60 P. 76 | Idaho | 1900
This is an apparent attempt on the part of the appellant to have a portion only of his quarterly statement or account as sheriff of Bingham county reviewed on appeal by the courts. The transcript in this ease is imperfect, meager, and merits severe criticism. In order to intelligently understand this cause as it comes before us, it is necessary to set forth the transcript at length. The transcript consists of twenty-five printed folios, which, after omitting title of court and of the action, is in words and figures as follows:
“Bingham County, Idaho, to D. H. Clyne, as Sheriff, Dr. “Hotel and Horse Feed.
Aug. 7. State of Idaho v. Sam Kuntz, Jr.; team feed for eight days. $ 6.00
Aug. 13. State v. Dan Hopkins; hotel and horse feed. 15.50 $ 8.75
*77 1. State v. Woodruff, on subpoena; team feed at Idaho Falls. 1.00 Sept.
Six meals, same ease. 1.50 1.50
2 State v. J. H. Jackson; two meals for officer. .50 .50 Sept.
19. State v. Hyrum Cherry; hotel at Dillon, on subpoena. 2.50 2.50 Sept.
23. State v. Hyrum Cherry; hotel at Weiser, on subpoena. 5.75 5.75 Sept.
State v. Jack Farrell; hotel at Weiser. 3.25 3.25
Civil Business.
1.50 19. Mrs. A. E. Dwight v. Town of Idaho Falls; three meals and one bed.. 1.50 July
.75 20. F. J. Fowers v. Eagle Bock Water Co.: three meals. .75 July
.50 25. B. B. MeElroy v. Lillis and Crow; two meals.■. .50 Aug.
7.75 15. ¥m. S. Dillibor v. American H. P. Company; team feed and hotel expenses. 3.75 Sept.
6. Feed for team subpoenaing jurors for district court. Sept. o JO C<1
Eight meals for officer. 2.00 o o
12.00 22. First National Bank Pocatello, for Fremont Co.; hotel $6; team feed in same case in subpoenaing witnesses, $6. 6.00 Sept.
1.25 24. First National Bank of Pocatello v. C. Bunting & Co., Bankers, for Bingham County, two cases; five meals. 1.25 Sept.
.25 16. J. P. Porter v. Sam J. Bich, as president, for People’s Canal; one meal. .25 Sept.
$64.50
Meals and lodging $38.25
*78 “State of Idaho, County of Bingham.
“D. H. Clyne, being first duly sworn, deposes and says that the foregoing account is true and correct, that the services or articles therein mentioned have been furnished, and that no part of the same has been allowed or paid.
“D. H. CLYNE. •
“Subscribed and sworn to before me this fourteenth day of October, A. D. 1899.
“GEO. F. GAGON,
“Clerk.
“In and before the Board of County Commissioners of Bingham County, Idaho.
“In the Matter of the Appeal ' of D. H. CLYNE from Certain Orders Made by Said Board.
“NOTICE OF APPEAL.
“To the Board of County Commissioners of Bingham County, Idaho, and to Geo. F. Gagonj Clerk of Said Board, and to N. H. Clark, County Attorney of Bingham County, Idaho:
“You, and each of you, will please take notice that D. H. Clyne, sheriff of Bingham county, and who is the claimant upon the bill hereinafter described, hereby appeals from the order of the board of county commissioners of Bingham county, Idaho, made upon the twelfth day of October, 1899, disallowing the said bill, to the district court of the fifth judicial district of Idaho, in and for Bingham county. This appeal is taken from said order wherein the following described bill was disallowed, to wit, the bill of D. H. Clyne, filed with said board on the eleventh day of October, 1899, for the sum of $64 and 50/100 dollars. This appeal is taken on both questions of law and fact..
“Dated this second day of November, 1899.
“CLARK & HOLDEN,
“Attorneys for Appellant.,
“Filed Nov. 3, 1899.
*79 “STIPULATION.
“This cause having come on regularly to be heard before the court, sitting without a jury, whereupon it was stipulated and agreed by the counsel in open court that each, all, and every of the item of the bill in controversy in this appealy are true and. correct, and the amounts as set forth in said bill were paid for the purposes therein set forth, and that the sheriff of Bingham county, while being away from the court house on official business, serving regular process, incurred and paid for board and lodging the amounts as set forth in the said bill on file in this cause, which bill was duly presented to the board of county commissioners for their allowance, and which bill was by said board disallowed, from which action disallowing said bill the said D. H. Clyne, sheriff, appeals to this court; that the only question to be tried in this appeal is whether the board and lodging of a county officer, necessarily incurred while away from home on official business for the county, is an expense of said officer for which the county is liable.
“N. H. CLARK,
“Attorney for Bingham County.
“CLARK & HOLDEN,
“Attorneys for D. H. Clyne, Sheriff.
“Filed Dec. 5, 1899.
“FINDING AND DECREE OF COURT.
“This cause came regularly on for trial on the tenth day of November, A. D. 1899, before the court without a jury; a jury trial having been duly waived in open court by the parties; and Clark & Holden, Esqs., appearing as attorneys for plaintiff, and N. H. Clark, Esq., county attorney, for defendant; and from the evidence introduced the court finds the facts as follows, to wit:
“That the following bills and amounts are actual and necessary expenses actually incurred by D. H. Clyne, sheriff of Bing-ham county, in and about the performance of his duty as such sheriff, to wit:
State y. Dan Hopkins; hotel expenses. $ 8.75
State v. Woodruff; meals. 1.50
State v. J. H. Jackson; two meals. .50
*80 2. 50 State v. Hyrum Cherry; hotel expenses.
5.75 State y. Hyrum Cherry; hotel expenses at Weiser.
3.25 State y. Jack Farrell; hotel at Weiser.
1.5Q Mrs. E. A. Dwight y. Town of Idaho Falls; three meals and one bed.
F. J. Fowers y. Eagle Eock Water Co.; three meals.. -2 Ox
E. E. McElroy v. Lillis and Crow; two meals. OX O
3.75 Wm. S. DilHbor y. American H. P. Company; hotel expenses.. .
2.00 Subpoenaing jurors for district court; meals.
6.00 First National Bank, Pocatello, for Fremont Co.; hotel expenses.
First National Bank of Pocatello, for Bingham Co.; hotel expenses. to on
J. P. Porter y. Sam J. Eieh, one meal.. tO On
Total.$38.25
“As a conclusion of law from the foregoing facts, the court finds that plaintiff is entitled to judgment for the sum of thirty-eight and 25/100 dollars, in lawful money of the United States, and costs of suit.
“JOSEPH C. EICH,
“Judge.
“NOTICE OF APPEAL.
“You will take notice that the defendant in the above-entitled action hereby appeals to the supreme court of this state from the judgment therein made and entered in the said district court on the eleventh day of November, A. D. 1899, in favor of the plaintiff in said action and against said defendant, and from the whole thereof.
“Dated this fifth day of December, A. D. 1899.
“N. H. CLASH,
“Attorney for Bingham County.
“To the Clerk of said District Court, and Clark & Holden, Attorneys for Plaintiff.
*81 “Due service admitted this fifth day of December, 1899, of notice of appeal.
“CLARK & HOLDEN,
“Attorneys for D. H. Clyne, Sheriff.
“Filed Dec. 5th, 1899.
“CERTIFICATE.
“I, the undersigned, clerk of the fifth judicial district of said state, in and for said county, do hereby certify the foregoing to be a true copy of the judgment entered in the above-entitled action, and recorded in Judgment Book 2 of said court, at page 212. And I further certify that the foregoing papers hereunto annexed constitute the judgment-roll in said action. In witness whereof, I have hereunto set my hand and affixed the seal of said district court this eleventh day of November, A. D. 1899.
“GEO. F. GAGON,
“Clerk.
“STIPULATION.
“It is hereby stipulated and agreed by and between the counsel for the respective parties that the foregoing is a full, true, and correct copy of the judgment-roll in the above-entitled cause, and that the only questions to be determined in this appeal to the supreme court of Idaho are those stipulated and agreed upon in the district court, which stipulation is in writing, and made a part of the judgment-roll in this action.
“N. H. CLARK,
“Attorney for Bingham County.
“CLARK & HOLDEN,
“Attorneys for D. H. Clyne, Sheriff.
“Filed Jan. 6th, 1900. Geo. F. Gagon, Clerk.”
We will consider the various questions suggested by this record in their natural order:
1. It is the duty of every county officer, at the end of each quarter, to make out a complete statement, itemized, showing each item of expense incurred and each item of fees received by Inm during the quarter, verify such statement with his oath,
2. Are living expenses, such as charges for bed and board of county officials, under the statute, legal charges against the county? We think not. The statute contemplates that such expenses should be taken into consideration in fixing the salaries of county officials. (Stookey v. Board, 6 Idaho, 542, 57 Pac. 312; Reynolds v. Board, 6 Idaho, 787, 59 Pac. 730.) A man must eat and sleep, whether he is an officer or not; or, in other words, such expense is not "actual and necessary in the performance of official duty,” within the meaning and intent of the statute; the same being a necessary ordinary expense, and not merely incidental to the performance of an official act. If such items are allowed to a sheriff while performing some of his official duties, it should be allowed to him and other officers for every day of the year in which they perform official duties. Such conclusion is not warranted by the statute. Therefore no officer should be allowed for expenses incurred for bed and board -of himself.
3. The record before us does not contain the transcript required by law on appeal from an order of the board of county commissioners to the district court. Section 1778 of the Revised Statutes, as amended by Act of February 14, 1899, is as follows: “When such appeal is taken the clerk of the board must within five days transmit to such district judge a copy of
4. The district court did not try the matter anew. Section 1779 of the Revised Statutes, as amended by act of February 14, 1899, is in part as follows: “Upon the appeal, the matter must be heard anew, and the act, order or proceeding so appealed from may be affirmed, reversed or modified; and, from the decision of the district court, or judge, either party may, within five days, appeal to the supreme court. Either of said courts or said judge may make any rules necessary to a proper and speedy hearing in such appeals.” (See Acts 1899, p. 249.) The findings of fact- in the record, and which are hereinbefore set forth, do not show a single item of expense which is a legal charge against the county. The stipulation signed by the county attorney and attorneys for respondent relating to the hearing in the district court is apparently an attempt to limit the jurisdiction of the district court to a decision of one question of law, and the stipulation signed by said attorneys relating to the hearing of this appeal by this court is apparently an attempt to limit the jurisdiction of this court. County attorneys cannot limit the jurisdiction of the district court or of this court, by stipulation or otherwise, or relieve either of said courts of duties enjoined by positive statute. The attempt to do so in this case is unauthorized, unwarranted, and deserves severe rebuke.- It is not a matter between the county attorney and the respondent. The public, the taxpayers — those who “bear the burden in the heat of the day” — have some rights in the premises, which cannot be frittered away by the county attorney. The duties of the court are prescribed in the statutes quoted, and in other statutes, and the courts cannot be relieved of those duties either by officiousness or courtesy on the part of the county attorney. While it is commendable on the part of