Prothero v. Board of Com'rs of Twin Falls County

• Decision Date: 05 October 1912
• Citation: 127 P. 175,22 Idaho 598
• Parties: L. E. PROTHERO, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF TWIN FALLS COUNTY, Respondents
• Court: Idaho Supreme Court

127 P. 175

22 Idaho 598

L. E. PROTHERO, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF TWIN FALLS COUNTY, Respondents

Supreme Court of Idaho

October 5, 1912

BOARD OF COUNTY COMMISSIONERS-ORDER-APPEAL FROM-TRIAL ON APPEAL-AUDITING BOOKS-CONTRACT FOR-EMPLOYMENT OF ACCOUNTANT.

(Syllabus by the court.)

1. Under the provisions of sec. 1953, Rev. Codes, an appeal from an order of the board of county commissioners must be tried anew in the district court, and the board of county commissioners or the person in whose favor a claim is allowed has the affirmative in said trial and must produce evidence sufficient to make a prima facie case.

2. The board of county commissioners has only such powers as are expressly or impliedly conferred upon it by statute.

3. Under the provisions of subd. 9 of sec. 1917, Rev. Codes, the board has jurisdiction and power to examine and audit the accounts of all county officers having the care, management collection or disbursement of moneys belonging to the county or appropriated by law, or otherwise, for its use and benefit.

4. The board has authority to employ an accountant to examine and audit the accounts of all officers referred to in said subd 9.

5. When such accountant is employed and audits such accounts, the presumption is that a necessity therefor existed and a showing to that effect makes a prima facie case that a necessity existed therefor; but such prima facie case may be rebutted by evidence showing that there was no necessity therefor.

6. Under the law prescribing the duties of state examiner, he is required to make an annual, written report to the governor and embody therein an abstract of the condition and statistics of the "several county and state finances" as ascertained by him, which report is intended to keep the governor informed as to the financial condition of the counties and state, and he is not required to make any report to the boards of county commissioners of the results of his examination of the books and accounts of the county officers.

7. The statutes providing for a state examiner and prescribing his duties do not expressly or impliedly repeal the power of boards of county commissioners imposed by sec. 1917, Rev Codes.

APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. C. O. Stockslager, Judge.

Appeal from an order of the board of county commissioners allowing the claim of an expert for auditing the accounts and books of the county officers. Judgment for the board. Affirmed.

Affirmed.

W. P. Guthrie, J. H. Wise, and Sweeley & Sweeley, for Appellant.

When the case reached the district court upon the appeal from the order of the board, it was necessary for the petitioners to make their case there and prove the same facts they were required to prove before the board of commissioners. (Gardner v. Blaine County, 15 Idaho 698, 99 P. 826.)

There is no express provision of statute giving the board the power sought to be exercised. Sec. 1917 of the codes enumerates the general jurisdiction and powers of boards, and the right to employ at public expense persons to do work imposed upon the board itself is not mentioned, neither does it exist by necessary implication. (Meller v. Board, etc., 4 Idaho 44, 35 P. 712; Hampton v. Commissioners, 4 Idaho 646, 43 P. 324; Miller v. Smith, 7 Idaho 204, 61 P. 824; Smith v. Los Angeles Co., 99 Cal. 628, 34 P. 439; Waters v. Trovillo, 47 Kan. 197, 27 P. 822; Merced County v. Cook, 120 Cal. 275, 52 P. 721; House v. Los Angeles Co., 104 Cal. 73, 37 P. 796; Chase v. Board, etc., 37 Colo. 268, 86 P. 1011, 11 Ann. Cas. 483; State ex rel. Coleman v. Fry, 77 Kan. 540, 95 P. 392, 16 L. R. A., N. S., 476; Stevens v. County, 218 Ill. 468, 4 Ann. Cas. 136, 75 N.E. 1024, 4 L. R. A., N. S., 339.)

A. R. Hicks, County Attorney, and W. H. Wilkins, for Respondents.

The provisions of sec. 1917, Rev. Codes, were construed in the case of Harris v. Gibbins, 114 Cal. 418, 46 P. 292, wherein the court held that the board of county commissioners had authority to employ an expert to audit the books.

The following cases are in point upon the question of authority and the presumption of necessity: Laws v. Harlan County, 12 Neb. 637, 12 N.W. 114; Board v. Gardner, 155 Ind. 165, 57 N.E. 908; Garrigus v. Board of Commrs., 157 Ind. 103, 60 N.E. 948.

Such duties are not imposed upon the state examiner, and if they were, it would, of course, be utterly impossible for the state examiner to perform them, and moreover, it would in effect be the abrogation of local self-government and the statutes would be unconstitutional and void. (State v. Stanford, 24 Utah 148, 66 P. 1061; State v. Eldredge, 27 Utah 477, 76 P. 337; McDonald v. Doust, 11 Idaho 14, 81 P. 60, 69 L. R. A. 220; People v. Albertson, 55 N.Y. 50.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This is an appeal from the judgment of the district court of Twin Falls county, affirming the order of the board of county commissioners in its allowance of a claim to one Edmunds for examining and auditing the accounts of the county officers of said county.

Appellant assigns two errors: First, that there is no authority of law giving the power to boards of county commissioners to employ, at the expense of the public, a person to audit the books of the various county officers; second, conceding that such power might exist, it cannot be exercised for the reason that there is a public officer provided by statute, viz., state examiner, whose duty it is to examine the books of county officers.

In limine, counsel for appellant contend that this case was not properly tried in the district court, for under the law as laid down in the case of Gardner v. Blaine County, 15 Idaho 698, 99 P. 826, the respondents had the affirmative on all matters and must prove everything necessary to establish the claim of Edmunds. That was a case involving the incorporation of the village of Soldier. A resident and taxpayer within the limits of the territory to be included in said village appealed to the district court from said order, and when the case was called for trial in the district court, counsel for appellant moved that the respondent board be required to take the affirmative and show the jurisdictional facts necessary to authorize the board of county commissioners to incorporate said village, whereupon the court overruled said motion and directed the taxpayer to open the case and to prove that the board had no such jurisdiction, to which ruling appellant excepted. Judgment was entered sustaining the order of the board, and this court on appeal held that the trial court erred in requiring the appellant to take the initiative and prove that the board had no jurisdiction to make said order, and held that the affirmative rested with the board to show that they had jurisdiction to make said order.

In the case at bar the board allowed a claim against the county and a taxpayer appealed from said order and the trial was had in the district court, in which the board took the initiative and introduced evidence showing that the board had authority to make said order--at least the trial court so held. That was the proper method of procedure. If the board had failed to put in the evidence on which said claim was based or made, the person owning the claim had a right to appear and put in such evidence in support of his claim. The question presented to the district court was whether the board had legal authority to allow said claim. The proper method of trying an appeal from the board of county commissioners in the district court was pursued in this case, as the board introduced evidence sufficient to make a prima facie case. No evidence whatever was introduced by the appellant to show that there was no necessity for the employment of said accountant or that the compensation allowed the accountant was too large, and counsel for appellant rests this appeal upon the two errors assigned, as above stated.

(1) It appears from the record that some conversation was had between Edmunds and the members of the board in regard to examining the books of the county officers, and Edmunds thereafter submitted a proposition to the board for doing said work and making his report thereof. At a meeting of the board the offer submitted by Edmunds was accepted, and thereafter he performed the services covered by the contract...