Nebraska Revised Statutes
Chapter 33 - Fees and Salaries
33-147 - Illegal fees; taking; penalty.

33-147. Illegal fees; taking; penalty.
If any officer shall take greater fees than those prescribed in sections 33-101 to 33-146, for any service to be done by him in his office, or shall charge or demand, and take any of the fees prescribed in said sections without performing the service for which such fees are authorized, he shall forfeit and pay the sum of fifty dollars to the party injured, to be recovered as debts of the same amount are recoverable by law.
Source

Annotations

1. Constitutionality


2. Actions


3. Defenses


4. Miscellaneous


1. Constitutionality


This section provides a fixed sum in the nature of liquidated damages to be recovered by a person who suffered an injury through the wrongful act or oppression of a public officer and does not violate the constitutional provision relating to the disposition of fines, penalties, and license money. Graham v. Kibble, 9 Neb. 182, 2 N.W. 455 (1879).


2. Actions


The penalty prescribed by this section cannot be recovered in a suit on the officer's bond. A cause of action under this section arises whenever an officer receives fees in excess of those prescribed by law, or for services not performed, during his term of office. Sheibley v. Cooper, 79 Neb. 232, 112 N.W. 363 (1907); rehearing denied, 79 Neb. 236, 113 N.W. 626 (1907).


The remedy provided by this section is cumulative and is not ban to a suit in equity for an accounting against an officer for receiving illegal or excessive fees. McGlave v. Fitzgerald, 67 Neb. 417, 93 N.W. 692 (1903).


The penalty provided by this section may be recovered against an officer who charges a fee for performing services for which the statute has not provided a fee. Courier Printing & Publishing Co. v. Leese, 65 Neb. 581, 91 N.W. 357 (1902).


A cause of action to recover the penalty provided by this section and a cause of action to recover illegal fees charged by a sheriff may be properly joined where both causes of action arise from the fees charged by a sheriff for his services in one action. Phoenix Ins. Co. v. McEvony, 52 Neb. 566, 72 N.W. 956 (1897).


The last clause of this section provides the manner in which the penalty may be recovered, and does not confer jurisdiction upon the county courts to hear and determine actions brought to recover the penalty. Crow v. Bowen, 19 Neb. 528, 26 N.W. 251 (1886).


Where an action to recover the penalty provided by this section has been commenced, a constable cannot amend his return so as to show that the fees charged were actually earned unless the parties in interest are given notice of the application for leave to amend. Newby v. Miller, 5 Neb. Unof. 468, 98 N.W. 1066 (1904).


3. Defenses


Where payment of fee is made voluntarily, with full knowledge of the facts and at most only under mistake of law, the fee paid cannot be recovered. Ehlers v. Gallagher, 147 Neb. 97, 22 N.W.2d 396 (1946).


A cause of action based on this section is highly penal, and where there was no evidence as to the value of the services performed, a clerk of the district court who had performed the services and collected a fee on the supposition that he was entitled to it as compensation was not liable under this section. Sheibley v. Hurley, 74 Neb. 31, 103 N.W. 1082 (1905).


This section was enacted to provide against the collection of illegal costs by public officers in all cases, and the fact that an injured party could obtain relief through a motion to retax costs is not a ban to an action brought to recover the costs and the penalty provided by this section. O'Shea v. Kavanaugh, 65 Neb. 639, 91 N.W. 578 (1902).


Mistake or ignorance is not a defense in an action brought under this section. Phoenix Ins. Co. v. Bohman, 28 Neb. 251, 44 N.W. 111 (1889).


The fact that the excessive fees were demanded and received by the defendant in good faith is not a defense to an action brought to recover the penalty prescribed by this section. Cobbey v. Burks, 11 Neb. 157, 8 N.W. 386 (1881), 38 Am. R. 364 (1881).


4. Miscellaneous


Police judges are included within the scope of this section as officers whose fees are hereinbefore expressed and limited. Downey v. Coykendall, 81 Neb. 648, 116 N.W. 503 (1908), affirmed on second appeal, 89 Neb. 21, 130 N.W. 983 (1911).


The sureties upon the official bond of an officer are not liable for the penalty prescribed by this section. Eccles v. Walker, 75 Neb. 722, 106 N.W. 977 (1906), reversing Eccles v. United States Fidelity & Guaranty Co., 72 Neb. 734, 101 N.W. 1023, 117 A.S.R. 830 (1904).


Although the effect of payment of excessive fees by an execution debtor may be to reduce the amount realized on the sale of the property, the execution creditor cannot recover the penalty prescribed by this section where the evidence fails to show that the execution debtor is insolvent and unable to pay the judgment. Iler & Co. v. Cronin, 34 Neb. 424, 51 N.W. 970 (1892).


Where three items of illegal fees are paid to a clerk of the district court in one sum and included in one receipt, the overcharge is but one transaction and only fifty dollars may be recovered as a penalty. Lydick v. Palmquist, 31 Neb. 300, 47 N.W. 918 (1891).

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