1 Idaho 655 | Idaho | 1877
delivered the opinion,
The case shows that on the fifth day of November, 1872, appellant was duly elected to the office of assessor and tax collector of Boise county, for the years 1873 and 1874, and on his failure to procure the approval of his official bond, the board of commissioners of the county declared the office vacant, and Ben. T. Davis was appointed in his place, fulfilled the duties of the office, collected the taxes, and received the fees allowed by law, as compensation for his services, amounting to the sum of four thousand nine hundred and fifty-one dollars and thirteen cents. On proceedings instituted for the purpose, the action of the board was declared by this court to be null and void, and appellant was adjudged to be entitled to the office.
On the seventh of April, 1874, appellant presented his claim against the county to the board of commissioners for the amount paid Davis, alleging that by virtue of his office he was justly entitled thereto; which was disallowed by the board by an order duly entered upon its records, from which appellant took an appeal under the statute to
On tbe bearing of tbe appeal, tbe district court, instead of affirming, reversing, annulling, or modifying tbe order appealed from as tbe statute requires, entered judgment against the board of commissioners and tbe county for tbe full amount claimed, together with interest and costs. From this judgment tbe board of commissioners appealed to this court and tbe judgment was reversed, on tbe ground that the district court erred in rendering a money judgment, and remanded tbe case for a new trial on tbe whole case, without directions for a venire de novo.
At the March term, 1876, of tbe district court, respondents interposed a demurrer to tbe claim and statement of tbe grounds of appeal from tbe order of tbe board of commissioners, etc. — alleging, among other reasons, that tbe account, notice of appeal, and alleged grounds of appeal do not state facts sufficient to show that said account was legally chargeable against tbe county. This demurrer was sustained by tbe court, and a judgment was entered that tbe order of tbe board of commissioners rejecting appellant’s claim be affirmed. From this judgment appellant brings bis appeal.
It can not be doubted that as against tbe person who has kept one out of office, by intrusion, an action would lie for tbe injury, and tbe lawful perquisites which be would have received if in office, would be a proper subject of inquiry. (Campbell, C. J., in The Auditors of Wayne Co. v. Benoit, 20 Mich. 176). Our statute, sec.' 278, p. 133, of tbe second session laws, and also tbe revised code, sec. 338, p. 158, have recognized bis right to such redress, and provided for tbe recovery of damages by action. Public offices in this territory are not incorporeal hereditaments, nor have they tbe character or qualities o'f grants. They are agencies. They are voluntarily taken, and may, at any time, be resigned. They are created for tbe benefit of tbe public, and not granted for tbe benefit of tbe incumbent. Their terms are fixed with a view to public utility and convenience, and not
In the case of Smith ads. The People, 28 Cal. 21, the supreme court of California held that the right to compensation was an incident to the office, yet this is not considered as law. There was no reasoning on which the decision was based, and the case in New York relied on in support of it, was overruled in 37 N. Y. 518; above quoted.
In 20 Mich. 176, above cited, it was held that the right to compensation belongs to the incumbent of an office, holding under color of right, for services rendered, and not to the officer de jure, who has been kept out of office, but who has not entered upon its duties.
The appellant never entered upon the duties of his office until after Davis had performed the services and received the compensation. It is true he was prevented from doing so by the erroneous action of the commissioners, but he did not earn the fees, and Davis did, under color of right, and had a legal right' to them, of which the county could not deprive him. His official acts, while acting as an officer de facto, under color of an appointment by the board, were binding upon third persons, and upon the people, and no inquiry could be had as to his right to compensation for his services so long as he was the acting officer. Any payments made to him for services rendered in the discharge of his public duties, while an incumbent of the office, were valid and binding, and the county can not be made liable to pay a second time.
It may be, if a board of commissioners, or any other public officer, willfully and corruptly do any act, undercover of lawful authority, by which a person is injured, that they may be held answ-erable to such person. The legislature, in providing for the compensation of public officers, undoubtedly contemplated that it should be for services rendered, and it follows that any one qualified to perform the services is entitled to compensation therefor.
As has been seen, Davis was not a mere intruder, without any claim or color of title. He received his appointment from a body authorized by law to make it, and was clothed with all the indicia of office. He made the collection in a legal manner, and in doing so, his acts were as binding upon the public as they would have been had he been act
It is suggested that it nowhere appears in the papers demurred to that Davis was not paid for his services. It is a sufficient answer to say that appellant makes no allegation of that fact, and as this was essential to his right to recover, it should have been averred. The presumption arising from this failure, must be that Davis received his compensation when the services were performed. The law, presumptively, knows no credit. It must be made to appear by allegation and proof.
It is insisted by appellant’s counsel that the district court ■ erred in allowing the demurrer to be interposed for the first time, after one trial was had upon the facts, and a new trial ordered by the supreme court. Proceedings of this character must be governed by the statute relating to them, or, where the statute is silent, by the ordinary course of pro-
On on appeal from an order of the board of commissioners the statute requires that the party appealing should state in his notice of appeal, the fact of his appeal, and the grounds of appeal. The appellant followed these requirements, and stated his case fully, by showing the grounds on which he based his right to recover, and the reasons why, as he claimed, the board erred in rejecting his claim. The object of the statute most clearly is, to advise the district court, on an appeal, of any errors the board had committed, by an inspection of the statement, and should the court upon such inspection determine that no error had been committed, it was its duty to affirm the order. Under the statute no other written pleadings or statement were required, and hence questions of law might be prevented, either by a motion to dismiss, as contented for by appellant’s counsel, by inspection, or by demurrer. If the end coiild be attained by either mode, and the same result arrived at, it was not error to adopt either of the three.
Section 19 of the act, which gives the right of appeal and regulates the mode, requires the case, upon appeal, to be heard de novo, but whether upon an issue of law or of fact, it is entirely silent. In such a proceeding there is nothing in principle, and certainly not in the law, which requires the appellate court to let the case go to the jury, when by the appellant’s own showing he is not entitled to recover. Where the court is satisfied a party, by his own showing, can by no possible state of proof recover, it is not bound to submit the question of fact to a jury. (Edmondson v. McLeod, 16 N. Y. 543; Griffin v. Marquardt, 17 Id. 28; Brown v. Bowen, 30 Id. 519.)
It is well settled that where a party shows himself not entitled to recover, and a verdict is found in his favor, ob
From these considerations it follows that respondents were guilty of no laches, in not in a' formal manner presenting tbe issue of law to tbe court until after tbe case was remanded for a new trial. It was tbe duty of tbe court to determine whether th© appellant bad presented a claim which gave him a right of action, whether a motion was made to dismiss tbe appeal, or a demurrer was interposed to bis statement or not. An objection can never come too late, where tbe other party shows no right of action under any possible state of proof.
Upon tbe primary and principal question that appellant shows no right to recover, my associate, Justice Clark, agrees with me, as I understand him, but be seems to think tbe demurrer was not in apt time, and that tbe court erred in not letting the case go to tbe jury. Where this court is in possession of all the rights of tbe parties, and full and complete justice can be done, it is not its duty to send tbe case back for farther litigation.
Tbe judgment of tbe district court is affirmed, at tbe costs of tbe appellant in this court and the court below.