Fremont County v. Brandon

Citation6 Idaho 482,56 P. 264
PartiesFREMONT COUNTY v. BRANDON
Decision Date13 February 1899
CourtUnited States State Supreme Court of Idaho

COUNTY COMMISSIONERS-VOID ORDER-COLLATERAL ATTACK.-An order allowing a county officer compensation to which he is not entitled by law, made by a board of county commissioners, is void for want of jurisdiction, and may be attacked collaterally.

LIMITATION AGAINST COUNTY.-Limitation does not run against a county to recover public money wrongfully withheld by one of its fiducial agents.

PLEADING.-It is not necessary to allege specific acts of fraud or deception in the complaint in an action brought by a county to recover back money allowed a county officer as compensation in violation of law.

FEES-DEED TO COUNTY.-Tax collectors are not entitled to a fee for making a deed to the county for property sold for delinquent taxes, and struck off to the county.

DEPUTIES OR CLERKS TO ASSESSOR.-Assessors and collectors are not entitled to deputies or clerks at the public expense.

TAX COLLECTORS-COMMISSIONS-SCHOOL MONEY.-Tax collectors are not entitled to commissions on school money collected under the general county levy.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Affirmed, with costs.

John A Bagley and Hawley & Puckett, for Appellant.

Can a recovery be had by a county where its regularly authorized officers have, through mistake of law and not through fraud deception or any unlawful means, settled or allowed an account to an officer, which he was not entitled to receive? (Painter v. Polk Co., 81 Iowa 242, 25 Am. St. Rep. 489, 47 N.W. 65; Badeau v. United States, 130 U.S. 439, 9 S.Ct. 579; La Salle County v. Milligan, 143 Ill. 321, 32 N.E. 196; Randall v. Lyon Co., 20 Nev. 35, 14 P. 583; Brumagim v. Tillinghast, 18 Cal. 269, 79 Am. Dec. 176; Clark v. Dutcher, 9 Cow. 674; Mackey v. Fullerton, 7 Colo. 556, 4 P. 1198.) The principle underlying this contention is, that a county is upon the same footing as an individual, and it is wholly settled that if an individual voluntarily pays a demand made unjustly upon him, he cannot recover back his money, unless there is fraud. (Benson v. Monroe, 7 Cush. 125, 54 Am. Dec. 716; Christie v. Sullivan, 15 Cal. 337; Valley Ry. Co. v. Lake Erie Iron Co., 46 Ohio St. 44, 18 N.E. 486; Flower v. Lance, 59 N.Y. 603.) Can any action for moneys paid by a county to its officers through fraud, deception or other unlawful means be maintained unless such unlawful means are set forth in the complaint? In alleging fraud, it is well settled, both at law and in equity, that the mere general averment, without setting out the facts upon which the fraud is based, is insufficient. (Cohn v. Goldman, 76 N.Y. 284; Jasper v. Hamilton, 3 Dana (Ky.), 280; People v. McKenna, 81 Cal. 158, 22 P. 488; Burris v. Adams, 96 Cal. 664, 31 P. 565; People v. Supervisors, 27 Cal. 655; Snow v. Halstead, 1 Cal. 359; 9 Ency. of Pl. & Pr. 686 et seq.) Does the statutes of limitations apply to dealings between a county and its officers? (Ada County v. Ellis, 5 Idaho 333, 48 P. 1071.) A municipal corporation has the legal right to avail itself of the defense of the statute of limitations as fully as any other creditor. It is a privilege personal to the debtor, and whenever in any legal proceeding it is invoked by the debtor, the court is compelled to recognize it as a proper defense. (Bates v. Gregory, 89 Cal. 398, 26 P. 891; Teass v. St. Albans, 38 W.Va. 1, 17 S.E. 400, 19 L. R. A. 802.)

S. H. Hays, Attorney General, and F. S. Dietrich, for Respondent.

In the first place, it is to be remembered that this action is by a public corporation against a public officer, on account of matters relating to public property held in trust and of public interest. A public officer is a trustee, not by statute, but from the very nature of things. Office implies the fiduciary relation, and the first without the second is an impossible conception. Plaintiff, without attempting to allege or prove actual fraud, relied upon the doctrine of Ada County v. Gess, 4 Idaho 611, 43 P. 71, Statute of limitations--to what extent does it apply to a county? Remembering that this is an action by a county, against its public officer, relating to public money held in trust, and of public interest we quote from Elmore Co. v. Alturas Co. Commrs., 4 Idaho 145, 37 P. 349: "It is a principle of the common law that the government, and, therefore, by parity of reasoning, a county, cannot be guilty of laches. . . . Agents of the county are not acting for themselves, but for the the county, and therefore the county is not barred by their neglect." As the defendant received the moneys collected by him, and held the same in trust for the county, the action is not barred. No demand was made until the day before suit. (San Luis Obispo Co. v. King, 69 Cal. 531, 11 P. 178.) The action of the board in allowing the $ 500 warrant "is void, and may be attacked directly, indirectly or collaterally at any time or place." (Dunbar v. Board, 5 Idaho 407, 49 P. 412.) How counsel can cite section 6, article 18, of the constitution to fortify their claim that such allowances are legal or justifiable we are unable to see. As we read this section, providing as it does for clerical assistance to certain officers, among whom, however, is not the assessor, it is conclusive against the legality of the allowance. (Ada Co. v. Ryals, 4 Idaho 365, 39 P. 556.) May the assessor and collector hold out his commissions, or must he present a bill, and have the same allowed by the board? The constitution seems to contemplate that fees and commissions, when received as such from private persons, are simply held and accounted for up to the officer's maximum. (Guheen v. Curtis, 3 Idaho 443, 31 P. 805; Moscow v. Latah Co., 5 Idaho 36, 46 P. 874.)

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

This action was commenced September 17, 1897, by the respondent, Fremont county, as plaintiff, in the district court, in said Fremont county, to recover judgment against the defendant Jesse C. Brandon, appellant here, for moneys alleged to have been received by said appellant, as assessor and collector for said county, between the fourteenth day of March, 1893, and the eleventh day of January, 1897, in the sum of $ 10,638.52. The defendant demurred to the complaint, and the demurrer was overruled; whereupon the defendant answered, denying specifically the allegations showing indebtedness, and pleading the statute of limitations. The cause was, on motion of defendant for a change of venue, removed to Bingham county, and there tried before the court and a jury, and a verdict rendered in favor of the plaintiff, and against the defendant, for the sum of $ 3,223.82, upon which verdict judgment was duly entered. This appeal is from the judgment and upon the judgment-roll. In defendant's bill of exceptions we find a stipulation as to some of the facts in controversy, but the evidence in full is not before us. The brief of appellant specifies twenty-two errors, but argues the same under five propositions, which we will now consider.

The first one is as follows: "Can a recovery be had by a county where its regularly authorized officers have, through mistake of law, and not through fraud, deception or any unlawful means, settled or allowed an account to an officer which he was not entitled to receive?" This proposition put in the form of a question, involves an anomaly, viz., that the board of county commissioners may lawfully allow a claim which is not a lawful charge against the county. Those claims against counties which are lawful charges are specified by statute. The powers of the board of commissioners are statutory and limited. Such boards can exercise those powers only granted to them by the statute. In the case at bar the commissioners exceed their powers by allowing claims in favor of the appellant which are not county charges; for instance, the said board allowed him, and he was paid out of the county treasury, the sum of $ 500, quarterly salary for the first quarter of the year 1893. We are now asked to hold that the county cannot recover this money back from the appellant, upon two grounds--(1) that no appeal was taken from the order allowing said claim; (2) that the cause of action therefor is barred by limitation. As to the first ground, we are clearly of the opinion that the order allowing said claim for salary was not only unauthorized...

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