Lincoln County v. Twin Falls North Side Land & Water Co. , 23 Idaho 433 ( 1913 )

AILSHIE, C. J.

— This action was brought by the county of Lincoln against appellant for the purpose of recovering the sum of $9,336.35, together with interest thereon, alleged to be due as a balance for fees foj* recording certain instruments designated as water contracts. The case was heard on a stipulation of facts and judgment entered in favor of the county and against appellant.

The appellant is a corporation organized under the laws of the state of Delaware, and has complied with the laws of this state and is doing business in this state as an irrigation company. It is admitted that the county recorder recorded instruments for appellant, as alleged in the complaint, and that the balance due for fees, if charged at the rate of twenty cents per folio, as prescribed by the statute, for both the written and printed words thereon, would amount to the sum claimed, namely, $9,336.35. The appellant sought to defend and avoid liability upon the following grounds: That the appellant was engaged in the construction of what is known as a Carey Act project in Lincoln county in this state, and that after completing full negotiations with the state board of land commissioners, the company entered into negotiations with the board of commissioners of Lincoln county and proposed that the company would furnish printed record books to the county free, and that the county recorder should in turn charge appellant a flat rate of seventy-five cents per instrument recorded; that the county commissioners favored the proposition submitted to the county and consented to the recorder’s making such an arrangement, and that the county recorder accordingly entered into the agreement, and the company supplied the recorder with necessary blank books, containing printed pages corresponding with the printed forms of water right contracts the company had prepared for its use, and that all that was left for the recorder to do was to fill in the written part which the company might write into the blank form of its contracts-. It also appears that the sum of seventy-five cents per instrument was ample and sufficient to pay the regular folio charge for the number of words which were actually written into these instruments as printed in the record book furnished by the company and which it was necessary for the recorder or his clerks to transcribe into the record books.

This state of facts presents the question as to whether the county officers could fix upon a different rate, or charge any less fee for recording an instrument than that prescribed by statute. See. 2124 of the Rev. Codes, which contains the schedule of fees to be charged and collected by the county recorder, provides, inter alia, as follows: “The county auditor and recorder is allowed, and may receive for his services, the following fees, to be paid him by the party procuring his services as recorder: .... for recording every instrument, paper or notice, for each folio, twenty centsSec. 7 of art. 18 of the constitution (sixth amendment to the state constitution) provides that all county officers shall receive fixed annual salaries, and that all fees received by siich officers over and above their actual and necessary expenses allowed by law, shall be turned into the county treasury.

The only question to be determined on this appeal is one of law. It was the duty of the county recorder to duly record the contracts and instruments which he did record, designated as water contracts. Whether the record was written with a. pen, a typewriter, or printed, made no difference so long as. it was a true and correct copy and record of the instrument presented. To record an instrument means to transcribe it, repeat it, or recite it in a book of record kept for the purpose of perpetuating the terms and recitals contained in the-instrument or document so recorded. (Anderson’s Law Dictionary; Montgomery Beer-Bottling Works v. Gaston, 126 Ala. 425, 85 Am. St. 42, 28 So. 497, 51 L. R. A. 396; Cady v. Purser, 131 Cal. 552, 82 Am. St. 391, 63 Pac. 844; 34 Cyc. 585.) Whether the recorder had a printed copy of the greater portion of the instrument in his record book and filled in the written portion or transcribed the whole document is immaterial, for the reason that it was necessary for him to verify the same and satisfy himself that his record was a true and literal copy of the instrument presented for record, and he must verify the same and satisfy himself before he can so certify.

The fee of twenty cents per folio is an arbitrary fee established by the legislature. In most cases it more than pays for the service performed, and the county makes a profit out of the business. In other cases, it might not pay for the service performed. If a county only had a very small amount of recording to do and still had to employ a clerk or deputy at a regular salary to do such work, the fees collected for recording might not be sufficient to pay for the service and the county might lose. Upon the other hand, where there is a great deal of this work to do, the county can hire clerks, for a great deal less than twenty cents per folio and thereby make a profit out of the business. Indeed, the auditor might procure record books containing printed forms of deeds,, mortgages and other instruments, and he might likewise procure blank deeds and mortgages and other instruments printed to conform to his record books, and supply these blanks to the people generally doing business with his office, and thereby save a large amount of the work of his office in transcribing or recording such instruments. No one could complain of such a course. On the other hand, the person presenting such an instrument for record would be obliged to pay the full folio charge for recording the instrument, and it would be no injury or damage to him that the recorder already had a printed record book which saved him the larger part of the work of transcribing the instrument. Suppose, on the other hand, people doing business with the office were allowed to get record books printed and furnish them to the recorder, as was done in this case, and then pay fees for transcribing only the written part of their conveyances, such a practice would prove demoralizing to the business of the recorder’s office. If one man or one corporation has the right to do this, every other individual or corporation has the like right. This practice would result in every real estate firm in the county getting up a record book of its own and a blank form of deed, mortgage, or other conveyance, to correspond with the record, and every firm would have its own record boob. The mere statement of this proposition is sufficient to show that it is contrary to law and could not be allowed or tolerated.

It has been argued, however, that the county commissioners considered this proposition, and approved the same and entered into an agreement, and that the county is thereby es-topped from attempting now to collect a greater sum than that agreed upon. This contention cannot be sustained, for the reason that neither a county officer nor anyone else has a right to set aside or ignore a statute or to change the fees prescribed by a statute that shall be charged for any given public service. The statute is plain, and both the commissioners and the irrigation company had full notice of its provisions. Any contract which ran counter to the statute was clearly void.. Neither can the fact that the commissioners subsequently accepted and approved the recorder’s report and settled with him upon the basis of the former agreement entered into with the water company avail the company here or relieve it from payment of the balance due on account of the recording of such instruments. (McNutt v. Lemhi County, 12 Ida. 63, 84 Pac. 1054.) The fact that the board of commissioners have certain powers with reference to the settlement of claims against the county and compromising and adjusting accounts does not extend to the changing of fees and salaries fixed by statute.

A brief has been filed in this case by M. J. Sweeley, an attorney of this court, as amicus curiae, in which it is suggested that the county cannot maintain this action, that such fees must be paid to and collected by the county recorder, and that the county can only look to the officer and his bondsmen for the same. We have no doubt but that the county recorder could have maintained his action for the recovery of these fees. We are equally well satisfied, on the other hand, that the county itself has such an interest in these fees as to be able to maintain its action for the recovery of the same, and this is especially true where, in a case like this, the county has already settled with the county recorder, and he has presumably already retained out of fees in his hands his actual expenses as authorized by the constitution. After settlement has been made with the recorder, he may have no further interest in the fees, unless the county charges them up against him. On the other hand, the county is directly interested. It may pursue the officer and his bondsmen, or it may pursue directly the party who had the service performed.

Finally, it is argued that a part of this claim is barred by the provisions of subd. 1, sec. 4054, Rev. Codes. That statute provides, “An action upon a liability created by statute, other than a penalty or forfeiture,” shall be commenced within three years after the cause of action accrued. We cannot agree that this is the kind of an action contemplated by subd. 1, sec. 4054. This cause of action was not created by statute. On the contrary, we think it is governed by the provisions of see. 4053, which provides that, “An action upon a contract, obligation, or liability not founded upon an instrument of writing,” shall be commenced within four years from the accrual thereof. This is clearly an action upon contract. It will be necessary, therefore, to remand the cause, with direction to the trial court to eliminate all items where the service was performed more than four years prior to the date of the commencement of this action and to enter a judgment accordingly.

The contention made by respondent that this is an open and current account within the purview and meaning of section 4058, and that the statute only runs from the date of the last item appearing in the account, is not sound and cannot be sustained. Neither the recorder nor the county had any right to extend credit to the appellant, and there were no “reciprocal demands” in this ease within the purview and meaning of sec. 4058. It appears that the irrigation company furnished the blank forms of record books used-by the county in recording these instruments, and it should now be allowed a credit in an amount equal to the sum it would have cost the county to get these or similar records.

We find no error in the record except as to the amount of the judgment entered. The judgment will therefore be affirmed except as to the amount thereof, and the cause is hereby remanded, with direction to the trial court to ascertain the amount to be credited on account of the books furnished and the amount barred by the statute of limitations, and to enter an amended judgment for such an amount as he finds has accrued within four years immediately preceding the filing of the complaint, less the proper credit for record books as herein suggested. Costs of this appeal will be divided equally between appellant and respondent.

Stewart, J\, concurs.