Salt Lake County v. Golding

2 Utah 319 | Utah | 1880

EmeesoN, J.,

delivered the opinion of the court:

The suit was originally commenced in the name of “ The People of Salt Lake County, in the Territory of Utah, for the use of themselves and for the use of the People of the Territory of Utah,” against the defendants, upon the official bond of the defendant Golding, as assessor and collector of Salt Lake County, the other defendants being sureties upon the bond.

A demurrer to the complaint as originally framed was sustained, and leave given to the plaintiff to amend. An amended complaint was filed in the name of the present plaintiffs and appellants.

Upon motion the amended complaint was stricken from the files. The appeal is from this order, and raises a technical question of practice, and that is as to the right of the original plaintiff, to change tbe title of suit by bringing in other parties, under a general privilege given to file an amended complaint. The demurrer embraced several grounds, and the order sustaining the demurrer does not specify upon what grounds it was sustained; nor is the change in the parties to the suit the only amendment actually made.

The amended complaint makes an entire change of parties plaintiff, other and different parties are substituted for the original ones. This ought not to be allowed under the general privilege given to amend. New parties are not brought into court in this way. It should be done upon the order of the court, amending the complaint in this respect. P. A. § 68.

Upon this technical question of practice, the action of the court upon the motion was correct, and should be affirmed.

Counsel upon both sides are, however, anxious- that we should pass upon some of the other points raised upon the appeal. And the first is as to the power of the county to sue. The authority is nowhere expressly given in the statute. The Legislature (C. L. § 154) declares that the portion of the Territory embraced in certain given boundaries “ is hereby made and named Salt Lake County, with county seat at Salt Lake City.” All the counties in the Territory are organized by the use of the same words, aside from the boundaries.

The question is, are these districts of territory thus set off and named counties, corporations?

The Legislature is the proper source of corporate powers of this character, and it is well settled tlrat no fixed precise form of words are necessary in order to create a corporation. (Dillon on Mun. Corp. § 21.) It may be created by implication, but in such cases the intention of the Legislature must plainly appear. (Ibid. § 22.) This intention may be shown constructively as well as expressly.

These counties are organized as a part of the machinery of the territorial government; and the Legislature has given them certain rights, duties, privileges and powers, and such rights as can be enjoyed and powers exercised in no other way than acting in a corporate capacity. It follows then, that it was the intention of the Legislature that they should be corporations, and they are involuntary or quasi corporations. This being the case, then one of the powers incidental to the corporation, and without which it could not carry into full effect the powers given to it, is the power to sue. Angelí & Ames on Corp. § 369.

But in the case before us, the county is not properly a party to the suit, even if the alleged breach of the bond had been the failure to pay over or account for money belonging to the county.

Section 351, C. L., provides that, “in all cases of neglect or refusal on the part of the assessor and collector to pay over to the treasurers the taxes collected, as provided in this section, the county court is hereby authorized and required to proceed against him in a civil suit on his bonds.” To “ proceed against him ” in this connection means to bring a suit, and they are not authorized to do this in the name of the county, but in their own name. The alleged breach of the bond was for the failure to account for money belonging to the Territory, and in which the county, as such, had no interest whatever. The county and the Territory cannot unite in a suit for money belonging to each, as a separate corporation, or to the one to the exclusion of the other. The title to and ownership, of the money sought to be recovered, must determine the right of action, and if the money did not belong to the county, but did belong to some other body having the capacity to sue, the action cannot be maintained. People v. Ingersoll, 17 Amer. 184; People v. Booth, 32 N. Y. 397.

By the provisions of sections 344 and 347, C. L., it is the evident intention that the assessor and collector should give two bonds, one to the Territory and one to the. county, before entering upon the duties of his office. This plain provision, of the law was neglected by the probate judge in the case before us, and a bond not authorized by the statute was accepted by him. We express no opinion as to the liability of the parties to such a bond.

The judgment of the court below is affirmed.

Sghaeffer, C. J., and Boreman, J., concurred.