In concurring with the views expressed by Justice McCOY, and at his request I would add the following:
If I read the respondent’s brief correctly, it is his contention that inasmuch as, under the Constitution of this state, all judicial power is vested in the Supreme Court, circuit courts, county courts, and the courts of the several justices of the peace, the board of county commissioners has no judicial powers and can perform no judicial function. Respondent therefore claims that it was not necessary to appeal from the action of such board, and that the proper remedy was that pursued in this case, namely, a direct action brought in the circuit court.
[5] It would seem to me that respondent has failed to distinguish between a “judicial power,” which can only be exercised by some court, and a “quasi judicial power,” being one involving judgment and discretion and which may be conferred upon an executive or administrative board as an incident to its duties, and from the exercise of which an appeal can be, and in this state *126often is, given to the courts. Chief Justice Tripp in his opinion in the case of Champion v. Commissioners of Minnehaha County, 5 Dak. 416, 41 N. W. 739, said: “Judicial power, and all the judicial power of the territory, is expressly conferred upon the courts, to-wit, the Supreme and district courts, courts of probate, and justices of the peace. The Legislature can create no other court; and can confer judicial power, strictly such, that which ‘deprives of life, liberty, or property/ upon no other tribunal. Quasi judicial powers involving judgment and discretion are often, and must necessarily be, exercised by administrative and executive bodies and officers. A judicial power, as such, can be exercised only by the courts. The three great departments of the government are intended to be, and must be, separate and distinct. The Legislature has no power to confer a strictly executive and administrative or legislative power upon the judiciary, and whenever it has sought to do so the courts have declared it void. * * * At first thought it might seem paradoxical that appeals lie from judicial decisions only of the board to the courts, and that the boards are vested with no judicial power. The explanation is found in the fact that, while the decisions of the board have no binding force in matters of a strictly judicial character, yet such board is permitted to audit, and to that extent determine, matters affecting persons and property; and an appeal from such decisions is determined as an original action in the district court, in the same manner as if commenced there by service of summons. Spencer v. Sully County [4 Dak. 474, 33 N. W. 97].” The .compensation, if any, to be given a public officer may be fixed prior to the service rendered, or may by law be left to be allowed by some person or body after the rendition of such service.
[6] These propositions are fundamental: No person occupying an official position for which the Legislature has prescribed a salary is entitled to compensation other than such salary, for the doing of those things included within the duties for which the salary is_ allowed; where a fee is allowed for the doing of an act, the officer is entitled to no other compensation for the doing of that particular act or service; no officer can recover compensation for any service coming within his official duties, for which no fee or salary has been provided, unless the Legislature has vested in some person or body authority to pay for such serv*127ice. Where there is a salary or fee provided by-law, there cannot be, outside of such salary or fee, any property right that can be submitted to the determination of any board or tribunal; therefore, the allowance of a claim for service performed where salary or fee has been provided, and where there -is no dispute as to the performance of the service is a purely administrative duty involving no action in any sense judicial in its nature. Creating an office and then authorizing some person or body as an incident to an administrative duty or power to allow a compensation -to the incumbent of such office for services performed by him confers upon such incumbent, as soon as any official service is performed, a property right in and to a reasonable compensation for such service. The power to determine the amount of such compensation being a power that, if wrongfully used, might deprive the officer of property, is a power judicial in its nature, and yet such as is merely incidental to the discharge >of the administrative power. All legislative action is ended when a law is enacted clothing some person or body with power to allow compensation after the service is rendered; the allowance of such compensation involves the exercise of what is spoken of as “quasi judicial” power.
It necessarily follows that when to the board of county commissioners there is given the power, after the performance of official services by some officer, to determine the compensation therefor, the said county commissioners, in determining the same as a part of its administrative duties, is exercising a power involving judgment and discretion upon its part, and therefore a power quasi judicial in nature.
[7] The question for - determination in this case is whether section 252 of -the Rev. Pol. Code contemplates that the board of county commissioners shall prior to the performance of any service fix a 'schedule of fees for the services to be performed by the superintendent of the board of health. If such was the intent of the lawmakers, then there was conferred upon such a board a legislative power. If, upon the other hand, the Legislature intended and did confer upon the commissioners the power to determine the compensation to be allowed the superintendent for services already performed, then no legislative power is vested in the commissioners, but a power purely administrative having, as an in*128cident thereto', the exercise of a power quasi judicial in nature. From a careful consideration of section 252 as well as sections 242 and 251, I am driven to- the conclusion that it was not contemplated that the commissioners should fix fees, but that as a part of their administrative duties they should allow to the superintendent of the board of health compensation for services after the same were rendered.
[8] I think it too clear for argument that, under our statute, an appeal lies from any action or determination of the board of county commissioners, which action or determination involves as an incident thereto the exercise of a power quasi judicial in its nature.
If the statute had provided that the respondent should receive a reasonable compensation, with no provision that the same should be fixed by the board of county commissioners, he clearly would have had the right to present his claim to such board, and, if they had rejected the same, to either have appealed therefrom or to have brought an original action in the circuit court; but the statute provides that this compensation shall be fixed by such board. It follows that a proper procedure was for the respondent, after performing the services, to have presented to the board of county commissioners a statement showing the services rendered (which statement might or might not have been accomplished by a claim setting forth the amount which he thought was reasonable and just) and to> have asked such board to fix his compensation. When the board had fixed such compensation, if the respondent was satisfied therewith, he then could have presented his bill or claim based upon such allowance, which the. commissioners could have allowed and paid, or, if they saw fit, rejected. If they rejected the same, then the respondent woull have been in a position to either appeal from the order rejecting the claim, or to have brought an independent action, basing his cause of action upon the allowance made by the commissioners. In case the allowance made by the commissioners was by the respondent deemed inequitable, he would have had a right to appeal from such quasi judicial action on -the part of the commissioners, and, upon such appeal, the circuit court would have determined the just amount of such compensation, after which the respondent could have presented to the county commissioners his *129claim based upon -the allowance as fixed on appeal; and then, if the county commissioners disallowed such claim, he could either appeal therefrom to the court or institute an original action. In the case at bar the superintendent, instead of applying. to the commissioners' to have the amount of his compensation fixed and afterwards presenting a claim based on what the commissioners allowed as compensation or appealing from such allowance, presented to such commissioners a bill and claim calling upon the board to fix his compensation and also to allow his claim therefor. Conceding that the respondent had the right to present both matters together, it follows as a necessary sequence that when such commissioners rejected his claim without fixing any compensation which could form the basis of an independent action his only remedy was by appeal.
GATES, J., concurs in the views expressed by WHITING, P. J, and McCOY, J.