Cruzen v. Boise City , 58 Idaho 406 ( 1937 )

Appellant asks for a rehearing urging:

That the court erred in holding appellant liable by reason of the defalcation of the city clerk, in that such liability, since it exceeded the revenues for the year, not based on a vote of the people, violates section 3, article 8 of the constitution; citing Feil v. City of Coeur d'Alene, 23 Idaho 32,129 P. 643, 43 L.R.A., N.S., 1095, Boise City Dev. Co. v.Boise City, 26 Idaho 347, 143 P. 531, Miller v. City of Buhl,48 Idaho 668, 284 P. 843, 72 A.L.R. 682, and Williams v.City of Emmett, 51 Idaho 500, 6 P.2d 475, in support of such contention.

In limine we call attention to Grand Lodge, A. O. U. W., v.City of Bottineau, 58 N.D. 740, 227 N.W. 363 and Likes v. Cityof Rolla, 190 Mo. App. 140, 176 S.W. 520, as further supporting the city's responsibility to respondent for the funds received and embezzled by the clerk, thus lost to both appellant and respondent.

The authorities so cited by appellant did not consider, or pass upon a situation like the one at bar, and their non-applicability herein clearly appears by consideration of the conclusions in the cases below, where the bases of the actions were negligence on the part of the municipality, i. e., its officers in regard to the collection or disbursement of special funds as herein, or other negligence, and the same point urged as above. In the cases cited by appellant there was in effect voluntary action on the part of the municipality held to constitute the incurring of liability — though potential and not immediate liability — not so herein. Within the meaning of section 3, article 8 of the constitution, the city did not incur the liability herein. (Little v. City ofPortland, 26 Or. 235, 37 P. 911, 913; Morris v. City ofSheridan, 86 Or. 224, 167 P. 593; City of Long Beach v.Lisenby, 180 Cal. 52, 179 P. 198; Metropolitan Life Ins. Co.v. Deasy, 41 Cal. App. 667, 183 P. 243; Cary v. Long,181 Cal. 443, 184 P. 857; J. H. Tillman Co. v. City of Seaside,145 Or. 239, 25 P. 917; Mills v. Houck, 124 Cal. App. 1, 12 P.2d 101, concurring opinion; Intermela et al. v. Perkins, 205 Fed. 603;Ft. Dodge Elec. Light P. Co. v. City of Ft. Dodge,115 Iowa, 568, 89 N.W. 7, at 10; American Company v. City of Lakeport,220 Cal. 548, 32 P.2d 622, 626; Martin v. Fisher, 108 Cal. App. 34,291 P. 276; Barker v. State, 39 N.M. 434,49 P.2d 246; Lotts v. Board of Park Commrs., 13 Cal.App. (2d) 625, 57 P.2d 215, 221; 94 A.L.R. 837n; 44 C. J. 1135, sec. 4073.)

This court expressly recognized the above distinction (i. e., liability for negligence of the kind considered herein) inHughes v. Village of Wendell, 47 Idaho 370, 275 P. 1116, in commenting on Little v. City of Portland, supra, and Fort DodgeElec. Light P. Co. v. City of Ft. Dodge, supra, thus:

"No neglect in making the estimate or contracts, or in levying or collecting the assessments is charged or proven. . . . .

"All of the above cases are readily distinguishable from the case at bar, the same point being substantially raised in all, because in the above cases there was either no law permitting the special assessments or the city did not comply with the law or neglected some specific duty. . . . ."

Herein the city was charged with negligence.

Holding the city liable herein, therefore, does not violate the constitution.

Petition for a rehearing denied.

Holden, C. J., and Morgan, Ailshie, and Budge, JJ., concur.