Gorman v. The Board Of Commissioners Of Boise County

• Citation: 1 Idaho 553
• Parties: John Gorman, Appellant, v. The Board Of Commissioners Of Boise County Et Al., Respondents.
• Decision Date: 01 January 1874
• Court: United States State Supreme Court of Idaho

1 Idaho 553

John Gorman, Appellant, v. The Board Of Commissioners Of Boise County Et Al., Respondents.

Supreme Court of Idaho

January 1, 1874

COUNTY COMMISSIONERS-JURISDICTION.-A board of county commissioners is a tribunal created by statute, with limited jurisdiction and only quasi judicial powers, and cannot act except in strict accordance with the statute.

ASSESSOR-TAX COLLECTOR-OFFICIAL OATH.-An assessor and tax collector, whose oath of office as both assessor and tax collector is indorsed on his bond as assessor, is not required to take another oath as tax collector when he files his bond as tax collector.

OFFICIAL BOND, APPROVAL OF COMMISSIONERS.-It is the duty of the board of county commissioners to approve the bond of an assessor and tax collector pro forma, if, upon its face, it is prima facie good. The board may, at any time afterward, cite the sureties, to make a further justification, and, in case it is deemed insufficient, may cite the officer to show cause why his office should not be declared vacant.

COUNTY COMMISSIONERS-RECORD-PRESUMPTIONS.-The order of a board of county commissioners, requiring the officers-elect to give bonds in particular sums, is of no force except as to the officers-elect at the time of making such order. The board of county commissioners is required, by law, to keep a record of its proceedings, and no presumption arises as to the regularity of any of their proceedings, not appearing of record, even though parties may have acted upon the supposed order of such board.

TAX COLLECTOR-OFFICIAL BOND.-A tax collector is not required, by statute, to give a bond with sureties in double the amount of the whole penal sum of his bond.

COUNTY COMMISSIONERS-JURISDICTION.-A board of county commissioners has no power or authority to pass upon the malfeasance or misfeasance of an officer; those questions belong to a higher tribunal, having jurisdiction to punish the officer, if found guilty.

INTENDMENTS-OFFICERS.-Every intendment of the law is to be taken in favor of those whom the people have elected to serve in an official capacity. Courts should not seek an excuse to defeat the will of the people, but rather to carry out and protect it.

APPEAL from the District Court of the Second Judicial District Boise County.

George Ainslie, Alanson Smith and Milton Kelly, for the Appellant. H. E. Prickett and J. W. Huston, for the Respondents.

WHITSON J.,

delivered the opinion.

HOLLISTER J., concurred. NOGGLE, C. J., dissented.

John Gorman was elected at the general election in November, 1872, to the office of assessor and tax collector of Boise county for the term of two years, commencing on the first Monday in January, 1873, on which day he filed the necessary bond as such assessor, which was approved by the board of county commissioners. He also took the necessary oath as assessor and tax collector, which was duly indorsed on the bond. On the eighth day of April, 1873, Gorman presented an additional bond as tax collector to the board in the sum of fifteen thousand dollars, which was rejected by the board for reasons stated by them, but not necessary here to consider. On the eleventh day of April, 1873, he presented a second bond as tax collector, to the board, which was also rejected, for the reasons following, to wit:

"April 11, 1873, the bond of John Gorman as tax collector of Boise county is rejected for the reasons that it is not executed by sufficient and responsible sureties. James Hoey, one of the offered bondsmen, stated, after he had signed the bond, that he was drunk when he signed the bond, and that he would not be worth a dollar if his debts were paid."

Further, "also Matt. Luney, who was on the bond offered on the eighth inst. for fifteen hundred dollars, whom we consider good for that amount at that time, is on the one offered this day for two thousand dollars; and in the meantime we have ascertained that he is on another bond for the sum of two thousand dollars, of which we had no knowledge on the eighth instant. He is also on the sheriff's bond as tax collector for the sum of one thousand two hundred and fifty dollars. This, with his other debts and liabilities, we consider more than his property is worth. Also Charles Kolny, one of the offered bondsmen, is liable on the bond of J. F. Cheatly, road supervisor of road district No. 2, for the sum of two thousand dollars, and on the bond of R. K. Errin, constable of Placerville, for the sum of one thousand dollars, and is assessed for only two thousand one hundred dollars.

"Also Hugh Craig's property consists principally of a

ranch, which may be held as a homestead, and that his indebtedness is equal to the remainder of his property.

"Also on one of the commissioners saying that he would like to have some of the offered bondsmen appear before the board for further justification, Mr. Gorman replied that he would not bring any of them. For the foregoing reasons we are unwilling to accept the bond of John Gorman as tax collector for the years 1873 and 1874, who is now defaulter to Boise county in the sum of six thousand four hundred and fifty-seven dollars and twenty-four cents, or more. On the 12th of April, 1873, the board made the following order, to wit:

"April 12, 1873. It is hereby ordered by the board of county commissioners of Boise county that the office of county assessor and ex-officio tax collector held by John Gorman be, and the same is hereby declared vacant, for the following reasons, to wit:

"'First, the said Gorman has failed to file a good and sufficient bond, as tax collector of said Boise county. Second, the said John Gorman is now a defaulter to Boise county, as county assessor and ex-officio tax collector, in the sum of ($6,457.24) six thousand four hundred and fifty-seven dollars and twenty-four cents. Third, the said John Gorman has been willfully neglectful in the discharge of his duties as assessor and ex-officio tax collector of Boise county. Fourth, that the said John Gorman has shown himself incompetent to properly discharge the duties of said office of assessor and ex-officio tax collector of Boise county.

"'It is hereby ordered by the board of county commissioners of Boise county that Ben. T. Davis be, and he is declared appointed assessor and ex-officio tax collector of Boise county for the years 1873 and 1874, in place of John Gorman, removed from office.' The bondsmen being satisfactory, the bond of Ben. T. Davis, as assessor and tax collector, was approved. It also appears from the record that the board, in October, 1868, fixed the bonds of the officers-elect, and among them the tax collector's bond at fifteen thousand dollars."

From the order rejecting his bond, as also the order declaring the office of assessor and tax collector vacant, and the order appointing Davis assessor and tax collector of Boise county in his place, Gorman appealed...