Otoe County v. Stroble

Oldham, 0. In many respects, this is a companion case to Otoe County v. Dorman, ante, p. 408. Tlie difference, in tlie two eases is that, in the instant case, the petition of plaintiff, in addition to charging defendants with liability for an over-allowance of assistance in the office of county treasurer, charges in the second, third and fourth counts thereof that, while the defendants were each exercising tlie duties of the offi.ee' of county commissioner during tlu' years 1901 and 1902, after allowing the different members of the board of county commissioners the full compc n sat ion fixed by statute for their services as members of such board, they also “wrongfully and corruptly” directed a warrant to be issued to each member thereof for due sum of $125 each, for services as chairman of the board during the years 1900, 1901 and 1902, respectively. In ihe fifth count of the petition it also charges that the board illegally directed warrants to be drawn in pay [416] ment of livery hire to different claimants during the years 1901 and 1902. And, as in the case above referred to, demurrers were filed by each of the defendants to this petition; the demurrers were each sustained, plaintiff’s petition was dismissed, and it brings error to this court. In view of the conclusion reached in Otoe County v. Dorman, supra, we need not consider the right of the county attorney to institute this action Avithout direction of the board, nor need we consider the sufficiency of the allegations of the first count of plaintiff’s petition, as this count stands on all fours with the petition therein considered. But we think that the allegations of the second, third and fourth paragraphs of the petition in the case at bar stand on a different principle, and charge a good cause of action against the defendants. Having determined that the act of the board of county commissioners, in apj>roving the settlement of the treasurer and permitting him to retain an illegal allowance for deputy hire, was merely a void act, which Avould not protect him or his official bondsmen from a suit by the county for the recovery of the unauthorized amount retained, we held that to warrant an action against the members of the board for this act, the petition would have to shoAv either that it was made by a wilful and corrupt agreement between the treasurer and the members of the board, or that the board had refused to authorize an action' for its recovery, or that the bondsmen were insolent so that the ultimate loss of the amount of money improperly retained Avas occasioned to the county by the illegal act of the board. While adhering to what we said in the former case, we think a different question is presented in the allegations contained in the second, third and fourth counts of tin* petition in the case at bar. In allowing salaries fixed by statute, the board acts ministerially and is without any discretion. The compensation of county commissioners is fixed at $3 a day and mileage. There is no claim of any warrant in the statute for any additional [417] alloAvanee for the chairman of the board. Members of the board of comity commissioners are paid by warrants drawn on the treasury; consequently, when a claim is allowed and a warrant drawn, the funds of the county are depleted to the extent of the warrant. And by the allegations in the petition, which are admitted by the demurrers, the defendants, without any warrant of law, broke into the county treasury and took from it $375 without a shadow of authority so to do. We think in this unlawful raid on tin; funds of the county, each member of the board who voted for the allowance of these claims Avas a joint tortfeasor in the unlaAvful act, and that each are jointly and severally liable to the county for the loss so sustained. We therefore conclude that the second, third and fourth paragraphs of plaintiff’s petition allege a good cause of action, and that the district court erred in sustaining a general demurrer to the petition. We might say in passing that, from an examination of the cause of action alleged in the fifth count of the petition, avo regard it as defective in failing to allege a avüful wrong by the members of the board in allowing claims for livery hire. In the alloAvanee of claims of this character, the board acts in a quasi judicial capacity, and is only liable for an intentional and wilful disregard of duty. We therefore recommend that the judgment of the district court be reversed and the cause remanded for further procedings. Ames and Hastings, CC., concur. By the Court: For the reasons set forth in the foregoing opinion, it is ordered that the judgment of the, district court be reversed and the cause remanded for further proceedings. REVERSED.