
    STATE v. E. T. SANDBERG.
    
    July 30, 1926.
    No. 25,709.
    Statute forbids town official from collecting for upkeep of his motor used in town business.
    G. S. 1923, § 1096, which forbids public officials from being interested in contracts which they make, prevents a town supervisor from using his automobile in looking after town business and collecting from the town the upkeep, maintenance and expenses thereof while so used.
    Towns, 38 Cyc. p. 633 n. 36.
    Defendant was convicted in the district court for St. Louis county, Hughes, J., of the crime of being wrongfully interested in a payment voted by the town board of which he was a supervisor.
    Certain questions were certified.
    
      McMahon é McMahon, for defendant.
    
      Clifford L. Hilton, Attorney General, James H. Markham, Deputy Attorney General, Mason M. Forbes, County Attorney, and Philip M. Stone, Assistant County Attorney, for respondent.
    
      
       Reported in 209 N. W. 943.
    
   Wilson, C. J.

Defendant was a supervisor in the town of White in St. Louis county. He was indicted and convicted of the crime of being' wrongfully interested in a payment voted by the town board. The item was $85 for “auto hire” included in a claim verified and filed by defendant. He received warrants for similar claims from April, 1925, to January, 1926, inclusive.

Upon the trial the court excluded an offer of proof embraced in the question certified to this court under authority of G; S. 1923, § 10756, which is in substance:

“Would it be material defensive matter for the defendant to prove that the item of $85.00 for automobile hire was made up for the upkeep and maintenance and expenses of defendant’s automobile wbicb he used for tbe month of January for tbe town board?”

Tbe fact that defendant could have exactly tbe same amount of maintenance for each month for 10 months is tbe best evidence that defendant’s contention herein is not sound and cannot be founded upon reason or principle. Obviously tbe transaction involved a contract in wbicb defendant was interested in violation of G. S. 1923, § 1096. It is not included in tbe exceptions as stated therein. Tbe spirit and letter of tbe statute aré against tbe theory of defendant that be can measure up to a certainty tbe actual value of wear and tear on tires and general depreciation in value of tbe car that is necessarily included in maintenance. Nor can be know bow much expense of oil should be included in tbe particular service, granting that be might properly compute cost of gas. Defendant’s position is contrary to our previous holdings. State v. Danculovic, supra, page 359. A supervisor may be paid “for contingent expenses necessarily incurred for tbe use and benefit of tbe town.” G. S. 1923, § 1093. But G. S. 1923, § 766, provides that tbe claim must show that tbe money therein charged was actually paid for tbe purposes therein stated. But it does not follow that such an officer may recover for tbe use of bis own car. State ex rel. Johnson v. Smith, 84 Minn. 295, 87 N. W. 775; 2 McQuillin, Mun. Corp. (1911 ed.) § 522, p. 1137; McCumber v. Waukesha County, 91 Wis. 442, 65 N. W. 51. Assuming, if we may, that defendánt was attempting to furnish bis car to tbe county at actual cost and without profit to himself, yet there is a contract between him and tbe town wbicb is prohibited by tbe statute. Tbe absence of profit does not change tbe meaning of tbe statute. There must be no chance to stop and consider tbe possibility of profit. It is- tbe intent of tbe statute to forestall any question of a delicate nature and to prevent unfavorable comment on transactions wbicb may bring tbe administration of public affairs in disrepute. We find no difficulty in construing tbe legislative intent wbicb we think is clear. It follows that tbe inquiry is answered in tbe negative.  