dissenting.
It has been said that there are none so blind as those who, having eyes, do not see. More blind, however, are those who will not see. Even more blind are those who delude themselves into believing that there is nothing to be seen.
The main premise of this appeal is the cities’ claims to reimbursement of monies on the theory of unjust enrichment. Justice Bakes may not have seen the cities’ briefs which so contend, but then he should have seen in my opinion a repetition of the pertinent portion of the cities’ briefs. (At pp. 93-95, 764 P.2d at pp. 843-845). It would seem a bit discourteous for four members of the Court to ignore what another member of the Court has written on the primary theory under which the cities seek relief. It has been observed that on other courts that at least some one of the majority will find time to refute the challenge raised by a dissent which informed the reader that the majority has chosen to ignore an important theory.
But, rather than defend themselves, those who join Justice Bakes naively allow themselves to be taken in by his statutory approach, i.e., if the “instant situation” involves “a liability created by statute,” a decision so holding neatly disposes “of all other issues raised.” In that way the cities’ unassailable theory of recovery has quietly been finessed into limbo. The reader who is unversed in legal matters will not have known (from the majority) that there is in Idaho a well-recognized doctrine of unjust enrichment.
Why Justice Bakes desires to reach his pre-ordained result is wholly speculative. How he does it is not.
(1) He states that for 22 years Madison County apportioned the collected road tax monies.
(2) He states that when the error was discovered Madison County changed future apportionments.
(3) He states that the annual payments misapportioned to the cities by Madison County is and was governed by § 63-2104.
(4) He states that Madison County’s liability to transmit city monies would not exist except for Madison County’s duty “to properly apportion.”
(5) Repeating himself, he states that Madison County’s liability is one created by statute.
Relegated to a footnote, is the hypothesis of his rationale:
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 “coun*99ty 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.
One would think, or prefer to, that there would be at least one other member of the Court besides myself who finds this logic not within the bounds of any known legal legerdemain. Beginning at the outset of his opinion Justice Bakes for the ensuing five pages states what the county did, what the county’s liabilities and duties were. Then buried in a footnote he concedes that “counties cannot act for themselves.” And, notwithstanding that he has displayed the contents of § 63-2104 in the same footnote, and notwithstanding that § 63-2104 is specifically directed at mandating (must) the county auditor to take appropriate action disbursing the designated funds to the proper recipients, he states that “the statute is phrased in terms of ‘county officials ’ — persons ... who are charged with performing the county’s duties.” No one can say this is not ingenious. It is clever, no doubt, but extremely fallacious. The county has no duty to apportion; the county has no money to apportion. The county as such cannot touch that designated tax money. From the time that it is received until it is paid out, that money is under the dominion of the county treasurer. All of the commissioners’ orders in the world could not pry it loose. But the county commissioners are not responsible for keeping the money, or, where it goes. The responsibility there lies with, first the treasurer, and then the auditor.
In the earlier opinions released in February of this year, I attempted to bring my associates’ attention to the Constitution of the State of Idaho. Article XVIII, § 6 has been amended eleven times since the Constitution was adopted, usually to accommodate changing times. Certain language contained therein in 1889, however, has not changed one whit throughout the various amendments, and, although once again indulging in wasting time, ink, and paper on eyes which will not see, I quote it:
The legislature shall provide for the strict accountability of county ... officers for all ... public and municipal moneys which may be paid to them, or officially come into their possession.
As I wrote earlier, there is in this case no involvement of malfeasance. It is at least agreed by all that the County Auditor made a clerical mistake. As a result of that mistake, the county became the gratuitous recipient of city monies over which two county officers had sole dominion, the treasurer to whom the road tax funds were paid, and the auditor who mistakenly mis-apportioned it.
The law in this state has been, up until today, that a person or entity — be it a bank, a county, or John Doe — who is unjustly enriched by being handed some other person’s or entity’s money, in equity and good conscience must return it.
Today that does not happen. Instead of doing justice, the Court has made a gross sow’s ear out of a silk purse.
My views of the interrelationship, if any, of the various county officers — constitutional officers, that is — have been obtained solely by the teachings of the College of Law faculty at the University of Idaho, Moscow, Idaho, and by reading Idaho case law, in which respect I am much indebted to a fifth grade English teacher, Tillie Johnson, at the Washington Grade School in Pocatello, Idaho. There is comfort to be taken in recently finding that my views are much akin to those entertained at the office of the Idaho Attorney General, as set forth in an opinion rendered two years ago. Similar to my February 1988 opining citing to and excerpting portions of art. XVIII, § 6, Idaho Constitution, the opinion of the Attorney General, as pertinent here, reads:
County offices are established by art. XVIII, § 6, Idaho Const., which states, in pertinent part:
The legislature by general and uniform laws shall, commencing with the general election in 1970, provide for the election biennially, in each of the several counties of the state, of county commissioners and a coroner, and for the election of a sheriff and a county assessor and, a county treasurer, who is *100ex officio public administrator, every four (4) years in each of the several counties of the state.... The clerk of the district court shall be ex officio auditor and recorder.... No other county offices shall be established.... The county commissioners may employ counsel when necessary. The sheriff, county assessor, county treasurer, and ex officio tax collector, auditor and recorder and clerk of the district court shall be empowered by the county commissioners to appoint such deputies and clerical assistants as the businesses of their office may.require, said deputies and clerical assistants to receive such compensation as may be fixed by the county commissioners.
Thus, there are six county offices: commissioner, coroner, sheriff, assessor, treasurer, and clerk of the district court. Of these, the sheriff, assessor, treasurer, and clerk may appoint deputies and assistants as authorized by the county commissioners.
The text of art. XVIII, § 6, neither allows nor forbids commissioners to regulate deputies of other officers. Further, there is no Idaho law directly addressing the commissioner’s power to establish a mandatory countywide personnel system. There is, however, a substantial body of Idaho authority defining the general contours of commissioners’ power under art. XVIII, § 6, and delineating specific powers under that section. From these authorities one can draw conclusions about particular types of countywide personnel ordinances.
As a general principle, the various county offices should be viewed as being independent of one another. The Idaho Supreme Court has held that the commissioners may not assume the duties of other offices. Meller v. Board of Commissioners 4 Idaho 44, 35 P. 712 (1894); Clark v. Board of Commissioners, 98 Idaho 749, 754, 572 P.2d 501, 506 (1977); Gorman v. Board of Commissioners, 1 Idaho 553 (1874). The Gorman court stressed the fact that each officer is an elected official in his or her own right. From these cases, one can conclude that the commissioners are not above the other officers.
Opinions of the Attorney General, No. 86-10, August 21, 1986 (emphasis supplied).