Reilly v. Board of Com'rs of Latah County

• Decision Date: 13 June 1916
• Citation: 158 P. 322,29 Idaho 212
• Parties: JOHN REILLY, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF LATAH COUNTY, Respondent
• Court: Idaho Supreme Court

158 P. 322

29 Idaho 212

JOHN REILLY, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF LATAH COUNTY, Respondent

Supreme Court of Idaho

June 13, 1916

APPEAL-MOTION TO DISMISS-BOARD OF COUNTY COMMISSIONERS-REAL ESTATE-TRACT INDEX-INDEX NOT PROVIDED FOR BY LAW-POWERS OF BOARD.

1. Where an appeal is taken from a judgment entered on an appeal from an order made by the board of county commissioners and the question presented is whether the board had the power to make such order under the law, it is not necessary for the appellant to bring to this court the evidence taken in the district court to show whether a necessity existed therefor or that it was to the best interest of the taxpayers of the county to have a certain real estate "Tract Index" made and kept up, since only a question of law is presented as to whether the board had authority under the law to make such order, regardless of whether or not a necessity existed therefor.

2. A motion to dismiss the appeal on the ground that the evidence was not brought up will be denied, where the court can fully determine the question raised on appeal without the evidence.

3. Under the constitution and law of this state, the county commissioners have no power or authority to require any index to be made and kept by the recorder at the expense of the county other than such as is authorized by law.

4. Held, under the provisions of sec. 1917, Rev. Codes, as amended by Sess. L. 1913, p. 506, the board has no power to provide for such a "tract index" as is required by said order of the board.

5. The legislature has provided by sec. 2063 and sec. 2064 what indexes the county recorder must keep, and the board of county commissioners has no authority to require the county recorder to keep any other indexes. If the board concludes that other indexes than those required by law are a necessity, they must apply for authority to install them to the legislature.

APPEAL from the District Court of the Second Judicial District for Latah County. Hon. Edgar C. Steele, Judge.

Appeal from an order of the board of county commissioners requiring certain real estate indexes to be prepared and kept. Judgment sustaining the order of the board reversed.

Reversed and remanded with direction. Costs awarded to the appellant.

G. W Suppiger, for Appellant.

A board of county commissioners being created for special purposes can exercise only such powers as are conferred upon it by the constitution or statutes of the state, or such as arise by necessary implication from the express grant of the constitution or statute. (11 Cyc. 390; Miller v Smith, 7 Idaho 204, 207, 61 P. 824; Fremont County v. Brandon, 6 Idaho 482, 56 P. 264; Conger v. Latah County, 5 Idaho 347; Fenton v. Board of County Commrs., 20 Idaho 392, 119 P. 41; Prothero v. Board of Commrs., 22 Idaho 598, 127 P. 175.)

It has no authority or power to incur the expense of other or different methods of keeping county indexes than those designated by the legislature, or to compel or require the county recorder to keep such other county indexes or different method of keeping county indexes, at the expense of the county. (Smith v. Lamping, 27 Wash. 624, 68 P 195; People v. Nash, 62 N.Y. 484.)

The board of county commissioners has no power to devolve upon an appointee of their own the duties which the law has already fixed on another officer. (Meller v. Board of Commrs. of Logan County, 4 Idaho 44, 35 P. 712.)

The only indexes to be kept by the county recorder are designated by secs. 2063 and 2068, Rev. Codes.

Frank L. Moore, County Attorney, and J. H. Peterson, Attorney General, for Respondent, file no brief.

A. H. Oversmith, as Amicus Curiae.

It was never the intention of the legislature to frame the laws of the state so that such inferior legislative bodies could have no authority whatever except what was expressly granted them by the legislature.

This court, and others, have held that while there was no expressed authority to a board of county commissioners to employ an expert accountant to examine and audit the books of a county, yet to do so was an implied power given the board under existing statutes. (Prothero v. Board of Commrs., 22 Idaho 598, 127 P. 175; Blades v. Hawkins, 240 Mo. 187, Ann. Cas. 1913B, 1082, 112 S.W. 979, 144 S.W. 1198; Conwell v. Village of Culdesac, 13 Idaho 575, 92 P. 535; Scollay v. County of Butte, 67 Cal. 249, 7 P. 661; Maxwell v. Supervisors of Stanislaus County, 56 Cal. 114, 116; City of Madison v. Daley, 58 F. 751--755; People v. El Dorado County Suprs., 8 Cal. 58; Waugh v. Chauncey, 13 Cal. 11.)

Subdivision 4 of sec. 1901, Rev. Codes, gives the board the power to "make such orders for the disposition or use of its property as the interests of its inhabitants require." And sec. 1917g, 1913 Sess. Laws, p. 507, gives the board the power "to . . . . preserve, take care of, manage and control the county property. . . ."

The board has found and made an order concerning the property belonging to the county, and this order comes within the powers expressed in the two statutes cited. (Boggs v. Caldwell County, 28 Mo. 586; Agua Pura Co. v. Mayor etc. of City of Las Vegas, 10 N.M. 6, 60 P. 208, 50 L. R. A. 224.)

The board may adopt such means as shall be expedient in assisting county officers to properly discharge their duties. ( Wingate v. Clatsop County, 71 Ore. 94, 142 P. 561.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an appeal from the judgment of the district court rendered on an appeal from an order made by the board of county commissioners of Latah county, wherein it is declared that it is deemed to be to the best interest of the taxpayers of Latah county that a real estate "Tract Index" be installed in the county recorder's office, and kept up by the county recorder from and after August 1, 1915, and that a competent person be employed to bring such index up to August 1, 1915, from the organization of the county.

In limine we are met with a motion to dismiss this appeal, based on several grounds, to wit: (1) That it is "a sham appeal," etc.; (2) No transcript of the evidence taken at the trial had in the lower court and no bill of exceptions based thereon had been prepared and filed in the supreme court; (3) That the stipulation of facts appearing in the transcript was signed by the attorneys for the respondent in the lower court without authority and against the advice of the county commissioners of Latah county; (4) That the facts contained in said stipulation are wholly fictitious, and that the same are not based upon the evidence taken and heard on the trial of said cause in the lower court; (5) That the records and files in said cause show that Latah county is the real party in interest as respondent, and that the county attorney of said county did not have any authority to stipulate as to the facts or the record in the appeal to this court.

In order to intelligently dispose of this motion, we must refer to some of the facts in the case. The county attorney and the attorney for the appellant stipulated the following facts:

"It is hereby stipulated, by and between the attorney for the appellant, John Reilly, and the attorney for the respondents the Board of County Commissioners of Latah County, Idaho, that the index contemplated by the order of said board in the above-entitled matter is what is known as a 'Tract Index,' in which the various instruments of record affecting the title to real property are indexed under the head or description of the real property affected thereby, and if completed will constitute an index to the records of real estate by tracts, instead of by the names of the parties to instruments recorded, in manner substantially as follows, to wit:

"A separate and distinct division or page of said indexed book is set apart for each tract, lot, or subdivision of land in the county, and in each of said pages or divisions is entered, without regard to the alphabetical order of the names of the parties to the instruments, but in consecutive order every instrument affecting the title of such tract, lot, or subdivision of land as filed, the names of the parties to the instrument, the date of the instrument, and when recorded, its character, and the page and volume of the county records where recorded.

"That the testimony introduced at the trial in the district court shows that it would take not less than two nor more than six years to bring said 'Tract Index' up to August 1, 1915, and that it would cost not less than $ 2,000.00 nor more than $ 12,000.00 to bring the same up to August 1st, 1915.

"That prior to this time there have been kept, and there are now in the office of the county recorder of Latah county, all of the indices required to be kept and maintained by and under sections 2063 and 2068 of the Political Code, Revised Codes of the State of Idaho. That said indexes have been kept in, and are now in substantial books, conforming with Title 2, Chapter 3, Article 7, of the Political Code of Idaho, and the writing therein is legible and perfect in every particular, and is in no danger of becoming illegible, and that there is kept in the office of the County Assessor of Latah County, a 'Plat Book' showing the 'Present ownership' as required by the provisions of the statutes of Idaho, relating to revenue and taxation, and that said plat book and plats therein are in the condition the assessor is required to keep them in the performance of his duties in assessing real estate within Latah county.

"That pursuant to said order of the Board of County Commissioners the Recorder of Latah County, Idaho, through his deputies has kept up and maintained a 'Tract Index' as contemplated in said order, by nothing therein all...