Fancher v. Bd. of Com'rs of Grant County.

• Decision Date: 21 March 1921
• Docket Number: No. 2548.,2548.
• Citation: 210 P. 237,28 N.M. 179
• Parties: FANCHER ET AL.v.BOARD OF COM'RS OF GRANT COUNTY.
• Court: New Mexico Supreme Court

28 N.M. 179

210 P. 237

FANCHER ET AL.

v.BOARD OF COM'RS OF GRANT COUNTY.

No. 2548.

Supreme Court of New Mexico.

March 21, 1921.On Rehearing Sept. 29, 1922.

Syllabus by the Court.

Section 4798, Code 1915, authorizes the board of county commissioners of any county in the state to have a complete and accurate index made of all the instruments of record affecting real property, and provides: “They are hereby authorized to have such index made by the county clerk of said county.” Held, that this section limits the power of boards of county commissioners to have such indexes prepared by persons other than the county clerk, and under such section they are not authorized to employ a private individual to make such an index.

Where authority is given to do a particular thing, and the mode of doing it is prescribed, it is limited to be done in that mode, and all other modes are excluded.

The Legislature may prescribe the method for exercising the jurisdiction of the board of county commissioners, and, where it prescribes the mode, the rule is exclusive of all others and must be followed.

There is no presumption in law that a public official is to receive a salary, and it is the duty of a public official, so long as he holds public office, to perform the duties prescribed by law.

Where by law the duty of performing certain work is cast upon a designated county official, it is not competent for the board of county commissioners to employ other persons to do the work required of such county official and pay for such services.

Under the statutes of this state it is made the duty of the county assessor to list any omitted property, if he discovers any before the delivery of the tax rolls to the treasurer, and it is made the duty of the state tax commission to ascertain whether property in any county has been omitted from the roll, in whole or in part, or inaccurately or inadequately described, and certify the fact to the county assessor, who shall place it on the roll accordingly. Under the statutes, to say the least, an implied duty is cast upon the assessor to search for and place upon the tax rolls omitted property and a positive duty is cast upon the state tax commission to do so. The positive duty being thus cast upon the state tax commission to search out and place upon the tax rolls omitted property, the county commissioners are precluded from employing private individuals to do this work, and a contract with a private individual to install a checking and classification system, designed to assist the county assessor in placing upon the tax rolls omitted property, is beyond the power of the board of county commissioners.

The test is not whether the duty is primary or secondary, but whether provision has been made by law for the accomplishment of the end, or the doing of the work, or the performance of the services for the benefit of the public in its organized capacity.

Where the invalidity of a contract with a municipal corporation is due to the entire lack of power of the corporation to enter into it, there can be no recovery upon a quantum meruit, and the municipal corporation can neither ratify the contract nor be estopped from pleading its invalidity.

The intention of the parties making a contract is the controlling consideration in determining whether the same is severable or entire. In ascertaining the intention of the parties, resort must necessarily be had to the terms of the contract in the first instance. If they clearly indicate the intention the question is at once settled. If they do not clearly indicate the intention, resort may then be had to the nature of the subject-matter; whether the contract apportions the consideration to each of the items covered may be considered; whether the whole quantity, service or thing, as a whole, is of the essence of the contract, and perhaps other tests may be resorted to.

The contract in this case examined and is held to be entire.

Appeal from District Court, Grant County; R. R. Ryan, Judge.

Action by J. E. Fancher and another against the Board of County Commissioners of Grant County. Judgment for defendant on demurrer, and plaintiffs appeal. Affirmed.

Where authority is given to do a particular thing and the mode of doing it is prescribed, it is limited to be done in that mode, and all other modes are excluded.

C. C. Royall, of Silver City, A. B. Renehan, of Santa Fé, and R. H. Hanna, of Albuquerque, for appellants.

Forrest Fielder, of Deming, and Percy Wilson, of Silver City, for appellee.

ROBERTS, C. J.

Appellants filed a complaint against the appellee in the district court of Grant county to recover under a contract entered into on the 5th day of February, 1918, between J. E. Fancher Company, a copartnership, and the board of county commissioners of Grant county, by the terms of which the company was to do the following things:

(1) To make up and furnish for the use of the county clerk of said Grant county a complete and correct Cotts record index system.

(2) To make and furnish for the use of the tax assessor of said Grant county a complete and correct Beall standard classification and checking system.

(3) To transcribe or reproduce any and such records of the county clerk's office as may be determined by said clerk to be in such condition that their reproduction is necessary for their preservation and future use.

The compensation to be paid for such work and services was at a stipulated price per entry or for the work done. The Holbrook State Bank advanced large sums of money for the carrying on of such work, as did the Socorro State Bank, and took an assignment of an interest in the money due to secure the payment of the money.

The complaint consisted of three causes of action, the first of which was founded on the contract and alleged that Fancher's assignee of said company and his predecessors in interest duly performed all the conditions of such contract to be performed, but that the appellee refused to pay for such services and work, and a recovery of the contract price was sought. The second cause of action was upon a quantum meruit to recover the sum of $170,000, and the third cause of action asked that the appellee be enjoined from asserting the defense of ultra vires, and that it be estopped from predicating a defense upon a pretense that the contract was unenforceable at law.

A demurrer was interposed to the complaint which, summarized, is as follows: (1) That the said contract and modifications thereof were ultra vires of the said board of county commissioners of Grant county; (2) that the said record index system and modifications thereof are not an article or thing for which the appellee has authority to contract; (3) that the said checking system is likewise not a matter or thing for which the said appellee has authority to contract; (4) that the work done under the contract exceeds the sum of $300, and that no advertisement thereof was made and no bids were taken, (5) that the second cause of action did not state facts sufficient to justify a recovery. The demurrer was sustained, and the appellants, electing to stand upon the complaint, have perfected this appeal from a judgment dismissing the complaint.

[1] The first question which presents itself is as to whether or not boards of county commissioners have power to contract with persons other than public officers to prepare an index of the record of conveyances on file in the office of the county clerk. Section 1150, Code 1915, authorizes boards of county commissioners to “make all contracts and do all other acts in reference to the property and concerns necessary to the exercise of its corporate or administrative powers.” Section 1199 confers upon such boards the powers “to make such orders concerning the property belonging to the county as they may deem expedient,” and by section 1201 such boards are declared to “have the care of the county property and the management of the interests of the county in all cases where no such provision is made by law.” Section 4789, Code 1915, requires the county clerk to keep a reception book wherein shall be entered the names of the grantor, mortgagor, or other persons whose title is affected thereby, alphabetically arranged, stating the day, hour, and minute of such record. Section 4781, Code 1915, requires such clerks to record land titles or other documents and to record the same as soon as possible, such documents from date of delivery to the county clerk being considered as recorded and as sufficient notice to the public of the contents thereof. Section 3957, C. L. 1897, provides that the records of deeds and mortgages shall be kept in separate books and that “the index thereof shall contain, in addition to the names of grantors, mortgagors, grantees and mortgagees, the date of record of each instrument; and they shall be arranged under the proper alphabetical heads in the chronological order of record.” This section appears as section 5, c. 10, Laws of 1887, but only the first sentence thereof was brought forward into the Code of 1915. In 1903, the Legislature, by chapter 87, Laws 1903, provided in part as follows:

“Sec. 1. That whenever, in the opinion of the board of county commissioners of any county in the territory, it is necessary for the convenience of the public and the better preservation of titles to real property, to have a complete and accurate index made of all instruments of record affecting real property, they are hereby authorized to have such index made by the probate clerk and ex officio recorder of said county, and it shall be the duty of said clerk and recorder to immediately proceed to index the records beginning with the first volume of each of the above series of records and indexing each instrument therein until all of the said records shall have been accurately indexed to the first day of April, 1903.”

That section was carried forward into the Code of 1915 as section 4798 as follows:

“That...