The majority opinion declares: "In the County Government Act of 1897, applicable to this case, Humboldt County is in the eleventh class (sec. 168), and it is provided therein that the countyclerk, and his deputy, shall be paid stated salaries. . . . And in a general provision contained in said act it is declared: `The salaries and fees provided in this act shall be in full compensation for all services of every kind and description rendered by the officers therein named, either as officers or exofficio officers, their deputies and assistants, unless in this act otherwise provided.'" The opinion then proceeds: "This provision is a legislative declaration that the officers shall not receive any compensation from the county other than the salaries therein named for any services they may render it, either in the line of their official duty or otherwise. Its effect is to render the officer incompetent to enter into a contract for compensation for any services he may render the county, and to render such contract void." I do not believe this to be the effect of the aforesaid legislative declaration. As I read, it simply means that the sum fixed shall be in full compensation for all services rendered as officers or ex officioofficers. By this enactment the legislature was only dealing with the question of compensation for the performance of official duty. It was not the intention of the legislature by this provision to prohibit a county clerk or sheriff from shoeing a horse for the county. That would be work done outside of official duty, and I do not know of any express provision of law forbidding a recovery for such work. If it be against public policy for courts to judicially recognize contracts of that character, that is a different question — a question not raised in this case by counsel.
If the performance of the work done by defendant for which he here seeks to recover was work done outside of his *Page 69 official duty, then I think he is entitled to recover. Under such circumstances, the fact that he was a county officer at the time the board of supervisors employed him to do the work is a foreign quantity in the case. As to the work done, the finding of fact is "defendant did collect and prepare the requisite data in blanks furnished by the state." This data was taken in part from the minutes of the board of supervisors, and in part was obtained from outside sources. As I view it, the performance of this character of work was no part of the duties demanded of the county clerk in his capacity as such, nor was it any part of his duty in his capacity as clerk of the board of supervisors. Plaintiff relies upon subdivision 11 of section 20 of the County Government Act for authority to support a contrary conclusion. That provision reads: "The clerk of the board must perform all other duties required by law or any rule or order of the board." If the service here performed by defendant was not an official duty within some express provision of the law, or within some rule or order of the board of supervisors, then it was not an official duty at all. Yet the clerk was not required to perform this work by any express law to which our attention bas been directed; neither was he required to perform it by any rule or order of the board. No rule of the board has been produced which could possibly apply to this case; and it is conceded the board made no order for defendant to do the work. Indeed, it appears defendant accepted the employment as a favor to the board, and at its special request.
For the foregoing reasons I conclude that defendant should recover the amount of money which it is conceded his services were reasonably worth. The judgment should be reversed.
McFarland, J., concurred in the dissenting opinion. *Page 70