As to this, all the text-writers agree, and their statement is supported by an overwhelming weight of authority." Many authorities hold that all actions abate upon the dissolution of a corporation, voluntary or involuntary. However, said act of our Legislature provides that no action pending against any corporation at the time of such forfeiture shall abate thereby, but may be prosecuted to final judgment. This provision clearly indicates that the Legislature did not intend that any action could be brought and maintained against a corporation after its rights had been forfeited under the provisions of said act. The forfeiture of the rights of the Montana corporation in this state put an end to its existence, so far as this state is concerned, for all purposes whatsoever as a corporate entity, and destroyed all of its powers as such. In other words, the forfeiture of all its rights under the laws of this state meant its legal death, and there remained thereafter nothing but the settlement of its estate, and said act of the Legislature provides how that must be done. It is stated in 5 Thompson on Corporations (2d Ed.) § 6550, as follows: "And while, as will further appear, statutes may provide that the directors and trustees at the time of dissolution shall be trustees of the creditors and stockholders, with power to settle the affairs of the corporation, yet even such a statute does not have the effect of continuing the corporate, existence so as to enable it to prosecute or defend an action in its corporate name." And in section 6555, the author quotes from Nelson v. Hubbard, 96 Ala. 238, 11 South. 428, 17 L. R. A. 375, as follows: "The dissolution of a corporation implies its utter extinction and obliteration as a body capable of suing or being sued." It may be contended that the Montana corporation is not dissolved. As I view it, there is nothing left of that corporation as a corporation; it is dissolved and dead so far as this state is concerned, and had it been a domestic corporation, under the provisions of said act of our Legislature, it would have forfeited its charter, and then would have been dead indeed, but no more dead than the Montana corporation now is, so far as this state is concerned. It was held in Combes v. Keyes, 89 Wis. 297, 62 N. W. 89, 27 L. R. A. 369, 46 Am. St. Rep. 839, that after the dissolution of a corporation, the power to proceed judicially against it is wholly divested except as specially authorized by statute. The act of our Legislature referred to especially reserves the right to creditors and others to sue the directors and managers of the dead corporation in order to enforce any claims or rights that they may have against it after its rights are forfeited. In Mr. Justice STEWART'S opinion, he quotes from section 4329, Rev. Codes, as supporting the doctrine that the court had jurisdiction to appoint a receiver in the case at bar. That section, as I view it, has nothing to do with the appointment of a trustee under the provisions of said act of 1912. There was no showing made by the Idaho corporation for the appointment of a trustee such as is required, under the provisions of said section 4329, for the appointment of a receiver. The law of 1912 was enacted for cases where corporations had forfeited their right to do business in the state by reason of their having failed to pay their license fee, and not for the appointment of a receiver on the grounds provided in said section 4329. The provisions of that section have no application whatever to this case, and none of the grounds authorizing the appointment of a receiver under section 4329 were attempted to be shown in the application to appoint said trustee. I, therefore, conclude: (1) That under the provisions of said section the action of the Idaho corporation could not be maintained against the Montana corporation, it having been commenced subsequent to the forfelture of the Montana corporation of its right to do business in this state; (2) that the trial court had no jurisdiction whatever to appoint a trustee to defend the Montana corporation in said action, as said action could not be maintained under the law. No creditor or stockholder of said corporation can lose any rights whatever by following the provisions of said act of 1912 in winding up the affairs of said corporation in this would in no manner be destroyed or jeoparstate. A right of action of any creditor dized by following its plain provisions. A peremptory writ of prohibition ought to is sue. (25 Idaho, 271) TWIN FALLS COUNTY v. WEST et al. (Supreme Court of Idaho. Nov. 29, 1913.) 1. RECORDS (§ 5*)-FEES-POWER TO CHANGE -COUNTIES. Where a statute fixes the fees to be charged for recording written instruments, the board thority to change the fee and to direct and reof county commissioners have no power or auquire the recorder to record such instruments at a less or different rate than that prescribed by statute. [Ed. Note.-For other cases, see Records, Dec. Dig. § 5.*] 2. REGISTERS OF DEEDS (§ 7*)-ACTION ON RECORDER'S BOND-ESTOPPEL. Where the board of county commissioners entered into an agreement or arrangement with the representative of a land and water company, whereby it was agreed that a certain class of instruments should be recorded at a flat rate of so much per instrument, irrespective of the number of folios contained in the instrument, and the amount charged was equal to the amount required by statute, and the county recorder followed and carried out not For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes the terms of the arrangement and agreement, | appeared before the board of county commisand did the recording for the amount specified sioners of Twin Falls county, and asked the and returned the fees so collected to the county, board to authorize and direct the recorder and made his reports and settled with the county, and the board of commissioners approved to continue the same arrangement and agreeand allowed his reports and accounts, and it is ment in the latter county by continuing to admitted that the recorder turned over to the record all water right contracts issued by county all the fees actually received by him, and after the expiration of his term of office this Land & Water Company at the flat rate and the term of office of the board of commis- of 40 cents each. The appellant West theresioners, who made and entered into such agree- upon advised the board and the representament, the board of commissioners commences an action against the recorder for the collection of tive of the company that the new county was the sum which represents the difference be- paying something like double the salaries tween the amount actually received and the that had been paid in the old county of Casamount required by statute, held, that it would sia, and that it would consequently cost more be inequitable and unjust to allow the county to maintain such action against the officer and to have the instruments recorded, and that his bondsmen, and that the doctrine of estoppel they should charge at least $1 per instruought to apply against the county in such case. ment. It was finally understood and agreed [Ed. Note.-For other cases, see Registers of that these instruments should be recorded at Deeds, Cent. Dig. §§ 15, 16; Dec. Dig. § 7.*] the flat rate of $1 each, and the board of 3. RECORDS (§ 5*)-FEES-RIGHT TO RECOVER. Commissioners so agreed and instructed the Under such circumstances, the only reme- recorder to charge accordingly. Thereafter dy left to the county is to pursue the person or and during West's term of office, he recorded corporation that had the work done for the bala large number of these contracts, both for ance due under the statute. the Twin Falls Land & Water Company, and [Ed. Note.-For other cases, see Records, Dec. Dig. § 5.*] Stewart, J., dissenting in part. Appeal from District Court, Twin Falls S. H. Hays, of Boise City, and Sweeley & Sweeley and W. P. Guthrie, all of Twin Falls, for appellants. A. R. Hicks, Co. Atty., of Twin Falls, for respondent. AILSHIE, C. J. This action was instituted against H. T. West and the U. S. Fidelity & Guaranty Company to recover on an official bond which West had given for the faithful discharge of the duties of clerk of the district court and ex officio county recorder of Twin Falls county. Twin Falls county was formerly a part of Cassia county, and the territory now comprised in Twin Falls county was organized by act of the Legislature of February, 1907, and the appellant West was appointed to the office of clerk of the district court and ex officio county recorder. Prior to the creation of Twin Falls county, and while it was yet a part of Cassia county, the county recorder and board of commissioners of Cassia county had entered into some kind of an arrangement with the Twin Falls Land & Water Company, whereby the county was to give the latter corporation a straight flat rate of 40 cents each for recording what were commonly designated as water contracts, whereby the company contracted with purchasers of water rights for watering lands under their canal system for the sale of such right to the purchaser. At the time West went into office, the representative of the water company later on for the Twin Falls-Salmon River Land & Water Company, and from time to time made a report of his fees to the board of commissioners, and his reports were approved, settled, and allowed, and, after the completion of his term, he went out of office with his accounts all audited, allowed, and approved. Thereafter and on the 29th day of April, 1911, the county, acting through a new and different board of commissioners, caused an action to be instituted against West and the Surety. Company on his official bond, for the recovery of the sum of $8,791.41, together with interest, which represented the difference between the price which he had charged these land and water companies for recording contracts and the amount that the recording thereof would have actually amounted to had he made the regular charge prescribed by the statute for recording such instruments. Defendant West and the Surety Company appeared and answered, and the case went to trial and resulted in a judgment in favor of the plaintiff and against the defendants, from which this appeal has been prosecuted. The material facts of the case are substantially as above set out. [1] The appellant contends that, under these facts, the county is estopped and precluded from maintaining its action against appellants for the recovery of the difference between the fees actually collected and that which should have been collected under the statute. The gist of this argument is that, since the board of commissioners are the chief and superior officers of the county, who have the supervision and control of the financial affairs of the county and the settlements with various county officers and the auditing and allowance of claims and accounts, they could not authorize and direct the recorder to do this recording for a fixed sum, and then, after he has done the work as directed, and collected only the amount agreed upon and after he has settled with the commissioners, maintain an action against him for the collection of the deficiency. [3] It is nevertheless clear that, under the decision of this court in the Lincoln county case, the person or corporation having the work done is liable for the balance which should have been paid at the time the work was done. [2] The question arises under the facts of this case as to whether the doctrine of estop unquestionably be applied to an individual, should not be applied to the county as a municipal corporation. We are aware that this rule is very rarely applied to the state, county, or municipal corporations. It has, however, been adopted in exceptional and unusual cases against municipal corporations in a number of instances and was so applied by this court in Boise City v. Wilkinson, 16 Idaho, 177, 102 Pac. 157, and in commenting upon the rule, the court said: "We recognize that, as a general rule, the doctrine of estoppel does not apply to municipal corporations, and we are not unmindful of the fact that the courts of many states have absolutely refused to apply it to such corporations. We are not prepared, however, to announce an unalterable and unexceptionable rule in this state which would inevitably result in perpetrating wrong and injustice in exception The county, on the other hand, contends that, under the decision of this court in Lincoln County v. Twin Falls North Side Land & Water Co., 23 Idaho, 433, 130 Pac. 788, the board of commissioners had no pow-pel, which under similar circumstances would er or authority to give any such instructions, or to enter into any agreement, whereby the recorder should record instruments for any less sum than that prescribed by the statute (section 2124, Rev. Codes). In the opinion in that case, the court, in discussing the right of the county to sue the company that had the work done, and holding that it might maintain the action directly against the company, said: “It may pursue the officer and his bondsmen, or it may pursue directly the party who had the service performed." That language, however, was used in connection with the general discussion of the liability of the officer to respond to the county for the full statutory fees, as well as the liability of the person or company having the recording done, and accordingly, the court held that the right of action would lie against either the officer or the individual or corporation having the work done and direct-al cases like this. Courts of equity are esly liable for the payment of the fees. No tablished for the administration of justice in question was discussed in that case of the those peculiar cases where substantial jusliability of the officer directly to the county, tice cannot be administered under the exwhere he had acted under instructions from press rules of law, and to adopt a rigid rule the board of commissioners, and had turned that recognizes no exceptions would be to rob over to the county all the fees that he had such courts of much of their efficacy and actually collected under those instructions. power for administering even-handed jusIt is also true that the recorder was not tice. The people in their collective and sovobliged to follow the instructions of the com-ereign capacity ought to observe the same missioners or any one else, when they ran rules and standard of honesty and fair counter to the statute. He might have never-dealing that is expected of a private cititheless insisted on the statutory fees, and have required the payment of the same before doing the work. He no doubt thought, however, that it was his duty to follow the instructions of the board of commissioners, and accordingly did the work here in question at the uniform flat rate of $1 per instrument recorded. It is admitted that the appellant accounted for and turned over to the county all the fees actually received by him. It is evident at a glance that a great wrong and injustice would be done appellant if, acting under these instructions and directions and the evident belief that he had a right to follow the advice and directions of the board of commissioners, he should now be obliged to pay to the county the difference between the fees actually received and the fees which he would have received had he demanded the amount provided by statute. Why the county should prosecute an action against the officer, who did not receive the fees, for the collection of something he did not receive, rather than prosecute an action against the real debtor at whose instance and request the work was done, does not appear. zen. In their collective and governmental capacity, they should no more be allowed to lull the citizen to repose and confidence in what would otherwise be a false and erroneous position than should the private citizen." A large number of authorities were cited in support of the conclusion there reached. In addition to the authorities cited in that case, the following are also in point: Jordan v. City of Chenoa, 166 Ill. 530, 47 N. E. 191; City of Los Angeles v. Cohn, 101 Cal. 373, 35 Pac. 1002; Hubbell v. City, 64 Kan. 645, 68 Pac. 52; Board of Commissioners v. City of Denver, 30 Colo. 13, 69 Pac. 586; Oliver v. Synhorst, 48 Or. 292, 86 Pac. 376, 7 L. R. A. (N. S.) 243; and City of Colorado Springs v. Colorado City, 42 Colo. 75, 94 Pac. 316. It strikes us that it would shock the sense of honesty and fair dealing of the average citizen as quickly for a county or other municipal corporation to recover a judgment against an officer, under facts and circumstances such as are disclosed here, as it would for one individual to recover against another, under a like state of facts and cir (25 Idaho, 284) BLOMQUIST et al., Idaho Tax Commission, v. NOCK COUNTY. cumstances. Estoppel is an equitable doc- ment like this should stand. From what has been said, it follows that the judgment in this case ought to be reversed, and it is so ordered, and the cause is remanded to the trial court, with direction to dismiss the action. Costs awarded in favor of appellant. (Supreme Court of Idaho. Nov. 29, 1913.) 1. TAXATION (4462*)—EQUALIZATION-TAX COMMISSION-CONSTRUCTION OF STATUTE. Idaho Tax Commission (Sess. Laws 1913, p. Held, that the Legislature in creating the 167) did not intend to deprive any of the constitutional officers or boards of duties imposed upon them by the express or implied provisions of the Constitution, and that it was not intended that said Tax Commission should usurp or perform the duties of the assessors or county boards of equalization. [Ed. Note.-For other cases, see Taxation, 2. TAXATION (8_446%*)-EQUALIZATION-TAX COMMISSION-VALIDITY OF STATUTE. Held, that said act is not in conflict with the provisions of the Constitution. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 788; Dec. Dig. § 4462.*] 3. TAXATION (8_450*) — EQUALIZATION - TAX COMMISSION-POWERS. Held, that said Tax Commission has not the power or authority to compel a county board of equalization to adopt its views or judgI ment in equalizing the value of certain property for taxation. SULLIVAN, J. (concurring specially). concur in the conclusion reached by the majority of the court to the effect that the plaintiff cannot recover in this action. I am also of the opinion that the county cannot recover from any one on the claim sued on herein. In my dissenting opinion in the case of Lincoln County v. Twin Falls, etc., Co., 23 Idaho, 441, 130 Pac. 788, my views are expressed as to the right of the county to recover such fees as are claimed in this case. STEWART, J. I concur in the opinion of Chief Justice AILSHIE in this case, except in the Chief Justice's language in approving the language used by the same Chief Justice in the opinion of Lincoln County V. Twin Falls North Side Land & Water Co., 23 Idaho, 433, 130 Pac. 788, as follows: "It may pursue the officer and his bondsmen, or it may pursue directly the party who had the service performed." The reason for this is that in the present case we hold that the officer is not liable, by reason of the facts shown in the case (and in that I concur), and the same reasoning, in my judgment, should also apply to both the bondsmen of the officer and the party who had the service performed. I see no reason for distinguishing the party' from the bondsmen, who only guaranteed the performance of the duty of the officer according to law, and the party who had the services performed paid the money with the understanding that the charge made by the officer was the charge agreed to and approved by the county commissioners. While the language used above is perhaps true as a general rule, as was stated in that case and in the present case, the distinction I hold is that such rule should not be applied to the facts in this case. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 800-804; Dec. Dig. § 450.*] 4. TAXATION (§§ 319, 449*)-Assessor-Board OF EQUALIZATION-POWERS. The words "assessor" and county "board of equalization," as used in the state Constitution, carry with them the powers usually conferred on officers or boards of like names. [Ed. Note. For other cases, see Taxation, Dec. Dig. §§ 319, 449.*] Cent. Dig. $$ 514, 527-529, 532-534, 790–799; Under the provisions of section 6, art. 18, of the Constitution, it is essential that the assessment of property located wholly within a county shall be made by the assessor elected by the voters of the county, and after such assessment is made, the county board of equalization may equalize such assessments. AND POWER ΤΟ Cent. Dig. 88 790-799; Dec. Dig. § 449.*] [Ed. Note. For other cases, see Taxation. TO Since the Constitution provides a method or system for the assessment of property, with the object and purpose of arriving at a uniformity of valuation, and has designated certain officers to perform the duties relative thereto, it is beyond the power of the Legislature to take from such officers such duties. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 790-799; Dec. Dig. § 449.*] 8. TAXATION (§§ 449, 497*)—EQUALIZATION— POWERS OF TAX COMMISSION-MANDAMUS. When the county board of equalization exercises its legal discretion in regard to equalizing the valuation of property for assessment, and does so in good faith and without fraud, | such board has acted within its legal discrethe Tax Commission had no authority to set tion, and fairly and honestly, to change such aside such action and substitute its own judg- action and make it conform to the judgment of ment therefor. the Commission in such matter. [Ed. Note.-For other cases, see Taxation, Cent. Dig. $8 790-799, 911, 912; Dec. Dig. 88 449, 497.*] 9. TAXATION (§ 25*)-CHANGE OF METHOD LEGISLATIVE POWERS. Since the Constitution provides a scheme or framework for the administration of the rev enue laws of the state, the Legislature cannot substitute another and different scheme or method therefor. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 790-799, 911, 912; Dec. Dig. §§ 449, 497.*] Original proceedings by J. A. Blomquist and others, as the Idaho Tax Commission, for a writ of mandate to compel the County Commissioners of Bannock County, acting as a Board of Equalization, to change [Ed. Note. For other cases, see Taxation, its equalization of the value of certain propCent. Dig. & 59; Dec. Dig. § 25.*] 10. TAXATION (§ 25*)-Change of MethODLEGISLATIVE POWERS. Section 6, art. 18, of the state Constitution provides for the biennial election of county commissioners, and section 12 of article 7 provides that the boards of county commissioners of the several counties of the state shall constitute boards of equalization in their respective counties, whose duty it shall be to equalize the valuation of taxable property in their respective counties. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 59; Dec. Dig. § 25.*] 11. TAXATION (§ 276*) — ASSESSMENT OF PROPERTY. SITUS A state board of equalization is provided for by section 12, art. 7, of the state Constitution, consisting of five state officers. That board has power to equalize the assessment of property between different counties of the state, and also to assess the property of railroads, telegraph, telephone, and transmission lines of the state. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 453, 466-468; Dec. Dig. § 276.*] 12. MANDAMUS (§ 72*)-EXTENT OF RELIEF DISCRETIONARY ACTS OF OFFICERS. In mandamus proceedings, if the action required is judicial and discretionary in its nature, the court could only compel the officer to act, but could not compel him to decide in any particular manner. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 134; Dec. Dig. § 72.*] 13. TAXATION (§ 25*)-CHANGE OF METHODLEGISLATIVE POWERS. The Legislature has no power or authority to set aside the revenue system of the state for assessing, equalizing, and taxing property established by the Constitution. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 59; Dec. Dig. § 25.*] 14. TAXATION (§ 276*) — ASSESSMENT OF PROPERTY. SITUS Where the situs of property for taxation is not wholly within any one county, such as railroads, telegraph lines, etc., such property may be assessed as a whole by the officers having jurisdiction thereof, such as the State Board of Equalization in this state. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 453, 466-468; Dec. Dig. § 276.*]| 15. TAXATION (§ 450*)-BOARDS OF EQUALIZATION-DECISION-APPEAL. The Legislature has not provided an appeal from the decision of Boards of Equalization. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 800-804; Dec. Dig. § 450.*] 16. TAXATION (§§ 449, 497*)—EQUALIZATIONPOWERS OF TAX COMMISSION-MANDAMUS. The Idaho Tax Commission is not given the power, under the provisions of said act, to compel the county board of equalization, where erty to conform to the views of the Tax Commission in regard thereto. Alternative writ quashed, and peremptory writ denied. D. Worth Clark, of Pocatello, and James E. Babb, of Lewiston, for plaintiffs. J. H. Peterson, Atty. Gen., J. J. Guheen and T. C. Coffin, Asst. Attys. Gen., and McDougall & Jones, of Pocatello, for defendant. SULLIVAN, J. This is an application by the Tax Commission of the state for a writ of mandate to the Board of County Commissioners of Bannock County, sitting as a Board of Equalization for Bannock County, to compel said board to equalize the taxes of Franklin & Hays in the amounts fixed by an order made by said Idaho Tax Commission, and to compel them to comply with said order in all respects. Upon the application of said Tax Commission, the alternative writ of mandate was issued, and the said board made due return thereto, and the cause came on for hearing before this court upon the petition and affidavit and motion to quash interposed by the defendants. Briefly, the facts are as follows: N. G. Franklin and R. J. Hays constitute a partnership doing business in Pocatello, Bannock county. The property of the partnership was assessed by the assessor of said county for taxes for Improvements the year 1913, as follows: situated upon block 39, $15,000; machinery, $5,000. Thereafter application was made to said Board of Equalization for a reduction in this valuation, with the result that the board refused to reduce the assessment as to the improvements, but reduced the assessment on machinery to $3,000, making the total assessment as equalized $18,000 on said improvements and machinery. Said partnership then filed their complaint with the Idaho Tax Commission, the plaintiffs herein, after which a hearing was had, where all parties interested appeared, and evidence was taken before said Commission as to the actual cash value of said property, and upon consideration of such evidence the commission entered an order, which was duly served upon the defendants, a part of which order is as follows: "It is therefore ordered that the order of the said Board of Equalization, reducing the valuation of said machin ery to the sum of $3,000, and their refusal •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |