While in the state of the record the position of defendant appeals to one's sympathy, I am of the view that cases involving a type of personal service *Page 314b as to which ordinary pay-roll accounting is inadequate, and in respect of which special statutory provisions like sec. 25, ch. 110, Laws of 1929, have been enacted are quite different from those cited in the majority opinion and call for a different rule. In the case of a court reporter, the only practicable way of establishing the fact and amount of his services is to have some officer who knows the facts certify them at a time when he recalls them, and by sec. 25 above referred to this duty is imposed upon the county judge. The purpose of the statute was to safeguard the county and' to remove the possibility of a later dispute by a device that is at once simple and easy to comply with. The statute was disregarded. To permit defendant to retain the money under these circumstances appears to me to defeat the statutory purpose. The only action available to the county after payment of the money is one in restitution, and in this action it has the burden to establish that the services were not rendered. The very difficulty of proof in such a case was the occasion for the statute. Personal services of this sort leave behind them no tangible monuments which can be referred to as proof that the county got its money's worth, and there are not present the usual accounting safeguards applicable to the generality of employees. The statute. took notice of the very situation presented here and was specifically addressed to it. I think it should be complied with as a condition to receiving or retaining payment for services.
I am authorized to say that Mr. Justice BARLOW concurs in this opinion. *Page 315