158 P. 322 | Idaho | 1916
This is an appeal from the judgment of the district court rendered on an appeal from an order made by the board of county commissioners of Latah county, wherein it is declared that it is deemed to be to the best interest of the taxpayers of Latah county that a real estate “Tract Index” be installed in the county recorder’s office, and kept up by the county recorder from and after August 1, 1915, and that a competent person be employed to bring such index up to August 1, 1915, from the organization of the county.
In limine we are met with a motion to dismiss this appeal, based on several grounds, to wit: (1) That it is “a sham
In order to intelligently dispose of this motion, we must refer to some of the facts in the case. The county attorney and the attorney for the appellant stipulated the following facts:
“It is hereby stipulated, by and between the attorney for the appellant, John Reilly, and the attorney for the respondents, the Board of County Commissioners of Latah County, Idaho, that the index contemplated by the order of said board in the above-entitled matter is what is known as a ‘Tract Index,’ in which the various instruments of record affecting the title to real property are indexed under the head or description of the real property affected thereby, and if completed will constitute an index to the records of real estate by tracts, instead of by the names of the parties to instruments recorded, in manner substantially as follows, to wit:
“A separate and distinct division or page of said indexed book is set apart for each tract, lot, or subdivision of land in the county, and in each of said pages or divisions is entered, without regard to the alphabetical order of the names of the parties to the instruments, but in consecutive order every instrument affecting the title of such tract, lot, or subdivision of land as filed, the names of the parties to the instrument, the date of the instrument, and when recorded,*216 its character, and the page and volume of the county records where recorded.
“That the testimony introduced at the trial in the district court shows that it would take not less than two nor more than six years to bring said ‘Tract Index’ up to August 1, 1915, and that it would cost not less than $2,000.00 nor more than $12,000.00 to bring the same up to August 1st, 1915.
“That prior to this time there have been kept, and there are now in the office of the county recorder of Latah county, all of the indices required to be kept and maintained by and under sections 2063 and 2068 of the Political Code, Revised Codes of the State of Idaho. That said indexes have been kept in, and are now in substantial books, conforming with Title 2, Chapter 3, Article 7, of the Political Code of Idaho, and the writing therein is legible and perfect in every particular, and is in no danger of becoming illegible, and that •there is kept in the office of the County Assessor of Latah County, a ‘Plat Book’ showing the ‘Present ownership’ as required by the provisions of the statutes of Idaho, relating to revenue and taxation, and that said plat book and plats therein are in the condition the assessor is required to keep them in the performance of his duties in assessing real estate within Latah county.
‘ ‘ That pursuant to said order of the Board of County Commissioners, the Recorder of Latah County, Idaho, through his deputies has kept up and maintained a ‘Tract Index’ as contemplated in said order, by noting therein all transfers of real property made and filed in said recorder’s office, since the said first day of August, 1915, and that the same has been so kept up by the said County Recorder and his deputies employed in the office.
“Dated this 8 day of December, 1915.”
But it is contended by the attorney who appears as amicus curiae that such stipulated facts are not true, and he presents to this court in his brief and in his affidavit on motion to dismiss certain other facts, the substance of which is that for several years there has been a great deal of complaint made by the taxpayers and citizens of Latah county as to the
“In the matter of bringing up a complete tract index of all Real Property in Latah County. After full discussion and investigation of this subject, and it being deemed for the best interest of all taxpayers and holders of real property in Latah County that said tract index be installed and started, and that all back indexing be brought up to the starting date of said index; also that said index is considered by this Board to be required, as an index for use as assessment purposes in determining the present ownership of all Real Property of Latah County, and other general information to be acquired through said Tract Index of value in assessing and equalizing taxes; therefore it is at this time ordered that said tract index be started by the County Recorder and kept up by said Recorder’s office from and after August 1st, 1915; also that one competent person be employed by this Board to work under the supervision of the County Recorder, and Board of County Commissioners, said person to start with the first records of Latah County, affecting Real Property, and bring said indexes up to said August 1st, 1915; the person so employed to meet with the approval of the Board of County Commissioners and to receive as compensation for services rendered the sum of $4.00' per day; it being understood that said party so employed shall work from eight o’clock in the morning until five in the afternoon, or eight full hours for each and every day that claim is made for, and that steady and diligent work will be required, and the board*218 will reserve the right to cancel this order at any time, or to order a change in the person so employed. ’ ’
Said order was made on July 26, 1915, and the appellant Reilly on the 12th day of August, 1915, took an appeal from said order to the district court. Thereafter said cause was tried by the district court, and it is stated in appellant’s brief that “at such trial the respondent herein introduced evidence in support of the order "showing the necessity for making such order and the reason why such order was made and also .showing the operation of a ‘Tract Index’ system such as ordered by the board. ’ ’
After hearing the evidence and duly considering the case, said district court affirmed said order of the board and thereafter said Reilly appealed from that judgment of the district court.
It further appears that at the trial in the district court the county attorney of Latah county appeared as the attorney for the board, and at such hearing and upon argument had before the court said attorney took the position that the order of the' board was illegal and void, and it is claimed for that reason the board was not represented by an attorney, since the county attorney had advised the board from the outset that such an order would be in violation of the law. After the appeal to the supreme court was taken, the county attorney, acting for the respondent board and the attorney for appellant, entered into the stipulation of facts above set forth. Thereafter the board of county commissioners demanded of the county attorney that said stipulation of facts be withdrawn and that the appellant be required to obtain a full transcript of the evidence taken on the trial in the district court, and on the 9th day of December, 1915, said attorney refused to withdraw such stipulation.
As we view it, it was not necessary to bring up on this appeal the evidence taken before the district court; that it was not necessary to a determination of the question involved here that the appellant should be required to go to the expense of.procuring such testimony from the court reporter, for in case the judgment should be reversed, either the county com
The question to be determined on the merits of the case is: Had the board of county commissioners authority under the law to make said order and thus expend from $2,000 to $12,000 of the taxpayers’ money?
Counsel who appears as a friend of the court seems to lay particular stress upon the fact that there was a great necessity existing for the making of said tract index, and the order of the board states that it is to the best interest of all the taxpayers and holders of real property that said tract index be installed and started.
If the question of necessity were a controlling question in this case, then appellant would have been required to bring the evidence to this court on his appeal, had he claimed that the evidence was not sufficient to show the necessity. But he makes no such claim here, his contention being that the law does not authorize the board of county commissioners to install such a tract index even though there is a necessity for it. It is conceded that the tract index provided for by said order of the board is not specially provided for by statute.
It is clear to us that under the laws of this state a board of county commissioners has no power or authority to require any index to be made and kept by the recorder at the expense of the county other than such as is authorized expressly or by implication by either the constitution or the statutes. (Conger v. Board of County Commrs., 5 Ida. 347, 48 Pac. 1064; Fremont County v. Brandon, 6 Ida. 482, 56 Pac. 264; Fenton v. Board of County Commrs., 20 Ida. 392, 119 Pac. 41.) Nor has it power or authority to hire or employ any
Upon an examination of that section and the amendments thereto, we find no such authority there given. It was the intention of the legislature to have in each county a complete index to deed records, and it was evidently intended to require the same kind of indexes to be kept in each county of the state and thus have uniformity throughout the state. The legislature has also prescribed the manner in which the index is to be kept. The recorder is not required to keep any index not provided for by law. While the board of county commissioners is given, by the provisions of said sec. 1917, the power to supervise the official conduct of all county officers, the board is not authorized to require the county recorder to keep an index such as is not required by law to be kept by him.
It was held in People v. Nash, 62 N. Y. 484, which case involved the indexing of certain county records, that the subject of indexing such books was regulated by statute which prescribes the manner in which indexes shall be made, places the duty of making them upon the county clerk, and provides for his compensation for so doing; and it was there held that the board of supervisors had no power to change the method of indexing such books nor to transfer the duty and power of making indexes from the county clerk to any other person.
It was held in Smith v. Lamping, 27 Wash. 624, 68 Pac. 195 (199), that it was not reasonable to suppose that when the legislature so carefully described the system that should be followed by county auditors, which system should be uni
“The fact that a certain mode or method has been expressly designated by the legislature, we think excludes the idea that a different mode or method may be pursued. The legislature has not only prescribed the method, but has expressly made it the duty of the county auditor to follow it, and this, we think, negatives the idea that another method may be pursued at public expense by authority of the county commissioners. The new method may be more convenient and more in accordance with the enlightenment and enterprise of the times, but, until the legislature has authorized its adoption and conferred upon county commissioners the power to expend public money for that purpose, we think it must be held that it is beyond their power to so expend the county’s funds. The powers of the county commissioners are derived from the state, and they are limited and defined by law. ’ ’
We think the above-quoted suggestions from the supreme court of Washington are applicable to this ease, and since the legislature in this state has expressly designated the mode or method of keeping such indexes, the idea that a different mode or method may be pursued by the recorder is excluded. While we might concede that the method sought to be pursued by the county commissioners in the case at bar is more convenient and more in accordance with the enlightenment and enterprise of these progressive days, yet the county commissioners have no authority to adopt it until they are authorized to do so by legislative enactment. It is suggested that the county recorder is not required by law to keep such a tract index,- or any other kind of index except those prescribed by art. 7, chap. 3, title 11, of the Political Code, and he may not install or keep at public expense the tract index provided for by said order, either upon his own initiative or upon the order of the board of county commissioners.
Counsel who appeared as a friend of the court, in closing his brief, states as follows: “It is only necessary to add that if the evidence heard by the lower court was before this court, the extreme necessity for the order of the board of county commissioners would be very apparent to the judges of this court. ’ ’
The very reason why this court has concluded that it is not necessary to have such evidence before this court is that it makes no difference whether such evidence does show the extreme necessity of keeping a different index from that provided by statute or not. It would be proper to present such “extreme necessity” to the legislature and have it amend the statute requiring a tract index, as contemplated by said order, to be kept by every county recorder in the state, and providing for bringing such a tract index up to the present time! The board and the trial court concluded that it was to the
We therefore conclude that the judgment of the trial court must be reversed, and it is so ordered, and the cause is remanded to the district court with direction to overrule and set aside said order of the board, and enter judgment accordingly. Costs are awarded to the appellant.
