Givens v. Carlson

• Decision Date: 23 May 1916
• Citation: 157 P. 1120,29 Idaho 133
• Parties: RAYMOND L. GIVENS, Plaintiff, v. AUGUST CARLSON, EDWARD SMITH and MANS H. COFFIN, Constituting the Board of County Commissioners of Ada County, State of Idaho, Defendants
• Court: Idaho Supreme Court

157 P. 1120

29 Idaho 133

RAYMOND L. GIVENS, Plaintiff, v. AUGUST CARLSON, EDWARD SMITH and MANS H. COFFIN, Constituting the Board of County Commissioners of Ada County, State of Idaho, Defendants

Supreme Court of Idaho

May 23, 1916

DELINQUENT TAX LIENS - FORECLOSURE - ATTORNEYS' FEES - PROSECUTING ATTORNEY.

1. The services rendered by a prosecuting attorney in foreclosing delinquent tax liens, which have not been assigned, are rendered for the county in the discharge of a duty imposed upon him by virtue of his office, for the performance of which he is paid with the salary fixed by the board of county commissioners pursuant to sec. 18, art. 5, of the constitution, as amended. Sec. 7, art. 18, of the constitution, as amended, which provides that all county officers shall receive fixed annual salaries as full compensation for their services, applies to the prosecuting attorney, and prohibits the payment to him of fees in such foreclosure proceedings.

[As to what are and what are not official acts of public officers see note in 6 Am.St. 130]

APPLICATION for writ of mandate. Alternative writ quashed and case dismissed.

Alternative writ quashed and case dismissed. Costs awarded to defendants.

Raymond L. Givens and E. P. Barnes, for Plaintiff.

It must be presumed that the legislature intended to afford the county protection in the bringing of these suits by holding the prosecutor liable on his bond; hence to give the plain construction intended by the legislature, the $ 25 must be paid the attorney, since it is the duty of the court to reconcile and give force and effect to the statute, if possible. (Grice v. Clearwater Timber Co., 20 Idaho 70, 117 P. 112; Parsons v. Wrble, 21 Idaho 695, 123 P. 638; Swain v. Fritchman, 21 Idaho 783, 125 P 319.)

This construction is especially applicable and necessary under the doctrine of Spokane County v. Allen, 9 Wash. 229, 43 Am. St. 830, 37 P. 428, when considered in relation to the duties and obligations as well as liabilities of the bondsmen.

Where an officer's duties are greatly increased, to such an extent as to be beyond what was contemplated by his original line of employment, even though his compensation was governed by statute or by the constitution, the right of such officer to the additional fees authorized by the statute does not violate the constitutional provision.

It is not an increase of salary; it is not an addition nor an item of expense allowed the attorney in connection with the running of his office, but is a specific payment made by the defendant in the action for the express purpose of compensating the attorney for the additional labor involved in the preparation and prosecution of the foreclosure suits. (Plank v. Hertha, 132 Iowa 213, 109 N.W. 732; Slayton v. Rogers, 128 Ky. 106, 107 S.W. 696, 697; Nichols v. Board of Commissioners, 76 Kan. 266, 91 P. 79; State v. Carson, 6 Wash. 250, 33 P. 428; Nolan v. Board of Commissioners, 65 Kan. 57, 68 P. 1068; Nation v. Tulley, 86 Kan. 564, 121 P. 507; Pillsbury v. Brown, 45 Cal. 46; Collier v. Montgomery County, 103 Tenn. 705, 54 S.W. 989.)

In construing the tax foreclosure law in the light of constitutional provisions, either this fee is to be paid to the prosecuting attorney or, if that cannot be done legally, this court must inevitably reach the conclusion that the county cannot recover this fee at all, and that the fee is not a legal charge which may be collected in these foreclosure proceedings. (Sarr v. Carson, 145 Iowa 525, 124 N.W. 204, 205.)

J. H. Peterson, Attorney General, D. A. Dunning and Herbert Wing, Assistants, for Defendants.

In 1891 the legislature of the state of Washington passed an act to provide for the assessment and collection of taxes. This act in general covered the same ground for Washington as is covered for Idaho in the 1913 act. Each was a general revenue act. This enactment established a procedure for the foreclosure of tax liens, which was required to conform to the procedure in foreclosure of liens and mortgages as in the case of the Idaho statute now under discussion.

A careful examination of the two acts will show them to be identical, in spirit if not in letter, so far as the precise question involved here is concerned.

The supreme court of Washington has construed that portion of the act having to do with the right of the county attorney to claim the fee in the case of Spokane County v. Allen, 9 Wash. 229, 43 Am. St. 830, 37 P. 428. See, also, Commonwealth v. Rogers, 9 Gray (75 Mass.), 278.

That the legislature did not intend the $ 25 fee to go as a personal perquisite to the county attorney, is evidenced by sec. 143 of the Idaho act.

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

This is an original application in this court made by the plaintiff, who is prosecuting attorney of Ada county, for a writ of mandate to compel the defendants, who constitute the board of county commissioners of that county, to approve and authorize payment of his claim for $ 25, which sum he alleges is due to him for services rendered in the foreclosure of a tax lien as provided for in chap. 58, p. 173, Sess. Laws 1913. An alternative writ of mandate was issued, which the defendants moved to quash, and the case was heard upon that motion.

Sec. 137 of chap. 58, supra, is as follows: "In case redemption of the property from tax sale is not made within two years from the date of the delinquency certificate, the owner of such certificate must not less than thirty (30) days nor more than ninety (90) days after the expiration of the time of redemption, commence an action in the district court in the county wherein said property is located, for the foreclosure of the tax lien, as provided in this act, and in case such certificate is owned by the county, the county auditor of such county must deliver the same to the county attorney, taking his receipt therefor, who must forthwith institute proceedings in the name of the county auditor as trustee for said county, for the foreclosure of the tax lien, as provided in this act. One or more delinquency certificates affecting the same or different pieces or parcels of property may be included in one action instituted in the name of the county auditor as trustee as aforesaid, by the county attorney, even though the property affected by the delinquency certificate so included in one action may be owned by several and different persons."

It is provided in sec. 141 of that chapter that "In addition to the tax lien and the costs and disbursements allowed by law, the plaintiff in such action, whether the county or any assignee, shall be entitled to recover and to foreclose as a lien upon such property the sum of twenty-five dollars as attorney's fees." And sec. 143 provides: "All moneys received in the satisfaction of any such judgment in favor of the county shall be paid into the county treasury and apportioned as provided in this act for the apportionment of taxes, except the amount of attorney's fees and costs of suit, which shall be apportioned to the county expense fund."

It is provided by...