School Dist. No. 61 v. Bank Trust Co. , 50 Idaho 711 ( 1931 )

ON REHEARING. (Filed October 19, 1931.) Upon a rehearing of this case at Pocatello at the September, 1931, term, the appellant urged that county officials in countersigning the forged order in question and in the issuance and payment of the warrant thereon were not acting in a governmental capacity.

Justice Budge, quoting from Cyc., in the case of BoiseDevelopment Co., Ltd., v. Boise City, 30 Idaho 675,167 P. 1032, defined governmental functions as follows: "Legal duties imposed by the state upon its creature, which it may not omit with impunity but must perform at its peril . . . . They are all imposed by statute, and are necessarily mandatory and peremptory functions . . . ." (28 Cyc. 267), which was again reiterated by him in the case of Youmans v. Thornton,31 Idaho 10, 168 P. 1141.

This court in the case of Common School District No. 27 v.Twin Falls Nat. Bank, ante, p. 668, 299 P. 662, in discussing the acts of the county officials leading up to the payment of moneys from the funds of a school district stated that "an order by the district, countersigned by the county school superintendent, directed to the county auditor, is an absolute prerequisite to the issuance by the county auditor of a warrant on the county treasurer, to be charged against the funds of the district . . . . The statute specifying the procedural method must be followed, and the warrant issued to the payee in the order" (citing authorities), thus holding that the acts of such county officials in the acceptance, approval, redemption and payment of the forged order in question were mandatory and peremptory functions and clearly within the above definition of governmental functions.

The appellant also urged that the facts in this case fall within the exception recognized in the case of Wilkinson v.Boise City, 16 Idaho 150, 102 P. 148, to the general rule that the doctrine of equitable estoppel does not apply to a subdivision of the state exercising governmental functions. This court in that case, while recognizing this general rule, however, holds that there are exceptional cases in which the doctrine of laches and estoppel should be applied, such as in that case where the municipality has "recognized so-called private rights for a great number of years, and have stood by while valuable improvements were being erected, and it would work a fraud and irreparable wrong and injury upon the private individual to allow the city to invoke a stale legal right." The case at bar does not disclose facts which fall within any such exception, but on the contrary, presents facts showing that moneys of the school district have been unlawfully paid to and received by appellant bank by reason of a forged order.

This court has concluded that the payment of the forged order in question was not even a voluntary payment by respondent school district as is contended by appellant. However, giving it that favorable construction, it is a well-established rule of law that voluntary payments illegally made by a school district can be recovered and this court has gone so far as to hold that even though a school district has received a benefit from the transaction, which is not true in this case, no equitable considerations stand in the way of recovering back such moneys voluntarily but illegally paid. (Independent SchoolDist. v. Collins, 15 Idaho 535, 128 Am. St. 76, 98 P. 857;Independent School Dist. v. Mittry, 39 Idaho 282,226 P. 1076.)

As shown by the decision of this court in the case ofCommon School District v. Twin Falls National Bank, supra, moneys of a school district can only be paid out upon a valid order and the county officials had no authority or power to pay out moneys of respondent school district upon a forged order. Their act in so doing is prohibited by statute and is void. A void act is no act and a void payment is no payment. Such payment is not voluntarily made by the district but is made by the county officials in excess of their authority and in defiance to respondent school district's rights. (Village ofFt. Edward v. Fish, 156 N.Y. 363, 50 N.E. 973, at p. 975; AdamsCounty v. Ritzville State Bank, 154 Wash. 140, 281 P. 332.) This being true, there also could be no adoption and ratification of the forged order in question by any acts of the county officials.

Judgment affirmed.

Budge, Givens, Varian and McNaughton, JJ., concur.