Rankin v. Jauman

• Decision Date: 07 March 1895
• Citation: 4 Idaho 394,39 P. 1111
• Parties: RANKIN v. JAUMAN
• Court: Idaho Supreme Court

39 P. 1111

4 Idaho 394

RANKIN v. JAUMAN

Supreme Court of Idaho

March 7, 1895

COMPENSATION OF COUNTY COMMISSIONERS-ALLOWABLE ONLY WHEN ACTING AS A BOARD.-Under section 5 of an act entitled "Concerning fees and compensation of county officers," approved March 13, 1891, county commissioners are only entitled to the per diem and mileage therein allowed when acting as a board actually in session and transacting county business.

HOW AND WHEN BOARDS CAN ACT.-Boards of county commissioners are entireties, and can only act collectively and as empowered by law.

MEMBERS PERFORMING SERVICES INDIVIDUALLY MUST PRESENT HIS CLAIM AS ANY OTHER PERSON.-If a member of the board performs services for the county, whether by order of the board or on his own motion, he does so as an individual, and his claim for compensation must be presented in the same manner and take the same course as the claim of any other person.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded, with directions.

Hawley & Puckett, for Appellant.

A board of commissioners must act in legal session. Its powers are in the board, not its members (Paola etc. R. R. Co. v Anderson County, 16 Kan. 302), and can act only in accordance with the statute. (Gorman v. County Commissioners, 1 Idaho 553.) No statutory provision can be set aside by any rule or custom of the board. (People v. Brinkerhoff, 68 N.Y. 259.) The only evidence of the intention of the board is drawn from the records. (Phelan v. San Francisco, 6 Cal. 531.) Records of a board are prima facie evidence of its proceedings. (People v Bercham, 12 Cal. 50.) And its jurisdiction must appear from its records. (Finch v. Board etc., 29 Cal. 454; Swift v. Ormsby Co., 6 Nev. 97; State v. Washoe Co., 5 Nev. 319.) A member of the board is not entitled to any compensation as commissioner except per diem and mileage. (Andrews v. Pratt, 44 Cal. 309; Gibson's Case, 1 Bland, 138, 17 Am. Dec. 257.) Section 7459 of the Revised Statutes, under which we are proceeding makes the charging and collecting of illegal fees for services rendered in an official capacity cause for a removal in a proceeding of this character. Section 1786 of the Revised Statutes of Idaho prescribes that claims against the county presented by members of the board must be verified as other claims and must state that the service has been actually rendered. Section 1773 of the Revised Statutes of Idaho prohibits the board from hearing or considering any claim in favor of any individual against the county unless the account is properly made out giving all items of the claim, duly verified as to its correctness, and that the amount is justly due. (Christie v. Sonoma Co., 60 Cal. 164.) A right to additional compensation of county commissioners cannot be based on custom. (Abright v. Bedford Co., 106 Pa. St. 582.) One acting in a fiduciary capacity cannot deal with himself in an individual capacity. (Davis v. Rock Creek Co., 55 Cal. 359, 36 Am. Rep. 40; Shakespeare v. Smith, 77 Cal. 640, 11 Am. St. Rep. 327, 20 P. 294; Graves v. Mining Co., 81 Cal. 320, 22 P. 665.) The right of an officer to compensation exists not by force of any contract but because the law attaches it to the office. (Mechem on Public Officers, 855; Fitzsimmons v. Brooklyn, 102 N.Y. 536, 55 Am. Rep. 835; Stubenville v. Culp, 38 Ohio St. 18, 43 Am. Rep. 417; Gibson's Case, 1 Bland, 138, 17 Am. Dec. 257.)

George Ainslie and W. E. Borah, for Respondent.

Parol evidence is admissible to vary the date of an instrument or record. (Gateley v. Irvine, 51 Cal. 172; Gilson v. Gilson, 51 Cal. 341; Duncan v. Matney, 29 Mo. 368, 77 Am. Dec. 575; Carr v. State, 5 Am. Crim. Rep. 438; State v. Walker, 5 Am. Crim. Rep. 465; Ross v. Bank of Burlington, 1 Aikens, 43, 15 Am. Dec. 664; Coffin v. Bradbury, 3 Idaho 770, 35 P. 715; Board of Education v. Keenon, 55 Cal. 642.) Before an officer can be removed from office, under section 7459 of the statute, it must be shown that the fees were knowingly, willfully and corruptly taken, and that they were illegal. (Triplet v. Munter, 50 Cal. 644; Smith v. Ling, 68 Cal. 324, 9 P. 171; Hays v. Stewart, 8 Tex. 358; Leeman v. State, 35 Ark. 438, 37 Am. Rep. 44; State v. Cannon, 47 La. Ann. 278, 16 So. 666; State v. Norris, 111 N.C. 652, 16 S.E. 4; State v. Prichard, 107 N.C. 921, 12 S.E. 50.) As to the regularity of the presentation of these bills, the mere fact that they were irregularly presented would not make the fees illegal if the services had been rendered. The real controversies in this matter have been such controversies as could have been properly presented only upon an appeal from the allowance. The real question at issue, the willful charging of illegal fees, has been lost sight of, and the questions discussed have been largely those relating to the itemization of the bills and the form and manner of their presentation. (Board of Commrs. v. Leonard, 3 Colo. App. 576, 34 P. 583; Roberts v. People, 9 Colo. 458, 13 P. 630.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

This action was brought under section 7459 of the Revised Statutes of Idaho which is as follows:

"Sec. 7459. When an information in writing, verified by the oath of any person, is presented to a district court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the information was presented, and on that day or some other subsequent day, not more than twenty days from that on which the information was presented, must proceed to hear, in a summary manner, the information and evidence offered in support of the same, and the answer and evidence offered by the party informed against; and if on such hearing it appears that the charge is sustained, the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for $ 500 in favor of the informer and such costs as are allowed in civil cases."

Upon a demurrer to the information, the district court held that the statute was unconstitutional. On appeal to this court from said decision of the district court, the judgment of the district court was reversed, and the cause remanded for a trial. (Rankin v. Jauman, ante, p. 53, 36 P. 502.) Upon a trial before the court without a jury, judgment of nonsuit was entered upon motion of defendant, and from that judgment this appeal is taken.

The case is before us on a bill of exceptions, from which, and the evidence therein contained, the following facts appear: At the regular biennial election of 1892 the defendant was elected a member of the board of county commissioners for Ada county from district No. 1. He qualified as such officer on the second day of January, 1893. At that time the following laws were in force, relative to the duties and compensation of county commissioners: The compensation of the members of the board of county commissioners, as fixed by section 5 of an act of the first session of the legislature of the state of Idaho was as follows: "County commissioners of each county shall receive the sum of six dollars for each day actually engaged in transacting county business, and twenty cents per mile for each mile necessarily traveled in transacting county business." (Laws 1891, p. 179.) Now, this section of the statute would seem to be, and perhaps is, somewhat loosely drawn, and, unless construed in the light of recognized legal principles, would give a degree of latitude in application which would, in the intellectual analysis of a mind bent solely upon personal ends, be little conducive to the interests generally supposed to be a controlling consideration in all legislation of a general character, to wit, the public welfare. But we are compelled to conclude that in the enactment of this statute the legislature did not intend to enact a law wholly in the interest of those who might, for the time being, become the incumbents of the office, wholly and entirely ignoring the higher interests of the people. It is the duty of courts, in construing legislative enactments, to so construe them as to carry out the real intention of the legislature. All laws in relation to the same subject matter must be construed in pari materia. As above stated, the respondent, having been duly elected and having qualified as a member of the board of county commissioners for Ada county for district No. 1 of said county, made his first appearance on the second day of January, 1893, as a member of said board, and was duly elected chairman of said board. Section 1755 of the Revised Statutes, provides that the regular meetings of the boards of commissioners must be held on the second Mondays of January, April, July, and October of each year. As appears by the record of the board, they met in special session on the second day of January, 1893, were in session two days. The regular session opened on the 9th of January, and were in session nine days. A special session was held on the 7th of February, and held for two days. A special session was held on April 1st for one day, making in the aggregate fourteen days from the time respondent took office until the first day of the regular April session. On the sixteenth day of January, 1893, respondent filed the following bill, which was duly allowed by said board, the respondent acting as chairman of said board, to wit:

"Ada County, State of Idaho to William Jauman, Dr.

To 14 days as Co. Com., at $ 6.00

$ 84.00

To 50 miles travel, ...