Fisher v. Board of Com'rs of Bannock County

• Decision Date: 27 February 1895
• Citation: 39 P. 552,4 Idaho 381
• Parties: FISHER v. BOARD OF COUNTY COMMISSIONERS OF BANNOCK COUNTY
• Court: Idaho Supreme Court

39 P. 552

4 Idaho 381

FISHER v. BOARD OF COUNTY COMMISSIONERS OF BANNOCK COUNTY

Supreme Court of Idaho

February 27, 1895

WRIT OF ERROR-APPEAL FROM COUNTY COMMISSIONERS TO DISTRICT COURT TRIED ANEW-TRIAL BY JURY.-On an appeal from an order of the county commissioners, the cause must be tried anew in the district court, and the court may submit the issues to a jury.

EVIDENCE TO PROVE ISSUE.-The court did not err in receiving evidence as to whether C. was actually and necessarily engaged in the transaction of county business for the days charged, that being the issue in the case.

SAME.-On the trial in the district court, all evidence pertinent to the issues should be received.

COMPENSATION OF COUNTY COMMISSIONERS.-A county commissioner under an act of the legislature approved February 23, 1893, Second Session Laws, 39, is permitted to charge and receive six dollars per day for each day actually and necessarily engaged in the transaction of county business, the total of which compensation shall not exceed $500 per annum.

(Syllabus by the court.)

WRIT of error to District Court, Bannock County.

Hawley & Puckett and D. C. Lockwood, for Plaintiff in Error.

All statutory proceedings and rights which did not exist at common law are without the guaranty of trial by jury. The right of jury trial applies only to rights and proceedings which existed at common law. (Kimball v. Connor, 3 Kan. 414; Plimpton v. Somerset, 33 Vt. 283.) Certain summary proceedings or inquisitions by the state have been held not to be within the guaranty of trial by jury. (Crandell v. James, 6 R. I. 144; Harper v Commissioners, 23 Ga. 566; Rankin v. Jauman, ante p. 53, 36 P. 501; Rupert v. Board of County Commrs., 2 Idaho 19, 2 P. 718; General Custer Min Co. v. Van Camp, 2 Idaho 40, 3 P. 22.) The act of February 23, 1893, page 40 of the Laws of Second Session allows each member of the board of county commissioners six dollars for each day actually and necessarily engaged in transacting county business, and if the meeting is necessary and is held, the member attending it is entitled to his per diem whether the board remains in session ten minutes or ten hours. (White v. Dallas County, 87 Iowa 563, 54 N.W 368.)

R. P. Quarles, W. C. Love, and P. E. Keller, for Defendants in Error.

The statute only allows county commissioners per diem compensation for time actually and necessarily engaged in transacting county business. Whether the nineteen days charged by plaintiff in error, J. O. Caldwell, were actually and necessarily devoted to the business of the county the district court could only ascertain by the manner in which the court inquired into it, viz., by hearing evidence relative thereto. We contend that this is proper, otherwise the right of appeal given the defendants in error as taxpayers would be ineffectual, and the object of the statute entirely defeated.

A. W. Fisher and others appealed from an order of the county commissioners of Bannock county from an allowance of a claim to J. O. Caldwell. The judgment of the commissioners was reversed, and the board of county commissioners and J. O. Caldwell bring error. Affirmed.

This cause was taken to the district court of Bannock county by appeal from an order of the board of county commissioners of said county allowing J. O. Caldwell, a member of said board, $ 150.40, mileage and per diem compensation for services as a member of said board, and was brought to this court by writ of error. In the trial of the cause in the district court two questions were submitted to the jury, and a special verdict found by them, on which verdict judgment was entered reducing the claim from $ 150.40 to $ 90.40. The record shows that the reduction was made by refusing to allow the claim of Caldwell, defendant in error, for ten days' services, at six dollars per day, that had been allowed by said board. It appears from the record that said board adjourned from day to day for many days, awaiting a decision of the supreme court in a case there pending in which Bannock county was interested, claiming that said board could not make the annual tax levy until said decision was made, and for that reason adjourned from day to day, as above stated.

SULLIVAN J. Morga...