Drainage District No. 2 of Ada County v. Ada County

• Decision Date: 05 April 1924
• Citation: 38 Idaho 778,226 P. 290
• Parties: DRAINAGE DISTRICT No. 2 OF THE COUNTY OF ADA, Plaintiff and Cross-appellant, v. ADA COUNTY, Defendant and Appellant
• Court: Idaho Supreme Court

226 P. 290

38 Idaho 778

DRAINAGE DISTRICT No. 2 OF THE COUNTY OF ADA, Plaintiff and Cross-appellant, v. ADA COUNTY, Defendant and Appellant

Supreme Court of Idaho

April 5, 1924

CLAIM AGAINST COUNTY - PRESENTATION TO COMMISSIONERS - ALLEGATION OF - STATUTORY CONSTRUCTION-EXPRESSED INTENT-DRAINAGE DISTRICT ASSESSMENT - COLLECTION BY COUNTY OFFICERS - COLLECTION FEE - SERVICES BY COUNTY OFFICERS - FEES FOR - COUNTY FUNDS-DRAINAGE DISTRICT FUNDS-DEPOSIT IN BANKS-INTEREST.

1. If an action is based on a claim against a county within the meaning of C. S., sec. 3506, the complaint must allege ultimate facts showing a compliance with the statutory requirement of presentation to the board of county commissioners.

2. In such case the allegation that a demand has been made as required by law is a conclusion and insufficient.

3. The phrase "claim against the county," as used in C S., sec. 3506, does not apply where the liability and its extent are so clearly fixed by positive provisions of the statutes that the question becomes purely one of law, leaving nothing for the commissioners to pass upon.

4. "Where the language of a statute is unambiguous, the clearly expressed intent of the legislature must be given effect, and there is no occasion for construction." (State v. Jutila, 34 Idaho 595, 202 P. 566.)

5. Under C. S., sec. 3224, the county is entitled to a one and one-half per cent collection fee for collecting the assessments of a drainage district.

6. The fact that certain sections of the statutes make it the duty of county officers to perform certain services for drainage districts does not prevent such officers from charging the fees prescribed by other sections for such services.

7. C S., sec. 3585, did not authorize the deposit of drainage district funds in depositary banks.

8. When a county treasurer deposited drainage district funds in depositary banks, the district, not the county, was entitled to the interest.

9. Where, after the going into effect of Sess. Laws, 1921, chap 256, the funds of a drainage district were left in banks previously designated by, and on terms previously fixed by the board of county commissioners, the drainage district is entitled to the interest.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Reddoch, Judge.

Action for damages. Judgment for plaintiff on first and second cause of action reversed. Judgment for defendant on third cause of action reversed. Judgment for plaintiff on fourth cause of action affirmed.

Judgment reversed as to the first and second causes of action, and the district court directed to sustain the demurrer and dismiss the action. Judgment reversed as to the third cause of action, and the district court directed to overrule the demurrer. Judgment affirmed as to the fourth cause of action. Petition for rehearing denied.

Laurel E. Elam and Carl A. Burke, for Appellant.

In an action on a claim against the county the complaint must set forth facts showing that the claim has been presented in form and within the time required by law to the board of county commissioners for their action and has been rejected in whole or in part by them. (C. S., secs. 3506, 3509, 3513; Boise Valley Traction Co. v. Ada County, ante, p. 350, 222 P. 1035; 7 R. C. L. 966; 15 C. J. 667; 20 Standard Ency. of Proc. 118; Butts County v. Wright, 143 Ga. 253, 84 S.E. 443; Bridges v. Multnomah County, 92 Ore. 214, 180 P. 505; Biron v. Board of Water Commrs., 41 Minn. 519, 43 N.W. 482; Rhoda v. Alameda County, 52 Cal. 350; Scarbourgh v. Watson, 140 Ala. 349, 37 So. 281; First Nat. Bank of Custer County, 7 Mont. 464, 17 P. 551; McCullough v. Colfax County, 4 Neb. (Unof.) 543, 95 N.W. 29.)

Interest on drainage funds deposited by the county treasurer in depositary banks belongs to the county. (C. S., secs. 3585, 3586.)

The county is entitled to charge one and one-half per cent as a collection charge for all sums collected for plaintiff. (C. S., sec. 3224.)

The county recorder, auditor and clerk of Ada county, Idaho, properly charged the plaintiff the statutory fee for preparing certified copies of and filing and recording general and special assessment-rolls of the district. (C. S., secs. 3702, 3703, 3706, 3707, 3712, 3713, 3714.)

Defendant is entitled to interest on drainage funds deposited by the county treasurer in county depositaries for the period covering May 4, 1921, to September 30, 1921. (Chap, 266, Laws 1921.)

C. S. Hunter, for Cross-appellant.

"If the words or phrases of a statute are not obscure or ambiguous, its meaning and the intention of the legislature must be determined from the language employed, and when there is no ambiguity in words there is no room for construction." (Black, Interp. L., sec. 51, p. 141; United States v. Colorado & N.W. R. R. Co., 157 F. 321, 13 Ann. Cas. 893, 85 C. C. A. 27, 17 L. R. A., N. S., 167; Empire Copper Co. v. Henderson, 15 Idaho 635, 99 P. 127; Turner v. Roseberry Irr. Dist., 33 Idaho 746, 198 P. 465; 25 R. C. L. 1026, sec. 260.)

The county has no right to make a collection charge of one and one-half per cent, or any other sum, against the district, since the law does not authorize same.

"The legislative intention, to be efficient at law, must be set forth in a statute." (Suth., Stat. Con., sec. 234.)

"It is a general rule of statutory construction that the express mention of one person, thing or consequence is tantamount to an exclusion of all others." (Black, Interp. Law, sec. 72, p. 219.)

MCCARTHY, C. J. William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, C. J.

The complaint in this case contains four causes of action. Cross-appellant is a drainage district situate in appellant, Ada county. Under the statutes applicable appellant's treasurer and ex-officio tax collector collected certain assessments levied by cross-appellant. In the first cause of action cross-appellant seeks to recover $ 1,639.43, which it alleges the said county treasurer deducted from the proceeds of assessments levied by cross-appellant and paid over to appellant as a collection fee or charge. A demurrer interposed by appellant to this cause of action was overruled. In the second cause of action cross-appellant seeks to recover fees in the amount of $ 154.36, which it alleges were paid by it under protest to Stephen Utter, appellant's clerk of the district court and ex-officio recorder and auditor, in order to obtain from him certified copies of assessment-rolls required by the statutes to be filed in the office of the recorder. A demurrer interposed by appellant to this cause of action was overruled. In the third cause of action cross-appellant seeks to recover $ 2,266.58, interest on the proceeds of a sale of its bonds, committed to the custody of appellant's treasurer and by her deposited in depositary banks in accordance with the statutes, said interest having been received by the county treasurer and deposited by her to the credit of the current expense fund of appellant. A demurrer interposed by appellant to this cause of action was sustained. In the fourth cause of action cross-appellant seeks to recover $ 1,579.79, being interest on the proceeds of a sale of its bonds deposited in depositary banks after the going into effect of chapter 256 of the Session Laws of 1921, said interest having been paid to the county treasurer and by her deposited to the credit of the current expense fund of appellant. A demurrer interposed by appellant to this cause of action was overruled. The parties declining to plead further, the court entered judgment for cross-appellant as prayed for on the first, second and fourth causes of action, and for appellant on the third cause of action. From this judgment appellant appeals to this court and cross-appellant appeals from the judgment in appellant's favor on the third cause of action.

Appellant contends that all the causes of action were based upon claims against the county within the meaning of C. S., secs. 3506, 3509 and 3513, that it was necessary to present these claims to the board of county commissioners, and that, if it denied them, cross-appellant's only remedies were to appeal from the order of the board within twenty days or bring suit upon the claims within six months. Appellant also contends that the complaint does not sufficiently allege compliance with these provisions of the statutes. Each of the causes of action alleges that cross-appellant made written demand for payment in manner and form required by law, and that appellant declined to pay the same. If it be true, as contended by appellant, that these are claims against the county within the meaning of the statutes requiring presentation to the board of county commissioners, then the pleading is bad. In such cases the complaint must allege ultimate facts which show a compliance with the statutory requirements. The mere allegation that a demand has been made as required by law is a conclusion of law and insufficient. (McCullough v. Colfax County, 4 Neb. (Unof.) 543, 95 N.W. 29; Biron v. Board of Water Commrs., 41 Minn. 519, 43 N.W. 482; First Nat. Bank v. Custer County, 7 Mont. 464, 17 P. 551; Rhoda v. Alameda Co., 52 Cal. 350; 15 C. J. 667.) We are not satisfied, however, that these causes of action are based upon claims against the county within the meaning of the statutes. In Village of Mountain Home v. Elmore County, 9 Idaho 410, 75 P. 65, this court held that the provisions of the statutes above referred to do not apply "to a municipality which claims twenty-five per cent of the road taxes collected against property situated within its corporate limits, and that such tax should be paid over by the county without the presentation of a claim therefor."

In that case the court does...