Ada County v. Gess , 4 Idaho 611 ( 1895 )

MOBGAN, C. J.

(After Stating the Facts.) — The appellant contends that, the bills having been presented and paid by the board of county commissioners, and no appeal taken, the payment was voluntary, and cannot be recovered back. The appellant also contends that an appeal from the action of the board was the only remedy, and cites Picotte v. Watt, 3 Idaho, 447, 31 Pac. 805. In that case application was made for an injunction to restrain the payment of certain warrants ordered issued by the board of county commissioners. The court holds that there was a complete and adequate remedy at law, and in such case equity cannot be invoked. The same is held by this court in Morgan v. Board, ante, p. 418, 39 Pac. 1118; Rogers v. Hayes, 3 Idaho, 597, 32 Pac. 259; Clark v. Dayton, 6 Neb. 192. The last-named ease was also a suit in equity. The court did not hold that appeal from the action of the board of county commissioners was the only remedy, as such a decision would be in the face of the statute (Idaho Rev. Stats., see. 1780), which provides that a claimant dissatisfied with the rejection of his demand may sue the county therefor at any time within six months. In Meller v. Board, ante, p. 44, 35 Pac. 712, the court simply holds that all orders of the board of county commissioners are appealable under section 1776, and does not hold that the county may not sue to recover money illegally paid. Davis v. Commissioners, 4 Mont. 292, 1 Pac. 750, also cited, does not sustain the contention of appellant. The decision of the court in Brown v. Otoe Co., 6 Neb. 111, was rendered under a different statute from the one in this state as there the statute provides, as the court say, that appeal from the action of the board on accounts is the only remedy, while our statute (section 1780) provides the county may be sued when a claim is rejected. Appeal may also be taken, but appeal, under our statute, is not the only remedy, and it cannot be said, as in ease of Martin v. Supervisors, 29 N. Y. 645, that the action of the board is final and conclusive, as other remedies are expressly provided; and the district court is not a court of appellate jurisdiction only, but has original jurisdiction also in such cases. Under our statute, therefore, there are other remedies provided.

As the county is a municipal corporation, it may sue and be sued, and we know of no limitation as to time, except that provided in the general limitation laws of the state. We are told, however, that money paid through a mistake of law is a voluntary payment, and cannot be recovered back; and we are cited to the case of Badeau v. United States, 130 U. S. 439, 9 Sup. Ct. Rep. 579, as sustaining that doctrine, but it does not do so. Chief Justice Fuller, in that ease, did not place his decision on the ground that money paid by one officer of the government to another officer is a voluntary payment that cannot be recovered back, but upon the ground that the claimant, although retired, was still an officer of the army de facto, if not de jure, and for that reason he was entitled to the money received, and it could not be recovered back, and ex aequo et bono should not be returned. Some of the authorities cited, however, seem to sustain the contention of the appellant, and some authorities go so far as to hold that payments of the money of the public by its authorized agent to an officer on account of a mistake of law cannot be recovered back. The doctrine is so repugnant to every principle of justice and common honesty that the latter cases do not, by their reasoning, commend themselves to this court. We cannot consent to carry the doctrine beyond settlements between private individuals. Therefore we must hold that payments made by the county commissioners to public officers, which are positively and absolutely forbidden by the statutes of the state and by the constitution thereof, may be recovered back. Both are public officers, and it is the duty of both to see to it that the county is not damaged through their malfeasance, negligence or mistake. The statute positively forbids the county commissioners to issue any warrant except it is directly authorized by law (section 1775). Again, section 7 of article 18 of the constitution provides as follows, to wit: “The officers provided by section 6 of this article shall receive annually, as compensation for their services as follows: .... The county assessor who is ex-officio tax collector, not more than $3,000, and not less than $500.” The case of Guheen v. Curtis, 3 Idaho, 443, 31 Pac. 805, is directly in point in this case. In that case this court said: “The maximum compensation to be paid annually to the assessor and tax collector is, however, limited by the provisions of section 7, article 18, of the constitution, to the sum of $3,000, and he can in no event receive a larger sum.” Plere is a plain and positive prohibition by the constitution, which cannot be avoided nor violated. To hold otherwise would open the door to unlimited payments of sums forbidden by the constitution as salaries or fees of public officers by the county commissioners with or without collusion, and these payments retained under the specious pretext that they were voluntary payments under a mistake of law. We do not impute any fraud or misconduct to the assessor in this case. He seems to comply with the provisions of the constitution and laws of the state, except in retaining the money of the county above the amount allowed him by the plain and positive provisions of the constitution above quoted. The judgment of the court must be affirmed, and it is so ordered. Costs awarded to respondent.

Sullivan and Huston, JJ., concur.