Board of County Commissioners v. Lunney

46 Colo. 403

• Court: Supreme Court of Colorado
• Decided: September 15, 1909
• Docket: No. 5698
• Status: Published

Opinion

Mr. Justice Hill

delivered the opinion of the court:

While this cause has been pending here, Mr. H. S. Class, the present county clerk and recorder of Adams county, filed his petition herein seeking to he substituted as the defendant in error, in which he prayed' the benefit of the judgment, secured hy the defendant in error in the lower court, go to him in his official capacity as the present county clerk and recorder of Adams county; thereafter, through counsel, he asked leave to withdraw same, which leave is granted. The evidence shows the work was done and completed while the defendant in error, Mr. Lunney, was the county clerk and recorder of Adams county, and hy the construction we have given the statute neither the county of Adams, nor its present clerk, can have any interest in the result of this particular litigation.

The first error assigned for our consideration, is, the court erred in denying the application of Mr. Freeman to intervene. This can be disposed of with the statement that at the time of the oral argument in this court, Mr. Freeman appeared by counsel and asked leave to withdraw his petition for intervention. We see no reason why this should not be done, and it is so ordered.

Some nineteen other assignments of error have been reserved in the record, but counsel in their printed briefs, as well as in oral argument, have confined themselves to three principal questions: First, the action was brought by the defendant in error in his individual capacity without joining with him the county of Adams, and for his personal use and benefit; the amount claimed being in excess of his salary as county clerk and recorder, under the constitution and salary act, for which reason he was not entitled to recover for this work in excess of his salary; second, that no verified itemized account was ever presented to the plaintiff in error for audit and allowance, as provided for by law, and until that was done and it was allowed, no action of this kind could be maintained, “after the passage of the resolution by the board reversing the former action of the board of supervisors”; third, that incompetent evidence was admitted over the objections of the plaintiff in error.

Many of the questions raised can be eliminated, and while this cause could properly be disposed of by deciding only one line of the contentions, yet from the extremely different views taken by counsel upon the principal question we have thought it proper to place our construction upon the statute in dispute to avoid having the main contention again brought to this court for review.

The defendant in error, after the adoption of sec. 5 of the amended act of 1903, appears to have proceeded upon the assumption that the act intended that he, by being the then county clerk and recorder of Adams county, should have performed the work of transcribing the records called for, and that he was entitled to éollect and receive therefor such rate as might be fixed by the board of county commissioners of the county of Adams not to exceed the maximum rate provided by the act, and the difference between the amount necessary to be paid to have the work done and its actual cost, if any, should belong to him as his profit, and as the county commissioners of Adams county had fixed the rate at ten cents per folio he was entitled to make that charge and have the work paid for at that rate to- him, regardless of what the actual outlay and expenditure was for having this work done.

"We do not think the statute should be given this construction, or that it was the intention of the legislature, by the passage of this section to adopt a provision whereby a county clerk (being an agent for his county) should be given a monopoly upon certain work to be done, being necessary by the creation of the new county, and provide in the act a system whereby he could speculate and thus secure or make a profit to himself, not only from his own county but also from the mother county, out of which his was created. We find many places in the statutes of this state wherein it is provided it is the duty of the county clerk to have certain things done; for instance, our statutes provide the county clerk shall cause to be published certain election notices; he shall likewise cause to be printed certain lists of nominations preceding an election. The statutes further provide that certain rates shall be paid for snch publication, and it is left to the discretion of the county clerk, in certain instances, in what newspapers such notices and lists of nominations, etc., shall be published. In such cases, could it be held that the county clerk could make a contract with some particular paper to have these publications placed in that paper at certain rates, he himself make payment at the rate contracted, say a much smaller rate than that fixed by law; take an assignment of the claim; collect the legal rate and be entitled to the profit? We think the same rule should apply to this work as any other wherein it is provided the county clerk shall have certain things done.

In the interpretation of a statute the legislative purposes and object are always to be borne in mind, and an indispensable requisite is to first inquire what object was sought to be accomplished by it. The intent of the statute is the law, and general words may be restrained to it and those of a narrower import may be expanded to embrace it to effectuate that intent.—Sutherland Statutory Construction, § 218; People v. May, 9 Colo. 85; Rogers v. People, 9 Colo. 455; Carlisle v. Pullman Car Co., 8 Colo. 327; Omar v. Soper, 11 Colo. 386; Murray v. Hobson, 10 Colo. 72; Arapahoe County v. Hall, 9 Col. App. 541. And as stated by Mr. Sutherland and quoted with approval by Mr. Justice Gabbert of this court in the case of Brewer v. Harrison, 27 Colo. 352: “The intention of an act will prevail over the literal sense of its terms.” An unusual and extraordinary investiture of power should not be inferred from doubtful or ambiguous language found in a statute.’—People ex rel. Eaton v. District Court, 18 Colo. 26.

The statute under consideration states: “The county clerk shall have transcribed all records, * * * ” it does not say the clerk shall do this work, but shall have it done. Neither does it say he shall be paid for it or be entitled to receive any sum, but the cost of transcribing the said records and the manner of paying therefor shall be determined as provided for other matters of revenue in sec. 9, provided that the rate of compensation to- be paid for transcribing said records shall be fixed by the board of county commissioners of Adams county at a rate not to exceed ten cents per folio-. We- do- not think this language clearly indicates any intention to allow the county clerk to have the rate fixed in the way of fees or was intended otherwise than to provide that the actual expenses necessary, not to- exceed the maximum amount, could be paid for having this work done, and we find nothing in sec. 9 of the act indicating otherwise. The fact that the board of county commissioners of the county of Adams saw fit to pass the resolution above stated does not change the law. This resolution, taking into- consideration the law under which they were acting, did no more than fix a rate above which Mr. Lunney could not go in having these transcripts made, and simply allowed him to enter into- contracts or employ persons or make other necessary arrangements for having these transcripts made, and, if the actual expenditure was not that amount or was a smaller amount, then no greater amount than the actual amount so expended can be collected from the sundry counties for the work.

In this case the county clerk was an agent for the county; and certainly it was not intended that he should be allowed to speculate or secure any profit beyond his maximum salary and other legitimate expenses out of the funds of his principal. Neither do we think it wás intended that Adams county should be placed in a position where it could speculate or secure a profit on this work from the city and county of Denver, which is paying over ninety per cent, of the total.

At the same session of the legislature we find three other bills were passed on similar subjects, one concerning South Arapahoe county, which provides the city and county of Denver should have the records pertaining to that county transcribed, and the clerk of the mother county should cause to be advertised a notice for bids, etc., and should let the contract to the lowest responsible bidder.

In the case of territory taken from Adams county and added to Washington and Yuma counties to become binding, after a vote of Adams county, it was provided in each of these bills:

‘ ‘ The Board of County Commissioners of Adams County shall cause duly certified transcripts of record * * *, to. be made * * * at the expense and under the directions of the Board of County Commissioners of said other counties.” . 4

In this case it states the county clerk of Adams county shall cause to be done, etc. In the case of South Arapahoe county could it be urged the county clerk of Denver could speculate in the matter, or in the case of Washington and Yuma counties, could it be said the board of county commissioners of Adams county could collect more than the actual expenditure therefor? We do not think so, and again must come back to the conclusion that in this case the legislature intended the county clerk of Adams county could have this work done to the best advantage under a system satisfactory to all concerned, and incur, upon behalf of the two. counties, liabilities therefor to this extent, or make payment thereof and be reimbursed such amounts with two checks upon him: first, he could not go above the maximum fixed by the law; second, not to exceed the rate fixed by the board of county commissioners of Adams county, which rate, fixed by the board, could not be greater than the maximum provided by law.

In addition, sec. 12 of our salary act of 1899 prohibits the defendant in error from receiving any additional compensation as such county clerk in excess of the maximum salary provided by that act.—Larimer County v. Bransom, 4 Col. App. 274; Henderson v. Pueblo County, 4 Col. App. 301; Leonard v. Garfield County, 8 Col. App. 338; Walpole v. Pueblo, 12 Col. App. 151.

As we view it, this act is á contract between him and the people, which fixes his maximum compensation for all services performed by him during the period of his incumbency in the office. We do not mean by this to say that the defendant in error, in case he performed a part of these labors himself, should not receive reasonable compensation therefor as a part of the expenses incidental thereto, or should not be reimbursed for all outlays and reasonable expenditure made or incurred by him in connection with having this work done, provided that the total is brought within the maximum provided for by law. In case he spent a part of his time in superintending this work, making his arrangements therefor, etc., we are of the opinion he should receive reasonable compensation therefor, but the total to be so paid him for his individual time should not exceed, with the fees received by him from Adams county as its clerk, the maximum salary for that office.

In the passage of an'act it is presumed the legislature is acquainted with the laws of its state which apply to or affect the subject upon which it legislates. It is also presumed that the legislature does not intend to make any change in the existing law beyond what it expressly declares.—Sutherland Statutory Construction, vol. 2 (2d ed.), sec. 499; and when it provided the county clerk of Adams county should have this work done it knew the amount of the salary to which he was entitled, and had it intended to increase it, it is presumed the act would have so stated.

Upon the second principal contention discussed, sec. 800, vol. 1, Mills’ Ann. Stats., reads in part as follows:

“No account shall he allowed by the board of county commissioners unless the same shall be made out in separate items, and the nature of each item stated, * * * which account so made out shall be verified by affidavit; * * * ” • ,

While sec. 801 reads in part as follows:

“All claims and demands held by any person against a county shall be presented for audit and allowance to the board of county commissioners of the proper county, in due form of law, before an action in any court shall be maintainable thereon,

One of the bills presented by defendant in error to the board of supervisors of the city and county of Denver, while they were purporting to act as the board of county commissioners, reads as follows:

“Denver, Colorado, May 2,1905.

“The City and County of Denver to C. E. Lunney.

‘ ‘ To transcribing that part of the records of the former County of Arapahoe affecting the present County of Adams, as follows:

General Real Estate Records, 311,419

folios at 10c.....................$31,141.90

Due from Adams County.............. 1,498,20

Due from the City and County of Denver..............................$29;643.70

Less amount paid by the City and County of Denver..................... 14,041.35

Balance due from City and County of Denver...........................$15,602.35 ’ ’

The others were similar in form. These bills were presented to the board of supervisors, while they were purporting to act as a board of county commissioners. The only claim ever presented to the plaintiffs in error was as follows:

“Denver, Colorado, July 17, 1905.

“To Thomas A. Uzzell, Eugene McCarthy and William A. Lawson, constituting the Board of County Commissioners of the city and county of Denver, and ' .

“To A. K. Vickery, ex-officio clerk of the board of county commissioners of the city and county of Denver.

‘ ‘ Demand is hereby made upon you and each of you for the issuance of warrants to me in the sums of fifteen thousand six hundred and two and 35-100 ($15,602.35) dollars, eight thousand four hundred and fifty-nine and 39-100 ($8,459.39) dollars, one thousand and forty-eight and 13-100 ($1,048.13) dollars, four thousand four hundred and four and 8-100 ($4,404.08) dollars, and seven hundred and sixteen and 59-100 ($716.59) dollars, respectively, the balance due from the city and county of Denver for transcribing that portion of the records of the former County of Arapahoe affecting the present county of Adams, which said bills were heretofore and on, to wit: this 27 day of June, A. D. 1905, allowed and approved by the board of supervisors of the city and county of Denver, performing the duties of the board of county commissioners. C. E. Lunney.”

This was served July 17,1905, which is conceded was in ño manner a compliance with the provisions of the statute.

Counsel for defendant in error, appreciating the force of this position, seek to avoid it by the contention that the claims' of the defendant in error had been presented to and allowed by the board of supervisors at a time when it was acting as a board of county commissioners, and introduced evidence which showed the supervisors did pretend to audit and allow these claims and ordered them paid, and they contend the act of the supervisors in allowing-them is as binding on all parties concerned as any act of a board of county commissioners can be, and it was upon the allowance of these claims by the board of supervisors that this proceeding is based. That tribunal, constituting the de facto hoard of county commissioners as the fiscal agents of the city and county, was clothed by the statute with ample and full authority to pass upon the validity of these claims, and their action, when in favor of a claimant, is not reviewable by the courts under our statute.

They further claim the legal right in the defendant in error to warrants upon the treasurer against the special fund was perfected under the conditions above stated, and cite some authorities in support of this position.

The plaintiffs in error, at the 1904 election, had been duly elected as the board of county commissioners of said city and county. At the proper time in January, 1905, they attempted to qualify and secure possession of their offices; demands were made and refused; suits were instituted in the district court to settle that contention, which, ultimately, reached this court, in which action the decision of this court was rendered upon June 23,1905. On June 27,1905, four days after this court had held they had no right to do so, the board of supervisors attempted to act in this matter hy their purported allowance of these claims.

It is true, as contended by counsel, a motion for a rehearing was filed in that case on July 3, 1905, and denied on July 10th, during which time counsel contend it was proper for the board of supervisors to continue to act as a de facto board of county commissioners; that the judgment of this court, under its rules, did not become final until July 10th, and for that reason the acts of the board should be held valid and was mot subject to review by their successors. The judgment of this court gave to plaintiffs in error no new right or office to which they were not entitled, but simply awarded to them the right of possession to offices to which they had been elected by the people at the preceding election. It is not to be presumed this court will grant rehearings, and, while we do not desire to be understood as saying that the actions of the board of supervisors — acting de facto as a board of county commissioners, during the period from the rendition of the judgment in that case until the time of the denial of the motion for a rehearing — were absolutely void, we are of the opinion, under these circumstances, where bills purporting to have been allowed were not in conformity with the provisions of the statute, and which appear to have been allowed under an erroneous construction of its" provisions and in a case where the rights of innocent purchasers or other third parties had not intervened and within a very short time after the former actions, and, while the matter was not yet completed, in that the statute provides the warrants shall be signed by the chairman and clerk, which had not been done, that it is not such a final action as would prevent the board of county commissioners de jure, after coming into their offices, from reconsidering the actions of the de facto board for the purposes, as stated in the resolution “in the interest of the taxpayer, of allowing an investigation by their attorney” in order to be properly advised so as to be able to pass intelligently upon the validity of these claims, and we have been furnished no authorities by counsel holding otherwise in a case like the one at bar.

It must be remembered the board had only been given possession of their offices seven days preceding the date of this demand, and this, in the largest populated city and county of the state, where, of necessity, there must accrue a large amount of business from day to day to be disposed of. They had taken possession of these offices, not in the usual manner provided for county commissioners, one at a time, some member of past experience always being on the board, but all three at once, possibly without prior experience in handling the large finances of a county of this class. This action, upon the part of the board, did not defeat any rights of the defendant in error, and was not a refusal to pay any proper claim due him by the county; it was his privilege then, as it is now, to have presented to the regular board.his bills properly itemized in compliance with the statute, and in case they were or are disallowed he has his right to appeal therefrom.

The case of the State ex rel. Clark v. Bufalo County, 6 Neb. 454, relied upon by counsel where it is contended the claim had been adjudicated by one board and for that reason .could not be reviewed by their successors, is not in point. In that case both boards were de píre boards and, after the allowance of the claim by the first board (which was for the construction of a bridge), an injunction was sought to be obtained in the district court enjoining the commissioners from making payment of the claim, which action was taken to the supreme court, where it was held the claim was properly allowed as being within their jurisdiction. Thereafter, after the election of the new board and after this decision by the supreme court, the new board attempted, by resolution, to rescind the action of its predecessors, and it was held by the supreme court of Nebraska it could not be done.

Neither do we think the dictum upon this subject in the case of Garfield County v. Leonard, 3 Col. App. 579, is authority for the position contended for by counsel, while in that case at page 580 we find Mr. Justice Reed, quoted with approval from the case of Roberts v. People, 9 Colo. 458, the following:

‘ ‘ The rule governing the allowance of claims by the board of county commissioners is that the authoi*ity must be found in the statute, either in express words or by fair implication. In other words, in order to bind the county, the county commissioners must act within the scope of their authority. Where a claim is clearly not a legitimate charge against the county, the county commissioners have no power to allow it, and its allowance would neither bind nor estop the county; as, for example, where the commissions of a collector of taxes are fixed by statute at a certain rate per cent, and the board allows him a greater rate.”

In this case the law provides the amount to be paid shall be the actual expenditure necessary to have this work done, and the bills presented to the board of supervisors and allowed were at so much per folio, and so stated in the bills, regardless of the cost thereof, which, under the ruling in the Roberts case, justified the commissioners in their action in rescinding the allowance of these claims for the purpose of the investigation in order to ascertain the exact amount which should be paid; the amount of the allowance was not such a discretionary matter as would be binding, being one controlled purely by the statute. In some states it is held that if the auditor draws warrants for illegal claims he is personally liable.—Walton v. McPhetridge, 120 Cal. 440.

Neither do we think the case of People v. Reed, 11 Colo. 138, is applicable. In that case a vacancy in the office of county treasurer was filled by the board in the forenoon of January 10th, the term of one of the. members had expired at midnight, January 9th, but, according to the pleadings his successor had not qualified at the time of the meeting on the forenoon of the 10th, and the commissioner whose term had expired acted at the meeting on the forenoon of that day and his vote gave a majority for the appointee. The board adjourned from the meeting on the forenoon until the afternoon of the same day; at the meeting held in the afternoon the successor of the commissioner whose term had expired on the day previous sat in the place of the outgoing commissioner. On the afternoon of the 10th, the new board attempted to rescind the action of its predecessors on the morning of the same day and elected another to fill the vacancy in the office of the county treasurer, but during the interim the first appointee had filed his bond, which had been.duly approved; had taken the oath of office and was proceeding in the discharge of his duties, and this court, upon the pleadings, held the action of the old board was valid in as much as the appointee had qualified and-was performing the duties of the office at the time the board pretended to act in the afternoon, that no vacancy existed for the commissioners to fill, and, hence, their resolution attempting to rescind the proceedings of the morning session could not be held to have recreated the vacancy. This decision by Mr. Justice Helm was rendered upon the pleadings. Thereafter, in the case of People ex rel. Williams v. Reed, 11 Colo. 141, involving the same office, upon proof taken it was shown that the newly elected county commissioner had qualified by filing his official bond and taking his oath of office prior to the 10th day of January, and it was then held the successor of the old commissioner whose term expired at midnight on January 9th, having qualified, the old member could not legally participate in the proceedings of the board on the following day, the 10th of January, and the acts of the board in so far as it depended upon his vote were without validity and therefor void, and gave judgment for the appointee of the new board.

There is also1 a line of authorities which hold, under certain circumstances and conditions, such boards can reconsider and rescind their former actions or that of their predecessors.—Tucker v. Justice, 13 Ired. 434; Appel v. State ex rel., 9 Wyo. 187; Hiram Higgins v. H. W. Curtis el al., 39 Kan. 283; Hundley v. Board of Commissioners of Finney Co., 42 Pac. (Kan. App.) 59; 1 Dillon on Municipal Corporations (3d ed.), § 290.

Most of the objections as to the admission of illegal evidence are not liable to be raised again, and we have refrained from considering only such as-might arise in another action over the principal contention, as to that portion of the evidence of the defendant in error, wherein he was allowed to give oral testimony as to what percentage the taxable property of Adams county bore to the taxable property of the city and county of Denver, in which he stated he got his figures from the board of appraisers appointed under the provisions of this law. A motion was made to strike out this evidence, which was overruled and exception taken. He was further allowed, over objections, to testify as to what this board of appraisers found and • as to what they did; no member of this board of appraisers was called as a witness and no record evidence furnished as to their findings. We do not think this evidence was proper; it simply being statements as to what some one else told him. Certainly there was some record evidence of the action of this board of appraisers which could have been presented by proper certificates; if not, the members of the board themselves should have been called or some reason presented why proper evidence could not have been furnished upon this subject. The defendant was allowed to. give evidence as to what this board of appraisers did in the way of ascertaining the percentage of the taxable property in Adams county and the city and county of Denver; without any further showing, we think this was, for the same reasons, incompetent, and without which evidence it leaves the court without any proper showing as to what percentage of the claims, if lawful, should have been paid by the city and county of Denver. The same ruling should apply to the evidence of the defendant in error as to what the findings of the committee were, which he claims checked up the number of folios so transcribed by him.

For the reasons stated, the judgment is reversed and the cause remanded with instructions that the action be dismissed without prejudice to the rights of the defendant in error.

Reversed and remanded.

Chief Justice Steele and Mr. Justice Gabbert concur.