Canyon County ex rel. Griffiths v. Moore

• Decision Date: 30 December 1921
• Citation: 34 Idaho 732,203 P. 466
• Parties: CANYON COUNTY ex rel. H. A. GRIFFITHS, Respondent, v. GEORGE H. MOORE and UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, Appellants
• Court: Idaho Supreme Court

203 P. 466

34 Idaho 732

CANYON COUNTY ex rel. H. A. GRIFFITHS, Respondent, v. GEORGE H. MOORE and UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, Appellants

Supreme Court of Idaho

December 30, 1921

ACTION ON STATUTORY LIABILITY-STATUTE OF LIMITATIONS.

An action against an assessor to recover because of his failure to pay to the county treasurer moneys collected in his official capacity is an action upon a liability created by statute, not an action for a penalty or forfeiture, and C S., sec. 6611, subd. 1, prescribes the limitations for commencing such an action.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to recover from appellant Moore and his surety moneys collected by him as assessor and tax collector and not paid over to the county. Judgment for plaintiff, and defendant appeals. Reversed.

Judgment reversed. Costs awarded in favor of appellants.

T. A Walters, for Appellant U. S. Fidelity & G. Co.

An action against a public officer for misfeasance or malfeasance in office by failure to pay over to the parties entitled thereto money coming into his hands, as required by law, is a liability created by statute and is barred by the statute of limitations, limiting the time in which action may be begun on a "liability created by statute." ( Wonnacott v. Kootenai County, 32 Idaho 342, 182 P. 353; Ada County v. Ellis, 5 Idaho 333, 48 P. 1071; Hellwig v. Title Guaranty & S. Co., 39 Cal.App. 422, 179 P. 222; Norton v. Title Guaranty & S. Co., 176 Cal. 212, 168 P. 16; Peterson v. Title Guaranty & S. Co., 35 Cal.App. 103, 169 P. 239; Calaveras County v. Poe, 167 Cal. 519, 140 P. 23; Sonoma County v. Hall, 132 Cal. 589, 62 P. 257, 312, 65 P. 12, 459; Spokane County v. Prescott, 19 Wash. 418, 53 P. 661; Gallatin County v. United States Fidelity & G. Co., 50 Mont. 55, 144 P. 1085; Board of Commrs. v. Van Slyck, 52 Kan. 622, 35 P. 299; State v. Jackson, 52 Ind.App. 254, 100 N.E. 479; Board of Commrs. v. Hostetler, 6 Kan. App. 286, 51 P. 62; State v. Davis, 42 Ore. 34, 71 P. 68, 72 P. 317; State v. Conway, 18 Ohio 234; Skagit County v. American Bonding Co., 59 Wash. 1, 109 P. 197.)

The limitation acts upon the cause, not the form of action, and the effect of the statute cannot be evaded by any change of the form of action. (Havird v. Lung, 19 Idaho 790, 115 P. 930; Brown v. Cloud County Bank, 2 Kan. App. 352, 42 P. 593; Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 68 Kan. 585, 1 Ann. Cas. 639, 75 P. 1051; Mosher v. Butler, 31 Ohio St. 188; Howk v. Minnick, 19 Ohio St. 462, 2 Am. Rep. 413; Sandoval v. Randolph, 11 Ariz. 371, 95 P. 119; District Township v. French, 40 Iowa 601; Scholle v. Finnell, 166 Cal. 546, 137 P. 241; Frishmuth v. Farmers' Loan & T. Co., 107 F. 169, 46 C. C. A. 222; Cornell v. Edsen, 78 Wash. 662, 139 P. 602, 51 L. R. A., N. S., 279; Carr v. Thompson, 87 N.Y. 160.)

J. M. Thompson and Scatterday & Van Duyn, for Appellant Geo. H. Moore.

The complaint of plaintiff is not an action sounding in fraud, or the gist of which is fraud, and therefore it cannot place itself within the meaning of subd. 4, sec. 6611, C. S.

An action for the recovery of moneys belonging to a county and illegally held by an officer falls within the classification or kind of action defined by statute as "an action founded upon a liability not founded upon an instrument in writing." (Bannock County v. Bell, 8 Idaho 1, 101 Am. St. 140, 65 P. 710.)

There is a test to determine the nature or classification of an action, to wit, the purpose or object of the action. ( Murphy v. Crowley, 140 Cal. 141, 73 P. 820; Thomas v. Richter, 88 Wash. 451, 153 P. 333; Cornell v. Edsen, 78 Wash. 662, 139 P. 602, 51 L. R. A., N. S., 279; Norton v. Title Guaranty & S. Co., 176 Cal. 212, 168 P. 16; Hellwig v. Title Guaranty & S. Co., 39 Cal.App. 422, 179 P. 222; Havird v. Lung, 19 Idaho 790, 115 P. 930; Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 68 Kan. 585, 1 Ann. Cas. 639, 75 P. 1051.)

Martin & Martin and Clarence S. Hill, for Respondent.

The test of whether or not an action is upon a "liability created by statute" is as to whether or not a cause of action would exist except for the statute. (5 Words and Phrases, 4116; Hawkins v. Iron Valley Furnace Co., 40 Ohio St. 507; Moore v. Boyd, 74 Cal. 167, 15 P. 670; Green v. Beckman, 59 Cal. 545; State v. Baker County, 24 Ore. 141, 33 P. 530; Wood on Limitations, sec. 39; Richards v. Board of Commrs., 28 Kan. 326; Higby v. Calaveras County, 18 Cal. 176; Miller & Lux v. Batz, 131 Cal. 402, 63 P. 680; Robertson v. Blaine County, 90 F. 63, 32 C. C. A. 512, 47 L. R. A. 459.)

Weighed by these authorities there can be no question that this is not an action on a "liability created by statute."

GIVENS, District Judge. McCarthy, Dunn and Lee, JJ., concur. BUDGE, J., Dissenting.

OPINION

GIVENS, District Judge.

--This is an action to recover from the appellants, George H. Moore and the United States Fidelity & Guaranty Company, a corporation, a balance alleged to be due on account of money collected by Moore, as assessor and tax collector of Canyon county, Idaho, and not paid over to the county. The sum so claimed to have been retained by the appellant, Moore, was taken from the taxes collected as follows: From the delinquent roll of 1906, collected in 1907, $ 87.42; returns from tax collections of 1907, $ 1,510.93; and for the year 1908, $ 1,626.57. Interest is also asked at the rate of seven per cent. Suit was commenced March 22, 1915. Moore's last term of office expired at the end of the year 1908.

Moore was called by the respondent for cross-examination under the statute, but no evidence was introduced by appellants, and judgment was entered for respondent, against both appellants, for the principal sum and interest. This appeal is from the judgment.

Appellant contends that the action is one upon a statutory liability, and barred by C. S., sec. 6611, subd. 1. Respondent contends that there was fraud in the action, hence subd. 4 of C. S., sec. 6611, obtains, and that since the facts constituting such fraud were not discovered by respondent until 1915, the action was not barred.

This court has held that an action against an assessor to recover because of his failure to pay to the county treasurer moneys collected in his official capacity is an action upon a liability created by statute, and hence C. S., sec. 6611, subd. 1, prescribes the time within which such action must be commenced. The action in the case at bar is such an action, and is not an action for a penalty or forfeiture. (Wonnacott v. County of Kootenai, 32 Idaho 342, 182 P. 353.)

Board of Commrs. of Cloud County v. Hostetler, 6 Kan. App. 286, 51 P. 62, one of the main cases cited in the Wonnacott case in support of the conclusion there reached, apparently repudiates respondent's theory, and it would therefore appear that the Wonnacott case is controlling herein. The statute of limitations had therefore run at the time this suit was brought. This conclusion renders it unnecessary to consider the other points raised on appeal, and the judgment is therefore ordered reversed. In fairness to the trial judge it should be stated that the case herein was tried and decided prior to the time the decision in the Wonnacott case, supra, was rendered. Costs awarded in favor of appellants.

McCarthy, Dunn and Lee, JJ., concur.

DISSENT BY: BUDGE

BUDGE J., Dissenting.--

Counsel for appellants contend that the legislature, having classified actions as to the period of limitations applicable thereto, the court has no power to read into the statute exceptions which have not been embodied therein by the legislature.

The position of assessor and ex-officio tax collector is a public office created by law. The duties, obligations and liability of such officer are defined by statute. ( Gallatin Co. v. United States Fidelity etc. Co., 50 Mont. 55, 144 P. 1085; Calaveras County v. Poe, 167 Cal. 519, 140 P. 23; People ex rel. Dunn v. Van Ness, 76 Cal. 121, 18 P. 139; Sonoma County v. Hall, 132 Cal. 589, 62 P. 257, 312, 65 P. 12, 65 P. 459.)

A collector of taxes is charged with the duty of delivering the same to the proper authorities, and is not a mere debtor to the state and county, but sustains the relation of trustee to them. (37 Cyc. 1206.)

The conclusion is inevitable that the office of tax collector is one of trust and confidence, and that the person holding and exercising the duties of such office stands in a fiduciary relation to the county. The appellant Moore then, having occupied a position of trust, though the action against him is on a statutory liability, if there was fraud or mistake on his part in connection with the basis of the action, and such constitutes an exception, the statute of limitations would not operate until the county knew or should have known of the breach.

It is necessary, therefore, to determine whether or not there is an exception, whether there was such fraud or mistake, and whether the county had or was presumed to have had notice of such breach.

The case of McMullen v. Winfield Building etc. Assn., 64 Kan. 298, 91 Am. St. 236, 67 P. 892, 56 L. R. A. 924, quoting with approval Bailey v. Glover, 88 U.S. 342, 21 Wall. 342, 22 L.Ed. 636, and Lieberman v. Bank, 18 Del. 416, 2 Penne. 416, 82 Am. St. 414, 45 A. 901, 48 L. R A. 514, and also numerous other cases, clearly sustains the proposition that where a trust relation exists, if fraud enters into the transaction giving rise to the cause of action, even though the cause of action is not based upon such fraud, that the statute is tolled until the fraud is discovered. The case of Atchison etc. R. Co. v. Atchison Grain Co., 68 Kan. 585, 1 Ann. Cas. 639, 75 P. 1051,...