Bingham County v. Bannock County

Counts' Indebtedness — District Court to Ascertain the Amount Due erom New County. — In the organization of a new county out of territory included in an existing county, it was provided by the act of organization that the debt of the old county should be ascertained and apportioned by the district court at its next regular term after the organization of the new county. This was done and the amount found due from the new county duly certified, but there existed at the time an unascertained indebtedness from the old county to another county, which fact was at the same time certified by the district court, together with the further finding that when the amount of such indebtedness was ascertained, the new county would be liable for its portion thereof. Meld, that the new county was liable for its portion of such indebtedness when the amount thereof was ascertained. (Syllabus by the court.)'

APPEAL from District Court, Bingham County. On the sixth day of March, 1893, <the governor of Idaho approved an act of the legislature entitled “An act to create and organize the county of Bannock, to fix the county seat of said county, to provide for the apportionment of the indebtedness of Bingham county between Bingham county and Bannock count3r,” and some other incidental matters. (Laws 1893, p. 170.) Two days before that, to wit, March 4, 1893, the governor had approved an identical act for the creation of Fremont county, also carved out of old Bingham, and making the same provision for the apportionment of Bingham’s indebtedness with the new county of Fremont. (Laws 1893, p. 94.) The legislature fixed upon a swift and summary method for ascertaining the amount of the handicap with which the new counties should be burdened. It was provided that the indebtedness of the county of Bingham, “at the date this act takes effect,” should be apportioned between the new counties by deducting from the whole indebtedness all the moneys on hand or belonging to Bingham, or possessed or under its control, plus the value of all -permanent public property left within its new boundaries, and dividing tbe remainder between tbe new counties “in sucb proportion as tbe taxable property of eacb county bore to the entire taxable property of Bingham” before she was decapitated on tbe north and amputated on the south; and the assessment of 1892 was to be the standard for fixing values. (Laws 1893, p. 95, see. 6; Laws 1893, p. 172, sec. 6.) Then, at the first meeting of the boards of commissioners of the three counties, they were each to appoint an accountant, etc.; the accountants were to meet within five days after their appointment at Bingham’s county seat— i. e., Blac-kfoot; they were to be sworn to do their duty, make the necessary investigations to comply with the provisions of section 6 of both acts, and “immediately report the same in writing to the judge of 'the district court of the fifth judicial district.” (See section 7 of both acts.) Let it be noted that no indefinite or continuing jurisdiction is here conferred on the judge of the district court. There are just three things that he is directed to do, and when he has done them, his work is completed. He can do nothing more, for his special jurisdiction takes or makes its exodus like a soul from a dead body. He fixes values (1), apportions a debt (2), and makes three certificates of what' he has done under the legislative mandate (3). His certificates, in essence, are special findings and judgments. There never was but one time when the judge of the district court had the power and authority to do the three things mentioned above. That was the “first next regular session of the district court of Bingham county,” after the accountants had been appointed by the three boards of commissioners. ' (Section 7, both acts of 1893, pages 96 and 172.) The act was mandatory in its provisions, and not directory merely. The things required to be done could not be just as well or just as legally done, six months or a year after the accountants were duly appointed under the legislative enactment. The question as to whether a statute is directory or mandatory is easy of solution and particularly so in the present ease. The rule, briefly stated, is, that statutes will be considered directory when such a construction of them will not cause any advantage to be lost, or right to be destroyed, or benefit to be sacrificed either to the public or to any individual. (Cooley’s Constitutional Limitations, 176; Wheeler v. Chicago, 24 Ill. 108, 76 Am. Dee. 736.) The plaintiff, in effect, is suing upon a judgment which has been paid. No such action or proceeding can be maintained. The plaintiff’s own petition or pleading shows this fact, and brings the plaintiff within the legal principle that no action will lie upon a judgment which appears by the record to have been satisfied. (Pratt v. Jones, 22 Vt. 314, 341.) An account stated is an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment. (Zacarious v. Palotti, 49 Conn. 38.) No bill of particulars need be filed. {Salem Gravel B. Co. v. Pennington, 62 Ind. 175.) In this case Bingham County exhibited its bill against Bannock county. Bannock county, by its expert accountant then present, agreed that it was correct, and decree was entered, not for a further accounting, but for the amount Bannock county had-promised to pay, to wit, $94,929.65. If the plaintiff had knowledge of any other items, or gross sums, pertaining to the -indebtedness of Bingham to Alturas, or any other county, it was bound to bring them forward then and there, or else be barred forever concerning the same. Notwithstanding the lengthy rhetoric of appellant’s brief, resistance to the respondent’s claim is fractious in the extreme, and this appeal is wholly without merit. The gist of the matter is: 1. That when Bannock county was created, old Bingham county was burdened* with a heavy debt, which Bannock county had assisted in creating, and a portion of which she was equitably bound to pay; 2. That in consideration thereof the legislature fixed the amount of said apportionment, and in the cre-tive act itself imposed on Bannock county the legal obligation of paying the same; 3. That at the time of the creation of Bannock county, besides other indebtedness of which Bannock county has paid its proportion and no more, Bingham county owed to Alturas county $7,033.68, with interest, amounting in all to approximately $9,000; 4. That at the time of the apportionment proceedings of August, 1893, the existence of this indebtedness was known and recognized by both counties, though the exact amount was uncertain; 6. That said indebtedness was not apportioned at the time of the general apportionment because the amount thereof was uncertain, and for no other reason, and such uncertainty or contingency was due to no fault or negligence of Bingham county; 6. That at the time of said apportionment proceedings in August, 1893, Bannock county recognized its obligation to pay its proportion of said item, and conceded the impossibility of an adjustment thereof at said time, and agreed that the balance of the indebtedness should be apportioned, and that when this item should be ascertained, it would pay its proportion thereof. There was a subsisting debt; Bannock county owed and owes a portion thereof; she agreed, and the judgment of the court was, that she should pay a certain fixed proportion thereof when the exact amount should be determined. The exact amount thereof has been determined and resistance is made in this proceeding not only to the payment thereof, but to the judicial certification of said amount. No concealments, no mistake, no deception, no fraud, no laches, no estoppel, no equitable defense could be or is attempted to be shown. It is sheer repudiation.