., a letter of resignation addressed to the proper authority.” State v. Eskew, 64 Neb. 600; O'Shea v. Kavanaugh, 65 Neb. 639; Nuckolls County v. Peebler, 65 Neb. 356; Red Willow County v. Smith, 67 Neb. 213; Power v. Douglas County, 75 Neb. 734.

Under the statute, the secretary of the board is a public officer, and even without the express prohibition against members of the board receiving compensation, there being no fee or compensation provided by law for his services as such officer, he is not entitled to any compensation therefor. This can certainly be no less so when the payment of any compensation to a member of the board is directly prohibited. In Moore v. Independent District, 55 Ia. 654, the facts were that a school board, whom the statute prohibited from receiving any compensation, employed one of their own members to superintend the construction of a schoolhouse, and the action was brought to recover on a school order given him for such services. The court held that, the work being a part of the duty of the board of which he was a member, the plaintiff could not recover. See, also, to the same effect, Weitz v. Independent District, 87 Ia. 81.

It may be said, also, that, if the board can employ each member to render extra services, such a construction of the statute might become dangerous under other circumstances and with less careful and prudent officers. It is true that an officer may perform services foreign and in nowise appertaining to or interfering with his official duties, and may receive compensation therefor (Cornell v. Irvine, 56 Neb. 657); but it is clearly pointed out by the supreme court of the United States (Converse v. United States, 21 How. (U. S.) 463; United States v. Brindle, 110 U. S. 688) that the test in such cases is whether the duties of the one occupation or office are so diverse and different from those of the other that they cannot possibly fall under the same head.

As to the claim of contemporaneous construction, I am unable to take the view that the facts in this case bring it within the' purview of this doctrine. When in 1881 the legislature repealed the law which allowed compensation to the members of the board and prohibited such payments in the future, this was a clear and unmistakable manifestation of the legislative will. It rendered the former practice unlawful, and no department or officer of the state government was at liberty to set- it aside by construction. State v. Cornell, 60 Neb. 276. In Illinois the state treasurers had for nearly 40 years retained certain fees, properly belonging to the state, under their construction of a statute, but the supreme court of that state held that the statute was plain and unambiguous and hence there was no room for construction. Whittemore v. People, 227 Ill. 453. In 2 Sutherland (Lewis) Statutory Construction (2d ed.) sec. 473, it is said: “Long usage is of no avail against a plain statute; it can be binding only as the interpreter of a doubtful law and as affording a contemporary exposition.” In section 474 we find the following: “If the meaning of a statute is clear and unambiguous, a practical construction inconsistent with that meaning will have no weight and will not be followed. A practical construction will not be followed when it would defeat the obvious purpose of the statute.” Of course, if the evidence showed that an appropriation was made to pay a salary to the secretary, this would authorize the payment, being the last word of the lawmaker. It was evidently the object and purpose of the legislature in changing the law to constitute the position of member of the board one of dignity and honor, so that a person accepting it would do so, not for financial gain, but from a laudable, unselfish and patriotic desire to render valuable services to the state and to the cause of education. The statute is plain and unambiguous, and consequently the doctrine of contemporaneous construction is not applicable.

Sedgwick, J., concurs in this dissent.  