On Petition for Rehearing.
Bruce, J.This appeal was first presented to and decided by a court of which I was not then a member. It now comes before us on a motion for rehearing, which, under the rules in order to be considered, must show “either that some question, decisive of the case and duly submitted by counsel, has been overlooked by the court, or that the decision is in conflict with an express statute or controlling decision, to which the attention of the court was not called either in the brief or oral argument, or which has been overlooked by the court.” (Rule No. 32, 10 N. D. lvi.) Neither of these facts is presented or claimed in the petition. The only new point raised is that a somewhat similar practice as that adopted by 'the superintendent of public instruction, prevails among the district judges of this state, and that a constitutional question was argued in the opinion of Mr. Justice Burke, which, it is claimed, was waived by the attorney general in his brief and oral argument.
It is a question' of somewhat doubtful propriety whether á new member of the bench should, after a full hearing and consideration, and on such a petition, seek to review an adjudication which was rendered by a court of which he was then not a member; but waiving this question, *133and all other doubtful questions of propriety, I am of the opinion that no new points have been raised on the motion for a rehearing which would, in any way, affect the majority decision, and I personally believe that the language of the statute is too plain to leave any doubt as to its meaning. The majority opinion filed by Mr. Justice Goss was in no way based upon the constitutional .argument, and this opinion was concurred in its entirety by both Chief Justice Morgan and Mr. Justice Burke. Mr. Justice Burke, it is true, argued the constitutional question, but merely as an additional argument, and not as the main and only ground of his concurrence.
It is not necessary to a recovery by the state in this case that the fund in controversy should be looked upon either as a fee or as a profit of the state superintendent’s office. It ^certainly was not a perquisite pr emolument of the officer. It was a trust fund which was paid to the superintendent of public instruction for one purpose, and for one purpose alone, and that was for the employment of assistants. The language of the act appears to me to be.very plain. The money collected from the examination fees paid by the respective teachers is required by the act “to be used in the 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. Section 876 provides that “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, . . . 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 worlc connected therewith.” “It shall be the duty of the county superintendent,” the section continues, “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.” The only use provided for in this section and in the act is the use in the employment of clerical assistance or clerical assistants; for that the words “clerical assistants” are synonymous with the words “clerical assistance” is clear from § 869 of the Code of 190.5, and of the same act, which provides that “he [the state *134superintendent] may appoint such clerical assistants as he may deem necessary, bnt the expenditures therefor shall not exceed, in the aggregate, the sum annually collected from applicants for county certificates for this purposeIt is also to be noted that the act nowhere permits the money to be used for expenses incident to the examination of such papers, but merely “for such clerical assistance as he may deem necessary and competent for the reading of teachers’ answer papers and work connected therewith.” This can only mean the work of the assistants, and not of the superintendent, in connection with the marking of the papers. The meaning of the act is made still more clear when we consider that that portion of § 869 which relates to the duties of the state superintendent in regard to supervision and filing and examination is separated from the portion or sentence which relates to the use of the money, by a period. It needs no argument to prove that a man cannot be an assistant to himself, or employ himself.
In no case did the title to the money in controversy become vested in the defendant Stockwell. It was a trust fund which was intrusted for a specific purpose; namely, the employment of assistants. Even if it did not come to him in connection with the prescribed duties of his' office — and this we do not concede — it came to him, nevertheless as an agent of the state. The statute, that is to say, the state, authorized the county superintendents to collect certain fees from the teachers, and of the funds thus collected to transmit a portion to the state superintendent to he used by him for a specific purpose. It cannot be claimed that in the collection and transmission of the fund, the county superintendents acted in any other capacity than as agents of the state. Except as agents of the state, indeed, they could have been given no power to hold the examinations, nor to collect the money or fees. Any other construction of the law would render it unconstitutional, and there is nothing in its terms which would justify any other construction.
There is no force in the analogy drawn in the motion for a rehearing, between the practice under those statutes which allow a flat sum for expenses to district judges, and the statute in question. We are not here called upon to pass upon those statutes, and we disclaim any intention of doing so. We merely call attention to the fact that in those statutes the sum is a flat sum, granted for a specific purpose, and that purpose is the personal use of the judge, and his own comfort and convenience. *135The money is provided to aid the judge, and not for the purpose of having someone else perform that which otherwise might be considered an implied and absolute duty of the judge himself. In the case at bar the sum is required to he used for the employment of clerical assistants, and the statute prescribes that the state superintendent shall examine or cause to he examined. There is no provision made for him in case he examines, himself. It was probably anticipated that he would but rarely so examine. There is a provision made in cases where he causes to he examined. The legislature plainly intended to make it clear that, though the personal examination of papers might be considered by some to be an absolute duty of the officer, it' was not their intention that it should be, or that the superintendent should be unduly burdened, but that he could employ assistants for this purpose, and for those assistants a trust fund was provided. The intention of the legislature to me appears to be plain. It may be that some individuals have understood, and still understand, the act otherwise; but it is the intention of the legislature, and not even of the authors of the bill, that we must seek to ascertain. In the case of the expenses of the district judge, the provision is made for personal use, and for personal comfort. The money is not required to be used for the employment and compensation of others. At any rate, these judicial expenses statutes are not before us, nor have they been adjudicated by this court. This case must stand upon its own foundation, and it is the intention of the legislature in this special instance that we must endeavor to ascertain. To use the language of Mr. Justice Cassoday, in the ease of State ex rel. Raymer v. Cunningham, 82 Wis. 39, 50, 51 N. W. 1133, “While such an argument may have weight in construing a doubtful or ambiguous provision, yet it has no force as against the plain language of the clause in question.”
The history of the statute is well known. Formerly, and under § 740, Code of 1899, the county superintendents examined the papers. Even then, however, the examinations were held, and the questions marked under the rules and regulations of the state superintendent. Sec. 736, Rev. Codes 1899. The only new duties imposed by § 869 of the Code of 1905 are the duties “to examine, mark, and file, or cause to he examined, marked, and filed, all answer papers submitted.” There is no doubt of the power of the legislature to impose upon the state *136superintendent these new duties, especially since he is expressly allowed to delegate them, and is allowed a fund with which to compensate his assistants. The burden upon the respective county superintendents became onerous, and there came a cry for uniformity and greater accuracy in the markings. It was therefore thought that all of the work of the examination of answers should be done in the state superintendent’s office, and it was already the duty of that office to prepare the questions. In order to have such extra work done and not unduly burden the state superintendent, a fund was furnished for the employment of clerical assistants. No new duty was imposed upon the state superintendent as to general superintendence, and although the examination of the papers might have been held to be a new duty, he was provided with a fund to be used for the employment of assistants, and could delegate the duty. The statute requires such money to be used for the employment of clerical assistants. In speaking of the fund it expressly provides a use, and that is in employing “clerical assistance necessary and competent for the reading of teachers’ answer papers, and work connected therewith.” It provides that the state superintendent may appoint such clerical assistants as he may deem necessary, but the expenditures therefor shall not exceed, in the aggregate, the sum annually collected for county certificates for this purpose. One cannot be an assistant to himself, or even, technically speaking, of assistance to one’s self, nor can he “employ” himself. The law recognizes no doubles.
I do not agree with Judges Goss, Morgan, and Burke that the case of Com. v. Fry, 183 Pa. 32, 38 Atl. 417, is an authority for the state, but I do hold that in the case at bar the facts are materially different, and that the case is hardly an authority for the defendant. If it were an authority, I believe that it states bad law, and a bad public policy. In that case a flat sum of $500 was required to be paid to the clerk of the court by applicants for liquor licenses, “for expenses connected therewith.” The terms are general. The fund was for the payment of expenses. The amount saved or made out of the fund by the clerk of the court, if any, did not necessarily detract from the compensation or efficiency of others to whom discretionary powers had been authorized to be delegated. No others were specifically mentioned. Neither do I believe that the South Dakota case cited in the opinion of Mr. Justice *137Fisk is an authority for the defendant. It, in any case, lays down a rule of public policy with which I am utterly unable to agree, and which chapter 51 of the Laws of 1901 (Rev. Codes 8645), which makes it a misdemeanor for a public official to appropriate clerk hire to their own use, absolutely repudiates. It announces both a bad and a dangerous doctrine. In that case, as is pointed out in the opinion of Mr. Justice Fisk, the legislature made an allowance to the probate judges of a certain sum “for clerk hire,” and the supreme court held that the judges were entitled to such allowance whether they in fact employed a clerk or did the clerical work themselves. “The probate court,” the supreme court of South Dakota said, “may not desire to appoint, nor may the public service demand the appointment of, a clerk of the probate court with such full and extended powers. Therefore .the legislature wisely left it optional with the judge. The act . . . provides that in counties having 20,000 inhabitants or moré, compensation shall be allowed the judges of the probate court for clerk hire; the legislature, no doubt, presuming that in counties having that much population the business of the prohate courts would be of such a magnitude that the judge could not reasonably be able to do all the judicial, ministerial, and clerical business coming before it. . . . The legislature evidently intended that this money should be appropriated in these counties to be used at the discretion of the probate judge for the good of the public” [Gordon v. Lawrence County, 1 S. D. 34, 44 N.-W. 1025], and even when he employs a clerk or clerks he is under no legal obligation to pay him or them the full amount or percentages allowed for clerk hire. He can pay his clerk whatever price is agreed upon, retaining any surplus or percentage for his own use. But the public needs good service, and though it should demand that its officers and servants should work hard, it is not to its interest that they should be burdened or overworked. A burdened man renders but inefficient service. A county judge or superintendent of public instruction whose time is taken up with the details of his office, and with clerical work, can render but inefficient judicial and administrative and supervisory service. To say that such an officer may appropriate to himself money which is expressly given to him “for the employment of assistants,” and employ.no assistants at all, would be to defeat the very purpose of the statute, and promote a general public inefficiency, rather than efficiency. Public officials are merely public *138servants, and public statutes cannot be construed differently than the private contracts and obligations of individuals. Would anyone say that if a railway company came to the conclusion that a station agent was overworked and was liable to neglect the general business of the company, and so gave to such station agent $500 to be used “for the employment of station assistance,” such agent could dispense with such assistants and keep the money himself ? It may be, as Justice Spalding says, that the state superintendent need not have accepted these added duties at all, or agreed to become a trustee of the fund at all, but when he accepted the fund he accepted it impressed as it was with a trust, and for a specific purpose, and he could not use it for any other.
This is a civil, and not a criminal, action, and there is no reason or necessity, in this case, for imputing dishonesty to the defendant. I personally believe that he acted with an honest belief, and without guile. An honest belief, however, does not give legal right, nor does it change the meaning of the clerk provisions of statutory law. To hold that the fund could be appropriated to the personal use of the superintendent would evince an unwisdom on the part of the legislature of which it would be hard to believe they were guilty. The purpose of the act was ^to promote the cause of education, and educational efficiency, and not To hamper it. It was to promote a thoroughness and competency in the examinations, and not to lower the standard. It was to insure correct and satisfactory markings, and not to lessen the amount of care andi thought expended upon the papers. If the state superintendent could have all that he could make out of the fund, or that he could save after paying expenses, there would be a constant temptation to employ cheap and inefficient assistants, and to assume to himself more work than he could reasonably perform. The more work he would expend upon the examinations, the less he could expend in the general discharge of his duties; but the more work and time he thus spent, the more money he would make. The case is very different when a judge is allowed a flat sum for his traveling and other expenses. There parsimony and a strict economy does not result in a public injury, but in the judge’s' own personal discomfort. The question before us is, as I have suggested, not a question of honesty or of dishonesty, but a mere, naked question of legal right. I have no doubt of the honesty of the defendant. I am equally clear that he has no legal right to the fund in question.
I am of the opinion that the motion for rehearing should be denied.