Twin Falls County v. West

• Decision Date: 29 November 1913
• Citation: 137 P. 171,25 Idaho 271
• Parties: TWIN FALLS COUNTY, Respondent, v. H. T. WEST et al., Appellants
• Court: Idaho Supreme Court

137 P. 171

25 Idaho 271

TWIN FALLS COUNTY, Respondent, v. H. T. WEST et al., Appellants

Supreme Court of Idaho

November 29, 1913

FEES FOR RECORDING-LIABILITY OF OFFICER FOR STATUTORY FEES-FAILURE TO COLLECT FEES UNDER DIRECTION OF BOARD OF COMMISSIONERS-SETTLEMENT WITH OFFICER-ESTOPPEL.

1. Where a statute fixes the fees to be charged for recording written instruments, the board of county commissioners have no power or authority to change the fee and to direct and require the recorder to record such instruments at a less or different rate than that prescribed by statute.

2. Where the board of county commissioners entered into an agreement or arrangement with the representative of a land and water company, whereby it was agreed that a certain class of instruments should be recorded at a flat rate of so much per instrument, irrespective of the number of folios contained in the instrument, and the amount charged was not equal to the amount required by statute, and the county recorder followed and carried out the terms of the arrangement and agreement and did the recording for the amount specified and returned the fees so collected to the county and made his reports and settled with the county, and the board of commissioners approved and allowed his reports and accounts, and it is admitted that the recorder turned over to the county all the fees actually received by him; and after the expiration of his term of office, and the term of office of the board of commissioners who made and entered into such agreement, the board of commissioners commences an action against the recorder for the collection of the sum which represents the difference between the amount actually received and the amount required by statute; held, that it would be inequitable and unjust to allow the county to maintain such action against the officer and his bondsmen and that the doctrine of estoppel ought to apply against the county in such case.

3. Under such circumstances, the only remedy left to the county is to pursue the person or corporation that had the work done, for the balance due under the statute.

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

Action by the county on the official bond of the ex-recorder of the county. Judgment for the plaintiff and defendants appealed. Reversed.

Reversed and remanded with direction. Costs awarded in favor of appellant.

S. H Hays, Sweeley & Sweeley and W. P. Guthrie, for Appellants.

The county is estopped from maintaining this action. (11 Am. &amp Eng. Ency. of Law, 428.)

A settlement is binding on the county in case the only mistake made therein is one of law. (State v. Shipman, 125 Mo. 436, 28 S.W. 842.)

Where a county board settled with the county treasurer and passed and approved his accounts, this settlement was final and the county could not recover. (1 Herman on Estoppel, sec. 435.)

A settlement made by the collector with the county court for county taxes is a bar to an action by a creditor on the collector's bond. (Missouri v. Winterbottom, 123 U.S. 215, 8 S.Ct. 98, 31 L.Ed. 124.)

Where a full and complete settlement with a county officer is made such settlement is final and conclusive unless there is fraud, mistake or imposition in making the same. (Douglas County v. Bennett, 61 Neb. 660, 85 N.W. 833; Ragoss v. Cuming Co., 36 Neb. 375, 54 N.W. 683.)

The board of county commissioners has power to settle controversies and the settlement of a bona fide dispute will be upheld. (Multnomah County v. Title etc. Co., 46 Ore. 523, 80 P. 409.)

Money paid under a mistake of law cannot be recovered back and a settlement made under like mistake cannot be opened. (Territory v. Newhall, 15 N. M. 141, 103 P. 982; American Brewing Co. v. St. Louis, 187 Mo. 367, 86 S.W. 129, 2 Ann. Cas. 821; Lamborn v. Board of County Commrs., 97 U.S. 181, 24 L.Ed. 926; Douglas County v. Bennett, 61 Neb. 660, 85 N.W. 833; Wilcox v. Perkins County, 70 Neb. 139, 113 Am. St. 779, 97 N.W. 236.)

An estoppel will run against states and counties. (State of Indiana v. Milk, 11 F. 389, 11 Biss. 197; United States v. Wallamet V. & C. M. Wagon Road Co., 44 F. 234.)

A. R. Hicks, for Respondent.

Appellants argue that the county is estopped from maintaining this action because no one appealed and recovery would work a hardship on the recorder.

It is also contended when the board of county commissioners audited the quarterly reports of the recorder and settled with him the audit and settlement is a judicial act and is final unless appealed.

Both of these contentions conflict with the rule of law laid down in Lincoln County v. Twin Falls North Side Land & Water Co., 23 Idaho 433, 130 P. 788, 790. This decision ought to be decisive of the case at bar. (See, also, Gorman v. Board of Commrs., 1 Idaho 553; Conger v. Board, 5 Idaho 347, 48 P. 1046; Fremont County v. Brandon, 6 Idaho 482, 56 P. 264; McNutt v. Lemhi County, 12 Idaho 63, 84 P. 1054; Miller v. Smith, 7 Idaho 204, 61 P. 824; Howell v. Board of Commrs., 6 Idaho 154, 53 P. 542; Ferry v. King County, 2 Wash. 337, 26 P. 537, 538; Satterfield v. People, 104 Ill. 448; People v. Brinkerhoff, 68 N.Y. 259, 262; Silver Bow County v. Davies, 40 Mont. 418, 107 P. 81; 11 Cyc. 468, subd. 2.)

From this long line of decisions in this state it is apparent that under the law applicable here, notwithstanding some conflicting decisions cited by the appellants from other jurisdictions under different statutes and precedents, the board of county commissioners have only such jurisdiction and powers as are given them by statute and that they have no power to set aside a statute. And the county is not estopped by their acts done in violation of law.

AILSHIE, C. J. SULLIVAN, J., Concurring Specially, STEWART, J., concurring.

OPINION

AILSHIE, C. J.

This action was instituted against H. T. West and the U.S. Fidelity and Guaranty Co. to recover on an official bond which West had given for the faithful discharge of the duties of clerk of the district court and ex-officio county recorder of Twin Falls county.

Twin Falls county was formerly a part of Cassia county, and the territory now comprised in Twin Falls county was organized by act of the legislature of February, 1907, and the appellant West was appointed to the office of clerk of the district court and ex-officio county recorder. Prior to the creation of Twin Falls county, and while it was yet a part of Cassia county, the county recorder and board of commissioners of Cassia county had entered into some kind of an arrangement with the Twin Falls Land & Water Co., whereby the county was to give the latter corporation a straight flat rate of forty cents each for recording what were commonly designated as water contracts, whereby the company contracted with purchasers of water rights for watering lands under their canal system for the sale of such right to the purchaser. At the time West went into office the representative of the water company appeared before the board of county commissioners of Twin Falls county and asked the board to authorize and direct the recorder to continue the same arrangement and agreement in the latter county by continuing to record all water right contracts issued by this land and water company at the flat rate of forty cents each. The appellant West thereupon advised the board and the representative of the company that the new county was paying something like double the salaries that had been paid in the old county of Cassia, and that it would consequently cost more to have the instruments recorded and that they should charge at least one dollar per instrument. It was finally understood and agreed that these instruments should be recorded at the flat rate of one dollar each, and the board of commissioners so agreed and instructed the recorder to charge accordingly. Thereafter and during West's term of office, he recorded a large number of these contracts, both for the Twin Falls Land & Water Co. and later on for the Twin Falls-Salmon River Land & Water Co., and from time to time made a report of his fees to the board of commissioners, and his reports were approved, settled and allowed, and after the completion of his term he went out of office with his accounts all audited, allowed and approved. Thereafter and on the 29th day of April, 1911, the county, acting through a new and different board of commissioners, caused an action to be instituted against West and the surety company on his official bond for the recovery of the sum of $ 8,791.41, together with interest, which represented the difference between the price which he had charged these land and water companies for recording contracts and the amount that the recording thereof would have actually amounted to had he made the regular charge prescribed by the statute for recording such instruments. Defendant West and the surety company appeared and answered, and the case went to trial and resulted in a judgment in favor of the plaintiff and against the defendants, from which this appeal has been prosecuted. The material facts of the case are substantially as above set out.

The appellant contends that under these facts the county is estopped and precluded from maintaining its action against appellants for the recovery of the difference between the fees actually collected and that which should have been collected under the statute. The gist of this argument is that since the board...