United States v. Nez Perce County, Idaho, 8560

• Citation: 95 F.2d 238
• Decision Date: 04 March 1938
• Docket Number: No. 8560,8561.,8560
• Parties: UNITED STATES v. NEZ PERCE COUNTY, IDAHO. SAME v. LEWIS COUNTY, IDAHO.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

95 F.2d 238 (1938)

UNITED STATES v. NEZ PERCE COUNTY, IDAHO.

SAME v. LEWIS COUNTY, IDAHO.

Nos. 8560, 8561.

Circuit Court of Appeals, Ninth Circuit.

March 4, 1938.

John A. Carver, U. S. Atty., and E. H. Casterlin and Frank Griffen, Asst. U. S. Attys., all of Boise, Idaho, and John H. Wheeler, Sp. Atty., Dept. of Justice, of Los Angeles, Cal., for the United States.

Ray E. Durham, E. C. Butler, and Thomas A. Madden, all of Lewiston, Idaho and G. C. Pennell, of Nez Pierce, Idaho, for appellees.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

The United States has petitioned for a rehearing of these cases, contending that the court was in error in denying the recovery of interest. Petitioner cites authorities such as Erskine v. Van Arsdale, 15 Wall. 75, 21 L.Ed. 63, holding that, where suit has been brought against a collector to recover the amount of a tax illegally exacted, interest should be allowed from the date of the exaction, and attention is called to the fact that certain of the county officials were joined as parties defendant in the present suits. But in the cases before us the counties, as such, were sued as the parties ultimately liable. The suits were not merely against the collector.

National Home for Disabled Volunteer Soldiers v. Parrish, 229 U.S. 494, 33 S.Ct. 944, 57 L.Ed. 1296, is also cited. It was there held that exemption from the payment of interest "has never as yet been applied to subordinate governmental agencies." But the court was there speaking of the type of agency before it — a federal corporation created by legislation as "an establishment for the care of disabled volunteer soldiers of the United States Army." The corporation against which interest was held to be recoverable in that instance operated only in a quasi governmental capacity. A county is a political subdivision of the state, created for purposes strictly governmental. In discussing the general principle that a state cannot be held to the payment of interest on its debts unless bound by an act of the Legislature or by a lawful contract of its executive officers, the rule is stated in 15 R.C.L. at pages 17, 18, that "a county is generally regarded as but an arm or agent of the state, and is not liable for interest, in the absence of an express agreement to pay it" — citing Jackson County v. Kaul, 77 Kan. 715, 717, 96 P. 45, 17 L.R.A., N.S., 552, and Seton v. Hoyt, 34 Or. 266, 55 P. 967, 43 L.R.A. 634, 75 Am.St.Rep. 641. The cases cited in Ruling Case Law were decided long before National Home for Disabled Volunteer Soldiers v. Parrish, supra, and our attention has been called to no authorities holding the contrary.

The Idaho statute (section 61-1902, Idaho Code 1932) goes no further than to authorize the board of county commissioners to "refund with interest to any taxpayer any money to which he may be entitled by reason of a double payment of taxes on any property for the same year, or the double assessment, or erroneous assessment of property through error." The present cases do not come within the terms of the statute. It was held in Idaho Irrigation Co. v. Lincoln County, 28 Idaho, 98, 152 P. 1058, that the assessment of exempt property is not an erroneous assessment nor is it one made through error. As said in our previous opinion, we know of no statute of the state which evidences the consent of the state to a recovery of interest in situations like the present; and, in the absence of statute or contract, we think interest is not recoverable from a county.

There are other persuasive reasons why interest should not be allowed in these cases — reasons not touched upon in the original opinions, but which were nevertheless in the mind of ...