County of Burleigh v. County of Kidder

• Decision Date: 19 March 1910
• Citation: County of Burleigh v. County of Kidder, 20 N.D. 27, 125 N.W. 1063 (N.D. 1910)
• Court: North Dakota Supreme Court

125 N.W. 1063

20 N.D. 27

THE COUNTY OF BURLEIGH, North Dakota, a Public Corporation, v. THE COUNTY OF KIDDER, North Dakota, a Public Corporation

Supreme Court of North Dakota

March 19, 1910

Appeal from District Court, Burleigh county; W. H. Winchester, J.

Action by Burleigh County against Kidder County. Judgment for plaintiff, and defendant appeals.

Affirmed.

Joseph W. Walker, for appellant.

Appellant being ultimately liable on the obligation, statute began to run when respondent paid it. State v. Baker County, 24 Or. 141, 33 P. 530; Frank v. Brewer, 54 Hun, 633 26 N.Y. S. R. 590, 7 N.Y.S. 182; Barnsback v Reiner, 8 Minn. 59, Gil. 37; Richter v Henningsan, 110 Cal. 530, 42 P. 1077; Mt. Desert v Tremont, 75 Me. 253.

Statute of limitations applies to counties. 19 Am. & Eng. Enc. Law, 2d ed. p. 191. It is a meritorious plea. Wheeler v. Castor, 11 N.D. 347, 61 L. R. A. 746, 92 N.W. 381; Trowbridge v. Schmidt, 82 Miss. 475, 34 So. 84.

R. N. Stevens, State's Attorney, and Geo. W. Newton, for respondent.

Legislature may impose burdens upon counties. Laramie County v. Albany County, 92 U.S. 307, 23 L. ed. 552; Guilder v. Dayton, 22 Minn. 366; State ex rel. Slipp v. McFadden, 23 Minn. 40; State ex rel. Atty. Gen. v. Pawnee County, 12 Kan. 426; Re Division of Howard County, 15 Kan. 194; Sedgwick County v. Bunker, 16 Kan. 498; McDonald v. Maddux, 11 Cal. 187; State ex rel. Police Comrs. v. County Ct. 34 Mo. 546; Depere v. Bellevue, 31 Wis. 120, 11 Am. Rep. 602; Stone v. Charlestown, 114 Mass. 214.

Trustee of a direct trust, when sued by beneficiary, cannot plead statute of limitations. Von Hoffman v. Quincy, 4 Wall. 554, 18 L. ed. 410; Lincoln County v. Luning, 133 U.S. 529, 532, 33 L. ed. 766, 768, 10 S.Ct. 363; Parish School Directors v. Shreveport, 47 La.Ann. 1310, 17 So. 823; Maenhaut v. New Orleans, 2 Woods, 108, Fed. Cas. No. 8,939; In Bullard v. Bell, 1 Mason, 243, Fed. Cas. No. 2,121.

Where a statute expressly enjoins a duty, such duty cannot be excused by statute of limitations. Coster v. Murray, 5 Johns. Ch. 522; Oliver v. Piatt, 3 How. 409, 11 L. ed. 657; Lewis v. Hawkins, 23 Wall. 119, 23 L. ed. 113; Rush County v. State, 103 Ind. 497, 3 N.E. 165; State ex rel. Hord v. St. Joseph County, 90 Ind. 359; Harrodsburg v. Harrodsburg Educational Dist. 9 Ky. L. Rep. 605, 7 S.W. 312; Underhill v. Sonora, 17 Cal. 173; Union P. R. Co. v. Durant, 95 U.S. 576, 24 L. ed. 391; State ex rel. Hudson v. Trammel (Mo.) 11 S.W. 747; Sawyer v. Colgan, 102 Cal. 283, 36 P. 580, 834; State ex rel. Davis v. Lincoln County, 23 Nev. 262, 45 P. 982.

Not until funds are in the treasury, properly applicable, will the statute begin to run. State ex rel. Davis v. Lincoln County, supra; Spaulding v. Arnold, 125 N.Y. 194, 26 N.E. 295; Sawyer v. Colgan, supra; Gasquet v. Directors of City Schools, 45 La.Ann. 342, 12 So. 506; King Iron Bridge & Mfg. Co. v. Otoe County, 124 U.S. 459, 31 L. ed. 514, 8 S.Ct. 542.

OPINION

CARMODY, J.

The plaintiff commenced this action September 5, 1907, to recover a judgment against the county of Kidder, adjudging that said county is indebted to it for a just and equitable proportion of the bonded indebtedness of Burleigh county existing on the 10th day of March, 1885, and based upon the assessment in said Burleigh county for the year 1884, and the amount of such indebtedness under the provisions of the special acts, chapters 23 and 24, passed by the legislature of Dakota territory March 10, 1885, segregating from Burleigh county townships 137-144, inclusive, in range 74, west of the fifth principal meridian, and annexing them to Kidder county. From a judgment in favor of plaintiff, defendant appeals and desires a review of the entire case in this court.

The facts necessary to a decision of this case are as follows: In the year 1873 plaintiff was organized as a county. In the year 1880 defendant was organized as a county. Prior to the 10th day of March, 1885, the county of Burleigh included within its boundaries townships 137-144, inclusive, north of range 74. That on the 10th day of March, 1885, the legislature of the territory of Dakota, by an act entitled "An Act to Define the Boundaries of Kidder County," being chapter 23 of the Special Laws of 1885, segregated such townships from the county of Burleigh, and included them within the county of Kidder, and that since that time they have continued to be, and now are, a part of the county of Kidder. That on the 10th day of March, 1885, the legislature passed an act entitled "An Act to Amend an Act Entitled 'An Act Defining the Boundaries of Kidder County,'" being chapter 24 of the Special Laws of 1885, which act, as far as material here, is as follows:

"Section 1. That the portion of Kidder county segregated from the said Burleigh county, lying in range 74 west, shall not be released from its just and equitable proportion of the bonded indebtedness of said Burleigh county, at the date of the passage of this bill, and that said county of Kidder shall assume and pay said indebtedness.

"Sec. 2. That within sixty days after the passage and approval of this act, the county commissioners of said Kidder county shall meet the county commissioners of Burleigh county, in the city of Bismarck, and the said commissioners of the two counties shall constitute a joint board of commissioners whose duties it shall be to ascertain the amount of the bonded indebtedness to be assumed by the county of Kidder, . . . the assessment of Burleigh county for the year eighteen hundred eighty-four being taken as the basis of valuation, and when so ascertained the commissioners of said county of Kidder shall, and are hereby authorized, to execute and deliver to the board of county commissioners of Burleigh county, for such share of the bonded indebtedness so ascertained, bonds of the county of Kidder with interest coupons attached, bearing the same rate of interest, due and payable at the same time as the bonds of Burleigh county, against which they are issued."

That the total valuation of all property in Burleigh county for the year 1884, as shown by the assessment for that year, was the sum of $ 3,079,253, and that the total valuation of all property in said townships 137-144, both inclusive, for the year 1884, as shown by the assessment in said Burleigh county for such year, was the sum of $ 48,250, and that the total of the bonded indebtedness of Burleigh county on the 10th day of March, 1885, was the sum of $ 114,867.50. That all of said bonded indebtedness was paid by respondent on and prior to July 1, 1894. That no part of said bonded indebtedness was ever paid or assumed by said Kidder county, nor were any bonds for such share of the bonded indebtedness issued by said Kidder county, nor has Kidder county ever levied or collected any tax to pay its proportion of such bonded indebtedness, nor any part thereof. That on the assessed valuation of Burleigh county for the year 1884 the proportion of the bonded indebtedness of said Burleigh county to be assumed by Kidder county was $ 1,803.15, on the 10th day of March, 1885, and the interest thereon to November 1, 1908, was $ 2,269.89, making a total sum of $ 4,073.04, for which sum the respondent had judgment. That no joint meeting of the county commissioners of the said two counties of Kidder and Burleigh has ever been held for the purpose designated in said chapter 24, or at all, except that pursuant to a notice by the county auditor of Burleigh county the boards of county commissioners of Kidder county and Burleigh county met at the courthouse in the city of Bismarck on the 2d day of September, 1895, in the matter of the transfer of range 74 from Burleigh county to Kidder county, but no agreement was arrived at, and nothing was done. The minutes only show that the matter was discussed at length, after which the boards adjourned until September 3, 1895. In the fall of 1895 the respondent was claiming from appellant the sum of $ 2,655.57 on account of the segregation of the territory hereinbefore described from Burleigh county and the annexation of said territory to Kidder county.

The minutes of the commissioners of appellant Kidder county, show that on the 7th day of October, 1895, a motion was passed instructing the county attorney of Kidder county to meet with the county commissioners of Burleigh county October 8, 1895. Nothing, however, was done in the matter. On the 8th day of January, 1896, the board of county commissioners of Kidder county passed a resolution, expressly denying that appellant was indebted to respondent in any sum of money whatever on account of said segregation and annexation, but, as a matter of compromise and to avoid litigation, offered to pay respondent the sum of $ 600. That there was in the year 1884, in said Burleigh county and in the townships segregated therefrom and annexed to said Kidder county, a large number of odd-numbered sections of land, as shown by said assessment, within the place limits of the grant to the Northern Pacific Railway Company, made by the act of Congress approved July 2, 1864, and upon which the survey fees had not been paid to the United States government. That the assessed valuation of Burleigh county for the year 1884, aside from the assessment on such odd-numbered sections of land, was the sum of $ 1,890,204. That the assessed valuation for the year 1884 of the townships segregated from the county of Burleigh and annexed to the county of Kidder, aside from the assessment of the said odd-numbered sections, was the sum of $ 1,900. That the odd-numbered sections in Burleigh county, and in the townships segregated from Burleigh county and annexed to Kidder county, were patented to the Northern Pacific Railroad Company by the patent from the United States government in...