Linton v. Commissioners of Linn Co. , 7 Kan. 79 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

The only question presented by the record is this: Will an appeal lie from the decision of a board of county commissioners, rejecting the application of the Probate Judge for an allowance in addition to the fees given by law ? The Probate Judge has certain fees, fixed by statute; § 4, ch. 39, Gen. Stat., p. 477; and further, §85, ch. 25, Gen. Stat., p. 273, reads, “and he shall receive such fees as are by law allowed him, and shall receive such other compensation as may be allowed by the county commissioners, not to exceed five hundred dollars per annum.”

This language gives to the county commissioners the discretion, to allow something out of the county treasury to the probate judge, in case his legal fees do not appear to them adequate compensation. . It is a discretion vested in them, and can be exercised by no other tribunal. An appeal, if allowed, would in effect take from this discretion, and vest it in others. Judge Gholson, in the case of Com'rs of Geauga Co. v. Ranney, et al., 13 Ohio St., 392, used this language : “It cannot be properly claimed that from the exercise of a mere discretionary power, vested in the board of county commissioners, an appeal might be taken to the court of Common Pleas, under the general language of the law allowing and regulating such appeals.” With that opinion we agree.

The order dismissing the appeal is affirmed.

All the Justices concurring.