Hoyt v. Hughes County

McCOY, J. In this case plaintiff claims to- recover of the defendant, Hughes county, the sum of $479.70. There was a ver121 diet and judgment for plaintiff, and defendant appeals. Plaintiff-presented at -the April, 1911, meeting of the board of county commissioners -a -bill for $514.60, most of which was for personal services claimed to have been performed and rendered as superintendent of the county board of health. A small portion of said bill was for mileage and reports made by plaintiff. The board of county commissioners allowed $32.90 of this bill, and rejected the balance of $479.70. No appeal was taken by plaintiff from the action and decision of the commissioners in rejecting and -disallowing the said $479.70 of s-aid bill, but plaintiff some time thereafter brought direct action against the county in the circuit court to recover -said balance. The defendant county urged in the co.urt below, and now urges the contention that plaintiff cannot maintain this action to recover .said balance of account — that plaintiff’s sole and -only remedy under, the -circumstances of this case was by appeal from the said action and decision of the county commissioners, and not by direct action. We are of the opinion that defendant’s contention is well grounded. [1] A board of county commissioners in the rejection and allowance of claims and bills against the'county usually acts only in an executive or ministerial capacity, in which case there is nothing more before them than the pure question of allowance or rejection of the claim. In such cases the amount and right of the claim are either -fixed by contract -or the -statute, in relafTon to which the county commissioners are not invested with any discretionary powers; but rights under the contract or statute must be determined by some judicial tribunal having jurisdiction- thereof. [2] While a board of county commissioners is not by the laws of this state clothed with any judicial p-owers, such as are conferred -upon courts, still they are in certain instances invested with discretionary powers, which they exercise in a quasi judicial manner; that is, they are authorized to investigate facts and exercise discretion or judgment in relation to the facts revealed by such investigation -in a manner similar and with similar effect as courts. We are of the opinion that, when a board of county commissioners in -the exercise of its discretionary powers act-s upon any particular matter in any proper case legally and properly within such discretionary powers, such action can only be revíewéd on appeal in the manner provided by law for such appeals; and, when [122] no method of appeal is provided, such action of the' commissioners becomes final, and is not subject to review by the courts in a direct original action, 11 Cyc. 598. It is not the method or manner or result of the manner in which such board acts that precludes the maintenance of an original action, but it is the fact that such board has acted in a matter within its exclusive' discretionary power, and having so stated, no matter how erroneously, such action can only be reviewed on appeal. [3] The term “quasi judicial” is used to describe acts, not of judicial tribunals usually, but acts of public boards and municipal officials, presumed to be the product or result of investigation, consideration, and ’human judgment, based upon evidentiary facts of some sort, in a matter within the discretionary power of ■such board or officer. 'Such acts, when erroneous, can only be corrected and reviewed on appeal. Only the board of county commissioners in the first instance has authority in such cases to fix the amount of compensation, when the matter relates to that subject, and where the court on appeal reviews the action of the commissioners it is merely exercising the same powers possessed by the commissioners which have been brought before the court by means of the appeal. The court in an independent original action would possess no suc-h power. [4] ’Some contention is made that the power granted by chapter 76, Laws'of 1905, to the county commissioners, providing that for certain services the county superintendent of the board of public health shall receive such sums as the county commissioners may allow, is a grant of purely legislative power, the exercise of which is not subject to appeal at all. We are clearly of the opinion that the power granted to the county commissioners by this section of the statute is not a grant of legislative power, but is a grant of discretionary power to be exercised in a quasi judicial manner, and is subject to appeal under section 850, Pol. Code.- A statute which authorizes municipal- authorities such' as city councils to fix the salaries of certain designated officers without reference to the value of the service is a grant of legislative power, and has the same force and effect, after being exercised, as if the amount thus fixed had been written in the statute itself, and from" which there can be no appeal; but, when the law contemplates that the services shall have been rendered and performed [123] and a bill therefor presented to the board of county commissioners for allowance, as seems to have been contemplated by the provisions of section i, c. 76, Laws of 1905, now under consideration, it is clearly a grant of discretionary or quasi judicial power, impliedly giving the county commissioners the power to investigate facts as to the nature and value of the services performed, and based upon such investigation of the facts to arrive at a conclusion or judgment as to the just and reasonable amount of compensation that should be allowed therefor. Under a Kentucky statute providing that for certain services of a judge the county board should make an allowance, the Supreme Court of that state, in construing that statute, said: “We think this can mean nothing else than a reasonable allowance commensurate to the character and quantity of the services performed.” Ohio County v. Newton, 79 Ky. 267; Butler County v. Gardner, (Ky.) 96 S. W. 582. Under an Indiana statute authorizing the county commissioners to make an allowance to sheriffs for certain services, it was held that such allowance was a discretionary matter with the county board to be determined on the presentation of their bills. Marion County v. Reissner, 58 Ind. 260. In Patterson v. Pullman, 104 Ill. 80, the word “allow” was held to imply discretion. Under a Montana statute providing that deputy sheriffs for certain services should receive such sums as allowed by the county commissioners within maximum limits implied a discretionary power on the part of the commissioners. Jobb v. Meagher County, 20 Mont. 424, 51 Pac. 1034. In New York, when a municipal board was authorized to audit and allow certain claims against the municipality, it was held that the power to audit and allow primarily implied the right to determine not only the accuracy of the account, but also 'its justness and reasonableness. People v. Gilroy, 82 Hun, 500, 31 N. Y. Supp. 776. It is also held by the New York courts that a power given to the county board of supervisors to allow certain claims also includes and involves the right to reject, if sufficient reasons for allowing are not presented. People v. Duchess County, 9 Wen. (N. Y.) 508; People v. Gilroy, supra. To the same effect is Mitchell v. Clay County, 69 Neb. 779, 96 N. W. 673, 98 N. W. 662, where it is held that such allowance to officers for services are subject to the quantum meruit, the reasonable and just, rule [124] We are of the opinion that the rule as to the granting of legislative power is not applicable to the case present. It therefore necessarily follows, no matter whether -the power granted was quasi judicial or legislative, that a direct action cannot 'be maintained on such a claim. Chapter 76, Laws of 1905, regulates the compensation of the superintendent of the county board of health, and provides (1) that such superintendent shall receive 10 cents per mile for each mile necessarily traveled in the performance of his duties; (2) such other sums as the board of county commissioners shall allow, provided that for each examination necessarily made for persons who are afflicted with smallpox, diphtheria, scarlet-fever, anthrax, Asiatic cholera, yellow fever, and bubonic plague, he shall also receive -not to exceed the sum of $5 for each visit actually and necessarily made; (3) he shall receive 50 cents for each report to the state superintendent of public 'health; and (4) he shall receive such other sums as he may pay for medicines and disinfectants. A careful examination of the items of plaintiff’s bill discloses $20.40 claimed for mileage, $16.50 claimed for reports made to the state board of health, and $477.70 for personal services rendered in relation to health matters. Further examination of this bill discloses eight duplications of reports amounting to $4, leaving the true amount of the claim for reports $12.50, which, added to the amount of $20.40 for mileage, exactly equals and coincides with the amount of $32.90 allowed plaintiff by the board of commissioners, clearly demonstrating what items of the account were allowed and what rejected. The entire amount of the items rejected are included within the second division of the statute providing “such other sums as the board of county commissioners may allow” and being clearly within the discretionary powers of the county commissioners. It is a matter of discretionary judgment reposed by the law in the board of county commissioners to fix and determine the amount plaintiff should receive for “such other" services. No other tribunal in the first instance was authorized to- determine or allow the amount of compensation for such other services. The fact that the commissioners refused to allow plaintiff anything at all might have .been very erroneous, but such board in so doing acted upon a matter within the discretion reposed in it by legislative enactment. Courts cannot control such acts of such boards by com [125] pelling them to act in any particular manner. Courts can compel them to act, but, having acted, such acts become final unless reversed on appeal, where an appeal is provided for by law. If an examination and investigation of the facts by the county board had disclosed, and as is claimed by defendant, that plaintiff had been paid for such services in and by prior bills allowed by such board, or had been paid for such services by the state while acting as superintendent of the state board of 'health, then the act of such board of county commissioners in not allowing any sum whatever for such services might not have been erroneous. The commissioners had the right to investigate the facts in connection with such allowance, and base and form their judgment upon the evidence before them. If they erred in such judgment as tO' such allowance, plaintiff's only remedy was an appeal for the purpose of reviewing and correcting such action. Under the view we have taken of this case, it becomes unnecessary to discuss further assignments of error. The judgment and order appealed from are reversed, and the cause remanded for new trial in accordance with this opinion. POEEEY, J., took no part in this decision. SMITH, J., concurs in result.