State ex rel. Graham v. Board of Commissioners

Hunt, J. This case turns upon the construction of section 751, div. 5, Compiled Statutes. That section reads as'follows: “When a judgment shall be rendered against the board of county commissioners of any county, or against any county officer, in an action prosecuted by or against him in his name of office, when the same shall be paid by the county, no execu [273] tion shall issue upon said judgment; but the same shall be levied and paid by tax or other county charges; and when so collected shall be paid by the county treasurer to the proper person to whom the same shall be adjudged, upon the delivery of a proper voucher therefor: provided, that execution may issue on said judgment if payment be not made within 60 days after the time required for the payment of county taxes to the county treasurer, by the proper officers of said county in each year. ’ ’ We are of opinion that it was proper for the board of commissioners of the county to decline to pay the judgment until the amount thereof was levied and paid by tax, as other county charges are levied and paid, namely, by levy based upon the amount of property in the county, as returned by the assessor, and a statement of the county expenses for the current year. Where incidental expenses, not especially embraced within the provisions of any particular statute, arise, doubtless they are covered by sums collected in taxes and required to be set apart by the board of commissioners, and known as the contingent or other specific funds of the county. But the payment of a judgment is especially provided for, and the amount thereof should be included in the itemized statement of county expenses for the current year, at the time that the board of commissioners make their annual levy. This method is plain, adequate, and certainly exclusive, where the funds already collected are necessary to pay the ordinary current expenses of the county. It may not be as speedy in this one instance as relator would like to have it, but it is certain, and the delay is compensated for by the rate of interest the judgment bears. The policy of the statute is manifest. If large judgments could be paid at once, before levy by tax, by reason of the commissioners not having provided for such emergencies by their levy, the credit of the county might be seriously impaired, and creditors whose claims were for ordinary expenses, contemplated when the levy was made, might be unjustly forced into the lists of deferred creditors by the superior claim of a [274] judgment creditor, whose warrant or claim might exhaust the cash fund. The California and Nevada cases cited by appellant are under statutes dissimilar to that of this state. The defense of no funds in the treasury, except such as are necessary to pay the current expenses of the county for the ensuing year, was properly pleaded. (High on Extraordinary Remedies, § 352.) The judgment of the district court is affirmed. Affirmed. Pemberton, C. J., and De "Witt, J., concur.