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under subdivision 5 of section 4354 of the “Sec. 7459. When an information in writCode of Civil Procedure.” It appears from ing verified by the oath of any person, is the record that plaintiff elected to stand on presented to a district court, alleging that his challenge, and refused to go to trial before any officer within the juirisdiction of the the jury. Thereupon a jury was sworn to court has been guilty of charging and coltry the case. The defendants offered no testi- lecting illegal fees for services rendered or mony, but asked the court to instruct the to be rendered in his office, or has refused jury to find for defendants, which the court or neglected to perform the official duties did, and a verdict was found for the de pertaining to his office, the court must cite fendants, reciting that they were the owners the party charged to appear before the court of and entitled to the possession of the min- at a time not more than ten nor less than ing claim described in the complaint; where- five days from the time the information was upon judgment was entered in favor of de- presented, and on that day or some other fendants in accordance with said verdict, to subsequent day, not more than twenty days all of which plaintiff duly excepted. The from that on which the information was defendants offered no evidence whatever to presented, must proceed to bear, in a sumprove their cross demand against the plain- mary manner, the information and evidence tift, and the court erred in instructing the offered in support of the same, and the an. jury to find for them. Under the provisions swer and evidence offered by the party inof section 4354, subd. 4, the court should formed against; and if on such hearing it have ordered a dismissal of the case or juug- appears that the charge is sustained, the ment of nonsuit wben the plaintiff refused to court must enter a decree that the party inproduce bis proof and the defendants failed formed against be deprived of his office, and to produce any testimony in support of their must enter a judgment for five hundred dolcross demand against plaintiff. The defend- lars in favor of the informer and such costs ants were not entitled to the relief asked as are allowed in civil cases." without proof of their demand.

Upon a demurrer to the information, the The judgment is reversed, and cause re- district court held that the statute was unmanded for trial. If the parties refuse to constitutional. On appeal to this court from proceed with the trial, the court below is said decision of the district court, the judg. directed to dismiss the action.

Each party ment of the district court was reversed, and shall pay their own costs on this appeal. the cause remanded for a trial. 36 Pac. 502.

Upon a trial before the court without a jury, MORGAN, C. J., and HUSTON, J., con- judgment of nonsuit was entered upon mocur.

tion of defendant, and from that judgment this appeal is taken.

The case is before us on a bill of excep(4 Idaho, 391)

tions, from which, and the evidence therein RANKIN V. JAUMAN.

contajned, the following facts appear: At (Supreme Court of Idaho. March 7, 1895.)

the regular biennial election of 1892 the deCOMPENSATION OF COUNTY COMMISSIONERS. fendant was elected a member of the board 1. Under section 5 of an act entitled “Con

of county commissioners for Ada county cerning Fees and Compensation of County Officers," approved March 13, 1891, county commis

from district No. 1. He qualified as such sioners are only entitled to a per diem and mile- officer on the 2d day of January, 1893. At age therein allowed when acting as a board that time the following laws were in force, actually in session and transacting county busi

relative to the duties and compensation of 2. Boards of county commissioners are en

county commissioners: The compensation of tireties, and can only act collectively and as the members of the board of county comempowered by law.

missioners, as fixed by section 5 of an act of 3. If a member of the board performs serv. ices for the county, whether by order of the

the first session of the legislature of the state board or on his own motion, he does so as an in- of Idaho, was as follows: "County commisdividual, and his claim for compensation must sioners of each county shall receive the sum be presented in the same manner and take the

of six dollars for each day actually engaged same course as the claim of any other person. (Syllabus by the Court.)

in transacting county business, and twenty

cents per mile for each mile necessarily travAppeal from district court, Ada county;

eled in transacting county business." Laws Edward Nugent, Judge.

1891, p. 179. Now, tbis section of the stat. Information by W. A. Rankin against Wil

ute would seem to be, and perhaps is, someliam Jauman, a member of the board of coun

what loosely drawn, and, unless construed ty commissioners of Ada county, for corrup

in the light of recognized legal principles, tion in office. From a judgment of nonsuit,

would give a degree of latitude in applicaplaintiff appeals. Reversed.

tion which would, in the intellectual analy. Hawley & Puckett, for appellant. Geo. sis of a mind bent solely upon personal ends, Alnslie and W. E. Borah, for respondent be little conducive to the interests generally

supposed to be a controlling consideration HUSTON, J. This action was brought un- in all legislation of a general character, to der section 7459, Rev. St. Idaho, which is as wit, the public welfare. But we are comfollows:

pelled to conclude that in the enactment of

Dess.

this statute the legislature did not intend to ty, and, by the provisions of law, must have enact a law wholly in the interest of those been a resident of the district for which he who might, for the time being, become the was elected. Now, giving him the very lim. incumbents of the office, wholly and entirely its of his district from which to charge mile. ignoring the higher interests of the people. age, he could not be more than one mile from It is the duty of courts, in construing legis. the place of holding the session of the board lative enactments, to so construe them as to of county commissioners for Ada county; carry out the real intention of the legisla- and yet we find in the bills presented by the ture. All laws in relation to the same sub- respondent, above referred to, a charge of 430 ject-matter must be construed in pari ma- miles travel for the session of the board held teria. As above stated, the respondent, hav- for 14 days. Certainly, this shows an exing been duly elected and having qualified hibition of virile activity, which, while doubtas a member of the board of county commis- less a subject of admiring wonder when dissioners for Ada county for district No. 1 of played by a “sprinter,” is devoid of nuch of said county, made his first appearance on its attractiveness when viewed or considered the 2d day of January, 1893, as a member of from the standpoint of a poor and overburden. said board, and was duly elected chairman ed taxpayer. But this marvelous exhibition of said board. Section 1755, Rev. St., pro- of patriotic pedestrianism is given a deeper vides that the regular meetings of the boards hue by the argument of counsel for the reof commissioners must be held on the second spondent. It is contended in explanation of Mondays of January, April, July, and Oc- this charge that the bills were made out by tober of each year. As appears by the rec- the clerk of the board at the request of reord of the board, they met in special ses- spondent, and the said clerk states in a some sion on the 2d day of January, 1893, were what perfunctory manner that, "for the conin session two days. The regular session venience of the commissioner,” he divided the opened on the 9th of January, and were in number of miles traveled, and doubled the session nine days. A special session was rate allowed by the statute. If this contenheld on the 7th February, and held for two tion is accepted, the number of miles actually days. A special session was held on April traveled by respondent, in attending that 1st for one day, making in the aggregate 14 one session of the board, was 860 miles, and days from the time respondent took office he resided less than one mile from the courtuntil the first day of the regular April ses- house. There were good sprinters in the sion. On the 16th day of January, 1893, re Olympic races, but their powers of locomospondent filed the following bill, which was tion fade into insignificance by the side of duly allowed by said board, the respondent this wonderful exhibition. It will bardly be acting as chairman of said board, to wit: seriously contended, we apprehend, that mile"Ada County, State of Idaho, to William Jau

age is chargeable for every day the board is

in session; but, even if this were so, the re To 14 days as Co. Com., at $6.00.. $ St 00 spondent must have traveled a little over 61 To 50 miles travel, at 40c.

20 00

miles each day the board was in session. "O $104 00"

wonderful, wonderful, and most wonderful, Said bill is attested as follows:

wonderful; and yet again wonderful; and, “State of Idaho, County of Ada-ss.: Wil. after that, out of all whooping." liam Jauman, being duly sworn, says that But it is claimed by counsel for the respondthe above account is correct; that

ent that, if the services were actually renas stated. [Signed] W. Jauman. Subscribed dered, a mere irregularity in the account will and sworn to," etc. And on the 10th day of not be construed into a corrupt extortion. April, 1893, the respondent presented the fol- The board of county commissioners are an lowing bill, which was duly allowed by entirety, they can only act collectively, and said board, respondent acting as chairman, as empowered by law. They are only ento wit:

gaged in “transacting county business," as "Ada County, State of Idaho, to William Jau

that term is used in section 5 of the act of man, Dr.

1891, when acting as a board; and it is only To 82 days' services as Co. Com., at

while so acting that they can legally charge $6.00

$492 00

either per diem or mileage. It needs no auTo 380 miles travel, at 40c.

152 00

thority to support this proposition. Should

$614 00" the board see fit to employ one of its members -Duly subscribed and sworn to.

to perform certain services for the county, From the 2d day of January, 1893, to the permissible by law to be performed by such 10th day of April, 1893, is, inclusive of Sun- officer, such member would act, not as a days and holidays, 98 days. Deducting there- member of the board of county commissionfrom the occurring holidays, to wit, 14 Sun- ers, but as an individual, and must present days, and the 22d February, a holiday by

his claim for such services, and is subject to our statutes, we have 82 working days; and the same rules as any other individual prethe record of the board shows that during senting a claim against the county. that period the board was in session only 14 Section 1773, Rev. St., is as follows: days. The respondent was elected a commis- "Sec. 1773. The board of commissioners sioner from the first district of Ada coun- must not hear or consider any claim in favor

man, Dr.

of an individual against the county unless an having been in session but two days since account properly made out, giving all items he qualified as a member, Mr. Beale preof the claim, duly verified as to its correct- sents a bill duly sworn to for 40 days' servness, and that the amount claimed is justly ices as county commissioner, at $6 per day, due, is presented to the board within a year and 145 miles travel, at 40 cents per mile. after the last item of the account accrued." Such an exhibition of zeal on the part of puhSection 1786 is as follows:

lic officers is seldom seen in this degenerate "Sec. 1786. All claims against the county age. They preyed (upon the county treasury) presented by members of the board of com- without ceasing. Mr. Beale resided about missioners for per diem and mileage, or other one-fourth of a mile from the place where services rendered by them, must be verified the board met; and the accounts of the other as other claims, and must state that the commissioner, Wilterding, seem to have been service has been actually rendered."

constructed, presented, and allowed upon the It is contended by respondent that the same lines. Between the date when Compresumptions are that an official has done missioner Beale took office and the date of his duty, and that it is incumbent upon the his first bill there were 41 days, including party prosecuting the information in this Sundays, and he only charges for 40 days; case to show, not only that the respondent doubtless consoling his conscience by the has taken illegal fees, but that he has done reflection of Lord Clive: “When I think of so knowingly and with a corrupt intent. As my opportunities, I am astonished at my the statement of a legal proposition, this is moderation." undoubtedly correct, and its recognition in- In the face of this record, we are earnestly volves the inquiry, does the evidence in this and eloquently urged to affirm the finding of case establish such a conclusion? Let us the district court that there was no proof susexamine the evidence. The respondent pre- taining the information. The per diem alsents a bill to the board for per diem allow- lowed by the statute to members of the board ance for 96 days, while the board were only of county commissioners is only chargeable in session for 14 days, and the period covered for the time the board is actually in session. only contained 98 days, including 15 holidays. County commissioners can only act, or claim Said bills also contain charges for mileage compensation as such while acting, as a board. which would involve the traveling by the The law does not contemplate that members respondent of something over 61 miles per of the board may perform services for the day during each day the board was in ses- county as individuals, and then charge for it sion, and the residence of respondent was as commissioners. The viciousness of such about half a mile or less from the place of a course is too apparent to require comment. meeting of the board; and in these bills re- The judgment of the district court is respondent makes a charge of 40 cents per mile versed, and the cause remanded, with difor travel, while the statute fixes the mile- rections for further proceedings in accordance age at 20 cents per mile. The attempted ex

with this opinion. planation of this charge by the clerk of the board is too ridiculous to be entitled to con- MORGAN, C. J., and SULLIVAN, J., consideration. These bills were sworn to by re- cur. spondent, were presented by him to the board, were passed upon and allowed by the board,

(4 Idaho, 402) of which he acted as chairman; and yet, in the faces of these facts,-all matters of record,

KELLY et al. v. LEACHMAN. -we are asked to conclude that there was (Supreme Court of Idaho. April 1, 1895.) neither knowledge nor corrupt intent on the

APPEAL-STIPULATION-Costs. part of the respondent. Credulity is not 1. A judgment will be modified and affirmed esteemed a paramount virtue of the judicial pursuant to a stipulation by the parties for a mind, but surely the recognition of such a

correction of errors assigned to certain portions

thereof. flimsy excuse–for it does not rise to the dig. 2. The costs of an appeal will be awarded nity of a defense-as is offered in this case

to the appellant, where stipulations for the cormust involve something

rections of errors upon which the judgment ap

more than mere credulity. Officers are supposed to know the

pealed from is modified were made after the ap

peal was taken. law under which they act. The maxim "ignorantia legis neminem excusat” is forcefully

Appeal from district court, Nez Perces

county; W. G. Piper, Judge. applicable in their case. In this whole busi

Action by M. A. Kelly and others against ness there seems to have been a complete

S. S. Leachman to foreclose a mortgage. ignoring, not only of the provisions of the statute, but of all rules of law and princi

From a decree of foreclosure and sale, de

fendant appeals. Modified and affirmed. ples of common honesty; and the attempt to explain or excuse it only results in accentu

E. O'Neill, for appellant. Rand & Reid, ating its venality, and in this cause all of for respondents. the members of the board seem to have participated. As instance, J. A. Beale was sworn MORGAN, C. J. This is an action for as a member of the board on February 27, foreclosure of a mortgage brought by Kelly 1893. On the 10th day of April, 1893, the board against Leachman. Decree of foreclosure

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was made and entered January 24, 1894. through defects in a certain bridge in said On the 24th day of March, 1894, the defend- county, while passing across the same. A ant appealed to the supreme court upon general demurrer was interposed to the comthe judgment entered in this case, and as- plaint, which was sustained by the court, signs for error the following language in and leave given plaintiff to amend, which the decree, namely: “That the purchaser or was done. By agreement of counsel, the tipurchasers of said mortgaged premises at tle of the case was changed, in the summons such sale, or his or their assigns, be let into and complaint, by striking out the words the immediate possession thereof, and that “Commissioners of Idaho County." The case the said sheriff or his deputy, immediately was tried to a jury, and after the evidence after making such sale, dispossess, eject, on the part of the plaintiff was submitted, and oust from said land and premises any on motion of defendants, the action was disand all persons in possession thereof, or any missed, and judgment entered for defendants part thereof, and place the person or persons for costs, from which judgment, and the orholding the certiticate of sale made by said der denying motion for new.trial, this appeal sheriff into the possession of the premises

is taken. so sold.” Also that there is no finding or The only question presented by the trandisposition of $129.80 in the hands of the re- script is the liability of the county commisceiver made in the decree. We find on jile sioners, individually, for the damages claima stipulation of the parties disposing of the ed to have been sustained by plaintiff on ac$129.80, by which stipulation the plaintiff count of the defective bridge. M. A. Kelly received $55 thereof, and the The first error assigned is the sustaining balance of said sum, $74.80, was paid to E. of the demurrer to the complaint. We think O'Neill, attorney for mortgagor and appel- there. was no error in this action of the lant. We further find on file the consent of court. It is evident from the record that the the attorney for the respondent that the ground upon which the court sustained the words above quoted, as appearing in the de- demurrer to the complaint was the want of cree, should be stricken therefrom. It is a statement of notice to the defendants of therefore ordered by this court that the fore- the condition of the bridge, as the amended going words, requiring the sheriff to give complaint, to which a general demurrer was the purchaser of such sale immediate pos- interposed, and overruled by the court, only session of the land, and oust the defendant differs from the original in containing such therefrom, shall be stricken out. As the statement of notice to and knowledge of the stipulation of the parties disposed of the condition of the bridge by defendants. money in the receiver's hands, and as the The appellant, in his brief, submits two judgment is modified as above stated, both questions for the decision of the court: errors relied upon by the appellant are cor- First, is the county liable to the plaintiff? rected, and the judgment, therefore, must and, second, are the commissioners liable inbe affirmed. It is further ordered that costs dividually? The first question is not raised of appeal be awarded to appellant, for the by the record. There was no action against reason that the stipulations for the disposi- the county. As to the second question, the tion of the money and for the modification law can hardly be said to be conclusively of the judgment were made after the appeal settled, or, at least, the decisions are not enwas taken.

tirely harmonious. Judge Cooley, in his

work ou Torts (page 379), says: “The rule of HUSTON and SULLIVAN, JJ., concur. official responsibility, then, appears to be

this: That, if the duty which the official au

thority imposes upon an officer is a duty to (4 Idaho, 404)

the public, a failure to perform it, or an inWORDEN v. WITT et al.

adequate or erroneous performance, must be (Supreme Court of Idaho. April 4, 1895.) a public, not an individual, injury, and must LIABILITIES OF COUNTY COMMISSIONERS. be redressed, if at all, in some form of pub

County commissioners are not individual- lic prosecution. On the other hand, if the ly liable in damages for injuries sustained by duty is a duty to the individual, then a neg. reason of defective highways, under the laws of Idaho.

lect to perform it, or to perform it properly, (Syllo bus by the Court.)

is an individual wrong, and may support an

individual action for damages." In applying Appeal from district court, Latah county;

this rule to the case of officers charged with W. G. Piper, Judge.

the duty of making and repairing highways Action by William E. Worden against

and bridges, the courts seem to be influenced James Witt and others. Defendants had

largely by the exigencies of the case prejudgment, and plaintiff appeals. Affirmed.

sented, or the conditions under which it James W. Reid, for appellant. Forney & arises, as, for instance, in the older and more Poe, for respondents.

thickly-populated states there seems to be a

growing disposition, both by legislative acHUSTON, J. Plaintiff sued defendants, tion and judicial decisions, to hold this class as commissioners of Idaho county, for inju- of officers, as well as the municipalities they ries alleged to have been sustained by him represent, to a more enlarged liability. This

cur.

will be made apparent by comparing the case of Tacoma, state of Washington, are held of Bartlett v. Crosier, 17 Johns. 439, with firmly bound unto Rupert Schupfer, of JuliaHover v. Barkhoof, 44 N. Y. 113, and other etta, Idaho territory, in the sum of six thourecent decisions. But this change of base sand dollars ($6,000), to be paid to the said has not been recognized in states where en- Rupert Schupfer, his executors, administratirely different conditions exist. To hold tors, or assigns, for which payment well and 'counties or county commissioners liable for truly to be made we bind ourselves, our all injuries arising from defective highways, heirs, administrators, executors, and assigns, in this country, would result in two very un- jointly and severally, by these presents. desirable conclusions,-the literal abrogation Sealed with our seals, and dated this 14th of the office of county commissioner (for no day of June, A. D. 1890. The condition of sane man would assume the position, with the above obligation is the executing and such a liability attached), and the bankruptcy delivering to J. P. Vollmer by said Rupert of every county in the state. Had there Schupfer of a deed to certain town lots in been any intention on the part of the legis- the town of Juliaetta, Latah county, Idaho lature to impose such a liability upon the territory, bearing date of 14th of June, 1890, county commissioners, they would have said which said deed has been executed and deso, by unequivocal enactment. The supreme

livered. The condition of above obligation court of Idaho, in Gorman v. Commission is such that if the above-bounden obligors ers, 1 Idaho, 655, settled the question of the shall on or before the first day of January, liability of both the county and the county 1891, construct or cause to be constructed a commissioners in this jurisdiction, and with railroad to said town of Juliaetta, with side that decision we concur. The judgment of track, and on or before May 29, 1891, conthe district court is affirmed, with costs. struct or cause to be constructed a depot

adjacent to said side track in the N. W. 4 MORGAN, C. J., and SULLIVAN, J., con- of the S. W. 4 of section three (3), township

37 north, range 3 west, Boise Meridian, Latah county, Idaho territory, then this ob

ligation be null and void; otherwise to (4 Idaho, 408)

remain in full force and effect. Jno. P. JULIAETTA TRAMWAY CO. v. VOLLMER

Vollmer. H. S. Huson. Witnesses: C. E. et al. (two cases).

Huson. C. C. Van Arsdel." Plaintiff had (Supreme Court of Idaho. April 4, 1895.) judgment in the district court for $6,000, and Breach of ContracT-SUFFICIENCY OF EVIDENCE. interest at 10 per cent. per annum from JanV. agreed, in consideration of the con

uary 1, 1891. This appeal is from the judg. veyance to him by S. of certain lots in the town of J., to construct a railroad to J. by the 1st day

ment and the order denying a new trial. of January, 1891, and to erect or cause to be

The principal contention here is upon the erected and constructed a depot and certain side construction of the instrument in writing tracks upon the land of S. in said town of J.

above set forth. It is contended by the reon or before May 29, 1891; and, to secure such performance, V. and one H. executed to S.

spondent that said writing is an alternative their bond conditioned for the performance of contract for the sale of land, while appelsaid agreement under a penalty of $6,000. The

lants claim that it is a bond for the construcroad was not completed, nor the depot and side tion of a railroad, etc. Counsel for respondtracks, until June 1, 1891. No objection was ever made by S. to the failure to complete the

ent has presented us with an able, ingenious, work within the specified time. On August 25, and voluminous brief and argument in sup1893, S. assigned the said bond to plaintiffs, who

port of his contention, It will be conceded, on October 27th brought suit to recover the said sum of $6,000, as the price of the lots so as

we apprehend, that, in construing written inaforesaid conveyed by S. 'to V., claiming said struments of this kind, the court should bond to be an alternative contract for the sale endeavor to give them that interpretation of land. Held, said action could not be sus

which will carry out the intention of the partained. (Syllabus by the Court.)

ties as understood by them at the time the

writing was executed; and, should there be Appeal from district court, Nez Perce coun

any ambiguity in the writing, the court will ty; W. G. Piper, Judge.

resort to the circumstances under which it Action on a contract by the Juliaetta Tram

was made, and which prompted its execuway Company against John P. Vollmer and

tion. Upon its face, this writing seems to others. From a judgment for plaintiff, and

us to be a bond to secure the performance of an order denying a new trial, defendants ap

certain services, to wit, the building of a peal. Reversed.

railroad to the town of Juliaetta, in the counP. Tillinghast, J. W. Poe, and T. L. Stiles, ty of Latah, state of Idaho. The facts, as for appellants. James E. Babb, for respond- they appear from the record, are substanent.

tially as follows: On the 14th day of June,

1890, one Rupert Schupfer was the owner of HUSTON, J. This is an action brought a certain tract of land in the town of Juliaupon an instrument in writing, which is as etta, aforesaid. Being desirous of increasfollows (Exhibit B): “Know all men by ing the value of said land, he made an arthese presents, that we, John P. Vollmer, of rangement with John P. Vollmer, one of the Lewiston, Idaho territory and H. S. Huson, appellants, whereby it was agreed between

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