Great Northern Railway Co. v. Kootenai County

78 P. 1078 | Idaho | 1904

AILSHIE, J.

(After Making the Foregoing Statement of Facts.) — We have examined the statute and authorities on this question very carefully, and have concluded that this case rests entirely upon the question of what acts constitute an appeal from an order of the board of county commissioners. Section 1777 of the Eevised Statutes of 1887, as amended by the act of February 14, 1899 (Sess. Laws 1899, p. 248), provides the manner of taking appeals from orders made by boards of commissioners. It says: “Such appeal may be taken to the district court, or the judge thereof, of the judicial district of which the county is a part by serving upon the clerk of the board a notice of appeal so referring to the act, order or proceeding appealed from as to identify it.When the appeal is made for the purpose of protecting the interests of the county and of the people, no requirement shall be made of the appellant for security of costs, except that when the district judge shall be of opinion that such appeal is not made in good faith, but is for delay and vexation, he may require the appellant to enter into an undertaking with good sureties in an amount sufficient to secure the payment of costs, and in all other cases like undertaking shall be required.” It is argued by counsel for the appellant that, under the provisions of the foregoing section, an appeal from the board of commissioners is perfected immediately upon service of the notice of appeal on the clerk of the board. It is further contended that giving an undertaking to secure the payment of costs is not jurisdictional, and depends wholly upon the order of the judge, and that such order can only be made by him after he has acquired jurisdiction of the ease through the medium of the service of the notice of appeal upon the clerk of the board. A careful analysis of the statute convinces us that this is the correct construction to be placed upon it. The statute fixes no amount in which an undertaking shall be given in any case, but, rather, leaves it to the discretion of the district judge as to the “amount sufficient to secure the payment of costs.” In no case would an appellant know the amount or kind of undertaking the'judge would require, and yet he is entitled to appeal within the statutory time, even though the judge were out of the county or out of the district, or even out of the state. But the appellant who had failed to comply with the order of the judge as fco the giving of an undertaking after his appeal had been perfected would certainly be liable to have his appeal summarily dismissed. It is admitted in this case that the appeal was not taken to protect the “interests of the county and of the people,” but was, rather, taken for the protection of the private interests and property rights of the appellant. It will be observed that section 1717 closes with the provision that, in all appeals other than those for the protection of the interests of the county and the people, “like undertakings shall be required.” This clause, however, refers to what precedes it, namely, “that when the district judge shall be of opinion that such appeal is not made in good faith, but is for delay and vexation, he may require the appellant to enter into an undertaking withvgood sureties in an amount sufficient to secure the payment of costs.”

Counsel for appellant, in support of their position, cite Ravenscraft v. Board of Commissioners, 5 Idaho, 178, 47 Pac. 942; and, on the other hand, counsel for respondent cite Davis v. Elmore County, 9 Idaho, 704, 75 Pac. 910, in support of their position. These cases were both decided by our supreme court, and it is fair to say that each authority, on first reading, appears to support the position taken by counsel citing it. It should be observed, however, that in neither of these cases was the question discussed as to what constitutes an appeal from an order of the board of commissioners. In neither case was the point raised that the making and filing of an undertaking is a jurisdictional matter to be observed by the appellant in prosecuting his appeal in the first instance from the board of commissioners to the district court. The same view here expressed is suggested in Ravenscraft v. Board of Commissioners. In Davis v. Elmore County the only question considered was the necessity of filing an undertaking on appeal to the supreme court, and anything there said that would indicate that this court considers the giving and filing an undertaking upon appeal from the commissioners to the district court as jurisdictional is merely dicta. We want it understood, however, that an appellant cannot be heard to further prosecute his appeal if he fails or neglects to file such undertaking as the district judge may require in any such ease. Since we have arrived at the foregoing conclusion, it is unnecessary for us to discuss the sufficiency of the undertaking filed by the appellant in this case in the first instance. After the motion to dismiss had been filed, and after the appellant moved the court to fix the amount of the undertaking to be required, it was the duty of the court to make his order requiring an undertaking sufficient to secure the payment of costs on the appeal, and give the appellant an opportunity to make and file such undertaking.

Having arrived at the foregoing conclusion, it becomes unnecessary for us to consider the point raised by respondent that a surety company bond is not good unless accompanied by evidence showing that the company has qualified under the statute, and is entitled to do such business in the state.

The judgment of the district court will be reversed, and the cause remanded, with directions to the trial court to reinstate the appeal as taken from the board of county commissioners, and permit the appellant to file such undertaking for security of costs as the judge of that court shall deem sufficient for- such purpose.

Sullivan, C. J., and Stoekslager, J., concur.