City of Rexburg v. Madison County , 115 Idaho 88 ( 1988 )

BAKES, Justice.

For 22 years Madison County apportioned to the cities of Rexburg and Sugar City, individually, only 5%, rather than the statutory 50%, of county road taxes assessed on properties situated within the cities. The mis-apportionment was caused by an inadvertent decimal point error. The cities sued for back taxes and the district court granted summary judgment for the county and its officers, noting that all applicable statutes of limitation had run. The cities of Rexburg and Sugar City appeal. We affirm.

We are asked to decide if the instant situation involves “a liability created by statute.” If it does, the three-year statute of limitations under I.C. § 5-218(1) has run, and our decision will be dispositive of all other issues raised. We hold that this case involves “a liability created by statute” and that the statute of limitations has run.

Prior to 1963, Idaho law entitled each city to receive 25% of county road and bridge taxes levied on property within the city. Effective March 27, 1963, the statute was amended to raise the percentage to 50%. This became I.C. § 40-2709(1) and is now, with immaterial changes, I.C. § 40-801(l)(a).

For the next 22 years Madison County apportioned to appellants only 5%, rather than the statutory 50%, of county road taxes assessed on Rexburg and Sugar City properties. The county’s error was an apparent inadvertent decimal point error — using .05 rather than .50 as the factor.

For the same 22 years, Rexburg and Sugar City, as well as Madison County, budgeted for roads and bridges by projecting revenue on the same mistaken factor. All three parties expended their respective shares only for roads and bridges.

The cities’ mayors discovered the error and called it to the attention of Madison County on October 31, 1984. Madison County immediately changed the apportionment as to all future distributions, commencing November, 1984. In September, 1985, Madison County corrected the mis-ap-portionment back to August, 1982 — i.e., repaying three years back, claiming that all prior years were barred by the statute of limitations. Rexburg and Sugar City filed these actions to recover the mis-apportionment back an additional 19 years, to March 27, 1963.

Payment by Madison County to the cities is governed by what is now I.C. § 63-2104. That statute has not been materially different since March 27, 1963. It requires a monthly settlement between the county and the cities regarding funds paid to the county and apportioned to the cities in the preceding month.

The trial court granted summary judgment for the auditor and commissioners on the claims against them personally; it found that they had “acted in all matters herein in good faith and within the scope of their respective authority.” This has not been appealed.

The district court separately granted summary judgment in favor of the county, holding that I.C. § 5-218(1) was the proper statute of limitations, and that three years had run. Thereafter, the cities filed a motion to alter, amend or reconsider. It was denied. This appeal followed.

It is axiomatic that upon motion for summary judgment all facts are to be liberally construed in favor of the party opposing the motion who is also to be given the benefit of all favorable inferences which might be drawn from the facts. Summary judgment should be granted only when the pleadings, depositions, affidavits, and admissions indicate that there is no genuine issue of material fact. I.R.C.P. 56(c); Rice v. Miniver, 112 Idaho 1069, 739 P.2d 368 (1987); Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986). Here all issues can be decided as matters of law; no genuine issue of material fact remains for determination.

In pertinent part, the LC. § 5-218(1) statute of limitations reads:

“Within three (3) years:

“1. An action upon a liability created by statute, other than a penalty or forfeiture.”

The phrase, “a liability created by statute,” means a liability which would not exist but for the statute. Dietrich v. Copeland Lumber Co., 28 Idaho 312, 154 P. 626 (1916); 51 Am.Jur.2d Limitation of Actions § 82 (1970); 54 C.J.S. Limitations of Actions § 83 (1948). Madison County’s liability would not exist but for I.C. § 40-801; without the statute the county has no duty to pay over road and bridge taxes to the cities. Madison County’s duty is purely a creature of statute.

The facts of this case reveal the following: (1) a statutory duty exists — it is not based in common law, contract, or in any other theory of law; (2) that duty requires Madison County to properly apportion taxes collected;¹ and (3) since 1913 Idaho statutes have required those tax moneys to be paid over to the cities at a specific date, a date certain.²

Since I.C. § 40-801 imposes a duty, and since I.C. § 63-2104 specifies a date certain for performance, liability attaches upon non-performance of the duty. Nothing more is needed.³ Madison County’s liability is one “created by statute,” (specifically 1.C. §§ 40-801 and 63-2104) and the statute of limitations commenced to run when the required duty was not performed. The reason for nonperformance matters not — all that must be proved is that the county failed to properly apportion and pay over road taxes on the dates certain. In the case at bar, these elements of the cause of action have explicitly been admitted.⁴

The cities rely heavily on two cases, Independent School Dist. No. 1 v. Common School Dist. No. 1, 56 Idaho 426, 55 P.2d 144 (1936), and Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1937). The cities contend that the factual settings of these cases are similar to the instant action, yet no “liability created by statute” was found. These two cases are clearly distinguishable, however. In Independent School Dist. No. 1, the county superintendant made a mistake in apportioning school funds among several school districts. The shorted school districts sued the districts which had received too much. The legal distinction is that there was no statute requiring one district to pay excess taxes to the other. The only basis for recovery was under the traditional law of restitution. There could have been no “liability created by statute” because there was, in the first instance, no statute.

Cruzen is also clearly distinguishable because it involved an action for breach of trust, rather than a statutory obligation. Cruzen was an action by a bondholder against the city to recover on local improvement district bonds. Boise City had no general or statutory liability on the bonds. The city clerk had embezzled the special assessments. The plaintiffs in Cruzen could not sue the city for violation of statute because there was no statute imposing liability; they could only resort to contract and trust theories. Again, there was no statute upon which liability could be based.

In the present case the plaintiff cities’ claims are based on the taxing statutes, I.C. §§ 40-801 and 63-2104, and thus the claim involves “a liability created by statute.” This being so, the three-year statute of limitations contained in I.C. § 5-218(1) has run as a matter of law. While other issues have been raised, the foregoing decision is dispositive of them all. The district court was correct and its grant of summary judgment in favor of Madison County is affirmed. Costs to respondents. No attorney fees on appeal.

SHEPARD, C.J., and HUNTLEY, J., concur. DONALDSON, J., sat, but died prior to the issuance of this opinion.

1 . “40-801. Authority and procedure for levies. — (1) The commissioners of a county highway system, the commissioners of a countywide highway district, and the commissioners of highway districts are empowered, for the purpose of construction and maintenance of highways and bridges under their respective jurisdictions, to make the following highway ad valo-rem tax levies as applied to the market value for assessment purposes within their districts:

“(a) Two-tenths per cent (0.2%) of market value for assessment purposes for construction and maintenance of highways and bridges; provided that if the levy is made upon property within the limits of any incorporated city, fifty per cent (50%) of the funds shall be apportioned to that incorporated city.”

2 . "63-2104. Settlement by county auditor with municipalities. — The county auditor must, on the second Monday of each month, transmit to the clerk of every incorporated city, every school district, and every other taxing district having a treasurer whose duty it is to receive, keep and disburse all moneys belonging to it, an order on the county treasurer, prepared upon blanks in the form supplied by the state tax commission, in favor of the treasurer of such incorporated city, or school district or other taxing district on or after the second Monday of the preceding month; provided, however, that in the months of July and January the money may be transmitted no later than the 25th of the month....”

3 . That liability attaches upon nonperformance of the prescribed duty, without more, is further evidenced by I.C. § 40-804, which reads:

“40-804. Liability of county officials. — All county officers entrusted with the assessment, collection, paying over or custody of taxes of any highway district within the county, and their sureties, 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.” (Present Section 40-804 was formerly codified at Section 40-1643.)

The county officials' liability to properly apportion and pay over road and bridge taxes is derivative. It is derived from the primary liablity 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.

4 .Respondent’s Brief, p. 3: "There had been a decimal point error resulting in apportioning only 10 percent of what should have been. This error had originated with a prior County Auditor and had been perpetuated over the years.... It was not known that the cities should have been receiving ten times what they did receive .... ”