State v. Stockwell

134 N.W. 767, 23 N.D. 70, 1911 N.D. LEXIS 72

• Court: North Dakota Supreme Court
• Decided: October 12, 1911
• Status: Published

Opinions

Goss, J.

There is no conflict as to the facts in this case. It stands admitted that during the three terms defendant and appellant served in public office as the superintendent of public instruction in this state there came regularly into his possession by virtue of his office the sum of $17,714, as the proceeds of that number of $1 payments contributed by that number of teachers under the provisions of § 876 of the Revised Codes of 1905, or chap. 85 of the Session Laws of 1901. Under this statute each applicant for teacher’s certificate on examination therefor paid a fee of $2 to the county superintendent of-schools of such county wherein the examination was held, $1 of which $2 fee the county superintendent was obliged by law to pay into the county teachers’ institute fund, and the other $1 thereof to forward to the superintendent of public instruction. It is admitted that of such total collection by the defendant as state superintendent he disbursed $11,815, leaving unexpended $5,898 as a balance retained by him personally after the expiration of his term of office, under his claim in good faith that he is entitled to retain same as owner thereof; and that acting thereon to determine the law involved this action has been brought. The lower court awarded judgment in favor of the state, and defendant appeals.

This matter is" primarily one of statutory construction. The sections to be construed are §§ 87.6 and 869, providing for the collection and creation of the fund and for its expenditure. The statute creating the fund does not expressly or explicitly command an accounting’ by the officer to the state for the fund, or direct disposition of any balance that may remain unexpended therein, while the statute itself in terms provides the official may disburse it, designating, however, the purposes for which it may be so expended.

This legislation originates with chap. 62 of the Session Laws of 1890, the important features of which defines the duties of the office of superintendent of public instruction; providing in § 5 of the law that it shall be the duty of such officer to prepare all questions used in the examination of applicants for teacher’s certificates, prescribe the rules and regulations for conducting all such examinations, and issue or revoke state certificates when provided by law. His duty in such respect remained unaltered as § 626 of the Code of 1895, and § 736 of the Code of 1899; and until 1901 this duty and the work involved rested upon the various county superintendents. By chap. 85 of the Session Laws of 1901 this duty was placed with the state superintendent. And in addition to the fee of $1 formerly required to be paid by the applicant to the county superintendent, used by the county superintendent in support of teachers’ institutes in the county or in the support of teachers’ training schools (see § 743, Code of 1899) a $1 addition to the fee was required, making the fee paid by the applicant for certificate $2. The section of statute requiring the fee as enacted in chap. 85 of the Session Laws of 1901 is as follows: “Sec. 743. Eee for Certificate. Each applicant for a county certificate shall pay $2 to the county superintendent, $1 of which shall be paid into the county teachers’ institute fund, to be used in support of teachers’ institutes or the teachers’ training schools in the county, as otherwise provided, and $1 of said fee shall be used by the superintendent of public instruction for such clerical assistance as he may deem necessary and competent for the reading of teachers’ answer papers and work connected therewith. It shall be the duty of the county superintendent immediately after each examination to forward $1 for each applicant for teachers’ certificate to the superintendent of public instruction, such sums to be used by him as hereinbefore provided.”

Under another and preceding section of the same .law a fee of $1 was required to be paid into the institute fund of the county in cases of removal or validation of certificates by indorsement by the county superintendent as by law provided.

The question before us for determination is: Do the provisions of §§ 869 and 816 authorize the claim of the defendant in this case that the balance of the unexpended fee provided in those sections belongs to him under a reasonable construction of the two sections referred to ? One basic fact must be considered as having an important bearing in this matter. We are dealing with one of the state funds. This surplus is but a balance remaining of a fund collected by virtue of official employment in the exercise of official duty by a county officer in a matter germane to the duties of such officer, and is, in its collection and transmission to a state officer charged by law with the duty to receive it, a state fund, — public money. The mode of collection impresses it with these characteristics. Indeed, an equal amount, the other one half the fee collected from the same source, goes into a' designated public fund created by the same statute, named the “teachers’ institute fund” of the county wherein it is collected. It would be strange reasoning, indeed, that would conclude that $1 of every collection belonged to some person individually, holding public office, while the entire collection is made as a collection of public moneys for public use by a public officer discharging his prescribed statutory official duty in so doing, unless there be some plain mandate of the law providing that such portion of this public money shall become private property. It is likewise plain that the legislature never intended the county superintendent should extract $2 for every applicant for teachers’ certificate, that one half thereof should be public money and one half a private fund for the already salaried official at the head of the educational department of the state, upon Avhom already rested the duty of performance of all the duties of his office the legislature might declare belonged to it. Again, in case of default by the county superintendent of schools in making collection of the applicants, would there be any doubt as to his liability on his bond for such failure of performance of plain duty, and who but the state would then be able to collect thereon? Or, again, in case of the collection of the $2 required and the embezzlement by the county superintendent of one half of such fund so collected, after the other one half had been paid into the county institute fund, would there be any question of the ability of the state to recover for its use the defalcation, or prosecute the delinquent officer criminally therefor? It is noticeable that the statute designates the total payment as a fee in the direction “and $1 of said fee shall be used by the superintendent of public instruction for such clerical assistance as he may deem necessary and competent.” The fee of $2, then, is by statute designated as an entire payment, one fee, and, so regarded, it must be either wholly private or wholly public, unless the statute itself expressly declares one part public and the other private. One half the fee reaching by statute a public county fund, it thereby impressed the whole fund as belonging to the public, even though there be no provision made for the other one half, except that it be paid into the hands of the public official for public use. Hence, the conclusion urged by defendant that the omission to declare that portion of the payment transmitted to the state superintendent to be a public fund, while the other portion remaining in the county is declared a county fund, shows a legislative intent that the part transmitted to the state superintendent should be private funds, is without force. The only reasonable conclusion to arrive nt is exactly the contrary - namely, that the legislature, having designated the portion remaining shall be turned into a particular fund, evidences an intent that the entire collection is for public purposes unless the contrary is specifically provided for, and it is not. This is strengthened by the presumption that every fee exacted by a public officer in the performance of his duty requiring it is a collection of public moneys excepting where the statute plainly provides that the officer shall be paid by the fee or that such fee collected shall belong to the officer. Otherwise it attaches as a public fee or profit of the office and belongs to the public. Defendant’s assumption, then, that the statute authorizes the collection of these fees by these public officers, the various county superintendents, for the benefit of the state superintendent individually, is begging the question and assuming as a fact an unusual situation, as nowhere and at no place is a similar provision found relative to a state or county officer. And such an assumption would ignore the proposition of law that the burden in this case is upon the defendant to justify his title to these funds retained by him, and not upon the state, after the collection has once been established or admitted, to prove the ownership of moneys collected by force of statute by public officers, transmitted to the incumbent of this state office.

Then, again, the statute providing for the payment of fees by private parties to public officers necessarily evidences a legislative intent that such fees shall belong to the public, unless expressly declared as fees to the officer individually; and most certainly is this true where the officer to whom the fees are paid is a salaried officer. Defendant, challenging the conclusion that the fees are a public fund, argues that the various county superintendents are the agents of the state superintendent to collect from each applicant for a teacher’s certificate the $1 item on behalf of the state official; and urge that he is an agent or trustee in such collection and the transaction of the same to the state superintendent, urging this agency or trusteeship as a reason why the funds should be held to be the private property of the superintendent from the time of their collection. But though the county officer may act as agent or trustee of the incumbent of the office of state superintendent of public instruction in the performance of this duty, it does not follow that such is any reason to characterize the fund so acted upon as a private fund, when one remembers that every public officer is an agent for the state and likewise a trustee for the state in the performance of his duty. Turn to § 3, Throop on Public Officers, and find the following definition of a public officer: “A public office is an agency for the state, and the person whose duty it is to perform this agency is a public officer.” Turn again to Mechem on Public Officers, § 803, and read: “From the very nature of the case it is evident that the public — the government, be it national, state, or lesser municipal— can deal with third persons and enter into contracts with them only through the instrumentality of its public officers or agents, duly authorized by law and acting within the scope of the authority conferred upon them.” See also §§ 839 and 840 of the same authority. And constantly. throughout the text-books and decisions on public officers we find parallels drawn, comparing public officers with agents and trustees, and the word “officer” is often used, coupled with agent or trustee, in illustrating the relation between the office and the public. A public officer is in a sense an agent or trustee of every other public officer or person to whom a responsibility is owing by the public officer. And whether the fees in question be the property of the state or the property of the defendant, the county superintendent in the collection of the fund in either case acts as an agent or trustee for such purposes.

Again, it is urged in support of the contention that these funds are private funds of the officer that the state has in no sense obligated itself to pay any clerical assistants he may employ, but on the contrary, that the superintendent is alone responsible for their pay; and that he has the fund and is required to procure the work done on his own .private responsibility. We submit this proposition will not stand the light of reason. Here is a state officer explicitly authorized by the statute, § 869, in the closing part thereof, to employ such clerical assistants as he may deem necessary and competent. For whom is the employment but the state ? Who pays the employees but the state ? And from what is it paid but the fund mentioned in § 876, which fund is by statute .limited to the disbursement for payment of such clerical assistants as must be necessary as well as competent to do the work? If a private fund, why such limitation on its disbursement ? Are private funds subject to statutory limitation? Does not, on the contrary, reason dictate that such statutory restriction evidences a legislative intent that the fund was a public one ? The importance of this question of ownership of the fund is seen when we realize that, to sustain defendant’s contention, we must hold that the fund, from collection to final disbursement, at all times remains private property of an incumbent of public office; and to so hold it would follow as the night the day that at no time has the state been responsible for the payment of the employees doing its work under the statute authorizing the state superintendent to employ clerical assistance. We cannot subscribe to such a doctrine contrary to all precedent and as inconsistent as it is unreasonable. The statute, by authorizing the officer to employ clerical assistants in his office to perform and assist in the performance of the duties of the officer, never contemplated that when so employed they should be regarded as private servants looking to a private individual for their compensation. While the clerks are not officers, not having subscribed to any oath of office, or given a bond, or being responsible as public officers, yet they are public employees when legally employed by the officer authorized by law to engage their service, in the absence of some provision of law or some express provision of their contract of employment rendering the public officer personally liable to them for their pay, and accordingly the state is their paymaster and legally obligated as such to pay them. In the absence of any statutory or contract provision as to who shall pay such clerical assistants, the presumption is that the officer when authorized to make the employment at all bound the state, and not himself, to pay the employee. See chap. 1, Mechem on Public Officers, and particularly § 805 thereof, reading: “A well-defined distinction is made by the law between contracts entered into by the agent of a private principal and those of the agents of the public. It is constantly presumed that the latter do not intend personally to assume the public burdens, and that persons dealing with them do not rely upon their individual responsibility. ‘On the contrary/ says Judge Story, ‘the natural presumption in such cases is that the contract was made upon the credit and responsibility of the government itself, as possessing an entire ability to fulfil all its just contracts far beyond that of any private man, and that it is ready to fulfil them not only with good faith, but with punctilious promptitude and in a spirit of liberal courtesy.’ ” Then, again, § 806, same authority, reads: “Hence it is well settled as a general rule that public officers and agents will not be held personally liable upon contracts entered into by them in the public behalf, except in those cases where the intent is clearly apparent so to bind them. And as is said by Chief Justice Marshall, ‘the intent of the officer to bind himself personally must be very apparent indeed to induce such a construction of the contract.’ ” Then, again, we quote the following from Throop on Public Officers, § 551: “A contract entered into in behalf of the state by public officers empowered by statute, either expressly or by implication, to make the same, binds the state as a contract by an individual made through his authorized agent binds him.”

Nor are works on public officers the only text-books supporting this proposition. See chap. 31 of second edition, Bishop on Contracts. We quote from § 996 of this authority the following summary of thei chapter: “The government, whether of the United States or of a state, has within its sphere the same power of contract as an individual within his sphere. And like an individual it can enforce the contract in its courts. It is bound the same on its part and the presumption is the same that it will perform. . . . Since it can act only through its officers and other agents its contracts must be ostensibly made by them, for which and other reasons the presumption is always strong that it, and not the agent, is the party to a bargain in its interest.”

Under these authorities, but a digest of the cases cited in them, it is plain that the state, and not the defendant, is the employer and paymaster of any clerical assistants contemplated to be employed by the superintendent of public instruction under §§ 869 and 876 of the statute. It is equally plain that the fund from which such help shall bei paid is, as declared by § 869, the accumulation from the portion of these fees in the hands of the superintendent. The state being the employer and the party responsible to the employees for wages, the fund from which the wages are designated to come must be a public fund. There can be no other conclusion in reason. And if the fund is a public fund at the time of its prescribed statutory disbursement, it is such in its collection and transmission to the official and in his custodianship of it; all of which everlastingly negatives the theory advanced by the defendant that the fund is his, and not a public fund.

We have established, then, that the undeniable, indisputable, basic fact confronts, us in this inquiry, that we are dealing with publio moneys in the hands of public officers accountable to the state for the proper care and keeping as well as the appropriate disbursement of public money collected for the state’s use. With this in mind should we not have a plain direction in law before we should hold public moneys could be legally diverted as an increase in salary ? And should not the claimant be able, before establishing title to the fund, to place before us legislative sanction for such appropriation ? With the ownership of the fund established to be in the state, let us analyze the statute in question under which defendant makes his claim thereto. The statute reads: “It shall be the duty of the county superintendent immediately after each examination to forward $1 for each applicant for teacher’s certificate to the superintendent of public instruction, such sums to be used by him as hereinbefore provided.” This is the law covering the payment of the fund into his hands, “to be used by bim as hereinbefore provided,” which is in the manner prescribed in the .following language: “And $1 of said fee shall be used by the superintendent of public instruction for such clerical assistance as he may deem necessary and competent for the reading of teachers’ answer papers and work connected therewith.” No other authority whatever is granted him to disburse from this fund, except it be contained in the last part of § 869, reading: “He may appoint such clerical assistants as he may deem necessary, but the expenditures- therefor shall not exceed in the aggregate the sum annually collected from applicants for county certificates for this purpose.” It is true this particular state does not expressly require the superintendent to account for the fund in question, nor does it say what disposition he shall make of any balance of the fund remaining unexpended; but that does not alter the fact that whatever balance exists remains as a balance of a public fund. Nor can the fund be disbursed by the superintendent of public instruction except for certain specified purposes. The statute defines the purpose of the fund’s collection to be to pay clerical'assistants in the office of the state superintendent of public instruction, and defray expenses of assistance in examination, marking and filing of teachers’ an-sAver papers, authorizing the .superintendent to use said fund not for general clerical assistance, but “for such clerical assistance as he may deem necessary and competent for the reading of teachers’ answer papers and work connected therewith.” With the examination papers being examined by the various county superintendents, no such fund was contemplated or provided for, but immediately on this work .being thrown into the department of public instruction with the bill placing the work there, we find this fund created, to use the words of the statute, “for this purpose” of defraying the expenses necessarily to be incurred “for such clerical assistance as he may deem necessary and competent for the reading of teachers’ answer papers and work connected therewith.” And, again, immediately following in the provision for payment by the county superintendent to the state superintendent, we find the command; “To forward $1 for each applicant for teachers’ certificate to the superintendent of public instruction, such sums to be used by him as hereinbefore provided,” again limiting its disbursement to the particular use to which it is ordered applied. But defendant contends it was intended by the legislature that he should own the fund,'subject, however, to the duty of payment therefrom of such clerical assistance as should be necessary to properly perform the duties of the office in this respect. Such is not the letter nor the intent of the act. So to do would be contrary to all precedent in the payment by the state of its officers. Was not the clerical force “necessary and competent for the reading of teachers’ answer papers and the work connected therewith” in the state’s employ ? When has the state ever provided a fund to pay its employees, and transferred title to the same to one of its officers under the command that he. individually be responsible for and pay such clerical help of the state? History affords no example of such a manner of dealing by this state. Why should the state exercise the foresight to collect the adequate fund to more than meet all expenses, and then place it in the hands of the officer under whose supervision the work is to be done as a gift to him individually, instead of acting as reason would demand, that of placing the fund in the officer’s hands and authorizing him to disburse it as the state paymaster to the employees of his office working for the state. Most assuredly it would seem that before such an unreasonable, unprecedented procedure is declared to be that intended, the statute should be so plain as not only to imperatively demand such construction, but negative any other reasonable one.

The statute grants no more than the right to use, meaning the right to disburse, expend, and pay out the money for the declared purpose for which it was provided. Surely if a construction is adopted interpreting legislative permission to use under such circumstances as an appropriation and a grant of ownership to the officer, careful, indeed, must future legislatures be; and to prevent state officers from claiming funds coming to them by virtue of office, future legislation, to properly safeguard the interests of the state in authorizing official disbursements, should always conclude with a statement “that under no circumstances shall the officer be held to own the public funds hereby intrusted to him by virtue of his office for the state’s use.” The idea of the necessity for such a provision shows the absurd extreme to which a holding with appellant would naturally lead. Rather, instead, the contrary construction should prevail, that the public official who retains possession of public funds under claim of ownership thereof should be able to base his claim on plain and unambiguous statutory authority therefor; upon such a definite, unequivocal appropriation to him of the fund as evidences a plain legislative intent to make him the donee of public property. The legislature by granting the use granted no more than that, and the right to such use was granted, not to the individual, but to the office as an incident of the office. We have searched without success for precedent favoring defendant’s contention. None is cited by his careful, painstaking, and eminent counsel. On the contrary we find the words “use” and “to be used” must be construed with the context. As an instance, such terms in insurance law mean occupancy; in real estate transfers and the interpretation of wills and devises, the word “use” often is interpreted as a trust; while in ordinary language to “use” is to employ, to derive service from; to “use” moneys is to pay out or disburse them. In Hightower v. State, 72 Ga. 482, the term is exemplified as “one may ‘use’ a thing that is employed in his service or business.” Again, in Heaston v. Randolph County, 20 Ind. 398, at page 403, we read: “The word ‘use’ may be held as synonymous with benefit.” Again, under statutes regulating United States customs duties on personal property imported, in Astor v. Merritt, 111 U. S. 202, 28 L. ed. 401, 4 Sup. Ct. Rep. 413, we find: “In ‘use’ is defined to be in employment.” “Out of ‘use’ is defined as ‘not in employment.’ ” “To malee use of is defined as ‘to put in use,’ ‘to employ,’ ‘to derive benefit from.’ ” Again, in State v. Davis, 9 Houst. (Del.) 558, 33 Atl. 439, at page 440, the opinion used the following language: “Th© word ‘use’ means to make use of, to convert to one’s own service, to avail one’s self of, to employ, to put to a purpose.” Again, in State ex rel. Hayes v. Board of Equalization, 16 S. D. 219, 92 N. W. 16, we read from the opinion that “use and ownership are not synonymous.” Courts are often called upon in taxation matters to determine whether the use or the ownership determines exemption or nonexemption on property for taxation purposes. In Washburn College v. Shawnee County, 8 Kan. 344, we read: “It is strictly the use of the property which determines whether the property is exempt or not.” Again, in Cincinnati College v. State, 19 Ohio, 110, in the discussion of taxation matters, we find the following: Property used exclusively for educational purposes is exempt whoever may own it or whoever may use it. Property not used exclusively for educational purposes, if otherwise taxable, is not exempt whoever may own it or whoever may use it. And generally in taxation matters the use instead of the ownership determines the right to tax, so far as the exemption from taxation of property used for charitable purposes is concerned. We find the right to use to be but an incident of ownership, but not necessarily implying ownership. In no sense are the terms “use” and “ownership” synonymous, nor to be construed as identical in meaning. If the statute in question had authorized the “use” by him for educational purposes of certain real estate belonging to the state no one would contend that more than the bare power to use was conferred. Why under the same phraseology should the privilege of use of public moneys for a specified purpose carry with it the ownership of the fund? The power to employ, to disburse, to pay out, to put to a purpose, or to derive benefit from the money — terms held synonymous with use, — must be construed in connection with the fact that such employment, use, and benefit derived is for the state in whose behalf such funds are to be used, disbursed, and employed.

Appellants urge for our consideration an assumption that the legislature never intended that any balance should exist in this fund. It matters not whether it did or not. Assume the legislature may have supposed that the entire fund would be consumed for the purposes specified and to which the fund is required to be devoted, — to the payment of clerical help. The supposition of the legislature in this respect in no wise evidences an intent that the superintendent of public instruction personally should derive any benefit, but rather the contrary, if the supposition be true, it evidences a want of intent on the part of the legislature to transfer ownership of the fund to the superintendent. It certainly is irrational to first suppose an intent that’ no balance shall exist, and in the next supposition suppose therefrom such evidences an intent that a balance shall exist and that it shall be the private emolument of office of the officer. Unless the legislature assumed the fund to be entirely devoted to and consumed as well in paying state office employees in clerical work, why the provision that the expenditures for the purposes to which the fund is to be devoted stall not exceed the aggregate sum annually collected from applicants for county certificates for this purpose? The intent may have been that the state clerical help would perhaps consume entirely the state’s fund provided to pay the same. If so, this very idea negatives the thought of its appropriation by the state superintendent, to alleviate whose work and make possible payment of clerical assistants without calling-on the general- funds of the state, this special fund was created. Grant, again, that a fair inference from the provisions of § 869 is that the fund was to be used to pay clerical assistants so far as it would go, and that the state superintendent and his deputy should, in case of work remaining unfinished in “the reading of teachers’ answer papers and work connected therewith,” complete the same as a duty of his office. Inasmuch as no specific provision is made for such added work, if any was thrown upon the office, no added salary was to be paid defendant therefor; the rule in such case being that if the statute increases the duties of an official by the addition of other duties germane to his office, he must perform them without extra compensation. “An officer who accepts an office to which a fixed salary or compensation is attached is deemed to undertake to perform its duties for the salary or compensation fixed, though it may be inadequate, and if the proper authorities increase its duties by the addition of others germane to the office the officer must perform them without extra compensation. Neither can he recover extra compensation for incidental or collateral services which properly belong to and form a part of the main office.” Mechem, Pub. Off. § 862; Throop, Pub. Off. 478, 479; 1 Dill Mun. Corp. 4th ed. § 233; Evans v. Trenton, 24 N. J. L. 764; People ex rel. Phœnix v. New York, 1 Hill, 362; Andrews v. United States, 2 Story, 202, Fed. Cas. No. 381; United States v. King, 147 U. S. 676, 37 L. ed. 328, 13 Sup. Ct. Rep. 439; Broaddus v. Pawnee County, 16 Okla. 473, 88 Pac. 250. “A change in the duties of an office during the term of the incumbent does not affect the compensation of the officer.” 29 Cyc. 1424, citing: Bennett v. Orange, 69 N. J. L. 176, 54 Atl. 249, affirmed in 69 N. J. L. 675, 56 Atl. 1131; Tyrrell v. New York, 159 N. Y. 239, 53 N. E. 1111; Marquis v. Santa Ana, 103 Cal. 661, 37 Pac. 650; State ex rel. Watson v. Eskew, 64 Neb. 600, 90 N. W. 629; Sidway v. South Park, 120 Ill. 496, 11 N. E. 852; Locke v. Central, 4 Colo. 65, 34 Am. Rep. 66; People ex rel. Stetson v. Calhoun County, 36 Mich. 10; Gerken v. Sibley County, 39 Minn. 433, 40 N. W. 508; Raymond v. Madison County, 5 Mont. 103, 2 Pac. 306. See also Stringer v. Franklin County, — Tex. Civ. App. —, 123 S. W. 1168, and Bohart v. Anderson, 24 Okla. 82, 103 Pac. 742, 20 Ann. Cas. 742. “Public officers have no proprietory interest in tbeir offices or any right of property in the prospective compensation attached thereto.” State ex rel. Lull v. Frizzell, 31 Minn. 460, 18 N. W. 316—319; Cooley, Const. Lim. 7th ed. 388.

But on the question of the assumption by the legislature that no unexpended balance in this fund would ever arise, it is doubtful if such assumption is warranted. The findings show that a balance has been accumulated steadily during the entire incumbency of defendant in said office. At the expiration of the first two years in office a balance of $1,857 remained unexpended of this fund, which was increased by the next two-year term to a balance of $3,800 over all disbursements, and at the expiration of defendant’s third term it has further increased to the amount in suit, $4,898. The legislature are presumed to have acted intelligently in this as in all legislation. They foresaw the necessity of creating the fund to care for the expense of clerical assistance. It is but reasonable to suppose investigation was made in advance of the legislation as to whether the fund would be ample to care for the expense for which it was created, and the fact that it was more than sufficient, as the existence of this suit establishes, should but strengthen the belief in the care with which this legislation was enacted. Can we not conclude then that the legislature intended just what has happened? That a balance should remain, but if perchance the fund should not be sufficient there should be no drain upon the state treasury or its accumulation from other sources ? Such a • construction is more reasonable than the contrary one that, because of the provision against expending more than the amount collected by this fund in clerical help, the entire fund itself was to be donated to the incumbent of the office to the detriment of the state financially, the construction urged by the defendant in this action.

Much stress is laid by defendant upon the fact found by the trial court to exist, that this balance in suit remains unexpended largely because he as an officer performed himself the duties and work resulting from examining, marking, and filing teachers’ answer papers and other work connected therewith, instead of employing clerical assistance in the performance of the work and expending the fund in payment therefor. Any economic action of the officer in such respect is commendable, but the declaration of the statute still remains that this money is to be used by him only for clerical assistance necessary in the performance of these certain duties; and also that the duties were not imposed upon the defendant individually but upon the office. His work in the performance of his official duty is that of the incumbent of the office. It is not clerical assistance, and cannot be so construed. His time and the result of his energies belonged to the state, so far at least as the state’s necessity required. And as such officer he was obliged to so properly fulfil the duties of the office, and for these he is paid his yearly salary. While economic administration in office is to be commended, yet it is but a duty to be expected, and not something to furnish a pretext for the appropriation of clerical hire graciously provided by the state to lighten the work of the office. The very claim of the defendant establishes the fact of his ability to do the work himself and save the fund, and the want of necessity for its disbursement, leaving the fund belonging to the state unexpended; certainly the want of the necessity for its use so established can in no wise change the character of the fund from state moneys to private emoluments in office. “Since a public officer with fixed compensation is bound to perform his duties for the compensation provided by law, compensation in addition to salary must be expressly provided for.” 12 Current Law, p. 1160, and cases cited. Again, “Public officers must perform the duties of their offices, however onerous they may be, for the compensation fixed by law, and will not be allowed compensation for extra services unless expressly authorized by statute.” 4 Current Law, 865, and eases cited.

As to the claim of the defendant regarding which findings were made in the trial court as to some of the work being done out of regular office hours by himself individually, and that because of such efforts he is entitled to the amount so saved from the fund as his personal compensation, plenty of precedent exists against the validity of such a claim and none for it. See Morgan v. New York, 105 App. Div. 425, 94 N. Y. Supp. 175, the syllabus of the case summarizing the holding to be: “The fact that affidavits taken by a chief messenger in the department of buildings of the city of New York in the performance of his duties as such messenger, as charged on him by specific direction, were taken in the morning before business hours, did not entitle him to extra compensation,” citing McCabe v. New York, 77 App. Div. 637, 79 N. Y. Supp. 176, affirmed by court of appeals in 176 N. Y. 587, 68 N. E. ; in which case it is held that an employee of the city is not entitled to extra compensation for services performed, out of regular office hours.

.As further illustrating and supporting this proposition, see McBrian v. Nation, 78 Kan. 665, 97 Pac. 798, where a chaplain of the penitentiary, required by statute to devote his entire time to the performance of his official duties as such, and paid $1,000 per year therefor, superintended a night prison school after employment by the board of directors of the penitentiary so to do, and was refused a reasonable compensation of $30 per month for such additional service. In disposing of the case the court says: “The case here presented is an extreme one. The services as superintendent of the night school are performed when the chaplain would probably not be engaged in any official duty. No material injury is suffered by the state. Moreover the chaplain would seem to be an eminently proper person for a superintendent of the school, and his services are less expensive than if a specially qualified person were employed to perform them. Strictly speaking, however, the time so devoted by the chaplain belongs to the state and is paid for by his salary, and this is a sufficient reason why the state should not be called upon for further payment.” And payment was denied. Granting the case on trial to be an extreme one so far as personal effort of the defendant expended for the benefit of the state in saving the fund is concerned, it is not as extreme an instance as the Kansas case quoted. Defendant is paid a more adequate salary, every personal expense provided for connected with the office, and he was under no employment by anyone pretending to exercise authority to induce him to do the work, granting that it was all done after hours, as was the case in McBrian v. Nation.

Another ground for defendant’s claim of ownership of this fund is that the statute creating it does not require the superintendent to account to the state for the proceeds hereof, and that in the absence of such an accounting the right to use conferred carried with it by necessary implication the ownership of the fund itself. Further, that he is not chargeable with an accounting, and that the omission of express statutory requirement that he shall account evidences an intent that he shall not and that the money shall belong to him. To this we cannot agree. The public officer is an agent or a trustee of the public, and he must account for all money coming into his hands by virtue of his official relation to the public, and this without the necessity of a statute requiring him to account. His bond to the state as its officer, required by the provisions of §§ 401, 403, and. 404 of the Code of 1905, existing by virtue of legislative enactment prior to the taking office of this incumbent, requiring his bond in the penal sum of $5,000, conditioned that such officer “render a true account of all moneys and property of every kind that shall come into his hands as such officer, to pay over and deliver the same according to law,” is in itself a contract with the state that on his bond he will account for these moneys. But defendant may answer and say that the bond only calls for the payment to the state of the money required to be paid to it by law. The requirement of § 401 Code of 1905, formerly contained in Revised Codes of 1899 at § 340, is that the requirement of the bond shall be that he “shall account according to law,” and the law makes it his duty to account as a trustee to the public at the termination of his term of office for all moneys and property received by him in his capacity as public officer. For authority for this holding, see § 909, Mechem on Public Officers, reading : “It is the duty of the public officer, like any other agent or trustee, although not declared by express statute, to faithfully account for and pay over to the proper authorities all moneys which may come into his hands upon the public account, and the performance of this duty may be enforced by proper actions against the officer himself or against those who have become sureties for the faithful discharge of his duties.” Then, again, quoting from the same authority, § 912: “It is made the duty of the officer either by the terms of the statute prescribing his duties, the performance of which the bond in general terms is given to secure, or by the very language of the bond itself, to safely keep the public funds which come into his hands and to pay them over according to law,” and “the officer’s liability is, according to the great majority of the decisions, held to be fixed by the terms of the statutes, or the language of the bond,” to the terms of which bond he has given the state he is held. As to the time at which the defendant was called to account, § 910, Mechem on Public Officers, announced the following rule: “Where by the law creating the office or otherwise the time for accounting is expressly fixed that provision would of course govern. Where, however, no such time has been fixed it would be the duty of the officer ordinarily in analogy with that of a private agent to account upon lawful demand, and at all events, within a reasonable time.” Sec. 916, Mechem on Public Officers, in part reads: “It is frequently the case that public officers, by virtue of their position, come into the possession of property, both real and personal, belonging to the public. Certain of this property, such as real estate occupied for public purposes, and the public books, records, and furnishings, form permanent appurtenances of the office designed by law to be transmitted to his successor, and it is the officer’s duty therefore upon the expiration of his term to duly deliver them over to the public authority lawfully entitled to receive them.”

In this case the fund in question came to defendant as an incident of his office, as much so as an appurtenance of the office, and, in the absence of statute, the law implies the plain duty that he shall deliver them to his successor at the end of his term, and in so doing there necessarily exists the obligation to account for such money and for the accuracy of his books regarding the same, as well as the requirement of its safe-keeping. It matters not that the legislature omits to specifically require an accounting. His bond required by law is that he shall so account; and the law requiring his custody of this public fund, the terms of his bond, and the law authorizing it, compel an accounting thereof. Appellant’s contention in such respect is as untenable as would be that, because the statute defining his duties does not specifically require him to perform them to the best of his ability, or does not in terms require him to be faithful and honest toward the public, that indifferent official action or unfaithfulness or dishonesty toward the public would be excused as not mentioned in the statute or “not so nominated in the bond.” We use this illustration with no reference to appellant personally, his efficiency in office being unquestioned, and realizing that his claims in suit are made by him in the utmost of good faith.

But in the contention of defendant that nowhere in the statute is he obliged to account, defendant overlooks the plain mandate of the statute requiring him to account on demand of the state auditor, imposed upon the state auditor as the duty necessarily a part of the duties of that office, of formulating an account with the office of superintendent of public instruction, and, if necessary, compelling an accounting. See § 103, Revised Codes of 1905, formerly existing as § 100 of the Revised Codes of 1895, reading: “Whenever any person has received moneys or has moneys or other personal property which belongs to the state by escheat or otherwise, or has been intrusted with the collection, management, or disbursement of any moneys, bonds, or interest accruing therefrom belonging to or held in trust by the state, and fails to render an account thereof to and make settlement with the state auditor within the time prescribed by law, or when no particular time is specified, fails to render such account and make such settlement, or who fails to pay into the state treasury any money belonging to the state upon being required so to do by the state auditor within twenty days after such request, the state auditor must state an account with such person charging interest at the rate of 12 per cent per annum from the time of the failure.” Also by § 101 of the Codes of 1905, in existence prior to the time of taking office of the defendant as § 98, Revised Codes of 1905, we find the duties of the state auditor defined and itemized, and therein we find: “It is the duty of the state auditor: ... 11. To examine and settle the accounts of all persons indebted to the state and certify the amount to the treasurer, and, upon presentation and filing of the treasurer’s receipts therefor, to give such person a release, and charge the treasurer with such amount. . . . 13. To require all persons who have received any moneys belonging to the state and who have not accounted therefor to settle their accounts. . . . 15. To require at such times and in such forms as he may designate all persons who have received money or securities, or who have had the disposition or management of any property of the state of which an account is kept in his office, to render statements thereof to him, and all such persons must render such statements when so required by said auditor. 16. To direct and superintend the collection of all moneys due the state, and institute suits in the name of the state for all official delinquencies in relation to the assessment, collection, and payment of the revenue, and against-persons who by any means have become possessed of public moneys or property and who fail or neglect to pay for or deliver the same and against all persons indebted to the state.” Surely these duties of the auditor plainly provide he shall require an accounting of this state fund in the hands of this state officer. Then again, § 421 of the Codes of 1905, existing since the Revised Codes of 1899 as § 358 thereof, prior to the taking of office of appellant, must also apply as a specific legislative provision requiring him to account. Sec. 421 reads: “Every officer elected or appointed under the laws of this state shall, on going out of office, deliver to his successor in office all public moneys, books, records, accounts, papers, documents, and property in his possession belonging or appertaining to such office.” Eor fear that this section should not be construed to cover officers re-elected to the same office, careful legislative provision is made in § 420, Codes of 1905, formerly existing as § 358, Revised Codes of 1899, reading: “When the incumbent of any office is re-elected he shall qualify as above required, but his bond shall not be approved until he has produced and fully accounted for all public funds and property in his control under color of his office during the expiring term, to the person or authority to whom he should account, and the fact and date of such satisfactory exhibit shall be indorsed upon the new bond before its approval.” Certainly this provision, construed with the provisions above quoted as to the duties of the state auditor, make it plain that before defendant properly qualified at the commencement of his second term of office, in law it was his duty to account for the $1,857 remaining unexpended of this fund, and before his last qualification the law imposed the duty to likewise account for $3,800, and this, regardless of the provisions of § 103, making it the duty of the state auditor to see that he did so account.

These statutes are general ones, applying where no specific, express contrary provision is made. The legislature placed this fund as it did “for his use” to be expended “for clerical assistance necessary and competent” to do the work specifically required; and the reason why such statute did not in terms provide an accounting, or require the money to be turned into the state treasury at the end of each of his terms in office, was because the fund was created and placed in his custody under this general statute requiring such accounting, rendering unnecessary any specific legislation on the. subject. Assuredly when the legislative power places a fund in the hands of a state officer as a trustee of the fund, with such plain statutory requirements existing as to the officer’s duty to account, the obligation arising from the general statute applies as certainly as though an accounting has been especially provided in the legislation creating the fund. Notice, also, that the provisions of these sections are so general as to cover every emergency and all public funds and property in the officer’s possession or control under color of his office. It surely was the legislative design to cover every dollar reaching a public officer from any source whatever not otherwise excepted, or for which no other certain specific provision was provided. This general language itself heads off any claim that defendant became the owner of this fund in question, as it certainly came to the office of which he was the incumbent as an incident to such office, and he himself secured possession thereof under color of that office. The term “color of office,” in this connection, cannot be distorted when read with the context, to mean a fund not legally belonging to the office, but obtained by the official wrongfully under color of office.

But we find that the legislature of 1901, creating this fund, defined in its creation its use to be that of paying for clerical assistance, the act itself providing by express terms its creation for that purpose. Not only did they declare the purpose to which it should be applied, but they did at the same session, under chap. 51, Session Laws 1901, and prior to the going into effect of the law creating the fund, provide it to be a misdemeanor for the officer to divert to his own use and benefit any allowance made for clerk hire in his office, by the following provision: “Any state or county officer who shall, either directly or indirectly, receive and appropriate to his own use and benefit any part of the allowance made for clerk hire in his said office shall be guilty of a misdemeanor.” That legislature clearly understood there was a distinction between use of a fund for the public and use of it for the individual in office. In the face of this statute, how can it be maintained that, in granting the right to use this fund in question in such manner for such declared purpose, for clerk hire only, the legislative intent was to permit the appropriation of the fund or any part or balance thereof, the very thing guarded against by chap. 51, of the act quoted, enacted by the same legislature? Chap. 51, Session Laws of 1901, is still in force as § 8645, Codes of 1905.

Then, again, we must not lose sight of the common-law requirement in connection with salaries, that the statute must be plain and explicitly cover the salary or increase of salary claimed; for in the absence of statutory provision for compensation the officer is presumed to perform the work gratuitously as a matter of honor. Mechem on Public Officers, §§ 855, 856; Throop on Public Officers, § 446, reading: “The general law is that the rendition of the services of a public officer is deemed to be gratuitous unless a compensation therefor is fixed by statute.” “A strict construction of the statute under which the salary is claimed, against the person asserting the claim, must be followed.” See 15 Decen. Dig. p. 732, and cases there cited, including Wood v. Madison County, 125 Ind. 270, 25 N. E. 188; Legler v. Paine, 147 Ind. 181, 45 N. E. 604; Torbert v. Hale County, 131 Ala. 143, 30 So. 453; State ex rel. Troll v. Brown, 146 Mo. 401, 47 S. W. 504; State ex rel. Linn County v. Adams, 172 Mo. 1, 72 S. W. 655; Bates v. St. Louis, 153 Mo. 18, 77 Am. St. Rep. 701, 54 S. W. 439; State ex rel. Axen v. Meserve, 58 Neb. 451, 78 N. W. 721; Bennett v. Orange, 69 N. J. L. 675, 56 Atl. 1131; State v. Allen, — Tenn. —, 46 S. W. 303; Dillon v. Whatcom County, 12 Wash. 391, 41 Pac. 174; State ex rel. Holman v. Roach, 123 Ind. 167, 24 N. E. 106. “Where the provision of law fixing the compensation is not clear it should be given the construction most favorable to the government.” 29 Cyc. 1426, citing the following decisions fully sustaining the text: Tyrrell v. New York, 159 N. Y. 239, 53 N. E. 1111; United States v. Clough, 5 C. C. A. 140, 6 U. S. App. 377, 55 Fed. 373, an opinion by Circuit Judge Taft reversing 47 Fed. 791, and expressly disapproving the contrary doctrine laid down in McKinstry v. United States, 40 Fed. 813. See also State ex rel. Lull v. Erizzell, 31 Minn. 460, 18 N. W. 316; Bramlage v. Com. 113 Ky. 332, 68 S. W. 406; Gilbert v. Marshall County Justices, 18 B. Mon. 427; Morris v. Ocean Twp. 61 N. J. L. 12, 38 Atl. 760; State ex rel. Buttz v. Comptroller General, 9 S. C. 259; Cole v. White County, 32 Ark. 45. If this statute be of doubtful construction, then under the above authorities the doubt must be resolved in favor of the state and against the defendant. To hold with appellant would necessitate ignoring this rule in addition to giving an unusual and strained construction of the. statute.

Another argument is advanced by defendant in support of his construction of the statute. He claims that the executive officers of the state, and legislatures as well, have acquiesced in such construction from the passage of the act in 1901 to the commencement of this action in 1910, and that this fact is entitled to weight in construing this state .that he declares is ambiguous. Let us consider this proposition. Every incumbent of the office had before him the state and all the statutes of the state bearing on the question, including § 8645, against the appropriation of cleric hire by the officer. As to legislative sanction there is nothing showing that this particular matter has ever been called to the attention of the legislature. Instead we find practically every legislature increasing the expense allowed to the office and in doing so particularly designating how it shall be paid and for what it is payment. As an instance, the legislature in 1903, in chap. 192 of the Session Laws of that year, made an allowance of actual and necessary traveling expenses to the incumbent of this office, the same not to exceed $1,000, adding thereto its reasons in an emergency clause to the effect that the fund then allowed for such purposes was insufficient, hence the increase. Then the legislature in 1905 increased the clerk hire to $4,000 per annum, and made provision for the payment of a deputy out of the increase. The following legislature, in 1907, allowed the incumbent of the office an increase of $500 per annum for personal expenses as is shown by chap. 30 of the Session Laws of 1907, and this was increased by the next legislature by chap. 216, Session Laws of 1909, to $750 per annum for such purposes, the salary in the meantime having been increased to $3,000 per year, and the last legislature in chap. 266, Session Laws of 1911, fixed the traveling expenses at $1,200 per annum.

On the question of the practical construction adopted by the office and executive officers of the state favoring appellant’s contention: The rule is that, before resort can be had to such a rule of construction, the statute must be ambiguous and of doubtful import as to its true meaning. “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.” 2 Lewis’s Sutherland, Stat. Constr. § 474, p. 891. Under ordinary interpretation of the language used in the statute, we agree with the state’s contention that there is no ambiguity in the statute, and there can be no resort to usage to aid in its construction. Under the same authority at § 476 we find a further, want of evidence of the legislative intent that this statute be construed as a grant of the fund, instead of the use thereof. “The contemporary and subsequent action of the legislature in reference to the subject-matter has been accepted as controlling evidence of the intention of a particular act. Legislative construction of old laws has no judicial force, whether right or wrong the courts must determine the proper interpretation from the statutes themselves.” We submit that the contemporary act of the same legislature in making it a crime for state officers to appropriate any part of the clerk hire allowed by the legislature to said office, may be “accepted as controlling evidence of the intention of the particular act” under construction. Again, referring to the acts of subsequent legislatures: Nearly every two years provision has been made defraying the personal expenses of the officer in traveling when performing his duties. His personal office hire allowance has constantly increased. Five hundred dollars per year has been granted him for personal expenses without his filing a statement thereof, and subsequently increased to $750 per annum. His salary has been increased $1,000, and he granted, as at present, the right to employ to an unlimited extent clerk hire in office. But running throughout all these provisions we find expressed in exact terms the purpose for which all money is given or to which it is required to be applied, and at no place in twenty years of legislation touching this office do we find any grant of fees to this office as a prerequisite of the office. Appellant urges that the duties of the office have steadily increased. Beference to the statutes shows the salary and clerk hire have accordingly kept pace with the increased duties. Well, indeed, has the legislature provided for this office. All of which is indicative that the legislative intent in providing this fund was, as expressed in §§ 869 and 876 of the Codes of 1905, to provide a' fund to pay the clerical help rendered necessary by the new duties imposed, and intrust the disbursing of the fund in the state’s behalf to this particular officer, instead of directing payment in the usual manner. The statute, having defined the purposes, we must take that as controlling the action of the general assembly at the time of its passage. Accordingly the rule of statutory construction aimounced in Lewis’s Sutherland, Stat. Constr. § 490, applies, it being: “In construing an act of the general assembly such a construction will be placed upon it as will tend to advance the beneficial purposes manifestly within the contemplation of the general assembly at the time of its passage.” Was the beneficial purpose of the legislature in enacting this legislation to increase the superintendent’s annual income, or was it, as declared by the act, a provision for clerical assistance and to prescribe its payment out of the fund created therefor? Again at § 916, Lewis’s Sutherland, Statutory Construction, we find: “An act should be so construed as to bring it, if possible, within the legislative authority; to limit its general words to the subject-matter or object of the act.” Thus is the wording of the act limited to and to be read in the light of the subject-matter and the object of the act. The object of this legislation being manifestly to create a public fund for a particular purpose and regulate its use, limiting it to such purpose, far-fetched indeed must be the course of reasoning whereby, contrary to all precedent and dealing with public officers, a construction be given as contended for by defendant. Such an intent never could have been the controlling idea of the legislature.

One further contention demands consideration. Were these fees received and to be disbursed by the state superintendent in the course of his required official duty? The statute effectually answers in the affirmative. Sec. 869 declares his duty with reference to teachers’ answer papers that “he shall examine, mark, and file or cause fió be examined, marked, and filed all answer papers submitted” by applicants for county teacher’s certificates. Sec. 873 makes .the county superintendents the officials conducting the examinations for teachers’ certificates, and provides that they shall forward all answer papers “immediately after the close of the examination to the superintendent of public instruction for examination, marking, filing, and recording. The superintendent of public instruction shall transmit, within thirty days from the date of said examination, a record of the standings of each applicant to the county superintendent, who shall then grant to the applicant a certificate of qualification,” if the applicant is entitled thereto from said examination. The questions used in the examination, § 751 declares it to be the duty of the state superintendent “to prepare or cause to be prepared.” Though the statute permits the superintendent to either do the work himself or cause it to be done, it still remains his duty to superintend such work and such duty is discharged either by doing it himself or causing the performance of the work. The duty is to do one or the other, or both, that the work may be done within the thirty-day period prescribed for its completion. In this connection the ease of State ex rel. Newnham v. State Bd. of Education, 18 Nev. 173, 1 Pac. 844, is parallel. We quote from the court’s opinion on page 180: “The board’s duty is to prescribe and cause to be adopted a uniform series of text-books. The statute makes the last duty as imperative as the first. The complaint made in this case is that the board fails to cause the adoption of text-books by it prescribed. By prescribing a text-book simply the board’s duties are only half done. It must also see that the prescribed book is adopted and thereafter for four years it cannot be changed. This is the sensible view of the statute. The law.declares no means by which the board shall cause the adoption of text-books, but, the duty being enjoined, a power is given to use such reasonable means as are necessary for its proper performance. By a judicious exercise of this power the board need not experience much difficulty in performing their entire duty.” The fact that in the statute the disjunctive, instead of the conjunctive, is used, makes no difference with the application of the law quoted. The duty is prescribed by statute, the power to employ and the power to pay for the performance of the duty is granted, and the remark regarding the exercise of the power by the board here applies.

The phrase “or cause to be examined,” wherein the officer is enjoined to examine or cause to be examined the teachers’ answer papers, is as regards official action the equivalent of the individual performance of it by the officer. See 2 Words & Phrases, p. 1012, and Burnham v. Aiken, 6 N. H. 306, on page 328, where the court says: “What is caused to be done is done.”

Nor can it be contended that because in § 869 the words “he may appoint such clerical assistants as he may deem necessary” are framed in the permissive, that such officer does not owe a duty to the public in the performance of the work for which the money was received and disbursed. Or in other words, that it was his duty, or it was not, as he saw fit to elect as to the performance of this work. If this theory needs answer it is effectually met by the authorities. We quote from § 593, Mechem on Public Officers, as follows: “Authority to perform acts of public concern is often conferred in language which in form seems to be permissive only, leaving it to the option of the officer whether he will act or not, and the question arises whether the imposition of the authority creates an implied duty to exercise it.” In disposing of this matter the authority given cites Chancellor Kent’s decision in Newburgh & C. Turnp. Road v. Miller, 5 Johns. Ch. 101, 9 Am. Dec. 274, and continues as follows: “The inference deducible from the various cases on this subject seems to be that where a public body or officer has been clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though.the phraseology of the statute be permissive merely, and not peremptory.” See also Cutler v. Howard, 9 Wis. 309, from page 312 of which we quote: “The cases fully establish the doctrine that when public corporations or officers are authorized to perform an act for others which benefits them, that then the corporations or officers are bound to perform the act. The power is given to them not for their own but for the benefit of those in whose behalf they are called upon to act, and such is presumed to be the legislative intent.” The same rule is approved in § 460, Sutherland Statutory Construction, and in § 548, Throop on Public Officers. The interest of the public in the prescribed duties referred to of this state officer cannot be disputed. His duties affect the public in this as in the performance of all his duties prescribed by statute and owing to the public. Hence the above authority is directly applicable.

Appellant calls attention to the fact that a previous legislature, that of the year 1899, defeated a bill providing in part for the fund in question and for its payment into the state treasury and a particular scheme for its disbursement. He contend^ that the defeat of this measure, and the fact that two years thereafter a succeeding legislature passed the statute under construction, is entitled to consideration as evidence that'the bill, as passed, was not intended to be as the one defeated; and accordingly that the one passed must be taken as a grant of the fund to the individual. This is peculiar reasoning to say the least. How the reason governing the legislature of 1899 in defeating the measure in question is to be arrived at is difficult to conceive. Again, how its reasons if ascertainable, could have influenced subsequent legislation is equally hard to determine. Again, the intent of the legislature is to be determined from the act itself. If defendant’s position in this respect be law, careful indeed should the state be to preserve all its old defeated proposed bills, hundreds in number every session, tbat mayhap they may at some' future time be considered as a reason, perhaps controlling, for some legislation tbat does rim tbe legislative gauntlet and come into existence as law. Tbis proposition is well in line witb tbe strange and strained construction necessary to permit defendant to prevail in tbis action.

Tbis action came to tbis court on appeal and was of tbe files of tbis court on and prior to October, 1910, from a judgment entered in district court March 29, 1910. Since a decision hereof has been pending in tbis court, tbe last legislature has enacted chapter 266 of tbe Session Laws of 1911, which took effect last July 1st, expressly repealing tbe sections of tbe statute construed in tbis opinion, re-enacting them in .substance, however, but expressly providing tbat all fees similar to these in controversy shall be paid into tbe state treasury. In tbis connection it is a well-known principle of law tbat a legislature is presumed to do no idle act, and tbat where a law is amended tbe former law when ambiguous should be construed in such a manner as to give force to tbe amendment, rather than tbat such amendment be held unnecessary. But tbis rule of construction cannot here apply. Tbe sections of the Code of 1895 under construction are not amended but repealed by tbe 1911 Session Laws, which fact in itself renders tbe rule relative to amendments inapplicable. Besides, new offices are created, a board of examiners to do tbis work and new machinery accordingly provided, so tbat in no sense can tbe present law be considered an amendment merely of tbe 1893 statutes under discussion. And tbe rights of defendifnt under review in tbis court on appeal are as they were fixed in 1909 by virtue of tbe judgment appealed from; and legislative action since judgment entered can neither add to nor detract from tbe verity of tbe judgment questioned by appeal. Hence, whatever tbe purpose for tbe enactment of chapter 266 of tbe Session Laws of 1911, the same must be wholly immaterial and a matter witb which Ave have no concern.

Heretofore in tbis opinion we have not mentioned § 84 of tbe Constitution. We consider tbat tbe balance in suit, consisting as it does of a sum remaining undisbursed after full application to tbe purposes provided by statute of a total .collection from sources provided by statute to be covered by § 84 of tbe Constitution, and accordingly as fees or profits of an office therein named, must be under the mandate of such provision in accordance with its terms “covered into the state treasury.”

“We conclude therefore that the moneys in question are and always have been since their collection public moneys of the state, for which the defendant is obliged to account to the state; that the statutes under which defendant came into possession of and became charged with the custody of these funds gave him no personal interest in or to them; that the right to use conferred was only the right to disburse for the state’s benefit in the payment of its employees who performed such service for the state under the supervision of the defendant as a state official; that the additional duties imposed upon such office does not imply or evidence a legislative intent that the compensation of the officer should be proportionately or at all increased, the salary being but an incident resulting from the holding of office and bearing no relation whatever to the amount of official duties devolving under the law upon the officer; that where the provisions of law fixing the compénsation of the officer is not clear, it must be given the construction most favorable to the state; that the burden is upon the defendant to prove his title to the moneys in question, their collection by him while in office under color of office being admitted; and to establish title to such funds in the individual, he must establish an appropriation thereof to him by plain statute where the office is a salaried as distinguished from a fee office; that the construction given by heads of departments and executive officers of government cannot control in the interpretation of a statute contrary to its terms, nor change the rule of construction that the statute when ambiguous is to be construed in favor of, and not against, the government; that all of the time, as well as all of the services capable of being rendered performed by defendant while superintendent of public instruction, was compensated for by the annual salary paid him, and defendant is entitled to no extra allowance therefor and can make no claims in the nature of offset or counterclaim for the reasonable value of extra service performed by him under official duty of office as a defense to plaintiff’s recovery in this action, That as regards official duty every statutory direction to the officer creates a duty on his part to comply therewith, and in contemplation of law no duty prescribed can be disregarded and the fund in question remained as a balance of a collection made of moneys in the performance of statutory duties. Nor can the enforcement by the state by appropriate action to collect its money from its delinquent former official properly be held to be inequitable or unconscionable. The officer, when doubt exists as to his right to fees, gains no advantage as against the state by the conversion or appropriation to himself of fees or profits in office.

The judgment of the trial court is affirmed.

Fisk and Spalding, JJ., dissenting. Morgan, Oh. L, concurs, and Burke, L, concurs specially.