Salt Lake County v. Clinton

• Decision Date: 15 September 1911
• Docket Number: 2204
• Citation: 117 P. 1075,39 Utah 462
• Court: Utah Supreme Court
• Parties: SALT LAKE COUNTY v. CLINTON et al. (Board of County Commissioners)

117 P. 1075

39 Utah 462

SALT LAKE COUNTY v. CLINTON et al. (Board of County Commissioners)

No. 2204

Supreme Court of Utah

September 15, 1911

APPEAL from District Court, Third District; Hon. George G Armstrong, Judge.

Action by Salt Lake County against James E. Clinton and others constituting the Board of County Commissioners of Salt Lake County, and their bondsmen.

Judgment for defendants. Plaintiff appeals.

AFFIRMED.

Job P Lyon, John Jensen and I. E. Willey for appellant.

Stewart & Stewart and Booth, Lee, Badger & Rich for respondents.

McCARTY, J. FRICK, C. J., and STRAUP, J., concur.

OPINION

McCARTY, J.

This action was brought by the county attorney of Salt Lake County, in the name of the county, against the board of county commissioners of said county and their bondsmen. The action was brought under Comp. Laws 1907, section 506, which provides:

"Whenever any board of county commissioners shall, without authority of law, order any money paid as a salary, fee, or for any other purpose, and such money shall have been actually paid, or whenever any other county officer has drawn any warrant or warrants in his own favor or in favor of any other person, without being authorized thereto by the board of county commissioners, or by law, and the same shall have been paid, the county attorney of such county is hereby empowered, and it is hereby made his duty, to institute suit in the name of the county against such person or persons and their official bondsmen to recover the money so paid, and no order of the board of county commissioners shall be necessary to maintain such action; and when the money has not been paid on such order or warrants, it is hereby made the duty of the county attorney of such county, upon receiving notice thereof, to commence suit in the name of the county to restrain the payment of the same, and no order of the board of county commissioners shall be necessary in order to maintain such action."

The complaint, so far as material here, alleges: "That on or about the 8th day of January, 1909, the said defendants James E. Clinton, John C. Mackay and Walter J. Burton, acting as the board of county commissioners of Salt Lake County, did, without authority of law, allow, order and cause to be paid to the Inter-Mountain Republican Company, a corporation of the State of Utah, publishing a daily newspaper known as the Inter-Mountain Republican, in the City of Salt Lake, State of Utah, a certain claim amounting to five thousand seven hundred and twenty-seven dollars and fifty cents ($ 5,727.50) for the advertisement and publication, in the Inter-Mountain Republican aforesaid, of the delinquent list of persons and property owing taxes to Salt Lake County for the year 1908, for a period of ten days, beginning on or about the first Monday in December, 1908." It is further alleged that the payment of this money to the Inter-Mountain Republican Company, by order and direction of the board of county commissioners, was "illegal and without authority of law in this: That prior to the said publication of the notice and advertisement of the delinquent tax list, as aforesaid, no bids for the publication of the said notice had been invited or received; nor had the contract for the publishing of notices and advertisements, including the publication and advertisement of said delinquent tax notice, been awarded, as required by Comp. Laws 1907, section 529; nor had any contract for the publication of said notice and advertisement of said delinquent tax list been made and entered into; nor has the county treasurer of Salt Lake County been directed by the board of county commissioners of said county to advertise or publish said delinquent tax list in a newspaper having a general circulation in said county, as required by Comp. Laws 1907, section 2620." It is further alleged that the said $ 5727.50 was actually paid to the Inter-Mountain Republican Company by the county treasurer, on a warrant of Salt Lake County, before the commencement of this action.

Defendants filed a demurrer to the complaint, alleging, as grounds of demurrer, that the complaint did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and the defendant filed an answer to the complaint. When the cause came on for trial defendants objected to the introduction of any evidence, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the objection. Plaintiff excepted to this ruling, declined to amend the complaint, and elected to stand upon it, whereupon the court, on motion of defendants, rendered judgment dismissing the action. To reverse this judgment, plaintiff has appealed to this court on the judgment roll.

Counsel for respondents, in their printed brief, have devoted considerable space to the discussion of matters alleged in the answer as a justification of the commissioners in ordering the payment of the $ 5727.50 mentioned. Respondents having obtained a ruling of the court sustaining their objection to the introduction of evidence on the ground that the complaint does not state facts sufficient to constitute a cause of action, and the court having, on their motion, rendered judgment dismissing the action on that ground, the sufficiency of the complaint is the only question before this court, and therefore the allegations of the answer are not available to respondents on this appeal for any purpose.

As stated by counsel for appellant in their printed brief, "the charge or claim which is alleged to have been allowed and ordered paid without authority of law in this cause is a charge for printing the delinquent tax list for the year 1908."

Comp. Laws 1907, section 527, provides:

"It shall be the duty of the county auditor of each county having a population of 10,000 or more, on or before the 1st day of June of each year, to prepare separate estimates of the books, blanks, and stationery required for the use of the county officers during the year beginning July 1st; and, during the first week in June, he shall publish for one week a brief advertisement in a newspaper published in the county, or having a general circulation therein, stating the probable quantity of each item of books, blanks and stationery required by such county during the ensuing year, and inviting bids therefor, which bids shall be filed with the auditor on or before the 1st day of July. All bids shall state separately the price of each item of books, blanks, and stationery to be furnished."

Section 529 is as follows:

"At the time of inviting bids for books, blanks, and stationery, the auditor shall also invite bids for the publishing of county reports, notices, and advertisements during the ensuing year beginning July 1st. The bids for the same must be filed with the auditor on or before the 1st day of July, and at the time of opening bids for furnishing books, blanks, and stationery, the board of county commissioners shall open the bids for publishing reports, notices, and advertisements, and shall award the same to the lowest competent bidder, circulation considered; provided, that the board of county commissioners may reject any or all bids and readvertise."

Section 2620 provides that on or before the first Monday in December of each year the county treasurer must, under the direction of the county commissioners, publish the delinquent list of unpaid taxes, and must publish with such list a notice that, unless the delinquent taxes, together with the cost of publication, are paid before the third Monday in December, the real property upon which such taxes are a lien will be sold for taxes and costs.

It is not alleged in the complaint, nor is it contended or even suggested, that the county commissioners acted in bad faith or from corrupt motives, or were in any sense guilty of collusion or fraud, in allowing and ordering the payment of the claim in question. The allegations of the...