Choate v. North Fork Highway District

• Decision Date: 29 July 1924
• Citation: 39 Idaho 483,228 P. 885
• Parties: FRED CHOATE, Appellant, v. NORTH FORK HIGHWAY DISTRICT, THE BOARD OF HIGHWAY COMMISSIONERS OF NORTH FORK HIGHWAY DISTRICT, W. E. TARRY and M. LEBARON, as Commissioners of NORTH FORK HIGHWAY DISTRICT, T. F. EDWARDS, as the Secretary and Treasurer of NORTH FORK HIGHWAY DISTRICT, T. F. EDWARDS, W. E. TARRY, E. E. MCGUIRE, and W. H. BERTRAND, Respondents
• Court: Idaho Supreme Court

228 P. 885

39 Idaho 483

FRED CHOATE, Appellant, v. NORTH FORK HIGHWAY DISTRICT, THE BOARD OF HIGHWAY COMMISSIONERS OF NORTH FORK HIGHWAY DISTRICT, W. E. TARRY and M. LEBARON, as Commissioners of NORTH FORK HIGHWAY DISTRICT, T. F. EDWARDS, as the Secretary and Treasurer of NORTH FORK HIGHWAY DISTRICT, T. F. EDWARDS, W. E. TARRY, E. E. MCGUIRE, and W. H. BERTRAND, Respondents

Supreme Court of Idaho

July 29, 1924

HIGHWAY DISTRICTS-COMMISSIONERS-MEETINGS OF BOARD-ADJOURNMENT-QUORUM-CLAIMS AND WARRANTS-INJUNCTION-FINDINGS-CONFLICTING EVIDENCE-CLAIM FOR RAILROAD TRANSPORTATION-ACTUAL AND NECESSARY EXPENSES-HIGHWAY DIRECTOR-ASSIGNMENTS.

1. Assignment of error that "the judgment is against the law and the evidence," held insufficient.

2. Where there is a substantial conflict in the evidence the findings of the lower court will not be disturbed where there is sufficient competent evidence, if uncontradicted, to sustain them.

3. Any member of a board or deliberative body, in the absence of a quorum to transact business, may adjourn a regular meeting to a day certain.

4. A claim for gasoline and oil used by a commissioner in his automobile while transacting business for the highway district held properly allowed.

5. Where a commissioner journeyed to a foreign state on his personal affairs and returned to the district for the special purpose of attending a meeting of the board and presented a claim for railroad fare from such foreign state which was allowed and ordered paid by the board, held, that such claim in so far as it related to travel outside of the district was not for actual and necessary expenses incurred by such commissioner in the performance of his official duties within the meaning of C. S., sec. 1514, was not a legal charge against the district and should not have been allowed.

6. Claims presented by director of highways examined and held properly allowed.

APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.

Action for injunction. Judgment for defendants. Modified.

Costs awarded to respondents.

Benjamin F. Tweedy, for Appellant.

Bertrand's railroad transportation to and from Spokane to Orofino Idaho, cannot be lawfully paid out of the public funds of the highway district; such transportation expenses were not "necessary expenses" within the meaning of the statutes. (C. S., sec. 1514.)

Nor can the claim of Mr. Tarry be, in any event, a lawful claim against the highway district, because it falls under the condemnation of the statute. (C. S., sec. 1515; Sanborn v. Pentland, 35 Idaho 639, 208 P. 401.)

Tannahill & Leeper, for Respondents.

A number less than a quorum of a deliberative body may adjourn to a future date. (Kimball v. Marshall, 44 N.H. 465; O'Niell v. Tyler, 3 N.D. 47, 53 N.W. 434; City of Mena v. Tomlinson Bros., 118 Ark. 166, 175 S.W. 1187; City of Rolla v. Schuman, 189 Mo.App. 252, 175 S.W. 241.)

This was a regular adjourned meeting at which any business could be transacted. (Gilbert v. Canyon County, 14 Idaho 429, 94 P. 1027.)

The payment of the claim of Mr. Tarry in the sum of nine dollars was for money actually expended by him for running his automobile for the benefit of the district and is a valid expenditure. (Sanborn v. Pentland, 35 Idaho 639, 208 P. 401; C. S., secs. 1514, 1515; Ticer v. State, 35 Okla. 1, 128 P. 493; United States v. Flanders, 112 U.S. 88, 5 S.Ct. 67, 28 L.Ed. 630.)

BUDGE, J. McCarthy, C. J., and William A. Lee, J., and Johnson, District Judge, concur.

OPINION

BUDGE, J.

On June 27, 1922, W. H. Bertrand, W. E. Tarry and M. LeBaron were commissioners of the North Fork Highway District, Bertrand being president of the board and T. F. Edwards secretary and treasurer. At a special meeting held on June 27, 1922, Bertrand resigned as president and Tarry was elected to succeed him in that position. On July 5, 1922, on account of sickness Bertrand left the district. On September 12, 1922, being the day fixed for a regular meeting of the board, Bertrand was ill at Soap Lake, Washington, LeBaron refused to attend and the only persons present at the meeting were Tarry and Edwards. No quorum being present, the meeting was adjourned by Tarry to September 26, 1922, and at a meeting held on that date Tarry and Bertrand only were present, LeBaron again refusing to attend. The board continued in session on September 26th and 27th and levied the annual taxes for the district, certified the same to the board of county commissioners, called the annual election to be held in November, 1922, provided for the holding of such election, ordered work and improvements done on certain highways within the district, examined claims presented against the district, approved the same and ordered warrants issued to pay them. During the times heretofore mentioned E. E. McGuire was highway director of the North Fork Highway District. This action was brought to enjoin the payment of warrants ordered issued by the board in payment of certain claims allowed at the meeting on September 26th and 27th, to enjoin work on and improvement of highways within the district ordered at such meeting, to recover for the use and benefit of the highway district the amount expended in work and improvements from Tarry, Bertrand and McGuire subsequent to such meeting, and to have the office formerly held by Bertrand declared vacant since July 5, 1922. The North Fork Highway District, its board of commissioners, Tarry and LeBaron as commissioners and Edwards as secretary and treasurer, in their official capacity, Tarry, Bertrand, McGuire and Edwards as individuals, were made parties defendant. From the record it appears that Bertrand was never served with summons and inasmuch as LeBaron entered no appearance and no default was entered, it is proper to presume that he was not served. The remaining respondents appeared and answered and upon the issues thus framed the cause was tried to the court sitting without a jury. Findings of fact and conclusions of law were made and filed and judgment was entered in favor of respondents, dismissing the action. From this judgment this appeal is taken.

Appellant relies upon seven assignments of error, the first specifying "that the judgment is against the law and the evidence." Under the authority of Morton Realty Co. v. Big Bend Irr. & M. Co., 37 Idaho 311, 218 P. 433, this assignment is insufficient and will not be considered.

Assignment No. 7 attacks the action of the court in holding that the meeting of the board on September 26th and 27th was legal. There is no merit in this assignment. The regular meeting should have been held on the 12th of September, 1922. No quorum being present the meeting was adjourned to the 26th day of September by Commissioner Tarry, who was present, and a proper minute entry was made by the secretary adjourning the regular meeting to September 26, 1922. It is elementary that any member of a board or deliberative body, in the...