| Idaho | Jul 20, 1922
-The appellant, as resident and taxpayer of Highway District No. 1, Bonner county, instituted this action against respondent, a member of the board of commissioners of the district, for the recovery of certain sums alleged to have been illegally paid to him while a member of the board.
From the record it appears that on April 7, 1919, the board passed a resolution allowing respondent $10 per month for the use of his office and furniture and for services rendered by him as notary public in taking verifications of claims against the district; that thereafter, pursuant to said resolution, respondent presented his claims and was allowed $10 for each month from June to' December, 1919, inclusive, amounting to $70, and also presented and was allowed certain claims, amounting in all to about $30, covering the use of his automobile on official business at various times during the period. Appellant demanded of the board that an action be brought to recover the amounts claimed, which demand was by the board refused. The court found
Judgment of dismissal was entered, from which, and from an order denying motion for a new trial, this appeal is taken.
C. S., secs. 1514 and 1515, are as follows:
“Sec. 1514. The highway commissioners shall receive no compensation for their services as commissioners, but shall receive the amount of their actual and necessary expenses incurred in the performance of their official duties. The board shall fix the compensation to be paid to the other officers named in this chapter, and of the agents and employees of the board, to be paid out of the treasury of the district.
“Sec. 1515. No highway commissioner or any other officer or employee of the district shall in any manner be interested, directly or indirectly, in any contract awarded or to be awarded by the board, or in the benefits to be derived therefrom, other than such interest as may arise from his ownership of property in such district, or contributions to highway construction or improvement; and for any violation of this provision such commissioner or officer shall be deemed guilty of a misdemeanor, and such conviction shall work a forfeiture of his office and he shall be punished by a fine not to exceed $500 or by imprisonment not to exceed six months, or by both such fine and imprisonment. ’ ’
This action can be maintained by appellant in ease the contracts or claims upon which the money was paid to respondent were void. (Independent School Dist. v. Collins, 15 Idaho 535" court="Idaho" date_filed="1908-12-08" href="https://app.midpage.ai/document/independent-school-district-no-5-ex-rel-moore-v-collins-5169578?utm_source=webapp" opinion_id="5169578">15 Ida. 535, 128 Am. St. 76, 98 P. 857" court="Idaho" date_filed="1908-12-08" href="https://app.midpage.ai/document/independent-school-district-no-5-ex-rel-moore-v-collins-5169578?utm_source=webapp" opinion_id="5169578">98 Pac. 857.) Section 1515, supra, was enacted for the protection of the taxpaying
The only question is as to whether these claims come within the prohibition of section 1515. The language of the statute is peculiar, in that it prohibits any commissioner from being interested directly or indirectly in any contract “awarded or to be awarded by the board.” As to the contract for office rent and services as notary public, there can be no question. This was a contract awarded in advance and violates both the letter and spirit of the statute. (Robinson v. Huffaker, 23 Idaho 173" court="Idaho" date_filed="1912-12-30" href="https://app.midpage.ai/document/robinson-v-huffaker-5170261?utm_source=webapp" opinion_id="5170261">23 Ida. 173, 129 Pac. 334.)
Some question arises in regard to the payment of the reasonable value of the use of respondent’s automobile. It is clear that this payment was not made under section 1514, supra, for it is not an actual and necessary expense incurred by respondent for the performance of his official duties. It was allowed as “auto hire.” We are of the opinion that the words “awarded or to be awarded” .were not intended to restrict the operation of the statute to contracts awarded in advance of performance. We are confirmed in this opinion by reason of the fact that the statute does not require the board to let contracts in advance for the construction of its works, but, on the contrary, grants broad and liberal powers to the board for the construction, maintenance and repair of highways under its own supervision. An allowance for “auto hire” implies or presupposes an agreement to pay. A contract expressly prohibited by law cannot be implied. It comes within the spirit, at least, of the prohibition against awarding contracts to members of the board. (See Tallman v. Lewis, 124 Ark. 6" court="Ark." date_filed="1916-05-01" href="https://app.midpage.ai/document/tallman-v-lewis-7808252?utm_source=webapp" opinion_id="7808252">124 Ark. 6, 186 S. W. 296.)
An argument is made on behalf of respondent to the effect that unless these claims can be held to be valid, great inconvenience will result to the highway district and greater expense will be incurred in conducting its affairs. Consid
The judgment is reversed and the cause remanded. Costs awarded to appellant.