Page:North Dakota Reports (vol. 1).pdf/297



1. County Commissioner; Excessive Fees; Charge for Use of Team.

B., a county commissioner, was indicted and convicted for “taking excessive fees.” The indictment was framed under § 6303, Comp. Laws, which is as follows: ‘Every executive officer who asks or receives any emolument, gratuity, or reward, or any promise of any emolument, gratuity, or reward, excepting such as may be authorized by law, for doing an official act, is guilty of a misdemeanor.” At the trial the following facts were established by undisputed evidence: At the date alleged, B. was a county commissioner, and, on that date, presented a bill to the county board of his county for a gross sum. The bill was allowed by the board, and ordered paid, and, on the same day, a warrant issued to B. for the amount of his bill, and was paid to B. out of the county treasury. The record book describes the bill as being rendered “for Com. services and work.” The bill as allowed and paid embraced the following items, viz.: (1) “April 29th, county committee work to Hankinson and Lidgerwood, three days with team, $18.” (2) ‘May 11th; committee work to Dwight, one day with team, $6.” (3) “May 13th, committee work to Moreton, one day with team, $6.” No evidence was offered explanatory of the above-mentioned items in the bill, the prosecution claiming that where it appeared that such claims were in fact presented by and paid to.an executive officer, that the offense defined in the statute was made out. At the close of the case for the state, defendant moved the trial court to advise the jury that the evidence was “insufficient to warrant a conviction.” The motion was denied. Held to be error.

2. Same—Charge for Official Services.

Among the instructions to the jury was the following, which is approved by this court: “The statute with regard to fees of county commissioners is plain, and not ambiguous. There is no chance for different persons to place different constructions upon the statute. The only fees they are allowed to charge is three dollars per day for the time engaged in their official duties, and also five cents per mile for travel, and, if he hag made any other charges, those are illegal.”

3. Same; Charge for Team Not a Charge for Official Services.

The following instructions were also given to the jury, and excepted to by defendant: “Now the particular charge upon which the prosecution in this case relies for a conviction is that this defendant, while acting as county commissioner, and in the performance of his official duties, charged for the use of his team, or for the use of a team. Now,