McNutt v. Lemhi County

STOCKSLAGER, C. J.,

Dissenting. — I cannot see my way clear to concur in the conclusion reached by my associates. The facts were stipulated'and are fairly stated in the opinion, but the conclusion to be drawn from them is where I differ from the majority. As stated in the opinion, the contract was awarded to Mr. Penwell by the board of county commissioners after the clerk, on the order of the board, had advertised for bids. He completed the work, the road was accepted by the county through its legally constituted agents, and warrants were issued in compliance with the contract. No charge or even intimation of bad faith on the part of the board of *74commissioners, Mr. Penwell, or anyone else connected with the transaction or anything leading up to the final issue of the warrants. No appeal taken from any of the orders of the commissioners relative to the contract or the issue of warrants. The warrants for more than half of the original contract price were paid by the county treasurer before the legality of the remaining warrants was questioned. This, too, after Mr. Penwell had disposed of them to the appellant, who, in the ordinary acceptation of the term, had purchased in good faith and for value; then it is discovered that there may be a legal, certainly not moral, excuse for refusing to pay a debt that had been contracted for the use and benefit of the inhabitants of the county.

The county auditor of Lemhi county issued the warrants on the order of the county commissioners to Mr. Penwell in payment for work done on the road, and after it had been accepted on July 21, 1894, on the twenty-third day of July they were presented to the county treasurer for payment and indorsed by him “not paid for want of funds.” In April, 1900, the county commissioners made an order finding the legal indebtedness of the county to be $50,877.65, which included the warrants in controversy. At an election thereafter held a sufficient number of the qualified voters of the county voted in favor of issuing bonds for the redemption of the outstanding warrants. The first time the legality of those warrants was ever questioned as shown by the record was on the sixteenth day of July,' 1900, when the commissioners of the county declared the warrants illegal and ordered the county treasurer not to pay them. Thus we find that lacking five days of six years, these warrants were treated as a valid subsisting debt against the county. All acts of the county commissioners are presumed to be legal until the contrary is shown, and the law provides for an appeal “from any order, decision or action of the board while acting in an official capacity — by any person aggrieved thereby or by any taxpayer of the county when any demand is allowed against the county, or when he deems any order, decision or action of the board illegal or prejudicial to the public interests. ’ ’ The *75legislature amended this section in 1899 (Sess. Laws 1899, p. 248), but in no way to affect the merits of this case; it only provides the time in which the appeal must be taken after the county commissioners have published a statement of their proceedings, etc. It could not affect this action, as all orders, with the single exception of the one made by the board in July, 1900, in which they declared the warrants illegal and authorized the county treasurer not to pay them, were under section 1776, supra. In the majority opinion it is said: “It should be observed, however, that section 1776 of the Revised Statutes, as amended February 14, 1899, applies only to persons and taxpayers and has no application to the municipality itself. The legislature never contemplated that the board of commissioners would ever want to appeal from their own action in making an order or paying a claim.” Of course the statement that “the board of commissioners would never want to appeal from their own action” is literally true — -if they become dissatisfied with any order made, they can rescind it, and then if the “person or taxpayer” is dissatisfied with their action there is a remedy by appeal. It is shown by the record in this case that not only the board of county commissioners were satisfied with every step taken from January-10, 1892, down to the order of July, 1900, declaring the warrants illegal, but the “persons and taxpayers” were also satisfied. Within this time the petition asking for the construction of a road was acted upon and approved January 10, 1893. On the ninth day of April, 1894, another order was made directing the clerk to advertise for bids. On May 11, 1894, the bids were opened, and the bid of O. E. Penwell was accepted. Viewers were appointed by the board of commissioners, who reported said road to have been constructed according to the contract, and on the twenty-first day of July, 1894, the report of the viewers was accepted by the board and warrants were ordered drawn in payment for said work. On the same day the auditor drew the warrants in compliance with the order of the board and delivered the same to contractor Penwell. Each and all of these orders were appeal-able, yet the “people and taxpayers” of the county did not *76see fit to take an appeal from any of them, with section 1776 of the Revised Statutes, as amended in 1899, enjoining upon them the duty of doing so if they were dissatisfied with any of the orders of the board of commissioners. It is apparent that the county commissioners and the “people and taxpayers” were in harmony with the former action of the board as late as January, 1900, as it is shown that two of the warrants of $1,000 each were paid in 1899, and one for $1,000 was paid in January, 1900. That the remedy for reviewing the action of the board of commissioners is by appeal has been repeatedly announced by this court. In Morgan v. County Commrs. of Kootenai Co., 4 Idaho, 418, 39 Pac. 1118, the court sustains the theory of appellant. The syllabus says: “When order for the issue and sale of bonds has been made and entered of record by the board of county commissioners of any county, proceedings in equity to restrain the issuance and sale of such bonds in pursuance to such order will not lie, the court having no jurisdiction in equity, where there is a plain, speedy and adequate remedy at law, by appeal from the order of the board.” In Picotte v. Watt, 3 Idaho, 447, 31 Pac. 805, the first paragraph of the syllabus says: “Where the statute provides a plain, speedy and adequate remedy it must be followed.” In Rogers v. Hays, 3 Idaho, 597, 32 Pac. 259, the syllabus says: “ Writ of review does not lie from the action of a board of county commissioners, the statute having provided a speedy and adequate remedy by appeal.” In Johnson v. Savidge, 11 Idaho, 204, 81 Pac. 616, a decision of this court, it is said: “If the board of county commissioners has jurisdiction to create justices’ precincts within the limits of an incorporated city, and does so, its action can only be reviewed by appeal.” Again, in School District No. 25 v. Rice, 11 Idaho, 99, 81 Pac. 155, this court says: ‘ ‘ The remedy for review of the action of a board of county commissioners in this state is by appeal from the order or act complained of.”

It would seem from the authorities above cited that all orders of a board of county commissioners become final unless rescinded or appealed from within the statutory time, and the stipulation shows neither was done in this case. The ques*77tion arises here, Could the board of county commissioners by an order declaring the warrants in question illegal, invalidate all the orders of their predecessors leading up to the issue and delivery of the warrants ? The statute enjoins upon the members of the board certain duties; they may make an order and thereafter rescind it, but after orders have been made upon which contracts have been based, work performed, the work accepted, warrants issued and delivered, part paid and part passed into the hands of a third party, can they invalidate all former acts in the face of the statute that provides that all orders of the board must be appealed from by anyone dissatisfied, etc. ? I say no. The county must act in good faith as well as the citizen. It has no more right to take the laboring man’s earnings or the capitalist’s money than any other corporation or individual. Penwell did the work; the county got the benefit; McNutt paid his money for the warrants, and now the county seeks to avoid payment on the ground, that some of the orders of a former board had not complied with the strict letter of the law. An individual would not be permitted to escape liability on such a plea. Why should the county? If there was a plea of fraud in any of the transactions leading up to the issue and delivery of the warrants, the situation would be different; but it is shown that every transaction on the part of the board in letting the contract, accepting the work and issuing warrants was in the utmost good faith, and that the county received value for the warrants. Now, six years after the work is completed, to allow a board to declare the warrants invalid and refuse to pay them, does not meet with my idea of justice, and the law does not countenance injustice in any transaction. I further think these “persons and taxpayers” (and the individual members of the board of county commissioners who now seek to avoid payment, belong to one or the other, or both), ratified all former acts of the board of commissioners when they voted to bond the county for the outstanding warrants, the warrants in controversy being of the number enumerated in the list outstanding. But it is useless to discuss this question further. I think the judgment should be reversed.