Cunningham v. Moody

Idaho Supreme Court

Cunningham v. Moody

28 P. 395, 3 Idaho 125, 35 Am. St. Rep. 269, 1891 Ida. LEXIS 3

CourtIdaho Supreme Court

DecidedNovember 27, 1891

StatusPublished

Cited by9 cases

This text of 28 P. 395 (Cunningham v. Moody) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cunningham v. Moody, 28 P. 395, 3 Idaho 125, 35 Am. St. Rep. 269, 1891 Ida. LEXIS 3 (Idaho 1891).

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Opinion

MORGAN, J.

Petitioner asks the court for a writ of mandate to compel the respondent to allow his account at the rate of three per cent upon the sum of $149.96 belonging to the state, and collected in Boise county, under section 1679, and the fifth subdivision of section 2157 of the Revised Statutes of Idaho. To the petition the respondent interposes a general demurrer. Section 4 of an act concerning fees and compensation of county officers (1st Sess. Laws Idaho, p. 179), so far as it relates to the compensation of the auditor in the assessment and collection of taxes, is as follows: “As the auditor, he is allowed and may receive, when not otherwise provided by law, fees as follows: For all services in connection with the assessment and collection of taxes and other duties relating to revenue, for each year, except licenses, ten cents per name.” Section 8 of the same act provides “that all acts and parts of acts inconsistent with this act be, and the same are hereby, repealed.” Such parts of section 1679, and subdivision 5 of section 2157 of the Revised Statutes, as relates to the fees of the [126]*126county auditor, are plainly inconsistent with the provisions of section 4 of the first Session Laws, as above quoted, and are therefore repealed. The auditor is allowed ten cents per name for all his services in connection with the assessment and collection of taxes, and no, more. All compensation due the county auditor, not chargeable to or received from other sources, is to be paid to him by the county. (See 1st Sess. Laws, p. 180, sec. 2161, subd. 10; Const., art. 18, see. 7; Hillard v. Shoshone Co., ante, p. 103, 27 Pac. 678.) All taxes levied and collected for state purposes must be paid into the state treasury, without any deduction for commissions or ot’ charges. (Const., art. 7, sec. 7.) This section of the constitution is self-acting, and goes into effect without any legislation. The demurrer is sustained, and the petition dismissed, with costs awarded to respondent.

Sullivan, C. J., and Huston, J., concur.

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MORGAN, J.

Petitioner asks the court for a writ of mandate to compel the respondent to allow his account at the rate of three per cent upon the sum of $149.96 belonging to the state, and collected in Boise county, under section 1679, and the fifth subdivision of section 2157 of the Revised Statutes of Idaho. To the petition the respondent interposes a general demurrer. Section 4 of an act concerning fees and compensation of county officers (1st Sess. Laws Idaho, p. 179), so far as it relates to the compensation of the auditor in the assessment and collection of taxes, is as follows: “As the auditor, he is allowed and may receive, when not otherwise provided by law, fees as follows: For all services in connection with the assessment and collection of taxes and other duties relating to revenue, for each year, except licenses, ten cents per name.” Section 8 of the same act provides “that all acts and parts of acts inconsistent with this act be, and the same are hereby, repealed.” Such parts of section 1679, and subdivision 5 of section 2157 of the Revised Statutes, as relates to the fees of the [126]*126county auditor, are plainly inconsistent with the provisions of section 4 of the first Session Laws, as above quoted, and are therefore repealed. The auditor is allowed ten cents per name for all his services in connection with the assessment and collection of taxes, and no, more. All compensation due the county auditor, not chargeable to or received from other sources, is to be paid to him by the county. (See 1st Sess. Laws, p. 180, sec. 2161, subd. 10; Const., art. 18, see. 7; Hillard v. Shoshone Co., ante, p. 103, 27 Pac. 678.) All taxes levied and collected for state purposes must be paid into the state treasury, without any deduction for commissions or ot’ charges. (Const., art. 7, sec. 7.) This section of the constitution is self-acting, and goes into effect without any legislation. The demurrer is sustained, and the petition dismissed, with costs awarded to respondent.

Sullivan, C. J., and Huston, J., concur.

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Bluebook (online)

28 P. 395, 3 Idaho 125, 35 Am. St. Rep. 269, 1891 Ida. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-moody-idaho-1891.

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