Dull v. Mammoth Mining Co.

79 P. 1050, 28 Utah 467, 1905 Utah LEXIS 48

• Court: Utah Supreme Court
• Decided: March 10, 1905
• Docket: No. 1590
• Status: Published

Opinion

McCARTY, J..,

after stating the facts, delivered the opinion of the court.

The first question presented for our consideration by this appeal is, was respondent, while in the discharge of the duties imposed upon him as offical stenographer a public officer? We think this question must be answered in the affirmative. The statute provides that ‘ ‘ the judge of a district court may employ and contract with a stenographer to report the proceedings of such court in the manner and under the limitations ’ ’ therein provided. The statute prescribes the duties of the stenographer, and further provides that his fees shall not exceed $8 per day for reporting, and ten cents per folio for transcribing the testimony taken. Sess. Laws Utah 1899, pp. 111, 112, c. 72. The statute also provides that the stenographer shall be paid his per diem and mileage out of the public treasury. His contract is made with the judge, who acts in this matter for the State, and the State only, and not in any sense as a private individual. The acts of the stenographer in the performance of his duties are official in character, and his stenographic notes are filed with the clerk of the county in which the services are performed, and become a part of the public records. The respondent in this case, in pursuance of the statutory provisions referred to, presented a claim to Juab county for the per diem allowed by law for reporting the case mentioned, which claim was paid by said county. The fact that respondent was appointed for the purposes of the one case only constituted him no' less a public officer than if he had been appointed to serve during the pleasure of the judge who made the appointment. Throop on Public Officers, section 3; Mechem on Public Officers, section 8. Respondent, having accepted the appointment of official stenographer, -and received from Jnab county the per diem allowed by law for the 23 days ’ work performed by him in reporting the ease, is estopped from denying that he was the official stenographer. Buck v. City of Eureka (Cal), 42 Pac. 243, 30 L. R. A. 409.

The authorities all hold — in fact, the principle is 'elementary — that a public officer can claim only such fees and compensation as are fixed by law for services which the law makes it his duty to perform, and that a contract to pay extra compensation is against public policy and void. 9 Cyc. 495; Mechem on Public Officers, 374; Throop on Public Officers, 477; 23 A. & E. Encyc. Law (2 Ed.), 391. In 15 A. & E. Encyc. Law (2 Ed.), 964, the rule is tersely and correctly stated as follows: “It is a matter of public policy that public •officers should perform their official duties for the compensation fixed by law, and it is universally held that all ■contracts to pay a public officer for doing a duty which the law requires him to do without payment, or, in cases where his compensation is fixed by law, to pay him a greater sum, are illegal, as against public policy; and this is true irrespective of whether the agreement was voluntarily entered into, as in case of rewards or whether the contract for additional payment was exacted by the officer as a condition for the performance •of his duties, and thereby partook of the nature of extortion, for, as has been said, once allow an officer to contract for extra compensation for the discharge of his duty, and bribery would become the means alone by which the laws could be enforced.” A question identically the same as the one under consideration arose in the case of McCarthy v. Bonynge, 12 Daly (N. Y.), 356, and the court held that an agreement to pay a greater compensation than that fixed by law for transcribing the reporter’s stenographic notes taken in the case was void and could not be enforced. The case was appealed to the court of appeals, and the opinion of the lower court was affirmed. 101 N. Y. 668. This same principle was involved in the case of Haddock v. Salt Lake City, 23 Utah 521, 65 Pac. 491. And this court, held, in an opinion written by Mr. Chief Justice Bartch, that an agreement made between Salt Lake City and one-Haddock, which provided that Haddock was to receive a certain compensation, which was in excess of the fees fixed by law, for serving summons and other writs in certain cases in which the municipality was the party plaintiff, was against public policy and void. Applying-the principle of law announced in that case, which is. in harmony with the law as declared by the text-writers and the adjudicated cases, to the facts in this case,, we are of the opinion, and so hold, that the trial court erred in finding the issues in favor of the respondent.

The case is therefore reversed, with directions to the lower court to dismiss the action. And costs of' this appeal are taxed against respondent.

BARTCH, C. J., and STRAUP, J., concur.