dissenting:
The assessment of Justice Bakes that the misapportionment was caused by an inadvertent decimal point error finds me in complete agreement. However, that is the full extent to which it is possible to be in agreement with what he has written. The realities of the situation are in need of closer examination.
First, to properly apportion the tax receipts which are taken in by the tax collector is a duty or obligation not on the county of Madison, or of any of the 44 counties. That duty falls on the county auditor who is “to draw on county treasury funds to the clerk of every city, school district, and every other taxing district “... for the amount of all monies paid into the county treasurer and apportioned to such incorporated city, ...” I.C. Sec. 63-2104. Not only is this the duty of the county auditor, but there is also the duty of the tax collector to pay into the county treasury all monies found to be due to him to be appor-tional. I.C. Sec. 63-2103. Both of these county officials are required to execute and furnish official bonds, I.C. Sec. 31-2015, and:
Whenever, except in criminal prosecutions, any special penalty or forfeiture or liability is imposed on any officer for nonperformance or malperformance of official duty, the liability therefore attaches to the official bond of such officer and to the principal and sureties thereon.
I.C. Sec. 31-2010 (1983 amendment). That is where liability is placed — on the county officers and their sureties — but not on the county. Those practitioners who may have served as county attorneys will be conversant with the fact that the official bonds of county officers run to the county. Counties owe their existence to the Idaho Constitution, art. 18, sec. 1 of which observed the existence of the territorial counties, which in turn were recognized as legal subdivisions of the state, as judicially acknowledged (assuming such be a requirement — which is doubtful) in Sims v. State, 94 Idaho 801, 498 P.2d 1274 (1972). A county is an entity, more specifically a governmental entity, and can and does engage in governmental activity and in activity which is proprietary. County officers are provided for in art. 18, sec. 6, and sec. 7 thereof provides the manner of compensation and the requirement that fees received over and above expenses must be paid into the county treasury. As a readily observable fact, all of Article XVIII is devoted to and entitled: COUNTY ORGANIZATION. Section 10 contains the provisions for boards of county commissioners and sets the scheme for rotating four year terms and two year terms. Section 11 provides: “County, township and precinct officers shall perform such duties as shall be prescribed by law.” The jurisdiction and power of such boards is stated in I.C. § 31-801, et seq.
All of the parties to the litigation, plus Justice Bakes and those who join his views, plus myself as well, are seemingly agreed that we deal with misfeasance, and not with malfeasance. “Malperformance,” used in § 31-2010, a statute since 1887, is a term which has yet to find its way into any legal dictionary; obviously in the context of the statute I.C. 31-2010, it is considered as the equivalent of malfeasance. The prefix “mal” means “bad, evil, wrongful.” Black’s Law Dictionary, 861 (5th ed. 1979). “Malfeasance” is comprehensively defined:
Evil doing; ill conduct. The commission of some act which is positively unlawful; the doing of an act which is wholly wrongful and unlawful; the doing of an act which person ought not to do at all or the unjust performance of some act which the party had no right or which he had contracted not to do. Comprehensive term including any wrongful conduct that affects, interrupts or interferes with the performance of official duties. *92State ex rel. Knabb v. Frater, 198 Wash. 675, 89 P.2d 1046, 1048. Malfeasance is a wrongful act which the actor has no legal right to do, or any wrongful conduct which affects, interrupts, or interferes with performance of official duty, or an act for which there is no authority or warrant of law or which a person ought not to do at all, or the unjust performance of some act, which party performing it has no right, or has contracted not, to do. Daugherty v. Ellis, 142 W.Va. 340, 97 S.E.2d 33, 42. It differs from “misfeasance” and “non-feasance” (q.v.).
Black’s Law Dictionary 862 (5th ed. 1979).
“Misfeasance” is defined in much less space, and part of the definition is to distinguish it from malfeasance:
The improper performance of some act which a man may lawfully do. “Nonfea-sance” means the omission of an act which a person ought to do; “misfeasance” is the improper doing of an act which a person might lawfully do; and “malfeasance” is the doing of an act which a person ought not to do at all.
Black’s Law Dictionary 902 (5th ed. 1979).
The better historical statement as to the spawning of the “inadvertent error” is found in the written decision of Judge Young where, with only a serious error in (1) and (2) i.e., county commissioners should read county auditors only, he summarized the facts as taken from the county auditor’s affidavit tendered in support of the mowon:
1. Since March 27, 1963, there have been statutes in effect which provide that the county commissioners are to pay over to the incorporated cities within their counties fifty percent of the levy assessed against property within the limits of any incorporated city for the construction and maintenance of highways and bridges. The current apportionment statute is Idaho Code Sec. 40-801(l)(a).
2. Through an error originating with a prior county auditor, the County Auditor and the County Commissioners, since March, 1963, have made erroneous calculations of sums to which the City of Rexburg and the City of Sugar City are entitled for road and bridge tax levies. Basically, the cities have received an apportionment of ten percent of what should have been apportioned to the cities.
3. Over all of the years the County Auditor and the County Commissioners, in good faith, and within the scope of the authority of their officers, have apportioned and paid road and bridge tax levies to the cities on the basis of this erroneous method of calculation.
4. Madison County calculated its road and bridge budget each year upon the assumption that it was receiving its proper share of the road and bridge taxes collected. All road and bridge taxes collected that were not distributed to the cities under the erroneous formula, were expended by the county for roads and bridges within Madison County in reliance upon its assumption that it was receiving its proper share of budgeted road and bridge taxes under the statutory apportionment formula.
Justice Bakes, following in those erroneous footsteps, completely fails to see that it is the statutory duty of the auditor to correctly apportion under I.C. § 63-2104. All of which is very clear. On the other hand, Justice Bakes has written an unusually convoluted opinion. His very first sentence states, “For 22 years Madison County apportioned to the cities of Rexburg and Sugar City etc.” On the same page he continues, “For the next 22 years Madison County apportioned to appellants ... The county’s error was an apparent inadvertent decimal point error etc.” On page number 3 he writes that “Madison County immediately changed the apportionment etc.”, and on the same page mentions I.C. § 63-2104, and states that “Payment (apportionment) by Madison County is governed by § 63-2104.” Each and every one of these statements is far from being accurate. Madison County did none of the above. Rather it was the county auditor who had the duty, and made the mistake. From his assumed false premise he imag*93ines the auditor’s duty somewhat derivatively falling upon the county itself, which he obscures at the end of a footnote, f.n. 3, page 90, 764 P.2d, f.n. 3 page 840:
The county officials’ liability to properly apportion and pay over road and bridge taxes is derivative. It is derived from the primary liability of the county. Since counties cannot act for themselves, the statute is phrased in terms of “county officials” — persons who can act of their own volition and who are charged with performing the county’s duties. In the instant case, they have no liability if the county has no liability.
[No authority cited for these novel propositions, nor is there any. The governmental county entity' acts by and through its Board of County Commissioners.]
The county does not have any such duty as he suggests, but does have an obligation to turn over to the rightful recipients, the cities of Rexburg and Sugar City, the monies which lawfully were supposed to have been delivered to them, but which as a result of inadvertent clerical mistake, were turned over to Madison County. The county, since discovery of the auditor’s mistake, has only paid over a pittance to the two cities, and refuses to disgorge a balance which is substantial, and the basis of this litigation.
What we see is as clear a case of unjust enrichment as a law professor could ever hope to display to a class. Admitted by all concerned is that the county’s unjust enrichment has been occasioned not by any tortious conduct, i.e. malfeasance in office, but by the innocent mistake made by all of the auditors who have since succeeded the auditor who first committed the error.
Unjust enrichment is not unknown to Idaho jurisprudence, but today it is ignored as though there had never been a case— notwithstanding that the brief submitted by forthright, conscionable, and conscientious counsel for the county who brought it directly and inescapably to our attention:
5. A good faith recipient of a benefit received by mistake may be excused from restitution if he has changed his position in such a way as to make it inequitable that he restore it;
Westamerica Securities, Inc. v. Cornelius [214 Kan. 301] 520 P.2d 1262 (Kan.1984 [1974])
Moritz v. Horsman [305 Mich. 627] 9 N.W.2d 868, 147 ALR 117, 121 (Mich.1943)
Messersmith v. G.I. Murray & Co., 667 P.2d 655 (Wyo.1983)
Douthwaite, ATTORNEY’S GUIDE TO RESTITUTION
(Allen Smith 1977)
Sec. 9.2, pp. 369-374
And the weight of modern authority follows the basic principles in the “budget defense” adopted by an early California case (in contrast to an Idaho decision) in denying restitution of excess money received by a taxing unit at the expense of another taxing unit when both received and expended that for which they budgeted.
Fall River Joint Union High School District v. Shasta Union High School District [104 Cal.App. 444] 285 Pac. 1091 (Cal.App.1930)
Contra: Independent School District No. 1 v. Common School District No. 1, 56 Idaho 426, 55 P.2d 144 (1936) Salisbury R-IV School District v. Westran R-I School District, 686 S.W.2d 491 (Mo.App.1985)
Fort Wayne Community Schools v. State ex rel New Haven Public Schools [249 Ind. 562] 233 N.E.2d 636 (Ind.1968)
School District No. 8 v. School District No. 15 [183 Neb. 797] 164 N.W.2d 438 (Neb.1969)
5. IT WOULD BE INEQUITABLE TO COMPEL PRESENT TAXPAYERS TO REPAY IN CASH AN ACCUMULATED 20 YEAR, 900 PERCENT PER YEAR PAPER SHORTFALL IN ROAD TAXES.
The cities seek recovery on the traditional restitution remedy compelling repayment of money received by mistake to avoid unjust enrichment to the *94recipient. There is a traditional defense to that recovery. It applies where the recipient has irrevocably changed his position in reliance upon receipt of the funds. He will not be compelled to repay the money if it would be inequitable under all the circumstances. P. & A. # 5, first part. An example is Moritz v. Horsman, [305 Mich. 627] 9 N.W.2d 868, 147 A.L.R. 117 (Mich.1943). An estate mistakenly distributed money to the adopted son of decedent’s brother. In good faith he had expended some of the money for which he had no equivalent assets. To that extent he was not compelled to repay. A variety of circumstances where the defense is available and the developed requirements for its application are illustrated in the cases collected in Annotation, 40 A.L.R.2d 997 (1955) “What constitutes change of position by payee so as to preclude recovery of payment made under mistake”. The defense is discussed in Douthwaite, ATTORNEY’S GUIDE TO RESTORATION (Allen Smith 1977) Sec. 9.2, pp. 369-374. One approach to the defense is to look at its flip side: If a change of position can be reversed, or the status quo can be restored, without expense, then it is no defense. First National City Bank, v. McManus, [29 N.C.App. 65] 223 S.E.2d 554 (N.C.App.1976).
Notwithstanding the foregoing content of Madison County’s brief Justice Bakes, by what may be seen as the grandest ipse dixit of all, simply starts his treatise with a recitation of § 5-218(1), a liability created by statute, and never produces any statute creating liability on the part of the county. The best show which he makes is his statement that § 40-801 imposes a duty. Not at all so.
That section empowers the making of a levy. But, there is no duty to make a levy, and the power to make a levy is not one conferred alone of the county commissioners alone, as to their (county) highway system, but also to the commissioners of an (independent) county-wide highway district, and also to the commissioners of highway districts in general.
Sub-paragraph (a) thereof contains the word “shall,” and it creates the requirement that 50 percent of the funds realized shall go to the incorporated cities within the particular district, by apportionment. The apportioning duty is placed where such accounting and bookkeeping should be placed — on the auditor.
Justice Bakes is nearly correct when he then recites that “Madison County corrected the mis-apportionment back to August, 1982 — repaying three years back, ...” It is true that the county did do so, and well it should have. It had received monies by the inadvertence of the auditor which property should have gone to the cities, and in good conscience it had no right to retain those monies. It is not a question of being “liable” in the sense of being responsible for contractual or tort damages.
What Justice Bakes reads into the statute, and simply is not there — but is elsewhere — is any language allowing the county commissioners to take in the tax money or pay it out, i.e., make the requisite apportionment.
What a county or a highway district does, it does by its governing board. Here it could make a levy, and it did make a levy. And it did it by resolution. From there on the procedure falls on the other county officers.
With respect to the functions of the other county officers, who are bonded under the terms of their official bond as a prerequisite to taking office, those who “are entrusted with assessment, collection, paying over or custody of taxes ... shall be liable upon their official bonds for the faithful performance of their duties in the assessment, collection and safekeeping of the highway district taxes.” I.C. §' 40-804.
As stated earlier herein, Justice Bakes in his footnote simply imagines some duty on the part of the county derivatively flowing from the statutorily imposed duty on the county auditor. It would be interesting to know, assuming that the duty would and could descend upon the county by reason of the auditor’s inadvertent mistake, just how it is that the county auditor and the county treasurer have been held blameless and *95dismissed from the action. If they have no statutory liability, as has been held and not questioned, how does non-liability of the auditor derivatively fall upon the county commissioners, and then enure to the liability of the governmental entity known as Madison County?
With counsel for the county forthrightly bringing the Common School District No. 1 to the attention of the Court, and conceding that it is contrary to the position which is advocated, it would have been normal for Justice Bakes to first consider that likelihood, at the least it became incumbent upon him to mention it. He does correctly note that that case was decided under the traditional law of restitution. Restitution is but another way of recognizing the doctrine of unjust enrichment — a terminology not as much in vogue in 1937 as now these 50 years later. He concedes that in that case no statute there involved created liability, hence no “liability” created by statute.
Methinks he treats the proposition much too lightly, and incorrectly as well. What Justice Ailshie wrote in the case for a unanimous Court was somewhat different:
It follows that a fund apportioned to or collected for a specific school district is a trust fund and so long as intact or capable of identification may be followed as a trust and preserved by the orders of a court of equity, but this is not always possible, nor is it an exclusive remedy. The recipient of the fund may be proceeded against as for money had and received.
Independ. S. Dists., etc., v. Common S. Dist. 1, 56 Idaho 426 at 434, 55 P.2d 144 at 147 (1936) (emphasis added).
“Monies had and received,” nowadays restitution, was the nature of the cause of action in the case. The Court specifically held that there was no liability created by a statute — meaning against the defendant Common School District No. 1. Likewise, there is absolutely no liability east directly on the county itself for the mistake of a succession of county auditors.
The relief awarded in that school district case was by the Court held to be based on the grounds of mistake resulting in the unjust enrichment. Accordingly, the Court applied the provisions of § 5-218, I.C.A. (today I.C. § 5-218); and specifically sub-paragraph (4) thereof:
It is an undisputed fact that none of the parties to the action had any notice of the mistake in apportionment of the funds, which resulted in their disbursement to the prejudice of the respondent districts, until the audit was made public on April 15, 1930. Under sec. 5-218, I.C.A., the “action” being for relief on the grounds of “mistake,” it necessarily follows that “the cause of action” did not accrue “until the discovery by the aggrieved party, of the facts constituting the_ mistake.”
Under this statute either one of two things may toll the statute, namely, (a) undiscovered fraud, (b) undiscovered mistake.
Independ. S. Dists., etc., v. Common S. Dist. 1, 56 Idaho 426 at 434, 55 P.2d 144 at 147 (1936).
Neither the county auditor nor the cities discovered the mistake until the chance article in a newspaper, following which all activity by all parties, including the filing of the action, took place well within the ensuing three years after discovery. The county auditor made the mistake, and it cannot seriously be contended that there was a greater duty on the cities to discover an unknown mistake than there was on the county auditor or on the county itself— which was as apt to learn that it was being unjustly enriched as were the cities apt to learn that they were being mistakenly shorted. A case more on point with this than the school district ease could not be imagined.
Moreover, the judgment entered in the Common School District case is unquestionably precedent for the entry of a judgment in favor of the cities of Rexburg and Sugar City for the full amount of withheld monies and suggests the format for so doing. In view of the sizeable amount, and restitution being an equitable remedy, equity might consider a small or no interest charge and a repayment schedule patterned *96similar to the schedule of nonpayments which created the liability.
The Cruzen case followed in point of time 22 months later, and the Court membership had not changed in the interim. It is somewhat unlike the school district case, which was therein cited, in that an elected county auditor is not an agent of a county, but an appointed city clerk who is an agent of the city, and the city clerk’s acts were ratified by the city.
Turning away from Justice Bakes’ opinion after having found no enlightenment there as to any county liability for the mistakes of the county auditors over the many years, the brief of the county was resorted to in a final effort to see if there might actually be somewhere some support for the novel theory that the county is “derivatively liable ” for the mistake of a county auditor.
There is found what might be perceived to be an aroma of a scintilla — just one whiff, at best. And, it just has to be what Justice Bakes has seized upon — because there just plain isn’t anything else.
On page 21 is language much like that which Justice Bakes has incorporated into his opinion. On page 19 of respondent’s brief the county commences a discussion of three cases which are absolutely not in point because they were all cases involving misappropriations by county tax collectors and efforts by the counties to recover from the county tax collectors and/or the sureties on their official bonds, and of course the three year limit was applied to actions which by their very nature were on a statutory liability. All of which has nothing to do with this case. But from there the county’s brief adds this paragraph which must have caught the eye of Justice Bakes:
The only other factual difference from the three misappropriation cases is that they involved suits against the officer and/or his surety, and not against the county. That should not change the result. The liability of the surety derives from the liability of the officer. The county auditor is a county officer acting for the county in apportioning and paying over road taxes to the city. For a breach of that duty the county would be liable. See Bosworth v. Anderson, 47 Idaho 687 [697], 280 Pac. 227, 229 (1929) holding a county liable for breach of a statutory duty in failing to disburse taxes to the taxing unit entitled thereto.
I will be the first to agree with the statement therein: “The liability of the surety derives from the liability of the officer.” For certain if the county officer is liable, that is exactly what the surety has agreed to indemnify. But, I would be the last to agree that the word surety can be stricken, and the word county substituted in its place. The county hasn’t gone surety for the county auditor. To the contrary, repeating for emphasis, the official bond of the auditor runs to the county, and that is what the three cited cases1 were all about —suing to reach the surety.
At best in that paragraph, and undoubtedly what Justice Bakes sees as a derivative duty falling on the county, even though the county is not a surety, is the statement that “The county auditor is a county officer acting for the county in apportioning and paying over road taxes to the city.”
That proposition has already been dealt with earlier herein. In short, it simply is not so. But, to the credit of counsel so advocating, he does that which Justice Bakes has not done, i.e., he advances a cite which thereby takes it out of the realm of being a 100 percent pure ipse dixit. “For a breach of that (county auditor’s) duty the county would be liable. See Bos-worth. ...”
Bosworth is an interesting case, and while it is worth seeing, it is not persuasive, and certainly not convincing. I will attempt to faithfully extract from it all that it contains in support of the statement which it is said to purportedly support. A first clue is headnote 7, p. 697 of 47 Idaho, headnote 7, p. 227 of 280 Pac.: “7. County *97collecting sum for special improvement district held liable to bondholders for amount improperly diverted to predatory animal fund.” The caption of the case is on the same page and does not name Madison County as a party but at the opening of the opinion is stated this:
The city of Rexburg, Madison County, Pacific States Savings and Loan Company, Equitable Savings and Loan Company and Portland Mortgage Company became parties claiming rights adverse to appellant Bosworth, and they, in turn, have appealed from certain portions of the judgment.
Bosworth v. Anderson, 47 Idaho 697, 705, 280 Pac. 227 (1929).
On that same page the Court sums up five issues presented, and it is easy to identify the issue alluded to in the county’s brief: “4. The liability of the county for having apportioned to other taxing units or other improvement districts assessments collected by it for this improvement district.” The discussion of that issue is set forth succinctly:
The county collects the taxes for the city and other taxing units and is charged with the duty of paying such taxes and assessments when collected to the proper taxing unit and receives as compensation therefor one and one-half percent of all taxes collected (C.S., sec. 3224.)
Of $36.37 collected for the special improvement district involved herein, the following amounts were improperly diverted:
To the Predatory Animal Fund.$ .17
To Local Improvement District No. 11.18.56
To City of Rexburg — General Funds.17.64
The city never received the amount diverted to the Predatory Animal Fund and the county should be held liable therefor.
The balance was paid to the city but diverted by the city for purposes other than the payment of the bonds involved herein. For this diversion the city and not the county is liable.
Bosworth v. Anderson, 47 Idaho 697, 709-10, 280 Pac. 227 (1929).
The only clue to the imposition of liability on the county for seventeen cents is found in the points and authorities2 which are set forth in the report of the case. The firm of Richards & Haga of Boise, Idaho, submitted an amicus curiae brief for the benefit of the Court which suggested that funds raised by taxes are trust funds, and must be applied where the law requires. The Court in holding the county of Madison liable for the seventeen cents observed that the county had a duty to turn the collected taxes and assessments to the proper taxing unit. 47 Idaho 709, 710. The cited section of the Compiled Statutes, § 3224, is yet another clue. The tax money collected must go into the county treasury to be thereafter apportioned. The county doesn’t own the money in the treasury. The county treasurer holds it in trust to later be apportioned to the rightful recipients as provided by statute. The county itself will receive its proper share of the tax receipts. BUT, if the county by mistake receives 'some of those trust funds which belong elsewhere, i.e., in the hand of another taxing unit, and is thereby unjustly enriched, equity and good conscience require restitution to the party entitled. That is beyond doubt what was held later in the Common School District case. It appears very strongly that such was what happened in the Bosworth case. Of the $36.37 which should have gone to the coffers of the Special Improvement District, all but seventeen cents went to the City of Rexburg, for which it is liable by reason of having received monies to which it was not entitled — a ready case of unjust enrichment. The county was liable on the same basis for the seventeen cents it retained, which was not its money to keep. As to who made the mistake which unjustly enriched the county by seventeen cents, there *98is no enlightenment in the reported opinion, but it necessarily would have been a clerical mistake on the part of the auditor in computing the apportionment percentages. Idaho Compiled Statutes 1919, § 3326 Settlement by County Auditor with Municipalities, appears to read basically then as I.C. § 63-2104 reads today. It is found in Vol. I of the 1919 Compiled Statutes at p. 947, in Article 15, entitled Settlement of Revenue Officers. Nothing which I can find in that section, or either of the two volumes for that matter, shows even the slightest intimation that county commissioners were ever allowed to handle county revenues.3
As mentioned, the Madison County brief has brought to light an interesting case, but Justice Bakes in my view has ridden the Bosworth horse further than it should run.
ON REHEARING
A petition for rehearing in this matter was granted and the cause reargued. The Court has reviewed the record and considered the arguments presented by counsel and continues to adhere to the views expressed and the conclusion reached in 1988 Opinion No. 7, filed on February 3, 1988.
SHEPARD, C.J., and BAKES, HUNTLEY and JOHNSON, JJ., concur.. Wonnacott v. Kootenai County, 32 Idaho 342, 182 Pac. 353 (1919); Canyon County v. Moore, 34 Idaho 732, 203 Pac. 466 (1921); and Lincoln County v. Fidelity & Deposit Co., 102 Idaho 489, 632 P.2d 678 (1981).
. For the interested reader who only has access to the same case in 280 Pacific Reporter, mention is made that the publisher of the Idaho Reports for many years, Bancroft-Whitney Co., included in the reported case a synopsis of the relevant points and authorities excerpted from the briefs filed with the court.
. An interesting bit of light reading which suggests why they were not so authorized is found in Rankin v. Jauman, 4 Idaho 394, 39 P. 111 (1895).