Clayton v. Barnes

• Decision Date: 28 November 1932
• Docket Number: 5904
• Citation: 16 P.2d 1056,52 Idaho 418
• Parties: I. E. CLAYTON, County Assessor, Respondent, v. T. H. BARNES, ARTHUR BALL and JOSEPH ORME, County Commissioners, and BONNEVILLE COUNTY, a Municipal Corporation, Appellants
• Court: Idaho Supreme Court

16 P.2d 1056

52 Idaho 418

I. E. CLAYTON, County Assessor, Respondent, v. T. H. BARNES, ARTHUR BALL and JOSEPH ORME, County Commissioners, and BONNEVILLE COUNTY, a Municipal Corporation, Appellants

No. 5904

Supreme Court of Idaho

November 28, 1932

COUNTIES-EMPLOYEES-APPOINTMENT-CLAIMS ALLOWANCE OF-APPEAL AND ERROR-SERVICE OF TRANSCRIPT-COURT RULES.

1. Appeal will not be dismissed for failure to serve clerk's transcript on respondent or his attorney, where respondent's brief was filed before motion to dismiss completed transcript was filed within time and respondent was not prejudiced (C. S., sec. 7166; Supreme Court Rule 23).

2. Board of county commissioners must find necessity for appointment of clerical assistance in county assessor's office, and must also fix compensation therefor (Const., art 18, sec. 6; C. S., sec. 3694, as amended by Laws 1929, chap 21, sec. 1).

3. One demanding payment of claim against county must show some constitutional or statutory authority therefor, or that it arises from contract, express or implied, authorized by law (C. S., sec. 3504).

4. Payment of claim cannot be allowed upon theory that services performed for which compensation is asked were beneficial to county (C. S., sec. 3504).

5. Right of officer to demand expenses incurred in performing official duty must be found in Constitution or statutes confirming it.

6. Constitutional provision that county commissioners may employ counsel when necessary is limitation upon their authority to employ counsel and denial of authority to all other county officials to do so (Const., art. 18, secs. 6, 7).

7. Neither expense incurred by county assessor in employment of clerical assistance without authorization by board of county commissioners nor expense incurred in employment of counsel to compel board to allow claim for such clerical assistance is "actual or necessary expense" constituting legal charge against county (C. S., sec. 3700, as amended by Laws 1929, chap. 83, sec. 1, and sec. 3694, as amended by Laws 1929, chap. 21, sec. 1; Const., art. 18, secs. 6, 7).

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. Jay L. Downing, Judge Presiding.

Action on claim for attorney's fees disallowed by board of county commissioners. Judgment for plaintiff. Reversed. Motion to dismiss appeal. Denied.

Judgment reversed. Costs to appellants. Petition for rehearing denied.

A. A. Merrill and O. A. Johannesen, for Appellants.

A necessity for the employment of counsel must be apparent and the facts creating such necessity must be made a matter of record by the commissioners. (Hampton v. Board of Commrs. of Logan County, 4 Idaho 646, 43 P. 324; Conger v. Board of Commrs. of Latah County, 4 Idaho 740, 48 P. 1064; Barnard v. Young, 43 Idaho 382, at p. 390, 251 P. 1054.)

The officials, like the treasurer and assessor, cannot bind the county for attorney's fees, unless authorized by the board of county commissioners. (Morris v. Board of Commrs., 25 Colo. App. 416, 139 P. 582.)

The fact that such services were beneficial to the county is immaterial. (Gibson v. Sacramento County, 37 Cal.App. 523, 174 P. 935; 7 Cal. Jur. 539, and cases cited.)

Alvin Denman, for Respondent.

In the absence of statutory restriction, public officials may make contracts in the same manner as private agents. (22 R. C. L. 459, 460; Duntz, v. Duntz, 44 Barb. (N. Y.) 459; 2 McQuillin, Municipal Corp., 501; Freeman v. Brooks, 29 Misc. 719, 62 N.Y.S. 761; Simrall v. Covington, 16 Ky. Law Rep. 770, 29 S.W. 880.)

All actual and necessary expenses incurred by any county officer or deputy in the performance of his official duties shall be a legal charge against the county. (Const., art. 18, sec. 7; C. S., sec. 3694; 2 McQuillin, Municipal Corp., 276; 46 C. J. 1018; 23 Am. & Eng. Ency. Law, 2d ed., 388.)

The assessor was engaged in the performance of his official duty when he prosecuted the mandamus action. (37 Cyc. 986; 17 Ency. of Pl. & Pr. 145, 146, 201; 46 C. J. 1018, 1035, 1046; 22 R. C. L. 461; Payette County v. Baldridge, 50 Idaho 310, 296 P. 194; State v. Board of Dental Examiners, 38 Wash. 325, 80 P. 544, 545; Ticer v. State, 35 Okla. 1, 128 P. 493, 496; State ex rel. Gerke v. Board of Commrs., 26 Ohio St. 364, 368; 2 Idaho Const. Conv. 1825; Conger v. Board of Commrs., 5 Idaho 347, 356, 48 P. 1064.)

BUDGE, J. Lee, C. J., and Givens, Varian and Leeper, JJ., concur.

OPINION

BUDGE, J.

Respondent is county assessor and the individual appellants are county commissioners of Bonneville county. On May 20, 1931, respondent instituted a proceeding against the board of county commissioners alleging that the amount of money which it had allowed him in the budget for his office for 1931 was insufficient and had been exhausted; that certain claims held by employees in his office for services rendered by them had not been paid, but had been disallowed by the board; that it was necessary for his budget allowance to be increased; and that an emergency therefor existed. He prayed that a writ of mandate issue commanding the board "to consider whether an emergency exists to meet said claims, and to adopt a resolution stating the facts constituting the emergency . . . . and to make the expenditures necessary to meet said claims as emergency claims without further notice or hearing."

An answer was filed alleging that respondent had been extravagant in his expenditures; that ample funds had been provided for in the budget to take care of his office, and that on May 12, 1931, four months after respondent took office, he had incurred indebtedness in excess of his budget allowance; that if any emergency existed it was due to the negligence and inefficiency of respondent in handling the affairs of his office; that there were no moneys available provided for by statute which could be used for such an emergency as respondent claimed. After a hearing the trial court decreed that a writ of mandate issue requiring the board "to meet and adopt a resolution stating the facts constituting the emergency, to-wit: 'That the said claims of Sarah Minson in the amount of seventy-two dollars, T. T. Minson in the amount of one hundred four dollars, and Laura Hops in the amount of one hundred four dollars are for mandatory expenditures required by the laws of the state of Idaho of the plaintiff,' and enter said resolution upon their minutes and approve said claims, and make the expenditures necessary to provide for and meet such emergency claims without further notice or hearing."

No appeal was taken from this judgment and the question of the power and jurisdiction of the trial court to grant such relief is therefore not before us for consideration.

Thereafter, and in compliance with said writ, the board passed a resolution declaring an emergency and provided the necessary funds to pay the three claims, and also provided additional funds, knowing that respondent had incurred other indebtedness which was outstanding and unpaid. Subsequently, respondent presented to the board a claim for $ 250 attorney's fees, claiming that he had been compelled to employ an attorney to prosecute the mandamus proceeding, not being able to avail himself of the services of the county prosecuting attorney, and that he had thereby incurred a liability for the payment of such attorney's fees. The claim was disallowed by the board and thereupon respondent commenced this action to recover the sum of $ 250, which he alleged was a reasonable attorney's fee and which he had been compelled to expend in prosecuting the mandamus proceeding, the complaint setting forth the facts substantially as above recited. Appellants answered the complaint denying generally the allegations thereof. They also alleged that they had never at any time granted respondent authority to employ an attorney; that they had no funds available for such employment; that they were without legal authority to pay for such services; that respondent had no lawful right to employ an attorney for such purposes without first securing the authorization of the board of county commissioners therefor; and that the entire procedure on the part of respondent was contrary to law. Upon the issues thus framed the cause was tried by the court sitting without a jury. Findings of fact and conclusions of law were made and filed and judgment was rendered in favor of respondent, from which judgment this appeal is taken.

On the day this case was set for hearing respondent filed a motion to dismiss the appeal upon the sole ground that appellant failed to serve upon respondent or his attorney the clerk's transcript as required by the provisions of C S., sec. 7166, and Rule 23 of this court. From an examination of the affidavits in support of and against the motion, we are not inclined to grant the motion for the reason that respondent has failed to show that he suffered any prejudice by reason of the failure of appellant to serve him with the clerk's transcript. The completed transcript was settled and filed in this court within time. Respondent also filed his brief prior to the time of making the motion and admitted the proper settlement of the reporter's transcript and raises no objection to the service and filing of the same. In view of this situation and since the failure to serve the clerk's transcript is not jurisdictional (Stout v. Cunningham, 29 Idaho 809, 162 P. 928; Wolter v. Church, 30 Idaho 427, 165 P. 521; Lucas v. City of Nampa (on rehearing), 37 Idaho 763, 766, 219 P. 596; Utana M. Corp. v. Salmon River P. & L. Co., 37 Idaho 793, 218 P. 789; In re Drainage Dist. No. 3, 40 Idaho 549, 552, 235 P. 895) and no prejudice is shown, the motion will be denied. (Five Point Garage v. Purdum, 50 Idaho 43, 293 P. 319; In re Drainage...