Jolly v. Woodworth

• Decision Date: 25 November 1895
• Citation: 42 P. 512,4 Idaho 496
• Parties: JOLLY v. WOODWORTH, AUDITOR
• Court: Idaho Supreme Court

42 P. 512

4 Idaho 496

JOLLY v. WOODWORTH, AUDITOR

Supreme Court of Idaho

November 25, 1895

MANDAMUS-ASSESSOR AND TAX COLLECTOR-PUBLICATION OF DELINQUENT TAX LIST.-The assessor and tax collector has no authority to audit and allow the claim charge for publishing the delinquent tax list.

COUNTY COMMISSIONERS AUTHORIZED TO AUDIT AND ALLOW ALL CLAIMS.-The board of county commissioners is authorized to audit and allow all claims for such publication.

SAME-CHARGE FOR PUBLISHING LIST NOT UNDER SECTION 2005 OF THE REVISED STATUTES.-The charge or claim for compensation for publishing such list under a contract with the assessor and tax collector does not bring such charge within the meaning of the phrase "amounts fixed by law," as used in section 2005 of the Revised Statutes.

SECTIONS 1776 AND 1780 PROVIDE FOR REMEDIES TO CORRECT ACTION OF BOARD.-Parties aggrieved by the action of the board of county commissioners have two remedies, one by appeal, under section 1776 of the Revised Statutes, and one by action against the county, under section 1780, Idaho.

COSTS.-If respondent raises an issue in this court by brief, not raised in the court below, and fails in such issue, the costs of presenting the same are not chargeable to the opposing party.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment affirmed, with costs in favor of respondent.

Denning & Denham and George W. Goode, for Appellants.

Under section 2005 of the Revised Statutes "the auditor must draw warrants on the county treasurer in favor of all persons entitled thereto . . . . for all debts and demands against the county, when the amounts are fixed by law and which are not directed to be audited by some other person or tribunal." Under sections 1530-1532, the statute makes the duty as resting upon the assessor and tax collector mandatory, and in each of these three sections the word "must" has a peculiar significance. In none of the three sections just before mentioned is the board of county commissioners, or any county or state officer, mentioned as having any rights or duties in relation to the publication of the delinquent tax list. Had the board of county commissioners proceeded and let the contract for the county printing, it would have been a contract void by not having been contracted "by any agent authorized by law to make it on behalf of the county," and hence was a demand which the board of county commissioners would have no authority to allow. (Randall v. Yuba County, 14 Cal 220; Keller v. Hyde, 20 Cal. 593.)

Clay McNamee and McNamee & Morgan, for Respondents.

There is no law or statute in our state which directs either the auditor or assessor to audit or allow claims directed to be audited or allowed; only the board of county commissioners can allow claims against the county. (Rev. Stats., sec 2005.) Motion to quash writ was properly sustained, for the reason that appellants have other plain, speedy and adequate remedies at law; one of these remedies is provided by way of appeal from the action of the board of commissioners, and the manner in which this appeal may be taken is provided by law in section 1776 of the Revised Statutes of Idaho. Another remedy is provided by law in section 1780 of the Revised Statutes of Idaho. Mandamus will not lie where there is any other plain, speedy and adequate remedy at law. (Picotte v. Watt, 3 Idaho 447, 31 P. 805; Payne v. State Board of Wagon Road Commrs., 548; People v. Olds, 3 Cal. 167, 58 Am. Dec. 398; Draper v. Noteware, 7 Cal. 276; Ludlum v. Fourth Dist. Court, 9 Cal. 8; Goodwin v. Glazer, 10 Cal. 333; Early v. Mannix, 15 Cal. 150; Crandall v. Amador County, 20 Cal. 72; People v. Hubbard, 22 Cal. 35; Meminger v. Sexton, 24 Cal. 78.)

SULLIVAN, J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

Jolly Brothers, publishers of the "Moscow Mirror," a weekly newspaper published at Moscow, Latah county, made application to the district court of said county for a writ of mandate to compel Jay Woodworth, the auditor of said county, to issue to them a county warrant for the sum of $ 1,661, on the general fund of said county, that being the amount claimed to be due for the publication of the delinquent tax list of said county for the year 1894, under and by virtue of a contract alleged to have been entered into by them with David Fairburn, the assessor and tax collector of said county. An alternative writ was issued, and, on return day thereof, the said Woodworth appeared, and, by way of answer, demurred to the petition, and also moved to quash the same, on the grounds, among others, that the affidavit on which said alternative writ was issued failed to state facts sufficient to constitute a cause of action, and also that the court had no jurisdiction to issue the writ, for the reason that the plaintiffs had a plain, speedy and adequate remedy at law. After a hearing on said demurrer and motion, the court sustained them. Thereupon the plaintiffs declined to amend said application, and the court entered a judgment of dismissal. This appeal is from the judgment.

The brief of appellants fails to comply with paragraph 1 of rule 6 of the rules of this court, in that it fails to contain "a distinct enumeration of the several errors relied on." It utterly fails to specifically assign any error whatever. But, as respondent made no point on that ground, we will proceed to consider the alleged errors, as we gather them from the oral arguments of counsel and briefs on file, which alleged errors are as follows: 1. The court erred in sustaining the demurrer; 2. The court erred in sustaining the motion to quash; 3. The court erred in entering judgment of dismissal.

The facts are substantially as follows: The assessor and tax collector of Latah county entered into a contract with the appellants, whereby they agreed to publish the delinquent tax list of said county in manner and form as required by law, for the sum of one dollar for each and every name of delinquent tax-payers so published. That they published under said contract sixteen hundred and sixty-one names of delinquent tax-payers. That, after the publication of said tax list, the said David Fairburn, as assessor and tax collector, audited and allowed the claim of appellants therefor in the sum of $ 1,661, and evidenced the same by a certificate of audit and allowance. That thereafter the appellants presented said certificate of allowance to the respondent, Jay Woodworth, the auditor of said county, and demanded that he issue to them therefor a county warrant on the general fund of Latah county. The said auditor then and there refused to draw the same. The auditor's refusal was based upon the ground that said claim had not been audited and allowed by the board of county commissioners of said county.

The appellants contend that the law authorizes the assessor and tax collector to audit and allow...