Robertson v. Blaine County, Idaho

• Decision Date: 01 February 1898
• Citation: 85 F. 735
• Parties: ROBERTSON v. BLAINE COUNTY, IDAHO.
• Court: U.S. District Court — District of Idaho

85 F. 735

ROBERTSON v. BLAINE COUNTY, IDAHO.

United States Circuit Court, D. Idaho.

February 1, 1898

Selden B. Kingsbury, for plaintiff.

Lyttleton Price, for defendant.

BEATTY District Judge.

To the complaint herein the defendant demurred, pleading the statute of limitations. From the complaint it appears that by an act of the territorial legislature approved February 8, 1883, the issue by Alturas county of the bonds herein sued upon was authorized for the purpose of building in said county a court house and jail, the principal of such bonds 'to become due and payable November 1, 1891'; that 'the board of county commissioners of said county shall at the time of levy of county taxes, include therein a levy of sufficient tax to meet the interest and principal of said bonds as the same shall become due, and the tax so levied shall be known as the 'Court House Bond Tax,' and shall be collected as other taxes are collected, and shall constitute a separate fund, and shall be used for no other purpose, and for the payment of said bonds, principal and interest, all the taxable property of said county is hereby pledged'; that by an act in 1889 Alturas county was divided into Alturas, Logan, and Elmore counties, and by an act approved March 5, 1895, Blaine county was organized out of the territory composing Alturas and Logan counties, and it was provided by section 7 that 'all valid and legal indebtedness of Alturas and Logan counties shall be assumed and paid by the county of Blaine,' and by section 8 that 'all rights of action now existing in favor of or against said Alturas or Logan counties may be maintained in favor of or against Blaine county'; that on the 18th day of March 1895, the legislature passed another act cutting off from Blaine county the county of Lincoln. By this last act it appears that Blaine county was left composed chiefly of the territory which had, must prior to the passage of the two last acts named, constituted Alturas county. By section 4052 Rev. St. Idaho, it is provided that 'an action upon any contract, obligation or liability not founded upon an instrument in writing,' must be commenced within five years from the time it becomes due. This action was commenced September 30, 1897.

1. The plaintiff claims that the statute of limitations does not apply--First, because by the act creating Blaine county the debt was, at that date, renewed and legislated upon Blaine; and, second, because neither Alturas nor Blaine county has ever levied any tax or in any manner raised any funds applicable to the payment of the debt. While counsel, in support of his proposition that this debt is to be treated as contracted on March 5, 1895, cites, among other authorities, Ang. Lim. and Ballard v. Bell, 4 Fed.Cas., from which the argument would seem to follow that such a debt as this is a 'specialty' and a creature of statute, and that to such the statute of limitations does not apply, it must be observed that those authorities refer to the statute of limitations of King James, which applied to 'actions of debt grounded on any lending or contract without specialty. ' Certainly, under that statute, specialties, which were only a higher grade of contracts because sealed, were excepted from its operation; so, also, debts created by statute were not included thereunder. But the Idaho statute sweeps away all those intricate distinctions, as well as the much learning displayed in their discussion, and, whether the debt here sued upon is a specialty or a creature of statute, it is within the intent of the Idaho law, for it includes all kinds of contracts, whether under seal or not, and all debts created by statute.

Under this branch of the case, certainly, the most important question is when the debt sued upon became due; if not until March 5, 1895, as claimed by plaintiff, then unquestionably it is not barred. Rut, first, what is the debt sued upon? Plaintiff's counsel says it is in the nature of a specialty; that it was created by statute on the 5th day of March, 1895; and that such act operated to create of the bonds a new debt against Blaine county from that date. The complaint is not framed as upon a new debt, but it alleges all the facts leading up to the issue of the bonds; then copies one to answer for all, which, upon its face, shows it became due November 1, 1891; and demands judgment for 'the principal sum of said bonds,' for the coupons attached to them, and interest. Surely, this complaint, upon its face, indicates an action upon the original bonds, and not upon a debt growing out of them, created at a subsequent date.

It cannot be doubted that the legislature might, at least before the bar of the statute had attached, have extended the time for their payment, or have fixed another date than that first fixed when they should become due. The legislature has not at least in explicit terms, done so. Has it done so by implication? All that it seems to have done is by sections 7 and 8, above quoted, which simply direct that all existing indebtedness of Alturas and Logan counties should continue as valid, and be assumed and paid by Blaine, and that the same actions that might have been maintained by or against Alturas can be by or against Blaine. It did not in terms create a new debt, but recognized the validity of the old, and that Blaine should pay it, and, as there was no pretense of changing the time or manner of payment, it seems clearly to follow that it must be paid by Blaine just as Alturas was to pay it. Blaine county simply took the place occupied by Alturas; it assumed all its burdens, and was invested with all its rights. Had Alturas continued to exist, and continued responsible for this debt, would it not be one of its rights to plead the bar of the statute against this claim after five years from November 1, 1891? To me it seems so unquestionably, if a county may ever plead the statute. If this was a right due Alturas, why should it not inure to Blaine, upon which is a new party, in this transaction in reality it is substantially the same people and territory which composed Alturas County. It is in substance the same party by another name,...