Lead Opinion
This action was brought by Blaine county against Butte county to recover a sum of money claimed by the former county to be due and owing to it under and by virtue of an act of the legislature creating Butte cоunty.
The complaint was filed November 14, 1925, and contains substantially the following allegations: That pursuant to the terms of the legislative enactment creating and organiz *195 ing the county of Butte, au adjustment and sеttlement was made between the plaintiff and the defendant; and that pursuant to the further terms of said legislative act, accountants were appointed to agree upon and adjust all of thе existing accounts between the said two counties, and that the said accountants filed their report on August 13, 1917; that it was determined by the said accountants that the defendant was indebted to the plaintiff in thе sum of $1,570.11, as the defendant’s proportionate share of the cost of construction of two bridges, which sum, prior to that time, had been paid by the plaintiff; that on February 17, 1925, the plaintiff demanded of the defendаnt the payment of said sum and the defendant refused to pay the same.
The defendant interposed a demurrer to the complaint on the ground, principally, that the action was barred by the prоvisions of C. S., sec. 6611. The demurrer was sustained ■by the court, in so far as it raised the bar of the statute of limitations, and the plaintiff was given twenty days in which to amend its complaint, and having failed to do so within the time allowed by the court, and refusing so to do, on February 20, 1926, judgment of dismissal was entered. This appeal is from the judgment of dismissal.
Appellant assigns as error the order of the court sustaining the demurrer and in entering the judgment оf dismissal.
By an act of the legislature, approved February 6, 1917, Butte county was created and formed out of portions of the territory of Blaine, Jefferson and Bingham counties. For the purpose of effecting the apportionment of indebtedness and division of property between Butte eounty and Blaine county, said act provided for the appointment of an accountant by eаch of said counties, to constitute. a board' of auditors and appraisers, with power and authority to make a complete apportionment and settlement with reference to thе indebtedness and division of property of said counties, with their conclusions as to the amounts due from one county to the other upon such settlement, and providing that, upon the filing with the clerk of the board of county commissioners of each of said counties a duplicate certified *196 copy of such statement, the same should be final and binding upon both and each of said counties. (Sess. Lаws 1917, chap. 98, p. 350, sec. 15.)
The act also provided that the board of county commissioners of the debtor county, at their first meeting after the filing of such statement and report, should cause county wаrrants to be drawn by the auditor of the county for the amount so due, payable to the creditor county. Sec. 16 of the act, supra.
C. S'., sec. 6607, provides:
“The periods prescribed for the commencement of actiоns other than for the recovery of real property are as follows.”
And C. S., sec. 6611, provides:
“Within three years: 1. An action upon a liability created by statute other than a penalty or forfeiture.....”
C. S., see. 6618, provides:
“The limitations prеscribed in this chapter apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties. ’ ’
C. S., sec. 3411, provides:
“The regular meetings of the bоards of commissioners must be held at their respective county seats on the second Mondays in January, April, July and October of each year, and must continue from time to time until all the business before them is disposed of.....”
The contention of appellant is that the statute of limitations has no application, does not run as to a claim of one county against another, and, in any event, in this case, it would not begin to run until demand for the payment of the money had been made by Blaine county.
The legislature, at the time of the enactment of C. S., see. 6618, making the statute of limitations applicablе to the state, evidently had in mind and recognized the common-law rule exempting the government from such limitations, and meant and intended to provide a limitation for every kind of an action that could be brought in the courts of the state, and passed the same for the express purpose
*197
of making the statutory limitation apply with equal force to actions brought by the state in its sovereign and proрrietary capacity as well as to those brought by private parties; and being applicable to the state, it is applicable to the counties of the state.
(Bannock County v. Bell,
In
Canyon County v. Ada County,
By the provisions of the act creating Butte county, as hereinbefore cited, the amount found due from that county to Blaine county by the accountants was a final dеtermination of the matter, and upon the filing of the report of the accountants, August 13, 1917, the same became a fixed and definite liability of Butte county; and by the provisions of the act the board of сounty commissioners of the debtor county were expressly directed to pay the same by the issuance of a warrant at the next regular meeting of the board thereafter, which was in October, 1917.
Village of Mountain Home v. Elmore County,
The trial сourt did not err in sustaining the respondent’s demurrer to the complaint, or in dismissing the action.
We recommend that the judgment be affirmed.
The foregoing is approved as the opinion of the court, and the judgment is affirmed. Costs to respondent.
Concurrence Opinion
Concurring Specially. — By an act of the legislature (Sess. Laws 1917, chap. 98, p. 344), Butte county was created out of portions of Blaine, Jefferson and Bingham cоunties. For the purpose of affecting an apportionment of indebtedness and division of property between the two counties of Butte and Blaine, the act provided for the appоintment of competent accountants, whose report and conclusions as to the amounts due from one county to the other should be final and binding upon both and each of said counties оf Butte and Blaine. Section 16 of the act, provides, inter alia;
“For whatever amount .... found to be due from either of said counties to Butte County, or vice versa, upon the apportionment of the public funds and propеrty made by said accountants as hereinbefore provided, the boards of county commissioners of the debtor counties shall at their *199 first regular meeting after the filing of the said statement and repоrt cause county warrants to be drawn by the auditors of such counties, respectively, for the amounts so due, payable to the creditor counties, respectively .... ”
The accountants aрpointed found, and so certified, that Butte county was indebted to Blaine county in the sum of $1,570.11; and, under the act above referred to, the duty then rested upon the commissioners of Butte county, at their first regular meeting thereafter, to direct the auditor of said county to draw a warrant in payment of the amount so found to be due.
This is not an action to determine what, if any, amount of indebtedness is due. No cоntroversy could arise over the amount due, or when due, or how payable. Under the act the accountants were authorized to fix the amount or amounts due from one county to the other, thеir apportionment and report thereon to be final and binding, and it became the duty of the board of county commissioners of Butte county at their first regular meeting after the filing of the accountаnts’ report to cause a warrant to be drawn for the amount found to be due to Blaine county. The board of county commissioners of Butte county having refused to direct that the warrant be drawn, the аction should, therefore, be one in
mandamus
to compel the performance of that plain ministerial duty.
(Blaine County v. Smith,
In my opinion, the complaint fails to state a cause of action, and the demurrer should have been sustained on that ground.