Waitz v. Ormsby County , 1865 Nev. LEXIS 53 ( 1865 )

Opinion by

Lewis, C. J.,

full Bench concurring.

It is shown by the complaint in this action that on the 22 d day of June, A. D. 1883, the County of Ormsby became indebted to one John Wagner in the sum of five hundred dollars ; that such indebtedness was contracted in the manner following, viz: On the 22d day of June, A. D. 1863, the said Wagner, at the special instance and request of the Board of County Commissioners of the County of Ormsby, paid to the said county for its use and benefit the sum of five hundred dollars in United States gold coin; that the same was, by the Board of Commissioners of the county, appropriated to its use and benefit — that is, expended in removing certain paupers from the county; that to secure the payment of the money so paid, the County Commissioners caused to be issued and delivered to John Wagner, a warrant on the Treasurer of the county, directing him to pay to John Wagner the sum of fifteen hundred dollars from the General Fund of the county. It also appears by indorsement on the back of the warrant, that it was understood and agreed by and between "Wagner and the Board of County Commissioners, that it should be held merely as collateral security for the payment of the five hundred dollars claimed to be due, with five per cent, per month interest thereon, which was to be paid on or before the 22d day of June, A. D. 1864. It is also alleged that -the plaintiff, before the bringing of this action, became the owner and holder oí the claim of five hundred dollars, and also of the warrant of fifteen hundred dollars, and that the sum of five hundred dollars with interest at the rate of five per cent, per month from the 22d day of June, A. D. 1863, is now due him from defendant.

Plaintiff prays judgment for the amount of his claim, and a decree authorizing the sale of the fifteen hundred dollar warrant to satisfy the same.

To this complaint the defendant demurs, assigning as grounds — first, that the Court has no jurisdiction of the subject matter of said action, in this, that no action can be brought or maintained against a county upon an indebtedness of the same, but the creditor must resort to the officers of said county to have his account audited and allowed; second, the Court has no jurisdiction of the party defendant in this action, because no action can be maintained against a county upon an indebtedness of the same; third, the complaint shows upon its face that the obligation upon which the action is founded, is one which the Board of County Commissioners had no power to contract, and that they had no authority in law to issue the warrant set out in the complaint for the purpose therein alleged.

Upon this demurrer it is urged on behalf of the defendant, that this action cannot be maintained against the county, even if the debt had been properly contracted; that the proper remedy is by appeal from the decision of the County Commissioners. The 23d section of the Act of 1861, creating Boards of County Commissioners, and defining their duties, declares that “ any person may appeal from the decision of the Board of Commissioners to the next term of the District Court of the same county;” but there was no law requiring a person holding an account against a county, to present it to the Board for allowance until the law of 1865. And whilst the section referred to may have authorized an appeal from the action of the Board of Commissioners disallowing an account, it certainly does not take away other* modes of proceeding provided by statute. It is not unusual to permit several modes of proceeding to obtain the same remedy, leaving it optional with the person seeking it to select either.' In this case, the mere provision that a “ person may appeal,” is not sufficient to authorize this Court in holding that the’only remedy against a county is to present the account, and if it is rejected, to appeal to the District Court.- It would seem more proper to hold that that course may be pursued, or any other provided by law, as persons choose.

It must be clear to all that if a certain mode of proceeding is provided by the statute, section twenty-three, giving another remedy, would not repeal or conflict with it, but both would stand together.

Is there then any law authorizing an action against a county upon an account ? Section 1 of an “ Act prescribing the manner of commencing or maintaining actions by or against counties,” passed in 1861, provides that “ actions against a county may be commenced in the District Court of the judicial district embracing said county.”

Counsel for defendant contend that this law merely declares where actions against a county may be commenced, and does not authorize any action to be instituted against them, other than those which could have been maintained before the passage of the law.

Though this law is not very artificially framed, it seems to have been the intention of the Legislature to authorize the bringing of actions generally against counties.

And whatever construction this Court, untrammeled by decisions, would feel disposed to place upon it, the decisions in California upon the same law leave no opportunity for construction. It has been repeatedly held by the Courts of that State that this law gave the right to bring actions against counties. (Gilman v. The County of Contra Costa, 6 Cal. 676; 8 Cal. 52.)

It is further claimed that the Commissioners had no power to contract the debt upon which this action is founded. Of this there can scarcely be a doubt. The statute expressly enumerates the powers of County Commissioners; that of borrowing money is nowhere conferred upon them; and that such officers can have no powers except those expressly granted by the Legislature, is too well established to admit of question now. And the issuance of a county warrant as collateral security was as unauthorized as the borrowing of the five hundred dollars, and is therefore utterly void.

But it does not follow that because the Commissioners had no right to borrow money that the plaintiff cannot recover the five hundred dollars advanced for the benefit of the county.

Though the contract between Wagner and the County Commissioners was null and void, and would not authorize a recovery upon it, yet if the plaintiff shows that the five hundred dollars advanced by his assignor was expended for the benefit of the county, and in a manner authorized by law, he may recover upon a count for money had and received. (2 Greenleaf on Evidence, sec. 117.)

The author says: “ The count for money had and received, which in its spirit and objects has been likened to a bill in equity, may in general be proved by any legal evidence, showing that the defendant has received or obtained possession of the money of the plaintiff, which in equity and good conscience he ought to pay over to the plaintiff.”

This proposition is well settled and seems to cover this case. If the money loaned by Wagner was expended in the execution of an act which it is made the duty of the Commissioners to perform, and the county has received the benefit of it, it is legally bound to pay the money so appropriated to its benefit with legal interest thereon.

But nothing can be recovered which it was not shown was expended for the use and benefit of the county, and for some purpose authorized by law. No execution can, however, be issued against the county, but the judgment, if obtained, must be presented to the Board of Commissioners as provided by the law of 1865.

Judgment of the Court below reversed, and ca\ise remanded.