Blaine County v. Lincoln County

• Decision Date: 25 February 1898
• Citation: 52 P. 165,6 Idaho 57
• Parties: BLAINE COUNTY v. LINCOLN COUNTY
• Court: Idaho Supreme Court

52 P. 165

6 Idaho 57

BLAINE COUNTY v. LINCOLN COUNTY

Supreme Court of Idaho

February 25, 1898

BOARD OF ACCOUNTANTS-CLERICAL DUTIES.-Accountants appointed under the provisions of an act creating a new county out of part of the territory of another county, to apportion the indebtedness of the old county between it and the new county upon a given basis, are not vested with either legislative or judicial functions, but perform mere clerical duties. Blaine County v. Smith, 5 Idaho 255, 48 P. 286, cited and approved.

SAME-ACTS OF BOARD NOT FINAL.-The acts of a board of accountants appointed to apportion a debt between two counties upon a given basis, is not final, but may be impeached on the ground of fraud or mistake.

STATUTORY LIABILITY OF NEWLY CREATED COUNTY-JURISDICTION OF COURT TO IMPEACH REPORT OF ACCOUNTANTS.-A board of accountants provided by statute to apportion a certain indebtedness between two counties, on a given basis, acted and, in acting failed to carry out the direction of such statute, by which failure on their part one county was defrauded of a large sum of money, which should, under the provisions of such statute be paid to it by the other county. Held, that in such case the courts have jurisdiction to grant relief. Held, further, that it was the duty of said board to carry out the provisions of the statute under which it was created, and in case of failure by such board to perform its duties, the court must, in a proper action therefor, grant relief by rendering such judgment as will carry out the will of the legislature as expressed in said statute.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded, with instructions. Costs of this appeal awarded to the appellant.

Selden B. Kingsbury and Lyttleton Price, for Appellant.

Have the courts jurisdiction of this action? That is to say, has the plaintiff a right to call upon the courts to enforce this obligation according to the intent and purposes of the legislature notwithstanding the provision for the appointment of the accountants to compute the amount of it? (Custer Co. v. Yellowstone Co., 6 Mont. 39, 9 P. 586; Grant County v. Lake County, 17 Or. 453, 21 P. 447; Brewster v. Harwick, 4 Mass. 278; Forrest County v. Langlade County, 78 Wis. 605, 45 N.W. 598; Contra Costa County v. Alameda County, 26 Cal. 642; Rogers v. Hayes, 3 Idaho 597, 32 P. 259; Nevada v. Board of Ormsby Co., 7 Nev. 392; Morrow Co. v. Hendryx, 14 Or. 397, 12 P. 806; Nez Perces Co. v. Latah Co., 3 Idaho 413, 31 P. 800; People v. Hester, 6 Cal. 679; People v. Supervisors Eldorado Co., 8 Cal. 58; Morgan v. Beloit, 7 Wall. 613.) A coupon is an express contract for the direct payment to bearer of a certain sum of money at a certain time, and generally at a certain place. In this instance it was payable in the city of New York. It is a specific contract complete in itself, negotiable in form and possessing every attribute of commercial paper. When overdue, being an absolute promise to pay a certain sum of money on the date named, it bears interest from the date of its maturity. (5 Thompson on Corporations, 6107, 6108, 6111-6114; note on coupons, etc., 64 Am. Dec. 428; Clark v. Iowa City, 20 Wall. 583-589; Morris Canal Co. v. Fisher, 1 Stock. Ch. 667, 64 Am. Dec. 428; Welsh v. First Div. etc. R. R., 25 Minn. 320; 2 Parsons on Bills and Notes, 115, 393; Gelpcke v. Dubuque, 1 Wall. 206; Thompson v. Lee County, 3 Wall. 327; City of Aurora v. West, 7 Wall. 82. See brief of plaintiff in error in this case on p. 43; Town of Genoa v. Woodruff, 92 U.S. 502; Mercer Co. v. Hackett, 1 Wall. 83; Knox Co. v. Aspinwall, 24 How. 376; White v. Vermont etc. R. R., 21 How. 575; McCoy v. Washington County, 7 Am. Law Reg. 193, 3 Wall. Jr. 381, Fed. Cas. No. 8731; 3 Story on Bills, 336; Hollingsworth v. Detroit, 3 McLean, 472, Fed. Cas. No. 6613; Delafield v. Stevens, 2 Hill, 177; Williams v. Sherman, 7 Wend. 112; Amy v. Dubuque, 98 U.S. 470; Koshkonong v. Burton, 104 U.S. 668; Pana v. Bowler, 107 U.S. 529, 2 S.Ct. 704; Holden v. Freedman's etc. Co., 100 U.S. 72; Lawton v. South Carolina R. Co., 2 S.C. 248. See Statutes of Minnesota, Wisconsin and Pennsylvania on interest.) Interest on coupons after maturity. The law, as construed by the highest court of the state, at the time of the issue of the bonds enters into and forms a part of the contract, between the corporation and the bondholder. (15 Am. & Eng. Ency. of Law, 1269, note 7; Alcott v. Supervisors, 16 Wall. 386; Douglas v. Pike County, 101 U.S. 677; Anderson v. Santa Ana Township, 116 U.S. 633, 6 S.Ct. 413.) Bonds and coupons like these by universal usage and consent have all the qualities of commercial paper. (Mercer Co. v. Hackett, 1 Wall. 83; Knox Co. v. Aspinwall, 24 How. 376; White v. Vermont etc. R. R. Co., 21 How. 575; McCoy v. Washington Co., 7 Am. Law Reg. 193, 3 Wall. Jr. 381, Fed. Cas. No. 8731; City of Aurora v. West, 7 Wall. 82.)

P. L. Williams and Vic Bierbower, for Respondent.

In this case, although it may be shown by the evidence that the accountants may have made some mistake in their accounting, and even though it may be admitted that the court, upon a proper complaint, might have jurisdiction to correct such error, no relief therefor can be had in this case, because there is no allegation of mistake or allegation of facts showing that any mistake has been made. On the contrary all the allegations of error and wrong are distinctly charged as intentional and fraudulent. (Bliss on Code Pleading, 2d ed., secs. 159-162; Pomeroy on Remedies, 2d ed., secs. 84, 553, 554, 559; Rome Exchange Bank v. Names, 5 Abb. Ct. App. Dec. 83; Hunt v. Daniel, 6 J. J. Marsh. 399; McMichael v. Kilmer, 76 N.Y. 36; Dudley v. Scranton, 57 N.Y. 424.) This power of the legislature to create, divide, consolidate at pleasure, or abolish at pleasure, counties and other municipal corporations, carries with it the power on division to provide in the legislative discretion for the division of its properties and liabilities, and such power of the legislature is final and conclusive as to such division, and, if no division is provided for, it must be assumed that the legislature concluded that none should be made. (Windham v. Portland, 4 Mass. 384; Hampshire v. Franklin, 16 Mass. 76.) The legislature itself designated accountants or agents to carry out the legislative will in so far as ascertaining amounts and working out the mere matter of detail. If, then, this agency of the legislature make a mistake or fail to carry out the legislative purpose, it is submitted that within the general principles of the doctrines laid down in preceding cases the mistake is to be corrected by the legislature itself, and this is distinctly declared in the case of Orange County v. Los Angeles County, 114 Cal. 390, 46 P. 173. (Los Angeles Co. v. Orange Co., 97 Cal. 329, 32 P. 316; Tulare Co. v. Kings Co., 117 Cal. 195, 49 P. 8; Sedwick Co. v. Bunker, 16 Kan. 498.)

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

By Act of March 18, 1895 (Sess. Laws 1895, pp. 170-174), creating Lincoln county out of territory of Blaine county (formerly Alturas and Logan counties), it is provided that Lincoln county shall pay to Blaine county a portion of the debt of said latter county proportionate to the assessed valuation of the property in Lincoln county taken from Blaine county, and to be ascertained from the assessment-rolls of the former counties of Logan and Alturas for the year 1894. The act provides for the appointment of accountants to ascertain the debt to be apportioned, the per cent of such debt to be ascertained from said assessed valuation of property, and the fixing of the amount to be paid to Blaine county by Lincoln county. Part of section 5 of said act is as follows:

"Said accountants must meet at the town of Hailey on the first Monday of May, 1895, and after taking the usual oath of office, they must proceed to ascertain and determine: "1. The entire amount of taxable property assessed in Alturas and Logan counties for the year 1894, as shown by the assessment-books of said counties; 2. From the assessment-books of Logan county they must ascertain and determine the amount of taxable property assessed within the limits of the county of Lincoln, as hereinbefore described; 3. They must ascertain the amount of cash in the treasuries of Alturas and Logan counties at the date of the passage of this act which was available for the payment of the indebtedness of said counties, whether represented by outstanding bonds, warrants or otherwise, and the amount of interest accrued and unpaid at said date; 4. They must then deduct from the amount of the indebtedness, so ascertained and determined, the amount of cash in the treasuries of Alturas and Logan counties at the date of the passage of this act which was available for the payment of the indebtedness of said counties, or any part thereof; 5. They must proceed to ascertain and determine the amount of indebtedness of the counties of Logan and Alturas after deducting the cash available for the payment of the same, or any part thereof, and apportion between the counties of Blaine and Lincoln the remaining indebtedness in the same ratio that the taxable property of the counties of Blaine and Lincoln, so ascertained and determined bears to the entire amount of taxable property within the limits of the county of Blaine as shown by the assessment-books of Alturas and Logan counties for the year 1894."

Section 6 of said act is as follows: "At their regular April session, 1895, the commissioners of each of the counties of Blaine and Lincoln must appoint each a suitable person to examine and appraise the courthouse and jail in the town of Hailey. Said appraisers shall meet at said town...