In this case petition for rehearing has been filed and is accompanied by a very interesting brief in support thereof. After examination of the petition and brief, we ordered the respondent to file and serve a reply brief.
We have given this matter more than ordinary attention because of the insistence of counsel for appellant, that we had erred in our original opinion. The chief contention made is, that we failed to note any distinction between claims of executive officers and ministerial officers; and further, that we failed to distinctly pass on the sufficiency of defendant's separate defense of an existing emergency sufficient to suspend the statute and justify the allowance of the claim here involved. It was thought, at the time the opinion was filed, that our holding, to the effect that the statute (sec. 30-1104, I. C. A.) in positive terms forbids any "county officer" presenting "a claim against the county for any service other than his official services," was sufficient to dispose of defendant's separate affirmative defense. The statute in prohibitive form says: *Page 8
"No county officer must, except for his own services, present any claim, account or demand for allowance against the county," etc.
It will be seen that this statute is all inclusive; it includes both the administrative and executive officers of the county and leaves no opportunity or excuse for distinguishing between the grades of county officers, in its application and operation.
We shall not attempt an analysis of appellant's cases in this opinion. We think, however, no one of them can be said to be directly in point here; and that is due to the fact that the statutes considered all differ in some respects from the statute here under consideration. In Baker v. Board of CountyCommrs., 9 Wyo. 51, 59 P. 797, the court was dealing with a penal statute, in many respects differing from the statute here involved. United States v. Brindle, 110 U.S. 688,4 Sup. Ct. 180, 28 L. ed. 286, was decided under a federal statute and an Indian Treaty, both of very different import from the statute we are considering.
Mousseau v. Garey, 200 Cal. 201, 252 P. 324, was a case where a county auditor was appointed as purchasing agent. The statute of California (sec. 4041, P. C.) authorized the board of commissioners to appoint a "purchasing agent" and the board appointed the county auditor. The supreme court held that, since the law authorized the appointment of a purchasing agent, and there was no prohibition against a county officer holding the position, his appointment was legal and regular, and that
"The salary paid him as purchasing agent was not paid him for services rendered. . . . as county clerk" and that, "Had plaintiff resigned his office as county clerk the next day after his appointment as purchasing agent said resignation would have had no effect upon his position as purchasing agent and he would have continued to discharge the duties of said last-named position," etc.
So it will be seen that this case is not in point under our statute. We are bound to reiterate that the statute here under consideration is positive and prohibitive in its terms and that the emergency set up by appellant's answer could, *Page 9 in no way, suspend or obviate the operation of the statute. The suggestion that this holding, in some instances, might leave the county without any person to bury the dead, is not supported by the statute. As suggested in the original opinion, sec. 30-2302 provides for burial of unclaimed bodies by the coroner. That section reads as follows:
"When an inquest is held by the coroner, and no other person takes charge of the body of the deceased, he must cause it to be decently interred; and if there is not sufficient property belonging to the estate of the deceased to pay the necessary expenses of the burial, the expenses are a legal charge against the county."
Our attention has not been called to any statute that prohibits any person burying a dead body. Section 53-1401 does provide for the embalming and preparation of dead bodies for shipment, and in such case requires that this be done by a licensed mortician or undertaker.
We have discovered no valid reason for departing from the holding of the original opinion in this case. Without expressing the opinion of other members of the court I am much in sympathy with the position taken by counsel for appellant. However in my opinion the remedy lies with the legislature. This court is committed to the principle of law announced in the main opinion, from which we are not in a position to depart. Petition will, therefore, be denied.
Givens, C. J., and Morgan, Holden and Ailshie, JJ., concur. *Page 10