Choate v. North Fork Highway Dist.

On June 27, 1922, W.H. Bertrand, W.E. Tarry and M. LeBaron were commissioners of the North Fork Highway District, Bertrand being president of the board and T.F. Edwards secretary and treasurer. At a special meeting held on June 27, 1922, Bertrand resigned as president and Tarry was elected to succeed him in that position. On July 5, 1922, on account of sickness Bertrand left the district. On September 12, 1922, being the day fixed for a regular meeting of the board, Bertrand was ill at Soap Lake, Washington, LeBaron refused to attend and the only persons present at the meeting were Tarry and Edwards. No quorum being present, the meeting was adjourned by Tarry to September 26, 1922, and at a meeting held on that date Tarry and Bertrand only were present, LeBaron again refusing to attend. The board continued in session on September 26th and 27th and levied the annual taxes for the district, certified the same to the board of county commissioners, called the annual election to be held in November, 1922, provided for the holding of such election, ordered work and improvements done on certain highways within the district, examined claims presented against the district, approved the same and ordered warrants issued to pay them. During the times heretofore mentioned E.E. McGuire was highway director of the North Fork Highway District. This action was brought to enjoin the payment of warrants ordered issued by the board in payment of certain claims allowed at the meeting on September 26th and 27th, to enjoin work on and improvement of highways within the district ordered at such meeting, to recover for the use and benefit of the highway district the amount expended in work and improvements from Tarry, Bertrand and McGuire subsequent to such meeting, and to have the office formerly held by Bertrand declared vacant since July 5, 1922. The North Fork Highway District, its board of commissioners, Tarry and LeBaron as commissioners and Edwards as secretary and treasurer, in their official capacity, Tarry, Bertrand, McGuire and Edwards as individuals, were made parties defendant. From the record it appears that Bertrand was never served with summons and inasmuch as LeBaron entered no appearance and no default was entered, it is proper to presume that he was not served. The remaining respondents appeared and answered and upon the issues thus framed the cause was tried to the court sitting without a jury. Findings of fact and conclusions of law were made and filed and judgment was entered in favor of respondents, dismissing the action. From this judgment this appeal is taken.

Appellant relies upon seven assignments of error, the first specifying "that the judgment is against the law and the evidence." Under the authority of Morton Realty Co. v. Big BendIrr. M. Co., 37 Idaho 311, 218 P. 433, this assignment is insufficient and will not be considered.

Assignment No. 7 attacks the action of the court in holding that the meeting of the board on September 26th and 27th was legal. There is no merit in this assignment. The regular meeting should have been held on the 12th of September, 1922. No quorum being present the meeting was adjourned to the 26th day of September by Commissioner Tarry, who was present, and a proper minute entry was made by the secretary adjourning the regular meeting to September 26, 1922. It is elementary that any member of a board or deliberative body, in the absence of a quorum to transact business, may adjourn the meeting to a day certain. Notice of the adjourned meeting was properly given to the absent commissioners. Therefore all business properly coming before the meeting was regularly transacted.

Assignment of error No. 4 involves the action of the court in finding and concluding that Bertrand had not ceased to be a resident of the North Fork Highway District and had not vacated his office as commissioner of such district. Waiving the question as to whether or not title to office can be inquired into in this proceeding, there is a substantial conflict in the evidence touching the question as to whether or not Bertrand remained a resident of the district after resigning as president of the board of commissioners and whether his absence from the district was temporary or permanent. The court found that his absence was merely temporary due to illness and that he had not abandoned his residence or relinquished his office. This finding of the court is fully sustained by competent evidence and will not be disturbed on appeal. (Bedal v. Smith, 36 Idaho 797,214 P. 213; Viel v. Summers, 35 Idaho 198, 209 P. 454;Salisbury v. Spofford, 22 Idaho 393, 126 P. 400; Flynn GroupMining Co. v. Murphy, 18 Idaho 266, 138 Am. St. 201, 109 P. 851; City of Pocatello v. Bass, 15 Idaho 1, 96 P. 120; Heckmanv. Espey, 12 Idaho 755, 88 P. 80; Spaulding v. Coeurd'Alene Ry. etc. Co., 5 Idaho 528, 51 P. 408.)

Assignment of error No. 5 involves the action of the court in allowing a claim presented by Tarry for $9. The claim upon its face recites that it was for "auto hire." The court found that the claim presented was for "gasoline and oil" purchased by Tarry and used in his automobile while transacting business for the district. This claim does not fall within the principle announced in the case of Sanborn v. Pentland, 35 Idaho 639,208 P. 401, as contended by appellant, and was a proper charge against the district. There is no merit in appellant's sixth assignment of error.

Assignment No. 2 involves the action of the court in allowing a claim of $12.75 in favor of Bertrand. This claim is questioned as to an item of $11.62 allowed for railroad transportation from Spokane, Washington, to Orofino, Idaho. The claim was allowed in full by the board and judgment was so awarded by the court. C. S., sec. 1514, provides that commissioners of highway districts "shall receive the amount of their actual and necessary expenses incurred in the performance of their official duties." This provision of the statute cannot be construed to mean that a commissioner may journey to a foreign state upon his own personal affairs and charge the district with his railroad transportation in returning to attend a meeting of the board and claim such allowance as his actual and necessary expenses incurred in the performance of his official duties. To hold otherwise would mean that a commissioner might journey to a foreign land in his own interest or on pleasure bent and charge the district with his transportation in returning to attend a meeting of the board. Under the facts of this case this claim for railroad fare is not a legal charge against the district in any amount in excess of the fare from any point within the district and the judgment should be modified accordingly. There is a suggestion made in appellant's brief with reference to a claim ordered paid at a meeting subsequent to September 26, 1922, but no judgment therefor was awarded in this action and the same is not before us.

Under the last-mentioned assignment of error it is also urged that all of the claims of Tarry allowed at the meeting of September 26th and 27th are illegal, we presume upon the theory that the meetings held on those dates were illegal and none of the claims were properly allowed. This question we have already disposed of.

Assignment No. 3 is as follows:

"The claims of Mr. McGuire, so far as considered salary, should be perpetually enjoined."

Just what is meant by this assignment is difficult to determine. The objection to the payment of McGuire's salary and expenses would seem to be based upon the theory that his appointment had not been properly made by the board and that he had not qualified as required by C. S., sec. 1520. However, the court found that McGuire was at all times mentioned in the complaint the acting highway director of the district and performed labor for its benefit in the matter of supervising and constructing roads within the district at the request of the commissioners; that he made his monthly reports as required by statute which were duly approved and that the district received full value for his salary and expenses; that warrants allowed to cover such salary and expenses were valid and a legal charge against the district. There is no evidence in the record that he failed to comply with the provisions of the statute. Waiving the question as to whether his right to hold office can be raised in a proceeding of this nature, we find there is ample competent evidence to sustain the finding and judgment of the court in this respect.

The cause is therefore remanded to the trial court with instructions to modify the judgment as herein suggested, and when such modification is made the judgment will be affirmed. Costs are awarded to respondents.

McCarthy, C.J., and William A. Lee, J., and Johnson, District Judge, concur.