City of Bismarck v. Burleigh County

| N.D. | Nov 22, 1922

RobiksoN, J.

This is an appeal from a judgment and order overruling a demurrer to the complaint. The complaint shows that in August, 1921 defendant presented to the city a claim for $1348.80, being 25 per cent of mothers’ pensions paid by the county to nineteen different mothers during the years 1919 and 1920, which claim the city paid to the county. The complaint shows that the claim was presented by the county in good faith under the belief that the city was legally liable for the same under the statute, § 2508. The statute is 'that in certain cases the township where a pauper has a legal residence shall pay for the expenses of his care, 25 per cent, and the county shall pay 75 per cent; but, as held by this court, the statute does in no manner relate to allowances made under the mothers’ pension act; Pierce County v. Rugby, 47 N. D. 301, 181 N. W. 954.

However, the claim was presented in good faith and it was paid under a mistake of tbe law, each party believing that the city was liable for the same. The payment was made under a misapprehension of the law by all parties, all supposing that they knew and understood it and all making substantially the same mistake as to the law. Hence, under the statute it was not a free and voluntary payment. Section 5855. The city was under no legal or moral obligation to make the payment and its officers had no legal or moral right to donate or give away the money of the city. The mothers’ pension is allowed by the county judge and is a charge against the county only. Hence the judgment is clearly right and is affirmed. .

BiRnzEim, Ch. J., and ChbistiaNsoN, Guace and BkoNSON, JJ., concur.