Lincoln County v. Twin Falls North Side Land & Water Co.

• Decision Date: 25 February 1913
• Citation: 23 Idaho 433,130 P. 788
• Parties: LINCOLN COUNTY, Respondent, v. TWIN FALLS NORTH SIDE LAND & WATER CO., Appellant
• Court: Idaho Supreme Court

130 P. 788

23 Idaho 433

LINCOLN COUNTY, Respondent, v. TWIN FALLS NORTH SIDE LAND & WATER CO., Appellant

Supreme Court of Idaho

February 25, 1913

RECORDER'S FEES - POWER OF BOARD TO CHANGE FEES - DUTY OF RECORDER.

1. Under the provisions of sec. 2124 of the Rev. Codes, the county recorder is allowed and it is his duty to charge and collect twenty cents per folio for every instrument, paper or notice recorded by him.

2. Neither the board of commissioners nor the county recorder has any power or authority to enter into an agreement or contract with any person or corporation for recording any instrument, contract or other paper or document for a less price or at a less rate than that prescribed by statute namely, twenty cents per folio.

3. The fact that the county recorder has a blank book containing printed forms in which he records certain contracts instruments or documents that conform to the printed forms in his record book, does not justify him in making any less or different rate than twenty cents per folio for the recording of the same, and it is his duty to make a folio charge for every word contained in the instrument, whether the same be printed, written or typewritten in such record book.

4. To record an instrument means to transcribe it, repeat it, or recite it in a book of record kept for the purpose of perpetuating the terms and recitals contained in the instrument or document so recorded.

5. The fees prescribed by the statute to be charged by the county recorder are arbitrary charges fixed by act of the legislature, and no officer has any right to change the same or depart from the terms thereof as prescribed by the legislature.

6. Where a county recorder has recorded papers and written instruments and has not collected the full amount of fees prescribed by the statute therefor, and has thereafter rendered his accounts and settled with the board of county commissioners without accounting for the uncollected portion of such fees, the county has such an interest in the unpaid fees as to enable it to prosecute an action directly against the party for whom the work was done and to recover the same.

7. Where a county recorder has recorded instruments and has not collected the full amount of the fees prescribed by statute and the county thereafter commences an action against the person for whom such recording is done, the question as to whether the action is barred by the statute of limitations is to be determined by the provisions of sec. 4053 of the Rev Codes, as the same is an action upon a contract, obligation or liability not founded upon an instrument in writing.

APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.

Action for debt. Judgment for plaintiff. Defendant appealed. Affirmed.

Judgment affirmed in part, and cause remanded, with direction. Costs of this appeal divided equally between appellant and respondent.

S. H. Hays and P. B. Carter, for Appellant.

Under sec. 1917, Rev. Codes, the board of county commissioners had power to settle the dispute as to the proper amount to be paid for recording. Even where a claim has been prosecuted to judgment, it is within the power of the board to compromise and settle the same. (Multnomah County v. Title Guaranty & Trust Co., 46 Ore. 523, 80 P. 409; State v. Davis, 11 S.D. 111, 74 Am. St. 780, 75 N.W. 897; Caldwell v. County Commrs., 80 Ind. 99.)

Having settled it and the settlement having been acted on through a period of years, they cannot now repudiate their action. (State of Indiana v. Milk, 11 F. 389; United States v. Wallamet V. & C. M. Wagon Road Co., 44 F. 234; Wilcox v. Perkins County, 70 Neb. 139, 113 Am. St. 779, 97 N.W. 236.)

There was no fraud, mistake or imposition. If there was any error, it was in regard to the application of the law governing the point in question, and was, therefore, not a mistake such as a court of equity relieves against. (Missouri v. Winterbottom, 123 U.S. 215, 8 S.Ct. 98, 31 L.Ed. 124; Douglas County v. Bennett, 61 Neb. 660, 85 N.W. 833; State ex rel. v. Shipman, 125 Mo. 436, 28 S.W. 842.) Par. 1 of sec. 4054, Rev. Codes, bars an action of this kind after three years. (Ada County v. Ellis, 5 Idaho 333, 48 P. 1071.)

M. J. Sweeley, Amicus Curiae.

So far as the recording of instruments is concerned, the recorder himself is the principal, and the statute makes him, and him alone, responsible for mistakes or torts. (Rev. Codes, 2076.) Counties are not liable for the neglect or wrongs of a public officer. (Dillon, Municipal Corporations, 5th ed., sec. 1640; Mechem on Public Officers, 850.)

James R. Bothwell and H. D. Heist, for Respondent.

The order of the board of county commissioners fixing a flat fee for the recording of the contracts in question was clearly illegal, without any foundation in law, and was without the jurisdiction of the board. (Gorman v. Board, 1 Idaho 553; Conger v. Board, 5 Idaho 347, 48 P. 1064; Fremont County v. Brandon, 6 Idaho 482, 56 P. 264; Howell v. Board, 6 Idaho 154, 53 P. 542; McNutt v. Lemhi County, 12 Idaho 63, 84 P. 1054.)

A county board of commissioners, being created for special purposes, can exercise only such powers as are conferred upon it by the constitution or the statutes of the state. (11 Cyc. 590; Miller v. Smith, 7 Idaho 204, 61 P. 824.)

The county is the real party to whom the fees belong. (Elmore County v. Alturas County, 4 Idaho 145, 95 Am. St. 53, 37 P. 349; Ada County v. Gess, 4 Idaho 611, 43 P. 71; Fremont County v. Brandon, 6 Idaho 482, 56 P. 264; Bannock County v. Bell, 8 Idaho 1, 101 Am. St. 140, 65 P. 710; Shoshone County v. Thompson, 11 Idaho 130, 81 P. 73; Bingham County v. Fidelity etc. Co., 13 Idaho 34, 88 P. 829.)

The fees received by an officer for which he must account to the county include fees earned though not collected by the officer. (Naylor v. Vermont etc. Co., 6 Idaho 251, 55 P. 297.)

"An action by a county to recover from the clerk fees illegally collected is only barred after four years." (Bannock County v. Bell, 8 Idaho 1, 101 Am. St. 140, 65 P. 710.)

AILSHIE, C. J. Stewart, J., concurs. SULLIVAN, J., Dissenting.

OPINION

AILSHIE, C. J.

This action was brought by the county of Lincoln against appellant for the purpose of recovering the sum of $ 9,336.35, together with interest thereon, alleged to be due as a balance for fees for recording certain instruments designated as water contracts. The case was heard on a stipulation of facts and judgment entered in favor of the county and against appellant.

The appellant is a corporation organized under the laws of the state of Delaware, and has complied with the laws of this state and is doing business in this state as an irrigation company. It is admitted that the county recorder recorded instruments for appellant, as alleged in the complaint, and that the balance due for fees, if charged at the rate of twenty cents per folio, as prescribed by the statute, for both the written and printed words thereon, would amount to the sum claimed, namely, $ 9,336.35. The appellant sought to defendant and avoid liability upon the following grounds: That the appellant was engaged in the construction of what is known as a Carey Act project in Lincoln county in this state, and that after completing full negotiations with the state board of land commissioners, the company entered into negotiations with the board of commissioners of Lincoln county and proposed that the company would furnish printed record books to the county free, and that the county recorder should in turn charge appellant a flat rate of seventy-five cents per instrument recorded; that the county commissioners favored the proposition submitted to the county and consented to the recorder's making such an arrangement, and that the county recorder accordingly entered into the agreement, and the company supplied the recorder with necessary blank books, containing printed pages corresponding with the printed forms of water right contracts the company had prepared for its use, and that all that was left for the recorder to do was to fill in the written part which the company might write into the blank form of its contracts. It also appears that the sum of seventy-five cents per instrument was ample and sufficient to pay the regular folio charge for the number of words which were actually written into these instruments as printed in the record book furnished by the company and which it was necessary for the recorder or his clerks to transcribe into the record books.

This state of facts presents the question as to whether the county officers could fix upon a different rate, or charge any less fee for recording an instrument than that prescribed by statute. Sec. 2124 of the Rev. Codes, which contains the schedule of fees to be charged and collected by the county recorder, provides, inter alia, as follows: "The county auditor and recorder is allowed, and may receive for his services, the following fees, to be paid him by the party procuring his services as recorder: . . . .for recording every instrument, paper or notice, for each folio, twenty cents; . . . ." Sec. 7 of art. 18 of the constitution (sixth amendment to the state constitution) provides that all county officers shall receive fixed annual salaries, and that all fees received by such officers over and above their actual and necessary expenses allowed by law, shall be turned into the county treasury.

The only question to be determined on this appeal is one of law. It was the duty of the county recorder to duly record the contracts and instruments which he did record designated as water contracts. Whether the record was written with a pen, a typewriter, or printed, made no difference so long as it was a true and...