McBride v. Hardin County

Day, J. 1. COUNTY: board of supervisors: publication of proceedings. I. The agreed statement of facts upon which the cause was submitted, as to the first count, is as follows: “The plaintiff introduced in evidence the following resolution passed by the board of supervisors of Hardin county, at the January session, 1878, to-wit: ‘Eesolved, that the board of supervisors hereby select the Eldora Ledger and the Iowa Balls Sentinel as the papers in which the proceedings of the board shall be published as required by section 307 of the Code-, and the auditor is hereby required to furnish a copy of the proceedings to each of said papers. Also, that the bid of the Eldora Herald for publishing the schedule of the receipts and expenditures of the county, as required by section 304 of the Code, be accepted, and the auditor is hereby required to furnish a copy of said schedule, which shall contain a full list of all claims acted upon by the board.’ ” It is admitted that E. H. McBride, plaintiff, was the proprietor and publisher of the Eldora Ledger, during the year 1878. It is agreed that said plaintiff published the proceedings of said board, at the January, April, and June sessions thereof, 1878; and such proceedings published, by them in eluded therein a schedule of the receipts and expenditures of the county, which did state the names of all claimants, the amount claimed, the amount allowed, for what purpose allowed, and a full statement of the amounts of the treasurer’s account current in making such settlement, and that said plaintiff, on the third day of September, A. D. 1878, filed with said auditor his claims as follows: * * * * -x- -x- -x- -x- * -x- “It is also agreed that said auditor furnished to plaintiff [222] manuscript copies of the proceedings of the said board sufficient to produce one hundred and twenty eight-squares of the amount contained in said claim, and no more; arid the board allowed plaintiff therefor the sum of $41.98; and it is agreed further that plaintiff procured published schedules of receipts and expenditures of the county, and of accounts of the treasurer, and other matters recited in section 304 of the Code, and, as provided by said resolution, should be furnished to and published by the Herald, amounting to $35, which was included in plaintiff’s said claim of $76.68; and that said board refused to pay said $35, which was included in plaintiff’s said claim of $76.68; and that said board refused to pay said $35 therefor, the same having been published in the Herald and paid for by the county; that defendant claimed plaintiff was not entitled. to recover for publishing these accounts, and such accounts were not included in the contract. “The plaintiff claims he is entitled to recover for publishing these last items under such resolution. The plaintiff refused to accept the sum allowed by the board, and brings suit. “It is admitted, that if plaintiff’s theory is correct, he should recover $35. If defendant’s theory is correct, plaintiff is entitled to nothing under first count of petition. The amount charged being correct, if plaintiff was entitled to publish the matters contemplated in section 304, as part of proceedings.” Section 304 of the Code is as follows: “They shall cause to be made out and published immediately after each regular or special meeting of the board, in at least one newspaper, if there be one in the county, and if not, by posting on the court house door, a schedule of the receipts and expenditures of the county., which shall state the names of all claimants, the amount claimed, the amount allowed, for what purpose allowed, and a full statement of the amounts of the treasurer’s accounts at the last settlement as on his balance sheet, or account current in making such settlement.” [223] Section 307 of the Code is as follows: The board of supervisors shall, at its January session of each year, select two newspapers published within the county, or one, if but one be published therein, having the largest circulation in the county where published, in which the proceedings of said board shall be published at the expense of the county, and in counties having eighteen thousand inhabitants, a paper printed in a foreign language, if published in said county, shall also be selected, in which such proceedings shall be published; and the auditor shall furnish such papers selected a copy of such proceedings for that purpose; provided, “That the cost of such publication shall not exceed one-tliird the rate allowed by law for legal advertisements.” Section 304 of the Code was contained in the Eevision as section 313. Section 307 of the Code was embodied in chapter 118, laws of 166. It is evident that they refer to distinct matters. The matters referred to in section 304 are required to be published in one paper only, without any requirement that it shall have the largest circulation in the county, and without any limitation as to compensation. The matters referred to in section 307 are required to be published in two papers having the largest circulation in the county, and limitation is imposed upon compensation to be paid. In Haislett v. The County of Howard, post, it was held that the semi-annual report of a county treasurer, made by him to the board of supervisors at the time of his settlements, is not a part of the proceedings of the board, and should not be published by the board as a part of its proceedings under section 307 of the Code. Section 303 of the Code makes it the duty of the board to examine and settle all accounts of the receipts and expenditures of the county, and to examine, settle and allow all just claims against the county, unless otherwise provided for by law.” It follows that the settlement and allowance of claims constitute a part of the proceedings of the board. It would seem from the agreed statement of facts that [224] whenever the board allowed a claim against the county, the action of the board thereon was furnished to the editor of the Eldora Herald, to be published under the requirements of section 304 of the Code, and that only the other proceedings of the board were furnished to the plaintiff pursuant to the resolution of the defendant, to be published under the provisions of section 307 of the Code. It appears from the agreed statement of facts that the plaintiff published the proceedings of the board, including a schedule of the receipts and expenditures of the county, which stated the names of all claimants, the amount claimed, the amount allowed, for what purpose allowed, and a full statement of the treasurer’s account current. No proper construction can be placed upon section 307 of the Code, without considering it in connection with section 304. Now section 304 of the Code requires the publication in one newspaper of a schedule of the receipts and expenditures of the county, stating the names of all claimants, the amount claimed, the amount allowed, and for what purpose allowed. If then the same things are embraced in, and required to be published in two papers by section 307 as proceedings of the board, it follows that these things must be published in three papers. It cannot be supposed that this was the intention of the legislature. The special provision requiring certain things to be published in one paper, as provided in section 304, removed those things from the operation of section 307 requiring the proceedings of the board to be published in two papers. In other words the general language used in section 307 must be so construed as not to embrace things specially provided for in section 304. Unless such construction is placed uj)on the former section, there seems to be no necessity for the latter, nor propriety in continuing it in force. It follows that the plaintiff is not entitled to recover under the first count. 2. TOWNSHIP: voting tax: expense. II. The demurrer to the third and fourth counts of the petition was properly sustained. The county of Hardin is in no way concerned m the voting ol [225] taxes in its various townships in aid of railroads, and cannot be required to pay any part of the expense thereby incurred. See upon this question Turner v. County of Woodbury, 57 Iowa, 440. 3. — : — : notice: of election: expense. III. It is claimed by the defendant’s as well as by the plaintiff’s attorney that there is no legal distinction between the second count and the third and fourth-counts. Iii this position of counsel we concur. The only difference in phraseology between the counts is, that the second count alleges that plaintiff was requested by the proper officers to preform the service in question, whilst the third and fourth counts allege that the plaintiff was requested by the proper officers of the township to preform the service in question. This difference in language is not material. There is no officer who possesses authority to make the defendant liable for the service in question. The demurrer to the second count of the petition should have been sustained. On the plaintiff’s appeal the judgment is affirmed, on the defendant’s appeal, the judgment is Beversed.