Nez Perces County v. Latah County

• Decision Date: 14 December 1892
• Citation: Nez Perces County v. Latah County, 31 P. 800, 3 Idaho 413 (Idaho 1892)
• Parties: NEZ PERCES COUNTY v. LATAH COUNTY
• Court: Idaho Supreme Court

31 P. 800

3 Idaho 413

NEZ PERCES COUNTY v. LATAH COUNTY

Supreme Court of Idaho

December 14, 1892

ACT OF CONGRESS DIVIDING NEZ PERCE COUNTY-TERMS OF COURT-CREATION OF LATAH COUNTY-JUDICIAL EXPENSES.-1. By act of Congress Nez Perces county was divided and Latah county created.

TERMS OF COURT FOR LATAH COUNTY.-2. By section 7 of said act it was provided that Latah county should be and remain a part of Nez Perces county for judicial purposes, until the next meeting of the judges of the supreme court of the territory of Idaho when terms of court were to be fixed for Latah county.

LATAH TO PAY PROPORTION OF DEBT.-3. By section 5 of said act Latah was to pay to Nez Perces county her just proportion of the net indebtedness of the latter county.

JUDICIAL EXPENSES-How TO BE PAID.-4. Held, that Latah county is liable to pay her just proportion of the judicial expenses of the county of Nez Perces, until December 31, 1888.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment reversed, and a new trial ordered.

E O'Neill, J. W. Poe and James E. Babb, for Appellant.

On the division of a county, and organization from its territory of a new county, the rule that the old county retains all the property, including money in treasury and uncollected taxes has no application where the enactment itself provides for a division of the property, taxes, and liabilities. (Dillon on Municipal Corporations, secs. 188, 189, and note; Board of Commissioners of Cheyenne Co. v. Board of Commissioners of Bent Co., 15 Colo. 320, 25 P. 508.) Corporations, like individuals, are liable on their contracts, and are liable even in implied assumpsit. (1 Dillon on Municipal Corporations, sec. 166, and note; 2 Kent's Commentaries, 305; Bank v. Patterson, 7 Cranch, 299.) On dissolution the liability would pass to the inhabitants. (1 Dillon on Municipal Corporations, sec. 173; Clark v. Saline Co., 9 Neb. 516, 4 P. 246; Roberts v. People, 9 Colo. 458, 13 P. 630.) The act organizing the county of Latah is prospective, and not retroactive. (Coulson v. Portland, Deady, 481, Fed. Cas. No. 3275; Wallace v. Mayor etc., 29 Cal. 181; Nougues v. Wallace, 7 Cal. 65; People v. Johnson, 6 Cal. 499; Koppikus v. Capital Commrs., 16 Cal. 253; People v. May, 9 Colo. 404, 12 P. 838; Colusa Co. v. De Jarnett, 55 Cal. 373; Placer Co. v. Campbell (Cal.), 11 P. 602.)

D. C. Mitchell and A. J. Green, for Respondent.

An appeal does not lie from an order of the board of county commissioners. (Rupert v. Board, 2 Idaho, 29, 2 P. 718; Van Camp v. Board, 2 Idaho, 19, 21 P. 721.) When a new county is created out of part of an old county, the old county takes the county property, and becomes liable for the whole of the county indebtedness, in the absence of legislative provision to the contrary. (Laramie Co. v. Albany Co., 92 U.S. 307; Gilliam Co. v. Wasco Co., 14 Or. 525, 13 P. 324; Windham v. Portland, 4 Mass. 388.) A county is duly organized when the officers have been appointed and qualified. (Keating v. Marble, 39 Kan. 370, 18 P. 189.)

MORGAN, J. Sullivan, C. J., and Huston, J., concur.

OPINION

MORGAN, J.

This action was brought by Nez Perces county against Latah county for a ratable proportion of the salaries of the sheriff, clerk of the district court, and prosecuting attorney of the county of Nez Perces. The salaries were for official services rendered by these officers for both counties from June 1, 1888, to December 31, 1888, inclusive. Nez Perces county was divided by act of Congress entitled "An act to create and organize the county of Latah," approved May 14, 1888 (1st Sess. Laws 1888-89, p. 147), and Latah county was attached to Nez Perces county for judicial purposes until thirty days after the next meeting of the judges of the supreme court, which was December 1, 1888. The claim or account for the proportion of said salaries, to wit, for the sum of $ 1,783.44, being four-sevenths of the salaries of said officers from June 1, 1888, to December 31, 1888, and which had been paid by Nez Perces county, duly verified, was presented to the board of county commissioners of Latah county for allowance, and on June 1, 1889, was by said board rejected or disallowed. From the decision of said board an appeal was taken to the district court of the second judicial district in and for Latah county. Trial was had in said court, resulting in a judgment affirming the decision of the board of county commissioners of Latah county, which judgment was rendered July 18, 1891. From this judgment an appeal was taken to this court on September 5, 1891. On July 18, 1891, notice of motion for new trial was duly filed. After settlement of statement by the judge, motion for new trial was duly made and denied on February 5, 1892. On March 6, 1892, an appeal was taken to this court from the order overruling the motion for new trial. This appeal was taken on questions of both law and fact. On the fifth day of February, A. D. 1892, the attorneys for the respective parties entered into the following stipulation, to wit:

["Title of the Court and Cause.]

"Now, at this time, the motion for new trial having been overruled, it is hereby stipulated by the parties to the above-entitled action, E. O'Neill and J. W. Poe appearing for the plaintiff, and A. J. Green and D. C. Mitchell for the defendant, that on an appeal from the said order overruling the motion for a new trial therein, the appeal from the judgment heretofore taken, and the appeal from the said order overruling the motion for new trial, shall be considered as one case in the supreme court, by and with the consent of said court, and that one brief shall be prepared for both appeals, and both be argued at the same time and as one case.

"Dated at Moscow, Latah county, Idaho, this fifth day of February, A. D. 1892.

"E. O'NEILL and

"J. W. POE,

"Attorneys for Plaintiff.

"D. C. MITCHELL and

"A. J. GREEN,

"Attys. for Defendant."

On the tenth day of October, 1892, it being the first day of the October term of the supreme court, and at the time said cause came on for hearing, the attorneys for respondent filed their motion to dismiss this action on the following grounds, to-wit: "The record herein discloses the fact that this cause came into the district court upon an appeal from an order of the board of commissioners, and, after being tried in the district court can only be brought to this court by writ of error."

In the case of Rupert v. Board, 2 Idaho 19, 2 P. 718, cited by counsel, this court decided that matters decided by the district court on appeal from the orders of the board of county commissioners can only be brought to the supreme court for review by writ of error. This results from the fact that the statute provides no method of bringing such cases to the supreme court by appeal, and not from want of jurisdiction when the case is once in court. The supreme court has jurisdiction of such causes when once brought in, as it has jurisdiction of both the parties and the subject matter. The bringing of this cause into this court in this manner is irregular and unauthorized, and, if no general appearance had been entered by respondent's attorneys, and no such stipulation as now appears on file had been made, the respondent might have procured a dismissal of the appeal by appearing specially for that purpose, as was done in Rupert v. Board, supra. But in this cause the attorneys for the respondent, after an appeal from the judgment had been taken, and on the same day on which the order overruling the motion for a new trial had been entered by the district judge, entered into a stipulation with the attorneys for the appellant, by which they agreed that the appeal from the judgment, and the appeal from...