separately concurring in the Court’s judgment.
Justice Huntley has suggested that this case should be decided on a straightforward and simple analysis, rather than attempting to track through the history of certain sections of the Idaho law which do not really control the resolution of this controversy. I tend to agree with him in that respect. However, and perhaps approaching the case even more simplisticly than Justice Huntley, I reach a different result.
Basically the issue is whether a landlord can be held responsible for a debt which is incurred by some other person. Stipulated fact No. 3 provides that: “Each tenant opened up his own water, sewer, and sanitation account, individually and in his own name with the City of Grangeville. Billings for the services were made by the City of Grangeville in the names of the respective tenants.” The key word is account. “Account” is a word so much used in business parlance that it is not in need of definition. While most mundane business affairs are now purchases of goods and/or services in exchange for cash or credit card, formerly most ordinary transactions were on open account — open account at the local grocery store, at the hardware store, at the service station, etc. At the end of the month customarily there was a billing and a payment — perhaps not always in full, and the account carried over. Black’s Law Dictionary defines “open account”: “An account which has not been finally settled or closed, but is still running or open to future adjustment or liquidation.” Black’s also defines current account: “An open or running account or unsettled account between two parties.” An “account payable” is also defined: “Contract obligations owing by a person on open account.” Idaho law since during Territorial days has recognized the prevalence of open running accounts: “In an action brought to recover a balance due upon a mutual, open and current account ... the cause of action is deemed to have accrued from the time of the last item proved____” I.C. § 5-222.
*540Judge Reinhardt correctly stated the issue presented, whether or not the City of Grangeville could impose personal liability on Haskin for delinquent water, sewer, and garbage bills accumulated by his tenants when they opened up the accounts individually and in their own names where there was no written agreement between Grangeville and Haskin which so provided.
When I was last practicing law the answer resolving this controversy was the requirement that a promise to answer for the debt of another had to be in writing. I.C. § 9-505(2). In scanning through the Rules of Evidence which four members of this Court promulgated, I do not see that I.C. 5-905 was abrogated or replaced.
Section 3-3-6 of the Grangeville Municipal Code does indeed state, as Judge Reinhardt has pointed out, that a property owner is jointly and severally liable with his tenant for the tenants’ unpaid bills on the open account which the tenant opened. The City of Grangeville cannot confer upon itself the power to hold Haskin accountable for his tenants’ unpaid open accounts. Nor does I.C. 50-1813, a statute designating assessments as liens on real property, confer any such power on the city. Open accounts are not assessments. The legislature has not ever pretended that assessments are synonymous with open accounts.
It is a very serious matter to declare that a person may be held liable for some other person’s default in paying his monthly bills, and it simply would be unlawful, and likely an unconstitutional deprivation of property, unless, that is, the landlord (or anyone else, for that matter, who is a willing guarantor) has agreed in writing to be responsible.
Obviously, as I understand it is done elsewhere, Grangeville might refuse to open an account for a tenant unless a substantial deposit is advanced for security or some acceptable person guarantees payment in writing. Here the required deposit was $25.00.
In the instant case it is noted from stipulated fact No. 7 that the ordinance seeks some landlord involvement by providing that, for the cost of duplicate billing, the landlord may obtain copies of the billing being sent to the tenant who has opened the account. This is certainly no way to run a railroad. If the City somehow (likely because of its own ordinance) felt that the landlord was really liable for the monthly billings, it behooved the City to send him the monthly billings. Before the City could attempt to hold the landlord responsible for the debt of another, it would seem that the City would have had the courtesy to so notify him. It does not appear from the record that this happened.
Common sense would seem to dictate that the City, apparently wanting to protect itself from the losses of itinerant tenants who might leave town without paying their accounts, in the first place would require more substantial security deposits or, alternatively, written guarantees before opening new accounts with new customers. Such should be much preferred to passing through three levels of court only to find out that Mr. Haskin cannot be held accountable for the magnificent sum of $73.51 which his two tenants owed and failed to pay.