Board of Education of Nebo School Dist. v. Jeppson

• Decision Date: 13 June 1929
• Docket Number: 4807
• Citation: 280 P. 1065,74 Utah 576
• Court: Utah Supreme Court
• Parties: BOARD OF EDUCATION OF NEBO SCHOOL DIST. v. JEPPSON, County Treasurer, et al

280 P. 1065

74 Utah 576

BOARD OF EDUCATION OF NEBO SCHOOL DIST. v. JEPPSON, County Treasurer, et al

No. 4807

Supreme Court of Utah

June 13, 1929

Rehearing Denied October 1, 1929.

Appeal from District Court, Fourth District, Utah County; George P Parker, Judge.

Action by the Board of Education of the Nebo School District against Henry Jeppson, Treasurer of Utah County, and another. Judgment for the plaintiff, and defendants appeal.

REVERSED WITH DIRECTIONS.

Dickson Ellis, Parsons & Adamson, of Salt Lake City, for appellants.

J. W. Robinson and J. Robert Robinson, both of Provo, for respondent.

BRAMEL, District Judge. CHERRY, C. J., and STRAUP, EPHRAIM HANSON, and FOLLAND, JJ., concur, ELIAS HANSEN, J., being disqualified, did not participate.

OPINION

BRAMEL, District Judge.

The undisputed facts in this case are as follows: In the year 1925, some time prior to May 1, the assessor of Utah county, assessed that part of the property of the Columbia Steel Corporation within the Nebo school district at a valuation of $ 1,285,790. On June 5, 1925, the board of county commissioners of Utah county met as a board of equalization to equalize valuations. Officials of the Columbia Steel Corporation appeared before the county board of equalization at that time and made objection, both orally and in writing, to the valuation placed upon the property of the company and requested a reduction. No decision was made by the board at that time. The board was busy with many matters, and many people were present with complaints. The amount involved in this item was large and the matter required extensive investigation. Therefore the board informed the representatives of the company that this item would be given special consideration later. On or about June 20, 1925, the board, with all members present, went to the plant of the Columbia Steel Corporation, where the board discussed the matter with officials of the company and informed the officials that the board would take the complaint under advisement and act upon the same at the first opportunity. The board and its members made investigations thereafter, but no decision as to abatement of valuation was made until some time in November, 1925. Some time in November, the auditor of Utah county wrote a letter to the state board of equalization, wherein he stated that board of county commissioners wished to reconvene as a board of equalization on November 16, 1925, to make an adjustment of $ 250,000 in the case of the Columbia Steel Corporation and some other adjustments in other cases. The state board of equalization, on November 24th, replied to this letter with a resolution permitting the commissioners to reconvene as a board of equalization to equalize the valuations of certain properties, but refused to permit any change in the valuation of the Columbia Steel Corporation property. Thereafter, and on November 23, and again on November 27, the board of county commissioners reconvened as a board of equalization and at the meeting of November 27, by resolution, abated the assessment of the Columbia Steel Corporation property by the sum of $ 250,000 and directed the assessor to cancel the first assessment and enter the new assessment. The resolution recites that at the meeting of June 5 the matter was taken under advisement for further investigation.

Pursuant to this resolution, the county assessor of Utah county abated the valuation of the property of the Columbia Steel Corporation on the tax book, which book was then in possession of the county treasurer, by the sum of $ 250,000 and the treasurer then collected from the company the taxes for the year 1925 in the amount shown to be owing upon the assessed valuation after such abatement. The treasurer acted in good faith and under the belief that his actions were legal in all respects.

By means of such abatement the amount of tax money collected by the county treasurer for Nebo school district was lessened by the sum of $ 2,050. It is for this sum, with interest, that plaintiff, in September, 1926, brought this action against Henry Jeppson, as treasurer, and the sureties on his official bond. The term of office of said Jeppson expired December 31, 1926, and on January 1, 1927, John C. Taylor became his successor in office.

A judgment for $ 2,050, with interest, was rendered against "Henry Jeppson as Treasurer of Utah County, and his successor in office, John C. Taylor, as Treasurer of Utah County, State of Utah." John C. Taylor was not a party to the action in any capacity.

The second amended complaint, upon which trial was had and judgment rendered, was filed January 25, 1927. Judgment was given March 24, 1928. Jeppson was not treasurer at the time the second amended complaint was filed or at any time thereafter. Other facts will be stated in this opinion.

1. Our first conclusion is that the judgment in question is a personal judgment against Jeppson. The recital in the judgment that it is "against Defendant Henry Jeppson, as Treasurer of Utah County," avails nothing. The recital could as well be that the judgment is against him as ex-treasurer. The judgment is against Jeppson in his personal, private capacity. It cannot upon the record be any other kind of a judgment. Taylor was not a party to the action. On the face of the record the judgment against Taylor appears to be a nullity.

2. Is Henry Jeppson answerable to plaintiff for the alleged tax deficiency in question? Comp. Laws Utah 1917, § 5918, provides that "the assessor and his sureties are liable on his official bond for all taxes on property within the county which, through his wilful failure or neglect, is unassessed or which has been by him wilfully assessed at less than its cash value."

Thus we see that an assessor, who is frequently confronted by uncertainties as to his course of duty in the matter of assessments, is to be held liable to the public for wilful misfeasance only. Is there any reason why a similar measure of toleration should not be accorded to a treasurer who is performing official administrative or quasi judicial acts of like character under like circumstances?

As to public moneys that have come into a treasurer's possession and are with him for safe-keeping, the statutes, in a mandatory manner, fix the duties, and therefore the measure of liability, of the treasurer and his sureties. As to the measure of his liability in other matters the statutes are silent.

But in a case where the treasurer is performing ministerial acts or is acting in an executive or quasi judicial capacity and not as a custodian of public funds, is he under the same strict rule as to liability for these acts as he is under as a custodian of public funds? We are of the opinion that he is not, and especially so when such acts are in the nature of a continuation of the work of the assessor.

Let it be observed that the statute quoted defines the attitude of the public towards an assessor who makes an error to the prejudice of the public. We do not say that this statute in any wise directly applies to any officer save the assessor, nevertheless it does suggest a rule of leniency which many courts have applied in cases like this. Jefferson County v. Ross, 196 Ky. 366, 244 S.W. 793; Tyler v. Cass County, 1 N.D. 369, 48 N.W. 232; Stutsman County v. Wallace, 142 U.S. 293, 12 S.Ct. 227, 35 L.Ed. 1018.

It has long been a principle of common law that a ministerial officer whose duty it is to act under the order or the warrant of a court, or of a superior officer, or of an official body, is not liable for obeying his mandate if it appears to be within general jurisdiction of the tribunal, superior officer, or official body that issued it and is fair upon its face. A great weight of authority upholds and emphasizes this principle, as will appear from cases cited later.

By the term "general jurisdiction" is meant the field of power and authority defined by law and conferred by law upon a tribunal or an official body or an officer. True it is that certain procedural steps or antecedent acts are generally required in order to invoke the exercise of this general jurisdiction in a particular case or instance. The extent of the general jurisdiction of a tribunal or official body or officer and the limitation upon such jurisdiction are defined in the laws of the land. All men and officers are, generally speaking, conclusively presumed to know the extent of this general jurisdiction. But as to whether a prerequisite step necessary to give an officer or tribunal jurisdiction to act in a particular case falling within general jurisdiction has or has not been taken, a different rule prevails. The steps or acts that invoke jurisdiction are generally facts in pais or performances of a party to the proceeding. An officer holding a writ fair upon its face may assume, and according to most rulings must assume, that the body or tribunal having general jurisdiction to issue writs of that class had special jurisdiction to act in the particular case in which the writ was issued. Haffin v. Mason, 15 Wall. 671, 21 L.Ed. 196; Kercheval v. Allen (C. C. A.) 220 F. 262; Harding v. Woodcock, 137 U.S. 43, 11 S.Ct. 6, 34 L.Ed. 580; Holdredge v. McCombs, 8 Kan. App. 663, 56 P. 536; State v. King, 30 Ind.App. 389, 66 N.E. 85; Rush v. Buckley, 100 Me. 322, 61 A. 774, 70 L. R. A. 464, 4 Ann. Cas. 318; Sprague v. Birchard, 1 Wis. 457, 60 Am. Dec. 393, and other cases herein.

The respondent contends, however, that the resolution or order of the county board directing the assessor to make this abatement was not fair upon its face, because not certified by the auditor, and that it failed to show jurisdiction on the part of the board to make such an order and that the act of the assessor was a nullity.

The...