Kootenai County v. Hope Lumber Co.

• Decision Date: 11 April 1907
• Citation: 89 P. 1054,13 Idaho 262
• Parties: KOOTENAI COUNTY, Appellant, v. THE HOPE LUMBER CO., Respondent
• Court: Idaho Supreme Court

89 P. 1054

13 Idaho 262

KOOTENAI COUNTY, Appellant, v. THE HOPE LUMBER CO., Respondent

Supreme Court of Idaho

April 11, 1907

ROAD POLL TAX-COLLECTION OF-COUNTY PARTY IN INTEREST-PROSECUTING ATTORNEY-CERTIFICATE TO TRANSCRIPT-PAYMENT OF COSTS NOT WAIVER OF RIGHT TO APPEAL-IDENTIFICATION OF PAPERS-COLLECTION OF ROAD POLL TAX-EMPLOYER-LIABILITY-SEIZURE AND SALE OF PERSONAL PROPERTY-ADDITIONAL METHOD-ACTION TO RECOVER.

1. In an action by a county to recover a road poll tax from a corporation due the county from an employee, the appeal may be taken by the county and in the name of the county, as the county is the party in interest.

2. Held, under the facts of this case, that the board of county commissioners authorized the prosecuting attorney to take this appeal.

3. The certificate of the clerk to the transcript held sufficient.

4. The payment of the costs in a case which has been decided against the county is not a bar to the prosecution of an appeal by the county.

5. Where a motion is heard by the trial court upon certain papers and records, in order to have the question decided on appeal, the transcript must contain the records and papers used by the court on such hearing properly identified, so that this court may know that it is passing upon the same facts that were before the trial judge.

6. Under the provisions of section 901, Revised Statutes corporations or other employers of residents in a highway district may be made responsible for the road poll tax assessed against their employees, by proper notice being given to the employer or managing agent; provided that at the time such notice is given, or thereafter, the employer becomes indebted to the employee.

7. Under the provisions of section 1 of an act entitled "An Act Providing for the Collection of Road Poll Taxes" (Sess. Laws 1899, p. 392), the legislature has provided another method or manner for collecting road poll taxes, by seizure and sale of personal property. That method is simply an additional one for the collection of road poll taxes, and does not repeal the provisions of said section 901.

8. After a corporation or an employer has become liable for the payment of the road poll tax of an employee, the prosecuting attorney of the county may, in the name of the county, bring an action to recover such tax if the corporation or person liable therefor refuses to pay the same.

(Syllabus by the court.)

APPEAL from the District Court of First Judicial District for Kootenai County. Hon. Ralph T. Morgan, Judge.

Action to recover road poll tax from an employer of the persons owing the tax. Judgment for the defendant. Reversed.

Reversed and remanded, with instructions. Costs awarded to the appellant.

Peter Johnson, County Attorney, and Ezra Whitla, for Appellant.

The statute providing for seizure and sale of personal property by the road overseer in case of nonpayment of the road poll tax is an accumulative remedy, and not an exclusive remedy. The existence of this additional remedy does not in any manner interfere with the remedy which formerly existed, and the means of enforcement do not in the least interfere, but each can be exercised under certain cases in which they are applicable, and each is entirely independent of the other.

If the act of 1899 repealed or abrogated the provision of the Revised Statutes of 1887 on this point, the same must necessarily have been done by implication as no express repeal is made; neither is there anything in the act of 1899 to show that any repeal was intended.

Repeals by implication are not favored by law. (Sutherland on Statutory Construction, 138, 153, 248; Brown v McCormick, 28 Mich. 215; Stephens v. Ballou, 27 Kan. 594; In re Mitchell, 120 Cal. 384, 52 P. 799; Central Iowa Ry. Co. v. Board of Supervisors, 67 Iowa 199, 25 N.W. 128.)

Where a statute gives a new remedy for a right existing and enforceable, either at common law or in equity, and contains no negative, express or implied, of the old remedy, the new one provided by it is cumulative, and the party may elect between the two. (Sutherland on Statutory Construction, 202. To same effect see Colorado Milling & Elevator Co. v. Mitchell, 26 Colo. 284, 58 P. 28; 23 Am. & Eng. Ency. of Law, p. 393; 8 Cyc. 1072.)

Subdivision 9 of section 1759, Rev. Stat., 1887, expressly makes it the duty of the county commissioners to make collections of all money belonging to the county, or in which the county has any benefit or use.

The road overseer is not the real party in interest, and in fact is not personally interested in the collection of this tax in any sense of the word. Kootenai county, the plaintiff in this action, is the real party in interest in this case. (United States v. Shoup, 2 Idaho 493, 21 P. 656; Jackson v. Hamm, 14 Colo. 58, 23 P. 88; Bassett v. Inman, 7 Colo. 270, 3 P. 383; Cedar Co. v. Sager, 90 Iowa 11, 57 N.W. 634; Board of Commissioners v. Young, 3 Wyo. 684, 29 P. 1002; McConnel v. Wall, 67 Tex. 323, 3 S.W. 287.)

Payment of costs in this case by the county commissioners was not a compromise or settlement of the action. (Chapman v. Sutton, 68 Wis. 657, 32 N.W. 683; Sloan v. Anderson, 57 Wis. 123. 13 N.W. 684, 15 N.W. 21; Plano Mfg. Co. v. Racey, 69 Wis. 246, 34 N.W. 85; State v. Martland, 71 Iowa 543, 32 N.W. 485; Richeson v. Ryan, 14 Ill. 74, 56 Am. Dec. 493; Hayes v. Nourse, 107 N.Y. 577, 1 Am. St. Rep. 891, 14 N.E. 508; O'Hara v. McConnell, 93 U.S. 150, 23 L.Ed. 840; 2 Cyc. 647.) County commissioners must pay judgments. (Rev. Stats., sec. 1735.)

Edwin McBee, for Respondent.

It is the duty of the attorney general and not the county attorney to take such appeals and represent the county in the supreme court. (Sess. Laws 1901, p. 163 (amending Rev. Stats., sec. 250); Sess. Laws 1899, p. 75, sec. 3.) But neither the county attorney, attorney general, or anyone else was authorized to take this appeal. The board of county commissioners, which has the matter in charge, recognized the decision of the district judge as final and paid the judgment for costs.

The record on appeal has not been authenticated or identified by a bill of exceptions, or in any manner, or at all.

A bill of exceptions is not necessary in such cases, but the papers used upon the hearing in the court below must be identified by certificate from the judge, clerk, or attorneys, so that this court may know that it is passing upon the same facts which were before the district judge. (Simmons Hardware Co. v. Alturas Commercial Co., 4 Idaho 386, 39 P. 553; Village of Sandpoint v. Doyle, 9 Idaho 236, 74 P. 861.)

The road overseer and not Kootenai county is the proper person to collect the road poll tax. It is not Kootenai county, but the road district that is to be benefited by the collection of these poll taxes.

If this judgment should be sustained, what could Kootenai county do with the money? There is no provision of law allowing such a suit to be maintained, and no authority for the disbursement of money so received.

If the corporation is liable for the poll tax of an employee, this act of 1899, providing for seizure and sale, is an exclusive remedy, and an action will not lie. (Mason Co. v. Simpson, 13 Wash. 250, 43 P. 33; Faribault v. Misener, 20 Minn. 347 (Gil. 347); Nebraska City v. Gas Light Co., 9 Neb. 339, 2 N.W. 870-873; Danforth v. McCook, 11 S. Dak. 258, 74 Am. St. Rep. 808, 76 N.W. 940; Marshall Co. v. Knoll, 102 Iowa 573, 69 N.W. 1146, 71 N.W. 571; Montezuma Water Co. v. Bell, 20 Colo. 175, 36 P. 1102; People v. Biggins, 96 Ill. 481; Crawford Co. v. Laub, 110 Iowa 355, 81 N.W. 590; Pierce Co. v. Merrill, 19 Wash. 175, 52 P. 854; Richards v. Commissioners, 40 Neb. 45, 42 Am. St. Rep. 650, 58 N.W. 594; Commissioners v. Furay (Neb.), 99 N.W. 271; Chamberlain v. Wollsey, 66 Neb. 141, 92 N.W. 181, 95 N.W. 38; Cooley on Taxation, 2d ed., p. 16; Black on Tax Titles, sec. 45; Sutherland on Statutory Construction, 2d ed., sec. 672.)

SULLIVAN, J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This action was brought by Kootenai county, in the probate court of that county, against the Hope Lumber Company for the purpose of collecting from that corporation the road poll taxes of some of its employees. The plaintiff alleges the corporate existence of the plaintiff as well as of the defendant. It also alleges that one Jerry Slavins was the duly appointed road overseer of road district No. 7 in said county, and the service of notice upon the Hope Lumber Company to pay the road poll taxes of certain employees of that company, a copy of which notice is attached to the complaint. It is also alleged that all the parties whose names are on the list attached to said notice were male inhabitants of said road district, over the age of twenty-one and under the age of fifty years, and liable to pay a road poll tax, and that the action was commenced by order of the board of county commissioners of said county.

Defendant demurred to the complaint on two grounds, to wit: 1. That the complaint did not state facts sufficient to constitute a cause of action; 2. A nonjoinder of parties defendant.

That demurrer was overruled by said court and defendant answered. After a trial of the cause, judgment was entered as prayed for against the defendant. The cause was then appealed to the district court by the defendant. When the matter came on for hearing in the district court, the plaintiff moved to dismiss the appeal upon several grounds, the main point being that the appeal was not perfected within the time required by law. After denying said motion, the cause came on for hearing on defendant's demurrer to the complaint and the court sustained the demurrer on two grounds. The court in its decision uses the following language: "It is the opinion that an action at law cannot be...