43 P. 71 | Idaho | 1895
(After Stating the Facts.) — The appellant contends that, the bills having been presented and paid by the board of county commissioners, and no appeal taken, the payment was voluntary, and cannot be recovered back. The appellant also contends that an appeal from the action of the board was the only remedy, and cites Picotte v. Watt, 3 Idaho, 447, 31 Pac. 805. In that case application was made for an injunction to restrain the payment of certain warrants ordered issued by the board of county commissioners. The court holds that there was a complete and adequate remedy at law, and in such case equity cannot be invoked. The same is held by this court in Morgan v. Board, ante, p. 418, 39 Pac. 1118; Rogers v. Hayes, 3 Idaho, 597, 32 Pac. 259; Clark v. Dayton, 6 Neb. 192. The last-named ease was also a suit in equity. The court did not hold that appeal from the action of the board of county commissioners was the only remedy, as such a decision would be in the face of the statute (Idaho Rev. Stats., see. 1780), which provides that a claimant dissatisfied with the rejection of his demand may sue the county therefor at any time within six months. In Meller v. Board, ante, p. 44, 35 Pac. 712, the court simply holds that all orders of the board of county commissioners are appealable under section 1776, and does not hold that the county may not sue to recover money illegally paid. Davis v. Commissioners, 4 Mont. 292, 1 Pac. 750, also cited, does not sustain the contention of appellant. The decision of the court in Brown v. Otoe Co., 6 Neb. 111, was rendered
As the county is a municipal corporation, it may sue and be sued, and we know of no limitation as to time, except that provided in the general limitation laws of the state. We are told, however, that money paid through a mistake of law is a voluntary payment, and cannot be recovered back; and we are cited to the case of Badeau v. United States, 130 U. S. 439, 9 Sup. Ct. Rep. 579, as sustaining that doctrine, but it does not do so. Chief Justice Fuller, in that ease, did not place his decision on the ground that money paid by one officer of the government to another officer is a voluntary payment that cannot be recovered back, but upon the ground that the claimant, although retired, was still an officer of the army de facto, if not de jure, and for that reason he was entitled to the money received, and it could not be recovered back, and ex aequo et bono should not be returned. Some of the authorities cited, however, seem to sustain the contention of the appellant, and some authorities go so far as to hold that payments of the money of the public by its authorized agent to an officer on account of a mistake of law cannot be recovered back. The doctrine is so repugnant to every principle of justice and common honesty that the latter cases do not, by their reasoning, commend themselves to this court. We cannot consent to carry the doctrine beyond settlements between private individuals. Therefore we must hold that payments made by the county commissioners to public officers, which are positively and absolutely forbidden by the statutes of the state and by the constitution thereof, may be recov