I dissent. It was specifically stated in the recital of facts upon which the judgment was grounded that "It was further agreed by all of the said parties that the statute of limitation has not run against any or all of said claims." Public officials are trustees of all the people and have no power to waive the statutes of limitations. Even if the county board allow and pay an illegal claim, the county attorney is compelled by statute to recover the amount paid.
Section 4821, Revised Codes, provides: "If the board of county commissioners, without authority of law, order any money paid as a salary, fees, or for any other purposes, and *Page 244 such money has been actually paid; or if 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 has been paid, the county attorney is empowered, and it is his duty, to institute an action in the name of the county against such person or persons to recover the money so paid, and twenty-five per cent. damages for the use thereof; and no order of the board of county commissioners therefor is necessary to maintain such suit; but when the money has not been paid on such order or warrants, it is the duty of the county attorney, upon receiving notice thereof, to commence an action in the name of the county for restraining the payment of the same, and no order of the board of county commissioners is necessary to maintain such action."
It is absurd to assume that county officials may waive the statutes of limitation. The cases cited to support such contention are cases in which the litigants were private parties. Not one involved a case in which the state or one of its subdivisions was a party in interest. Statutes of this nature apply to litigation between private parties, and may be made to apply to the state and its subdivisions only when they expressly so provide. (Board of County Com'rs v. Story, 26 Mont. 517,69 P. 56.) All persons when acting in their private capacity may waive any law intended solely for their benefit if no question of public policy be involved. (Sec. 8742, Rev. Codes;Shea v. North-Butte Min. Co., 55 Mont. 522, 535,179 P. 499.) Not even an attorney at law has the right to confess judgment for his client nor waive any material right unless expressly authorized thereto. (7 C.J.S., Attorney and Client, sec. 86, p. 907 et seq.)
County boards have no powers except those vested in them by statute. (State ex rel. Lambert v. Coad, 23 Mont. 131, 137,57 P. 1092; State ex rel. Gillett v. Cronin, 41 Mont. 293,109 P. 144; Morse v. Granite County, 44 Mont. 78, 89,119 P. 286; Hersey v. Neilson, 47 Mont. 132, 145, 131 P. 30, Ann. Cas. *Page 245 1914C, 963; State ex rel School District v. McGraw, 74 Mont. 152,153, 240 P. 812; Franzke v. Fergus County, 76 Mont. 150,245 P. 962; Yellowstone Packing P. Co. v. Hays,83 Mont. 1, 268 P. 555.) In Hersey v. Neilson, supra, referring to the powers vested in county boards, the court quoted with approval from Morse v. Granite County, supra, as follows: "Its board of commissioners — its executive body — is a body of limited powers, and must in every instance justify its action by reference to the provisions of law defining and limiting these powers."
"A state cannot be estopped by unauthorized acts or representations of its officers." (19 Am. Jur., sec. 166, Estoppel.) In section 167, just following the above, it is said: "If counties are regarded as agencies of the state and constituent parts of the state, they are subject to an estoppel only to the same limited extent as the state itself. * * * The issuance of a warrant does not estop a county from questioning the legality of a claim for which it was issued."
As to the right of appeal, such right is derived from the Constitution and cannot be taken away by legislative Act, and certainly not by a stipulation entered into by a county official. Chief Justice Brantly, speaking for the court in Finlen v.Heinze, 27 Mont. 107, 69 P. 829, 831, wherein the construction of sections 2 and 3 of Article VIII of our Constitution was involved, and likewise the construction of sections 1722 and 1723 of the Code of Civil Procedure of 1895, now sections 9030 and 9031 of the Revised Codes, all of which constitutional and statutory provisions are involved in the case at bar, in summing up and giving the import of able counsel for the defendant, after quoting section 3 of Article VIII of the Constitution, said: "It is manifest from the language of this instrument that it was the intention of its framers that the power of review granted should extend to all cases. The words `the appellate jurisdiction of the supreme court extends to all cases at law and in equity' are of universal application, and must be construed to mean that the parties litigant have the right of appeal to this court for final review of the action of *Page 246 the trial court, whatever it is, and that this court has the power to grant such relief as this review implies. It is a grant of power to this court, and at the same time a guaranty of a right to the individual citizen which is independent of legislative control, except in a qualified sense."
In construing the constitutional phrase "under such regulations and limitations as may be prescribed by law," the learned Chief Justice adopted the following language from the case of State ex rel. Whiteside v. First Judicial DistrictCourt, 24 Mont. 539, 63 P. 395:
"`While the legislature cannot decrease the powers granted by the Constitution, this clause evidently intended that that body should provide the mode of procedure to be employed by which, and the limitations as to time within which, both these powers should be invoked. * * * It is in this sense that an appeal is the creature of the statute, and that the right to it does not exist unless it is provided for.' By this language we meant to intimate an opinion that the power to consider appeals to this court from final judgments in all cases is a constitutional power, and that, in the absence of suitable action by the legislature providing the necessary procedure, the power is not held in abeyance, but may nevertheless be exercised under suitable rules provided by this court.
"The clause, `subject to such limitations and regulations as may be prescribed by law,' contained in section 3, — a substantial equivalent of the limitations clause in section 2, — must be read in connection with the preceding clause, which embodies the grant, and such import be given to it as will permit the court to retain the power vested in it, as a distinct department of the government, with its own peculiar and appropriate functions, and at the same time preserve the right guaranteed to the litigant. The word `limitations,' in its ordinary legal and popular sense, refers to the time within which an action may be brought, or some act done, to preserve a right. In this sense it implies power in the legislature to enact reasonable provisions fixing a limit to the time within which an appeal from a final *Page 247 judgment may be prosecuted. This the legislature has done in the enactment of section 1723, supra, after recognizing the right of appeal in subdivision 1 of section 1722. * * * These provisions, taken together, are limitations not only as to the time within which, after the making of the particular judgment or order, the appeal may be prosecuted, but also, in case of intermediate and interlocutory orders and decisions, as to the time in the course of the litigation at which the proceedings for review must be instituted. * * * But, though this is true, the power of limitation by the legislature applies primarily to the time within which the power of this court may be invoked by the litigant. It is only in this sense that the legislature mayimpose limitations, and these limitations, whatever they may be,may not restrict the right of the litigant to have every order inthe case affecting the merits reviewed either upon appeal from the final judgment or during the progress of the case, and within a reasonable time after the particular order is made; nor may they restrict the power of the court to grant such review. So the word `regulations' refers to the establishment of the procedure by means of which the power may be set in motion, and in obedience to which it may be exercised. It is only in thisqualified sense that an appeal from a final judgment is acreature of the statute."
The same eminent authority in speaking for the court inRaymond v. Raymond, 32 Mont. 170, 79 P. 1056, 1057, said: "The right of appeal in all cases is guaranteed by the Constitution."
The provisions of the statutes which the plaintiff relies upon to foreclose Silver Bow county from the right of appeal in the instant case apply to the time in which an appeal may be taken and the mode of procedure on appeal, and not to the right of appeal. The right is derived from the Constitution and may not be denied by statute. The right of appeal, however, is limited to a "final judgment." Section 9313, Revised Codes, defines a "final judgment" as "a judgment is the final determination of the rights of the parties in an action or proceeding." *Page 248
In State ex rel. Meyer v. District Court, 102 Mont. 222,57 P.2d 778, 780, it was said: "A judgment is defined as a final determination of the rights of the parties. (Sec. 9313, Rev. Codes 1921; State Bank of New Salem v. Schultze,63 Mont. 410, 209 P. 599.) If the `order' has the effect of finally determining the rights of the parties, in other words, disposed of the case finally, it is a `judgment,' the `title to the instrument' being not conclusive; it is to be judged by its contents and substance. (Swinehart v. Turner, 36 Idaho 450,211 P. 558; Churchill v. Churchill, 239 Mass. 443,132 N.E. 185; Chandler Taylor Co. v. Southern P. Co. 104 Ohio St. 188,135 N.E. 620.) The cases holding that `order' dismissing a case is a final judgment and therefore appealable are too numerous to mention; a few will suffice: Avery v. JayhawkerGasoline Co., 101 Okla. 286, 225 P. 544; Marshall v. Enns,39 Idaho 744, 230 P. 46; Paul v. Paul, 28 Ariz. 598,238 P. 399; Indiana Travelers' Accident Ass'n v. Doherty,70 Ind. App. 214, 123 N.E. 242; Cheney v. Boston M.R. Co.,246 Mass. 502, 141 N.E. 502; Clements v. Southern R. Co.,179 N.C. 225, 102 S.E. 399).
In Paulich v. Republic Coal Co., 97 Mont. 224, 227,33 P.2d 514, 515, this court said: "There can be no question but that the final determination of the rights of the parties by the district court was a judgment. (Secs. 9313 and 2962, Rev. Codes 1921; State ex rel. Mulholland v. District Court,88 Mont. 400, 293 P. 291; State ex rel. Roundup Coal Co. v.Industrial Accident Board, 94 Mont. 386, 23 P.2d 253."
It was said in Ringling v. Biering, 83 Mont. 391, 395,272 P. 688, 689: "The authorities seem to be in accord, that, for the purpose of an appeal, a judgment in an action will be considered as final only when it terminates the litigation between the parties, leaving nothing to be done other than its enforcement."
There was nothing left to do after the trial court made and entered the judgment in the case at bar except to enforce such judgment, and it was a final judgment.
The board of county commissioners, while exercising certain quasi judicial powers, is not a judicial body in the usual meaning *Page 249 of that term. "Where judgment is exercised by an administrative board as an incident to a ministerial power, it is not an exercise of `judicial power,' within the meaning of the Constitution." (23 Words Phrases, Permanent Edition, p. 315;Conover v. Gatton, 251 Ill. 587, 96 N.E. 522). "The board is not a court." (Albers v. Barnett, 53 Mont. 71, 161 P. 521,524; Article VIII, sec. 1, Montana Constitution.) The phrase "inferior courts," mentioned in subdivision 2 of section 9732, Revised Codes, no doubt has reference to the inferior courts which section 1, Article VIII of the Constitution authorizes the legislature to establish in incorporated cities and towns.
Taking up defendant's assignments of error, without giving particular consideration to each, it is my view that the defense of the county depends entirely upon the construction of the statute of limitations, section 4605, Revised Codes, which provides in part: "Every claim against the county must be presented within a year after the last item accrued." The first question that arises in considering this statutory provision is whether plaintiff's claims shall be determined to be a single claim in accordance with the contention of the plaintiff, or as a number of claims, as contended by the defendant. I think defendant's contention as to this question should prevail. During the time the plaintiff served as sheriff of Silver Bow county the elective term of that office was two years. Plaintiff was elected and served four separate terms. I think the time in which he must have filed his claims for mileage traveled during any particular term was one year from and after the date of the last item of his claim following the termination of that term. I can conceive of no sound reason why plaintiff should not be held to settle all his claims against the county arising during any one term within a year after termination thereof. The slate should be wiped clean after each term. Before entering upon his first term, and upon the commencement of each additional term, he was required to take and file an oath of office, and give bond for faithful performance of official duty. Each term carried its own exclusive rights and *Page 250 obligations, and on the termination of any term it was the plaintiff's duty to settle all such matters as claims for mileage due, as fully as though he were being succeeded in the office by another. This is the most liberal construction of the statute that can be rightfully claimed in favor of the plaintiff.
I am fully aware of the fact that this court held in the case of Hicks v. Stillwater County, 84 Mont. 38, 274 P. 296, on facts very similar to those involved here, that a county surveyor could recover from the county for additional salary by reason of his erroneous belief that he was entitled to but $7 per day when the statute allowed $8; and he likewise was held to be entitled to recover for the use of his own surveyor's instruments in county work, the county not having furnished any such instruments; but it was expressly held in that case that the defense of the statute of limitations was not pleaded in the answer and for that reason the claim there involved was not barred. There is no sound reason why the statute should not be applied here. Such statutes as section 4605 are grounded on sound public policy enacted for the purpose of outlawing stale claims. Among those relating to public affairs, in addition to section 4605, is section 4613. That section commands the county board to examine the records annually and cancel all warrants unclaimed for one year or more. Thereafter whether the claimant would have any recourse or not, that statute does not provide. If plaintiff had made his claims for the additional mileage within time, and his claims had been approved, and he had then neglected to take his warrants therefor out of the clerk's office within one year, the board would have been obliged to cancel them.
Another statutory provision enacted in the interest of prompt presentation of claims against a county is section 4462, requiring the county board to meet on the first Monday of each month for the specific purpose of "allowing bills." Other business may be taken up at the monthly meetings, but allowing bills is the only special reason mentioned for such monthly meetings.
The judgment should be reversed and the cause remanded to *Page 251 the district court with instructions to allow plaintiff's claim for mileage for his last two-year term in office, if the county auditor and the county board shall find that the last item on such claim is for services performed within one year as provided by section 4605, and to deny all the other claims.