Citation Numbers: 13 Idaho 34, 88 P. 829
Judges: Ailshie, Stoekslager, Sullivan
Filed Date: 1/5/1907
Status: Precedential
Modified Date: 1/2/2022
This action, was brought to recover from the defendant Steers and his surety, the Fidelity and Deposit Company, the sum of $4,610, which, it is alleged in the complaint, represents a number of items of license money collected for liquor licenses by the defendant as sheriff of Bingham county, which he neglected and refused to pay into the county treasury. The defendant Steers admits in his answer that there was paid to him by divers persons, who were desirous of engaging in the retail and wholesale liquor business within Bingham county, the sum of $4,610, the sum for which this action is brought.
The appellant assigns numerous errors, all of which go to the admission of certain evidence, the refusal to strike out certain testimony, and the giving and refusal to give certain instructions. It appears from the evidence that the sheriff had received from divers persons money for liquor licenses to the amount of $4,610. It is shown by stipulation of counsel that four persons paying $1,404 of such money were not granted any licenses, and that no one of said four persons ever produced before the board of county commissioners any sheriff’s receipt showing payment to the defendant Steers, or that any one of said four persons produced any bond or made an ap
It is first contended by counsel for appellant that it was error for the court to peremptorily instruct the jury to find for the plaintiff in the sum of $4,610, that being the sum the sheriff had received from divers persons for liquor licenses. That point involves the question whether the appellant, as surety on the sheriff’s bond, is liable to the county for money paid to him during the term of his office by persons to procure liquor licenses, but who, as a matter of fact, did not make formal application therefor, or furnish the proper bond required by law.
In order to determine that contention we must take into consideration sections 1537 and 1639 of the Revised Statutes, which sections are as follows: “Sec. 1637. Against any person required to take out a license who fails, neglects or refuses to take out such license, or who carries on, or attempts to carry on, business without such license, the collector may direct suit in the name of the state of Idaho as plaintiff, to be brought for the' recovery of a license tax, and in such case either the collector or district attorney may make the necessary affidavit for, and a writ of attachment may issue without any bonds being given on behalf of the plaintiff; and in case of a recovery by the plaintiff, twenty dollars damages must be included in the judgment and costs to be collected from the defendant, and when collected, five dollars thereof must be paid to the collector and fifteen dollars to the district attorney prosecuting the suit.....Sec. 1639. Upon the trial of any action authorized by this chapter, the defendant is deemed not to have procured the proper license unless he either produces it or proves that he did procure it; but he‘may plead in bar of the action a recovery against him and the payment by
Under the law a license must be procured before the commencement of any business or occupation liable to pay a license tax, and as provided by section 1637, if any person commences a business or occupation liable to pay a license tax, and fails, neglects or refuses to procure such license, the collector may direct suit to be brought in the name of the state for the recovery of such license tax. Section 1639 provides that upon the trial in such action the defendant is deemed not to have procured a proper license unless he either produces it or proves that he has procured it, and may also plead in bar of an action a recovery against him, and the payment by him in a civil action of the proper license tax together with damages arid costs.
It will be observed from the provisions of said section 1637 that any person required to take out a license to engage in a certain business, who fails, neglects or refuses to take out such license and commences to carry on such business without such license, is liable for such license tax. That being true, the very moment that a person begins such business he is liable under the law for a license tax, and the county is entitled to receive the same. Therefore, where a person pays such tax to the sheriff and takes his receipt therefor, and thereafter begins the business' without making application to the board of county commissioners for a license and presenting to them the proper bond, the money so paid to the sheriff belongs to the county, as under the law a person beginning a business for which a license is required is liable for the license tax from the very moment he begins business, and as each and every of the persons who paid the sum of $4,610 to the sheriff thereafter engaged in the liquor business, the moneys so paid to the sheriff belonged to the county from the very moment the persons paying it commenced the liquor business. That being true, the obligation first attached to the sheriff to pay the money over to the county at the time the party paying it commenced such business.
•Eckstine lived at Rexburg, Idaho, and at that place, on November 7, 1904, wrote a check in favor of the defendant Steers and sent it by mail to him at Blackfoot, Idaho. There is no evidence in the record as to the date when the sheriff received said check, but by a stamp upon the check it is noted that it was paid November 18, 1904. The evidence shows that Eckstine engaged in the liquor business at Victor immediately upon sending the check to Steers. That being true, Bingham county became entitled to the license tax from him on the date he began business. The fact that the portion of Bingham county including the said town of Victor was thereafter attached to Fremont county makes no difference, for if that county was entitled to any portion of the tax paid by Eckstine it could make its proper claim against Bingham county therefor. The part so annexed was a part of Bingham county at the time said license tax was paid and at the time Eckstine entered upon said business, and Bingham county was entitled to receive such license tax.
Counsel for appellant contends that as there were some outstanding warrants drawn by Bingham county in favor of said sheriff amounting to $1,018.62 on account of salary and money paid out by him, the appellant should be allowed this amount as a setoff against the demands of Bingham county in this action. The facts are that the defendant Steers presented to the board of county commissioners of said county his verified
Under the evidence we do not think it was error for the court to instruct the jury to bring in a verdict for the plaintiff as was done in this case. After a careful examination of the record we are satisfied that no error was committed by the trial court, and that the judgment must be sustained, and it is so ordered. Costs of this appeal are awarded to the respondent.