Johnson v. Young , 53 Idaho 271 ( 1932 )

On November 8, 1926, Power County, through its acting Board of Commissioners, W.F. Young, Frank R. Meadows and T.B. Evans, respondents herein, entered into a contract with one A. Humphrey, trustee, whereby the board employed said trustee "to perform certain services" on behalf of the county "and other persons and corporations." Claiming that he was a taxpayer of the county, appellant, Chas. Johnson, appealed from the order directing such contract, charging that the order and contract were "illegal" and "prejudicial to the public interest." The district court dismissed the action, holding that appellant had failed to show himself a taxpayer. On appeal, this court held that, upon the record, he had "sufficiently established his status as taxpayer," reversed the order of dismissal and ordered the case reinstated. (Johnson v. Young, 49 Idaho 267,287 P. 688.) It was tried anew before another judge, who rendered a decision adverse to appellant upon both the merits and failure to show himself a taxpayer. From that judgment he has appealed, assigning 13 specifications of error.

The court found that there was no evidence submitted either that appellant was a taxpayer of Power County or that the appeal had been brought to protect the public interest. It, therefore, concluded that appellant was not a taxpayer and that the appeal had not been prosecuted in the public interest. From other facts found it concluded that "It was within the power and authority of said county board to make the order and execute the contract in question."

Primarily, appellant attacks the first finding and conclusion upon two grounds, insisting that "an appellant is deemed to be a taxpayer and the burden of proof is on the respondent to prove that he was not," and that the evidence showed him to have been adjudicated a taxpayer of Power County. C. S., sec. 3509, provides that an appeal from the board's action can be taken only by "any person aggrieved thereby or by any taxpayer of the county," when he deems the board's action illegal or prejudicial to the public interests. In his denominated "Petition and Notice of Appeal," appellant after reciting: "Comes now the above named plaintiff and appellant and alleges," specifically based his right of appeal upon the propositions that he was a taxpayer of Power County and that the appeal was brought to protect the public interest. Apriori, the court was wholly without jurisdiction to award him any relief until it became satisfied that the two prerequisites of the statute existed. Without having heard a word of evidence thereon, how could the court "deem" him to be a taxpayer any more than it could "deem" his appeal to have been taken to protect the public interest? If the court could coolly assume such facts and proceed to judgment upon that assumption only, any Tom, Dick or Harry could prosecute an appeal from the board's action, in contempt of a statute plainly excluding them. The evidence appellant depends upon is exhibit 6, a certified copy of the opinion in Johnson v. Young, supra, where the court upon the facts before it, declared appellant at that time a taxpayer and held respondents obligated only to produce evidence "to make aprima facie case"; in other words, to establish the legal righteousness of their own cause, not to prove appellant's incapacity to function as party appellant. Furthermore, the evidence upon which the claimed adjudication rested was not before the judge who tried this case. The cause previously dismissed by Judge Adair was, by this court, ordered reinstated, and an entirely new trial had before Judge Brinck who had before him only such evidence as the parties saw fit to present. "Evidence taken and filed on the former trial is not a part of the evidence on the new trial, and cannot be considered, unless it is so provided by statute." (46 C. J. 463.) Especially is this true when another judge tries the case: the necessity of introducing such evidence cannot be obviated by substituting therefor a certified copy of a former opinion based upon it. What might have been the facts adduced at the first trial in 1927 could not be considered by the trial of facts submitted as existent in 1930. And being concerned only with the status of appellant, as determined by the facts adduced at the trial of 1930, we can do none other than hold what is obvious, an utter failure on the part of appellant to establish his qualifications as a party litigant.

Judgment affirmed; costs to respondents.

Givens and Varian, JJ., concur.

Budge and Leeper, JJ., took no part in the decision.

ON PETITION FOR REHEARING. (June 17, 1933.)