Libby v. Pelham

• Decision Date: 02 July 1917
• Citation: 166 P. 575,30 Idaho 614
• Parties: ELLA G. LIBBY, Appellant, v. C. W. PELHAM, Respondent
• Court: Idaho Supreme Court

166 P. 575

30 Idaho 614

ELLA G. LIBBY, Appellant, v. C. W. PELHAM, Respondent

Supreme Court of Idaho

July 2, 1917

CHANGES OF LANGUAGE IN REVISIONS OF STATUTES-CONSTRUCTION OF REVISED STATUTES-PROHIBITION TO COUNTY COMMISSIONERS FROM DEALING IN COUNTY WARRANTS-SECTIONS 258 AND 260, REVISED CODES CONSTRUED.

1. Sec 5 of the Revised Statutes of 1887, and sec. 5 of the Rev Codes of 1909, both provide that the provisions of said Revised Statutes and Revised Codes, "so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments."

2. Changes made by a revision of a statute, as distinguished from legislative amendment, will not be regarded as altering the law as it existed previous to revision, unless it is clear that such was the intention, and if the statute as revised is ambiguous or is susceptible of two constructions, reference may be had to prior statutes for the purpose of ascertaining intention.

3. Sec 258, Rev. Codes, was a part of an act entitled, "An act to prevent officers from dealing in certain securities." The use of the word "dealing" clearly indicates an intention on the part of the legislature to preclude officers from dealing in such securities in any manner whatsoever, whether for their own use or benefit or that of any other person.

4. Where a wife purchased purported county warrants, through her husband as her agent, who was at the time of such purchase a county commissioner, she must be presumed to have done so with the knowledge that under the provisions of secs. 258 and 260, Rev. Codes, the county treasurer would be without authority to pay such warrants, and she is not in a position to complain that there was no consideration.

5. Rights based on a violation of law will not be enforced, and if a transaction is illegal because in contravention to a statute, it will not be upheld in any way, but the parties will be left in the situation in which they have voluntarily placed themselves.

6. Held, that the trial court did not err in directing the jury to return a verdict for defendant.

[As to constitutionality of code amendment or revision, see note in 86 Am.St. 267]

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

Action for money had and received. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Black & Wernette, for Appellant.

When a statute is amended, repassed or re-enacted by the legislature, and a clause or part thereof omitted, and with such omission the statute as amended, repassed or re-enacted makes sense either with or without the omitted portion, there is no presumption that the legislature did not intend the omission. (2 Lewis' Sutherland's Stat. Const., p. 801, sec. 412.)

The parts of the former act omitted in the revision cannot be supplied under the guise of construction. (State ex rel. Everding v. Simon, 20 Ore. 367, 26 P. 170; Sener v. Ephrata, 176 Pa. 80, 34 A. 954; Pacific University v. Johnson, 47 Ore. 448, 84 P. 704; Stitt v. Bush, 22 Ore. 239, 29 P. 737; Schaedler v. Columbia Contract Co., 67 Ore. 412, 135 P. 536.)

"If the acts alleged do not come clearly within the prohibition of the statute, its scope will not be extended to include other offenses than those that are clearly described and provided for; and if there is a fair doubt as to whether the act charged is embraced in the prohibition, that doubt is to be resolved in favor of defendant." (36 Cyc. 1186; Distilled Spirits Case, 11 Wall. (U.S.) 356, 20 L.Ed. 169.)

"Notice to or knowledge of a mere ministerial agent, clerk or servant will not be imputed to the principal." (2 Corpus Juris, 865; Royle Min. Co. v. Fidelity & Casualty Co., 161 Mo.App. 185, 142 S.W. 443; 2 Pomeroy's Eq. Jur., sec. 668; Mechem on Agency, 2d ed., sec. 1834; Rogers v. Dutton, 182 Mass. 187, 65 N.E. 56; Pennoyer v. Willis, 26 Ore. 1, 46 Am. St. 594, 36 P. 568; Trenton v. Pothen, 46 Minn. 298, 24 Am. St. 225, 49 N.W. 129.)

The rule of constructve notice to a principal can have no operation whatever in a case where the agent himself has not received actual notice. (Wheatland v. Pryor, 133 N.Y. 97, 30 N.E. 653; Central Trust Co. of New York v. West India Imp. Co., 48 A.D. 147, 63 N.Y.S. 853.)

C. H. Potts, for Respondent.

A county commissioner is prohibited by express statute from purchasing county warrants, and officers charged with the disbursement of public moneys are prohibited from paying warrants purchased by a county commissioner. (Secs. 258, 260, Rev. Codes.)

If there is any doubt that the prohibition against purchasing and selling warrants contained in the present statute applies to the facts of this case, then the statute is ambiguous and uncertain, and it is the duty of the court to resort to the original statute to determine the meaning of the present law. (Becklin v. Becklin, 99 Minn. 307, 109 N.W. 243; State v. Stroschein, 99 Minn. 248, 109 N.W. 235; Comer v. State, 103 Ga. 69, 29 S.E. 501; Taylor v. Inhabitants of Town of Caribou, 102 Me. 401, 10 Ann. Cas. 1080, 67 A. 2; United States v. Bowen, 100 U.S. 508, 25 L.Ed. 631; United States v. Lacker, 134 U.S. 624, 10 S.Ct. 625, 33 L.Ed. 1080; Thomas v. United States, 156 F. 897, 84 C. C. A. 477, 17 L. R. A., N. S., 720.)

Constructive notice to the agent is sufficient to charge the principal with knowledge of the facts which the agent could have acquired by a proper inquiry. (2 Corpus Juris, 863; Bauer v. Pierson, 46 Cal. 293; Babbitt v. Kelly, 96 Mo.App. 529, 70 S.W. 384; Furry v. Ferguson, 105 Iowa 231, 74 N.W. 903.)

BUDGE, C. J. Rice, J., MORGAN, J., Concurring.

OPINION

BUDGE, C. J.

Appellant brought suit to recover from respondent the sum of $ 1,400, which she alleged in her amended complaint was had and received by respondent from appellant on March 10, 1914, as the purchase price of seven purported Kootenai county warrants, sold by respondent to appellant, and which were afterward held to be invalid on the ground that the purchase of certain timber estimates, for which said warrants were issued, was the incurring of an indebtedness on the part of the county, exceeding the income and revenue for said year.

The answer of respondent traversed the allegations of the complaint, and set up as an affirmative defense, that the warrants were not purchased by appellant but were purchased by I. A. Libby, her husband, then a member of the board of county commissioners of Kootenai county, and that the warrants were therefore invalid under the provisions of sec. 258, Rev. Codes.

The record discloses that appellant is the wife of I. A. Libby; that the board of county commissioners, of which I. A. Libby was a member, entered into an agreement with respondent, by the terms of which he agreed to sell to the county certain estimates of timber on lands lying therein, for assessment purposes, for the sum of $ 2,500, and the county, through the board, agreed to purchase the same for the above amount; that the estimates were delivered to the county and a claim filed therefor by the respondent, which claim was allowed on March 5, 1914, and the county auditor ordered to draw warrants in payment of the same; that on March 7, 1914, the warrants were drawn, among them being the warrants involved in this action; that on March 10, 1914, I. A. Libby purchased from respondent $ 1,400 worth of these warrants for appellant, with her money; and at the time of drawing the warrants respondent assigned them, by writing his name across the back thereof.

At the close of all the evidence respondent moved for a nonsuit and a directed verdict, which latter motion was granted and the jury returned a verdict in favor of respondent, and judgment was entered thereon. A motion for a new trial was subsequently overruled. This appeal is from the judgment and from the order overruling the motion for a new trial.

Appellant relies upon fifteen assignments of error. It is not necessary to discuss them separately. The only material point raised in the case is as to whether or not the motion for a directed verdict was properly allowed.

This case was argued as a companion case to Milner v. Pelham, ante, p. 594, 166 P. 574, and much of the matter presented by counsel, both for appellant and respondent, proceeds upon the theory that many of the questions involved in the two cases are identical. It will be seen, however, that while much of the evidence in the two cases is similar, the material facts in this case do not appear in the Milner case, and the legal questions involved are in no way related. In the Milner case respondent's right to recover is based upon the invalidity of the warrants, while in the present case the validity or invalidity of the warrants is not material.

The correct solution of this case depends largely upon the construction to be given sections 258 and 260, Rev. Codes, which are as follows:

"Sec 258. The State Treasurer and Auditor, the several county, city, district or precinct officers of this State, their deputies and clerks, are prohibited from purchasing or selling, or in any manner receiving to their own use or benefit, of any person or persons whatever, any State, county, or city warrants, scrip, orders, demands, claims, or other evidences of indebtedness against the State, or any county or city thereof, except evidences of indebtedness issued to or held by them for services rendered as such officer, deputy or clerk, and evidences of the funded indebtedness of such State, county, city, district or corporation."

"Sec 260. Officers charged with the disbursement of public moneys must not pay any warrant or other evidence of indebtedness against the State, county, city or district, when the same has...