Eakin v. Nez Perces County

• Decision Date: 20 April 1894
• Citation: 36 P. 702,4 Idaho 131
• Parties: EAKIN v. NEZ PERCES COUNTY
• Court: Idaho Supreme Court

36 P. 702

4 Idaho 131

EAKIN v. NEZ PERCES COUNTY

Supreme Court of Idaho

April 20, 1894

AUTHORITY OF COUNTY COMMISSIONERS TO ORDER WARRANTS ISSUED.-Under our statute the board of county commissioners are not authorized to order the issuance of a warrant to a party for a claim against the county, which they allow in part, unless such party files a receipt in full for his account.

A PARTY HAVING CLAIM AGAINST COUNTY CANNOT ACCEPT PART AND SUE FOR BALANCE.-A party will not be permitted, if dissatisfied with a part allowance made by the board, to accept the same and sue for the balance. He must either forego the part rejected or submit his claim as a whole to the courts.

ATTENDANCE UPON DISTRICT COURT-SHERIFF NOT ENTITLED TO PER DIEM.-Sheriffs are not entitled to a per diem compensation for attendance upon the district courts.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment affirmed, with costs.

James W. Reid, for Appellant.

The plaintiff has twice presented his account to the board of commissioners for settlement and allowance, but they refused to allow the same, except in the sum of twenty-seven dollars and fifty-five cents leaving a balance claimed by plaintiff of $ 124.45. The warrant is in the hands of respondent, not accepted or receipted for, and it is apparent that the reasons assigned in the decision are groundless. Appellant is entitled to recover. (Const., art. 18, secs. 7, 8; Acts 1890-91, pp. 175-177, 180, 181; Rev. Stats., secs. 1775, 1780.) The law imposes the duty of attending terms of the district court on the sheriff, (Rev. Stats., sec. 1871, subd 4.) For this service and for services rendered the public in criminal proceedings, until statehood, the sheriff received a salary. The adoption of the constitution and subsequent legislation repealed sections 2120 and 2126 referred to and relied on by his honor. (Const., art. 18, secs, 7, 8; Acts 1890-91, pp. 174, 180, 181.) The constitutional right to compensation for this service rendered by appellant for the benefit of respondent is self-executing. (Mills Ann. Const sec. 227, p. 114; Cooley's Constitutional Limitations, 101; Denver etc. R. Co. v. Atchison etc. Ry. Co., 15 F. 658.)

George M. Parsons, Attorney General, and James E. Babb, for County.

Section 1775 of the Revised Statutes requires a claimant, whose claim is allowed in part, to receipt for the claim in full on receiving the part allowed. By receiving the part allowed appellant waived his right to the balance. (Yavapai Co. v. O'Neil (Ariz.), 29 P. 430; Pulling v. Supervisors, 3 Wis. 337.) The allowance of a portion of a claim is not an acknowledgment on the part of the county of liability for the balance. (Peoria County v. Roche, 65 Ill. 77.) There is no law authorizing the payment of appellant for services attending district court. (Rev. Stats., secs. 2120, 2145; Laws 1890-91, p. 174, et seq.; Board of Commrs. v. Bransom, 4 Colo. App. 274, 35 P. 750; City of Valparaiso v. Adams, 123 Ind. BEJ, 24 N.E. 107; People v. Supervisors of Eldorado Co., 11 Cal. 170; Stockton v. County of Shasta, 11 Cal. 114; Schiel v. Cook Co., 137 Ill. 46, 27 N.E. 293; Bickwell v. Amador Co., 30 Cal. 287.)

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

The plaintiff brought action against the defendant county to recover certain sums of money claimed to be due to him from said county for services rendered as sheriff. By stipulation or agreement the case was heard at a term of the district court for Latah county. The case was heard before the court without a jury upon an agreed statement of facts, and a judgment rendered in favor of the defendant. Motion for new trial was made by plaintiff, and overruled, and it is from the order of the district court overruling said motion that this appeal is taken.

The first cause of action is set out in the complaint in the following words: "3. That on or about the 1st of April, 1893, there was a state warrant issued by S. J. Isaman, probate judge, in the name of the state of Idaho against Jingle Brothers, and placed in the hands of this plaintiff, as such sheriff, for service and arrest of said Jingle Brothers; that, pursuant to said warrant, the plaintiff rendered service to the county in and about the service of the said warrant, and incurred expense for himself and his deputies to the amount of $ 152, all of which is set out in an itemized account thereof hereto attached, and marked exhibit 'A,' as a part of this complaint. 4. That said plaintiff has twice presented his account to the board of commissioners of said county of Nez Perces for settlement and allowance, and that the said board of commissioners refused to allow the same except the sum of twenty-seven dollars and fifty-five cents, leaving a balance due the plaintiff of $ 124.45. 5. That no part of the said $ 124.45 has been paid." The second cause of action set out in the complaint of plaintiff is as follows: "2. That, while acting as such sheriff as aforesaid, he rendered services to the said county as follows: Attendance in the district court of the second judicial district of the state of Idaho in and for the county of Nez Perces at the terms of said court, and for the following number of days, to wit. [Then follows a specification of the number of days' attendance at each of the several terms of said district court during the years 1891 and 1892, at five dollars per day, amounting to $ 215.] 3. That the plaintiff duly presented to the board of commissioners of the said county of Nez Perces a verified statement of said services as heretofore set out, and asked the said board to allow the same. Plaintiff shows that the said board refuses to allow the said claim, except the sum of thirty-three dollars. 4. That no part of said claim has been paid except the sum of thirty-three dollars, leaving a balance due the plaintiff of $ 182." Judgment is claimed for the sum of $ 306.45, being the amount of said claims disallowed by the board, and for costs.

It is conceded that a portion of the services set forth in the first cause of action were rendered in the state of Washington. In reference to claims presented to the board of commissioners of counties, section 1775 of the Revised Statutes of Idaho provides as follows: "The board may allow the claim in part and draw a warrant for the portion allowed, on the claimant filing a receipt in full for his account." In Yavapai Co. v. O'Neil (Ariz.) 3 Ariz. 363, 29 P. 430, the supreme court of Arizona, construing a statute identical with that of Idaho say: "It is a salutary rule that requires the claimant, if he be dissatisfied with the allowance by the board, to either forego its part rejected, or submit his claim as a whole to the courts. It would be unfair to the county that he should accept that part of the determination of the board that is to his advantage, and make the other a subject of litigation. The observance of the rule that, when his claim is only partially allowed, the claimant must accept the part so allowed in satisfaction of his whole claim, or litigate it as an entirely, would directly tend to the discouragement of the presentation of fictitious and extortionate claims against the county. It is expressly provided that the board shall draw its warrant for the portion allowed, upon the claimant's filing a receipt in full for his account. This is necessarily, by construction, prohibitive of the issuance of the warrant upon any other condition; and of this the plaintiff must have been as well aware as was the board of supervisors, and the effect of the receipt by the plaintiff was to release the county from further liability." This, it seems to us, is a clear and...