Carbon County v. Draper
| Decision Date | 28 March 1929 |
| Docket Number | 6410. |
| Parties | CARBON COUNTY v. DRAPER. |
| Court | Montana Supreme Court |
Rehearing Denied April 26, 1929.
Appeal from District Court, Carbon County; A. J. Horsky, Judge.
Action by Carbon County against Charles H. Draper. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.
L. A Foot, Atty. Gen., L. V. Ketter, Asst. Atty. Gen., and E. P Conwell and John G. Skinner, both of Red Lodge, for appellant.
S. C Merriman and C. C. Rowan, both of Red Lodge, for respondent.
This action was brought by the county attorney of Carbon county, pursuant to the provisions of section 4821, Revised Codes of 1921, to recover public moneys alleged to have been illegally paid to defendant for county printing and supplies furnished the county.
It appears from the allegations of the amended complaint that on the 18th day of December, 1920, the board of county commissioners contracted with the Picket-Journal (owned and published by Charles H. Draper, defendant herein) to do and perform the county printing and furnish all blanks, blank books, stationery, etc., at an agreed price based upon the rates fixed by statute, less specific discounts depending upon the class of printing and supplies furnished, for a period of two years, commencing December 13, 1920; that on December 4, 1922, the board entered into a similar contract for a like period commencing January 1, 1923; that on December 18, 1924, another and similar contract was entered into for two years commencing January 1, 1925. It is alleged that, acting under and pursuant to the several contracts, defendant, from time to time, performed printing, and furnished supplies to the county; that at frequent intervals he filed duly verified claims against the county, all of which were allowed by the board, warrants being drawn and paid; that each and all of the claims set forth and described in the exhibits attached to, and made a part of, the complaint were allowed and paid without authority of law, in that they were false, fraudulent, fictitious, and untrue and in excess of the contract price and the rate fixed by section 4482, Revised Codes of 1921, and that the claims were not accounts legally chargeable against the county. Plaintiff demanded judgment for the amounts alleged to have been paid in excess of the contract and statutory price, together with 25 per cent. damages for the use thereof. The complaint contains three separate causes of action; each contract is made the basis of a separate cause. A general and special demurrer was filed to each cause of action and sustained by the court. Plaintiff refused to further amend, and judgment was accordingly entered for defendant. This appeal is from the judgment.
Counsel contend that, since it appears from the allegations of the complaint that the board had authority to examine, settle, and allow the claims, and no appeal therefrom was taken, as authorized by section 4610, Revised Codes of 1921, the court had no jurisdiction over the claims and the subject-matter of the action.
Section 4482, supra, makes it the duty of the board to contract with some newspaper published within the county, for all printing and supplies of the character involved in this action for which the county is chargeable, and enumerates the maximum rates. The board has jurisdiction and power, under subdivision 12 of section 4465, Revised Codes of 1921, "to examine, settle, and allow all accounts legally chargeable against the county except salaries of officers, and order warrants to be drawn on the county treasurer therefor, and provide for the issuing of the same." When any taxpayer is not satisfied with any allowance made by the board, he may appeal to the district court. Section 4610, supra. If the board, without authority of law, orders any money paid for any purpose, and such money has been paid, it is the duty of the county attorney to institute an action in the name of the county against such person or persons to recover the money so paid, and 25 per cent. damages for the use thereof. Section 4821, supra.
The fact that a taxpayer did not appeal to the district court from the orders made by the board allowing the claims, as authorized by section 4610, supra, does not limit the right of the county attorney to sue, in the name of the county, to recover the moneys illegally paid. Greeley v. Cascade County, 22 Mont. 580, 57 P. 274; Albers v. Barnett, 53 Mont. 71, 161 P. 521; Ada County v. Gess, 4 Idaho, 611, 43 P. 71; Pacific County v. Harbor Pub. Co., 88 Wash. 562, 153 P. 360; McDonald's Adm'x v. County, 125 Ky. 205, 100 S.W. 861; 15 C.J. 662.
Counsel for respondent insist that, the board having authority to examine, settle, and allow the claims in suit, its determination thereof is conclusive.
While it is alleged that all the claims set forth in the complaint are in excess of both the contract and statutory price, it appears that only a portion of the charges are in excess of the statutory rate, and others are in excess of the contract price, but less than the statutory rate.
As to moneys paid by the county on claims filed by defendant, allowed and approved by the board, if the charges were in excess of the rates provided by section 4482, we are of opinion that plaintiff would be entitled to recover to the amount of the excess. The authority of the board in that regard is written in section 4482, and under that section it is without authority to increase the rates prescribed. The statute having fixed the minimum rate, by fair implication prohibits the payment of anything in excess of that allowance. Any payments made at a higher rate than those fixed by law, to the extent of the excess, were upon claims not "legally chargeable against the county," and were made "without authority of law." State v. Young, 134 Iowa, 505, 110 N.W. 292, 13 Ann. Cas. 345; Allegheny County v. Grier, 179 Pa. 639, 36 A. 353; Ellis v. Board of State Auditors, 107 Mich. 528, 65 N.W. 577; County of Norfolk v. Cook, 211 Mass. 390, 97 N.E. 778; Richardson v. State, 66 Ohio St. 108, 63 N.E. 593; Endion Imp. Co. v. Telegram Co., 104 Wis. 432, 80 N.W. 732; Board of Com'rs of Huntington County v. Heaston, 144 Ind. 583, 41 N.E. 457, 43 N.E. 651, 55 Am. St. Rep. 192; People v. Sutherland, 207 N.Y. 22, 100 N.E. 440.
Our conclusion rests on the general principle that the county is not bound by the acts of the board when outside of or beyond the scope of its authority. Public moneys are but trust funds, and officers but trustees for their administration in the manner, and for the purposes, prescribed by statute. If payments have been made at a higher rate than fixed by law, as to the excess, defendant ought not, in equity and good conscience, be permitted to retain the same.
Counsel further contend, in effect, that the payments to defendant were voluntarily made, and that the moneys cannot be recovered. The authorities hold, as a general proposition of law, that money voluntarily paid cannot be recovered; yet an exception to this rule is recognized in the case of an unauthorized payment by a public officer. County of Norfolk v. Cook, 211 Mass. 390, 97 N.E. 778, Ann. Cas. 1913B, 650, and note; 7 R. C. L. 964.
As to those charges in excess of the contract price, but less than the maximum rate fixed by law, we think a different rule applies. In this jurisdiction a board of county commissioners is a quasi judicial body (State ex rel. Lockwood v Tyler, 64 Mont. 124, 208 P. 1081; State ex rel. Dolin v. Major, 58 Mont. 140, 192 P. 618), and its action in examining,...
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