Kootenai County v. Dittemore , 12 Idaho 758 ( 1906 )

SULLIVAN, J.

This action was brought by Kootenai county against the defendant Dittemore, to recover money alleged to have been unlawfully received by him for per diem and expenses as county commissioner for the term beginning January 9, 1899, and ending January 14, 1901. The defendant interposed a demurrer to the complaint on four grounds as follows: 1. That the court had no jurisdiction of the subject matter of the action; 2. That the complaint does not state facts sufficient to constitute a cause of action; 3. That there was another action pending between the same parties for the same cause; and 4. That the complaint is ambiguous, unintelligible and uncertain in that it does not allege any fact or facts showing that the said defendant received any sum or sums of money in excess of his legal per diem and expenses incurred by him as county commissioner in and for Kootenai county. Said demurrer was sustained by the court and judgment of dismissal entered. This appeal is from that judgment of dismissal.

While the record does not show upon what grounds the demurrer was sustained, we think it is conceded that it was sustained upon the ground that the court had no jurisdiction, as it is contended that the-only remedy was by appeal from the order of the board of county commissioners allowing the claim of said defendant. Section 1776, Revised Statutes, as amended by act of February 14, 1899 (Sess. Laws, p. 248), provides that an appeal may be taken from any act, order or proceeding of the board of county commissioners by any person aggrieved thereby or by any taxpayer of the county, when any demand is allowed against the county, or when he deems any such act, order or proceeding illegal or prejudicial to the public interest.

Counsel for appellant rely upon McNutt v. Lemhi County ante, p. 63, 84 Pac. 1054. That case involved the payment of county warrants for the construction of a road, which warrants were in excess of any indebtedness that the commissioners could legally incur under the statute. This court held in that case that the provisions of section 1776 provide the right to appeal only for persons and taxpayers, and do not contemplate the county itself as a municipal corporation taking an appeal from the actions or orders of its own board of commissioners. This court held in Fremont County v. Brandon, 6 Idaho, 482, 50 Pac. 264, that an order allowing a county officer compensation to which he was not entitled by law, made by a board of county commissioners, was void for want of jurisdiction, and might be attacked collaterally. As bearing upon the question under consideration, see Dunbar v. Board, 5 Idaho, 407, 49 Pac. 409; Ada County v. Gess, 4 Idaho, 611, 43 Pac. 71. Upon the authority of those cases, the judgment of the lower court must be reversed and the cause remanded, with instructions to overrule the demurrer and to permit the defendant to answer. Costs are awarded to the appellant.

Ailshie, J., concurs.