130 P. 788 | Idaho | 1913
Lead Opinion
— This action was brought by the county of Lincoln against appellant for the purpose of recovering the sum of $9,336.35, together with interest thereon, alleged to be due as a balance for fees foj* recording certain instruments designated as water contracts. The case was heard on a stipulation of facts and judgment entered in favor of the county and against appellant.
The appellant is a corporation organized under the laws of the state of Delaware, and has complied with the laws of this state and is doing business in this state as an irrigation company. It is admitted that the county recorder recorded instruments for appellant, as alleged in the complaint, and that the balance due for fees, if charged at the rate of twenty cents per folio, as prescribed by the statute, for both the written and printed words thereon, would amount to the sum claimed, namely, $9,336.35. The appellant sought to defend and avoid liability upon the following grounds: That the appellant was engaged in the construction of what is known as a Carey Act project in Lincoln county in this state, and that after completing full negotiations with the state board
This state of facts presents the question as to whether the county officers could fix upon a different rate, or charge any less fee for recording an instrument than that prescribed by statute. See. 2124 of the Rev. Codes, which contains the schedule of fees to be charged and collected by the county recorder, provides, inter alia, as follows: “The county auditor and recorder is allowed, and may receive for his services, the following fees, to be paid him by the party procuring his services as recorder: .... for recording every instrument, paper or notice, for each folio, twenty centsSec. 7 of art. 18 of the constitution (sixth amendment to the state constitution) provides that all county officers shall receive fixed annual salaries, and that all fees received by siich officers over and above their actual and necessary expenses allowed by law, shall be turned into the county treasury.
The only question to be determined on this appeal is one of law. It was the duty of the county recorder to duly record
The fee of twenty cents per folio is an arbitrary fee established by the legislature. In most cases it more than pays for the service performed, and the county makes a profit out of the business. In other cases, it might not pay for the service performed. If a county only had a very small amount of recording to do and still had to employ a clerk or deputy at a regular salary to do such work, the fees collected for recording might not be sufficient to pay for the service and the county might lose. Upon the other hand, where there is a great deal of this work to do, the county can hire clerks, for a great deal less than twenty cents per folio and thereby make a profit out of the business. Indeed, the auditor might procure record books containing printed forms of deeds,, mortgages and other instruments, and he might likewise procure blank deeds and mortgages and other instruments printed to conform to his record books, and supply these blanks to the people generally doing business with his office, and thereby save a large amount of the work of his office in transcribing or recording such instruments. No one could complain of
It has been argued, however, that the county commissioners considered this proposition, and approved the same and entered into an agreement, and that the county is thereby es-topped from attempting now to collect a greater sum than that agreed upon. This contention cannot be sustained, for the reason that neither a county officer nor anyone else has a right to set aside or ignore a statute or to change the fees prescribed by a statute that shall be charged for any given public service. The statute is plain, and both the commissioners and the irrigation company had full notice of its provisions. Any contract which ran counter to the statute was clearly void.. Neither can the fact that the commissioners subsequently accepted and approved the recorder’s report and settled with him upon the basis of the former agreement entered into with the water company avail the company here or relieve it from payment of the balance due on account of the recording of such instruments. (McNutt v. Lemhi County, 12 Ida. 63, 84 Pac. 1054.) The fact that the board of commissioners have certain powers with reference to the
A brief has been filed in this case by M. J. Sweeley, an attorney of this court, as amicus curiae, in which it is suggested that the county cannot maintain this action, that such fees must be paid to and collected by the county recorder, and that the county can only look to the officer and his bondsmen for the same. We have no doubt but that the county recorder could have maintained his action for the recovery of these fees. We are equally well satisfied, on the other hand, that the county itself has such an interest in these fees as to be able to maintain its action for the recovery of the same, and this is especially true where, in a case like this, the county has already settled with the county recorder, and he has presumably already retained out of fees in his hands his actual expenses as authorized by the constitution. After settlement has been made with the recorder, he may have no further interest in the fees, unless the county charges them up against him. On the other hand, the county is directly interested. It may pursue the officer and his bondsmen, or it may pursue directly the party who had the service performed.
Finally, it is argued that a part of this claim is barred by the provisions of subd. 1, sec. 4054, Rev. Codes. That statute provides, “An action upon a liability created by statute, other than a penalty or forfeiture,” shall be commenced within three years after the cause of action accrued. We cannot agree that this is the kind of an action contemplated by subd. 1, sec. 4054. This cause of action was not created by statute. On the contrary, we think it is governed by the provisions of see. 4053, which provides that, “An action upon a contract, obligation, or liability not founded upon an instrument of writing,” shall be commenced within four years from the accrual thereof. This is clearly an action upon contract. It will be necessary, therefore, to remand the cause, with direction to the trial court to eliminate all items where the service was performed more than four years prior to the date of the
The contention made by respondent that this is an open and current account within the purview and meaning of section 4058, and that the statute only runs from the date of the last item appearing in the account, is not sound and cannot be sustained. Neither the recorder nor the county had any right to extend credit to the appellant, and there were no “reciprocal demands” in this ease within the purview and meaning of sec. 4058. It appears that the irrigation company furnished the blank forms of record books used-by the county in recording these instruments, and it should now be allowed a credit in an amount equal to the sum it would have cost the county to get these or similar records.
We find no error in the record except as to the amount of the judgment entered. The judgment will therefore be affirmed except as to the amount thereof, and the cause is hereby remanded, with direction to the trial court to ascertain the amount to be credited on account of the books furnished and the amount barred by the statute of limitations, and to enter an amended judgment for such an amount as he finds has accrued within four years immediately preceding the filing of the complaint, less the proper credit for record books as herein suggested. Costs of this appeal will be divided equally between appellant and respondent.
Dissenting Opinion
Dissenting. — I am unable to concur in the conclusion reached by my associates. Under the facts of this case the judgment ought to be reversed. The appellant is a corporation, and was engaged in the construction of what is known as a Carey Act reclamation project in Lincoln county, embracing about 250,000 acres of land, and the estimated cost of the reclamation works and system is $5,700,000. I will not go into detail here as to the operations of this company in making contracts for the sale of water rights. It is sufficient to say that the disposal of the water rights held by the com
“Shoshone, Idaho, April 30, 1907.
“The Board of Commissioners of Lincoln County, State of Idaho, met in regular adjourned session this 30th day of April, 1907, pursuant to adjournment.
“Present: I. H. Imes, Chairman; F. B. Crosse, Commissioner, and Harry W. Anderson, Clerk.
“Upon the application of the Twin Falls North Side Land & Water Company requesting the Board to establish a flat fee for the recording of all water contracts between the Twin Falls North Side Land & Water Company and the settlers, it was ordered by the Board, after due investigation, that the Recorder charge said Company a fee of seventy-five cents for recording all regular contracts for land and water and a fee of one dollar for recording all land and water contracts accompanied by the Railroad contract, upon condition that said Twin Falls North Side Land and Water Company shall furnish to the county free of cost, all necessary books for the recording of said contracts, with the regular form of the contracts printed therein, and all necessary indexes for same. All records so furnished to be approved by the County Recorder.
*443 “No further business appearing at this time, the board adjourned the regular meeting until Monday, the 13th day of May.”
No appeal was taken from said action of the board. Thereupon the appellant company furnished to the county, free of cost, all necessary books for the recording of said contracts, with regular form of contracts printed therein, and all necessary indexes for the same, which records so furnished were approved by the county recorder.
It is contended by counsel for appellant, and we think correctly, that no charge can lawfully be made by a county recorder for recording an instrument where a printed record is used, except for recording the words which are actually written; in other words, that no one can be required to pay a constructive fee instead of a fee for the actual services rendered.
The recording fee is fixed as follows by sec. 2124, Rev. Codes: “For recording every instrument, paper or notice, for each folio, twenty cents,” and a “folio” is defined by sec. 2132 to mean 100 words, counting every three figures necessarily used as a word. “Recording means the writing down or copying of the document in the proper book by the recorder.” (Cady v. Purser, 131 Cal. 552, 82 Am. St. 391, 63 Pac. 844; Vidor v. Rawlins, 93 Tex. 259, 54 S. W. 1026.) In Anderson’s Law Dictionary the term “recording” is defined as ‘ ‘ Copying an instrument into the public records in a book kept for that purpose, by or under the superintendence of the officer appointed therefor.”
. Sec. 2062, Rev. Codes, relating to the duties of the recorder, is as follows: “He must, upon the payment of his fees for the same, record separately, in large and well-bound separate books, in a fair hand: 1. Deeds, grants,” etc. When that statute was enacted, it was expected that the instrument would be written “in a fair hand” in the proper record book. At the time of the original enactment of that statute no printed record books were in use, and the law contemplated a fee of twenty cents per folio for all of such instruments as were required to be written “in a fair hand.”
And again: I think the county is estopped from maintaining this action, for the reason that no appeal was taken from said order of the board, and the appellant is now placed in a position where it cannot recover the recording fee for the contracts given the settler at his request for each forty acre tract, as appellant would no doubt have required those who wanted more than one contract to pay for the recording of all others given them. In the case at bar, where only one contract was made to the settler, the fee ivas paid by the appellant; where more than one contract was given, as frequently happened, the additional recording fee of one dollar was collected from the settler because the additional contracts were made for his particular benefit.
This method of computing the fee which was agreed to by the county commissioners continued for some years — from April 30, 1907, until this suit was brought in 1911 — and by the action of the board it is now too late for the appellant to go back and collect from the settlers the amount of the recording fee which they should have paid in ease they were required to pay twenty cents per folio for all printed matter for each contract after the first. Having agreed to the method of computation provided by said order of the board, and no appeal having been taken therefrom, and regular settlements having been made by the county recorder with the county, and no appeal having been taken from those settlements, it would
Under the provisions of sec. 1917, Rev. Codes, the county ■commissioners have power to supervise the official conduct of all the county officers charged with the custody of the public revenues and see that they faithfully perform their duties; to examine and audit their accounts and generally to do and perform all other acts and things which may be necessary to the full discharge of their duties. Under the authority given by the statute, we think the county commissioners had power to settle the amount of the fee to be charged for recording said instruments. While, perhaps, they could not provide a less fee than twenty cents per folio for the services rendered in writing down whatever there was to be written in said printed contracts, it was within their power and authority to make the order above quoted.
In this case there was a claim honestly made, which claim was fairly and honestly considered by the board, and the board finally adopted said resolution and order. Had the board refused to adopt said order, the appellant would no ■doubt have made changes in its business method, and could and would have reduced the recording fee, which has already been paid, and required the settler to pay the recording fee for each contract except the first. But the company was .anxious to favor the settler and give him as many contracts ■as he desired and make the recording fee as light as possible. Where more than one contract was to be recorded, appellant collected only the fee of one dollar from the settler for each additional contract, instead of the fee of four dollars now claimed by the county. The four dollar fee which is charged in this suit amounts to a charge of ten cents per acre against each forty acre subdivision, which would be at least four times the value of the services rendered by the recorder for recording each instrument.
Any person deeming himself aggrieved by said order of the board might have taken an appeal. And again, he might also have taken an appeal from the order of the board settling the
There was a dispute between the county recorder and the appellant, and it was within the power of the board to settle that dispute, and it did settle it, and the settlement having been accepted and acted upon for several years, the county ought not now to be permitted to repudiate the board’s action.
Good faith and fair dealing should characterize the conduct of county boards in their dealings with individuals and corporations, and there is no reason in morals or law that will exempt them from the doctrine of estoppel. (State of Indiana v. Milk, 11 Fed. 389, 11 Biss. 197; United States v. Wallamet Val. & C. M. W. R. Co., 44 Fed. 234.)
The statement in the majority opinion that if this company were permitted to furnish its own records, each real estate agent ought to be permitted to furnish his, seems ridiculous to me, as such agents sell lands for others and do not pay for recording deeds. There is no parallel or comparison between the case suggested and the one at bar. Here was a reclamation company, which it was known would execute several thousand contracts, which contracts would fill a number of volumes of records, which records, if furnished by the county, would cost it no doubt several hundred dollars, and because of the number of such contracts and the extent of such records, it seems to me it was better for all concerned to have those contracts in records especially provided for their recordation, without expense to the county, and have uniform records of all such contracts.
In accordance with said resolution of the board, said fees were duly paid and received into the county treasury. The accounts of the recorder were regularly settled in accordance with the law. The money being received under said facts and circumstances and the account being settled, the transaction amounted to a final receipt closing said transaction. As bearing on this question, see Wilcox v. Perkins County, 70 Neb. 139, 113 Am. St. 779, 97 N. W. 236. It was held in Douglas County v. Bennett, 61 Neb. 660, 85 N. W. 833, that where a frill and complete settlement of a county officer with the
The judgment ought to be reversed.