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DEPOSITED BY
STATE OF IDAHO
MAR 2 2 1973
RICKS COLLEGE
Digitized by the Internet Archive
in 2013
http://archive.org/details/idahorevisedcodeOOidah
THE
REVISED CODES OF IDAHO
VOLUME I
POLITICAL AND CIVIL
PREPARED BY
JOHN F. MacLANE
CODE COMMISSIONER
1908
Syms-York Co., Printers and Binders
Boise
Vol. 1-
Copyright 1908 by John F. MacLane
for the benefit of the State of Idaho
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UNITED STATES OF AMERICA,
STATE OF IDAHO.
I, Robert Lansdon, Secretary of State of the State of Idaho, do
hereby certify that the following printed Volumes (1 and 2) are a
true and literal copy of House Bill No. 1, introduced and passed at the
Tenth Session of the Legislature of the State of Idaho and approved
by the Governor of said State on the Twelfth day of January A. D.
1909, as appears from the enrolled copy of said House Bill No. 1, now
on file in this office ; and that the same is published under authority of
the State of Idaho.
In testimony whereof, I have
hereunto set my hand and af-
fixed the great Seal of the
State. Done at Boise City, the
Capital of Idaho, this Twenty-
second day of March in the
year of our Lord one thousand
nine hundred and nine and of
the Independence of the United
States of America the one hun-
dred and thirty-third.
^^7
Secretary of State.
PREFACE
The "Revised Codes" embraced in these volumes have been pre-
pared under the authority of an act of the Legislature, approved
March 12, 1907, entitled "An Act to provide for the Revision, Com-
pilation and Codification of the Laws of the State of Idaho." The act
is set forth at length on pages 75 to 77 of this volume.
Whatever difference of opinion there may be as to the proper
scope of an authorized statutory revision under an act such as the one
above cited, the wisdom of simply revising and compiling the exist-
ing law was so apparent on practical grounds as to exclude every
other course. A Revised Code has become an imperative necessity,
and while there might be many forceful objections to enacting a code
reflecting individual views, there can be none to the mere re-enact-
ment of the present law. These Codes, therefore, contain only what
is believed to be the existing law of this State, revised and brought
down to date so as to accurately and adequately express the latest will
of the Legislature. Obvious grammatical, clerical and typographical
errors, and mistakes of punctuation, have been corrected ; alterations
have been made where a section as originally enacted has been modi-
fied by subsequent legislation; provisions ante-dating the Constitu-
tion or otherwise inapplicable to the present state of government or
of the law have been omitted or modified as circumstances required;
but in no case has the legislative function of making new laws or of
changing the existing law been usurped.
The revision act required the statutes to be divided into Political,
Civil, Civil Procedure and Penal Codes. This method of classification
is open to serious objection. The personal equation enters too
largely into the problem as thus presented, and subjects which
one person would place in one code, another would place in
another. This is illustrated in previous compilations of the laws of
this State. The chapters concerning "Wills" and "Succession" in
1887 were included in the Code of Civil Procedure, and in 1901 in
the Civil Code. Many similar instances will readily occur to every
one familiar with our statutes. Attempted logical classifications of
the law have been unsatisfactory and have provoked controversy
ever since Blackstone wrote his Commentaries, while alphabetical or
encyclopedic classifications have universally met with approval.
Statutes arranged in the latter method are themselves an index to
their contents. There is always an opportunity for difference of
opinion, and consequently argument and dissatisfaction, over a di-
vision of topics founded on individual preferences, but there can be
no dispute over the arbitrary progression of the letters of the alpha-
IV. PREFACE
bet. However, we in this State are perhaps committed to the so-called
"Code" system, and in any event such has been foreordained for
these codes. Within the limitations thus imposed, and with a view
of making a usable and practical, rather than a scholarly classifi-
cation, the familiar arrangement of the Revised Statutes of 1887 has
been adopted. This classification is closely analagous to that of the
California Codes, and has been followed with more or less variation
in all the States which have followed those Codes. In the present
work it has been closely adhered to without any attempt to improve
upon it, and often in disregard to personal preferences. In the Civil
Procedure and Penal Codes even the title and chapter headings and
section numbers are preserved. In the Political and Civil Codes there
has been so much new legislation since the Revised Statutes that it
was necessary to make several insertions in what seemed to be their
appropriate places, and the old section numbers could not be pre-
served without using a labyrinth of letters in combinations
which would frequently have been unintelligible. It has also been
necessary to insert several new titles and chapters, and in some cases
to change the relative positions of titles and chapters. The chapter
on "Funding County Indebtedness" has been transferred from the
title of the Civil Code which treats of negotiable instruments to Title
11 of the Political Code concerning "Counties and County Officers."
The Police title of the Political Code includes "Inclosures and Tres-
passing Animals" and "Estrays" which, in the Revised Statutes,
constituted separate titles. In contradistinction to the 1901 Codes,
the title "Irrigation Districts" has been included in the Political Code,
on the theory that such districts are "political divisions of the State
which, by the revision act, are required to be included in that Code.
Again differing from the 1901 ' Codes, and in some respects
from the Revised Statutes, penal provisions of political, administra-
tive and police laws have been retained in the Political Code with the
acts of which they are the sanctionary clauses, instead of being trans-
ferred to the Penal Code, where, standing alone, they would be mean-
ingless and must be read in connection with provisions in an en-
tirely different part of the work. In their place in the Penal Code,
"cross reference headings" or "false sections" have been inserted, re-
ferring to all penal provisions of the law which are not contained
in that Code. Provisions creating State offices and boards are in-
cluded in the same title or chapter with the department of govern-
ment, institution or branch of law, which the office or board is created
to administer or enforce. The details of the classification are ade-
quately explained by the table of contents.
The historical notes give the origin and history of the section
and indicate any changes, other than mere clerical or verbal correc-
tions, which have been made, with the reasons therefor. The refer-
ences to the original and amendatory acts are to the initial page of
the act and not to the page on which the section is found, the object
being to present as a unit an act which may extend through many
sections. The notes to sections taken from the Session Laws of
1888-89 refer to the pages of the edition published by the Smith
Printing Co. in 1893, while those to sections from the 1899 laws refer
to the pages of the Lewis edition.
PREFACE V.
The "California Legislation" notes give the corresponding section
of the California Codes whenever there is a similar section, and in-
dicate in a general way the points of similarity or difference. Ref-
erences are given to the original Commissioners' Code of 1872, Deer-
ing's Code of 1885, and Kerr's Cyclopedic Code of 1905. The latter
work cites all the California decisions construing the section. Where
there is no similar California legislation and it has been possible,
with the means and resources at hand, to find similar statutes of
other States, they are referred to under the heading "Comparative
Legislation." These latter notes do not pretend to be exhaustive
and their absence does not indicate that the Idaho section is sui
generis, but merely that, in the limited time which could be given to
the quest, no similar legislation could be found.
The case notes include all cases decided by the Supreme Court of
this State citing or construing the section annotated, through the
cases reported in the 12th Idaho, and in addition thereto such cases
reported in the 13th Idaho as appeared in the 91st Pacific Reporter.
Parallel references are given to the Idaho Reports and to the Pacific
Reporter. Federal cases, through 206 U. S. (Bk. 51 L. Ed.) and 153
Fed. Rep., construing sections of our statutes, are also included. The
word "Cited" followed by reference to a case indicates that the sec-
tion has been cited by the court in the case referred to, but that it
was not construed, or, if construed, the construction turned princi-
pally on some other section under which the full note is given. The
year of the decision is given in parentheses so that by inspecting the
historical note it can be judged whether or not the decision is applica-
ble to the section since amendments referred to in that note. Dissent-
ing and concurring opinions are also digested, being indicated by the
abbreviations "dis. op." and "concur, op.", respectively. Where a Jus-
tice expressly dissents from a construction placed on a statute by the
opinion, that fact is noted, but no note is made of a general dis-
sent from the judgment of the court. If a case has been expressly
overruled it is so stated, but personal opinions as to whether a later
decision in effect overrules an earlier one are not interjected.
An index to the Constitution follows that instrument, an index
to the Political and Civil Codes is appended to Volume 1, and a com-
plete index to all Codes, including also the Constitution, follows
Volume 2. The index to the Political and Civil Codes is an abridg-
ment of the complete index. It refers to every section of those Codes,
but duplication is avoided and the sections are only indexed under
the main topical head. This abridgment was rendered necessary to
keep the bulk of the first volume within bounds. Attention is called
to the appendixes to Volume 2 which include: (1) a parallel reference
table giving the sections of the Revised Statutes, and pages and sec-
tions of the Session Laws, with the corresponding sections of the
Codes; (2) a table of repealed and amended laws; (3) the rules of
the Supreme Court. Section 17 of the Codes gives a table of all local
and special laws preserved in force.
The Justices of the Supreme Court and other State officers have
rendered invaluable service in advice and suggestions, which it is
impossible to recount in detail. It is here gratefully acknowledged.
VI. PREFACE
In addition acknowledgments are made to Mr. Edwin Snow, Assist-
ant Attorney General, for the compilation of the county boundaries,
and assistance in checking over the repealed and omitted laws; to Mr.
Herbert Wing, of the State Engineer's office, for assistance with the
irrigation laws, and to W. C. Dunbar, Esq., of the Boise Bar, for
the notes on the California and comparative legislation. Whatever
typographical excellence the books possess is due to the publishers,
the Syms-York Company, who have directed every energy towards
making them above reproach in that respect.
These Codes are now submitted to the people of the State, in the
hope that they may be found accurate and reliable, and to present a
complete and systematic compilation of our statutes. To those, if
there be any such, who hoped and expected that they would eliminate
all difficulties of statutory construction and application, the writer
would suggest the advice of Carlyl'e, "Quit hope of the universal pill."
Such a consummation can never be attained until legislative wisdom
and foresight can foresee and adequately provide for every compli-
cation arising in social and business relations which are constantly
growing more complex.
JOHN F. MACLANE,
Boise, July 1st, 1908. Commissioner.
TABLE OF CONTENTS
INTRODUCTORY MATTERS
Magna Charta 1
Declaration of Independence 10
Constitution of the United States 14
Organic Act of Idaho Territory 27
Provisions common to all Territories 35
Provisions concerning particular organized Territories 48
Idaho Admission Bill ..53
Authentication of records 59
The Naturalization Law 61
Code Revision Act 75
Constitution of Idaho , 78
Index to Constitution 145
REVISED CODES OF IDAHO
General provisions applicable to all the Codes 159
POLITICAL CODE
PRELIMINARY PROVISIONS 175
TITLE 1— POLITICAL DIVISIONS 176
Chap. 1. Seat of government 176
Chap. 2. Counties 176
Chap. 3. Legislative districts 190
Chap. 4. Judicial Districts 192
Chap. 5. Cessions to the Federal Government and assents
to Acts of Congress 193
TITLE 2.— PUBLIC OFFICERS 195
Chap. 1. Classification and term of office 195
Chap. 2. Legislative officers 196
Chap. 3. Executive officers and Capitol trustees 210
Chap. 4. Governor 211
Chap. 5. Secretary of State 214
Chap. 6. State Auditor 219
Chap. 7. State Treasurer 224
Chap. 8. Attorney General 234
Chap. 9. State Board of Examiners 237
Chap. 10. State Engineer 238
Chap. 11. Insurance Commissioner and Examiner 243
VIII. TABLE OF CONTENTS
Chap. 12. Bank Commissioner 249
Chap. 13. Fish and Game Warden 251
Chap. 14. Inspector of Mines 253
Chap. 15. Other executive officers and boards 258
Chap. 16. Officers of the Judicial Department 259
Chap. 17. Notaries Public 265
Chap. 18. Commissioners of Deeds 268
Chap. 19. General provisions applicable to all officers 269
Chap. 20. Bonds of officers 278
Chap. 21. Resignations and vacancies 286
Chap. 22. Miscellaneous provisions 291
TITLE 3— ELECTIONS 295
Chap. 1. General provisions 295
Chap. 2. Time for holding elections 296
Chap. 3. Notices of election 297
Chap. 4. Qualifications of voters 298
Chap. 5. Election precincts, judges and clerks 300
Chap. 6. Primary elections 303
Chap. 7. Nominations u ..307
Chap. 8. Registration of electors 311
Chap. 9. Ballots and supplies 316
Chap. 10. Conduct of election 322
Chap. 11. Canvass of returns 330
Chap. 12. Presidential electors 338
Chap. 13. Removal of county seats and changing county
boundaries 339
Chap. 14. Special elections 344
TITLE 4— EDUCATION 346
Chap. 1. State University 346
Chap. 2. Lewiston Normal School 350
Chap. 3. Albion Normal School 354
Chap. 4. Summer normal schools 358
Chap. 5. Academy of Idaho 361
Chap. 6. Public schools 364
Chap. 7. State Library Commission 408
Chap. 8. Public libraries 409
TITLE 5— STATE MILITIA 412
Chap. 1. Enumeration of persons liable to military duty.. ..412
Chap. 2. Organization 412
Chap. 3. Staff department, officers and their duties 420
Chap. 4. Discipline, uniforms, drills and encampments. ..422
Chap. 5. Military courts 426
Chap. 6. Miscellaneous 428
TITLE 6— PUBLIC INSTITUTIONS 432
Chap. 1. Insane asylums 432
Chap. 2. Soldiers' Home 443
Chap. 3. School for deaf, dumb and blind 445
Chap. 4. Industrial Training School 447
Chap. 5. Law libraries 455
Chap. 6. Historical Society 458
Chap. 7. Grand Army headquarters 460
TABLE OF CONTENTS IX.
Chap. 8. State fish hatchery 461
Chap. 9. Purchase of supplies for institutions 462
TITLE 7— PUBLIC WAYS 464
Chap. 1. Floating timber 464
Chap. 2. Highways 466
Chap. 3. Toll roads 498
Chap. 4. Public ferries and toll bridges 507
Chap. 5. Miscellaneous provisions relating to toll roads,
bridges and ferries 514
Chap. 6. Good roads districts 516
Chap. 7. State Highway Commission 522
TITLE 8— POLICE OF THE STATE 528
PRESERVATION OF PUBLIC HEALTH
Chap. 1. State Board of Health 529
Chap. 2. County board of health 539
Chap. 3. Dairy, Food and Oil inspection 541
THE LIVESTOCK INDUSTRY
Chap. 4. Inspection and suppression of diseases among
livestock 553
Chap. 5. Two mile limit law 577
Chap. 6. Dogs killing sheep or goats 578
Chap. 7. Liabilities of stock ranchers 579
Chap. 8. Marks and brands 579
Chap. 9. Leases of livestock 590
INCLOSURES, TRESPASS OF ANIMALS AND ESTRAYS
Chap. 10. Fences 591
Chap. 11. Inclosures of reservoirs and dumps 594
Chap. 12. Animals running at large and trespassing 595
Chap. 13. Estrays 600
Chap. 14. Herd districts 603
THE HORTICULTURAL AND BEE INDUSTRIES
Chap. 15. Horticultural inspection .605
Chap. 1*6. Bee inspection 612
THE REGULATION OF PROFESSIONS
Chap. 17. The practice of medicine 615
Chap. 18. The practice of dentistry 622
Chap. 19. The practice of osteopathy .626
Chap. 20. The practice of optometry 629
Chap. 21. The practice of pharmacy 633
Chap. 22. Licensed surveyors 640
Chap. 23. Abstractors of titles 642
PROTECTION AND REGULATION OF LABOR
Chap. 24. Bureau of Immigration, Labor and Statistics.. ..644
Chap. 25. Labor Commission and arbitration ....647
Chap. 26. Employment bureaus 653
Chap. 27. Protection of mechanics 654
Chap. 28. Union labor and employment of aliens 655
Chap. 29. Day's work and child labor 660
X. TABLE OF CONTENTS
PARTICULAR INDUSTRIES
Chap. 30. The printing trade 663
Chap. 31. Warehousemen 665
Chap. 32. Inspection of lumber 670
LICENSED OCCUPATIONS
Chap. 33. The liquor traffic 673
Chap. 34. Peddlers 680
MISCELLANEOUS PROVISIONS
Chap. 35. Money of account and interest 682
Chap. 36. Weights and measures 686
Chap. 37. Unclaimed property 687
Chap. 38. Fire escapes on buildings 688
Chap. 39. Hunting on inclosed lands 689
Chap. 40. Explosives 689
TITLE 9— THE PUBLIC LANDS .-.691
Chap. 1. Organization of State Land Department 691
Chap. 2. Appraisement, lease and sale of State lands 695
Chap. 3. Sales of timber on State lands 703
Chap. 4. Prevention of forest fires 707
Chap. 5. Carey Act lands 711
Chap. 6. Reservoirs and rights of way 721
Chap. 7. Miscellaneous provisions 723
TITLE 10— REVENUE ■ 725
Chap. 1. Property taxes „ 725
Chap. 2. License taxes 785
Chap. 3. Poll taxes 789
Chap. 4. Taxation of profits of mines 794
Chap. 5. Transfer tax on successions, legacies and devises 797
TITLE 11— COUNTIES AND COUNTY OFFICERS .... 810
Chap. 1. Counties as bodies corporate 810
Chap. 2. The Board of County Commissioners 811
Chap. 3. County officers 841
Chap. 4. Salaries and fees of office : 889
Chap. 5. Other county charges 900
Chap. 6. The county poor ..901
TITLE 12— TOWNSITES 904
TITLE 13— CITIES AND VILLAGES .....913
Chap. 1. Organization of cities , 913
Chap. 2. Council and officers of city 918
Chap. 3. Police courts 922
Chap. 4. Organization of villages 926
Chap. 5. Powers of cities and villages 931
Chap. 6. Municipal elections 945
Chap. 7. Municipal finances 947
Chap. 8. General provisions governing cities and villages
and their officers 953
Chap. 9. Changing names of municipalities 956
Chap. 10. Consolidation of municipalities 957
Chap. 11. City and village plats 961
TABLE OF CONTENTS XL
Chap. 12. Municipal improvement bonds 965
Chap. 13. Street Improvement bonds 970
Chap. 14. Sewer construction bonds 975
Chap. 15. Installment payments of improvement assess-
ments 988
TITLE 14— IRRIGATION DISTRICTS 994
Chap. 1. Organization of district 994
Chap. 2. Election of directors 999
Chap. 3. Powers and duties of the board of directors 1003
Chap. 4. Issuance, confirmation and sale of bonds 1006
Chap. 5. Levy and collection of assessments 1014
Chap. 6. Construction work and acquirement of prop-
erty 1018
Chap. 7. Changing boundaries of district 1021
Chap. 8. Miscellaneous provisions 1026
TITLE 15— DRAINAGE DISTRICTS 1029
Chap. 1. Organization of district 1029
Chap. 2. Board of drainage commissioners 1033
Chap. 3. Proceedings for assessment of damage 1035
Chap. 4. Construction of drainage system 1039
Chap. 5. Issuance of bonds and warrants 1044
Chap. 6. Miscellaneous provisions 1047
CIVIL CODE
PRELIMINARY PROVISIONS 1053
TITLE 1— PERSONS 1054
TITLE 2— MARRIAGE 1057
Chap. 1. The contract of marriage 1057
Chap. 2. Divorce 1064
Chap. 3. Husband and wife 1072
TITLE 3— PARENT AND CHILD 1078
Chap. 1. Children by birth 1078
Chap. 2. Adoption , 1079
TITLE 4— CORPORATIONS 1082
Chap. 1. General provisions 1082
Chap. 2. Railroad corporations 1112
Chap. 3. Bridge, ferry, flume and boom corporations 1126
Chap. 4. Telegraph, telephone and electric power cor-
porations 1127
Chap. 5. Water and canal corporations 1129
Chap. 6. Homestead corporations 1133
Chap. 7. Insurance companies 1136
Chap. 8. Secret fraternal insurance societies 1148
Chap. 9. Mutual co-operative insurance companies 1154
Chap. 10. Livestock and insurance companies 1161
Chap. 11. Surety and fidelity companies 1165
Chap. 12. Guaranty, title and trust companies 1175
Chap. 13. Banking corporations 1177
Chap. 14. Religious, social and benevolent corporations. ...1191
Chap. 15. Institutions of learning 1195
XII. TABLE OF CONTENTS
Chap. 16. Agricultural fair companies 1197
Chap. 17. Gas corporations 1198
Chap. 18. Land and building corporations 1199
TITLE 5— PROPERTY AND OWNERSHIP 1203
Chap. 1. General provisions 1203
Chap. 2. Estates in real property 1206'
Chap. 3. Rights and obligations of owners 1208
Chap. 4. Personal property 1210
TI f LE 6— TRANSFERS 1212
Chao. 1. Transfers in general 1212
Chap. 2. Transfer of real property 1213
Chap. 3. Acknowledgments 1217
Chap. 4. Recording transfers 1 1225
Chap. 5. Unlawful transfers 1228
TITLE 7— HOMESTEADS 1232
Chap. 1. General provisions .1232
Chap. 2. Sale of the homestead on execution 1234
Chap. 3. Homestead of the head of a family 1237
Chap. 4. Homestead of other persons 1239
TITLE 8— MINES AND MINING 1240
Chap. 1. Location of lode mining claims 1240
Chap. 2. Placer claims 1246
Chap. 3. Rights of way and easements for the develop-
ment of mines 1247
Chap. 4. Mining tunnels 1250
TITLE 9— WATER RIGHTS AND IRRIGATION 1252
Chap. 1. General provisions 1252
Chap. 2. Appropriation of water 1256
Chap. 3. Distribution of water among appropriators 1271
Chap. 4. Distribution to consumers * 1278
Chap. 5. Fixing water rates ...1283
Chap. 6. Rights of way , 1285
Chap. 7. Maintenance and repair of ditches . 1287
TITLE 10— CONTRACTS AND OBLIGATIONS 1290
Chap. 1. General provisions ....1290
Chap. 2. Sales ......1292
Chap. 3. Sales of goods in bulk 1293
TITLE 11— PARTNERSHIP ...1296
Chap. 1. Special partnership 1296
Chap. 2. Mining partnership 1301
TITLE 12— LIENS 1303
Chap. 1. Liens in general 1303
Chap. 2. Mortgages in general 1308
Chap. 3. Mortgage of real property 1312
Chap. 4. Mortgage of personal property 1312
Chap. 5. Pledge 1318
Chap. 6. Miscellaneous liens 1321
Chap. 7. Liens for service of sires 1323
TITLE 13— NEGOTIABLE INSTRUMENTS 1326
Chap. 1. Form and interpretation 1326
TABLE OF CONTENTS XIII.
Chap. 2. Consideration 1332
Chap. 3. Negotiation 1333
Chap. 4. Rights of holder 1336
Chap. 5. Liabilities of parties 1338
Chap. 6. Presentment for payment 1340
Chap. 7. Notice of dishonor 1343
Chap. 8. Discharge of negotiable instruments 1348
Chap. 9. Bills of exchange 1350
Chap. 10. Acceptance _... 1351
Chap. 11. General provisions 1361
Chap. 12. Instruments made negotiable by indorsement.. ..1362
TITLE 14— NUISANCES 1363
Chap. 1. General provisions 1363
Chap. 2. Public nuisances 1364
Chap. 3. Private nuisances 1365
INDEX
Index to Political and Civil Codes 1371
INTRODUCTORY MATTERS
MAGNA CHARTA
The Great Charter of Liberties of King John, Granted at Run-
• nymede, June 15, a. d. 1215, in the Seventeenth Year of His
Reign.
John, by the grace of God, King of England, Lord of Ireland, Duke
of Normandy, and Acquitaine, and Count of Anjou, to his Arch-
bishops, Bishops, Abbots, Earls, Barons, Justiciaries, Foresters,
Sheriffs, Governors, Officers, and to all Bailiffs, and his Lieges,
Greeting: Know ye, that we, in the presence of God, and for
the salvation of our own soul, and the souls of our ancestors,
and of our heirs, and unto the honor of God and the advance-
ment of Holy Church, and amendment of our realm, by advice
of our venerable Fathers, Stephen, Archbishop of Canterbury,
Primate of all England and Cardinal of the Holy Roman
Church, Henry, Archbishop of Dublin, William of London,
Peter of Winchester, Jocelin of Bath and Glastonbury, Hugh
of Lincoln, Walter of Worcester, William of Coventry, Benedict
of Rochester, Bishops; of Master Pandulph, Sub-Deacon and
Familiar of our Lord the Pope, Brother Aymeric, Master of the
Knights Templar in England; and of the Noble Persons,
William Mereschal, Earl of Pembroke, William, Earl of Salis-
bury, William, Earl of Warren, William, Earl of Arundel, Alan
de Galloway, Constable of Scotland, Warin Fitz-Gerald, Peter
Fitz-Herbert, and Hubert de Burgh, Seneschal of Poitou, Hugh
de Neville, Matthew Fitz-Herbert, Thomas Basset, Alan Basset,
Philip of Albany, Robert de Roppell, John Mareschal, John Fitz-
Hugh, and others, our ligemen, have in the first place, granted
to God, and by this our present Charter confirmed for us and
our heirs forever :
1. That the Church of England shall be free, and have her whole
rights, and her liberties inviolable; and we shall have them so ob-
served, that it may appear thence, that the freedom of elections
which is reckoned chief and indispensable to the English Church, and
which we granted and confirmed by our charter, and obtained the
confirmation of the same from our Lord Pope Innocent III., before
the discord between us and our barons, was granted of mere free
will which charter we shall observe, and we do will it to be faith-
fully observed by our heirs forever.
2. We have also granted to all the freemen of our kingdom, for
us and for our heirs forever, all the underwritten liberties to be had
and holden by them and their heirs, of us and our heirs, forever:
If any of our earls, or barons or others, who hold of us in chief by
military service, shall die, and at the time of his death, his heirs shall
MAGNA CHARTA
be of full age, and owes a relief ; he shall have his inheritance by the
ancient relief ; that is to say, the heir or heirs of an earl, for a whole
earldom, by a hundred pounds; the heir or heirs of a baron, for a
whole barony, by a hundred pounds ; the heir or heirs of a knight, for a
whole knight's fee, by a hundred shillings at most; and whoever
oweth less shall give less, according to the ancient custom of fees.
3. But if the heir of any such shall be under age, and shall be in
ward when he comes of age, he shall have his inheritance without
relief and without fine.
4. The keeper of the land of such an heir being under age, shall
take of the land of the heir none but reasonable issues, reasonable
customs, and reasonable services, and that without destruction and
waste of his men and his goods ; and if we commit the custody of any
such lands to the sheriff, or any other who is answerable to us for
the issues of the land, and he shall make destruction and waste of
the lands which he hath in custody, we will take of him amends,
and the land shall be committed to two lawful and discreet men of
that fee, who shall answer for the issue to us, or to him to whom we
shall assign them; and if we sell or give to anyone the custody of
any such lands, and he therein makes destruction or waste, he shall
lose the same custody, which shall be committed to two lawful and
discreet men of that fee, who shall in like manner answer to us as
aforesaid.
5. But the keeper, so long as he shall have the custody of the
land, shall keep up the houses, parks, warrens, ponds, mills, and
other things pertaining to the land, out of the issues of the same
land; and shall deliver to the heir when he comes of full age, his
whole land, stocked; with plows and carriages, according as tthe
time of wainage shall require, and the issue of the land can reasonably
bear.
6. His heirs shall be married without disparagement, and so that
before matrimony shall be contracted, those who are near in blood to
the heir shall have notice.
7. A widow, after the death of her husband, shall forthwith and
without difficulty have her marriage and inheritance; nor shall she
give anything for her dower, or her marriage, or her inheritance,
which her husband and she held at the day of his death; and she
may remain in the mansion house of her husband forty days after
his death, within which time her dower shall be assigned.
8. No widow shall be distrained to marry herself, so long as she
has a mind to live without a husband; but yet she shall give secur-
ity that she will not marry without our assent, if she holds of us ; or
without the consent of the lord whom she holds, if she holds of another.
9. Neither we nor our bailiffs will seize any land or rent for any
debt, so long as the chattels of the debtor are sufficient to pay the
debt ; nor shall the sureties of the debtor be distrained so long as the
principal debtor has sufficient to pay the debt; and if the principal
debtor shall fail in the payment of the debt, not having the wherewithal
to pay it, then the sureties shall answer the debt; and if they will
they shall have the lands and rent of the debtor, until they shall be
satisfied for the debt which they paid for him, unless the principal
debtor can show himself acquitted thereof against said sureties.
MAGNA CHARTA
10. If any one have borrowed anything of the Jews, more or less,
and die before the debt be satisfied, there shall be no interest paid
for that debt, so long as the heir is under age, or whomsoever he may
hold ; and if the debt falls into our hands we will take only the chat-
tel mentioned in the deed.
11. And if any one shall die indebted to the Jews, his wife shall
have her dower and pay nothing of that debt; and if the deceased
left children under age, they shall have necessaries provided for them,
according to the tenement of the deceased; and out of the residue
the debt shall be paid, saving, however, the services due the lords ; and
in like manner shall it be done touching debts due to others than the
Jews.
12. No scutage or aid shall be imposed in our kingdom, unless
by the general council of our kingdom; except for ransoming our
p'erson, making our eldest son knight, and once for marrying our
eldest daughter; and for these there shall be paid no more than rea-
sonable aid. In like manner it shall be concerning the aids of the
city of London.
13. And the city of London shall have all of its ancient liberties
and free customs, as well by land as by water; furthermore we will
and grant, that all other cities and burroughs, and towns and ports,
shall have all their liberties and free customs.
14. And for holding the general council of the kingdom concern-
ing the assessment of aids, except in the three cases aforesaid, and for
the assessing of scutages, we will cause to be summoned the arch-
bishops5 bishops, abbots, earls, and greater barons of the realm, singly
by our letters. And furthermore we will cause to be summoned gen-
erally by our sheriffs and bailiffs, all others who hold us in chief, for
a certain day, that is to say forty days before their meeting at least
and to a certain place; and in all letters of such summons we will de-
clare the cause of such summons. And summons being thus made,
the business shall proceed on the day appointed, according to the ad-
vice of such as shall be present, although all that were summoned come
not.
15. We will not for the future grant to any one that he may take,
aid of his own free tenants, unless to ransom his body, and to make
his eldest son a knight, and once to marry his eldest daughter; and
for this there shall be paid only reasonable aid.
16. No man shall be distrained to perform more service for a
knight's fee, or other fee tenement than is due from thence.
17. Common pleas shall not follow our court, but shall be holden
in some place certain.
18. Trials upon the writ of novel disseisin, and mort d'ancestor,
and of darrien presentment, shall not be taken but in their proper
counties, and after this manner : We, or, if we should be out of the
realm, our chief justiciary, will send two justiciaries through every
county four times a year, who, with four knights of each county,
chosen by the county, shall hold the said assizes, in the county, on the
day and at the place appointed.
19. And if any matters cannot be determined on the day appointed
for the holding of the assizes, in each county, so many of the knights
and freeholders as have been at the assizes aforesaid, shall stay to
MAGNA CHARTA
decide them, as is necessary, according as there is more or less busi-
ness.
20. A freeman shall not be amerced for a small offence, but only
after the degree of the offence ; and for a great crime according to the
heinousness of it, saving to him his contenement ; and after the same
manner a merchant, saving to him his merchandise. And a villein
shall be amerced after the same manner, saving to him his wainage, if
he falls under our mercy; and none of the aforesaid amerciaments
shall be assessed but by oath of honest men of the neighborhood.
21. Earls and barons shall not be amerced, but by their peers, and
after the degree of the offence.
22. No ecclesiastical person shall be amerced for his lay tenement,
but according to the proportion of the others aforesaid, and not ac-
cording to the value of his ecclesiastical benefice.
23. Neither a town nor any tenement shall be distrained to make
bridges or banks, unless that anciently of right they are bound to do it.
24. No sheriff, constable, coroner, or other our bailiffs, shall hold
pleas of the crown.
25. All counties, hundreds, wapentakes, and tythings, shall stand
at the old rents, without increase, except in our demesne manors.
26. If any one holding of us a lay fee die, and the sheriff, or our
bailiffs, show our letters of patent, of summons for debt which the
dead man did owe to us, it shall be lawful for the sheriff or our bailiff
to attach and register the chattels of the dead, found upon his lay fee,
to the amount of the debt, by the view of lawful men, so as nothing be
removed until our whole clear debt be paid ; and the rest shall be left
to the executors to fulfill the testament of the dead, and if there be
nothing due from his to us, all the chattels shall go to the use of the
dead, saving to his wife and children their reasonable shares.
27. If any freeman shall die intestate, his chattels shall be distrib-
uted by the hands of his nearest relations and friends, by view of the
church ; saving to everyone his debts which the deceased owed to him.
28. No constable or bailiff of ours shall take corn or other chattels
of any man, unless he presently give him money for it, or hath respite
of payment by the good will of the seller.
29. No constable shall distrain any knight to give money for
castle-guard, if he himself will do it in his person, or by another able
man in case he cannot do it through any reasonable cause. And if
we have carried or sent him into the army, he shall be free from such
guard for the time he shall be in the army by our command!
30. No sheriff or bailiff of ours, or any other, shall take horses or
carts of any freeman for carriage, without the consent of the said
freeman.
31. Neither will we nor our bailiffs take any man's timber for
our castles or other uses, unless by the consent of the owner of the
timber.
32. We will retain the lands of those convicted of felony only
one year and a day, and then they shall be delivered to the lord of the
free.
33. All weirs for the time to come shall be put down in the rivers
Thames and Medway, and throughout all England, except upon the
sea-coast.
MAGNA CHARTA
34. The writ, which is called prascipe, for the future, shall not
be made out to anyone, of any tenement, whereby a freeman may lose
his court.
35. There shall be one measure of wine and one of ale through
our whole realm ; and one measure of corn, that is to say, the London
quarter; and one breadth of dyed cloth, and russets, and haberjacts,
that is to say, two ells within the lists and it shall be of weights as it
is of measures.
36. Nothing from henceforth shall be given or taken for a writ
of inquisition of life or limb, but it shall be granted freely, and not
denied.
37. If any do hold of us by the fee-farm, or by socage, or by burg-
age, and he hold also lands of any other by knight service, we will
not have the custody of the heir or land, which is holden of another
man's fee by reason of that fee-farm, socage, or burgage, neither will
we have the custody of the fee-farm, socage or burgage, unless knight's
service was due us out of the same fee-farm. We will not have the
custody of an heir, nor of any land which he holds of another by
knight's service, by reason of any petty serjeanty by which he holds
of us, by the service of paying a knife, an arrow, or the like.
38. No bailiff from henceforth shall put any man to his law upon
his own bare saying, without creditable witnesses to prove it.
39. No freeman shall be taken or imprisoned, or disseised, or out-
lawed or banished, or in any way destroyed, nor will we pass upon
him, nor will we send upon him, unless by the lawful judgment of his
peers, or by the law of the land.
40. To none will we sell, to none will we deny, or delay, right or
justice.
41. All merchants shall have safe and secure conduct to go out
of, and to come into England, and to stay there, and to pass as well
by land as water, for buying and selling by the ancient and allowed
customs, without any unjust toils ; except in time of war, or when they
are of any nation at war with us. And if there be found any such in
our land, in the beginning of war, they shall be attached without dam-
age to their bodies or goods, until it be known unto us, of our chief jus-
ticiary, how our merchants, be treated in the nation at war with us ;
and if ours be safe there, the others shall be safe in our dominions.
42. It shall be lawful for the time to come, for any one to go
out of our kingdom, and return safely and securely, by land or by
water, saving his allegiance to us; unless in time of war, by some
short space, for the common benefit of the realm, except prisoners
and outlaws, according to the law of the land, and people in war
with us, and merchants who shall be treated as is above mentioned.
43. If any man holds of any escheat, as of the honor of Wal-
lingford, Nottingham, Boulogne, Lancaster, or of other escheats which
be in our hand, and are baronies, and die, his heir shall give no other
relief and perform no other service to us, that he would do to the
baron, if it were in the baron's hand ; we will hold it after the same
manner as the baron held it.
44. Those men who dwell without the forest, from henceforth shall
not come before our justiciaries of the forest, upon common summons,
but such as are impleaded, or are pledges for any that are attached for
something concerning the forest.
MAGNA CHARTA
45. We will not make any justices, constables, sheriffs, or bailiffs,
but of such as know the law of the realm and mean duly to observe it.
46. All barons who have founded abbeys, and have the kings of
England's charters or advowson, or the ancient tenure thereof, shall
have the keeping of them, when vacant, as they ought to have.
47. All forests that have been made forests in our time, shall
forthwith be disforested ; and the same shall be done with the water
banks that have been fenced in by us in our time.
48. All evil customs concerning forests, warrens, foresters and
warreners, sheriffs and their officers, rivers and their keepers, shall
forthwith be inquired into in each county by twelve sworn knights
of the same shire, chosen by creditable persons of the same county;
and within forty days after the said inquest, be utterly abolished so
as never to be restored. So as we are first acquainted therewith, or
our justiciary, if we be not in England.
49. We will immediately give up all hostages and writings de-
livered unto us by our English subjects, as securities for their keeping
the peace, and yielding us faithful service.
50. We will entirely remove from our bailiwicks the relations of
Gerard de Athyes, so that for the future they shall have no bailiwick
in England ; we will also remove Englelard de Cygony, Andrew, Peter
and Gyon, from the Chancery; Gyon de Cygony, Geoffrey de Martyn
and his brothers; Philip Mark and his brothers, and his nephew,
Geoffrey, and their whole retinue.
51. As soon as peace is restored, we will send out of the kingdom
all foreign soldiers, cross-bowmen, and stipendaries, who are come
with horses and arms to the prejudice of our people.
52. If any one has been dispossessed or deprived by us, without
legal judgment of his peers, of his lands, castles, liberties, or right,
we will forthwith restore them to him ; and if any dispute arise upon
this head, let the matter be decided by the five-and- twenty barons
hereafter mentioned, for the preservation of the peace. As for all
those things of which any person has, without the legal judgment of
his peers, been dispossessed or deprived, either by King Henry our
father, or our brother King Richard, and which we have in our hands,
or are possessed by others, and we are bound to warrant and make
good, we shall have a respite till the term usually allowed the cru-
saders ; excepting those things about which there is a plea depending
or whereof an inquest hath been made, by our order, before we under-
take the crusade, but when we return from our pilgrimage, or if per-
chance we tarry at home and do not make our pilgrimage, we will im-
mediately cause full justice to be administered therein.
53. The same respite we shall have (and in the same manner about
administering justice, disafforesting the forests, or letting them con-
tinue) for disafforesting the forests, which Henry our father, and
our brother Richard have afforested ; and for the keeping of the lands
which are in another's fee, in the same manner as we have hitherto
enjoyed those wardships, by reason of a fee held of us by knight's ser-
vice; and for the abbeys founded in any other fee than our own, in
which the lord of the fee says he has a right ; and when we return from
our pilgrimage, or if we tarry at home and do not make our pilgrim-
age, we will immediately do full justice to all the complainants in this
behalf.
MAGNA CHARTA
• 54. No man shall be taken or imprisoned upon the appeal of a
woman, for the death of any other than her husband.
55. All unjust and illegal fines made by us, and all amerciaments
imposed unjustly and contrary to the law of the land, shall be entirely
given up, or else be left to the decision of the five-and-twenty-barons
hereinafter mentioned for the preservation of the peace, or of the ma-
jor part of them, together with the aforesaid Stephen, archbishop of
Canterbury, if he can be present, and others whom he shall think fit
to take along with him ; and if he cannot be present, the business shall
notwithstanding go on without him ; but so that if one or more of the
aforesaid five-and-twenty-barons be plaintiffs in the same cause, they
shall be set aside as to what concerns this particular affair and
others be chosen in their room, out of the said five-and-twenty, and
sworn by the rest to decide the matter.
56. If we have disseised or dispossessed the Welsh, of any lands,
liberties, or other things, without the legal judgment of their peers,
either in England or in Wales, they shall be immediately restored to
them ; and if any dispute arise upon this head, the matter shall be de-
termined in the Marche by the judgment of their peers; for tenements
in England, according to the law of England, for tenements in Wales
according to the law of Wales, for tenements of the Marche accord-
ing to the law of the Marche ; the same shall the Welsh do to us and
our subjects.
57. As for all those things which a Welshman hath, without
the legal judgment of his peers, been disseised or deprived of by
King Henry our father, or our brother King Richard, and which we
either have in our hands, or others are possessed of, and we are obliged
to warrant it, we shall have a respite till the time generally allowed
the crusaders ; excepting those things about which a suit is depending,
or whereof an inquest has been made by our order before we under-
took the crusade ; but when we return, or if we stay at home without
performing our pilgrimage, we will immediately do them full justice,
according to the laws of the Welsh and of the parts before mentioned.
58. We will without delay dismiss the son of Llewellyn, and all
the Welsh hostages, and release them from the engagements they
have entered into with us for the preservation of peace.
59. We will treat with Alexander, King of Scots, concerning the
restoration of his sisters and hostages, and his rights and liberties, in
the same form and manner as we shall do to the rest of the barons of
England ; unless by the charters which we have from his father, Wil-
liam, late King of Scots, it ought to be otherwise ; but this shall be left
to the determination of his peers in our court.
60. All the aforesaid customs and liberties, which we have granted
to be holden in our kingdom, as much as it belongs to us towards all
people of our kingdom, as well clergy as laity shall observe as far
as they are concerned, towards their dependents.
61. And whereas, for the honor of God and the amendment of
our kingdom, and for the better quieting this discord that has arisen
between us and our barons, we have granted all these things afore-
said; willing to render them firm and lasting, we do give and grant
our subjects the underwritten security, namely, that the barons may
choose five-and-twenty-barons of the kingdom, whom they think con-
8 MAGNA CHARTA
venient ; who shall take care, with all their might, to hold and observe
and cause to be observed, the peace and liberties we have granted them,
and by this our present charter confirmed; so that if we, our jus-
ticiary, our bailffs, or any of our officers, shall in any circumstances
fail in the performance of them, towards any person, or shall break
through any of these articles of peace and security and the offence
be notified to four barons chosen out of the five-and-twenty before
mentioned, the said four barons shall repair to us, or our justiciary,
if we are out of the realm, and laying open the grievance, shall petition
to have it redressed without delay; and if it be not redressed by us,
or if we should chance to be out of the realm, if it should not be re-
dressed by our justiciary, within forty days, reckoning from the time
it has been notified to us, or to our justiciary, if we should be out
of the realm, the four barons aforesaid shall lay the cause before the
rest of the five-and-twenty barons; and the said five-and-twenty
barons, together with the community of the whole kingdom, shall dis-
train and distress us in all possible ways, by seizing our castles, lands,
possessions, and in any other manner they can, till the grievance is re-
dressed according to their pleasure ; saving harmless our own person
and the persons of our queen and children ; and when it is redressed
they shall obey as before. And any person whatsoever in the king-
dom, may swear that he will obey the orders of the five-and-twenty
barons aforesaid, in the execution of the premises, and will distress us
jointly with them, to the utmost of his power ; and we give public and
free liberty to any one that shall please to swear to this, and never
will hinder any person from taking the same oath.
62. As for those of our subjects who will not, of their own ac-
cord, swear to join the five-and-twenty barons in distraining and dis-
tressing us, we will issue orders to make them take the same oath as
aforesaid. And if any one of the five-and-twenty barons dies, or goes
out of the kingdom, or is hindered in any other way from carrying
the things aforesaid into execution, the rest of the said five-and-twenty
barons may choose another in his room, at their discretion, who shall
be sworn in like manner as the rest. In all things that are com-
mixed by the execution of these five-and-twenty barons, if, when they
are all assembled together, they should happen to disagree about any
matter, and some of them, when summoned, will not, or cannot, come,
whatever is agreed upon, or enjoined, by the major part of those that
are present, shall be reputed as firm and valid as if all the five-and-
twenty had given their consent; and the aforesaid five-and-twenty
shall swear that all the premises they shall faithfully observe, and
cause with all their power to be observed. And we will not, by our-
selves, or by any other, procure any thing whereby any of these con-
cessions and liberties may be revoked or lessened; and if any such
thing be obtained, let it be null and void; neither shall we ever make
use of it, either by ourselves or any other. And all the ill will, in-
dignations and rancourse that have arisen between us and our subjects,
of the clergy and laity, from the first breaking out of the dissensions
between us, we do fully remit and forgive; moreover all trespasses
occasioned by the said dissensions, from Easter in the fifteenth year of
our reign, till the restoration of peace and tranquility, we hereby en-
tirely remit to all, both clergy and laity, and, as far as in us lies, do
MAGNA CHARTA
fully forgive. We have, moreover, caused to be made for them the
letters patent testimonials of Stephen, lord archbishop of Canterbury,
Henry, lord archbishop of Dublin, and the bishops aforesaid, as alsc
of Master Pandulph, for the security and concessions aforesaid.
63. Wherefore we will and firmly enjoin, that the Church of
England be free, and that all the men in our kingdom have and hold
all the aforesaid liberties, rights and concessions, truly and peaceably,
freely and quietly, fully and wholly to themselves and their heirs, of
us and our heirs, in all things and places, forever, as is aforesaid.
It is also sworn, as well on our part as on the part of the barons,
that all the things aforesaid shall be observed, bona fide and without
evil subtility.
Given under our hand in the presence of the witnesses above
named and many others, in the meadow called Runnymede, between
Windsor and Staines, the 15th day of June, in the 17th year of our
reign.
DECLARATION OF INDEPENDENCE
In Congress, July 4, 1776. — The Unanimous Declaration of the
Thirteen United States of America.
When in the course of human events, it becomes necessary for one
people to dissolve the political bands which have connected them with
another, and to assume among the Powers of the earth, the separate
and equal station to which the laws of Nature and of Nature's God en-
title them, a decent respect to the opinions of mankind requires that
they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain inalien-
able rights, that among these are life, liberty, and the pursuit of hap-
piness; that to secure these rights Governments are instituted
among men, deriving their just powers from the consent of the gov-
erned. That whenever any form of government becomes destructive
of these ends, it is the right of the people to alter or to abolish it, and
to institute new government, laying its foundation on such principles
and organizing its powers in such form, as to them shall seem
most likely to effect their safety and happiness. Prudence, indeed,
will dictate that Governments long established should not be
changed for light and transient causes; and accordingly all experi-
ence hath shown that mankind are more disposed to suffer, while
evils are sufferable, than to right themselves by abolishing the
forms to which they are accustomed. But when a long train of
abuses and usurpations, pursuing invariably the same object, evinces
a design to reduce them under absolute despotism, it is their right,
it is their duty, to throw off such government, and to provide new
guards for their future security. Such has been the patient suffer-
ance of these Colonies, and such is now the necessity which constrains
them to alter their former systems of government. The history of
the present King of Great Britain is a history of repeated, injuries
and usurpations, all having in direct object the establishment of an
absolute tyranny over these States. To prove this, let facts be sub-
mitted to a candid world.
He has refused his assent to laws the most wholesome and neces-
sary for the public good.
He has forbidden his Governors to pass laws of immediate and
pressing importance, unless suspended in their operation till his
assent should be obtained; and when so suspended, he has utterly
neglected to attend to them.
He has refused to pass other laws for the accommodation of large
districts of people, unless those people would relinquish the right
of representation in the Legislature, a right inestimable to them
and formidable to tyrants only.
DECLARATION OF INDEPENDENCE 11
He has called together legislative bodies at places unusual, uncom-
fortable, and distant from the depository of their public records, for
the sole purpose of fatiguing them into compliance with his measures,
He has dissolved Representative Houses repeatedly, for opposing
with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to
cause others. to be elected; whereby the legislative powers, incapable
of annihilation, have returned to the people at large, for their ex-
ercise, the State remaining, in the meantime, exposed to all the dan-
gers of invasion from without, and convulsions within.
He has endeavored to prevent the population of these States; for
that purpose obstructing the laws for naturalization of foreigners;
refusing to pass others to encourage their migration hither and rais-
ing the conditions of new appropriation of lands.
He has obstructed the administration of justice, by refusing his
assent to laws for establishing judiciary powers.
He has made judges dependent on his will alone, for the tenure of
their offices and the amount and payment of their salaries.
He has created a multitude of new offices, and sent hither swarms
of officers, to harass our people, and eat out their substance.
He has kept among us, in times of peace, standing armies, with-
out the consent of our legislatures.
He has affected to render the military independent of, and super-
ior to, the civil power.
He has combined with others to subject us to a jurisdiction foreign
to our Constitution, and unacknowledged by our laws; giving his as-
sent to their acts of pretended legislation.
For quartering large bodies of armed troops among us.
For protecting them, by a mock trial, from punishment for any
murders which they should commit on the inhabitants of these States.
For cutting off our trade with all parts of the world.
For imposing taxes on us without our consent.
For depriving us, in many cases, of the benefits of trial by jury.
For transporting us beyond seas to be tried for pretended of-
fenses.
For abolishing the free system of English laws in a neighboring
province, establishing therein an arbitrary government, and enlarg-
ing its boundaries, so as to render it at once an example and fit instru-
ment for introducing the same absolute rule into these colonies.
For taking away our charters, abolishing our most valuable laws,
and altering, fundamentally, the forms of our government.
For suspending our own legislatures, and declaring themselves
invested with power to legislate for us in all cases whatsoever.
He has abdicated government here by declaring us out of his pro-
tection, and waging war against us.
He has plundered our seas, ravaged our coasts, burnt our towns,
and destroyed the lives of our people.
He is at this time transporting large armies of foreign mercenaries
to complete the works of death, desolation, and tyranny, already be-
gun with circumstances of cruelty and perfidy scarcely paralleled in
the most barbarous ages, and totally unworthy the head of a civilized
nation.
12 DECLARATION OF INDEPENDENCE
He has constrained our fellow citizens taken captive on the high
seas to bear arms against their country, to become the executioners
of their friends and brethren, or to fall themselves by their hands.
He has incited domestic insurrections amongst us, and has en-
deavored to bring on the inhabitants of our frontiers, the merciless
Indian savages, whose known rule of warfare is an undistinguished
destruction of all ages, sexes and conditions.
In every stage of these oppressions, we have petitioned for re-
dress in the most humble terms. Our repeated petitions have been
answered only by repeated injury. A prince, whose character is thus
marked by every act which may define a tyrant, is unfit to be the
ruler of a free people.
Nor have we been wanting in attention to our British brethren.
We have warned them from time to time of attempts by their legisla-
ture to extend an unwarrantable jurisdiction over us. We have re-
minded them of the circumstances of our emigration and settlement
here. We have appealed to their native justice and magnanimity, and
we have conjured them by the ties of common kindred to disavow
these usurpations, which would inevitably interrupt our connections
and correspondence. They too have been deaf to the voice of justice
and of consanguinity. We must, therefore, acquiesce in the necessity
which denounces our separation, and hold them, as we hold the
rest of mankind, enemies in war, in peace, friends.
We, therefore, the Representatives of the United States of Amer-
ica, in General Congress assembled, appealing to the Supreme Judge
of the World for the rectitude of our intentions, do, in the name and
by authority of the good people of these colonies, solemnly publish
and declare, that these united colonies are, and of right ought to be,
free and independent States; that they are absolved from all alle-
giance to the British crown, and that all political connection between
them and the State of Great Britain, is and ought to be totally dis-
solved ; and that as free and independent States, they have full power
to levy war, conclude peace, contract alliances, establish commerce,
and to do all other acts and things which independent States may
of right do. And for the support of this Declaration, with a firm
reliance on the protection of Divine Providence, we mutually pledge
to each other our lives, our fortunes and our sacred honor.
JOHN HANCOCK.
New Hampshire — Josiah Bartlett, Wm. Whipple, Matthew
Thornton.
Massachusetts Bay — Sam'l Adams, John Adams, Robt. Treat
Paine, Eldridge Gerry.
Rhode Island — Step. Hopkins, William Ellery.
Connecticut — Roger Sherman, Sam'l Huntington, Wm. Wil-
liams, Oliver Wolcott.
New York — Wm. Floyd, Phil Livingston, Franz Lewis, Lewis
Morris.
New Jersey — Richd. Stockton, Jno. Witherspoon, Frans Hop-
kinson, John Hart, Abra. Clark.
Pennsylvania — Robt. Morris, Benjamin Rush, Benja. Frank-
lin, John Morton, Geo. Clymer, Jas. Smith, Geo. Taylor, James
Wilson, Geo. Ross.
DECLARATION OF INDEPENDENCE 13
Delaware — Caesar Rodney, Geo. Read, Tho. M'Kean.
Maryland — Samuel Chase, Wm. Paca, Thos. Stone, Charles
Carroll of Carrollton.
Virginia — George Wythe, Richard Henry Lee, Th. Jefferson,
Benja. Harrison, Thos. Nelson, Jr., Francis Lightfoot Lee, Car-
ter Braxton.
North Carolina — Wm. Hooper, Joseph Hewes, John Penn.
South Carolina — Edward Rutledge, Thos. Hayward, Jr., Thom-
as Lynch, Jr., Arthur Middleton.
Georgia — Button Gwinnett, Lyman Hall, Geo. Walton.
CONSTITUTION OF THE UNITED STATES
Adopted in Convention, September 17, 1787.
We the people of the United States, in order to form a more per-
fect Union, establish justice, insure domestic tranquility, provide for
the common defense, promote the general welfare, and secure the
blessings of liberty to ourselves and our posterity, do ordain and es-
tablish this Constitution for the United States of America :
ARTICLE I.
Section 1. All legislative powers herein granted shall be vested
in a Congress of the United States, which shall consist of a Senate
and House of Representatives.
Section 2. The House of Representatives shall be composed of
members chosen every second year by the people of the several
States, and the electors in each State shall have the qualifications
requisite for the electors of the most numerous branch of the State
Legislature.
No person shall be a representative who shall not have attained
to the age of twenty-five years, and been seven years a citizen of the
United States, and who shall not, when elected, be an inhabitant of
that State in which he shall be chosen.
Representatives and direct taxes shall be apportioned among
the several States which may be included within this Union, ac-
cording to their respective numbers, which shall be determined by
adding to the whole number of free persons, including those bound
to service for a term of years, and excluding Indians not taxed,
three-fifths of all other persons. The actual enumeration shall be
made within three years after the first meeting of the Congress of
the United States, and within every subsequent term. of ten years, in
such manner as they shall by law direct. The number of Represent-
atives shall not exceed one for every thirty thousand, but each State
shall have at least one Representative ; and until such enumeration
shall be made, the State of New Hampshire shall be entitled to choose
three, Massachusetts eight, Rhode Island and Providence Plantations
one, Connecticut five, New York six, New Jersey four, Pennsylva-
nia eight, Delaware one, Maryland six, Virginia ten, North Carolina
five, South Carolina five, Georgia three.
When vacancies happen in the representation from any State, the
executive authority thereof shall issue writs of election to fill such
vacancies.
The House of Representatives shall choose their Speaker and
other officers ; and shall have the sole power of impeachment.
CONSTITUTION OF THE UNITED STATES 15
Section 3. The Senate of the United States shall be composed
of two Senators from each State, chosen by the Legislature thereof,
for six years ; and each Senator shall have one vote.
Immediately after they shall be assembled in consequence of the
first election, they shall be divided as equally as may be into three
classes. The seats of the Senators of the first class shall be vacated
at the expiration of the second year, of the second class at the expira-
tion of the fourth year, and of the third class at the expiration of the
sixth year, so that one-third may be chosen every second year ; and if
vacancies happen by resignation, or otherwise, during the recess of
the Legislature of any State, the executive thereof may make tem-
porary appointments until the next meeting of the Legislature which
shall then fill such vacancies.
No person shall be a Senator who shall not have attained to the
age of thirty years, and been nine years a citizen of the United
States, and who shall not, when elected, be an inhabitant of that
State for which he shall be chosen.
The Vice President of the United States shall be President of
the Senate, but shall have no vote, unless they be equally divided.
The Senate shall choose their other officers, and also a President
pro tempore, in the absence of the Vice President, or when he shall
exercise the office of President of the United States.
The Senate shall have the sole power to try all impeachments.
When sitting for that purpose, they shall be on oath or affirmation.
When the President of the United States is tried, the Chief Justice
shall preside. And no person shall be convicted without the concur-
rence of two-thirds of the members present.
Judgment in cases of impeachment shall not extend further than
to removal from office, and disqualification to hold and enjoy any
office or honor, trust, or profit under the United States ; but the party
convicted shall nevertheless be liable and subject to indictment, trial,
judgment and punishment, according to law.
Section 4. The times, places and manner of holding elections
for Senators and Representatives, shall be prescribed in each State
by the Legislature thereof; but the Congress, may at any time by
law make or alter such regulations, except as to places of choosing
Senators.
The Congress shall assemble at least once in every year, and such
meeting shall be on the first Monday in December, unless they shall
by law appoint a different day.
Section 5. Each House shall be the judge of the elections, re-
turns and qualifications of its own members, and a majority of
each shall constitute a quorum to do business but a smaller number
may adjourn from day to day, and may be authorized to compel the
attendance of absent members, in such manner, and under such pen-
alties as each House may provide.
Each House may' determine the rules of its proceedings, punish
its members for disorderly behavior, and, with the concurrence of
two-thirds, expel a member.
Each House shall keep a Journal of its proceedings, and from
time to time publish the same, excepting such parts as may in their
judgment require secrecy; and the yeas and nays of the members of
Vol. 1-2
16 CONSTITUTION OF THE UNITED STATES
either house on any question shall, at the desire of one-fifth of those
present, be entered on the Journal.
Neither House, during the session of Congress, shall, without the
consent of the other, adjourn for more than three days, nor to any
other place than that in which the two Houses shall be sitting.
Section 6. The Senators and Representatives shall receive a com-
pensation for their services, to be ascertained by law, and paid out
of the Treasury of the United States. They shall in all cases, except
treason, felony and breach of the peace, be privileged from arrest
during their attendance at the session of their respective Houses,
and in going to and returning from the same; and for any speech
or debate in either House, they shall not be questioned in any other
place.
No Senator or Representative shall, during the time for which he
was elected, be appointed to any civil office under the authority of
the United States, which shall have been created or the emoluments
whereof shall have been increased during such time; and no person
holding any office under the United States, shall be a member of
either House during his continuance in office.
Section 7. All bills for raising revenue shall originate in the
House of Representatives; but the Senate may propose or concur
with amendments as on other bills.
Every bill which shall have passed the House of Representatives
and the Senate, shall, before it become a law be presented to the
President of the United States. If he approves he shall sign it, but
if not he shall return it with his objections to that House in which
it shall have originated, who shall enter the objections at large on
their journal, and proceed to reconsider it. If after such reconsid-
eration two-thirds of that House shall agree to pass the bill, it shall
be sent, together with the objections, to the other House, by which
it shall likewise be reconsidered, and if approved by two-thirds of
that House, it shall become a law. But in all such cases the votes
of both Houses shall be determined by yeas and nays, and the names
of the persons voting for and against the bill shall be entered on
the Journal of each House respectively. If any bill shall not be re-
turned by the President within ten days (Sundays excepted) after
it shall have been presented to him, the same shall be a law, in like
manner as if he had signed it, unless the Congress by their adjourn-
ment prevent its return, in which case it shall not be a law.
Every order, resolution, or vote to which the concurrence of the
Senate and House of Representatives may be necessary (except on
a question of adjournment) shall be presented to the President of
the United States ; and before the same shall take effect, shall be ap-
proved by him, or being disapproved by him, shall be repassed by
two-thirds of the Senate and House of Representatives, according to
the rules and limitations prescribed in the case of a bill.
Section 8. The Congress shall have power to lay and collect
taxes, duties, imposts and excises, to pay the debts and provide for
the common defense and general welfare of the United States; but
all duties, imposts and excises shall be uniform throughout the United
States ;
CONSTITUTION OF THE UNITED STATES 17
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the sev-
eral States, and with the Indian tribes;
To establish an uniform rule of naturalization, and uniform laws
on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin,
and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and
current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by secur-
ing for limited times to authors and inventors the exclusive right to
their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the
high seas, and offences against the law of nations;
To declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to
that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation 'of the land and
naval forces;
To provide for calling forth the militia to execute the laws of the
Union, suppress insurrections and repel invasions;
To provide for organizing, arming, and diciplining, the militia,
and for governing such part of them as may be employed in the ser-
vice of the United States, reserving to the States respectively, the
appointment of the officers, and the authority of training the militia
according to the dicipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over
such District (not exceeding ten miles square) as may, by cession of
particular States, and the acceptance of Congress, become the seat
of the Government of the United States, and to exercise like author-
ity over all places purchased by the consent of the Legislature of
the State in which the same shall be, for the erection of forts, maga-
zines, arsenals, dock-yards, and other needful buildings; — And
To make all laws which shall be necessary and proper for carry-
ing into execution the foregoing powers, and all other powers vested
by this Constitution in the Government of the United States, or in
any department or officer thereof.
Section 9. The migration or importation of such persons as any
of the States now existing shall think proper to admit, shall not be
prohibited by the Congress prior to the year one thousand eight hun-
dred and eight, but a tax or duty may be imposed on such importa-
tion, not exceeding ten dollars for each person.
The privilege of the writ of habeas corpus shall not be suspended,
unless when in cases of rebellion or invasion the public safety may
require it.
No bill of attainder or ex post facto law shall be passed.
No capitation, or other direct tax, shall be laid, unless in propor-
tion to the census enumeration herein before directed to be taken.
18 CONSTITUTION OF THE UNITED STATES
No tax or duty shall be laid on articles exported from any State.
No preference shall be given by any regulation of commerce or
revenue to the ports of one State over those of another; nor shall
vessels bound to, or from, one State, be obliged to enter, clear, or pay
duties in another.
No money shall be drawn from the Treasury, but in consequence
of appropriations made by law; and a regular statement and account
of the receipts and expenditures of all public money shall be published
from time to time.
No title of nobility shall be granted by the United States ; and no
person holding any office of profit or trust under them, shall, without
the consent of the Congress, accept of any present, emolument, office,
or title, of any kind whatever, from any king, prince, or foreign State.
Section 10. No State shall enter into any treaty, alliance, or
confederation; grant letters of marque and reprisal; coin money;
emit bills of credit ; make any thing but gold and silver coin a tender
in payment of debts ; pass any bill of attainder, ex post facto law, or
law inpairing the obligation of contracts, or grant any title of no-
bility.
No State shall, without the consent of the Congress, lay any im-
posts or duties on imports or exports, except what may be absolutely
necessary for executing its inspection laws ; and the net produce of all
duties and imposts, laid by any State on imports or exports, shall be
for the use of the Treasury of the United States ; and all such laws
shall be subject to the revision and control of the Congress.
No State shall, without the consent of Congress, lay any duty of
tonnage, keep troops, or ships of war, in time of peace, enter into any
agreement or compact with another State, or with a foreign power,
or engage in war, unless actually invaded, or in such imminent danger
as will not admit of delay.
ARTICLE II.
Section 1. The executive power shall be vested in a President
of the United States of America. He shall hold his office during the
term of four years, and, together with the Vice President, chosen for
the same term, be elected as follows:
Each State shall appoint, in such manner as the Legislature
thereof may direct, a number of electors, equal to the whole number
of Senators and Representatives to which the State may be entitled
in the Congress ; but no Senator or Representative, or person holding
an office of profit or trust under the United States, shall be appoint-
ed an elector:
{Here followed provisions as to the mode of casting the electoral
vote, ivhich are superseded by the Twelfth Amendment.]
The Congress may determine the time of choosing the electors, and
the day on which they shall give their votes ; which day shall be the
same throughout the United States.
No person except a natural born citizen, or a citizen of the
United States, at the time of the adoption of this Constitution, shall
be eligible to the office of President ; neither shall any person be eligi-
ble to that office who shall not have attained to the age of thirty-five.
CONSTITUTION OF THE UNITED STATES 19
years, and been fourteen years a resident within the United States.
In case of the removal of the President from office, or of his
death, resignation, or inability to discharge the powers and duties
of the said office, the same shall devolve on the Vice-President, and
the Congress may by law provide for the case of removal, death,
resignation, or inability, both of the President and Vice-President,
declaring what officer shall then act as President, and such officer
shall act acordingly, until the disability be removed, or a President
shall be elected.
The President shall, at stated times, receive for his services, a
compensation, which shall neither be increased nor diminished during
the period for which he shall have been elected, and he shall not
receive within that period any other emolument from the United
States, or any of them.
Before he enter on the execution of his office, he shall take the
following Oath or Affirmation: — "I do solomnly swear [or affirm]
that I will faithfully execute the office of President of the United
States, and will to the best of my ability, preserve, protect, and de-
fend the Constitution of the United States."
Section 2. The President shall be Commander in Chief of the
army and navy of the United States, and of the militia of the several
States, when called into the actual service of the United States; he
may require the opinion, in writing, of the principal officer in each
of the executive departments, upon any subject relating to the du-
ties of their respective offices, and he shall have power to grant re-
prieves and pardons for offenses against the United States, except
in cases of impeachment.
He shall have power, by and with the advice and consent of the
Senate, to make treaties, provided two-thirds of the Senators present
concur; and he shall nominate, and by and with the advice and con-
sent of the Senate, shall appoint Ambassadors, other Public Min-
isters and Consuls, Judges of the Supreme Court, and all other officers
of the United States, whose appointments are not herein otherwise
provided for, and which shall be established by law ; but the Congress
may by law vest the appointment of such inferior officers, as they
think proper, in the President alone, in the courts of law, or in the
heads of departments.
The President shall have power to fill up all vacancies that may
happen during the recess of the Senate, by granting commissions
which shall expire at the end of their next session.
Section 3. He shall from time to time give to the Congress in-
formation of the state of the Union, and recommend to their con-
sideration such measures as he shall judge necessary and expedient;
he may, on extraordinary occasions, convene both Houses, or either
of them, and in case of disagreement between them, with respect to
time of adjournment, -he may adjourn them to such time as he shall
think proper; he shall receive Ambassadors and other public Minis-
ters ; he shall take care that the laws be faithfully executed, and shall
commission all the officers of the United States.
Section 4. The President, Vice President and all civil officers of
the United States, shall be removed from office on impeachment for,
20 CONSTITUTION OF THE UNITED STATES
and conviction of, treason, bribery, or other high crimes and misde-
meanors.
ARTICLE III.
Section 1. The Judicial power of the United States shall be
vested in one Supreme Court, and in such inferior courts as the
Congress may from time to time ordain and establish. The judges,
both of the Supreme and inferior courts, shall hold their offices dur-
ing good behavior, and shall, at stated times, receive for their ser-
vices a compensation which shall not be diminished during their con-
tinuance in office.
Section 2. The judicial power shall extend to all cases in law and
equity arising under this Constitution, the laws of the United States,
and treaties made, or which shall be made, under their authority; to
all cases affecting Ambassadors, other public Ministers, and Con-
suls; to all cases of admiralty and maritime jurisdiction; to contro-
versies to which the United States shall be a party; to controver-
sies between two or more States; between a State and citizens of
another State; between citizens of different States; between citizens
of the same State claiming lands under grants of different States,
and between a State, or the citizens thereof, and foreign States, cit-
izens or subjects.
In all cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be a party, the Supreme
Court shall have original jurisdiction. In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction, both
as to law and fact, with such exceptions, and under such regulations as
the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be
by jury; and such trial shall be held in the State where the said
crimes shall have been committed; but when not committed within
any State, the trial shall be at such place or places as the Congress
may by law have directed.
Section 3. Treason against the United States shall consist only
in levying war against them, or in adhering to their enemies, giving
them aid and comfort. No person shall be convicted of treason un-
less on the testimony of two witnesses to the same overt act, or on
confession in open court.
The Congress shall have power to declare the punishment of
treason, but no attainder of treason shall work corruption of blood,
or forfeiture except during the life of the person attainted.
ARTICLE IV.
Section 1. Full faith and credit shall be given in each State to
the public acts, records, and judicial proceedings of every other
State. And the Congress may by general laws prescribe the manner
in which such acts, records and proceedings shall be proved, and
the effect thereof.
Section 2. The citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States.
CONSTITUTION OF THE UNITED STATES 21
A person charged in any State with treason, felony, or other
crime, who shall flee from justice, and be found in another State, shall
on demand of the executive authority of the State from which he
fled, be delivered up, to be removed to the State having jurisdiction
of the crime.
No person held to service or labor in one State, under the laws
thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but
shall be delivered up on claim of the party to whom such service
or labor may be due.
Section 3. New States may be admitted by the Congress into this
Union; but no new State shall be formed or erected within the juris-
diction of any other State; nor any State be formed by the junction
of two or more States, or parts of States, without the consent of
the Legislatures of the States concerned as well as of the Congress.
The Congress shall have power to dispose of and make all needful
rules and regulations respecting the territory or other property be-
longing to the United States; and nothing in this Constitution shall
be so construed as to prejudice any claims of the United States, or
of any particular State.
Section 4. The United States shall guarantee to every State in
this Union a Republican form of Government, and shall protect each
of them against invasion, and on application of the Legislature, or
the Executive (when the Legislature cannot be convened) against do-
mestic violence.
ARTICLE V.
The Congress, whenever two-thirds of both Houses shall deem it
necessary, shall propose amendments to this Constitution, or on the
application of the Legislatures of two-thirds of the several States,
shall call a convention for proposing amendments, which, in either
case, shall be valid to all intents and purposes, as part of this Con-
stitution, when ratified by the Legislatures of three-fourths of the
several States, or by conventions in three-fourths thereof, as the
one or the other mode of ratification may be proposed by the Con-
gress : Provided, That no amendment which may be made prior to
the year one thousand eight hundred and eight shall in any manner
affect the first and fourth clauses in the ninth section of the first
Article; and that no State, without its consent, shall be deprived of
its equal suffrage in the Senate.
ARTICLE VI.
All debts contracted and engagements entered into, before the
adoption of this Constitution, shall be as valid against the United
States under this Constitution, as under the Confederation.
This Constitution, and the laws of the United States which shall
be made in pursuance thereof; and all treaties made, or which shall
be made, under the authority of the United States, shall be the su-
preme law of the land and the judges in every state shall be bound
thereby, anything in the Constitution or laws of any State to the
contrary notwithstanding.
22 CONSTITUTION OF THE UNITED STATES
The Senators and Representatives before mentioned, and the mem-
bers of the several State Legislatures, and all executive and judi-
cial officers, both of the United States and of the several States, shall
be bound by oath or affirmation, to support this Constitution; but
no religious test shall ever be required as a qualification to any office
or public trust under the United States.
ARTICLE VII.
The ratification of the conventions of nine States shall be sufficient
for the establishment of this Constitution between the States so rati-
fying the same.
Done in convention by the unanimous consent of the States present
the seventeenth day of September in the year of our Lord one
thousand seven hundred and eighty-seven and of the Independ-
ence of the United States of America the twelfth.
In witness whereof we have hereunto subscribed our names:
Geo. WASHINGTON,
President and Deputy from Virginia.
New Hampshire — John Langdon, Nicholas Gilman.
Massachusetts — Nathan Gorman, Rufus King.
Connecticut — Wm. Sam'l. Johnson, Roger Sherman.
New York — Alexander Hamilton.
New Jersey — Wil. Livingston, David Brearley, Wm. Patterson,
Jona Dayton.
Pennsylvania — B. Franklin, Thomas Mifflin, Robt. Morris,
Geo. Clymer, Tho. Fitzsimmons, Jared Ingersoll, James Wilson,
Gouv. Morris.
Delaware— Geo. Read, Richard Bassett, John Dickenson,
Gunning Bedford, Jr., Jaco. Broom.
Maryland — James McHenry, Danl. Carroll, Dan. of St. Tho.
Jenifer.
Virginia — John Blair, James Madison, Jr.
North Carolina— Wm. Blount, Hu. Williamson, Richd. Dobbs
Spaight.
South Carolina — J. Rutledge, Charles Pinckney, Charles
COTESWORTH PlNCKNEY, PIERCE BUTLER.
Georgia — William Few, Abr. Baldwin.
Attest : WILLIAM JACKSON, Secretary.
articles
In Addition to, and Amendatory of, the Constitution of the
United States of America.
Proposed by Congress, and ratified by the Legislatures of the several
States, pursuant to the fifth Article of the original Constitution.
ARTICLE I.
Congress shall make no law respecting an establishment of re-
ligion, or prohibiting the free exercise thereof; or abridging the free-
CONSTITUTION OF THE UNITED STATES 23
dom of speech, or of the press ; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
ARTICLE II.
A well regulated militia, being necessary to the security of a
free State, the right of the people to keep and bear arms, shall not
be infringed.
ARTICLE III. .
No soldier shall, in time of peace, be quartered in any house, with-
out the consent of the owner, nor in time of war, but in a manner
to be prescribed by law.
ARTICLE IV.
The right of the people to be secure in their persons, houses, pa-
pers, and effects, against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue but upon probable cause,
supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
ARTICLE V.
No person shall be held to answer for a capital, or otherwise in-
famous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger; nor
shall any person be subject for the same offense to be twice put in
jeopardy of life or limb ; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property
be taken for public use, without just compensation.
ARTICLE VI.
In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the State and dis-
trict wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the wit-
nesses against him; to have compulsory process for obtaining wit-
nesses in his favor, and to have the assistance of counsel for his de-
fence.
ARTICLE VII.
In suits at common law, where the value in controversy shall ex-
ceed twenty dollars, the right of trial by jury shall be preserved, and
no fact tried by a jury shall be otherwise re-examined in any Court
of the United States, than according to the rules of the common law.
24 CONSTITUTION OF THE UNITED STATES
ARTICLE VIII.
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.
ARTICLE IX.
The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.
' ARTICLE X.
The powers not delegated to the United States by the Constitu-
tion, nor prohibited by it to the States, are reserved to the States re-
spectively, or to the people.
ARTICLE XL
The judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by citizens of another State, or
by citizens of subjects of any foreign State.
ARTICLE XII.
The Electors shall meet in their respective States, and vote by
ballot for President and Vice President, one of whom, at least
shall not be an inhabitant of the same State with themselves; they
shall name in their ballots the person voted for as President, and
in distinct ballots the person voted for as Vice President, and they
shall make a distinct list of all persons voted for as President, and
of all persons voted for as Vice President, and of the number of
votes for each, which list they shall sign and certify, and transmit
sealed to the seat of the Government of the United States, direct-
ed to the President of the Senate. The President of the Senate shall,
in the presence of the Senate and House of Representatives, open
all the certificates and the votes shall then be counted. The person
having the greatest number of votes for President, shall be the
President, if such number be a majority of the whole number of
Electors appointed ; and if no person have such majority, then from
the persons having the highest numbers not exceeding three on
the list of those voted for as President, the House of Representa-
tives shall choose immediately, by ballot, the President. But in
choosing the President, the votes shall be taken by States, the rep-
resentation from each State having one vote; a quorum for this
purpose shall consist of a member or members from two-thirds of
the States, and a majority of all the States shall be necessary to a
choice. And if the House of Representatives shall not choose a Pres-
ident whenever the right of choice shall devolve upon them, before
the fourth day of March next following, then the Vice President shall
act as President, as in the case of the death or other Constitutional
disability of the President. The person having the greatest num-
ber of votes as Vice President shall be the Vice President, if such
CONSTITUTION OF THE UNITED STATES 25
number be a majority of the whole number of electors appointed, and
if no person have a majority, then from the two highest numbers on
the list, the Senate shall chose the Vice President; a quorum for the
purpose shall consist of two-thirds of the whole number of Senators,
and a majority of the whole number shall be necessary to a choice,
But no person Constitutionally ineligible to the office of President
shall be eligible to that of Vice President of the United States.
ARTICLE XIII.
Section 1. Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place subject
to their jurisdiction.
Section 2. Congress shall have power to enforce this Article
by appropriate legislation.
ARTICLE XIV.
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or immu-
nities of citiens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection
of the laws.
Section 2. Representatives shall be apportioned among the sev-
eral States according to their respective numbers, counting the whole
number of persons in each State, excluding Indians not taxed. But
when the right to vote at any election for the choice of electors for
President and Vice President of the United States, Representatives
in Congress, the executive and judicial officers of a State, or the
members of the Legislature thereof, is denied to any of the male in-
habitants of such State, being twenty-one years of age, and citizens
of the United States, or in any way abridged, except for participation
in rebellion, or other crime, the basis of representation therein
shall be reduced in the proportion which the number of such male
citizens shall bear to the whole number of male citizens twenty-one
years of age in such State.
Section 3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice President, or hold any
office, civil or military, under the United States, or under any
State, who, having previously taken an oath, as a member of Con-
gress, or as an officer of the United States, or as a member of any
State Legislature, or as executive or judicial officer of any State, to
support the Constitution of the United States, shall have engaged
in insurrection or rebellion against the same, or given aid or com-
fort to the enemies thereof. But Congress may by a vote of two-
thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States,
authorized by law including debts incurred for payment of pensions
26 CONSTITUTION OF THE UNITED STATES
and bounties for services in suppressing insurrection or rebellion,
shall not be questioned. But neither the United States nor any State
shall assume or pay any debt or obligation incurred in aid of insur-
rection or rebellion against the United States, or any claim for the
loss or emancipation of any slave ; but all such debts, obligations and
claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appro-
priate legislation, the provisions of this article.
ARTICLE XV.
Section 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any State
on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article
by appropriate legislation.
ORGANIC ACT OF THE TERRITORY OF IDAHO
AN ACT
To Provide a Temporary Government for the Territory of Idaho.
Section
1. Territory of Idaho; boundaries.
2. Executive power, Governor, etc.
3. Secretary, when to act as Gov-
ernor.
4. Legislative power, what consti-
tutes, length of session, etc.
5. Voters at first election.
6. Veto power of governor, taxes,
etc.
7. District, county, or township of-
ficers.
8. Members of assembly, who may
be.
9. Judicial power, with whom
vested.
Section
10. Territorial officers, appointment
of, salaries, pay of.
11. Members of assembly, session of,
etc.
12. Seat of government, delegate,
Constitutional laws, etc.
13. Delegate in Congress; how elect-
ed, and qualifications of electors,
etc.
14. Public lands, school sections.
15. Judicial districts and judges.
16. Officers to give bonds.
17. Treaties with Indians, agencies,
etc.
Be It Enacted by the Senate and House of Representatives of the
United States in Congress assembled, That all that part of the ter-
ritory of the United States included within the following limits, to-
wit: Beginning at a point in the middle channel of the Snake River
where the northern boundary of Oregon intersects the same; then
follow down the said channel of Snake River to a point opposite the
mouth of Kooskooskia, or Clearwater River; thence due north to
the forty-ninth parallel of latitude; thence east along said parallel
to the twenty-seventh degree of longitude west of Washington;
thence south along said degree of longitude to the northern bound-
ary of Colorado Territory; thence west along said boundary to the
thirty-third degree of longitude west of Washington; thence north
along said degree to the forty-second parallel of latitude; thence
west along said parallel to the eastern boundary of the State of
Oregon; thence north along said boundary to the place of the be-
ginning. And the same is hereby created into a temporary govern-
ment, by the name of the Territory of Idaho: Provided, That
nothing in this act contained shall be construed to inhibit the govern-
ment of the United States from dividing said Terrritoy or chang-
ing its boundaries in such manner and at such time as Congress
shall deem convenient and proper, or from attaching any portion
of said Territory to any other State or Territory of the United
States: Provided, further, That nothing in this act contained shall
be construed to impair the rights of person or property now pertain-
ing to the Indians in said Territory, so long as such right shall re-
main inextinguished by treaty between the United States and such
28 ORGANIC ACT OF THE TERRITORY OF IDAHO
Indians, or include any territory, which, by treaty with the Indian
tribes, is not, without the consent of said tribe, to be included with-
in the territorial limits or jurisdiction of any State or Territory; but
all such territory shall be excepted out of the boundaries and consti-
tute no part of the Territory of Idaho, until said tribe shall signify
their assent to the President of the United States to be included within
said Territory, or to affect the authority of the Government of the
United States, to make any regulations respecting such Indians, their
lands, property, or other rights, by treaty, law, or otherwise, which it
would have been competent for the Government to make if this Act
had never been passed.
Section 2. And be it further enacted, That the executive power
and authority in and over said Territory of Idaho shall be vested
in a Governor, who shall hold his office for four years, and until
his successor shall be appointed and qualified, unless sooner removed
by the President of the United States. The Governor shall reside
within said Territory, and shall be commander-in-chief of the mi-
litia, and superintendent of Indian affairs thereof. He may grant
pardons and respites for offenses against the laws of said Territory,
and reprieve for offenses against the laws of the United States until
the decision of the President of the United States can be made
known thereof; he shall commission all officers who shall be appoint-
ed to office under the laws of said Territory, and shall take care that
the laws be faithfully executed.
Section 3. And be it further enacted, That there shall be a Sec-
retary of said Territory, who shall reside therein, and shall hold his
office for four years, unless sooner removed by the President of the
United States; he shall record and preserve all laws and proceedings
of the Legislative Assembly hereinafter constituted, and all the acts
and proceedings of the Governor in his executive department; he
shall transmit one copy of the laws and journals of the Legislative
Assembly within thirty days after the end of each session, and one
copy of the executive proceedings and official correspondence semi-
annually, on the first days of January and July in each year, to the
President of the United States, and two copies of the laws to the
President of the Senate and to the Speaker of the House of Repre-
sentatives for the use of Congress ; and in case of the death, removal,
resignation, or absence of the Governor from the Territory, the Sec-
retary shall be, and he is hereby, authorized and required to execute
and perform all the powers and duties of the Governor during such
vacancy or absence, or until another Governor shall be duly appointed
and qualified to fill such vacancy.
Section 4. And be it further enacted, That the legislative power
and authority of said Territory shall be vested in the Governor and
Legislative Assembly. The Legislative Assembly shall consist of a
Council and House of Representatives. The Council shall consist
of seven members having the qualifications of voters as hereinafter
prescribed, whose term of service shall continue two years. The
House of Representatives shall at its first session, consist of thirteen
members possessing the same qualifications as prescribed for the
members of the Council, and whose term of service shall continue one
ORGANIC ACT OF THE TERRITORY OF IDAHO 29
year. The number of Representatives may be increased by the Legis-
lative Assembly, from time to time, to twenty-six, in proportion to
the increase of qualified voters; and the Council, in like manner, to
thirteen. An apportionment shall be made as nearly equal as practi-
cable among the several counties or districts for the election of
the Council and Representatives, giving to each section of the Ter-
ritory representation in the ratio of its qualified voters as nearly as
may be. And the members of the Council and of the House of Rep-
resentatives shall reside in, and be inhabitants of, the district or
county, or counties, for which they may be elected respectively. Pre-
vious to the first election, the Governor shall cause a census or enu-
meration of the inhabitants and qualified voters of the several coun-
ties and districts of the Territory to be taken by such persons and
in such mode as the Governor shall designate and appoint, and the
persons so appointed shall receive a reasonable compensation therefor.
And the first election shall be held at such time and places, and may
be conducted in such manner both as to the persons who shall super-
intend such election and the returns thereof, as the Governor shall
appoint and direct; and he shall at the same time declare the num-
ber of members of the Council and House of Representatives to which
each of the counties or districts shall be entitled under this Act. The
persons having the highest number of legal votes in each of said
Council districts for members of the Council shall be declared by the
Governor to be duly elected to the Council and the persons having
the highest number of legal votes for the House of Representatives
shall be declared by the Governor to be duly elected members of said
House: Provided, That in case two or more persons voted for shall
have an equal number of votes, and in case a vacancy shall otherwise
occur in either branch of the Legislative Assembly, the Governor
shall order a new election ; and the persons thus elected to the Legis-
lative assembly shall meet at such place and on such day as the
Governor shall appoint; but thereafter the time, place, and manner
of holding and conducting all elections by the people and the appor-
tioning the representation in the several counties or districts to the
Council and House of Representatives, according to the number of
qualified voters, shall be prescribed by law, as well as the day of the
commencement of the regular sessions of the Legislative Assembly:
Provided, That no session in any one year shall exceed the term of
forty days, except the first session, which may continue sixty days.
Section 5. And be it further enacted, That every free white
male inhabitant above the age of twenty-one years, who shall have
been an actual resident of said Territory at the time of the passage
of this Act, shall be entitled to vote at the first election, and shall
be eligible to any office within the said Territory; but the qualifica-
tions of voters, and of holding office, at all subsequent elections, shall
be such as shall be prescribed by the Legislative Assembly.
Section 6. And be it further enacted, That the legislative
power of the Territory shall extend to all rightful subjects of legis-
lation consistent with the Constitution of the United States and the
provisions of this Act; but no law shall be passed interfering with
the primary disposal of the soil ; no tax shall be imposed upon the
30 ORGANIC ACT OF THE TERRITORY OF IDAHO
property of the United States, nor shall the lands or other property
of non-residents be taxed higher than the lands or other property of
residents. Every bill which shall have passed the Council and
House of Representatives of the said Territory shall, before it be-
comes a law, be presented to the Governor of the Territory; if he
approve, he shall sign it; but if not he shall return it, with his ob-
jections, to the house in which it originated, who shall enter the
objections at large upon their journal and proceed to reconsider
it. If, after such reconsideration, two-thirds of that house shall
agree to pass the bill, it shall be sent together with the objections,
to the other house, by which it shall likewise be reconsidereu ; and
if approved by two-thirds of that house, it shall become a iaw. But
in all sucn cases the votes of botn houses shall be determined by
yeas and nays, to be entered on the journal of each house respect-
ively. If any bill shall not be returned by the Governor within
three days (Sundays excepted) after it shall have been presented
to him, the same shall be a law in like manner as if he had signed
it, unless the assembly, by adjournment, prevent its return ; in which
case it shall not be a law: Provided, That whereas slavery is pro-
hibited in said Territory by an Act of Congress of June nineteenth,
eighteen hundred and sixty-two, nothing herein contained shall be
construed to authorize or permit its existence therein.
Section 7. And be it further enacted, That all township, dis-
trict, and county officers, not herein otherwise provided for, shall be
appointed or elected, as the case may be, in such manner as shall be
provided by the Governor and Legislative Assembly of the Territory
of Idaho. The Governor shall nominate and, by and with the ad-
vice and consent of the Legislative Council, appoint all officers not
herein otherwise provided for, and in the first instance the Governor
alone may appoint all said officers, who shall hold their offices until
the end of the first session of the Legislative Assembly, and shall
lay off the necessary districts for members of the Council and House
of Representatives, and all other officers.
Section 8. And be it further enacted, That no member of
the Legislative Assembly shall hold or be appointed to any office
which shall have been created, or the salary or emoluments of
which shall have been created, or the salary or emoluments of which
shall have been increased, while he was a member, during the term
for which he was elected, and for one year after the expiration of
such term; but this restriction shall not be applicable to members of
the first Legislative Assembly; and no person holding a commis-
sion or appointment under the United States, except postmasters,
shall be a member of the Legislative Assembly, or shall hold any
office under the government of said Territory.
Section 9. And be it further enacted, That the judicial power
of said Territory shall be vested in a supreme court, district courts,
probate courts, and justices of the peace. The supreme court shall
consist of a chief justice and two associate justices, any two of whom
shall constitute a quorum, and who shall hold a term at the seat of
government of said Territory annually and they shall hold their offices
during the period of four years, and until their successors shall be
appointed and qualified. The said Territory shall be divided into
three judicial districts, and a district court shall be held in each of
ORGANIC ACT OF THE TERRITORY OF IDAHO 6l
said districts by one of the justices of the supreme court at such
times and places as may be prescribed by law; and the said judges
shall, after their appointments, respectively, reside in the districts
which shall be assigned them. The jurisdiction of the several
courts herein provided for, both appellate and original, and that of
the probate courts and justices of the peace, shall be limited by law :
Provided, That justices of the peace shall have no jurisdiction of
any matter in controversy when the title or boundaries of any land
may be in dispute, or where the debt or sum claimed shall exceed
one hundred dollars; and the said supreme and district courts, re-
spectively, shall possess chancery as well as common-law jurisdiction.
Each district court, or the judge thereof, shall appoint its clerk, who
shall also be the register in chancery, and shall keep his office at
the place where the court may be held. Writs of error, bills of ex-
ceptions, and appeals shall be allowed in all cases from the final
decisions of said district courts to the supreme court, under such
regulations as may be prescribed by law. The supreme court, or
justices thereof, shall appoint its own clerk, and every clerk shall
hold his office at the pleasure of the court for which he shall have
been appointed. Writs of error and appeals from the final decis-
ions of said supreme court shall be allowed and may be taken
to the Supreme Court of the United States, in the same manner and
under the same regulations as from the Circuit Court of the United
States, where the value of the property of the amount in contro-
versy, to be ascertained by the oath or affirmation of either party
or other competent witnesses, shall exceed one thousand dollars, ex-
cept that a writ of error or appeal shall be allowed to the Supreme
Court of the United States from the decision of the said supreme
court created by this Act, or of any judge thereof, upon any writs
of habeas corpus involving the question of personal freedom. And
each of the said district courts shall have and exercise the same
jurisdiction, in all cases arising under the Constitution and laws of
the United States, as is vested in the Circuit and District Courts of
the United States and the first six days of every term of said courts,
or so much thereof as shall be necessary, shall be appropriated to
the trial of causes arising under the said Constitution and laws;
and writs of error and appeal in all cases shall be made to the su-
preme court of said Territory, the same as in other cases. The said
clerks shall receive, in all such cases, the same fees which the clerks
of the district courts of Washington Territory now receive for simi-
lar services.
Section 10. And be- it further enacted, That there shall be
appointed an attorney for said Territory, who shall continue in of-
fice four years, and until his successor shall be appointed and qual-
ified, unless sooner removed by the President of the United States,
and who shall receive the same fees and salary as the attorney of
the United States for the present Territory of Washington. There
shall also be a marshal for the Territory appointed, who shall hold
his office for four years, and until his successor shall be appointed
and qualified, unless sooner removed by the President of the United
States, and who shall execute all processes issuing from the said
courts, when exercising their jurisdiction as Circuit and District
32 ORGANIC ACT OF THE TERRITORY OF IDAHO
Courts of the United States; he shall perform the duties, be subject
to the same regulations and penalties, and be entitled to the same
fees as the marshal of the District Court of the United States for the
present Territory of Washington and shall, in addition be paid two
hundred dollars annually as a compensation for extra services.
Section 11. And be it further enacted, That the Governor,
Secretary, Chief Justice, and Associate Justices, Attorney, and Mar-
shal, shall be appointed by the President of the United States, by
and with the advice and consent of the Senate. The Governor and
Secretary to be appointed as aforesaid, shall, before they act as such
respectively, take an oath or affirmation, before the district judge or
some justice of the peace in the limits of said Territory, duly author-
ized to administer oaths or affirmations by the laws now in force
therein, or before the Chief Justice or some Associate Justice of the
Supreme Court of the United States, to support the Constitution of
the United States, and faithfully to discharge duties of their re-
spective offices, which said oaths, when so taken, shall be certified by
the person by whom the same shall have been taken; and such cer-
tificate shall be received and recorded by the said Secretary among
the executive proceedings; and the Chief Justice and the Associate
Justices, and all civil officers in said Territory, before they act as
such shall take a like oath or affirmation before the said Governor
or Secretary, or some judge or justice of the peace of the Territory,
who may be duly commissioned and qualified, which said oath or
affirmation shall be certified and transmitted by the person taking
the same to the Secretary to be by him recorded as aforesaid; and
afterwards the like oath or affirmation shall be taken, certified, and
recorded in such manner and form as may be prescribed by law.
The Governor shall receive an annual salary of two thousand five
hundred dollars, the Chief Justice and Associate Justices shall re-
ceive an annual salary of two thousand five hundred dollars, the
Secretary shall receive an annual salary of two thousand dollars ; the
said salaries shall be paid quarter-yearly from the dates of the re-
spective appointments, at the Treasury of the United States; but no
payment shall be made until said officers shall have entered upon
the duties of their respective appointments. The members of the
Legislative Assembly shall be entitled to receive four dollars each
per day during their attendance at the sessions thereof and four
dollars each for every twenty miles traveled in going to and return-
ing from said sessions, estimated according to the nearest usually
traveled route, and an additional allowance of four dollars per
day shall be paid to the presiding officer of each house for each
day he shall so preside. And a chief clerk, one assistant clerk, one
engrossing and one enrolling clerk, a sergeant-at-arms and door-
keeper may be chosen for each house; and the chief clerk shall re-
ceive four dollars per day, and the said other officers three dollars
per day, during the session of the Legislative Assembly ; but no other
officers shall be paid by the United States: Provided, That there
shall be but one session of the Legislative Assembly annually, unless
on an extraordinary occasion, the Governor shall think proper to
call the Legislative Assembly together. There shall be appropriated
annually the usual sum to be expended by the Governor to defray
ORGANIC ACT OF THE TERRITORY OF IDAHO 33
the contingent expenses of the Territory, including the salary of
the clerk of the executive department ; and there shall also be appro-
priated annually a sufficient sum, to be expended by the Secretary of
the Territory, and upon an estimate to be made by the Secretary
of the Treasury of the United States to defray the expenses of the
Legislative Assembly, the printing of the laws and other incidental
expenses; and the Governor and Secretary of the Territory shall, in
the disbursement of all moneys entrusted to them, be governed
solely by the instruction of the Secretary of the Treasury of the
United States, and shall, semi-annually, account to the said Secre-
tary for the manner in which the aforesaid moneys shall have been
expended, and no expenditure shall be made by the Legislative As-
sembly for objects not specially authorized by the Acts of Congress
making the appropriations, nor beyond the sums thus appropriated
for such objects.
Section 12. And be it further enacted, That the Legislative
Assembly of the Territory of Idaho shall hold its first session at such
time and place in said Territory as the Governor thereof shall ap-
point and direct; and at said first session, or as soon thereafter as
they shall deem expedient, the Governor and Legislative Assembly
shall proceed to locate and establish the seat of government for said
Territory at such place as they may deem eligible : Provided, That
the seat of government fixed by the Governor and Legislative As-
sembly shall not be at any time changed, except by an Act of the
said Assembly duly passed, and which shall be approved, after due
notice, at the first general election thereafter, by a majority of the
legal votes cast on that question.
Section 13. And be it further enacted, That a delegate to the
House of Representatives of the United States, to serve for the term
of two years, who shall be a citizen of the United States, may be
elected by the voters qualified to elect members of the Legislative
Assembly, who shall be entitled to the same rights and privileges
as are exercised and enjoyed by the delegates from the several other
Territories of the United States to the said House of Representatives,
but the delegate first elected shall hold his seat only during the term
of the Congress to which he shall be elected. The first election shall be
held at such time and places, and be conducted in such manner as
the Governor shall appoint and direct; and at all subsequent elec-
tions the times, places, and manner of holding elections shall be
prescribed by law. The person having the greatest number of legal
votes shall be declared by the Governor to be duly elected, and a
certificate thereof shall be given accordingly. That the Constitution
and all the laws of the United States which are not locally inappli-
cable shall have the same force and effect within the said Territory
of Idaho as elsewhere within the United States.
Section 14. And be it further enacted, That when the lands
in the Territory shall be surveyed, under the direction of the Gov-
ernment of the United States, preparatory to bringing the same into
market, sections numbered sixteen and thirty-six in each township
in said territory shall be, and the same are hereby, reserved for the
purpose of being applied to schools in said Territory, and in the
States and Territories hereafter to be erected out of the same.
34 ORGANIC ACT OF THE TERRITORY OF IDAHO
Section 15. And be it further enacted, That until otherwise
provided by law, the Governor of said Territory may define the judi-
cial districts of said Territory, and assign the judges who may be
appointed for said territory to the several districts, and also ap-
point the times and places for holding courts in the several counties
or subdivisions in each of said judicial districts, by proclamation to
be issued by him ; but the Legislative Assembly, at their first or any
subsequent session, may organize, alter, or modify such judicial
districts, and assign the judges, and alter the times and places of
holding the courts, as to them shall seem proper and convenient.
Section 16. And be it further enacted, That all officers to be
appointed by the President of the United States, by and with the
advice and consent of the Senate, for the Territory of Idaho, who, by
virtue of the provisions of any law now existing, or which may
be enacted by Congress, are required to give security for moneys
that may be entrusted with them for disbursement, shall give
such security at such time and in such manner as the Secretary of
the Treasury may prescribe.
Section 17. And be it further enacted. That all treaties, laws,
and other engagements made by the government of the United
States with the Indian tribes inhabiting the Territory embraced
within the provisions of this Act, shall be faithfully and rigidly
observed, anything contained in this Act to the contrary notwith-
standing; and that the existing agencies and superintendencies of
said Indians be continued with the same powers and duties which
are now prescribed by law, except that the President of the United
States may, at his discretion, change the location of the offices of
said agencies or superintendencies.
Approved, March 3rd, 1863.
REVISED STATUTES OF THE UNITED STATES
TITLE XXIII.— THE TERRITORIES.
CHAPTER ONE.
Provisions Common to all the Territories.
Section
1839.
1840.
1841
1842
1843
1844
1845
1846
1847
1848
1849
1850
1851
1852
1854.
1855.
1856.
1857
1858
1859
1860
1861
1862
1863
1864
1865
1866
1867
1868.
Right of Indians in person and
property not impaired by this
Title, etc.; boundaries, etc.
Authority to regulate Indians;
jurisdiction of Indians.
Executive power.
Veto power. . .
Secretary.
Secretary's duties.
Salaries of Governors and Sec-
retaries.
Legislative power.
Census and elections.
Time and place of holding
elections.
Apportionment.
Laws to be submitted to Con-
gress.
Extent of Legislative powers.
Limit of time of sessions.
Compensation of members.
Number of members, etc.
Members of Legislature pro-
hibited from holding certain
offices.
Prohibition of extra compen-
sation to certain officers.
Election of justices of the
peace and militia officers.
Other officers.
Vacancies, how filled.
Qualifications of voting and
holding office at first election.
At future elections.
Subordinate officers of Legis-
lature.
Delegate to Congress.
Time, places, and manner of
electing Delegate.
Supreme Courts of Territories.
Judicial Districts and Courts.
Jurisdiction of Courts.
Jurisdiction of justices of the
peace.
Chancery and common law
jurisdiction.
Section
1869. Appellate jurisdiction of Su-
preme Court.
1870. Clerk of Supreme Court.
1871. Clerk of District Court.
1872. Register in chancery, residence
and office.
1873. Judicial district, how defined.
1874. Judges of Supreme Court to
hear certain causes.
1875. District attorneys.
1876. Marshals.
1877. Appointment of Governor, etc.
1878. Oath of office; how qualified.
1879. Salaries of Justices.
1880. Salary of Attorney.
1881. Salary of Marshal.
1882. When salaries to be paid.
1883. Fees of clerks, etc.
1884. Salary not to be paid when of-
ficer is absent.
1885. Seat of government in a new
Territory.
1886. Accounts of the Territories; no
payment unless approved by
Congress.
1887. Limitation on expenses of
printing.
1888. Limitation on expenses of Leg-
islature.
1889. Legislatures not to grant spe-
cial charters or pass special
laws.
1890. Limitation on rights of relig-
ious corporations to hold real
estate.
1891. Constitution and laws of Unit-
ed States made applicable to
all the Territories.
1893. Rules for the government of
penitentiaries.
1894. Payment of Marshal, etc., and
of expenses of subsistence,
etc., of offenders.
1895. Imprisonment in penitentia-
ries. Public schools.
36 PROVISIONS COMMON TO ALL THE TERRITORIES
Sec. 1839. Nothing in this Title shall be construed to impair the
rights of person or property pertaining to the Indians in any Terri-
tory, so long as such rights remain unextinguished by treaty between
the United States and such Indians, or to include any Territory
which, by treaty with any Indian tribe, is not, without the consent
of such tribe, embraced within the Territorial limits, or jurisdiction
of any State or Territory; but all such territory shall be excepted
out of the boundaries, and constitute no part of any Territory now or
hereafter organized until such tribe signifies its assent to the Presi-
dent to be embraced within a particular Territory.
Sec. 1840. Nor shall anything in this Title be construed to af-
fect the authority of the United States to make any regulation re-
specting the Indians of any Territory, their lands, property, or
rights, by treaty, law or otherwise, in the same manner as might be
made if no temporary government existed or is hereafter established,
in any such Territory.
Sec. 9. That immediately upon and after the date of the pas-
sage of this act, all Indians committing against the person or
property of another Indian, or other person, any of the follow-
ing crimes, namely: Murder, manslaughter, rape, assault with
intent to kill, arson, burglary and larceny, within any Territory
of the United States, and either within or without an Indian reser-
vation, shall be subject therefor to the laws of such Territory re-
lating to said crimes, and shall be tried therefor in the same
courts and in the same manner, and shall be subject to the same
penalties as are all other persons charged with the commission of
said crimes, respectively; and the said courts are hereby given
jurisdiction in all such cases; and all such Indians committing
any of the above crimes against the person or property of an-
other Indian or other person within the boundaries of any State
of the United States, and within the limits of any Indian reser-
vation, shall be subject to the same laws, tried in the same courts
and in the same manner, and subject to the same penalties as are
all other persons committing any of the above crimes within the
exclusive jurisdiction of the United States. (Act March 3, 1885.)
Sec. 1841. The executive power of each Territory shall be vested
in a Governor, who shall hold his office for four years, and until his
successor is appointed and qualified, unless sooner removed by the
President. He shall reside in the Territory for which he is appointed,
and shall be commander-in-chief of the militia thereof. He may grant
pardons and reprieves, and remit fines and forfeitures, for offenses
against the laws of the Territory for which he is appointed, and res-
pites for offenses against the laws of the United States, till the de-
cision of the President can be made known thereon. He shall commis-
sion all officers who are appointed under the laws of such Territory,
and shall take care that the laws thereof be faithfully executed.
Sec. 1842. Every bill which has passed the Legislative Assembly
of any Territory shall, before it becomes a law, be presented to the
Governor. If he approve, he shall sign it, but if not, he shall return
it, with his objections, to that house in which it originated, and that
house shall enter the objections at large on its journal, and proceed to
reconsider it If, after such reconsideration, two-thirds of that
PROVISIONS COMMON TO ALL THE TERRITORIES 37
house agree to pass the bill, it shall be sent, together with the objec-
tions, to the other house, by which it shall likewise be reconsidered;
and, if approved by two- thirds of that house, it shall become a law.
But in all such cases the votes of both houses shall be determined by
yeas and nays, and the names of the persons voting for or against the
bill shall be entered on the journal of such house. If any bill is not
returned by the Governor within three days, Sundays excluded, except
in Washington and Wyoming, where the term is five days, Sundays
excluded, after it has been presented to him, the same shall be a law,
in like manner as if he had signed it, unless the Legislative Assembly,
by adjournment sine die, prevent its return, in which case it shall not
be a law.
Sec. 1843. There shall be appointed a Secretary for each Terri-
tory, who shall reside within the Territory for which he is appointed,
and shall hold his office for four years, and until his successor is ap-
pointed and qualified, unless sooner removed by the President. In
case of death, removal, resignation or absence of the Governor
from the Territory, the Secretary shall execute all the powers and per-
form all the duties of Governor, during such vacancy, or absence, or
until another Governor is appointed and qualified.
Sec. 1844. The Secretary shall record and preserve all the laws
and proceedings of the Legislative Assembly, and all the acts and pro-
ceedings of the Governor in the executive department ; he shall trans-
mit one copy of the laws and journals of the Legislative Assembly,
within thirty days after the end of each session thereof, to the Pres-
ident, and two copies of the laws, within like time, to the President of
the Senate, and to the Speaker of the House of Representatives, for
the use of Congress. He shall transmit one copy of the executive
proceedings and official correspondence semi-annually, on the first
day of January and July in each year, to the President. He shall pre-
pare the acts passed by the Legislative Assembly for publication, and
furnish a copy thereof to the public printer of the Territory, within
ten days after the passage of each act.
And hereafter it shall be the duty of the Secretary of each Ter-
ritory to furnish estimates in detail for the lawful expenses there-
of, to be presented to the Secretary of the Treasury on or before
the first day of October of every year. [Act, June 20, 1874.]
Sec. 1845. From and after the first day of July, eighteen hundred
and seventy-three, the annual salaries of the Governors of the sev-
eral Territories shall be three thousand five hundred dollars, and the
salaries of the Secretaries shall be two thousand five hundred dollars
each.
Sec. 1846. The Legislative power in each Territory shall be vested
in the Governor and a Legislative Assembly. The Legislative Assem-
bly shall consist of a Council and House of Representatives. The mem-
bers of both branches of the Legislative Assembly shall have the qual-
ifications of voters as herein prescribed. They shall be chosen for the
term of two years, and the sessions of the respective Legislative As-
semblies shall be biennial. Each Legislative Assembly shall fix by law
the day of the commencement of its regular sessions. The members
of the Council and the House of Representatives shall reside in the
district or county for which they are respectively elected.
38 PROVISIONS COMMON TO ALL THE TERRITORIES
Sec. 1847. Previous to the first election for members of the Legis-
lative Assembly of a Territory in which Congress may hereafter pro-
vide a temporary government, the Governor shall cause a census of
the inhabitants and qualified voters of the several counties and dis-
tricts of the Territory to be taken by such persons and in such mode
as he may designate and appoint, and the persons so appointed shall
receive a reasonable compensation for their services. And the first
election shall be held at such time and places, and be conducted in
such manner, both as to the persons who superintended such election
and the returns thereof, as the Governor may direct ; and he shall, at
the same time, declare the number of members of the Council and the
House of Representatives to which each of the counties or districts is
entitled under the act providing such temporary government for the
particular territory. The persons having the highest number of le-
gal votes in each of the districts for members of the Council, shall be
declared by the Governor to be duly elected to the Council, and the
persons having the highest number of legal votes for the House of
Representatives shall be declared by the Governor to be duly elected
members of that House; but in case two or more persons voted for
have an equal number of votes, and in case a vacancy otherwise oc-
curs in either branch of the Legislative Assembly, the Governor shall
order a new election ; and the persons thus elected to the Legislative
Assembly shall meet at such place and on such day as the Governor
appoints.
Sec. 1848. After such first election, however, the time, place and
manner of holding elections by the people in any newly created Ter-
ritory, as well as of holding all such elections in Territories now or-
ganized, shall be prescribed by the laws of each Territory.
Sec. 1849. The apportionment of representation, which the Gover-
nor is authorized to make by section eighteen hundred and forty-seven,
in the case of a Territory hereafter erected by Congress, shall be as
nearly equal as practicable among the several districts and counties for
such first election of the Council and House of Representatives, giving
to each section of the Territory representation in the ratio of its pop-
ulation, except Indians not taxed; and thereafter in such new Terri-
tory, as well as in all Territories now organized, the Legislative As-
semblies, respectively, may re-adjust and apportion the representation
of the two houses, thereof, among the several counties and districts,
in such manner, from time to time, as they deem just and proper;
but the number of either house, as authorized by law, shall not be in-
creased.
Sec. 1850. All laws passed by the Legislative Assembly and Gov-
ernor of any Territory except in the Territories of Colorado, Dakota,
Idaho, Montana and Wyoming, shall be submitted to Congress, and,
if disapproved, shall be null and of no effect.
Sec. 1851. The legislative power of every Territory shall extend to
all rightful subjects of legislation, not inconsistent with the Constitu-
tion and laws of the United States. But no law shall be passed inter-
fering with the primary disposal of the soil ; no tax shall be imposed
upon the property of the United States ; nor shall the lands or other
property of non-residents be taxed higher than the lands or other
property of residents.
PROVISIONS COMMON TO ALL THE TERRITORIES 39
Sec. 1852. The sessions of the Legislative Assemblies of the sev-
eral Territories of the United States shall be limited to sixty days' du-
ration. [Act. Dec. 23, 1880.]
That from and after the adjournment of the next session of
the several Territorial Legislatures the Council of each of the
Territories of the United States shall not exceed twelve members,
and the House of Representatives of each shall not exceed twen-
ty-four members, and the members of each branch of the said
several Legislatures shall receive a compensation of four dollars
per day each during the sessions provided by law, and shall re-
ceive such mileage as the law provides.
And the President of the Council and the Speaker of the House
of Representatives shall each receive six dollars per day for the
same time.
And the several Legislatures at their next sessions are di-
rected to divide their respective Territories into as many Coun-
cil and Representative districts as they desire, which districts
shall be as nearly equal as practicable, taking into consideration
population, except "Indians not taxed" :
Provided, The number of Council districts shall not exceed
twelve, and the Representative districts shall not exceed twenty-
four in any one of said Territories, and all parts of sections
eighteen hundred and forty-seven; eighteen hundred and forty-
nine ; eighteen hundred and fifty-three, and nineteen hundred and
twenty-two of the Revised Statutes of the United States in con-
flict with the provisions herein are repealed. [Act June 19, 1878.]
Sec. 1854. No member of the Legislative Assembly of any Terri-
tory now organized shall hold or be appointed to any office which has
been created, or the salary or emoluments of which have been in-
creased, while he was a member, during the term for which he was
elected, and for one year after the expiration of such term ; but this
restriction shall not be applicable to members of the first Legisla-
tive Assembly in any Territory hereafter organized; and no person
holding a commission or appointment under the United States, except
postmasters, shall be a member of the Legislative Assembly, 'or
shall hold any office under the government of any Territory. The ex-
ception of postmasters shall not apply to the Territory of Washing-
ton.
Sec. 1855. No law of any Territorial Legislature shall be made or
enforced, by which the Governor or Secretary of a Territory, or the
members or officers of any Territorial Legislature are paid any com-
pensation other than that provided by the laws of the United States.
Provided, That for the performance of all official duties im-
posed by the Territorial Legislatures, and not provided for in the
organic act, the Secretaries of the Territories respectively shall
be allowed such fees as may be fixed by the Territorial Legisla-
tures. [Act June 19, 1878.]
Sec. 1856 Justices of the peace and all general officers of the mili-
tia, in the several Territories, shall be elected by the people, in such
manner as the respective Legislatures may provide by law.
40 PROVISIONS COMMON TO ALL THE TERRITORIES
Be it enacted, etc. (Sec. 1.) That when from any cause there
shall be a vacancy in the office of justice of the peace in any of the
Territories of the United States, it shall be lawful to fill such va-
cancy by appointment or election, in such manner as has been or
may be provided by the Governor and Legislative Assembly of
such Territory:
Provided, That such appointee, or person elected to fill such
vacancy, shall hold office only until his successor shall be regularly
elected and qualified as provided by law. [Act April 16, 1880.]
Sec. 1857. All township, district, and county officers, except jus-
tices of the peace and general officers of the militia, shall be appoint-
ed or elected in such manner as may be provided by the Governor and
Legislative Assembly of each Territory; and all other officers not
herein otherwise provided for, the Governor shall nominate, and by
and with the advice and consent of the Legislative Council of each
Territory, shall appoint; but, in the first instance, where a new Ter-
ritory is hereafter created by Congress, the Governor alone may ap-
point all the officers referred to in this and the preceding section
and assign them to their respective townships, districts, and counties ;
and the officers so appointed shall hold their offices until the end of
the first session of the Legislative Assembly.
Sec. 1858. In any of the Territories, whenever a vacancy happens
from resignation or death, during the recess of the Legislative Coun-
cil, in any office which, under the Organic Act of any Territory, is to
be filled by appointment of the Governor, by and with the advice and
consent of the Council, the Governor shall fill such vacancy by
granting a commission, which shall expire at the end of the next ses-
sion of the Legislative Council.
Sec. 1859. Every male citizen above the age of twenty-one includ-
ing persons who have legally declared their intention to become citi-
zens of any Territory hereafter organized, and who are actual resi-
dents of such Territory at the time of the organization thereof, shall
be entitled to vote at the first election in such Territory, and to hold
any office therein; subject, nevertheless, to the limitations specified
in the next section.
Sec. 1860. At all subsequent elections, however, in any Territory
hereafter organized by Congress, as well as at all elections in Terri-
tories already organized, the qualifications of voters and of holding
office shall be such as may be prescribed by the Legislative Assembly
of each Territory; subject, nevertheless, to the following restrictions
on the power of the Legislative Assembly, namely :
First. The right of suffrage and of holding office shall be exer-
cised only by citizens of the United States, above the age of twenty-one
years, and by those above that age who have declared on oath, before
a competent court of record, their intention to become such, and have
taken an oath to support the Constitution and Government of the
United States.
Second. There shall be no denial of the elective franchise, or of
holding office to a citizen on account of race, color, or previous con-
dition of servitude.
Third. No officer, soldier, seaman, mariner, or other person in
the army or navy, or attached to troops in the service of the United
PROVISIONS COMMON TO ALL THE TERRITORIES 41
States, shall be allowed to vote in any Territory, by reason of being
on service therein, unless such Territory is and has been for the period
of six months, his permanent domicile.
Fourth. No person belonging to the army or navy shall be elected
to or hold any civil office or appointment in any Territory, except of-
ficers of the army on the retired list. [Act March 3, 1883.]
Sec. 1861. That the subordinate officers of each branch of said
Territorial Legislatures shall consist of one chief clerk, who shall re-
ceive a compensation of six dollars per day ; one enrolling and engross-
ing clerk, at five dollars per day ; sergeant-at-arms and doorkeeper, at
five dollars per day; one messenger and watchman, at four dollars
per day each ; and one chaplain, at one dollar and fifty cents per day.
Said sums shall be paid only during the sessions of said Legisla-
tures ; and no greater number of officers or charges per diem shall be
paid or allowed by the United States to any Territory. [Act June 19,
1878.]
Sec. 1862. Every Territory shall have the right to send a delegate
to the House of Representatives of the United States, to serve during
each Congress, who shall be elected by the voters in the Territory
qualified to elect members of the Legislative Assembly thereof. The
person having the greatest number of voters shall be declared by the
Governor duly elected, and a certificate shall be given accordingly.
Every such Delegate shall have a seat in the House of Representa-
tives, with the right of debating, but not of voting.
Sec. 1863. The first election of a Delegate in any Territory for
which a temporary government is hereafter provided by Congress,
shall be held at the time and places, and in the manner the Gov-
ernor of such Territory may direct, after at least sixty days notice, to
be given by proclamation ; but at all subsequent elections therein for a
Delegate, as well as at all elections for a Delegate in organized Terri-
tories, such time, places, and manner of holding the election shall be
prescribed by the law of each Territory.
Sec. 1864. The Supreme Court of every Territory shall consist of
a Chief Justice and two Associate Justices, any two of whom shall
constitute a quorum, and they shall hold their offices for four years,
and until their successors are appointed and qualified. They shall
hold a term annually at the seat of government of the Territory for
which they are respectively appointed.
Sec. 1865. Every Territory shall be divided into three Judicial
Districts ; and a District Court shall be held in each district of the Ter-
ritory by one of the Justices of the Supreme Court, at such time and
place as may be prescribed by law ; and each Judge, after assignment,
shall reside in the district to which he is assigned.
Sec. 1866. The jurisdiction both appellate and original, of the
courts provided for in section 1907 and 1908, shall be limited by law.
Sec. 1867. No justices of the peace in any territory shall have
jurisdiction of any case in which the title to land, or the boundary
thereof, in anywise comes in question.
Sec. 1868. The Supreme Court and the District Courts, respec-
tively, of every Territory, shall possess chancery as well as common
law jurisdiction.
42 PROVISIONS COMMON TO ALL THE TERRITORIES
Whereas, by the organic Acts establishing several of the Ter-
ritories of the United States, it is provided that certain courts
thereof shall have common law and chancery jurisdiction, and
doubts have been entertained whether said jurisdictions
must be exercised separately, or whether they may be exercised
together in the same proceeding, and whether the codes and
rules of practice adopted in said Territories which have author-
ized a mingling of said jurisdictions in the same proceedings, or
a uniform course of proceeding in all cases legal and equitable,
are repugnant to the said organic Acts respectively : Therefore,
Be it enacted, etc., That it shall not be necessary in any of
the courts of the several Territories of the United States,
to exercise separately the common law and chancery jurisdic-
tions vested in said courts; and that the several codes and rules
of practice adopted in said Territories respectively, in so far
as they authorize a mingling of said jurisdictions or a uniform
course of proceedings in all cases whether legal or equitable, be
confirmed; and that all proceedings, heretofore had or taken in
said courts in conformity with said respective codes and rules
of practice, so far as relates to the form and mode of proceed-
ing, be and the same are hereby, validated and confirmed : Provid-
ed, That no party has been or shall be deprived of the right of trial
by jury in cases cognizable at common law. [Act April 7, 1874.]
Sec. 1869. Write of error, bills of exception, and appeals shall be
allowed, in all cases, from the final decisions of the District Courts
to the Supreme Courts, of all the Territories, respectively, under such
regulations as may be prescribed by law, but in no case removed to the
Supreme Court, shall trial by jury be allowed in that Court.
Sec. 1870. The Supreme Court of each Territory shall appoint its
own clerk, who shall hold his office at the pleasure of the Court for
which he is appointed.
Sec. 1871. Each Judge of the Supreme Court of the respective
Territories shall designate and appoint one person as Clerk of the
District over which he presides, where one is not already appointed,
and shall designate and retain but one such clerk where more than
one is already appointed, and only such District Clerk shall be en-
titled to a compensation from the United States.
Sec. 1872. Every District Clerk shall be also the register in chan-
cery, and shall reside and keep his office at the place where the Court
is held.
Sec. 1873. Temporarily, and until otherwise provided by law,
the Governor of every Territory, which may be hereafter established,
shall define, by proclamation, the judicial districts of such Territory,
and assign the judges appointed for such Territory, to the several
districts, as well as fix the times and places for holding courts in the
respective counties or subdivisions of each judicial district.
Sec. 1874. The Judges of the Supreme Court of each Territory
are authorized to hold court within their respective districts, in the
counties wherein, by the laws of the Territory, courts have been or
may be established; for the purpose of hearing and determining all
matters and causes, except those in which the United States is a
PROVISIONS COMMON TO ALL THE TERRITORIES 43
party; but the expense of holding such courts shall be paid by the
Territory, or by the counties in which the courts are held, and the
United States shall in no case be chargeable therewith.
Sec. 1875. There shall be appointed in each Territory a person
learned in law, to act as Attorney for the United States. He shall
continue in office for four years, and until his successor is appoint-
ed and qualified, unless sooner removed by the President.
Sec. 1876. There shall be appointed a Marshal for each Territory.
He shall execute all process issuing from the Territorial courts when
exercising their jurisdiction as Circuit and District Courts of the
United States. He shall have the power and perform the duties, and
be subject to the regulations and penalties, imposed by law, on the
Marshals of the several judicial districts of the United States. He
shall hold his office for four years, and until his successor is appointed
and qualified, unless sooner removed by the President.
Sec. 1877. The Governor, Secretary, Chief Justice, and Associate
Justices, Attorney, and Marshal of every Territory shall be nomi-
nated, and by and with the advice and consent of the Senate, appoint-
ed by the President.
Sec. 1878. The Governor and Secretary for each Territory shall,
before they act as such, respectively take an oath before the Dis-
trict Judge, or some justice of the peace in the limits of the Terri-
tory for which they are appointed, duly authorized to administer
oaths by the laws in force therein, or before the Chief Justice or
some Associate Justice of the Supreme Court of the United States,
to support the Constitution of the United States and faithfully to dis-
charge the duties of their respective offices; and such oaths shall
be certified by the person before whom the same are taken ; and such
certificates shall be received and recorded by the Secretary among
the executive proceedings; and the Chief Justice and the Associate
Justices, and all other civil officers appointed for any Territory, be-
fore they act as such, shall take a like oath before the Governor or
Secretary, or some Judge or Justice of the Peace of the Territory who
may be duly commissioned and qualified, and such oath shall be cer-
tified and transmitted by the person taking the same to the Secre-
tary, to be, by him, recorded as above directed; but after the first
qualification of the officers herein specified in the case of a new Terri-
tory, as well as in all organized Territories, the like oath shall be
taken, certified, and recorded in such manner and form as may be
prescribed by the law of each Territory.
Hereafter payment of salaries of all officers of the Territo-
ries of the United States appointed by the President, shall com-
mence only when the person appointed to any such office shall
take the proper oath, and shall enter upon the duties of such
office in such Territory; and said oath shall hereafter be admin-
istered in the Territory in which such office is held. [Act May
1, 1876.]
Sec. 1879. The annual salary of the Chief Justice and Associate
Justices of all the Territories now organized, shall be three thousand
dollars each.
Sec. 1880. The salary of the Attorney of the United States for
44 PROVISIONS COMMON TO ALL THE TERRITORIES
each Territory, shall be at the rate of two hundred and fifty dollars
annually.
Sec. 1881. The salary of the Marshal of the United States for each
Territory, shall be at the rate of two hundred dollars a year.
Sec. 1882. The salaries provided for in this. Title, to be paid to
the Governor, Secretary, Chief Justices and Associate Justices, Dis-
trict Attorney and Marshal of the several Territories, shall be paid
quarter-yearly at the Treasury of the United States.
That hereafter the salaries appropriated for the United States
Judges in the foregoing paragraphs, and judges of the court of
claims, and of the Territories, may be paid monthly. [Act
March 3, 1881.]
Sec. 1883. The fees and costs to be allowed to the United States
Attorneys and Marshals, to the Clerks of the Supreme and District
Courts, and to jurors, witnesses, commissioners, and printers, in the
Territories of the United States, shall be the same for similar ser-
vices by such persons as prescribed in chapter sixteen, Title "The
Judiciary," and no other compensation shall be taxed or allowed.
Sec. 1884. When any officer of a Territory is absent therefrom,
and from the duties of his office, no salary shall be paid him during
the year in which such absence occurs, unless good cause therefor
be shown to the President, who shall officially certify his opinion
of such cause to the proper accounting officer of the Treasurer, to be
filed in his office.
Sec. 1885. The Legislative Assembly of every Territory hereafter
organized shall hold its first session at such time and place in the
Territory as the Governor thereof shall aopoint and direct; and at
the first session of the Legislative Assembly, or as soon thereafter
as it may be deemed expedient, the Governor and Legislative Assem-
bly shall proceed to locate and establish the seat of government for
the Territory at such place as they may think proper ; but such place
shall thereafter be subject to be changed by the Governor and Legis-
lative Assembly.
Sec. 1886. All accounts for disbursements, in the Territories of
the United States, of money appropriated by Congress for the support
of government therein, shall be settled and adjusted at the Treas-
ury Department; and no Act, Resolution or order of the Legislature
of any Territory, directing the expenditure of the sum, shall be
deemed a sufficient authority for such disbursement, but sufficient
vouchers and proof for the same shall be required by the account-
ing officers of the Treasury. No payment shall be made or allowed,
unless the Secretary of the Treasury has estimated therefor and the
object been approved by Congress. No session of the Legislature of
a Territory shall be held until the appropriation for its expenses has
been made.
Sec. 1887. Hereafter no expense for printing exceeding four
thousand dollars, including printing laws, journals, bills, and neces-
sary printing of the same nature, shall be incurred for any session of
the Legislature of any of the Territories.
And in no case shall the expenditure for public printing in
any of the Territories exceed the sum of two thousand five hun-
dred dollars for any one year. [Act June 19, 1878.]
PROVISIONS COMMON TO ALL THE TERRITORIES 45
Sec. 1888. No Legislative Assembly of a Territory shall, in any
instance or under any pretext, exceed the amount appropriated by
Congress for its annual expenses.
Be it enacted, etc., That the Legislatures of the Territories of
the United States now, or hereafter to be organized, shall not pass
local or special laivs in any of the following enumerated cases,
that is to say :
Granting divorces.
Changing the names of persons or places.
Laying out, opening, altering, and working roads or highways.
Vacating roads, town-plats, streets, alleys and public grounds.
Locating or changing county seats.
Regulating county and township affairs.
Regulating the practice in courts of justice.
Regulating the jurisdiction and duties of justices of the peace,
police magistrates, and constables.
Providing for changes of venue in civil and criminal cases.
Incorporating cities, towns, or villages, or changing or amend-
ing tlie charter of any town, city, or village.
For the punishment of crimes or misdemeanors.
For the assessment and collection of taxes for Territorial,
county, township, or road purposes.
Summoning and impaneling grand or petit jurors.
Providing for the management of common schools.
Regulating the rate of interest on money.
The opening and conducting of any election or designating the
place of voting.
The sale or mortgage of real estate belonging to minors or
others under disability.
The protection of game or fish.
Chartering or licensing ferries or toll bridges.
Remitting fines, penalties, or forfeitures.
Creating, increasing or decreasing fees, percentage, or allow-
ances of public officers during the term for which said officers
are elected or appointed.
Changing the law of descent.
Granting to any corporation, association, or individual the
right to lay down railroad tracks, or amending existing charters
for such purposes.
Granting to any corporation, association, or individual any
special or exclusive privilege, immunity, or franchise whatever.
In all other cases where a general law can be made applicable,
no special law shall be enacted in any of the Territories of the
United States by the Territorial Legislatures thereof.
Sec. 2. That no Territory of the United States now or here-
after to be organized, or any political or municipal corporation
or subdivision of any such Territory, shall hereafter make any
46 PROVISIONS COMMON TO ALL THE TERRITORIES
subscription to the capital stock of any incorporated company,
or company or association having corporate powers, or in any
manner loan its credit to, or use it for the benefit of any such
company or association, or borrow any money for the use of any
such company or association.
Sec. 3. That no law of any Territorial Legislature shall au-
thorize any debt to be contracted by or on behalf of such Terri-
tory except in the following cases: To meet a casual deficit in
the revenues, to pay the interest upon -the Territorial debt, to sup-
press insurrections, or to provide for the public defense, except
that in addition to any indebtedness created for such purposes the
Legislature may authorize a loan for the erection of penal, char-
itable or educational institutions for such Territory, if the total
indebtedness of the Territory is not thereby made to exceed one
per centum upon the assessed value of the taxable property in
such Territory as shown by the last general assessment for tax-
ation. And nothing in this Act shall be construed to prohibit the
refunding of any existing indebtedness of such Territory or of
any political or municipal corporation, county or other subdi-
vision therein.
Sec. 4. That no political or municipal corporation, county or
other subdivision, in any of the Territories of the United States,
shall ever become indebted in any manner or for any purpose
to any amount in the aggregate, including existing indebtedness,
exceeding four per centum on the value of the taxable property
within such corporation, county, or subdivision, to be ascer-
tained by the last assessment for Territorial and county taxes
previous to the incurring of such indebtedness; and all bonds
or obligations in excess of such amount given by such corporation
shall be void. That nothing in this Act contained shall be so
construed as to affect the validity of any Act of any Territorial
Legislature heretofore enacted, or of any obligations existing or
contracted thereunder, nor to preclude the issuing of bonds al-
ready contracted for in pursuance of express provisions of law;
nor to prevent any Territorial Legislature from legalizing the
acts of any county, municipal corporation, or subdivision of any
Territory as to any bonds heretofore issued or contracted to be
issued.
Sec. 1889. The Legislative Assemblies of the several Territories
shall not grant private charters or special privileges, but they may, by
general incorporation Acts, permit persons to associate themselves to-
gether as bodies corporate, for mining, manufacturing, and other
industrial pursuits, and for conducting the business of insurance,
banks of discount and deposit (but not of issue), loan, trust, and
guarantee associations, and for the construction or operation of rail-
roads, wagon roads, irrigating ditches, and the colonization and im-
provement of lands in connection therewith, or for colleges, semina-
ries, churches, libraries, or any other benevolent, charitable, or scien-
tific association.
Sec. 6. That nothing in this Act contained shall be construed
to abridge the power of Congress to annul any law passed by a
Territorial Legislature or to modify any existing law of Con-
PROVISIONS COMMON TO ALL THE TERRITORIES 47
gress requiring in any case that the laws of any Territory shall
be submitted to Congress.
Sec. 7. That all Acts and parts of Acts hereafter passed by
any Territorial Legislature in conflict with the provisions of this
Act shall be null and void. [Act July 30, 1886.]
Sec. 1890. No corporation or association, for religious or charit-
able purposes, shall acquire or hold real estate in any Territory, dur-
ing the existence of the Territorial government, of a greater value
than fifty thousand dollars ; and all real estate acquired or held by
such corporation or association contrary hereto shall be forfeited and
escheat to the United States ; but existing vested rights in real estate
shall not be impaired by the provisions of this section.
Sec. 1891. The Constitution and all laws of the United States
which are not locally inapplicable shall have the same force and ef-
fect within all the organized Territories, and in every Territory here-
after organized, as elsewhere within the United States.
Sec. 2. That the penitentiaries in the Territories of Mon-
tana, Idaho, and Wyoming, shall continue under the care and
control of the Marshal of the United States for said Territo-
ries, under and pursuant to the provisions of the act entitled,
"An Act in relation to certain Territorial penitentiaries, " ap-
proved January tenth, eighteen hundred and seventy-one ; which
said last mentioned act is hereby revived and re-enacted so far
as the same applies to the Territories of Montana, Idaho and
Wyoming. [Act June 20, 1874.]
Sec. 1893. The Attorney General of the United States shall pre-
scribe all needful rules and regulations for the government of such
penitentiary, and the Marshal having charge thereof shall cause them
to be duly and faithfully executed and obeyed, and the reasonable
compensation of the Marshal and his deputies, for their services un-
der such regulations, shall be fixed by the Attorney General.
Sec. 1894. The compensation, as well as the expense incident to
the subsistence and employment of offenders against the laws of the
United States, who have been, or may hereafter be, sentenced to im-
prisonment in such penitentiary, shall be chargeable on, and payable
out of the fund for defraying the expenses of suits in which the
United States are concerned, and of the prosecutions for offenses
committed against the United States; but nothing herein shall be con-
strued to increase the maximum compensation now allowed by law to
those officers.
Sec. 1895. Any person convicted by a court of competent jurisdic-
tion in a Territory, for a violation of the laws thereof, and sentenced
to imprisonment, may, at the cost of such Territory, on such terms
and conditions as may be prescribed by such rules and regulations, be
received, subsisted, and employed in such penitentiary during the
term of his imprisonment, in the same manner as if he had been
convicted of an offense against the laws of the United States.
Be it enacted, etc., That the Legislative Assemblies of the sev-
eral Territories of the United States may make such provision for
the care and custody of such persons as may be convicted of
crime under the laws of such Territory as they shall deem proper,
Vol. 1-3
48
PROVISIONS CONCERNING PARTICULAR TERRITORIES
and for that purpose may authorize and contract for the care
and custody of such convicts in any other Territory or State, and
provide that such person or persons may be sentenced to con-
finement accordingly in such Territory or State, and all existing
legislative enactments of any of the Territories for that pur-
pose are hereby legalized : Provided, That the expense of keep-
ing such prisoners shall be borne by the respective Territories,
and no part thereof shall be borne by the United States. [Act
June 16, 1880.]
Be it enacted, etc., That the nature of alcoholic drinks and
narcotics, and special instructions as to their effect upon the hu-
man system, in connection with the several divisions of the sub-
ject of physiology and hygiene, shall be included in the branches
of study taught in the common or public schools, and in the
military and naval schools, and shall be studied and taught as
thoroughly and in the same manner as other like required
branches are in said schools, by the use of text books in the
hands of pupils where other branches are thus studied in said
schools, and by all pupils in all said schools throughout the Ter-
ritories, in the Military and Naval Academies of the United
States, and in the District of Columbia, and in all Indian and
colored schools in the Territories of the United States.
Sec. 2. That it shall be the duty of the proper officers in con-
trol of any school described in the foregoing section to enforce
the provisions of this act ; and any such officer, school director,
committee, superintendent or teacher who shall refuse or neg-
lect to comply with the requirements of this Act, or shall neg-
lect or fail to make proper provisions for the instruction re-
quired, and in the manner specified by the first section of this
Act, for all pupils in each and every school under his jurisdiction,
shall be removed from office, and the vacancy filled as in other
cases.
Sec. 3. That no certificate shall be granted to any person to
teach in the public schools of the District of Columbia or Territo-
ries, after the first day of January, anno Domini eighteen hun-
dred and eighty-eight, who has not passed a satisfactory exam-
ination in physiology and hygiene, with special reference to the
nature and the effects of alcoholic drinks and other narcotics
upon the human system. [Act May 20, 1886.]
CHAPTER TWO.
Of Provisions Concerning Particular Organized Territories.
Section
1902. Boundaries of Idaho.
1905. Elections in Washington and
Idaho.
1906. The Delegate to Congress
must be a citizen of the United
States.
1907. The judicial power, how vest-
ed in all the Territories except
Arizona.
Section
1909. Writs of error to United States
Supreme Court.
Jurisdiction of District Courts.
Judges of Supreme Courts in
Idaho and Montana to define
judicial districts, etc.
Extra session of Legislative
Assembly in Washington, Ida-
ho and Montana.
1910.
1914.
1923.
PROVISIONS CONCERNING PARTICULAR TERRITORIES
49
Section
1927. Jurisdiction of justices of the
peace.
1935. Contingent expenses of certain
Territories.
1940. In Washington, Idaho and
Montana.
1941. No payment of salaries in cer-
tain Territories until officers
enter on their duties.
1943. In Idaho and Montana, mile-
age of members.
Section
1945. In Idaho and Montana, seat of
government.
1946. School lands in certain Terri-
tories.
1949. Agencies, etc., continued.
1951. Disbursing officers in Wash-
ington, Idaho and Montana, to
give security.
Sec. 1902. All that part of the territory of the United States, in-
cluded within the following limits, to-wit: Beginning at a point in
the middle channel of the Snake River, where the northern boundary
of Oregon intersects the same; then follow down the channel of
Snake River to a point opposite the mouth of the Kooskooskia or
Clear Water River; thence due north to the forty-ninth parallel of
latitude ; thence east along that parallel, to the thirty-ninth degree of
longtitude west of Washington; thence south along that degree of
longtitude to the crest of the Bitter Root Mountains ; thence southward
along the crest of the Bitter Root Mountains till its intersection
with the Rocky Mountains; thence southward along the crest of the
Rocky Mountains to the thirty-fourth degree of longtitude west of
Washington ; thence south along that decree of longtitude to the forty-
second degree of north latitude ; thence west, along that parallel, to the
eastern boundary of the State of Oregon; thence north, along that
boundary to the place of beginning, is created into a temporary gov-
ernment by the name of the Territory of Idaho.
Sec. 1905. The elections in the Territories of Washington and
Idaho for Delegates to the House of Representatives shall be held bi-
ennially, on the Tuesday next following the first Monday in Novem-
ber; and all elective Territorial, county and precinct officers shall
hereafter be elected at the times herein specified, unless otherwise
provided by legislation subsequent hereto, in either of such Territo-
ries.
Sec. 1906. The Delegate to the House of Representatives from
each of the Territories of Washington, Idaho and Montana, must be
a citizen of the United States.
Sec. 1907. The judicial power in New Mexico, Utah, Washington,
Colorado, Dakota, Idaho, Montana, and Wyoming, shall be vested in a
Supreme Court, District Courts, probate courts, and in justices of
the peace.
Be it enacted, etc., That the probate courts of the Territory
of Idaho, in their respective counties, in addition to their pro-
bate jurisdiction, be, and they are hereby, authorized to hear
and determine all civil causes wherein the damage or debt claimed
does not exceed the sum of five hundred dollars, exclusive of
interest, and such criminal cases, arising under the laws of the
Territory as do not require the intervention of a grand jury: Pro-
vided, That they shall not have jurisdiction in any matter in con-
troversy, when the title, boundary, or right to the peaceable
possession of land may be in dispute, or in chancery or divorce
cases: And, provided further, That in all cases an appeal may
50 PROVISIONS CONCERNING PARTICULAR TERRITORIES
be taken from any order, judgment, or decree of said probate
courts to the District Court. [Act December 13, 1870.]
Sec. 1909. Writs of error and appeals from the final decisions of
the Supreme Court of either of the Territories of New Mexico,
Utah, Colorado, Dakota, Arizona, Idaho, Montana and Wyoming, shall
be allowed to the Supreme Court of the United States, in the same
manner and under the same regulations as from the Circuit Courts
of the United States, where the value of the property or the amount
in controversy, to be ascertained by the oath of either party, or of
other competent witnesses, exceeds one thousand dollars, except that
a writ of error or appeal shall be allowed to the Supreme Court of
the United States from the decision of the Supreme Courts created
by this title, or of any Judge thereof, or of the District Courts created
by this title, or of any Judge thereof, upon writs of habeas corpus
involving the question of personal freedom.
Be it enacted, etc., That no appeal or writ of error shall here-
after be allowed from any judgment or decree in any suit at
law or in equity in the Supreme Court of the District of Colum-
bia, or in the Supreme Court of any of the Territories of the
United States, unless the matter in dispute, exclusive of costs,
shall exceed the sum of five thousand dollars.
Sec. 2. That the preceding section shall not apply to any case
wherein is involved the validity of any patent or copy-right, or
in which is drawn in question the validity of a treaty or stat-
ute of or an authority exercised under the United States; but
in all such cases an appeal or writ of error may be brought
without regard to the sum or value in dispute. [Act March 3,
1885.]
Sec. 2. That the appellate jurisdiction of the Supreme Court
of the United States over the judgment and decree of said Ter-
ritorial courts, in cases of trial by jury, shall be exercised by
writ of error, and in all other cases by appeal according to such
rules and regulations as to form and modes of proceeding as the
said Supreme Court have prescribed, or may hereafter prescribe :
Provided, That on appeal, instead of the evidence at large, a
statement of the facts of the case in the nature of a special ver-
dict, and also the rulings of the court on the admission or
rejection of evidence when excepted to, shall be made and certi-
fied by the court below, and transmitted to the Supreme Court
together with the transcript of the proceedings and judgment
or decree; but no appellate proceedings in said Supreme Court,
heretofore taken upon any such judgment or decree, shall be
invalidated by reason of being instituted by writ of error or by
appeal : And provided further, That the appellate court may
make any order in any case heretofore appealed, which may
be necessary to save the rights of the parties ; and that this Act
shall not apply to cases now pending in the Supreme Court of
the United States where the record has already been filed. [Act
April 7, 1874.]
Sec. 1910. Each of the District Courts in the Territories mentioned
in the preceding section shall have and exercise the same jurisdic-
tion, in all cases arising under the Constitution and laws of the United
PROVISIONS CONCERNING PARTICULAR TERRITORIES 51
States, as is vested in the Circuit and District Courts of the United
States ; and the first six days of every term of the respective District
Courts, or so much thereof as is necessary, shall be appropriated to
the trial of causes arising under such Constitution and laws; but
writs of error and appeals in all such cases may be had to the
Supreme Court of each Territory, as in other cases.
Sec. 1914. The Judges of the Supreme Courts of the Territories
of Idaho and Montana, or a majority of them, shall, when assembled
at their respective seats of government, define the judicial districts of
each of such Territories, and assign the Judges who may be appointed
for each of such Territories to the several districts ; and shall also fix
the times and places for holding courts in the several counties or sub-
divisions in each of such judicial districts, and alter the times and
places of holding the courts, as to them may seem proper and con-
venient ; but not less than two terms a year shall be held at each place
of holding court in the Territory of Montana.
Sec. 1923. In each of the Territories of Washington, Idaho, and
Montana, the Governor shall have power to call the Legislative As-
sembly together by proclamation, on an extraordinary occasion at
any time.
Hereafter no extraordinary session of the Legislature of any
Territory, wherever the same is now authorized by law, shall be
called, until the reasons for the same have been presented to the
President of the United States, and his approval thereof has been
duly given. [Act June 22, 1874.]
Sec. 1927. Justices of the peace in the Territories of Colorado,
Washington, Idaho, Montana and Arizona, shall not have jurisdiction
of any matter in controversy where the debt or sum claimed, exceeds
three hundred dollars. [Act January 19, 1883.]
Sec. 1935. There shall be appropriated annually, one thousand
dollars, to be expended by the respective governors, to defray the con-
tingent expenses of New, Mexico, Utah, Colorado, Dakota, Arizona,
Idaho, Montana and Wyoming, including the salary of the clerks in the
executive departments of those Territories.
Sec. 1940. There shall be appropriated, respectively for the Terri-
tories of Washington, Idaho and Montana, annually, a sufficient sum,
to be 'expended by the Secretary of each Territory herein named upon
an estimate to be made by the Secretary of the Treasury, to defray
the expenses of the Legislative Assembly, and other incidental ex-
penses. The Governor and Secretary of each Territory above spec-
ified shall, in the disbursement of all moneys intrusted to them, be gov-
erned solely by the instructions of the Secretary of the Treasury, and
shall semi-annually, account to such Secretary for the manner in
which such sums of money have been expended.
Sec. 1941. No payment of salary shall be made to the Governor,
Secretary, Chief Justice, and Associate Justices of Washington, Ida-
ho and Montana Territories until such officers have entered upon the
duties of their respective appointments.
Sec. 1943. The members of the Legislative Assembly of Idaho
and Montana Territories shall each receive four dollars for every
twenty miles' travel in going to and returning from the sessions of
52 PROVISIONS CONCERNING PARTICULAR TERRITORIES
their respective bodies, estimated according to the nearest usually
traveled route.
Sec. 1945. The Seat of government, when once fixed by the Gov-
ernor and Legislative Assembly of Idaho and Montana, respectively,
shall not be at any time changed, except by an Act of such Assembly,
for each Territory, respectively, duly passed and approved, after due
notice, at the first general election thereafter, by a majority of the
legal votes cast on that question.
Sec. 1946. Sections numbered sixteen and thirty-six, in each town-
ship of the Territories of New Mexico, Utah, Colorado, Dakota, Ari-
zona, Idaho, Montana and Wyoming shall be reserved for the pur-
pose of being applied to schools in the several Territories herein
named and in the States and Territories hereafter to be erected out
of the same.
Sec. 1949. The existing agencies and superintendencies of the In-
dians inhabiting the Territories of Idaho and Montana shall be con-
tinued with the same powers and duties now prescribed by law, ex-
cept lhat the President may, at his discretion, change the location of
the office of such agents or supermten dents.
Sec. 1951. All officers to be appointed by the President, by and
with the advice and consent of the Senate, for the Territories of Wash-
ington, Idaho, and Montana, who, by virtue of the provisions of
any law now existing, or which may be enacted by Congress, are
required to give security for moneys that may be entrusted to them
for disbursement, shall give security at such time and in such manner
as the Secretary of the Treasury may prescribe.
IDAHO ADMISSION BILL
(Public 199)
AN ACT
To Provide for the Admission of the State of Idaho into
the Union.
Whereas, The people of the Territory of Idaho, did, on the 4th
day of July, 1889, by a convention ot delegates called and assem-
bled for that purpose, form for themselves a Constitution, which
Constitution was ratified and adopted by the people of said Terri-
tory at an election held therefor on the first Tuesday in November,
1889, which Constitution is republican in form, and is in conform-
ity with the Constitution of the United States ; and,
Whereas, Said convention and the people of said Territory have
asked the admission of said Territory into the Union of States on an
equal footing with the original States in all respects whatever. There-
fore,
Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled, That the State
of Idaho is hereby declared to be a State of the United States of
America, and is hereby declared admitted into the Union on an equal
footing with the original .States in all respects whatever; and that
the Constitution which the people of Idaho have formed for themselves
be, and the same is hereby, accepted, ratified, and confirmed.
Section 2. That the said State shall consist of all the territory de-
scribed as follows : Beginning at the intersection of the thirty-ninth
meridian with the boundary line between the United States and
the British possessions; then following said meridian south until it
reaches the summit of the Bitter Root Mountains ; thence southeast-
ward along the crest of the Bitter Root range and the Continental
divide until it intersects the meridian of thirty-four degrees of longi-
tude; thence southward on this meridian to the forty-second parallel
of latitude ; thence west on this parallel of latitude to its intersection
with a meridian drawn through the mouth of the Owyhee river;
north on this meridian to the mouth of the Owyhee river; thence
down the mid-channel of the Snake River to the mouth of the Clear-
water River ; and thence north on the meridian which passes through
the mouth of the Clearwater to the boundary line between the United
States and the British possessions, and east on said boundary line to
the place of beginning.
Sec. 3. That until the next general census, or until otherwise pro-
vided by law, said State shall be entitled to one Representative in
the House of Representatives of the United States, and the election
54 IDAHO ADMISSION BILL
of the Representative to the Fifty-first Congress and Fifty-second
Congress shall take place at the time, and be conducted and certified
in the same manner as is provided in the Constitution of the State
for the election of State, district, and other officers in the first in-
stance.
The law of the Territory of Idaho for the registration of voters
shall apply to the first election of State, district, and other officers
held after the admission of the State of Idaho. County and pre-
cinct officers elected at the first election held after the admission of
the State of Idaho shall assume the duties of their respective offices on
the second Monday of January, 1891.
Sec. 4. That sections numbered 16 and 36 in every township of
said State, and where such sections or any parts thereof, have been
sold or otherwise disposed of by or under the authority of any
Act of Congress, other lands equivalent thereto, in legal subdivisions
of not less than one-quarter section, and as contiguous as may be
to the section in lieu of which the same is taken are hereby grant-
ed to said State for the support of common schools, such indemnity
lands to be selected within said State in such manner as the Legisla-
ture may provide, with the approval of the Secretary of the Interior.
Sec. 5. That all lands herein granted for educational purposes
shall be disposed of only at public sale, the proceeds to constitute a
permanent school fund, the interest of which only shall be expended
in the support of said schools. But said lands may, under such reg-
ulations as the Legislature shall prescribe, be leased for periods of
not more than five years, and such lands shall not be subject to pre-
emption, homestead entry, or any other entry under the land laws of
ihe United States, whether surveyed or unsurveyed, but shall be re-
served for school purposes only.
Sec. 6. That fifty sections of the unappropriated public lands
within said State, to be selected and located in legal subdivisions as
provided in Section 4 of this Act, shall be, and are hereby, granted
to said State for the purpose of erecting public buildings at the
Capital of said State for legislative, executive, and judicial purposes.
Sec. 7. That 5 per cent, of the proceeds of the sales of public
lands lying within said State which shall be sold by the United
States subsequent to the admission of said State into the Union,
after deducting all the expenses incident to the same, shall be paid
to the said State, to be used as a permanent fund, the interest of
which only shall be expended for the support of the common schools
within said State.
Sec. 8. That the lands granted to the Territory of Idaho by the
Act of February 18, 1881, entitled "An Act to grant lands to Dakota,
Montana, Arizona, Idaho, and Wyoming, for university purposes,"
are hereby vested in the State of Idaho to the extent of the full
quantity of 72 sections to said State, and any portion of said lands
that may not have been selected by said Territory of Idaho may be
selected by the said State; but said Act of February 18, 1881, shall be
so amended as to provide that none of said lands shall be sold
for less than $10 per acre, and the proceeds shall constitute a per-
manent fund to be safely invested and held by said State, and the in-
IDAHO ADMISSION BILL 55
come thereof be used exclusively for university purposes. The
schools, colleges, and universities provided for in this Act shall for-
ever remain under the exclusive control of the said State, and no
part of the proceeds arising from the sale or disposal of any lands
herein granted for educational purposes shall be used for the sup-
port of any sectarian or denominational school, college, or univer-
sity.
Sec. 9. That the penitentiary at Boise City, Idaho, and all lands
connected therewith, and set apart and reserved therefor, and unex-
pended appropriations of money therefor, and the personal property
of the United States now being in the Territory of Idaho which has
been in use in said Territory in the administration of the Territorial
government, including books and records and the property used at
the Constitutional convention which convened at Boise City in the
month of July, 1889, are hereby granted and donated to the State of
Idaho.
Sec. 10. That 90,000 acres of land, to be selected and located as
provided in Section 4 of this Act, are hereby granted to said State for
the use and support of an agricultural college in said State, as pro-
vided in the Acts of Congress making donations of lands for such
purposes.
Sec. 11. That in lieu of the grant of land for purposes of internal
improvement made to the new States by the eighth section of the Act
of September 4, 1841, which section is hereby repealed as to the State
of Idaho, and in lieu of any claim or demand by the said State under
the Act of September 28, 1850, and Section 2479 of the Revised Stat-
utes, making a grant of swamp and overflowed lands to certain
States, which grant is hereby declared, is not extended to the State
of Idaho, and in lieu of any grant of saline lands to said State, the
following grants of land are hereby made, to-wit: To the State of
Idaho : For the establishment and maintenance of a scientific school,
100,000 acres ; for State normal schools, 100,000 ; for the support and
maintenance of the insane asylum, located at Blackfoot, 50,000
acres; for the support and maintenance of the State university, lo-
cated at Moscow, 50,000; for the support and maintenance of the
penitentiary, located at Boise City, 50,000 acres; for other State,
charitable, educational, penal and reformatory institutions, 150,000
acres. None of the lands granted by this Act shall be sold for less
than $10 an acre.
Sec. 12. That the State of Idaho shall not be entitled to any fur-
ther or other grants of land for any purpose than as expressly pro-
vided in this Act. And the lands granted by this section shall be held,
appropriated, and disposed of exclusively for the purpose herein men-
tioned, in such manner as the Legislature of the State may provide.
Sec. 13. That all mineral lands shall be exempted from the grants
by this Act. But if section 16 and 36, or any subdivision, or por-
tion of any smallest subdivision, thereof, in any township, shall be
found by the Department of the Interior to be mineral lands, said
State is hereby authorized and empowered to select, in legal subdi-
visions, an equal quantity of other unappropriated lands in said State,
in lieu thereof, for the use and the benefit of the common schools
of said State.
56 IDAHO ADMISSION BILL
Sec. 14. That all lands granted in quantity or as indemnity by
this Act shall be selected, under the direction of the Secretary of the
Interior, from the surveyed unreserved, and unappropriated pub-
lic lands of the United States, within the limits of the State entitled
thereto. And there shall be deducted from the number of acres of
land donated by this Act for the specific objects to said State the num-
ber of acres heretofore donated by Congress to said Territory for sim-
ilar objects.
Sec. 15. That the sum of $28,000, or so much thereof as may be
necessary, is hereby appropriated, out of any money in the Treasury
not otherwise appropriated, for defraying the expenses of said conven-
tion, and for the payment of the members thereof, under the same
rules and regulations and at the same rates as are now provided
by law for the payment of the Territorial Legislatures, and for
elections held therefor and thereunder. Any money hereby ap-
propriated not necessary for such purposes shall be covered into
the Treasury of the United States.
Sec. 16. That the said State shall constitute a judicial district,
the name thereof to be the same as the name of the State and the
Circuit and District Courts therefor shall be held at the Capital of
the State for the time being, and the said district shall, for judicial
purposes, until otherwise provided, be attached to the Ninth
Judicial Circuit. There shall be appointed for said district one
District Judge, one United States Attorney and one United States
Marshal. The Judge of said district shall receive a yearly salary of
$3500, payable in four equal instalments, on the first days of Jan-
uary, April, July and October of each year, and shall reside in
the district. There shall be appointed clerks of said courts in the
said district, who shall keep their offices at the Capital of said State.
The regular terms of said courts shall be held in said district, at
the place aforesaid, on the first Monday in April and the first Mon-
day in November of each year, and only one grand jury and one
petit jury shall be summoned in both Circuit and District Courts.
The Circuit and District Courts for said district, and the Judges
thereof respectively, shall possess the same powers and jurisdiction,
and perform the same duties required to be performed by the other
Circuit and District Courts and Judges of the United States, and
shall be governed by the same laws and regulations. The Marshal,
District Attorney, and the clerks of the Circuit and District Courts
of said district, and all other officers and persons performing duties
in the administration of justice therein, shall severally possess the
powers and perform the duties lawfully possessed and required to be
performed by similar officers in other districts of the United States,
and shall, for the services they may perform, receive the fees and
compensation allowed by law to other similar officers and persons per-
forming similar duties in the State of Oregon.
Sec. 17. That all cases of appeal or writ of error heretofore pros-
ecuted and now pending in the Supreme Court of the United States
upon any record from the Supreme Court of Said Territory, or that
may hereafter lawfully be prosecuted upon any record from said
Court, may be heard and determined by said Supreme Court of the
United States ; and the mandate of execution or for further proceed-
IDAHO ADMISSION BILL 57
ings shall be directed by the Supreme Court of the United States to
the Circuit or District Court hereby established within the said State
from or to the Supreme Court of such State, as the nature of the case
may require. And the Circuit, District, and State Courts herein
named shall, respectively, be the successors of the Supreme Court of
the Territory, as to all such cases arising within the limits embraced
within the jurisdiction of such courts, respectively, with full power
to proceed with the same, and award mesne or final process therein;
and that from all judgments and decrees of the Supreme Court of
the Territory mentioned in this Act, in any case arising within the
limits of the proposed State prior to the admission, the parties to
such judgment shall have the same right to prosecute appeals and
writs of error to the Supreme Court of the United States as they
shall have had by law prior to the admission of said State into the
Union.
Sec. 18. That in respect to all cases, proceedings, and matters now
pending in the Supreme or District Courts of said Territory at the
time of the admission into the Union of the State of Idaho, and aris-
ing within the limits of such State, whereof the Circuit or District
Courts by this Act established might have had jurisdiction under the
laws of the United States had such Courts existed at the time of
the commencement of such cases, the said Circuit and District
Courts, respectively, shall be the successors of said Supreme and
District Courts of said Territory; and in respect to all other cases,
proceedings, and matters pending in the Supreme or District Courts
of said Territory at the time of the admission of such Territory into
the Union, arising within the limits of said State, the Courts estab-
lished by such State shall, respectively, be the successors of said Su-
preme and District Territorial Courts;. and all the files, records, in-
dictments and proceedings relating to any such cases shall be trans-
ferred to such Circuit, District, and State Courts, respectively, and
the same shall be proceeded with therein in due course of law; but
no writ, action, indictment, cause, or proceeding now pending, or
that prior to the admission of the State shall be pending, in any Ter-
ritorial Court in said Territory, shall abate by the admission of such
State into the Union, but the same shall be transferred and proceed-
ed with in the proper United States Circuit, District, or State Court,
as the case may be: Provided, however, That in all civil actions,
causes and proceedings in which the United States is not a party,
transfers shall not be made to the Circuit and District Courts of the
United States, except upon written request of one of the parties to
such action or proceedings filed in the proper court; and, in the absence
of such request, such cases shall be proceeded with in the proper
State courts.
Sec. 19. That from and after the admission of said State into the
Union, in pursuance of this Act, the laws of the United States not
locally inapplicable shall have the same force and effect within the
said State as elsewhere within the United States.
Sec. 20. That the Legislature of the said State may elect two
Senators of the United States as is provided by the Constitution of
said State, and the Senators and Representatives of said State shall
be entitled to seats in Congress, and to all the rights and privileges of
58 IDAHO ADMISSION BILL
Senators and Representatives of other States in the Congress of
the United States.
Sec. 21. That, until the State officers are elected and qualified
under the provisions of the Constitution of said State, the officers of
the Territory of Idaho shall discharge the duties of their respective
offices under the Constitution of the State, in the manner and form
as therein provided; and all laws in force, made by said Territory, at
the time of its admission into the Union, shall be in force in said
State, except as modified or changed by this Act or by the Constitu-
tion of the State.
Sec. 22. That all Acts or parts of Acts in conflict with the pro-
visions of this Act, whether passed by Legislature of said Terri-
tory or by Congress, are hereby repealed.
Approved July 3, 1890.
UNITED STATES STATUTES RELATIVE TO
AUTHENTICATION OF RECORDS
Sec. 905. The Acts of the Legislature of any State or Territory,
or of any country subject to the jurisdiction of the United States, shall
be authenticated by having the seals of such State, Territory or coun-
try affixed thereto. The records and judicial proceedings of the courts
of any State or Territory, or of any such country, shall be proved
or admitted in any other court within the United States, by the
attestation of the clerk, and the seal of the court annexed, if there be
a seal, together with a certificate of the judge, Chief Justice, or pre-
siding magistrate, that the said attestation is in due form. And the
said records and judicial proceedings, so authenticated, shall have
such faith and credit given to them in every court within the United
States as they have by law or usage in the courts of the State from
which they were taken.
Sec. 906. All records and exemplifications of books, which may
be kept in any public office of any State or Territory, or of any coun-
try subject to the jurisdiction of the United States, not appertaining
to a court, shall be proved or admitted in any court of office in
any other State or Territory, or in any such country, by the attesta-
tion of the keeper of the said records or books, and the seal of his
office annexed, if there be a seal, together with a certificate of the
presiding justice of the court of the county, parish, or district in
which such office may be kept, or of the Governor or Secretary
of State, the Chancellor or keeper of the great seal, of the State, or
Territory, or country, that the said attestation is in due form, and
by the proper officers. If the said certificate is given by the presiding
justice of a court, it shall be further authenticated by the clerk or pro-
thonotary of the said court, who shall certify, under his hand and
the seal of his office, that the said presiding justice is duly commis-
sioned and qualified ; or, if given by such Governor, Secretary, Chan-
cellor or keeper of the great seal, it shall be under the great seal of
the State, Territory, or country aforesaid in which it is made. And
the said records and exemplifications, so authenticated, shall have
such faith and credit given to them in every court and office with
the United States as they have by law or usage in the courts or
offices of the State, Territory, or country, as aforesaid, from which
they are taken.
Sec. 907. It shail be lawful for any keeper or person having the
custody of laws, judgments, orders, decrees, journals, correspondence,
or other public documents of any foreign government or its agents,
relating to the title to lands claimed by or under the United States
on the application of head of one of the departments, the Solicitor
60 AUTHENTICATION OF RECORDS
of the Treasury, or the Commissioner of the General Land Office, to
authenticate copies thereof under his hand and seal, and to certify
them to be correct and true copies of such laws, judgments, orders,
decrees, journals, correspondence, or other public documents, re-
spectively, and when such copies are certified by an American Min-
ister or Consul, under his hand and seal of office, to be true copies of
the originals, they shall be sealed up by him and returned to the
Solicitor of the Treasury, who shall file them in his office, and cause
them to be recorded in a book to be kept for that purpose. A copy of
any such law, judgment, order, decree, journal, correspondence, or
other public document, so filed, or of the same so recorded in said
book, may be read in evidence in any court, where the title to land
claimed by or under the United States may come into question, equally
with the originals.
THE NATURALIZATION LAW
(Public No. 338.)
AN ACT
To Establish a Bureau of Immigration and Naturalization, and
to Provide for a Uniform Rule for the Naturalization of
Aliens Throughout the United States.
Be it enacted by the Senate, and House of -Representatives of the
United States of America in Congress Assembled, That the designa-
tion of the Bureau of Immigration in the Department of Commerce
and Labor is hereby changed to the "Bureau of Immigration and
Naturalization," which said bureau, under the direction and control
of the Secretary of Commerce and Labor, in addition to the duties
now provided by law, shall have charge of all matters concerning the
naturalization of aliens. That it shall be the duty of the said bureau
to provide, for use at the various immigration stations throughout
the United States, books of record, wherein the commissioners of im-
migration shall cause a registry to be made in the case of each alien
arriving in the United States from and after the passige of this
Act of the name, age, occupation, personal description (includ-
ing height, complexion, color of hair and eyes), the place of birth,
the last residence, the intended place of residence in the United
States, and the date of arrival of said alien, and, if entered through
a port, the name of the vessel in which he comes. And it shall be
the duty of said commissioners of immigration to cause to be grant-
ed to such alien a certificate of such registry, with the particulars
thereof.
Sec. 2. That the Secretary of Commerce and Labor shall provide
the said bureau with such additional furnished offices within the city
of Washington, such books of record and facilities, and such addi-
tional assistants, clerks, stenographers, typewriters, and other em-
ployees as may be necessary for the proper discharge of the duties
imposed by this Act upon such bureau, fixing the compensation of
such additional employees until July first, nineteen hundred and seven,
within the appropriations made for that purpose.
Sec. 3. That exclusive jurisdiction to naturalize aliens as citi-
zens of the United States is hereby conferred upon the following
specified courts :
United States Circuit and District Courts now existing, or which
may hereafter be established by Congress in any State, United
62 THE NATURALIZATION LAW
States District Courts for the Territories of Arizona, New Mexico,
Oklahoma, Hawaii, and Alaska, the Supreme Court of the District
of Columbia, and the United States courts for the Indian Territory;
also all courts of record in any State or Territory now existing, or
which may hereafter be created, having a seal, a clerk, and juris-
diction in actions at law or equity, or law and equity, in which the
amount in controversy is unlimited.
That the naturalization jurisdiction of all courts herein specified,
State, Territorial, and Federal, shall extend only to aliens resident
within the respective judicial districts of such courts.
The courts herein specified shall, upon the requisition of the
clerks of such courts, be furnished from time to time by the Bureau
of Immigration and Naturalization with such blank forms as may be
required in the naturalization of aliens, and all certificates of natu-
ralization shall be consecutively numbered and printed on safety
paper furnished by said bureau.
Sec. 4. That an alien may be admitted to become a citizen of the
United States in the following manner and not otherwise:
First. He shall declare on oath before the clerk of any court au-
thorized by this Act to naturalize aliens, or his authorized deputy,
in the district in which such alien resides, two years at least prior
to his admission, and after he has reached the age of eighteen years,
that it is bona fide his intention to become a citizen of the United
States, and to renounce forever all allegiance and fidelity to any
foreign prince, potentate, state, or sovereignty, and particularly, by
name, to the prince, potentate, state, or sovereignty of which the
alien may be at the time a citizen or subject. And such declaration
shall set forth the name, age, occupation, personal description,
place of birth, last foreign residence and allegiance, the date of ar-
rival, the name of the vessel, if any, in which he came to the United
States, and the present place of residence in the United States of said
alien : Provided, however, That no alien who, in conformity with
the law in force at the date of his declaration, has declared his in-
tention to become a citizen of the United States shall be required to
renew such declaration.
Second. Not less than two years nor more than seven years after
he has made such declaration of intention he shall make and file, in
duplicate, a petition in writing, signed by the applicant in his own
handwriting and duly verified, in which petition such applicant shall
state his full name, his place of residence (by street and number,
if possible), his occupation, and, if possible, the date and place of
his birth ; the place from which he emigrated, and the date and place
of his arrival in the United States, and, if he entered through a
oort the name of the vessel on which he arrived; the time when and
the place and name of the court where he declared his intention to
become a citizen of the United States ; if he is married he shall
state the name of his wife, and, if possible, the country of her na-
tivity and her place of residence at the time of filing this petition ; and
if he has children, the name, date, and place of birth and place of
residence of each child living at the time of the filing of his peti-
tion : Provided, That if he has filed his declaration before the pas-
sage of this Act he shall not be required to sign the petition in his
own handwriting.
THE NATURALIZATION LAW 63
The petition shall set forth that he is not a disbeliever in or op-
posed to organized government, or a member of or affiliated with
any organization or body of persons teaching disbelief in or opposed
to organized government, a polygamist or believer in the practice of
polygamy, and that it is his intention to become a citizen of the
United States and to renounce absolutely and forever all allegiance
and fidelity to any foreign prince, potentate, state, or sovereignty,
and particularly by name to the prince, potentate, state, or sovereignty
of which he at the time of filing of his petition may be a citizen or sub-
ject, and that it is his intention to reside permanently within the
United States, and whether or not he has been denied admission as
a citizen of the United States, and, if denied, the ground or grounds
of such denial, the court or courts in which such decision was ren-
dered, and that the cause for such denial has since been cured or
removed, and every fact material to his naturalization and required
to be proved upon the final hearing of his application.
The petition shall also be verified by the affidavits of at least two
credible witnesses, who are citizens of the United States, and who
shall state in their affidavits that they have personally known the
applicant to be a resident of the United States for a period of 'at
least five years continuously, and of the State, Territory, or district
in which the application is made for a period of at least one year
immediately preceding the date of the filing of his petition, and
that they each have personal knowledge that the petitioner is a per-
son of good moral character, and that he is in every way qualified,
in their opinion, to be admitted as a citizen of the United States.
At the time of filing his petition there shall be filed with the clerk
of the court a certificate from the Department of Commerce and
Labor, if the petitioner arrives in the United States after the pas-
sage of this Act, stating the date, place, and manner of his arrival
in the United States, and the declaration of intention of such pe-
titioner, which certificate and declaration shall be attached to and
made a part of said petition.
Third. He shall, before he is admitted to citizenship, declare on
oath in open court that he will support the Constitution of the United
States, and that he absolutely and entirely renounces and abjures
all allegiance and fidelity to any foreign prince, potentate, state, or
sovereignty, and particularly by name to the prince, potentate, state,
or sovereignty of which he was before a citizen or subject; that he
will support and defend the Constitution and laws of the United
States against all enemies, foreign and domestic, and bear true faith
and allegiance to the same.
Fourth. It shall be made to appear to the satisfaction of the
court admitting any alien to citizenship that immediately preceding
the date of his application he has resided continuously within the
United States five years at least, and within the State or Territory
where such court is at the time held one year at least, and that dur-
ing that time he has behaved as a man of good moral character, at-
tached to the principles of the Constitution of the United States,
and well disposed to the good order and happiness of the same. In
addition to the oath of the applicant, the testimony of at least two
witnesses, citizens of the United States, as to the facts of residence,
64 THE NATURALIZATION LAW
moral character, and attachment to the principles of the Constitution
shall be required, and the name, place of residence, and occupation of
each witness shall be set forth in the record.
Fifth. In case the alien applying to be admitted to citizenship has
borne any hereditary title, or has been of any of the orders of no-
bility in the kingdom or state from which he came, he shall, in addi-
tion to the above requisites, make an express renunciation of his title
or order of nobility in the court to which his application is made,
and his renunciation shall be recorded in the court.
Sixth. When any alien who has declared his intention to become
a citizen of the United States dies before he is actually naturalized
the widow and minor children of such alien may, by complying with
the other provisions of this Act, be naturalized without making any
declaration of intention.
Sec. 5. That the clerk of the court shall, immediately after filing
the petition, give notice thereof by posting in a public and conspicu-
ous place in his office, or in the building in which his office is situ-
ated, under an appropriate heading, the name, nativity, and resi-
dence of the alien, the date and place of his arrival in the United
States, and the date, as nearly as may be, for the final hearing of his
petition, and the names of the witnesses whom the applicant expects
to summon in his behalf; and the clerk shall, if the applicant re-
quests it, issue a subpoena for the witnesses so named by the said ap-
plicant to appear upon the day set for the final hearing, but in case
such witnesses can not be produced upon the final hearing other wit-
nesses may be summoned.
Sec. 6. That petitions for naturalization may be made and filed
during term time or vacation of the court and shall be docketed the
same day as filed, but final action thereon shall be had only on stated
days, to be fixed by rule of the court, and in no case shall final action
be had upon a petition until at least ninety days have elapsed after
filing and posting the notice of such petition : Provided, That no
person shall be naturalized nor shall any certificate of naturalization
be issued by any court within thirty days preceding the holding of
any general election within its territorial jurisdiction. It shall be
lawful, at the time and as a part of the naturalization of any alien,
for the court, in its discretion, upon the petition ' of such alien, to
make a decree changing the name of said alien, and his certificate of
naturalization shall be issued to him in accordance therewith.
Sec. 7. That no person who disbelieves in or who is opposed to or-
ganized government, or who is a member of or affiliated with any
organization entertaining and teaching such disbelief in or opposi-
tion to organized government, or who advocates or teaches the
duty, necessity or propriety of the unlawful assaulting or killing of
any officer or officers, either of specific individuals or of officers gen-
erally, of the Government of the United States, or of any other or-
ganized government, because of his or their official character, or
who is a polygamist, shall be naturalized or be made a citizen of the
United States.
Sec. 8. That no alien shall hereafter be naturalized or admitted as
a citizen of the United States who can not speak the English Ian-
THE NATURALIZATION LAW 65
guage: Provided, That this requirement shall not apply to aliens
who are physically unable to comply therewith, if they are otherwise
qualified to become citizens of the United States : And provided fur-
ther, That the requirements of this section shall not apply to any
alien who has prior to the passage of this Act declared his inten-
tion to become a citizen of the United States in conformity with the
law in force at the date of making such declaration : Provided fur-
ther, That the requirements of section eight shall not apply to aliens
who shall hereafter declare their intention to become citizens and who
shall make homestead entries upon the public lands of the United
States and comply in all respects with the laws providing for home-
stead entries on such lands.
Sec. 9. That every final hearing upon such petition shall be had in
open court before a judge or judges thereof, and every final order
which may be made upon such petition shall be under the hand of the
court and entered in full upon a record kept for that purpose, and
upon such final hearing of such petition the applicant and witnesses
shall be examined under oath before the court and in the presence of
the court.
Sec. 10. That in case the petitioner has not resided in the State,
Territory, or district for a period of five years continuously and im-
mediately preceding the filing of his petition he may establish by
two witnesses, both in his petition and at the hearing, the time of
his residence within the. State, provided that it has been for more
than one year, and the remaining portion of his five years' resi-
dence within the United States required by law to be established
may be proved by the depositions of two or more witnesses who are
citizens of the United States upon notice to the Bureau of Immigra-
tion and Naturalization and the United States Attorney for the dis-
trict in which said witnesses may reside.
Sec. 11. That the United States shall have the right to appear be-
fore any court or courts exercising jurisdiction in naturalization pro-
ceedings for the purpose of cross-examining the petitioner and the
witnesses produced in support of his petition concerning any mat-
ter touching or in any way affecting his right to admission to citi-
zenship, and shall have the right to call witnesses, produce evidence,
and be heard in opposition to the granting of any petition in natural-
ization proceedings.
Sec. 12. That it is hereby made the duty of the clerk of each and
every court exercising jurisdiction in naturalization matters under the
provisions of this Act to keep and file a duplicate of each declaration
of intention made before him and to send to the Bureau of Immi-
gration and Naturalization at Washington, within thirty days after
the issuance of a certificate of citizenship, a duplicate of such certifi-
cate, and to make and keep on file in his office a stub for each certifi-
cate so issued by him, whereon shall be entered a memorandum of all
the essential facts set forth in such certificate. It shall also be the
duty of the clerk of each of said courts to report to the said bureau,
within thirty days after the final hearing and decision of the court,
the name of each and every alien who shall be denied naturalization,
and to furnish to said bureau duplicates of all petitions within thirty
days after the filing of the same, and certified copies of such other
66 THE NATURALIZATION LAW
proceedings and orders instituted in or issued out of said court af-
fecting or relating to the naturalization of aliens as may be required
from time to time by the said bureau.
In case any such clerk or officer acting under his direction shall re-
fuse or neglect to comply with any of the foregoing provisions he shall
forfeit and pay to the United States the sum of twenty-five dollars
in each and every case in which such violation or omission occurs, and
the amount of such forfeiture may be recovered by the United States
in an action of debt against such clerk.
Clerks of courts having and exercising jurisdiction in naturaliza-
tion matters shall be responsible for all blank certificates of citizen-
ship received by them from time to time from the Bureau of Immigra-
tion and Naturalization, and shall account for the same to the said
bureau whenever required so to do by such bureau. No certificate of
citizenship received by any such clerk which may be defaced or in-
jured in such manner as to prevent its use as herein provided shall
in any case be destroyed, but such certificate shall be returned to
the said bureau ; and in case any such clerk shall fail to return or
property account for any certificate furnished by the said bureau, as
herein provided, he shall be liable to the United States in the sum
of fifty dollars, to be recovered in an action of debt, for each and
every certificate not properly accounted for or returned.
Sec. 13. That the clerk of each and every court exercising juris-
diction in naturalization cases shall charge, collect, and account for
the following fees in each proceeding :
For receiving and filing a declaration of intention and issuing a
duplicate thereof, one dollar.
For making, filing and docketing the petition of an alien for ad-
mission as a citizen of the United States and for the final hearing
thereon, two dollars; and for entering the final order and the issu-
ance of the certificate of citizenship thereunder, if granted, two
dollars.
The clerk of any court collecting such fees is hereby authorized
to retain one-half of the fees collected by him in such naturalization
proceeding; the remaining one-half of the naturalization fees in
each case collected by such clerks, respectively, shall be accounted
for in their quarterly accounts, which they are hereby required to
render the Bureau of Immigration and Naturalization, and paid over
to such bureau within thirty days from the close of each quarter in
each and every fiscal year, and the moneys so received shall be paid
over to the disbursing clerk of the Department of Commerce and
Labor, who shall thereupon deposit them in the Treasury of the
United States, rendering an account therefor quarterly to the Audi-
tor for the State and other departments, and the said disbursing clerk
shall be held responsible under his bond for said fees so received.
In addition to the fees herein required, the petitioner shall, upon
the filing of his petition to become a citizen of the United States,
deposit with and pay to the clerk of the court a sum of money suf-
ficient to cover the expense of subpoenaing and paying the legal fees
of any witnesses for whom he may request a subpoena, and upon
the final discharge of such witnesses they shall receive, if they demand
the same from the clerk, the customary and usual witness fees from
the moneys which the petitioner shall have paid to such clerk for such
THE NATURALIZATION LAW 67
purpose, and the residue, if any, shall be returned by the clerk to the
petitioner: Provided, That the clerks of courts exercising jurisdic-
tion in naturalization proceedings shall be permitted to retain one-half
of the fees in any fiscal year up to the sum of three thousand dol-
lars, and that all fees received by such clerks in naturalization pro-
ceedings in excess of such amount shall be accounted for and paid
over to said bureau as in case of other fees to which the United
States may be entitled under the provisions of this Act. The clerks of
the various courts exercising jurisdiction in naturalization proceed-
ings shall pay all additional clerical force that may be required in
performing the duties imposed by this Act upon the clerks of courts
from fees received by such clerks in naturalization proceedings.
And in case the clerk of any court collects fees in excess of the sum
of six thousand dollars in any one year, the Secretary of Commerce
and Labor may allow to such clerk from the money which the United
States shall receive additional compensation for the employment of
additional clerical assistance, but for no other purpose, if in the
opinion of the said Secretary the business of such clerk warrants such
allowance.
Sec. 14. That the declarations of intention and the petitions for
naturalization shall be bound in chronological order in separate vol-
umes, indexed, consecutively numbered, and made part of the records
of the court. Each certificate of naturalization issued shall bear upon
its face, in a place prepared therefor, the volume, number and page
number of the petition whereon such certificate was issued, and the
volume number and page number of the stub of such certificate.
Sec. 15. That it shall be the duty of the United States District At-
torneys for the respective districts, upon affidavit showing good cause
therefor, to institute proceedings in any court having jurisdiction
to naturalize aliens in the judicial district in which the naturalized
citizen may reside at the time of bringing the suit, for the purpose
of setting aside and canceling the certificate of citizenship on the
ground of fraud or on the ground that such certificate of citizenship
was illegally procured. In any such proceedings the party holding
the certificate of citizenship alleged to have been fraudulently or ille-
gally procured shall have sixty days personal notice in which to make
answer to the petition of the United States ; and if the holder of such
certificate be absent from the United States or from the district in
which he last had his residence, such notice shall be given by publi-
cation in the manner provided for the service of summons by publi-
cation or upon absentees by the laws of the State or the place where
such suit is brought.
If any alien who shall have secured a certificate of citizenship un-
der the provisions of this Act shall, within five years after the issu-
ance of such certificate, return to the country of his nativity, or go
to any other foreign country, and take permanent residence there-
in, it shall be considered prima facie evidence of a lack of intention
on the part of such alien to become a permanent citizen of the
United States at the time of filing his application for citizenship, and,
in the absence of countervailing evidence, it shall be sufficient in the
proper proceeding to authorize the cancellation of his certificate of
citizenship as fraudulent, and the diplomatic and consular officers
68 THE NATURALIZATION LAW
of the United States in foreign countries shall from time to time,
through the Department of State, furnish the Department of Justice
with the names of those within their respective jurisdictions who have
such certificates of citizenship and who have taken permanent resi-
dence in the country of their nativity, or in any other foreign coun-
try, and such statements, duly certified, shall be admissible in evi-
dence in all courts in proceedings to cancel certificates of citizenship.
Whenever any certificate of citizenship shall be set aside or can-
celled, as herein provided, the court in which such judgment or de-
cree is rendered shall make an order canceling such certificate of
citizenship and shall send a certified copy of such order to the Bu-
reau of Immigration and Naturalization; and in case such certifi-
cate was not originally issued by the court making such order it
shall direct the clerk of the court to transmit a copy of such order
and judgment to the court out of which such certificate of citizen-
ship shall have been originally issued. And it shall thereupon be the
duty of the clerk of the court receiving such certified copy of the
order and judgment of the court to enter the same of record and to
cancel such original certificate of citizenship upon the records and
to notify the Bureau of Immigration and Naturalization of such
cancellation.
The provisions of this section shall apply not only to certificates
of citizenship issued under the provisions of this Act, but to all cer-
tificates of citizenship which may have been issued heretofore by any
court exercising jurisdiction in naturalization proceedings under prior
laws.
Sec. 16. That every person who falsely makes, forges, counter-
feits or causes or procures to be falsely made, forged, or counterfeited,
or knowingly aids or assists in falsely making, forging, or counter-
feiting any certificate of citizenship, with intent to use the same, or
with the intent that the same may be used by some other person or
persons, shall be guilty of a felony, and a person convicted of such
offense shall be punished by imprisonment for not more than ten
years, or by a fine of not more than ten thousand dollars, or by both
such fine and imprisonment.
Sec. 17. That every person who engraves, or causes or procures
to be engraved, or assists in engraving, any plate in the likeness of
any plate designed for the printing of a certificate of citizenship, or
who sells any such plate, or who brings into the United States from
any foreign place any such plate, except under the direction of the
Secretary of Commerce and Labor, or other proper officer, and any
person who has in his control, custody, or possession any metallic
plate engraved after the similitude of any plate from which any
such certificate has been printed, with intent to use such plate or
suffer the same to be used in forging or counterfeiting any such
certificate or any part thereof; and every person who prints, photo-
graphs, or in any other manner causes to be printed, photographed,
made, or executed, any print or impression in the likeness of any such
certificate, or any part thereof, or who sells any such certificate, or
brings the same into the United States from any foreign place, ex-
cept by direction of some proper officer of the United States, or who
has in his possession a distinctive paper which has been adopted by
THE NATURALIZATION LAW 69
the proper officer of the United States for the printing of such cer-
tificate, with intent to unlawfully use the same, shall be punished
by a fine of not more than ten thousand dollars, or by imprisonment
at hard labor for not more than ten years, or by both such fine and
imprisonment.
Sec. 18. That it is hereby made a felony for any clerk or other
person to issue or be a party to the issuance of a certificate of citi-
zenship contrary to the provisions of this Act, except upon a final
order under the hand of a court having jurisdiction to make such or-
der, and upon conviction thereof such clerk or other person shall
be punished by imprisonment for not more than five years and by a
fine of not more than five thousand dollars, in the discretion of the
court.
Sec. 19. That every person who without lawful excuse is possessed
of any blank certificate of citizenship provided by the Bureau of
Immigration and Naturalization, with intent unlawfully to use the
same, shall be imprisoned at hard labor not more than five years
or be fined not more than one thousand dollars.
Sec. 20. That any clerk or other officer of a court having power
under this Act to naturalize aliens, who wilfully neglects to render
true accounts of moneys received by him for naturalization pro-
ceedings or who wilfully neglects to pay over any balance of such
moneys due to the United States within thirty days after said pay-
ment shall become due and demand therefor has been made and
refused, shall be deemed guilty of embezzlement of the public
moneys, and shall be punishable by imprisonment for not more than
five years, or by a fine of not more than five thousand dollars, or both.
Sec. 21. That it shall be unlawful for any clerk of any court or
his authorized deputy or assistant exercising jurisdiction in natural-
ization proceedings, or to demand, charge, collect, or receive any other
or additional fees or moneys in naturalization proceedings save the
fees and moneys herein specified and a violation of any of the provis-
ions of this section or any part thereof is hereby declared to be a mis-
demeanor and shall be punished by imprisonment for not more than
two years, or by a fine of not more than one thousand dollars, or by
both such fine and imprisonment.
Sec. 22. That the clerk of any court exercising jurisdiction in nat-
uralization proceedings, or any person acting under authority of
this Act, who shall knowingly certify that a petitioner, affiant, or
witness named in an affidavit, petition or certificate of citizenship, or
other paper or writing required to be executed under the provisions
of this Act, personally appeared before him and was sworn thereto,
or acknowledged the execution thereof or signed the same, when in
fact such petitioner, affiant, or witness did not personally appear
before him, or was not sworn thereto, or did not execute the same, or
did not acknowledge the execution thereof, shall be punished by a
fine not exceeding five thousand dollars, or by imprisonment not to
exceed five years.
Sec. 23. That any person who knowingly procures naturalization
in violation of the provisions of this Act shall be fined not more than
five thousand dollars, or shall be imprisoned not more than five
70 THE NATURALIZATION LAW
years, or both, and upon conviction the court in which such conviction
is had shall thereupon adjudge and declare the final order admitting
such person to citizenship void. Jurisdiction is hereby conferred on
the courts having jurisdiction of the trial of such offense to make such
adjudication. Any person who knowingly aids, advises, or encour-
ages any person not entitled thereto to apply for or to secure naturali-
zation, or to file the preliminary papers declaring an intent to become
a citizen of the United States, or who in any naturalization proceeding
knowingly procures or gives false testimony as to any material fact,
or who knowingly makes an affidavit false as to any material fact re-
quired to be proved in such proceedings, shall be fined not more than
five thousand dollars, or imprisoned not more than five years, or both.
Sec. 24. That no person shall be prosecuted, tried, or punished
for any crime arising under the provisions of this Act unless the in-
dictment is found or the information is filed within five years next
after the commission of such crime.
Sec. 25. That for the purpose of the prosecution of all crimes and
offenses against the naturalization laws of the United States which
may have been committed prior to the date when this Act shall go into
effect, the existing naturalization laws shall remain in full force and
effect.
Sec. 26. That sections twenty-one hundred and sixty-five, twenty-
one hundred and sixty-seven, twenty-one hundred and sixty-eight,
twenty-one hundred and seventy-three, of the Revised Statutes of the
United States of America, and section thirty-nine of chapter one
thousand and twelve of the Statutes at Large of the United States of
America for the year nineteen hundred and three, and all Acts or
parts of Acts inconsistent with or repugnant to the provisions of this
Act are hereby repealed.
Sec. 27. That substantially the following forms shall be used in
the proceedings to which they relate :
* DECLARATION OF INTENTION.
(Invalid for all purposes seven years after the date hereof.)
, ss:
I, , aged years, occupation , do de-
clare on oath (affirm) that my personal description is : Color ,
complexion , height , weight , color of
hair , color of eyes , other visible distinctive marks
; I was born in on the day of , Anno
Domini ; I now reside at ; I emigrated to the United
States of America from on the vessel ; my last for-
eign residence was It is my bona fide intention to renounce
forever all allegiance and fidelity to any foreign prince, potentate,
state, or sovereignty, and particularly to , of which I am now
a citizen (subject) ; I arrived at the (port) of , in the State
(Territory or district) of on or about the day of
Anno Domini ; I am not an anarchist ; I am not a po-
lygamist nor a believer in the practice of polygamy; and it is my in-
tention in good faith to become a citizen of the United States of
America and to permanently reside therein. So help me God.
THE NATURALIZATION LAW 71
(Original signature of declarant)
Subscribed and sworn to (affirmed) before me this day of
, Anno Domini
[L. S.]
(Official character of attestor.)
PETITION FOR NATURALIZATION.
Court of
In the matter of the petition of to be admitted as a
citizen of the United States of America.
To the Court :
The petition of respectfully shows :
First. My full name is
Second. My place of residence is number street,
city of , State (Territory or District) of
Third. My occupation is
Fourth. I was born on the day of , at
Fifth. I emigrated to the United States from , on or about
the day of , Anno Domini , and arrived at the port
of . , in the United States, on the vessel
Sixth. I declared my intention to become a citizen of the United
States on the day of at , in the court
of
Seventh. I am . . . married. My wife's name is She
was born in and now resides at I have children,
and the name, date, and place of birth and place of residence of each
of said children is as follows : ; ;
y y
Eighth. I am not a disbeliever in or opposed to organized govern-
ment or a member of or affiliated with any organization or body of
persons teaching disbelief in organized government. I am not a po-
lygamist nor a believer in the practice of polygamy. I am attached
to the principles of the Constitution of the United States, and it is
my intention to become a citizen of the United States and to renounce
absolutely and forever all allegiance and fidelity to any foreign prince,
potentate, state, or sovereignty, and particularly to , of which
at this time I am a citizen (or subject) , and it is my intention to reside
permanently in the United States.
Ninth. I am able to speak the English language.
Tenth. I have resided continuously in the United States of Amer-
ica for a term of five years at least immediately preceding the date
of this petition, to- wit, since , Anno Domini , and in the
State (Territory or District) of for one year at least next pre-
ceding the date of this petition, to-wit, since day of , Anno
Donimi
Eleventh. I have not heretofore made petition for citizenship to
any court. (I made petition for citizenship to the court of
at , and the said petition was denied by the said court for
the following reasons and causes, to-wit, , and
the cause of such denial has since been cured or removed.)
Attached hereto and made a part of this petition are my declara-
tion of intention to become a citizen of the United States and the
72 THE NATURALIZATION LAW
certificate from the Department of Commerce and Labor required by
law. Wherefore your petitioner prays that he may be admitted a citi-
zen of the United States of America.
Dated
(Signature of petitioner)
, ss :
, being duly sworn, deposes and says that he is
the petitioner in the above-entitled proceeding; that he has read the
foregoing petition and knows the contents thereof; that the same is
true of his own knowledge, except as to matters therein stated to be
alleged upon information and belief, and that as to those matters he
believes it to be true.
Subscribed and sworn to before me this day of ,
Anno Domini
[L. s.]
Clerk of the Court
AFFIDAVIT OF WITNESSES.
Court of
In the matter of the petition of . . to be admitted a citizen
of the United States of America.
, ss :
, occupation , residing at , and
, occupation , residing at , each being
severally, duly, and respectively sworn, deposes and says that he is a
citizen of the United States of America; that he has personally
known , the petitioner above mentioned, to be a resident
of the United States for a period of at least five years continuously
immediately preceding the date of filing his petition, and of the State
(Territory or District) in which the above entitled application is
made for a period of . years immediately preceding the date of
filing his petition ; and that he has personal knowledge that the said
petitioner is a person of good moral character, attached to the princi-
ples of the Constitution of the United States, and that he is in every
way qualified, in his opinion, to be admitted as a citizen of the United
States.
Subscribed and sworn to before me this day of , nine-
teen hundred and
[L. s.]
(Official character of attestor.)
CERTIFICATE OF NATURALIZATION.
Number
Petition, volume , page
Stub, volume , page
(Signature of holder)
Description of holder : Age, ; height, ; color, ;
complexion, ; color of eyes, ; color of hair, ; visi-
THE NATURALIZATION LAW 73
ble distinguishing marks, Name, age, and place of residence
of wife, , , Names, ages, and places of residence
of minor children, , , ; , , ;
, SS:
Be it remembered, that at a term of the. ... . .court of
held at on the day of , in the year of our Lord
nineteen hundred and. , who previous to his (her) nat-
uralization was a citizen or subject of , at present residing at
number. street, , city (town), State (Terri-
tory or District), having applied to be admitted a citizen of the
United States of America pursuant to law, and the court having found
that the petitioner had resided continuously within the United States
for at least five years and in this State for one year immediately pre-
ceding the date of the hearing of his (her) petition, and that said peti-
tioner intends to reside permanently in the United States, had in all
respects complied with the law in relation thereto, and that. . . .he
was entitled to be so admitted, it was thereupon ordered by the said
court that he be admitted as a citizen of the United States of
America.
In testimony whereof the seal of said court is hereunto affixed on
the day of ...... ./in the year of our Lord nineteen hundred and
, and of our independence the
[L. S.]
(Official character of attestor.)
STUB OF CERTIFICATE OF NATURALIZATION.
No. of Certificate
Name, ; age,
Declaration of intention, volume , page
Petition, volume , page. .......
Name, age and place of residence of wife, , ,
Names, ages, and places of residence of minor children, ,
Date of order, volume , page
(Signature of holder)
Sec. 28. That the Secretary of Commerce and Labor shall have
power to make such rules and regulations as may be necessary for
properly carrying into execution the various provisions of this Act.
Certified copies of all papers, documents, certificates, and records re-
quired to be used, filed, recorded, or kept under any and all of the
provisions of this Act shall be admitted in evidence equally with the
originals in any and all proceedings under this Act and in all cases
in which the originals thereof might be admissible as evidence.
Sec. 29. That for the purpose of carrying into effect the provisions
of this Act there is hereby appropriated the sum of one hundred thous-
and dollars, out of any moneys in the Treasury of the United
States not otherwise appropriated, which appropriation shall be in
full for the objects hereby expressed until June thirtieth, nineteen
74 THE NATURALIZATION LAW
hundred and seven; and the provisions of section thirty-six hundred
and seventy-nine of the Revised Statutes of the United States shall
not be applicable in any way to this appropriation.
Sec. 30. That all the applicable provisions of the naturalization
laws of the United States shall apply to and be held to authorize the
admission to citizenship of all persons not citizens who owe permanent
allegiance to the United States, and who may become residents of any
State or organized Territory of the United States, with the follow-
ing modifications : The applicant shall not be required to renounce
allegiance to any foreign sovereignty; he shall make his declaration
of intention to become a citizen of the United States at least two
years prior to his admission; and residence within the jurisdiction of
the United States, owing such permanent allegiance, shall be regard-
ed as residence within the United States within the meaning of the five
years' residence clause of the existing law.
Sec. 31. That this Act shall take effect and be in force from and
after ninety days from the date of its passage : Provided, That sec-
tions one, two, twenty-eight, and twenty-nine shall go into effect from
and after the passage of this Act.
Approved June 29, 1906.
CODE REVISION ACT
SENATE BILL NO. 121.
AN ACT
To Provide for the Revision, Compilation and Codification of
the Laws of the State of Idaho.
Be It Enacted by the Legislature of the State of Idaho :
Sec. 1. The Supreme Court of the State of Idaho is hereby au-
thorized and empowered to appoint some person, learned in the law
and a member of the bar of the Supreme Court of this State, who shall
be known as a Code Commissioner, and who shall be authorized to
revise, codify and compile the laws, civil, political, and criminal, and
the laws of civil procedure, and to revise, arrange, simplify and con-
solidate the statutes of Idaho which shall be in force at the time
such commissioner shall make his final report; and to make such
changes, alterations, modifications, additions and substitutions as
the said commissioner may deem best to the end that a complete sim-
plified code of laws based on the laws in force at the time the said
commissioner shall make his final report, shall be presented, but with
the errors, inconsistencies, repetitions and ambiguities therein elim-
inated.
Sec. 2. It shall be the duty of the commissioner to prepare the fol-
lowing codes: The Political Code, the Civil Code, the Code of Civil
Procedure and the Penal Code.
The Political Code shall treat of the sovereignty of the people of
the State, of the political rights and duties, of the political divisions
of the State, of the government of the counties, cities, towns, and of
such other general laws as shall seem proper to the commissioner.
The Civil Code shall treat of property and property rights, per-
sons and personal relations, corporations, contracts and obligations
and other subjects properly related to the foregoing.
The Code of Civil Procedure shall treat of the procedure and prac-
tice in civil actions and proceedings in all the courts in the State, or in
any subdivision thereof.
The Penal Code shall treat of crimes and misdemeanors and the
punishment thereof, of criminal procedure and penitentiaries, prisons
and jails.
The commissioner shall also make and prepare a report designat-
ing what statutes or parts of our statutes are omitted by him or re-
pealed by the provisions of any other Act reported by him and
what, if any, new sections he has added to such codes, and any laws of
a general nature which ought to be enacted in addition to the codes
reported.
76 CODE REVISION ACT.
Sec. 3. The Political Code must contain in addition to the other
matters required, the Magna Charta, the Declaration of Independ-
ence, the Constitution of the United States, with the amendments, the
Organic Act of the Territory of Idaho, the Act of Congress admitting
Idaho as a State, the Constitution of the State of Idaho, the laws of
the United States providing for the naturalization of citizens, the
statutes of the United States relative to the authentication of records,
and a copy of this Act.
Sec. 4. After each section or subdivision of the matter to be com-
prised in the said codes, there shall be a reference to the original text
from which said section is compiled, and a reference to the corre-
sponding section of the California code, if there shall be a similar or
identical one. There shall be noted further, under each section, a
complete reference to all decisions of the Supreme Court of Idaho and
the decisions of the Federal Courts interpreting, construing or apply-
ing to said section.
Sec. 5. The number of volumes in which such codes shall finally
be published shall be determined by the Supreme Court, and the Code
Commissioner must make for such codes a complete working index of
the contents thereof, either separately for each code, or, if the said
codes are all published in one volume, then one general index for all
the codes, in either case the said indexes to be alphabetically ar-
ranged and of sufficient particularity to refer to each section con-
tained in the said codes and to the subject thereof, with cross refer-
ences wherever they may be necessary, which index must be printed
and bound in the volume containing the section referred to.
Sec. 6. Said commissioner shall receive for his services the sum of
four thousand ($4,000.00) dollars, and shall be authorized to expend
the sum of two thousand ($2,000.00) dollars, or as much thereof as
may be necessary for legal assistance in connection with this work.
The said commissioner shall keep his office at Boise City, and shall de-
vote his entire time to the work of preparing the code of laws pro-
vided for herein. The said commissioner is empowered and authorized
to employ such clerical assistance as may be necessary and to procure
an office and proper supplies, at an expense of not to exceed two thous-
and five hundred ($2,500.00) dollars.
Sec. 7. The salary of the said commissioner shall be paid quarterly
in six payments, commencing with the quarter ending in June, 1907 ;
the claims of said commissioner to be presented to and allowed by
the Board of Examiners, and the Auditor is authorized to draw his
warrant upon the general fund for the amount of such salary due
and for all other expenses provided for in this Act. The compensa-
tion of all assistants and clerks to be paid when the same shall be-
come due, upon being presented to and allowed by the Board of Ex-
aminers.
Sec. 8. The labors of the commissioner shall be concluded on or
before the first day of July, 1908, and at said time it shall be the
duty of the commissioner to file with the Secretary of State three
copies of each of said codes, with the indexes and references herein
provided for, and the same shall be submitted for action to the Legis-
lature of the State of Idaho at its next general session or any special
session called by the Governor at the request of the Supreme Court
Judges.
CODE REVISION ACT. 77
Sec. 9. On or before the first day of July, 1908, the commissioner
shall file five copies of his final report with the Secretary of State,
which said report shall contain at length all changes, modifications,
additions, substitutions or repeals of existing statutes, and such
changes, modifications, additions, substitutions and repeals must refer
specifically to the section, chapter or article of the printed code shown
thereby, and the Secretary of State must cause such final report to
be printed for the use of members of the Legislative Assembly.
Sec. 10. Each of the Codes and indexes must be so far completed
as to be in a condition to print by the first day of July, 1908, and as
soon thereafter as possible, the Secretary of State and Judges of the
Supreme Court must have five hundred (500) copies of each of said
codes printed in the same type and body type as is used in the printing
of the Revised Statutes of Idaho, and bound with paper covers, the
Code Commissioner being required to read and correct the proof
sheets of said volume or volumes to be delivered to the Secretary
of State, corrected, printed and bound on or before the first day
of October, 1908, said printing and binding to be paid for out of the
moneys appropriated by this Act.
Sec. 11. Upon receipt of the printed codes, the Secretary of State
must deliver one printed copy of each volume of said codes, together
with a copy of the report of the changes and substitutions, to each
member of the Legislative Assembly, together with the indexes
therefor, which printed volume, when so delivered, must have the
effect of bills printed for the use of members of the Legislative As-
sembly, and also deliver, by mail or express, one copy of each
volume to each judge of any court of record in the State of Idaho,
one copy of each volume to each State officer, county attorney, mem-
ber of the board of county commissioners, and seven copies of each
volume to the clerks of the District Courts of Idaho, which copies of
said reports, for distribution to and examination by the members of
the bar of such courts, and to the Code Commissioner, ten copies of
each volume.
Sec. 12. There is hereby appropriated out of any money in the
State Treasury, not otherwise appropriated, the sum of fourteen
thousand (14,000) dollars, or so much thereof as may be necessary,
for carrying out the provisions of this Act.
Sec. 13. Whereas, an emergency exists therefor, this Act shall
take effect and be in force from and after its passage and approval.
Approved March 12, 1907.
CONSTITUTION OF THE STATE OF IDAHO
Constitution Adopted by a Constitutional Convention Held at
Boise City, in the Territory of Idaho, August 6, 1889.
Article
1. Declaration of Rights.
Distribution of Powers.
Legislative Department.
Executive Department.
Judicial Department.
Suffrage and Elections.
Finance and Revenue.
Public Indebtedness and Sub-
sidies.
Education and School Lands.
Public Institutions.
Corporations, Public and Pri-
vate.
2.
3.
4.
5.
6.
7.
9.
10.
11.
Article
12. Corporations, Municipal.
13. Immigration and Labor.
14. Militia.
15. Water Rights.
16. Live-stock.
17. State Boundaries.
18. County Organizations.
19. Apportionment.
20. Amendments.
21. Schedule and Ordinance.
PREAMBLE.
We, the people of the State of Idaho, grateful to Almighty God
for our freedom, to secure its blessings and promote our common wel-
fare, do establish this Constitution.
ARTICLE 1.
DECLARATION OF RIGHTS.
Section
1. Inalienable rights of man.
2. Political power inherent in the
people.
State inseparable part of Union.
Guaranty of religious liberty.
Right of habeas corpus.
Right to bail.
Prosecutions only by indictment
or information.
Freedom of speech.
Right of assembly.
Right to bear arms.
Military subordinate to civil
power.
3.
4.
5.
6.
9.
10.
11.
12.
actions
Section
13. Guaranties in criminal
and due process of law.
Right of eminent domain.
Imprisonment for debt prohib-
ited.
Bills of attainder, etc., prohib-
ited.
Unreasonable searches and seiz-
ures prohibited.
Justice to be freely and speedily
administered.
Right of suffrage guaranteed.
No property qualifications re-
quired of electors.
Reserved rights not impaired.
14.
15.
16.
17.
19
20
21.
Inalienable Rights of Man.
Sec. 1. All men are by nature free and equal and have certain in-
alienable rights, among which are enjoying and defending life and
DECLARATION OF RIGHTS
79
liberty, acquiring, possessing and protecting property, pursuing hap-
piness, and securing safety.
Cited: McDonald v. Doust (1905)
11 Ida. 14; 81 Pac. 60.
Political Power Inherent in the People.
Sec. 2. All political power is inherent in the people. Government
is instituted for their equal protection and benefit, and they have the
right to alter, reform or abolish the same whenever they may deem
it necessary, and no special privileges or immunities shall ever be
granted that may not be altered, revoked, or repealed by the Legisla-
ture.
Cited: In re Prout (1906) 12 Ida.
494; 86 Pac. 275.
County Government: A county gov-
ernment is neither a special privilege
nor special immunity within the mean-
ing of this section, but is a funda-
mental governmental right recognized
and adopted by the Constitution,
which cannot be abrogated or alien-
ated by legislative act. McDonald v.
Doust (1905) 11 Ida. 14; 81 Pac. 60.
State Inseparable Part of Union.
Sec. 3. The State of Idaho is an inseparable part of the American
union, and the Constitution of the United States is the supreme law
of the land.
Guaranty of Religious Liberty. •
Sec. 4. The exercise and enjoyment of religious faith and worship
shall forever be guaranteed ; and no person shall be denied any civil or
political right, privilege, or capacity on account of his religious opin-
ions; but the liberty of conscience hereby secured shall not be con-
strued to dispense with oaths of affirmations, or excuse acts of licen-
tiousness or justify polygamous or other pernicious practices, incon-
sistent with morality or the peace or safety of the State ; nor to permit
any person, organization, or association to directly or indirectly aid or
abet, counsel or advise, any person to commit the crime of bigamy or
polygamy, or any other crime. No person shall be required to attend
or support any ministry or place of worship, religious sect or denom-
ination, or pay tithes against his consent ; nor shall any preference be
given by law to any religious denomination or mode of worship. Big-
amy and polygamy are forever prohibited in the State, and. the Leg-
islature shall provide by law for the punishment of such crimes.
Right of Habeas Corpus.
Sec. 5. The privilege of the writ of habeas corpus shall not be sus-
pended unless, in case of rebellion or invasion, the public safety re-
quires it, and then only in such manner as shall be prescribed by law.
Right to Bail.
Sec. 6. All persons shall be bailable by sufficient sureties, except
for capital offenses, where the proof is evident or the presumption
great. Excessive bail shall not be required, nor excessive fines im-
posed, nor cruel and unusual punishments inflicted.
Right to Trial by Jury.
Sec. 7. The right of trial by jury shall remain inviolate but in civil
Vol. 1-4
80
CONSTITUTION OF IDAHO
actions three-fourths of the jury may render a verdict, and the Legis-
lature may provide that in all cases of misdemeanors five-sixths of
the jury may render a verdict. A trial by jury may be waived in all
criminal cases not amounting to felony by the consent of both parties,
expressed in open court, and in civil actions by the consent of the
parties signified in such manner as may be prescribed by law. In
civil actions and cases of misdemeanor the jury may consist of twelve
or any number less than twelve upon which the parties may agree in
open court.
Right to Jury Trial: The guaranty
of the right to trial by jury simply se-
cures that right as it existed at the
date of the adoption of the Constitu-
tion, and does not apply to equitable
cases. Christensen v. Hollingsworth
(1898) 6 Ida. 87; 53 Pac. 211; Shields
v. Johnson (1904) 10 Ida. 476; 79 Pac.
391.
Same: — Unauthorized Reference: In
an action at law the parties are enti-
tled as of right to a trial by jury, and
the court cannot refer the case
against the objection of a party even
though it requires the examination of
a long account. Russell v. Alt (1907)
12 Ida. 789; 88 Pac. 416.
Same — Law Issues in Equitable Ac-
tions: In an action to enforce a me-
chanic's or laborer's lien, where it is
shown by counter-claim or cross-com-
plaint, that there is a demand for af-
firmative relief, either party is entitled
to a jury trial on that issue if it is in
the nature of an action at law. Rob-
ertson v. Moore (1904) 10 Ida. 115; 77
Pac. 218. Where a suit is brought in
equity, and a cross action at law is in-
terposed, either party is entitled to a
jury trial of the issues raised by the
cross action. Lindstrom v. Hope Lbr.
Co. (1906) 12 Ida. 714; 88 Pac. 92.
Prosecutions Only by Indictment or Information.
Sec. 8. No person shall be held to answer for any felony or crim-
inal offense of any grade, unless on presentment or indictment of a
grand jury or on information of the public prosecutor, after a com-
mitment by a magistrate, except in cases of impeachment, in cases
cognizable by probate courts or by justices of the peace, and in cases
arising in the militia when in actual service in time of war or public
danger: Provided, That a grand jury may be summoned upon the
order of the District Court in the manner provided by law : and, Pro-
vided further, That after a charge has been ignored by a grand jury,
no person shall be held to answer or for trial therefor upon infor-
mation of the public prosecutor.
Cited: State v. Braithwaite (1891)
3 Ida. 119; 27 Pac. 731; State v. Far-
ris (1897) 5 Ida. 666; 51 Pac. 772.
Provisions Self Executing: This
section is self executing; is complete
in itself and needs no further legis-
lation to put it into effect. Davis v.
Burke (1900) 21 Sup. Ct. Rep. 210;
179 U. S. 399; 45 S. C. R. (Law ed.)
249.
Preliminary Examination — Waiver :
The right of preliminary examination
is a right given to every one accused
of crime, but this right may be waived
unless prohibited by law. State v.
Larkins (1897) 5 Ida. 200; 47 Pac.
945.
Order for Grand Jury: This sec-
tion is not infringed by Laws 1891,
186, Sec. 7, which authorizes a Dis-
trict Judge sitting in chambers, to
make an order for the calling of a
grand jury. State v. Barber (1907)
13 Ida. . . ; 88 Pac, 418.
Freedom of Speech.
Sec. 9. Every person may freely speak, write and publish on all
subjects, being responsible for the abuse of that liberty.
Right of Assembly.
Sec. 10. The people shall have the right to assemble in a peace-
able manner to consult for their common good; to instruct their
DECLARATION OF RIGHTS
81
representatives, and to petition the Legislature for the redress of
grievances.
Right to Bear Arms.
Sec. 11. The people shall have the right to bear arms for their
security and defense; but the Legislature shall regulate the exercise
of this right by law.
Legislative Regulation: The Leg-
islature may regulate the exercise of
the right to carry arms but may not
prohibit it, and a statute which at-
tempts to prohibit, in any manner,
the carrying of arms in cities, is void.
In re Brickey (1902) 8 Ida. 597; 70
Pac. 609.
Military Subordinate to Civil Power.
Sec. 12. The military shall be subordinate to the civil power; and
no soldier in time of peace shall be quartered in any house without
the consent of its owner, nor in time of war except in the manner
prescribed by law.
Guaranties in Criminal Actions and Due Process of Law.
Sec. 13. In all criminal prosecutions, the party accused shall have
the right to speedy and public trial ; to have the process of the court
to compel the attendance 'of witnesses in his behalf, and to appear
and defend in person and with counsel.
No person shall be put twice in jeopardy for the same offense; nor
be compelled in any criminal case to be a witness against himself,
nor be deprived of his life, liberty or property without due process of
law.
Cited: State v. Mulkey (1899) 6
Ida. 617; 59 Pac. 17.
Rights of Accused: The Constitu-
tional rights of one accused of crime
are not violated by permitting the
use of depositions taken in the pres-
ence of the accused where the wit-
ness, by reason of death or other good
cause, can not be produced on the
Trial. Territory v. Evans (1890) 2
Ida. 651; 23 Pac. 232.
A defendant in a criminal case who
voluntarily takes the stand in his own
behalf may be cross examined on the
facts in issue. State v. Larkins
(1897) 5 Ida. 200; 47 Pac. 945.
Due Process of Law: The guaran-
ty of due process of law is not vio-
lated by an act which authorizes the
summary seizure and destruction of
gambling devices incapable of use for
any purpose except in violation of the
gambling law, as such devices are not
property within the meaning of this
section. Mullen & Co. v. Moseley
(1907) 13 Ida. ...; 90 Pac. 987.
The right to due process of law re-
quires, as a condition precedent to a
judicial determination affecting the
right to life, liberty or property, that
personal service of process be ob-
tained when practicable; constructive
service can only be provided for when
actual service is impracticable. Bear
Lake Co. v. Budge (1904) 9 Ida. 703;
75 Pac. 614.
Section 34 of laws 1903, 223,
relative to the distribution of water
and adjudication of water rights,
which authorizes a suit for adjudica-
tion of water rights to be brought
against "all claimants of a right
to the use of water" of the stream
in question, without naming the
defendants, or requiring any effort
for personal service on such de-
fendants as might be found, denies
to such defendants due process of
law, and is unconstitutional on that
ground. lb.
Right of Eminent Domain.
Sec. 14. The necessary use of lands for the construction of res-
ervoirs or storage basins, for the purposes of irrigation, or for the
rights of way for the construction of canals, ditches, flumes or pipes to
convey water to the place of use, for any useful, beneficial or neces-
82
CONSTITUTION OF IDAHO
sary purpose, or for drainage; or for the drainage of mines, or the
working thereof, by means of roads, railroads, tramways, cuts, tun-
nels, shafts, hoisting works, dumps, or other necessary means to their
complete development, or any other use necessary to the complete de-
velopment of the material resources of the State or the preservation
of the health of its inhabitants, is hereby declared to be a public use,
and subject to the regulation and control of the State.
Private property may be taken for public use, but not until a just
compensation, to be ascertained in a manner prescribed by law, shall
be paid Iherefor.
Cited: Ida. etc. Tel. Co. v. O. S.
L. Ry. (1901) 8 Ida. 175; 67 Pac.
318; Baillie v. Larson (1905) 138 Fed.
Rep. 177.
Xot Self -Executing: While the
provisions of this section are not self-
executing-, or, in other words, do not
furnish the procedure by which the
power may be exercised, such pro-
cedure has been prescribed by the
Legislature. Potlatch Lbr. Co. v. Pe-
terson (1906) 12 Ida. 769; 88 Pac.
426.
Extent of Right: This section de-
clares the purposes for which the
power of eminent domain may be ex-
ercised, and the Legislature can not
prohibit its exercise for any of the
purposes therein specified. lb.
Purposes for Which Authorized:
The furnishing of electricity for light-
ing, transportation, power and other
purposes, is a public use for which
land may be taken. Hollister v. State
(1903) 9 Ida. 8; 71 Pac. 541.
The lumbering interest of the State
is one of its material resources in be-
half of which the power of eminent
domain may be invoked. Potlatch
Lbr. Co. v. Peterson (1906) 12 Ida.
769; 88 Pac. 426.
The necessary use of lands for the
complete development of the material
resources of the State is declared to
be a public use, and in determining
what is a public use the general wel-
fare and benefit of the public is to be
taken into consideration. The term,
"public use," means public usefulness
and productive of general benefit. The
term is a flexible one and grows as
new public uses are developed so as
to make it capable of meeting new
conditions and improvements of the
ever increasing necessities of society.
lb.
This section recognizes the right of
the Legislature to provide for laying
out private roads or pentways for the
use of any one who may desire to use
them as provided for in Revised Stat-
utes, Sec. 933. Latah Co. v. Peterson
(1892) 3 Ida. 398; 29 Pac. 1089. The
owner of land is guaranteed the right
to have opened a private road giving
him access to the highway. Latah
Co. v. Hasfurther (1907) 12 Ida. 797;
88 Pac. 433.
Imprisonment for Debt Prohibited.
Sec. 15. There shall be no imprisonment for debt in this State
except in cases of fraud.
Bills of Attainder, Etc., Prohibited.
Sec. 16. No bill of attainder, ex post facto law, or law impairing
the obligation of contracts, shall ever be passed.
Test Oath: The Act of Feb. 25,
1891, prescribing a test oath as a con-
dition of suffrage is not an ex post
facto law or bill of attainder within
the prohibitions of this section. Shep-
herd v. Grimmett (1892) 3 Ida. 403;
31 Pac. 793.
Unreasonable Searches and Seizures Prohibited.
Sec. 17. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures
shall not be violated; and no warrant shall issue without probable
cause shown by affidavit, particularly describing the place to be
searched and the person or thing to be seized.
Cited: State v. Mulkey (1899) 6
Ida. 617; 59 Pac. 17; Mullen & Co. v.
Mosley (1907) 13 Ida. ; 90 Pac.
987.
DISTRIBUTION OF POWERS
83
Justice to Be Freely and Speedily Administered.
Sec. 18. Courts of justice shall be open to every person, and a
speedy remedy afforded for every injury of person, property or char-
acter, and right and justice shall be administered without sale, denial,
delay or prejudice.
Cited: (concur, op.) Heitman v.
Morgan (1905) 10 Ida. 562; 79 Pac.
225.
Allowance of Attorney's Fees: This
provision is not violated by that part
of the mechanic's lien law of 1899
which authorizes a recovery of a rea-
sonable attorney's fee. Thompson v.
Wise Boy Min. Co. (1903) 9 Ida. 363;
74 Pac. 958.
Prejudice of Judge: This section
is self-acting and self-executing- and
cannot be nullified by the legislature
either by its neglect to act on the sub-
ject, or by positive legislation, and
the prejudice of the trial judge
against one of the parties to a cause
is ground for a change of venue in
view of the provisions of this section,
although the statutes do not enum-
erate that cause as one of the grounds
for a change of venue. (Stockslager,
C. J. dissents) Day v. Day 12 Ida.
556; 86 Pac. 531.
Right of Suffrage Guaranteed.
Sec. 19. No power, civil or military, shall at any time interfere
with or prevent the free and lawful exercise of the right of suffrage.
No Property Qualification Required of Electors.
Sec. 20. No property qualification shall ever be required for any
person to vote or hold office except in school elections or elections cre-
ating indebtedness.
Municipal Bond Elections: This
section authorizes the imposition, in
a municipal charter, of a property
qualification on the right to vote on
a proposition for the incurrence of
an indebtedness. Wiggin v. City of
Lewiston (1902) 8 Ida. 5 27; 69 Pac.
286.
Reserved Rights Not Impaired.
Sec. 21. This enumeration of rights shall not be construed to im-
pair or deny other rights by the people.
ARTICLE 2.
DISTRIBUTION OF POWERS.
Section
1. Departments of government.
Departments of Government.
Sec. 1. The powers of the government of this State are divided
into three distinct departments, the legislative, executive and judicial ;
and no person or collection of persons charged with the exercise of
powers properly belonging to one of these departments, shall exercise
any powers properly belonging to either of the others, except as in
this Constitution expressly directed or permitted.
Power of Appointment: This sec-
tion is not infringed by Laws 1899,
345, which empowers the Governor
to appoint a State Board of Medical
Examiners, and to fill vacancies in
the board, without the consent of the
Senate. In re Inman (1902) 8 Ida.
398; 69 Pac. 120.
Limitation on Judiciary: The judi-
cial department can not attempt to
prohibit either of the other depart-
ments of government from acting
within the recognized scope of their
respective branches of the govern-
ment, but may inquire into the legal
effect of such action after it has been
taken. Stein v. Morrison (1904) 9
Ida. 426; 75 Pac. 246.
84
CONSTITUTION OF IDAHO
ARTICLE 3.
LEGISLATIVE DEPARTMENT.
Section
Section
1.
Legislative power enacting
14.
Origin and amendment of bills.
clause.
15.
Manner of passing bills.
2.
Membership of House and Sen-
16.
Unity of subject and title.
ate.
17.
Technical terms to be avoided.
3.
4.
Term of office.
Apportionment of Legislature.
18.
Amendments to be published in
full.
5.
Senatorial and Representative
districts.
19.
Local and special laws prohib-
ited.
6.
Qualifications of members.
20.
Lotteries not to be authorized.
7.
Privilege from arrest.
21.
Signature of bills and resolu-
8.
Sessions of Legislature.
tions.
9.
Powers of each house.
22.
When Acts take effect.
10.
Quorum, adjournments, and or-
ganization.
23.
Compensation and mileage of
members.
11.
12.
13.
Expulsion of members.
Secret sessions prohibited.
Journal.
24.
25.
Promotion of temperance and
morality.
Oath of office.
Legislative Power: Enacting Clause.
Sec. 1. The legislative power of the State shall be vested in a Sen-
ate and House of Representatives. The enacting clause of every bill
shall be as follows : "Be it enacted by the Legislature of the State of
Idaho."
Cited: People v. Alturas Co. (1899)
6 Ida. 418; 55 Pac. 1067.
Membership of House and Senate.
Sec. 2. The Senate shall consist of eighteen members and the
House of Representatives of thirty-six members. The Legislature
may increase the number of Senators and Representatives: Pro-
vided, The number of Senators shall never exceed twenty-four, and
the House of Representatives shall never exceed sixty members. The
Senators and Representatives shall be chosen by the electors of the
respective counties or districts into which the State may from time to
time be divided by law.
Term of Office.
Sec. 3. The Senators and Representatives shall be elected for the
term of two years, from and after the first day of December next fol-
lowing the general election.
Apportionment of Legislature.
Sec. 4. The members of the first Legislature shall be apportioned
to the several legislative districts of the State in proportion to the
number of votes polled at the last general election for Delegate to
Congress, and thereafter to be apportioned as may be provided by
law: Provided, Each county shall be entitled to one Representative.
Apportionment Acts: Laws 1891,
19 5, which, in providing- for the ap-
portionment of the Legislature, ac-
corded representation to two counties
created by an Act subsequently de-
clared to be unconstitutional, and
omitted to provide representation for
the counties from which the two ere-
LEGISLATIVE DEPARTMENT
85
ated counties were organized, is un-
constitutional. Ballentine v. Willey
(1893) 3 Ida. 496; 31 Pac. 994.
An Act creating- a new county is
not unconstitutional on the theory
that it deprives the electors of the
new county of the representation to
which they are entitled by this sec-
tion, as in the absence of a new ap-
portionment act, the electors of the
new county are entitled to a voice in
the election of the Senator and Rep-
resentatives of the county from which
the new county was created, and with
which it previously constituted a leg-
islative district. Sabin v. Curtis (18 93)
3 Ida. 662; 32 Pac. 1130.
Senatorial and Representative Districts.
Sec. 5. A senatorial or representative district, when more than
one county shall constitute the same, shall be composed of contiguous
counties and no county shall be divided in creating such districts.
Application: This section applies to
an apportionment law and not to an
act creating a new county; and, in
any event, such an act is not obnox-
ious to this provision where the coun-
ty so created is within the same sen-
atorial and representative districts in
which its territory was situated prior
to its creation. Sabin v. Curtis (1893)
3 Ida. 662; 32 Pac. 1130.
Qualifications of Members.
Sec. 6. No person shall be a Senator or Representative who at the
time of his election is not a citizen of the United States and an elector
of this State, nor anyone who has not been for one year next preced-
ing his election an elector of the county or district whence he may be
chosen.
Privilege from Arrest:
Sec. 7. Senators and Representatives, in all cases except for trea-
son, felony, or breach of the peace, shall be privileged from arrest dur-
ing the session of the Legislature, and in going to and returning from
the same, and shall not be liable to any civil process during the ses-
sion of the Legislature, nor during the ten days next before the com-
mencement thereof; nor shall a member for words uttered in debate
in either house be questioned in any other place.
Sessions of Legislature.
Sec. 8. The sessions of the Legislature shall, after the first ses-
sion thereof, be held bienially, at the capital of the State, commenc-
ing on the first Monday after the first day of January, and every sec-
ond year thereafter, unless a different day shall have been appointed
by law, and at other times when convened by the Governor.
Cited: Goodnight v. Moody (1891)
3 Ida. 7; 26 Pac. 121.
Powers of Each House.
Sec. 9. Each house when assembled shall chose its own officers,
judge of the election, qualifications, and returns of its own members,
determine its own rules of proceeding, and sit upon its own adjourn-
ments ; but neither house shall, without the concurrence of the other,
adjourn for more than three days, nor to any other place than that
in which it may be sitting.
Construction: The provision of
this section that each house is to de-
termine its own rules of procedure, is
not a controlling provision of the
Constitution and is not to be taken
literally, but is to be construed in
connection with Art. 3, Sec. 15. Cohn
v. Kingsley (1897) 5 Ida. 416; 49 Pac.
985.
86
CONSTITUTION OF IDAHO
Quorum, Adjournments and Organization.
Sec. 10. A majority of each house shall constitute a quorum to
do business, but a smaller number may adjourn from day to day, and
may compel the attendance of absent members in such manner and
under such penalties as such house may provide. A quorum being
in attendance, if either house fail to effect an organization within the
first four days thereafter, the members of the house so failing shall
be entitled to no compensation from the end of the said four days
until an organization shall have been effected.
Expulsion of Members.
Sec. 11. Each house may, for good cause shown, with the concur-
rence of two-thirds of all the members, expel a member.
Secret Sessions Prohibited.
Sec. 12. The business of each house, and of the committee of the
whole, shall be transacted openly and not in secret sessions.
Journal.
Sec. 13. Each house shall keep a journal of its proceedings; and
the yeas and nays of the members of either house on any question,
shall at the request of any three members present, be entered on the
journal.
Contents of Journal: The journal
of both houses of the Legislature
must affirmatively show that the pro-
visions of the Constitution were sub-
stantially followed by the Legislature
in the passage of an Act, the validity
of which is questioned. Cohn v.
Kingsley (1897) 5 Ida. 416; 49 Pac.
985. And the failure of the journal
to show compliance with the Consti-
tution is conclusive evidence of non-
compliance, lb.
A vote on the final passage of any
bill, or on the suspension of the pro-
vision of the Constitution which re-
quires the reading of bills on three
several days, or on the expulsion of
a member, whether demanded by
three members or not, must be by
yeas and nays, and entered in the
journal. lb. Sullivan, C. J., dis-
sents from these propositions and
holds that only such matters as are
expressly required by the Constitu-
tion to be entered in the journal need
be so entered; that the yea and nay
vote need not be entered unless re-
quested by three members, and that
a law is not invalid because of the
journal's failure to show compliance
with Constitutional provisions not re-
quired to be entered on the journal,
lb.
Conclusiveness of Journal: The
court will not go behind the journal
of the Legislature to ascertain what
is done by that body; the journal it-
self is conclusive, and if incorrectly
or improperly made up, it is for the
Legislators and not for the court, to
correct the same. Burkhart v. Reed
(1889) 2 Ida. 503; 22 Pac. 1. The
journal is not only the best, but the
exclusive evidence of what was done
by the Legislature in passing bills,
and absolute verity will be imputed
thereto by the courts. Cohn v.
Kingsley (1897) 5 Ida. 416; 49 Pac.
985.
Consideration by Court: The court
may go back of the enrolled bill and
examine the journals of the respective
houses of the Legislature in order to
ascertain whether the requirements of
the Constitution were obeyed in the
passage of an act which is questioned.
lb.
Before a court will assume to pass
upon the constitutionality of the en-
actment of a statute by the Legisla-
ture, it must have before it a copy
of the original journals showing the
whole record of the enactment, duly
certified by the Secretary of State;
the want of such journal cannot be
supplied by stipulation of counsel.
State v. Boise (1897) 5 Ida. 519; 51
Pac. 110.
Origin and Amendment of Bills.
Sec. 14. Bills may originate in either house, but may be amended
or rejected in the other, except that bills for raising revenue shall
originated in the House of Representatives.
LEGISLATIVE DEPARTMENT
87
Cited: Cohn v. Kingsley (1897) 5
Ida. 416; 49 Pac. 985.
Passage of Amendments: The fact
that the House amended the title to
a bill, and then failed to return the
bill to the Senate for its concurrence
in the amendment, but referred the
same to the committee on enrollment,
and that it was thereupon presented
to the Governor for his approval, does
not render the act void, where the
amendment to the title consisted
merely in striking- out a certain clause
applicable to a portion of the act
which had been left out by the Sen-
ate amendments, afterwards con-
curred in by the House, and which
did not appear in the Act as finally
passed. State v. Doherty (1892) 3 Ida.
384; 29 Pac. 855.
Manner of Passing Bills.
Sec. 15. No law shall be passed except by bill, nor shall any bill
be put upon its final passage until the same, with the amendments
thereto, shall have been printed for the use of the members ; nor shall
any bill become a law unless the same shall have been read on three
several days in each house previous to the final vote thereon: Pro-
vided, In case of urgency, two-thirds of the house where such bill
may be pending may, upon a vote of the yeas and nays, dispense with
this provision. On the final passage of all bills they shall be read
at length, section by section, and the vote shall be by yeas and nays
upon each bill separately, and shall be entered upon the journal; and
no bill shall become a law without the concurrence of a majority of
the members present.
Cited: Aldeman v. Pierce (1898)
6 Ida. 294; 55 Pac. 658; Jack v. Vil-
lage of Grangeville (1903) 9 Ida. 291;
74 Pac. 969.
Application — Constitutional Amend-
ments: The power of the Legisla-
ture to propose amendments to the
Constitution is not governed by the
provisions of this section. Hays v.
Hays (1897) 5 Ida. 154; 47 Pac. 732.
Passage of Amended Bills: A bill,
within the contemplation of the Con-
stitution, means a draft of a proposed
law and nothing else, and includes all
amendments which are incorporated
therein up to the time of its passage.
Therefore, amendments, when offered
and accepted, must be printed with
the bill, and the whole bill as amend-
ed must be read on three several days.
Cohr v. Kingsley (1897) 5 Ida. 416;
49 Pac. 985. Sullivan, C. J., dissents
and holds that amendments to a bill
need not be read on three several
days in each house, as required in
case of bills by this section. lb.
A bill which passes one house, and
which is materially changed by
amendment by the other house, and
then sent back to the house where it
originated, must go through the same
procedure as to reading and final vote
as if it were an original bill. The
mere declaration that "we concur in
the house amendments" does not an-
swer the requirements of the Consti-
tution, lb.
Application of Proviso: The pro-
viso to this section applies only to
the last clause preceding the proviso,
and it does not authorize the Legisla-
ture to dispense with the introduction
of a proposed law by bill, nor with
printing the bill, but simply author-
izes it to dispense with the necessity
of taking six days for the passage of
a bill, and to pass the same in one
day, in case of urgency requiring
such action. lb.
The constitutional provision requir-
ing the printing and reading of bills
on three several days is mandatory,
and such readings cannot be dis-
pensed with except in "case of urgen-
cy" and then only on an aye and nay
vote by two-thirds of the house vot-
ing with reference to only one bill
before it; the provision can not be
suspended generally. lb.
The Legislature has no power to
dispense with the final reading of the
bill, section by section, and an act
not read section by section at least
on the final reading, is void. Brown
v. Collister (1897) 5 Ida. 589; 51 Pac.
417.
Unity of Subject and Title.
Sec. 16. Every Act shall embrace but one subject and matters
properly connected therewith, which subject shall be expressed in the
title; but if any subject shall be embraced in an Act which shall not
be expressed in the title, such Act shall be void only as to so much
thereof as shall not be embraced in the title.
88
CONSTITUTION OF IDAHO
Cited: State v. Mulkey (1899) 6
Ida. 617; *9 Pac. 17.
Application to Constitutional
Amendments: It is not essential that
the subject of the proposed constitu-
tional amendment should be ex-
pressed in its title. A proposed
amendment need not have any title
except that it should designate the
article of the Constitution to be
amended. Hays v. Hays (1897) 5 Ida.
154; 47 Pac. 732.
General Construction : The gener-
ality of a title to a bill is no objec-
tion to it, so long as it is not made a
cover to legislation incongruous in
itself, which, by no fair intendment,
can be considered as having a neces-
sary or proper connection with it.
Pioneer Irr. Dist. v. Bradley (1902)
8 Ida. 310; 68 Pac. 295.
The courts must give a liberal con-
struction to the language used by the
Legislature in framing the title to any
given Act which it may pass. Turn-
er v. Coffin (1903) 9 Ida. 338; 74 Pac.
962.
The intention of this provision was
to require a title sufficiently definite
and comprehensive to indicate, to one
reading it, the general scope and pur-
pose of the legislation intended by the
act, and if the title be sufficient for
that purpose, it will be held to include
all necessary and incidental legisla-
tion required to make the general
purpose of the act operative. lb.
Sufficient Titles. A title reading:
"To amend section 3604 (concerning
issue of bonds by counties for certain
purposes in excess of the income or
revenue of the county for the year)
in section 1 of an Act of the Legisla-
ture of the State of Idaho entitled, 'An
Act providing for the issuance of ne-
gotiable coupon bonds for the fund-
ing and refunding of county indebt-
edness, amending chapter 6, title 13,
Revised Statutes of Idaho, approved
February 7, 1899,' by adding thereto
authority to issue bonds to assist any
city or village in constructing a free
bridge over any navigable stream,
within, or partly within, or adjoin-
ing the limits of any such city or
village," sets forth the subject, ob-
ject or purpose of the act sufficiently.
Andrews v. Board of Commrs. of Ada
Co. (1900) 7 Ida. 453; 63 Pac. 592.
Laws 1901, 91, the title to which
is, in substance, "An Act to amend
certain sections of an Act to provide
for the organization and government
of irrigation districts and to amend
certain sections of an Act providing
for a State Engineer," while it covers
subjects which had previously been
segregated into distinct acts by the
Legislature, yet relates solely to
the one general subject of irrigation
which might have been covered by a
single Act, is not repugnant to this
section. (Quarles, C. J., dissents.)
Pioneer Irr. Dist. v. Bradley - (1902)
8 Ida. 310; 68 Pac. 295.
An Act entitled, "An Act to amend
section 1645 of the Revised Statutes
of Idaho, as amended by Act ap-
proved February 16, 18 99," is suffi-
cient. State v. Jones (1904) 9 Ida.
693; 75 Pac. 819.
Laws 19 03, 223, providing for the
appropriation, diversion and adjudi-
cation of the rights to the use of all
the waters in the State running in
the natural channel of streams, and
which contemplates that all such wa-
ters are "public waters," private rights
therein being simply rights to the
use of the same and not an owner-
ship in them, is sufficiently indicated
by its title, which is: "An Act to reg-
ulate the appropriation and diversion
of the 'Public Waters' of the State."
Boise Irr. etc. Co. v. Stewart (1904)
10 Ida. 38; 77 Pac. 25, 321.
The subject of the Act of March 9,
1903, amending the charter of the city
of Lewiston, is sufficiently expressed
by the title: "An Act to amend an
Act entitled, 'An Act to amend the
charter of the city of Lewiston, ap-
proved February 9, 1881,' and to
amend an Act entitled (designating
the several Acts affecting and amend-
ing the charter of said city) and es-
tablishing a new and complete char-
ter for said city." Butler v. City of
Lewiston (1905) 11 Ida. 393; 83 Pac.
234.
The irrigation law of March 9, 1903,
is sufficiently covered by its title,
which is, "An Act relating to irriga-
tion districts and to provide for the
organization thereof, and to provide
for the acquisition of water and other
property, and for the distribution of
water thereby for irrigation purposes,
and for other and similar purposes."
Nampa, etc. Irr. Dist. v. Brose (1905)
11 Ida. 474; 83 Pac. 499.
A title, "An Act to amend section
24 of an Act entitled, 'An Act to pro-
vide for the organization, government
and powers of cities and villages, ap-
proved February 10, 18 99," the body
of the Act purporting to amend the
section referred to in- the title, is suf-
ficient. School Dist. No. 2 7 v. Vil-
lage of Twin Falls (1907) 13 Ida...;
90 Pac. 735.
Insufficient Titles: An Act entitled,
"An Act providing for the apportion-
ment of the Legislature," and which
purports to provide for such appor-
tionment among all the supposed ex-
isting counties of the State, can not
be sustained after certain of the
counties for which it provided the ap-
portionment have been declared non-
existant by the Supreme Court, be-
cause of the unconstitutionality of the
law purporting to create them. Bal-
lentine v. Willey (1893) 3 Ida. 496;
31 Pac. 994.
The act of March 4, 1903, Laws
(1903, 375) the title to which is
LEGISLATIVE DEPARTMENT
89
"An Act to provide for the care and
keeping- of moneys in the custody of
the Treasurer of the State of Idaho,"
and the general purpose of which is
to secure interest on State moneys by
depositing the same in banks out of
the custody of the Treasurer, is void
under this section. Turner v. Coffin
(1903) 9 Ida. 388; 74 Pac. 962.
An Act entitled, "An Act relating
to foreign corporations doing business
in the State of Idaho," is in violation
of this section, where the body there-
of purports to relieve foreign corpo-
rations from the penalties and for-
feitures incurred by them in trans-
acting business within the State in
violation of law. Katz v. Herrick
(1906) 12 Ida. 1; 86 Pac. 873.
Laws 1903, 346, the title to
which purports to prohibit the sale
of liquor near public works and grad-
ing camps, but the body of which
does not prohibit such sale, but under-
takes to regulate it, is repugnant to
this section. Gerding v. Board of
Commrs. of Idaho Co. (1907) 13 Ida.
. . . ; 90 Pac. 357.
Unity of Subject: The objection
should be grave, and the conflict be-
tween the Constitution and the Stat-
ute palpable, before the judiciary
should hold a legislative enactment
unconstitutional upon the sole ground
that it embraces more than one sub-
ject. Pioneer Irr. Dist. v. Bradley
(1902) 8 Ida. 310; 68 Pac. 295.
The object of this section was to
prohibit combining in one bill sub-
jects diverse in their nature and hav-
ing no necessary connection. It was
not intended to prevent the incorpo-
ration into a single act of the entire
statutory law upon one general sub-
ject. And if the provisions of an act
all relate directly or indirectly to the
same subject, have a natural connec-
tion therewith and are not foreign
to the subject expressed in the title,
they are properly united in a single
act, however numerous such provi-
sions may.be. lb.
If two separate bills are passed by
the Legislature on the same general
subject, and with differently worded
titles, said acts may be amended by
one bill, with a proper title. But if
the title contains two distinct sub-
jects, and both the subjects are legis-
lated upon in the body of the act, the
act is absolutely void. lb.
Those portions of acts passed by
the Legislature which are not in-
cluded or embraced within the title
of such acts are void. Cohn v.
Kingsley (1897) 5 Ida. 416; 49 Pac.
985.
Technical Terms to be Avoided.
Sec. 17. Every Act or Joint Resolution shall be plainly worded,
avoiding as far as practicable the use of technical terms.
Amendments to be Published in Full.
Sec. 18. No Act shall be revised or amended by mere reference
to its title, but the section as amended shall be set forth and published
at full length.
Cited: (Concur. op.) Green v.
State Board Canvassers (1896) 5 Ida.
130; 47 Pac. 259.
Application: This section has no
application to repeals either express
or implied, but only to revisions and
amendments. Noble v. Bragaw
(1906) 12 Ida. 265; 85 Pac. 903.
Object of Section: The object of
this provision is to prevent obscurity,
confusion and uncertainty in the law;
it deals with such amendments as
change the application, force or ef-
fect of an act; the act of the first
State Legislature changing the Words
"territory" to "state" and "comptrol-
ler" to "auditor" is not repugnant to
this section. Gilbert v. Moody (1891)
3 Ida. 3; 25 Pac. 1092.
Setting Out Amendments: This
section does not require the whole
chapter of which the amended sec-
tion is a part, to be set forth at full
length, but only requires the section
amended to be set out although,
standing alone, the amended section
is not sufficient to indicate its pur-
pose. State v. Jones (1904) 9 Ida.
693; 75 Pac. 819. The whole act
containing the section amended need
not be republished in full, but only
the section amended need be repub-
lished. Noble v. Bragaw (1906) 12
Ida. 265; 85 Pac. 903.
Construction of Related Acts: Two
or more laws relating to the same
subject or to different parts of the
same subject, are not necessarily
amendatory to each other, within the
meaning of this section, although
they may be construed in pari ma-
teria, lb.
Laws 1905, 39, Sec. 39, which re-
peals such sections of the sheep in-
spection law of 1901 as create the
office of sheep inspector and deputy
sheep inspectors, but continues in
force the remainder of the act of
1901, and requires the State veteri-
nary surgeon and live stock inspec-
tors, provided for in said act of 1905,
to perform the duties imposed on the
sheep inspector and his deputies by
the act of 1901, is not in violation of
this section. lb.
90 CONSTITUTION OF IDAHO
Local and Special Laws Prohibited.
Sec. 19. The Legislature shall not pass local or special laws in any
of the following enumerated cases, that is to say :
Regulating the jurisdiction and duties of justices of the peace and
constables.
For the punishments of crimes and misdemeanors.
Regulating the practice of the courts of justice.
Providing for a change of venue in civil or criminal actions.
Granting divorces.
Changing the names of persons or places.
Authorizing the laying out, opening, altering, maintaining, work-
ing on, or vacating roads, highways, streets, alleys, town plats, parks,
cemeteries, or any public grounds not owned by the State.
Summoning and impaneling grand and trial juries, and providing
for their compensation.
Regulating county and township business, or the election of coun-
ty and township officers.
For the assessment and collection of taxes.
Providing for and conducting elections, or designating the place
of voting.
Affecting the estates of deceased persons, minors, or other persons
under legal disabilities.
Extending the time for collection of taxes.
Giving effect to invalid deeds, leases or other instruments.
Refunding money paid into the State Treasury.
Releasing of extinguishing, in whole or in part, the indebtedness,
liability or obligation of any person or corporation in this State, or
any municipal corporation therein.
Declaring any person of age, or authorizing any minor to sell,
lease or incumber his or her property.
Legalizing as against the State the unauthorized or invalid act of
any officer.
Exempting property from taxation.
Changing county seats, unless the law authorizing the change
shall require that two-thirds of the legal votes cast at a general or
special election shall designate the place to which the county seat shall
be changed: Provided, That the power to pass a special law shall
cease as long as the Legislature shall provide for such change by
general law: Provided further, That no special law shall be passed
for any one county oftener than once in six years.
Restoring to citizenship persons convicted of infamous crimes.
Regulating the interest on money.
Authorizing the creation, extension or impairing of liens.
Chartering or licensing ferries, bridges or roads.
Remitting fines, penalties or forfeitures.
Providing for the management of common schools.
Creating offices or prescribing the powers and duties of officers
in counties, cities, townships, election districts or school districts,
except as in this Constitution otherwise provided.
Changing the law of descent or succession.
Authorizing the adoption or legitimization of children.
For limitation of civil or criminal actions.
LEGISLATIVE DEPARTMENT
91
Creating any corporation.
Creating, increasing or decreasing fees, percentages, or allow-
ances of public officers during the term for which said officers are
elected or appointed.
Cited: Wiggin v. City of Lewiston
(1902) 8 Ida. 527; 69 Pac. 286.
Scope of Prohibition: This sec-
tion prohibits the enactment of local
or special laws on the subjects there-
in enumerated, but leaves the Legis-
lature master of its own discretion in
passing special laws on subjects not
prohibited by the Constitution. But-
ler v. City of Lewiston (1905) 11 Ida.
393; 83 Pac. 234. Thus the Legisla-
ture may amend by special law the
charter of a pre-existing city so long
as the amendments are germane with
the objects of the charter. lb.
Laws Concerning- Crimes: The act
of 1897 prohibiting gambling, if con-
strued so as to make an act lawful
in one part of the State which is, in
another part, made a misdemeanor,
would be a local or special law and
unconstitutional. In re Ridenbaugh
(1897) 5 Ida. 371; 49 Pac. 12.
Regulations of Practice: Section
34 of Laws 1903, 223, relative to
the distribution of water and adju-
dication of water rights, which au-
thorizes a suit for adjudication of wa-
ter rights to be brought against "all
claimants of a right to the use of the
water" of the stream in question,
without naming the defendants or re-
quiring any effort for personal ser-
vice on such defendants as might be
found, is special legislation regulating
practice, and is repugnant to this sec-
tion. Bear Lake Co. v. Budge (1904)
9 Ida. 703; 75 Pac. 614.
Laws 1903, 223, providing for the
appropriation, diversion and adjudi-
cation of the rights to the use of the
waters of the State, and which con-
tains certain peculiar provisions as
to the duties of the State engineer,
the apportionment of costs, the prep-
aration and use of maps as evidence,
etc., in proceedings for the adjudi-
cation of water rights, is not repug-
nant to subdivision 3 of this section,
which prohibits local laws regulating
practice. (Stockslager, J., dissents)
Boise Irr. etc. Co. v. Stewart (1904)
10 Ida. 38; 77 Pac. 25, 321.
Regulation of Counties: The Leg-
islature, in creating a new county,
may provide for the appointment by
the Governor of county officers to
hold office until the first biennial elec-
tion after the creation of the county.
Sabin v. Curtis (1893) 3 Ida. 662; 32
Pac. 1130.
An act creating a new county and
apportioning the indebtedness of the
original county and the new county,
does not violate the requirement of
this section which prohibits the Leg-
islature from framing local laws reg-
ulating county and township business.
Bannock Co. v. Bunting (1894) 4 Ida.
156; 37 Pac. 277.
Lotteries Not to be Authorized.
Sec. 20. The Legislature shall not authorize any lottery or gift
enterprise under any pretense or for any purpose whatever.
Signature of Bills and Resolutions.
Sec. 21. All bills or joint resolutions passed shall be signed by the
presiding officers of the respective houses.
When Acts Take Effect.
Sec. 22. No Act shall take effect until sixty days from the end of
the session at which the same shall have been passed, except in case
of emergency, which emergency shall be declared in the preamble or
in the body of the law.
Cited: Shoshone Co. v. Thomp-
son (1905) 11 Ida. 130; 81 Pac. 73.
Compensation and Mileage of Members.
Sec. 23. Each member of the Legislature shall receive for his ser-
vices a sum not exceeding five dollars per day from the commence-
ment of the session, but such pay shall not exceed for each member,
except the presiding officer, in the aggregate, three hundred dollars
92
CONSTITUTION OF IDAHO
for per diem allowances for any one session; and shall receive each
the sum of ten cents per mile each way by the usual traveled route.
When convened in extra session by the Governor, they shall each
receive five dollars per day ; but no extra session shall continue for a
longer period than twenty days, except in case of the first session of
the Legislature. They shall receive such mileage as is allowed for
regular sessions. The presiding officers of the Legislature shall each
in virtue of his office receive an additional compensation equal to one-
half his per diem allowance as a member : Provided, That whenever
any member of the Legislature shall travel on a free pass in coming
to or returning from the session of the Legislature, the number of
miles actually traveled on such pass shall be deducted from the mile-
age of such member.
Application: This section, which
limits the compensation of members
of the Legislature to $300 for any one
session, applies to the regular bienni-
al sessions of the Legislature, and does
not apply to the first session directed
by Art. 21, Sec. 14, to be called by
the Governor immediately upon his
qualification and assumption of du-
ties. (Huston, J., dissents.) Good-
night v. Moody (1891) 3 Ida. 7; 26
Pac. 121.
Promotion of Temperance and Morality.
Sec. 24. The first concern of all good government is the virtue and
sobriety of the people, and the purity of the home. The Legislature
should further all wise and well directed efforts for the promotion of
temperance and morality.
Oath of Office.
Sec. 25. The members of the Legislature shall, before they enter
upon the duties of their respective offices, take or subscribe the fol-
lowing oath or affirmation : "I do solemnly swear (or affirm, as the
case may be) that I will support the Constitution of the United States,
and the Constitution of the State of Idaho, and that I will faithfully
discharge the duties of Senator (or Representative, as the case may
be) according to the best of my ability." And such oath may be ad-
ministered by the Governor, Secretary of State, or Judge of the Su-
preme Court or presiding officer of either house.
ARTICLE 4.
EXECUTIVE DEPARTMENT.
Section
1. Executive officers: term of of-
fice.
Election of officers.
Qualifications of officers.
Governor is commander of mili-
tia.
Supreme executive power vested
in Governor.
Governor to appoint officers.
Board of pardons.
Governor may require reports:
messages to Legislature.
Extra sessions of Legislature.
Veto power.
2.
3.
4.
5.
6.
7.
9.
10.
Section
11. Disapproval
of appropriation
Governor to act as
bills.
12. Lieutenant
Governor.
13. Lieutenant Governor is Presi-
dent of Senate.
14. President pro tempore to act as
Governor.
15. Great seal of the State.
16. Grants and permissions.
17. Accounts and reports of officers.
18. Board of prison commissioners
and examiners.
19. Salaries and fees of officers.
EXECUTIVE DEPARTMENT 93
Executive Officers: Term of Office.
Sec. 1. The executive department shall consist of a Governor,
Lieutenant Governor, Secretary of State, State Auditor, State Treas-
urer, Attorney General and Superintendent of Public Instruction,
each of whom shall hold his office for two years beginning on the
first Monday in January next after his election, except as otherwise
provided in this Constitution. The officers of the executive depart-
ment, excepting the Lieutenant Governor, shall during their terms
of office, reside at the seat of government, where they shall keep
the public records, books and papers. They shall perform such du-
ties as are prescribed by this Constitution and as may be prescribed
by law.
Election of Officers.
Sec. 2. The officers named in section one of this article shall be
elected by the qualified electors of the State at the time and places of
voting for members of the Legislature, and the persons, respectively,
having the highest number of votes for the. office voted for shall be
elected ; but if two or more shall have an equal and the highest num-
ber of votes for any one of said offices, the two houses of the Legis-
lature at its next regular session, shall forthwith, by joint ballot,
elect one of said persons for said office. The returns of election for
the officers named in section one shall be made in such manner as may
be prescribed by law, and all contested elections of the same, other
than provided for in this section, shall be determined as may be pre-
scribed by law.
Qualifications of Officers,
Sec. 3. No person shall be eligible to the office of Governor or
Lieutenant Governor unless he shall have attained the age of thirty
years at the time of his election ; nor to the office of Secretary of
State, State Auditor, Superintendent of Public Instruction, or State
Treasurer, unless he shall have attained the age of twenty-five years ;
nor to the office of Attorney General unless he shall have attained
the age of thirty years, and have been admitted to practice in the
Supreme Court of the State or Territory of Idaho, and be in good
standing at the time of his election. In addition to the qualifications
above described each of the officers named shall be a citizen of the
United States and shall have resided within the State or Territory
two years next preceding his election.
Governor Is Commander of Militia.
Sec. 4. The Governor shall be commander-in-chief of the military
forces of the State, except when they shall be called into actual ser-
vice of the United States. He shall have power to call out the militia
to execute the laws, to suppress insurrection, or to repel invasion.
Supreme Executive Power Vested in Governor.
Sec. 5. The supreme executive power of the State is vested in the
Governor, who shall see that the laws are faithfully executed.
94
CONSTITUTION OF IDAHO
Governor to Appoint Officers.
Sec. 6. The Governor shall nominate and, by and with the con-
sent of the Senate, appoint all officers whose offices are established by
this Constitution, or which may be created by law and whose appoint-
ment or election is not otherwise provided for. If during the recess
of the Senate, a vacancy occurs in any State or district office, the
Governor shall appoint some fit person to discharge the duties thereof
until the next meeting of the Senate, when he shall nominate some
person to fill such office. If the office of a Justice of the Supreme
or District Court, Secretary of State, State Auditor, State Treasurer,
Attorney General, or Superintendent of Public Instruction shall be
vacated by death, resignation or otherwise, it shall be the duty of the
the Governor to fill the same by appointment, and the appointee shall
hold his office until his successor shall be elected and qualified in such
manner as may be provided by law.
is not infringed by Laws 18 99, 3 45,
providing- for the appointment of a
Board of Medical Examiners by the
Governor without the consent of the
Senate. In re Inman (1902) 8 Ida.
398; 69 Pac. 120.
Appointment of Officers: This sec-
tion, in providing for the appointment
of officers by the Governor with the
consent of the Senate, applies only to
officers for whose appointment no
other provision i=; made by law, and
Board of Pardons.
Sec. 7. The Governor, Secretary of State, and Attorney General
shall constitute a board to be known as the Board of Pardons. Said
board, or a majority thereof, shall have the power to remit fines and
forfeitures, and to grant commutations and pardons after conviction
and judgment, either absolutely or upon such conditions as they may
impose, in all cases of offenses against the State except treason or
conviction on impeachment. The Legislature shall by law prescribe
the session of said board and the manner in which application shall be
made and regulate the proceedings thereon ; but no fine or forfeiture
shall be remitted, and no commutation or pardon granted, except by
the decision of a majority of said board, after a full hearing in open
session, and until previous notice of the time and place of such hear-
ing and the release applied for shall have been given by publication
in some newspaper of general circulation at least once a week for
four weeks. The proceedings and decision of the board shall be re-
duced to writing and with their reasons for their action in each
case, and the dissent of any member who may disagree, signed by
him, and filed, with all papers used upon the hearing,, in the office
of the Secretary of State.
The Governor shall have power to grant respites or reprieves in
all cases of convictions for offenses against the State, except treason
or conviction on impeachment, but such resoites or reprieves shall
not extend beyond the next session of the Board of Pardons; and
such board shall at such session continue or determine such respite
or reprieve, or they may commute or pardon the offense, as herein
provided. In cases of conviction for treason the Governor shall
have the power to suspend the execution of the sentence until the
case shall be reported to the Legislature at its next regular session,
when the Legislature shall either pardon or commute the sentence,
direct its execution, or grant a further reprieve. He shall communi-
EXECUTIVE DEPARTMENT
95
cate to the Legislature, at each regular session, each case of remis-
sion of fine or forfeiture, reprieve, commutation or pardon granted
since the last previous report, stating the name of the convict, the
crime of which he was convicted, the sentence and its date, and the
date of remission, commutation, pardon or reprieve, with the rea-
sons for granting the same, and the objections, if any, of any mem-
ber of the board made thereto.
Conditional Pardons: The board
of pardons may attach such condi-
tions as they see fit to pardon, com-
mutation or parole, so long as they
are not immoral, illegal or impossible
of performance, and provided that
they are to be kept or performed, or
complied with, during the term for
which the prisoner was sentenced, but
they can not require a convict who
has broken his parole to undergo im-
prisonment, after the expiration of
the time fixed by the judgment of
conviction for the termination of such
imprisonment, by requiring him to
serve an additional time equal to that
during which he was out on parole.
(Sullivan, J., dissents.) In re Prout
(1906) 12 Ida. 494; 86 Pac. 275.
Governor May Require Reports: Messages to Legislature.
Sec. 8. The Governor may require information in writing from
the officers of the executive department upon any subject relating
to the duties of their respective offices, which information shall be
given upon oath whenever so required; he may also require informa-
tion in writing, at any time, under oath, from all officers and man-
agers of State institutions, upon any subject relating to the condi-
tion, management and expenses of their respective offices and insti-
tutions, and may at any time he deems it necessary, appoint a com-
mittee to investigate and report to him upon the condition of any ex-
ecutive office or State institution. The Governor shall at the com-
mencement of each session and from time to time, by message, give
to the Legislature information of the condition of the State, and
shall recommend such measures as he shall deem expedient. He shall
also send to the Legislature a statement, with vouchers, of the ex-
penditures of all money belonging to the State and paid out by him.
He shall also, at the commencement of each session, present esti-
mates of the amount of money required to be raised by taxation for
all purposes of the State.
Extra Sessions of Legislature.
Sec. 9. The Governor may, on extraordinary occasions, convene
the Legislature by proclamation stating the purposes for which he has
convened it ; but when so convened it shall have no power to legislate
on any subjects other than those specified in the proclamation; but
may provide for the expenses of the session and other matters inci-
dental thereto. He may also, by proclamation, convene the Senate in
extraordinary session for the transaction of executive business.
Cited: Goodnight v. Moody (1891)
3 Ida. 7; 26 Pac. 121.
Veto Power.
Sec. 10. Every bill passed by the Legislature shall, before it be-
comes a law, be presented to the Governor. If he approve, he shall
sign it, and thereupon it shall become a law ; but if he do not approve,
he shall return it with his objections to the house in which it origina-
ted, which house shall enter the objections at large upon its journals
96 CONSTITUTION OP IDAHO
and proceed to reconsider the bill. If then two-thirds of the members
present agree to pass the same it shall be sent, together with the
objections, to the other house, by which it shall likewise be recon-
sidered, and if approved by two-thirds of the members present in
that house, it shall become a law, notwithstanding the objections of
the Governor. In all such cases the vote of each house shall be de-
termined by yeas and nays, to be entered on the journal. Any bill
which shall not be returned by the Governor to the Legislature within
five days (Sundays excepted) after it shall have been presented to
him, shall become a law in like manner as if he had signed it, unless
the Legislature shall by adjournment, prevent its return, in which
case it shall be filed, with his objections, in the office of the Secre-
tary of State within ten days after such adjournment (Sundays ex-
cepted) or become a law.
Disapproval of Appropriation Bill.
Sec. 11. The Governor shall have power to disapprove of any item
or items of any bill making appropriations of money embracing dis-
tinct items, and the part or parts approved shall become a law and
the item or items disapproved shall be void unless enacted in the
manner following: If the Legislature be in session, he shall within
five days transmit to the house within which the bill originated a
copy of the item or items thereof disapproved, together with his ob-
jections thereto, and the items objected to shall be separately recon-
sidered, and each item shall then take the same course as is pre-
scribed for the passage of bills over the executive veto.
Lieutenant Governor to Act as Governor.
Sec. 12. In case of the failure to qualify, the impeachment, or
conviction of treason, felony, or other infamous crime of the Gover-
nor, or his death, removal from office, resignation, absence from the
State, or inability to discharge the powers and duties of his office, the
powers, duties and emoluments of the office for the residue of the
term, or until the disability shall cease, shall devolve upon the Lieu-
tenant Governor.
Lieutenant Governor Is President of Senate.
Sec. 13. The Lieutenant Governor shall be president of the Senate,
but shall vote only when the Senate is equally divided. In case of
the absence or disqualification of the Lieutenant Governor from any
cause which applies to the Governor, or when he shall hold the of-
fice of Governor, then the president pro tempore of the Senate shall
perform the duties of the Lieutenant Governor until the vacancy is
filled or the disability removed.
President Pro Tempore to Act as Governor.
Sec. 14. In case of the failure to qualify in his office, death, resig-
nation, absence from the State, impeachment, conviction of treason,
felony or other infamous crime, or disqualification from any cause, of
both Governor and Lieutenant Governor, the duties of the Governor
shall devolve upon the President of the Senate pro tempore, until
such disqualification of either the Governor or Lieutenant Governor
be removed, or the vacancy filled ; and if the President of the Senate,
EXECUTIVE DEPARTMENT
97
for any of the above named causes, shall become incapable of perform-
ing the duties of Governor, the same shall devolve upon the Speaker
of the House.
Great Seal of the State.
Sec. 15. There shall be a seal of this State, which shall be kept by
the Secretary of State and used by him officially, and shall be called
'The Great Seal of the State of Idaho." The seal of the Territory
of Idaho, as now used, shall be the seal of the State until otherwise
provided by law.
Grants and Permissions.
Sec. 16. All grants and permissions shall be in the name and by
the authority of the State of Idaho, sealed with the Great Seal of the
State, signed by the Governor and countersigned by the Secretary of
State.
Accounts and Reports of Officers.
Sec. 17. An account shall be kept by the officers of the executive
department and of all public institutions of the State, of all moneys
received by them severally, from all sources, and for every service
performed, and of all moneys disbursed by them severally, and a
semi-annual report thereof shall be made to the Governor, under
oath; they shall also, at least twenty days preceding each regular
session of the Legislature, make full and complete reports of their
official transactions to the Governor, who shall transmit the same to
the Legislature.
Boards of Prison Commissioners and of Examiners.
Sec. 18. The Governor, Secretary of State, and Attorney General
shall constitute a board of State Prison Commissioners, which board
shall have such supervision of all matters connected with the State
prison as may be prescribed by law. They shall also constitute a board
of examiners, with power to examine all claims against the State, ex-
cept salaries or compensations of officers fixed by law, and perform
such other duties as may be prescribed by law. And no claim against
the State, except salaries and compensation of officers fixed by law,
shall be passed upon by the Legislature without first having been
considered and acted upon by said board.
Cited: Krautinger v. Board of Ex-
aminers (1902) 8 Ida. 463; 69 Pac.
279; Ackley v. Perrin (1905) 10 Ida.
531; 79 Pac. 192.
Board of Examiners: A claim
arising- out of a contract for the con-
struction of a State wag-on road which
stipulates for the final payment when
the contract is executed to the satis-
faction of the commissioners and
board of examiners, must be submit-
ted for the approval of the board of
examiners before the auditor can be
required to issue his warrant there-
for. Winters v. Ramsey (1895) 4 Ida.
303; 39 Pac. 193.
•Same — Coercion of Action: If the
board refuses to act on a matter up-
on which the law requires them to
act the court may compel action but
can not direct the board how they
shall act in a particular case. (Sul-
livan, J., dissents.) Pyke v. Steun-
enberg (1897) 5 Ida. 614; 51 Pac. 614.
Salaries and Fees of Officers.
Sec. 19. The Governor, Secretary of State, State Auditor, State
Treasurer, Attorney General, and Superintendent of Public Instruc-
tion shall quarterly as due, during their continuance in office, receive
98
CONSTITUTION OF IDAHO
for their services compensation, which for the term next ensuing after
the adoption of this Constitution, is fixed as follows : Governor, three
thousand dollars per annum; Secretary of State, one thousand and
eight hundred dollars per annum; State Auditor, one thousand
eight hundred dollars per annum; State Treasurer, one thousand
dollars per annum; Attorney General, two thousand dollars per
annum, and Superintendent of Public Instruction, one thousand
five hundred dollars per annum. The Lieutenant Governor shall re-
ceive the same per diem as may be provided by law for the Speaker
of the House of Representatives, to be allowed only during the ses-
sions of the Legislature. The compensations enumerated shall be in
full for all services by said officers respectively, rendered in any
official capacity or employment whatever during their respective terms
of office.
No officer named in this section shall receive for the performance
of any official duty any fee for his own use, but all fees fixed by law
for the performance by either of them of any official duty shall be
collected in advance and deposited with the State Treasurer quar-
terly to the credit of the State. The Legislature may, by law, dimin-
ish or increase the compensation of any or all of the officers named
in this section, but no such diminution or increase shall affect the
salaries of the officers then in office during their term: Provided,
however, The Legislature may provide for the payment of actual
and necessary expenses to the Governor, Lieutenant Governor, Secre-
tary of State, Attorney General, and Superintendent of Public In-
struction, while traveling within the State in the performance of of-
ficial duty.
.Cited: Stein v. Morrison (1904)
9 Ida. 426; 75 Pac. 246.
Fees of Officers: It is a part of the
official duty of the Secretary of State
to prepare the session laws and leg-
islative journals for the printer, and
any fees which he receives for such
services must be paid over into the
State Treasury. Anderson v. Lewis
(1898) 6 Ida. 51; 52 Pac. 163.
ARTICLE 5.
JUDICIAL DEPARTMENT.
Section.
1. Forms of action abolished.
2. Judicial power: Where vested.
.3. Impeachment: Where and how
tried.
4. Same: Conviction: Impeachment
of Governor.
5. Treason defined and limited.
6. Supreme Court: Justices: Term
of office.
7. Justices prohibited from holding
other offices.
8. Terms of Supreme Court.
9. Jurisdiction of Supreme Court.
10. Jurisdiction over claims against
the State.
11. District Courts: Judges and
terms.
12. Residence of Judges: Holding
court out of district.
13. Power of Legislature respecting
courts.
Secti
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
on.
Special courts in cities and
towns.
Clerk of Supreme Court.
Clerks of District Court.
Salaries of Justices and Judges.
Prosecuting attorneys.
Vacancies: How filled.
Jurisdiction of District Court.
Jurisdiction of probate courts.
Jurisdiction of justices of the
peace.
Qualifications of District Judges.
Judicial districts enumerated.
Defects in law to be reported by
judges.
Court procedure to be general
and uniform. ,
Change in compensation of of-
ficers.
JUDICIAL DEPARTMENT
99
Forms of Action Abolished.
Sec. 1. The distinctions between actions at law and suits in equity,
and the forms of all such actions and suits, are hereby prohibited ; and
there shall be in this State but one form of action for the enforce-
ment or protection of private rights or the redress of private wrongs,
which shall be denominated a civil action; and every action prose-
cuted by the people of the State as a party against a person charged
with a public offense for the punishment of the same, shall be termed
a criminal action.
Feigned issues are prohibited, and the fact at issue shall be tried
by order of court before a jury.
Relief at law and equity may be
granted in the same action, and may
be granted if the facts pleaded and
proved entitle the plaintiff to any re-
lief, either legal, equitable, or both.
Murphy v. Russell & Co. (1901) 8 Ida.
133; 67 Pac. 421. But this section
does not abolish the rules of law and
equity. Dewey v. Schreiber Imple-
ment Co. (1906) 12 Ida. 280; 85 Pac.
921.
Cited: Christensen v. Hollings-
worth (1898) 6 Ida. 87; 53 Pac. 211;
Anderson v. War Eagle Con. Min. Co.
(1902) 8 Ida. 789; 72 Pac. 671; Cole-
man v. Jaggers (1906) 12 Ida. 125;
85 Pac. 894.
Distinction Abolished: This section
largely abrogates the distinction be-
tween cases at law and suits in equity,
and now equitable remedies defined by
statute, such as injunctions, are large-
ly matters of right. Staples v. Rossi
(1901) 7 Ida. 618; 65 Pac. 67.
Judicial Power: Where Vested.
Sec. 2. The judicial power of the State shall be vested in a court
for the trials of impeachments, a Supreme Court, District Courts, pro-
bate courts, courts of justices of the peace, and such other courts in-
ferior to the Supreme Court as may be established by law for any in-
corporated city or town.
terially only. In re Sly (1904) 9 Ida.
779; 76 Pac. 766.
Laws 1903, 223, providing for
the appropriation, diversion and ad-
judication of the rights to the use of
the waters of the State, and which
contains certain peculiar provisions as
to the duties of the State Engineer,
the apportionment of costs, the prep-
aration and use of maps as evidence,
etc., in proceedings for the adjudica-
tion of water rights, is not repugnant
to this section. (Stockslager, J., dis-
sents.) Boise Irr. etc. Co. v. Stewart
(1904) 10 Ida. 38; 77 Pac. 25, 321.
The sections of the act which au-
thorize the State Engineer to pass up-
on certain questions relating to the
appropriation of water but which give
an appeal to the court from decisions
of the engineer are constitutional. lb.
Cited: Ada Co. v. Ryals (1895) 4
Ida. 365; 39 Pac. 5 56; Dewey v.
Schreiber Implement Co. (1906) 12
Ida. 280; 85 Pac. 921.
Investiture of Judicial Power: Laws
1899, 345, Sec. 6, which vests in
the board of medical examiners, cre-
ated by the act of which such section
is a part, the power to determine what
is a reputable school of medicine such
as to entitle the graduates thereof to
take the examination for a physician's
license, does not vest in the board
such a judicial power as to render the
act repugnant to this section of the
Constitution. In re Inman (1902) 8
Ida. 398; 69 Pac. 120.
A coroner is not vested with judi-
cial authority and does not act as a
court in holding an inquest but in the
performance of such duty acts minis-
Impeachments : Where and How Tried.
Sec. 3. The court for the trial of impeachments shall be the Sen-
ate. A majority of the members elected shall be necessary to a quo-
rum, and the judgment shall not extend beyond removal from, and
disqualification to hold office in this State ; but the party shall be liable
to indictment and punishment according to law.
Same: Conviction: Impeachment of Governor.
Sec. 4. The House of Representatives solely shall have the power
100 CONSTITUTION OF IDAHO
of impeachment. No person shall be convicted without the concur-
rence of two-thirds of the Senators elected. When the Governor is
impeached the Chief Justice shall preside.
Treason Defined and Limited.
Sec. 5. Treason against the State shall consist only in levying war
against it, or adhering to its enemies, giving them aid and comfort.
No person shall be convicted of treason unless on the testimony of
two witnesses to the same overt act, or on confession, in open court.
No conviction of treason or attainder shall work corruption of blood
or forfeiture of estate.
Supreme Court : Justices : Term of Office.
Sec. 6. The Supreme Court shall consist of three Justices, a ma-
jority of whom shall be necessary to make a quorum or pronounce a
decision. The Justices of the Supreme Court shall be elected by the
electors of the State at large. The terms of office of the Justices
of the Supreme Court, except as in this article otherwise provided,
shall be six years. The Justices of the Supreme Court shall, imme-
diately after the first election under this Constitution, be selected by
lot, so that one shall hold his office for the term of two years, one for
the term of four years, and one for the term of six years. The lots
shall be drawn by the Justices of the Supreme Court, who shall, for
that purpose, assemble at the seat of government, and they shall
cause the result thereof to be certified to by the Secretary of State and
filed in his office. The Justice having the shortest term to serve, not
holding his office by appointment or election to fill a vacancy, shall
be Chief Justice, and shall preside at all terms of the Supreme Court,
and, in case of his absence, the Justice having in like manner the next
shortest term to serve shall preside in his stead.
Justices Prohibited from Holding Other Offices.
Sec. 7. No Justice of the Supreme Court shall be eligible to any
other office of trust or profit under the laws of this State during the
term for which he was elected.
Terms of Supreme Court.
Sec. 8. At least four terms of the Supreme Court shall be held
annually; two terms at seat of the State government, and two terms
at the City of Lewiston, in Nez Perce County. In case of epidemic,
pestilence, or destruction of court houses, the Justices may hold terms
of Supreme Court provided by this section at other convenient places,
to be fixed by a majority of said Justices. After six years the Legis-
lature may alter the provisions of this section.
Jurisdiction of Supreme Court.
Sec. 9. The Supreme Court shall have jurisdiction to review, upon
appeal, any decision of the District Courts, or the Judges, thereof.
The Supreme Court shall also have original jurisdiction to issue writs
of mandamus, certiorari, prohibition, and habeas corpus, and all writs
necessary or proper to the complete exercise of its appellate juris-
diction.
Cited: Tootle v. French (1891) 3
Ida. 1; 25 Pac. 1091; Miller v. Smith
(1900) 7 Ida. 204; 61 Pac. 824; Wil-
son v. Bartlett (190 0) 7 Ida. 269; 62
Pac. 415; Ponting v. Isman (1900)
7 Ida. 283; 62 Pac. 680; First Natl.
JUDICIAL DEPARTMENT
101
Bk. of Pocateilo v. Bunting & Co.
(1900) 7 Ida. 387; 63 Pac. 694; Che-
mung Min. Co. v. Hanley (1905) 11
Ida. 302; 81 Pac. 619; Dewey v.
Schreiber Implement Co. (1906) 12
Ida. 280; 85 Pac. 921; Dahlstrom v.
The Portland Min. Co. (1906) 12 Ida.
87; 85 Pac. 916; Eureka Min. etc. Co.
v. Lewiston Nav. Co. (1906) 12 Ida.
472; 86 Pac. 49.
Appellate Jurisdiction: Where the
statutes fail to provide for an appeal
from a final judgment of the District
Court, the Supreme Court will enter-
tain a writ of error or other proper
writ to bring such judgment before it
for review. State v. Reed (1893) 3
Ida. 554; 32 Pac. 202.
This section does not give the State
the right to appeal from a judgment
in favor of the defendant in a crim-
inal action, in the absence of a stat-
ute authorizing such appeal. State v.
Ridenabugh (1897) 5 Ida. 710; 51 Pac.
750.
The right of appeal in a criminal
case is absolute and in no wise de-
pendent upon the innocence or guiit
of the defendant. In re Neil (1905)
12 Ida. 749; 87 Pac. 881.
For additional cases construing ap-
pellate jurisdiction of the Supreme
Court see note under Sec. 4807.
Writs of Prohibition: This section,
in providing for the issuance of writs
of prohibition, contemplates the is-
suance of such writs with the func-
tions declared and defined under the
existing territorial laws. Williams v.
Lewis (1898) 6 Ida. 184; 54 Pac. 619.
But this case was overruled and it
was expressly held that the writ of
prohibition authorized by the Consti-
tution is a common law writ and
will not lie to restrain purely minis-
terial acts. Stein v. Morrison (1904)
9 Ida. 426; 75 Pac. 246.
Ancillary Jurisdiction: The Su-
preme Court may allow attorneys'
fees or suit money on appeal in a di-
vorce case after the case has been
filed in that court, when the same is
necessary to the complete exercise of
its appellate jurisdiction. Roby v.
Roby (1903) 9 Ida. 371; 74 Pac. 957.
The Supreme Court has power to
appoint a receiver to act pending liti-
gation. Chemung Mining Co. v. Han-
ley (1905) 11 Ida. 302; 81 Pac. 619.
Jurisdiction Over Claims Against the State.
Sec. 10. The Supreme Court shall have original jurisdiction to
hear claims against the State, but its decisions shall be merely recom-
mendatory ; no process in the nature of execution shall issue thereon ;
they shall be reported to the next session of the Legislature for its
action.
Cited: Payne v. St. Brd. Wag. Rd.
Comrs. (1895) 4 Ida. 384; 39 Pac.
548; Wis. Marine, etc. Co. v. State
(1898) 5 Ida. 785; 51 Pac. 983; Geo.
H. Fuller Desk Co. v. State (1898) 6
Ida. 315; 55 Pac. 857.
Proceedings: In proceedings to
obtain a decision recommending the
payment of a claim for constructing
a State wagon road, where it appear-
ed that the contract price was con-
sumed in paying for the original con-
struction of the road which was de-
stroyed by high water prior to the
acceptance of the road by the State,
after which the contractors rebuilt
the washed out portion, the court
rendered a decision recommending
the payment by the Legislature of the
value of the contractors work. Win-
ters v. State (1897) 5 Ida. 198; 47
Pac. 855.
The Supreme Court wil not hear
any claims against the State until the
same have been passed upon by the
Board of Examiners. Pyke v. Steun-
enberg (1897) 5 Ida. 614; 51 Pac.
614.
This section does not authorize an
action to condemn State lands to a
public use, but such an action is au-
thorized by Rev. St. Sec. 5212 in
conjunction with laws 1899, 381, Sec.
13. Hollister v. State (1903) 9 Ida.
8; 71 Pac. 541.
The Supreme Court will not recom-
mend to the Legislature the payment
of a claim against the State, an ac-
tion on which would be barred by
the statute of limitations. Small v.
State (1904) 10 Ida. 1; 76 Pac. 765.
District Courts: Judges and Terms.
Sec. 11. The State shall be divided into five judicial districts, for
each of which a Judge shall be chosen by the qualified electors thereof,
whose term of office shall be four years. And there shall be held
a District Court in each county, at least twice in each year, to continue
for such time in each county as may be prescribed by law; but the
Legislature may reduce or increase the number of districts, District
102
CONSTITUTION OF IDAHO
Judges, and District Attorneys. This section shall not be construed
to prevent the holding of special terms under such regulations as may
be provided by law.
Cited: Heitman v. Morgan (1905)
10 Ida. 562; 79 Pac. 225.
Residence of Judges : Holding Court Out of District.
Sec. 12. Every Judge of the District Court shall reside in the dis-
trict for which he is elected. A Judge of any District Court may hold
a District Court in any county at the request of the Judge of the Dis-
trict Court thereof, and upon the request of the Governor it shall be
his duty to do so ; but a cause in the District Court may be tried by a
Judge pro tempore, who must be a member of the bar, agreed upon
in writing by the parties litigant, or their attorneys of record, and
sworn to try the cause.
Cited: Gordon v. Conors (1897) 5
Ida. 673; 51 Pac. 747.
Judge Pro Tern: This section does
not authorize the appointment of a
non-resident as a judge pro tern.
Bramwell v. Guheen (1892) 3 Ida.
347; 29 Pac. 110.
Disqualification of Judge: The
fact that the judge is prejudiced
against one of the parties, is not
ground for a change of venue, but in
such a case the Governor may direct
another judge to preside, and the Su-
preme Court would make the nec-
essary order for the enforcement of
the Governor's direction. (dis. op.)
Day v. Day (1906) 12 Ida. 556; 86
Pac. 531.
Power of Legislature Respecting" Courts.
Sec. 13. The Legislature shall have no power to deprive the judi-
cial department of any power or jurisdiction which rightly pertains
to it as a co-ordinate department of the government ; but the Legisla-
ture shall provide a proper system of appeals, and regulate by law,
when necessary, the methods of proceeding in the exercise of their
powers of all the courts below the Supreme Court, so far as the same
may be done without conflict with this Constitution.
Special Courts in Cities and Towns.
Sec. 14. The Legislature may provide for the establishment of
special courts for the trial of misdemeanors in incorporated cities and
towns where the same may be necessary.
Clerk of Supreme Court.
Sec. 15. The Clerk of the Supreme Court shall be appointed by
the Court, and shall hold his office during the pleasure of the Court.
He shall receive such compensation for his services as may be provided
by law.
Clerks of District Court.
Sec. 16. The Clerk of the District Court for each county shall be
elected by the qualified voters thereof at the time and in the manner
prescribed by law for the election of members of the Legislature and
shall hold his office for the term of four years.
Cited: Hillard v. Shoshone
(1891) 3 Ida. 103; 27 Pac. 678.
Co.
Salaries of Justices and Judges.
Sec. 17. The salary of the Justices of the Supreme Court, until
JUDICIAL DEPARTMENT
103
otherwise provided by the Legislature, shall be three thousand dollars
each per annum, and the salary of the Judges of the District Court,
until otherwise provided by the Legislature, shall be three thousand
dollars each per annum, and no Justice of the Supreme Court or Judge
of the District Court, shall be paid his salary, or any part thereof, un-
less he shall have first taken and subscribed an oath that there is not
in his hands any matter in controversy not decided by him which had
been finally submitted for his consideration and determination, thirty
days prior to taking and subscribing such oath.
Prosecuting Attorneys.
Sec. 18. A prosecuting attorney shall be elected for each organ-
ized county in the State, by the qualified electors of such county,
and shall hold office for the term of two years, and shall perform
such duties as may be prescribed by law; he shall be a practicing
attorney at law, and a resident and elector of the county for which
he is elected. He shall receive as compensation for his services a sum
not less than five hundred dollars per annum, nor more than fifteen
hundred dollars per annum, to be fixed by the board of commissioners
of the county at its regular session in July next preceding any general
election, and to be paid in quarterly installments out of the county
treasury.
Senate Joint Resolution, approved
March 5, 1895, (Laws 1895, 237)
Ratified Nov. 3, 1906.
The section prior, to amendment
read as follows:
Sec. 18. A District Attorney shall
be elected for each judicial district
by the qualified electors thereof, who
shall hold office for the term of four
years, and perform such duties as
may be prescribed by law. He shall
be a practicing- attorney at law and a
resident and elector of the district.
He shall receive as compensation, for
his services twenty-five hundred dol-
lars per annum.
Cited: Meller v. Board of Com-
missioners (1894) 4 Ida. 44; 35 Pac.
712; Conger v. Board of Commis-
sioners (1897) 5 Ida. 347; 48 Pac.
1064; State v. McGann (1901) 8 Ida.
40; 66 Pac. 823.
Amendment: The amendment to
this section substituting county prose-
cuting attorneys for the district at-
torneys was not self-executing, but
required legislation to give it force
and effect, and did not go into oper-
ation until the time fixed by law for
county officers to qualify and enter
upon the discharge of their duties
(Concur, op.) Hays v. Hays (1897)
5 Ida. 154; 47 Pac. 732.
Vacancies : How Filled.
Sec. 19. All vacancies occurring in the offices provided for by this
Article of the Constitution shall be filled as provided by law.
Jurisdiction of District Court.
Sec. 20. The District Court shall have original jurisdiction in all
cases, both at law and in equity, and such appellate jurisdiction as
may be conferred by law.
Cited: Murphy v. Russell & Co.
(1901) 8 Ida. 151; 67 Pac. 427; First
National Bank of Hailey v. Glenn
(1904) 10 Ida. 224; 77 Pac. 623;
Dewey v. Schreiber Implement Co.
(1906) 12 Ida. 280; 85 Pac. 921;
Vane v. Jones (1907) 13 Ida. — ; 88
Pac. 1058.
Equitable Jurisdiction: Equitable
jurisdiction exists and will be exer-
cised in all cases and under all cir-
cumstances where the remedy at law
is not adequate, complete and cer-
tain, so as to meet the requirements
of justice. Coleman v. Jaggers (1906)
12 Ida. 125; 85 Pac. 894.
Concurrent Jurisdiction: The Dis-
trict Court has concurrent original
jurisdiction with justices' courts over
actions for a violation of the two-
mile limit law. Risse v. Collins
(1906) 12 Ida. 689; 87 Pac. 1006.
104
CONSTITUTION OF IDAHO
Jurisdiction of Probate Courts.
Sec. 21. The probate courts shall be courts of record, and shall
have original jurisdiction in all matters of probate, settlement of es-
tates of deceased persons, and appointment of guardians; also juris-
diction to hear and determine all civil cases wherein the debt or dam-
age claimed does not exceed the sum of five hundred dollars, ex-
clusive of interest, and concurrent jurisdiction with justices of the
peace in criminal cases.
Courts of Record — When: Probate
courts are courts of record with orig-
inal jurisdiction in all matters of pro-
bate and settlement of estates, and
their orders and judgments in regard
to such matters cannot be collaterally
attacked, and can only be reviewed
by proper motion in such courts or
by appeal from their decisions.
(Overruling Ethol v. Nicholl, 1 Ida.
741.) Clark v. Rossier (1904) 10 Ida.
348; 78 Pac. 358.
Probate courts are courts of record
only in the exercise of their probate
and administrative jurisdiction.
Dewey v. Schreiber Implement Co.
(1906) 12 Ida. 280; 85 Pac. 921.
Jurisdiction: This section does not
authorize the Legislature to extend
the jurisdiction of probate courts to
actions for the enforcement of me-
chanics' and laborers' liens, mortgages
and other liens upon real property;
probate courts have no equity juris-
diction except such as they may have
in matters of probate, settlement of
estates and appointment of guardians.
lb.
Jurisdiction of Justices of the Peace.
Sec. 22. In each county of this State there shall be elected justices
of the peace as prescribed by law. Justices of the peace shall have
such jurisdiction as may be conferred by law, but they shall not
have jurisdiction of any cause wherein the value of property of the
amount in controversy exceeds the sum of three hundred dollars, ex-
clusive of interest, nor where the boundaries or title to any real prop-
erty shall be called in question.
Cited: Johnston v. Savidge (1905)
11 Ida. 204; 81 Pac. 616.
Criminal Jurisdiction: Under Sec.
9 of the Organic Act which provided,
among other things, that justices of
the peace should not have jurisdic-
tion when the debt or sum claimed
exceeds $100.00, it was held that the
Legislature could not confer on jus-
tices of the peace jurisdiction over an
offense punishable by fine not ex-
ceeding $500.00. People v. Maxon
(1870) 1 Ida. 330.
Civil Jurisdiction: This section
does not extend the jurisdiction of
justices to actions involving $300 ex-
clusive of interest, in the face of Rev.
Stat. Sec. 3851 which fixes the jur-
isdiction at $300 inclusive of interest,
but merely prohibits the Legislature
from fixing the sum in excess of $300
exclusive of interest. Quayle v.
Glenn (1899) 6 Ida. 549; 57 Pac. 308.
Qualifications of District Judges.
Sec. 23. No person shall be eligible to the office of District Judge
unless he be learned in the law, thirty years of age, and a citizen
of the United States, and shall have resided in the State or Territory
at least two years next preceding his election, nor unless he shall
have been at the time of his election, an elector in the judicial dis-
trict for which he is elected.
Cited: Shepherd v. Grimmett
(1892) 3 Ida. 403; 31 Pac. 793.
Judicial Districts Enumerated.
Sec. 24. Until otherwise provided by law, the judicial districts
shall be five in number, and constituted of the following counties, viz :
JUDICIAL DEPARTMENT
105
First district, Shoshone and Kootenai; second district, Latah, Nez
Perce and Idaho; third district, Washington, Ada, Boise and Owyhee;
fourth district, Cassia, Elmore, Logan and Alturas; fifth district,
Bear Lake, Bingham, Oneida, Lemhi and Custer.
Defects in Law to be Reported by Judges.
Sec. 25. The Judges of the District Courts shall, on or before the
first day of July of each year, report in writing to the Justices of the
Supreme Court, such defects or omissions in the laws as their knowl-
edge and experience may suggest, and the Justices of the Supreme
Court shall, on or before the first day of December of each year,
report in writing to the Governor, to be by him transmitted to the
Legislature, together with his message, such defects and omissions
in the Constitution and laws as they find to exist.
Court Procedure to Be General and Uniform.
Sec. 26. All laws relating to courts shall be general and of uni-
form operation throughout the State, and the organized judicial pow-
ers, proceedings, and practices of all the courts of the same class or
grade, so far as regulated by law, and the force and effect of the pro-
ceedings, judgments and decrees of such courts, severally, shall be
uniform.
Laws Relating to Courts: Laws
1903, 223, providing- for the appro-
priation, diversion and adjudication
of the rights to the use of the waters
of the State, and which contains cer-
tain peculiar provisions as to the
duties of the State Engineer, the ap-
portionment of costs, the prepara-
tion and use of maps as evidence, etc..
in proceedings for the adjudication of
water rights, is not repugnant to this
section. (Stockslager, J., dissents.)
Boise Irr. etc. Co. v. Stewart (1904)
10 Ida. 38; 77 Pac. 25, 321.
Sec. 3 4 of Laws 1903, 2 23, relative
to the distribution of water and ad-
judication of water rights, which au-
thorizes a suit for adjudication of
water rights to be brought against
"all claimants of a right to the use
of the water" of the stream in ques-
tion, without naming the defendants,
or requiring any effort for personal
service on such defendants as might
be found, is repugnant to this section,
Bear Lake Co. v. Budge (1904) 9
Ida. 703; 75 Pac. 614.
Laws 1903, 223, Sec. 35, which re-
quires the costs and attorneys fees in
a suit to adjudicate the waters of a
stream, to be paid by the county, is
repugnant to this section. lb.
Laws 1903, 223, Sec. 36, which pro-
vides that during the pendency of an
action to adjudicate the waters of a
stream, the use of the water shall be
under the control of the Water Com-
missioner and that he shall be au-
thorized to issue all needful rules for
the distribution of the water to the
defendants, is repugnant to this sec-
tion, lb.
Change in Compensation of Officers.
Sec. 27. The Legislature may by law diminish or increase the
compensation of any or all of the following officers, to-wit : Governor,
Lieutenant-Governor, Secretary of State, State Auditor, State Treas-
urer, Attorney General, Superintendent of Public Instruction, Com-
missioner of Immigration and Labor, Justices of the Supreme Court,
and Judges of the District Courts and District Attorneys, but no
diminution or increase shall affect the compensation of the officer
then in office during his term. Provided, however, That the Legisla-
ture may provide for the payment of actual and necessary expenses
of the Governor, and the Secretary of State, Attorney General, and
Superintendent of Public Instruction incurred while in performance,
of official duty.
106
CONSTITUTION OF IDAHO
ARTICLE 6.
SUFFRAGE AND ELECTIONS.
Section
1. Secret ballot guaranteed.
2. Qualifications of electors.
3. Disqualification of certain per
sons.
Section
4. Legislature may prescribe addi-
tional qualifications.
5. Residence for voting purposes
not lost or gained.
Secret Ballot Guaranteed.
Sec. 1. All elections by the people must be by ballot. An abso-
lutely secret ballot is hereby guaranteed, and it shall be the duty of
the Legislature to enact such laws as shall carry this section into
effect.
Qualifications of Electors.
Sec. 2. Except as in this article otherwise provided, every male
or female citizen of the United States, twenty-one years old, who
has actually resided in this State or Territory for six months, and in
the county where he or she offers to vote, thirty days next preceding
the day of election, if registered as provided by law, is a qualified
elector; and until otherwise provided by the Legislature, women who
have the qualifications prescribed in this article may continue to
hold such school offices and vote at such school elections as provided
by the laws of Idaho Territory.
Senate Joint Resolution, approved
Jan. 21, 1895, (Laws 1895, 232). Rati-
fied Nov. 3, 1896.
The section prior to amendment
read as follows:
Sec. 2. Except as in this article
otherwise provided, every male citi-
zen of the United States, twenty-one
years old, who has actually resided
in the State or Territory for six
months, and in the county where he
offers to vote, thirty days next pre-
ceding the day of election, if regis-
tered as provided by law, is a quali-
fied elector; and until otherwise pro-
vided by the Legislature, women who
have the qualifications prescribed in
this article, may continue to hold
such school offices and vote at such
school elections as provided by the
laws of Idaho Territory.
Cited: Powell v. Spackman (1901)
7 Ida. 693; 65 Pac. 503.
Registration Unnecessary: Regis-
tration is not a substantive qualifi-
cation of an elector in this State. Reg-
istration is intended only as a regula-
tion of the exercise of the right of
suffrage and not as a qualification
for such right. The terms "elector"
and "qualified elector" are used in-
terchangeably, and an elector is a
qualified elector. (Quarles, J., dis-
sents.) Wilson v. Bartiett (1900) 7
Ida. 271; 62 Pac. 416.
Bond Elections: This section only
prescribes the qualifications of a
voter at a general election, and is
not infringed by a provision of a
municipal charter imposing a prop-
erty qualification on the right to vote
on the question of incurring a munic-
ipal indebtedness. Wiggin v. City of
Lewiston (1902) 8 Ida. 527; 69 Pac.
286.
Disqualifications: No disqualifica-
tion to hold office on account of sex
which may exist under this section,
can be raised in a" proceeding, insti-
tuted after the wrongful removal of
the officer, to compel her to deliver
the papers of the office to her alleged
successor. Village of Kendrick v.
Nelson (1907) 13 Ida. — ; 89 Pac.
755.
Disqualification of Certain Persons.
Sec. 3. No person is permitted to vote, serve as a juror, or hold
any civil office who is under guardianship, idiotic or insane, or who
has, at any place, been convicted of treason, felony, embezzlement of
the public funds, bartering or selling, or offering to barter or sell his
SUFFRAGE AND ELECTIONS
107
vote, or purchasing or offering to purchase the vote of another, or
other infamous crime, and who has not been restored to the rights
of citizenship, or who, at the time of such election, is confined in
prison on conviction of a criminal offense, or who is a bigamist, or
polygamist, or is living in what is known as patriarchal, plural or
celestial marriage, or in violation of any law of this State, or of the
United States, forbidding any such crime; or who, in any manner,
teaches, advises, counsels, aids, or encourages any person to
enter into bigamy, polygamy, or such patriarchal, plural, or celestial
marriage, or to live in violation of any such law, or to commit any
such crime ; or who is a member of or contributes to the support, aid,
or encouragement of any order, organization, association, corporation
or society, which teaches, advises, counsels, encourages, or aids any
person to enter into bigamy, polygamy, or such patriarchal, plural
or celestial marriage, or which teaches or advises that the laws of
this State prescribing rules of civil conduct, are not the supreme law
of the State ; nor shall Chinese, or persons of Mongolian descent, not
born in the United States, nor Indians not taxed, who have not sev-
ered their tribal relations and adopted the habits of civilization, either
vote, serve as jurors, or hold any civil office.
Cited: Powell v. Spackman (1901)
7 Ida. 693; 65 Pac. 503.
Requirement of Test Oath: This
section is not violated by the act of
February 25, 1891, prescribing a test
oath containing- conditions of suf-
frage additional to those prescribed
by this section. Shepherd v. Grim-
mett (1892) 3 Ida. 403; 31 Pac. 793.
Legislature May Prescribe Additional Qualifications.
Sec. 4. The Legislature may prescribe qualifications, limitations,
and conditions for the right of suffrage additional to those prescribed
in this article, but shall never annul any of the provisions in this
article contained.
Cited: Powell v. Spackman (1901)
7 Ida. 693; 65 Pac. 503.
Requirement of Test Oath: This
section authorizes the Legislature to
prescribe a test oath as a condition
of suffrage, embracing clauses addi-
tional to those contained in Section
3 of this article. Shepherd v. Grim-
mett (1892) 3 Ida. 408; 31 Pac. 793.
Property Qualifications: This sec-
tion is sufficiently broad to empower
the Legislature to prescribe property
qualifications on the right to vote in
elections to create an indebtedness.
Wiggin v. City of Lewiston (1902) 8
Ida. 527; 69 Pac. 286.
Residence for Voting Purposes Not Lost or Gained.
Sec. 5. For the purpose of voting, no person shall be deemed to
have gained or lost a residence by reason of his presence or absence
while employed in the service of this State, or of the United States,
nor while engaged in the navigation of the waters of this State or
of the United States, nor while a student of any institution of learn-
ing, nor while kept at any alms house or other asylum at the public
expense.
Inmates of Soliders' Home: Under
the provisions of this section, inmates
of the Soldiers' Home cannot acquire
by reason of their presence in such
Soldiers' Home, and while kept at
public expense, the right to vote in
the county and precinct in which
such institution is located. (Sullivan,
J., dissents). Powell v. Spackman
(1901) 7 Ida. 693; 65 Pac. 503.
108
CONSTITUTION OF IDAHO
ARTICLE 7.
FINANCE AND REVENUE,
Section
1. Fiscal year.
Revenue to be provided by taxa-
tion.
Property to be denned and
classified.
Public property exempt from
taxation.
Taxes to be uniform: Exemp-
tions.
Municipal corporations to im-
pose their own taxes.
State taxes to be paid in full.
Corporate property must be
taxed.
Section
9. Maximum rate of taxation.
10. Making- profit from public money
prohibited.
11. Expenditure not to exceed ap-
propriation.
12. State Board of Equalization.
13. Money: How drawn from treas-
ury.
14. Same: How drawn from county
treasury.
15. Legislature to provide system of
county finance.
16. Legislature to pass necessary
laws.
Fiscal Year.
Sec. 1. The fiscal year shall commence on the second Monday of
January in each year, unless otherwise provided by law.
Revenue to be Provided by Taxation.
Sec. 2. The Legislature shall provide such revenue as may be need-
ful, by levying a tax by valuation, so that every person or corporation
shall pay a tax in proportion to the value of his, her, or its property,
except as in this article herein otherwise provided. The Legislature
may also impose a license tax (both upon natural persons and upon
corporations, other than municipal, doing business in this State) ; also
a percapita tax: Provided, The Legislature may exempt a limited
amount of improvements upon land from taxation.
Cited: State v. Doherty (1892) 3 Ida.
384; 29 Pac. 855; Stein v. Morrison
(1904) 9 Ida. 426; 75 Pac. 246; State
v. Jones (1904) 9 Ida. 693; 75 Pac.
819; Humbird Lbr. Co. v. Thompson
(1905) 11 Ida. 614; 83 Pac. 941.
License Tax: The license tax au-
thorized by this section is not re-
stricted to the single purpose of rais-
ing revenue. State v. Union etc. Ins.
Co. (1902) 8 Ida. 240; 67 Pac. 647.
Property to be Denned and Classified.
Sec. 3. The word "property" as herein used shall be defined and
classified by law.
Public Property Exempt from Taxation.
Sec. 4. The property of the United States, the State, counties,
towns, cities and other municipal corporations and public libraries
shall be exempt from taxation.
Taxes to be Uniform: Exemptions.
Sec. 5. All taxes shall be uniform upon the same class of subjects
within the territorial limits, of the authority levying the tax, and
shall be levied and collected under general laws, which shall prescribe
such regulations as shall secure a just valuation for taxation of all
property, real and personal : Provided, That the Legislature may
allow such exemptions from time to time as shall seem necessary
and just, and all existing exemptions provided by the laws of the
territory, shall continue until changed by the Legislature of the State ;
FINANCE AND REVENUE
109
Provided, further, That duplicate taxation of property for the same
purpose during the same year, is hereby prohibited.
Cited: Salisbury v. Lane (1900) 7
Ida. 370; 63 Pac. 383; Humbird Lbr.
Co. v. Thompson (1905) 11 Ida. 614;
83 Pac. 941.
Provision Self -Acting: The con-
stitutional requirement of uniformity
of taxation is self-acting, and applies
to all officers and boards that have
anything- to do with the levy and
assessment of taxes. Orr v. State
Board of Equalization (1891) 3 Ida.
190; 28 Pac. 416.
License Taxes: A graduated license
tax imposed on the liquor traffic
does not violate the requirement of
equality of taxation imposed by this
section. State v. Doherty (1892) 3
Ida. 384; 29 Pac. 855.
Double Taxation: It is not double
taxation to levy a tax on billiard
tables according to their value, and
at the same time to require the pro-
prietor thereof to pay a license tax
under Rev. Stat. Sec. 1645. State
v. Jones (1904) 9 Ida. 693; 75 Pac.
819.
The prohibition of double taxation
contained in this section is directed
against the taxing of the same prop-
erty twice during the same year for
the same purpose, while other like
and similar property is taxed only
once during the same period for that
purpose. It does not extend to pre-
vent a special levy, for road purposes
only, under Laws 1901, 78, on all
property of the county, although such
property is also taxed in the general
levy for the road funds of the county.
Humbird Lumber Co. v. Kootenai Co.
(1904) 10 Ida. 490; 79 Pac. 396.
Municipal Corporations to Impose Their Own Taxes.
Sec. 6. The Legislature shall not impose taxes for the purpose
of any county, city, town or other municipal corporation, but may by
law invest in the corporate authorities thereof, respectively, the power
to assess and collect taxes for all purposes of such corporation.
Cited: City of Genesee v. Latah
Co. (1894) 4 Ida. 141; 36 Pac. 701;
McConnell v. State Bd. etc. (1905)
11 Ida. 652; 83 Pac. 494.
Application — License Taxes: This
section relates to taxes properly
speaking, and does not apply to
license taxes so as to render uncon-
stitutional Rev. St., Sec. 1644 which
imposes license taxes the proceeds
of which may be retained for the use
of the county in which they are col-
lected. State v. Union etc. Ins. Co.
(1902) 8 Ida. 240; 67 Pac. 647.
Special Taxes: This section does
not prohibit the Legislature from au-
thorizing and requiring the county
commissioners to levy a special ad
valorem tax for the purpose of liq-
uidating the existing indebtedness of
the counties to the State. Gooding
v. Proffitt (1905) 11 Ida. 380; 83 Pac.
230.
State Taxes to be Paid in Full.
Sec. 7. All taxes levied for State purposes shall be paid into the
State Treasury, and no county, city, town, or other municipal corpora-
tion, the inhabitants thereof, nor the property therein, shall be re-
leased or discharged from their or its proportionate share of taxes to
be levied for State purposes.
Cited: State v. Ada Co. (1900) 7
Ida. 261; 62 Pac. 457.
Provision Self- Acting-: This sec-
tion of the constitution is self-acting
and goes into effect without any leg-
islation. Cunningham v. Moody
(1891) 3 Ida. 125; 35 Am. St. Rep.
269; 28 Pac. 395.
Payment of Taxes to State: All
taxes collected for state purposes
must be paid into the State Treasury
without any deduction for fees or
commissions for collecting the same.
Guheen v. Curtis (1892) 3 Ida. 443;
31 Pac. 805.
Corporate Property Must be Taxed.
Sec. 8. The power to tax corporations or corporate property, both
real and personal, shall never be relinquished or suspended, and all
corporations in this State or doing business therein, shall be subject
to taxation for State, county, school, municipal, and other purposes,
on real and personal property owned or used by them, and not by
110
CONSTITUTION OF IDAHO
this Constitution exempted from taxation within the territorial limits
of the authority levying the tax.
Cited: Guheen v. Curtis (18 92) 3
Ida. 443; 31 Pac. 805.
Maximum Rate of Taxation.
Sec. 9. The rate of taxation of real and personal property for State
purposes shall never exceed ten (10) mills on each dollar of assessed
valuation, unless a proposition to increase such rate, specifying the
rate proposed and the time during which the same shall be levied, shall
have been submitted to the people at a general election, and shall
have received a majority of all the votes cast for and against it at
such election.
Senate Joint Resolution, passed
March 2, 1905. (Laws 1905, 441).
Ratified Nov. 6, 1906.
The section prior to amendment
read as follows:
Sec. 9. The rate of taxation of real
and personal property for State pur-
poses shall never exceed ten (10)
mills on each dollar of assessed valua-
tion; and if the taxable property in
the State shall amount to fifty million
(50,000,000) dollars the rate shall not
exceed five (5) mills on each dollar
of valuation; and whenever the tax-
able property in the State shall
amount to one hundred million (100,-
000,000) dollars, the rate shall not ex-
ceed three (3) mills on each dollar
of valuation; and whenever the tax-
able property of the State shall
amount to three hundred million
(300,000,000) dollars the rate shall
never thereafter exceed one and one-
half (1%) mills on each dollar of
valuation, unless a proposition to in-
crease such rate, specifying the rate
proposed and the time during which
the same shall be levied, shall have
been submitted to the people at a
general election, and shall have re-
ceived a majority of all the votes cast
for and against it at such election.
Cited: (Concur, op.) Green v.
State Board Canvassers (1896) 5 Ida.
130; 47 Pac. 259.
Limit of Taxation: The tax levy
for state purposes is intended to cover
the current and running expenses of
maintaining and conducting the State
Government and the operation and
maintenance of the State institutions,
and the maximum limit of taxation
specified hereby does not include an
additional levy for the purpose of pay-
ing the interest on, and providing a
sinking fund for, the public or bonded
indebtedness of the State incurred un-
der Sec. 1 of Art. 8 of the Constitu-
tion. Gooding v. Proffit (1905) 11
Ida. 380; 83 Pac. 230.
Making Profit from Public Money Prohibited.
Sec. 10. The making of profit, directly or indirectly, out of State,
county, city, town, township, or school district money, or using the
same for any purpose not authorized by law, by any public officer,
shall be deemed a felony, and shall be punished as provided by law.
Expenditure Not to Exceed Appropriation.
Sec. 11. No appropriation shall be made, nor any expenditure au-
thorized by the Legislature, whereby the expenditure of the State
during any fiscal year shall exceed the total tax then provided by law,
and applicable to such appropriation or expenditure, unless the leg-
islature making such appropriation shall provide for levying a suffi-
cient tax, not exceeding the rates allowed in section nine (9) of this
article, to pay such appropriation or expenditure within such fiscal
year. This provision shall not apply to appropriations or expendi-
tures to suppress insurrection, defend the State, or assist in defend-
ing the United States in time of war.
Cited: Gooding v. Proffit (1905)
11 Ida. 380; 83 Pac. 230.
Excessive Appropriation Bill: The
fact that an appropriation bill passed
FINANCE AND REVENUE
111
by the Legislature, appropriates
money in excess of the general tax lev-
ied to cover the appropriation, does
not render the appropriation repug-
nant to this section, in the absence
of a showing that the estimated reve-
nue to be derived from the State from
other sources, such as license and per
capita taxes and fees of officers, will
be insufficient to make up the defi-
ciency. Stein v. Morrison (1904) 9
Ida. 426; 75 Pac. 246.
State Board of Equalization.
Sec. 12. There shall be a State Board of Equalization, consisting
of the Governor, Secretary of State, Attorney General, State Auditor,
and State Treasurer, whose duties shall be prescribed by law. The
board of county commissioners for the several counties of the State,
shall constitute boards of equalization for their respective counties,
whose duties it shall be to equalize the valuation of the taxable prop-
erty in the county, under such rules and regulations as shall be pre-
scribed by law.
Assessment of Omitted Property:
This section is not infringed by Rev.
St., Sec. 1483, as amended by Laws
1899, 454, which authorizes the Board
of Equalization to require the assessor
to assess any taxable property that
has escaped assessment; increase val-
uations, or add to the amount, num-
ber, quantity or value of property.
Murphy v. Board of Equalization
(1899) 6 Ida. 745; 59 Pac. 715.
Nature of Board: The board of
county commissioners when sitting as
a Board of Equalization, is a distinct
body, with distinct duties and func-
tions, and its orders made while sit-
ting as such board are not subject to
the provisions of statutes authorizing
appeals from the board of county
commissioners. Feltham v. Board of
Commrs. (1904) 10 Ida. 182; 77 Pac.
332.
Money: How Drawn from Treasury.
Sec. 13. No money shall be drawn from the treasury, but in pur-
suance of appropriations made by law.
Necessity of Appropriation: An
attorney employed by the State Audi-
tor pursuant to Rev. St., Sec. 1685,
which authorizes such employment
and provides that the expense must
be paid out of the State Treasury, is
not entitled to a warrant in payment
for his services until an appropriation
la made therefor. Kingsbury v. An-
derson (1898) 5 Ida. 771; 51 Pac.
744
While the Board of Examiners may
ailov a claim which they find to be
correct, yet no warrant can issue
therefor until the Legislature makes
an appropriation to cover the same.
Kroutinger v. Board of Examiners
(1902) 8 Ida. 463; 69 Pac. 279.
Where an act creating an office
fixes the compensation of the officer
and time of payment, and authorizes
the comptroller to draw his warrant
to pay the same when due, no further
appropriation is required. Gilbert v.
Moody (1891) 3 Ida. 3; 25 Pac. 1092.
Same: How Drawn from County Treasuries.
Sec. 14. No money shall be drawn from the county treasuries ex-
cept upon the warrant of a duly authorized officer, in such manner and
form as shall be prescribed by the Legislature.
Legislature to Provide System of County Finance.
Sec. 15. The Legislature shall provide by law, such a system of
county finance, as shall cause the business of the several counties to
be conducted on a cash basis. It shall also provide that whenever any
county shall have any warrants outstanding and unpaid, for the
payment of which there are no funds in the county treasury, the
county commissioners, in addition to other taxes provided by law,
shall levy a special tax, not to exceed ten (10) mills on the dollar, of
taxable property, as shown by the last preceding assessment, for the
creation of a special fund for the redemption of said warrants; and
Vol 1 — 5
112
CONSTITUTION OF IDAHO
after the levy of such special tax, all warrants issued before such
levy, shall be paid exclusively out of said fund. All moneys in the
county treasury at the end of each fiscal year, not needed for current
expenses, shall be transferred to said redemption fund.
Funding; Bonds Not Prohibited:
This section, in requiring- the business
of counties to be conducted on a cash
basis, does not preclude the Legisla-
ture from authorizing counties to is-
sue bonds for the purpose of taking
up outstanding warrants and refund-
ing bonds already issued. Bannock
Co. v Bunting (1894) 4 Ida. 156; 37
Pac. 277.
Legislature to Pass Necessary Laws.
Sec. 16. The Legislature shall pass all laws necessary to carry out
the provisions of this article.
ARTICLE 8.
PUBLIC INDEBTEDNESS AND SUBSIDIES.
Section
3. Limitations on county and mu-
nicipal indebtedness.
4. County, etc., not to loan or give
its credit.
Sec tion
1. Limitations on public indebted-
ness.
2. Credit of State shall not be given
or loaned.
Limitation on Public Indebtedness.
Sec. 1. The Legislature shall not in any manner create any debt
or debts, liability or liabilities, which shall singly or in the aggregate,
exclusive of the debt of the Territory at the date of its admission as a
state, exceed the sum of one and one-half per centum upon the assess-
ed value of the taxable property in the State, except in case of war
to repel an invasion or suppress insurrection, unless the same shall
be authorized by law for some single object or work to be distinctly
specified therein, which law shall provide ways and means, exclusive
of loans, for the payment of the interest of such debt or liability, as it
falls due; and also for the payment and discharge of the principal
of such debt or liability, within twenty years of the time of the con-
tracting thereof, and shall be irrepealable until the principal and in-
terest thereon shall be paid and discharged; but no such law shall
take effect until at a general election it shall have been submitted
to the people, and shall have received a majority of all the votes cast
for and against it at such election; and all moneys raised by the
authority of such law, shall be applied only to the specified object
therein stated, or to the payment of the debt thereby created, and such
law shall be published in at least one newspaper in each county, or
city and county, if one be published therein, throughout the State,
for three months next preceding the election at which it is submitted
to the people. The Legislature may, at any time after the approval
of such law, by the people, if no debt shall have been contracted in
the pursuance thereof, repeal the same.
Cited: (Concur, op.) Green v. State
Board of Canvassers (1896) 5 Ida.
130: 47 Pac. 259; Gooding v. Proffitt
(1905) 11 Ida. 380; 83 Pac. 230.
Application: The article of which
this section is a part, provides for the
general subject of State indebtedness
to be incurred for such objects as the
erection of public buildings, the meet-
ing of extraordinary expenses, such
as may be incurred in case of war,
etc., and does not apply to the ordi-
nary current expenses of the State
which are provided for in Art. 7.
PUBLIC INDEBTEDNESS AND SUBSIDIES
113
Stein v. Morrison (1904) 9 Ida 426;
75 Pac. 246.
Excessive Appropriation Bill: The
fact that the general appropriation
bili covering the expenses of the State
for the next two years, provides for
expenditures in excess of the revenue
provided for by the general tax levy,
does not create a debt within the
meaning of this section. lb.
Credit of State Shall Not be Given or Loaned.
Sec. 2. The credit of the State shall not, in any manner, be given,
or loaned to, or in aid of any individual, association, municipality or
corporation ; nor shall the State directly or indirectly, become a stock-
holder in any association or corporation.
Limitations on County and Municipal Indebtedness.
Sec. 3. No county, city, town, township, board of education, or
school district, or other subdivision of the State shall incur any in-
debtedness, or liability in any manner, or for any purpose, exceed-
ing in that year, the income and revenue provided for it for such
year, without the assent of two-thirds of the qualified electors thereof,
voting at an election to be held for that purpose, nor unless, before
or at the time of incurring such indebtedness, provision shall be made
for the collection of an annual tax sufficient to pay the interest on
such indebtedness as it falls due, and also to constitute a sinking
fund for the payment of the principal thereof, within twenty years
from the time of contracting the same. Any indebtedness or liability
incurred contrary to this provision shall be void : Provided, That this
section shall not be construed to apply to the ordinary and necessary
expenses authorized by the general laws of the State.
Cited: (Concur, op.) Green v. State
Board of Canvassers (1896) 5 Ida. 130,
47 Pac. 25 9; Andrews v. Board
Commrs. Ada Co. (1900) 7 Ida. 453;
63 Fac. 592.
Object of Section: The object and
purpose of this provision is to main-
tain the credit of the State and coun-
ties by keeping them upon a cash
ba'sis. Co. of Ada v. Bullen Bridge
Co. (1896) 5 Ida. 79; 47 Pac. 818;
Ball v. Bannock Co. (1897) 5 Ida.
602: 51 Pac. 454.
Provisions Mandatory: The au-
thority of boards of county commis-
sioners in creating debts is limited by
the Constitution and statutes of the
State, and must be exercised within
those limits, and at least with a sub-
stantial compliance with the mode
prescribed; the provisions of the Con-
stitution are mandatory and must be
complied with. Dunbar v. Commrs.
(1897) 5 Ida. 407; 49 Pac. 409.
Prohibited Indebtedness: County
commissioners cannot incur a debt
for a court house site without sub-
mitting the question to a popular
vote. Bannock Co. v. Bunting (1894)
4 Ida. 156; 37 Pac. 277. The issu-
'inr-e of funding bonds which increase
the county indebtedness is within the
prohibitions of this section. lb. Mu-
nicipal indebtedness incurred during
a given fiscal year, cannot be paid out
c f the income or revenue of a future
jear, unless such revenue is especially
raised for the payment of such in-
debtedness. Theiss v. Hunter (1896)
4 Ida. 788; 45 Pac. 2. The construc-
tion of a bridge involving an expendi-
ture equal to more than half of the
rovenue of a county for the year, is
an extraordinary expense. Co, of Ada
v. Bullen Bridge Co. (1896) 5 Ida. 79;
47 Pac. 818. The building of a bridge
and the payment of scalp bounties are
extraordinary expenses. Dunbar v.
Board of Commrs. (1897) 5 Ida. 407;
49 Pac. 409; Gillette-Herzog Mfg. Co.
v. Canyon Co. (1898) 85 Fed. Rep.
3 96. The issuance of county warrants
in excess of the county's revenue, for
the construction of a wagon road is
unauthorized except by a compliance
with this section. McNutt v. Lemhi
Co. (1906) 12 Ida. 63; 84 Pac. 1054.
Same — Necessity of Expenditure:
Expenditures made in excess of the
revenue of any current year must not
on,y be for ordinary expenses, such
as are usual to the maintenance of the
county government, the conduct of
necessary business, and the protection
of its property, but there must exist
a necessity for making the expendi-
ture during such year. Dunbar v.
Board of Commrs. (1897) 5 Ida. 407;
49 Pac. 409.
Indebtedness not Prohibited: The
provisions of this section apply only
to a debt contracted for an extraordi-
nary expense in excess of the revenue
provided for the year; it does not pro-
114
CONSTITUTION OF IDAHO
hibit the purchase of real estate for
a court house, where the cost will not
create an indebtedness in excess of
the current revenue after deducting
the indebtedness incurred by the
county up to the time of the purchase.
Ball v. Bannock Co. (1897) 5 Ida.
602; 51 Pac. 454.
The provisions of this section au-
thorize the issuance of municipal
bonds to take up the outstanding in-
debtedness of the city incurred for
the current pay of officers and the
ordinary expenses of the city. Butler
v. Citv of Lewiston (1905) 11 Ida.
393; 83 Pac. 234.
Municipal obligations, such as for
the construction of sewers, required
to be paid out of special assessments
levied against property particularly
benefited, are not an indebtedness or
liability within the meaning of this
section, and may be incurred, when
the statute so provides, without sub-
mission of the question to popular
vote. McGilvery v. City of Lewiston
(1907) 13 Ida. — ; 90 Pac. 348.
Provision for Sinking Fund: Rev.
Stat., Sec. 3602, as amended by
Laws 1891, 200, which, in providing
for the funding of county indebted-
ness, requires the commissioners to
levy a sufficient tax to pay the interest
on the funding bonds, and, at least
one year before the bonds become due,
to levy a sufficient additional sum to
pay the same, authorizes adequate
provisions for paying the interest on
the bonds and for the creation of a
sinking fund for their redemption,
sufficiently to comply with this section.
Bannock Co. v. Bunting (1894) 4 Ida.
156; 37 Pac. 277.
Where the city council provided by
ordinance for the levy of an annual
tax for the payment of all interest to
accrue on funding bonds about to be
issued, and also by such ordinance
provided for the levy of an annual tax
after the year 1909 to constitute a
sinking fund for the payment of the
principal of such bonds, the provisions
of this section are complied with, and
bonds issued under such ordinance are
valid. Boise City v. Union Bank &
Trust Co. (1900) 7 Ida. 342; 63 Pac.
107.
Effect of Violation: Warrants is-
sued in violation of this provision are
void, Co. of Ada v. Bullen Bridge Co.
(1896) 5 Ida. 79; 47 Pac. 818.
A debt created in contravention of
the provisions of this section cannot
be changed into the form of a nego-
tiable instrument and thus defeat the
object of the Constitution. Dunbar v.
Board Commrs. (1897) 5 Ida. 407; 49
Pac. 409.
Where an extraordinary indebted-
ness is incurred by a county without
complying with this section, the act of
the county in thereafter issuing bonds
sufficient to cover such indebtedness
and all other indebtedness of the
county, does not constitute a ratifica-
tion of the unlawful indebtedness such
as to render the same enforceable
against the county. McNutt v. Lemhi
Co. (1906) 12 Ida. 63; 84 Pac. 1054.
Bond Elections — Suffrage: This pro-
vision of the Constitution which re-
quires the assent of two-thirds of the
qualified electors in the incurrence of
a municipal debt, and prescribes no
property qualifications as to such elec-
tors, is not infringed by a provision of
a municipal charter which requires the
assent of two-thirds of the qualified
electors who are taxpayers to the in-
currence of such a debt. Wiggin v.
Citv of Lewiston (1902) 3 Ida. 527;
69 Pac. 286.
County, etc., not to Loan or Give Its Credit.
Sec. 4. No county, city, town, township, board of education, or
school district, or other subdivision, shall lend, or pledge the credit
or faith thereof directly or indirectly, in any manner, to, or in aid
of any individual, association or incorporation, for any amount or for
any purpose whatever, or become responsible for any debt, contract
or liability of any individual, association or corporation in or out of
this State.
ARTICLE 9.
EDUCATION AND SCHOOL LANDS
Section
1. Legislature to establish system
of free schools.
2. Board of education.
3. Public school fund to remain in-
tact.
4. Public school fund defined.
Section
5. Sectarian appropriations pro-
hibited.
6. Religious test and teaching in
schools prohibited.
7. State Board of Land Commis-
sioners.
EDUCATION AND SCHOOL LANDS
115
Location and disposition of pub-
lic lands.
Compulsory attendance on
schools.
10. State University;
gents and lands.
11. Loaning educational funds
Location, re-
Legislature to Establish System of Free Schools.
Sec. 1. The stability of a Republican form of government depend-
ing mainly upon the intelligence of the people, it shall be the duty
of the Legislature of Idaho, to establish and maintain a general uni-
form and thorough system of public, free common schools.
/^ Board of Education.
[/ Sec. 2. The general supervision of the public schools of the State
shall be vested in a Board of Education, whose powers and duties shall
be prescribed by law; the Superintendent of Public Instruction, the
Secretary of State and Attorney General, shall constitute the Board,
of which the Superintendent of Public Instruction shall be president.
Public School Fund to Remain Intact.
Sec. 3. The public school fund of the State shall forever remain
inviolate and intact; the interest thereon only shall be expended in
the maintenance of the schools of the State, and shall be distributed
among the several counties and school districts of the State in such
a manner as may be prescribed by law. No part of this fund, princi-
pal and interest, shall ever be transferred to any other fund, or used
or appropriated except as herein provided. The State Treasurer shall
be the custodian of this fund, and the same shall be securely and
profitably invested as may be by law directed. The State shall supply
all losses thereof that may in any manner occur.
otherwise than as provided by the
Constitution, and any law enacted by
the Legislature diverting such funds
for purposes other than those speci-
fied by the Constitution, would be
unconstitutional. State v. Fitzpat-
rick (1897) 5 Ida. 499; 51 Pac. 112.
Diversion of School Fund: No part
of the permanent school fund of the
State can be expended in the pay-
ment of forfeitures imposed by the
statute law of the State. The Con-
stitution expressly prohibits the Leg-
islature from enacting a law that
would divert one dollar of such fund
Public School Fund Denned.
Sec. 4. The public school fund of the State shall consist of the
proceeds of such lands as have heretofore been granted, or may here-
after be granted, to the State by the general government, known as
school lands, and those granted in lieu of such; lands acquired by
gift or grant from any person or corporation, under any law or grant
of the general government, and of all other grants of land or money
made to the State from the general government for general educa-
tional purposes, or where no other special purpose is indicated in such
grant ; all estates or distributive shares of estates that may escheat to
the State; all unclaimed shares and dividends of any corporation in-
corporated under the laws of the State; and all other grants, gifts,
devises, or bequests made to the State for general educational pur-
poses.
Proceeds of Lands: Under this
section, together with Sec. 5 and 8 of
the Admission Bill, the interest or in-
come from the proceeds of the sale of
University lands can only be used in
the support and maintenance of the
116
CONSTITUTION OF IDAHO
University, and in the payment of the
current expenses thereof and the
charges for conducting the same, and
cannot be used for the erection or
equipment of University buildings.
Roach v. Gooding (1905) 11 Ida. 244;
81 Pac. 642.
Sectarian Appropriations Prohibited.
Sec. 5. Neither the Legislature, nor any county, city, town, town-
ship, school district, or other public corporation, shall ever make
any appropriation, or pay from any public fund or moneys what-
ever, anything in the aid of any church or sectarian, or religious
society, or for any sectarian or religious purpose, or to help support
or sustain any school, academy, seminary, college, university or other
literary or scientific institution, controlled by any church or sectarian
or religious denomination whatsoever; nor shall any grant or dona-
tion of land, money or other personal property ever be made by the
State, or any such public corporation, to any church or for any sec-
tarian or religious purpose.
Religious Test and Teaching in School Prohibited.
Sec. 6. No religious test or qualification shall ever be required
of any person as a condition of admission into any public educa-
tional institution of the State, either as a teacher or student ; and no
teacher or student of any such institution shall ever be required to at-
tend or participate in any religious service whatever. No sectarian or
religious tenets or doctrines shall ever be taught in the public schools,
nor shall any distinction or classification of pupils be made on account
of race or color. No books, papers, tracts or documents of a political,
sectarian or denominational character shall be used or introduced
in any schools established under the provisions of this article, nor
shall any teacher or any district receive any of the public school
moneys in which the schools have not been taught in accordance with
the provisions of this article.
State Board of Land Commissioners.
Sec. 7. The Governor, Superintendent of Public Instruction, Sec-
retary of State and Attorney General shall constitute the State Board
of Land Commissioners, who shall have the direction, control and
disposition of the public lands of the State, under such regulations
as may be prescribed by law.
Location and Disposition of Public Lands.
Sec. 8. It shall be the duty of the State Board of Land Commis-
sioners to provide for the location, protection, sale or rental of all
the lands heretofore, or which may hereafter be, granted to the State
by the general government, under such regulations as may be pre-
scribed by law, and in such manner as will secure the maximum
possible amount therefor: Provided, That no school lands shall be
sold for less than ten (10) dollars per acre. No law shall ever be
passed by the Legislature granting any privileges to persons who may
have settled upon any such public lands, subsequent to the survey
thereof by the general government, by which the amount to be de-
rived by the sale, or other disposition of such lands, shall be dimin-
EDUCATION AND SCHOOL LANDS
117
ished, directly or indirectly. The Legislature shall, at the earliest
practicable period, provide by law that the general grants of land
made by Congress to the State shall be judiciously located and care-
fully preserved and held in trust, subject to disposal at public auction
for the use and benefit of the respective objects for which said grants
of lands were made, and the Legislature shall provide for the sale of
said lands from time to time and for the sale of timber on all State
lands and for the faithful application of the proceeds thereof in
accordance with the terms of said grants : Provided, That not to ex-
ceed twenty-five sections of school lands shall be sold in any one
year, and to be sold in subdivisions of not to exceed one hundred and
sixty (160) acres to any one individual, company or corporation.
Cited: State v. Fitzpatrick (1897)
5 Ida. 499: 51 Pac. 112.
Compulsory Attendance on Schools.
Sec- 9. The Legislature may require by law that every child of
sufficient mental and physical ability shall attend the public school
throughout the period between the ages of six and eighteen years,
for a time equivalent to three years, unless educated by other means.
State University: Location, Regents and Lands.
Sec. 10. The location of the University of Idaho, as established
by existing laws, is hereby confirmed. All the rights, immunities,
franchises, and endowments, heretofore granted thereto by the Terri-
tory of Idaho are hereby perpetuated unto the said Univer-
sity. The regents shall have the general supervision of the Univer-
sity, and the control and direction of all the funds of, and appropria-
tions to, the University, under such regulations as may be prescribed
by law. No university lands shall be sold for less than ten dollars
per acre, and in subdivisions not to exceed one hundred and sixty
acres, to any one person, company or corporation.
Loaning Educational Funds.
Sec. 11. The permanent educational funds other than funds
arising from the disposition of university lands belonging to the
State, shall be loaned on first mortgage or improved farm lands
within the State; State, United States, or school district bonds, or
State warrants, under such regulations as the Legislature may pro-
vide. Provided. That no loan shall be made of any amount of money
exceeding one-third of the market value of the lands at the time
of the loan, exclusive of buildings.
Senate Joint Resolution, passed
March 3, 1899 (Laws 1899, 330), Rat-
ified Nov. 6, 1900.
This section prior to amendment
read as follows:
Sec. 11. The permanent education-
al funds, other than funds arising
from the disposition of University-
lands belonging to the State, shall
be loaned on first mortgage on im-
proved farm lands within the State,
or on State or United States bonds,
under such regulations as the Legis-
lature may provide: Provided, That
no loan shall be made of any amount
of money exceeding one-third of the
market value of the lands at the time
of the loan, exclusive of buildings.
Cited: State v. Fitzpatrick (1897)
5 Ida. 499; 51 Pac. 112.
118
CONSTITUTION OF IDAHO
ARTICLE 10.
PUBLIC INSTITUTIONS.
Section
1. State to establish and support
institutions.
2. Seat of government.
3. Same: Change in location.
4. Property of Territory becomes
property of State.
Section
5. State Prison Commissioners.
6. Directors of Insane Asylum.
7. Change in location of institu-
tions.
State to Establish and Support Institutions.
Sec. 1. Educational, reformatory, and penal institutions, and
those for the benefit of the insane, blind, deaf and dumb, and such
other institutions as the public good may require, shall be established
and supported by the State in such manner as may be prescribed
by law.
Seat of Government.
Sec. 2. The seat of government of the State of Idaho shall be
located at Boise City for twenty years from the admission of the
State, after which time the Legislature may provide for its relocation,
by submitting the question to a vote of the electors of the State at
some general election.
Same: Change in Location.
Sec. 3. The Legislature may submit the question of the location of
the seat of government to the qualified voters of the State at the
general election, then next ensuing, and a majority of all the votes
upon said question cast at said election shall be necessary to deter-
mine the location thereof. Said Legislature shall also provide that
in case there shall be no choice of location at said election the ques-
tion of choice between the two places for which the highest num-
ber of votes shall have been cast shall be submitted in like manner
to the qualified electors of the State at the next general election.
Property of Territory Becomes Property of State.
Sec. 4. All property and institutions of the Territory, shall, upon
adoption of the Constitution, become the property and institutions of
the State of Idaho.
State Prison Commissioners.
Sec. 5. The Governor, Secretary of State and Attorney General
shall constitute a board to be known as the State Prison Commis-
sioners, and shall have control, direction and management of the
penitentiaries of the State. The Governor shall be chairman, and
the board shall appoint a warden, who may be removed at pleasure.
The warden shall have the power to appoint his subordinates, sub-
ject to the approval of the said board.
Management of Penitentiary: Since
this section confers on the Board of
Prison Commissioners the manage-
ment and control of the Penitentiary,
the Legislature has no power to take
from the Board such management
and control, or to make any rules and
regulations for the government of
the Board which would in any way
interfere with the efficient manage-
ment and control of the institution.
Ackley v. Perrin (1905) 10 Ida. 531;
79 Pac. 192.
CORPORATIONS, PUBLIC AND PRIVATE
119
Meetings of Board: The Board of authorized to transact, and it is not
State Prison Commissioners created necessary for them to give notice to
by this section, may meet at such a member of the Board who is, at the
times as they deem necessary; a ma- time of calling- and holding the meet-
jority of the officers constituting the ing, beyond the jurisdiction of the
Board may hold a meeting and trans- State. (Stockslager, J., dissents.) lb.
act any business which the Board is
Directors of Insane Asylum.
Sec. 6. There shall be appointed by the Governor three directors
of the asylum for the insane, who shall be confirmed by the Senate.
They shall have the control, direction and management of the said
asylums, under such regulations as the Legislature shall provide, and
hold their offices for a period of two years. The directors shall have
the appointment of the medical superintendent, who shall appoint the
assistants with the approval of the directors.
Cited: (Dis. op.) Pyke v. Steunen-
berg (1897) 5 Ida. 614; 51 Pac, 614;
Ackley v. Perrin (1905) 10 Ida. 531;
79 Pac. 192.
Change in Location of Institutions.
Sec. 7. The Legislature for sanitary reasons may cause the re-
moval to more suitable localities of any of the institutions mentioned
in section one of this article.
ARTICLE 11.
CORPORATIONS, PUBLIC AND PRIVATE.
Section
1. Certain grants and charters in-
validated.
2. Special charters prohibited.
3. Revocation and alteration of
charters.
4. Shares of stock; How voted.
5. Regulation and control of rail-
roads.
6. Equal transportation rights guar-
anteed.
7. Acceptance of Constitution by
corporations.
8. Right of eminent domain and
police power reserved.
9. Increase in capital stock.
Section
10. Regulation of foreign corpora-
tions.
11. Constructing railroad in city or
town.
12. Retroactive laws favoring cor-
porations prohibited.
13. Telegraph and telephone com-
panies.
14. Consolidation of corporations
with foreign corporations.
15. Transfer of franchises.
16. Term "corporation" denned.
17. Liability of stockholders: Dues.
18. Combinations in restraint of
trade prohibited.
Certain Grants and Charters Invalidated.
Sec. 1. All existing charters or grants of special or exclusive
privileges, under which the corporations or grantees shall not have
organized or commenced business in good faith at the time of the
adoption of this Constitution, shall thereafter have no validity.
Special Charters Prohibited.
Sec. 2. No charter of incorporation shall be granted, extended,
changed or amended by special law, except for such municipal, charit-
able, educational, penal or reformatory corporations as are or may
be under the control of the State; but the Legislature shall provide
by general law for the organization of corporations hereafter to be
created: Provided, That any such general law shall be subject to
future repeal or alteration by the Legislature.
120
CONSTITUTION OF IDAHO
Cited: Wiggin v. City of Lewiston
(1902) 8 Ida. 527; 69 Pac. 286.
Special Legislation: This section
prohibits the enactment of local or
special laws on the subjects therein
enumerated, but leaves the Legisla-
ture master of its own discretion in
passing special laws on subjects not
prohibited by the Constitution. But-
ler v. City of Lewiston (1905) 11 Ida.
393; 83 Pac. 234.
Joint Stock Companies: The pro-
vision of this section which requires
the Legislature to provide by general
law for the organization of corpora-
tions, is directed exclusively to the
Legislature, and is not -operative
without Legislative action; the pro-
vision does not prevent individuals
from organizing a joint stock com-
pany having attributes different from
those of ordinary corporations. Spots-
wood v. Morris (1906) 12 Ida. 360;
85 Pac. 1094.
This section has no application to
a voluntary joint stock company
which has no franchise of incorpora-
tion, and which exercises no powers
or privileges of a corporation which
are not possessed by individuals or
partnerships. lb.
Revocation and Alteration of Charters.
Sec. 3. The Legislature may provide by law for altering, revoking,
or annulling any charter of incorporation existing and revocable at
the time of the adoption of this Constitution, in such manner, how-
ever, that no injustice shall be done to the corporators.
Amendment of Municipal Charters:
The charter of the City of Lewiston,
which antedates the Constitution, may
be amended by the Legislature.
Wiggin v. City of Lewiston (1902) 8
Ida. 527; 69 Pac. 286.
Shares of Stock : How Voted.
Sec. 4. The Legislature shall provide by law that in all elections
for directors or managers of incorporated companies, every stock-
holder shall have the right to vote in person or by proxy, for the
number of shares of stock owned by him, for as many persons as
there are directors or managers to be elected, or to cumulate said
shares, and give one candidate as many votes as the numbers of di-
rectors multiplied by the number of his shares of stock, shall equal,
or to distribute them on the same principle among as many candi-
dates as he shall think fit, and such directors shall not be elected in
any other manner.
Cited: Olvmpia Mining Co. v.
Kerns (1907) 13 Ida. — ; 91 Pac. 92.
Regulation and Control of Railroads.
Sec. 5. All railroads shall be public highways, and all railroad,
transportation, and express companies shall be common carriers, and
subject to legislative control, and the Legislature shall have the power
to regulate and control by law, the rate of charges for the transpor-
tation of passengers and freight by such companies or other com-
mon carriers from one point to another in the State. Any associa-
tion or corporation organized for the purpose, shall have the right
to construct and operate a railroad between any designated points
within the State, and to connect within or at the State line with
railroads of other states and territories. Every railroad company
shall have the right with its road, to intersect, connect with, or cross
any other railroad, under such regulations as may be prescribed by
law, and upon making due compensation.
Equal Transportation Rights Guaranteed.
Sec. 6. All individuals, associations, and corporations, similarly
situated shall have equal rights to have persons or property trans-
CORPORATIONS, PUBLIC AND PRIVATE 121
ported on and over any railroad, transportation, or express route
in the State, except that preference may be given to perishable prop-
erty. No undue or unreasonable discrimination shall be made in
charges or facilities for transportation of freight or passengers of
the same class, by any railroad, or transportation, or express com-
pany, between persons or places within the State; but excursion or
commutation tickets may be issued .and sold at special rates, pro-
vided such rates are the same to all persons. No railroad, or trans-
portation, or express company shall be allowed to charge, collect or
receive, under penalties which the Legislature shall prescribe, any
greater charge or toll for the transportation of freight or passengers,
to any place or station upon its route or line, than it charges for the
transportation of the same class of freight or passengers to any more
distant place or station upon its route or line within this State. No
railroad, express, or transportation company, nor any lessee, mana-
ger, or other employee thereof, shall give any preference to any in-
dividual, association or corporation, in furnishing cars or motive
power or for the transportation of money or other express matter.
Acceptance of Constitution by Corporations.
Sec. 7. No corporation other than municipal corporations in ex-
istence at the time of the adoption of this Constitution, shall have the
benefit of any future legislation, without first filing in the office of the
Secretary of State an acceptance of the provisions of this Constitu-
tion in binding form.
Right of Eminent Domain and Police Power Reserved.
Sec. 8. The right of eminent domain shall never be abridged,
nor so construed as to prevent the Legislature from taking the prop-
erty and franchise of incorporated companies, and subjecting them
to public use, the same as property of individuals; and the police
powers of the State shall never be abridged nor so construed as to
permit corporations to conduct their business in such manner as to
infringe the equal rights of individuals, or the general well being
of the State.
Increase in Capital Stock.
Sec. 9. No corporation shall issue stocks or bonds, except for
labor done, services performed, or money or property actually re-
ceived; and all fictitious increase of stock or indebtedness shall be
void. The stock of corporations shall not be increased except in
pursuance of general law, nor without the consent of the persons
holding a majority of the stock, first obtained at a meeting, held
after at least thirty days' notice given in pursuance of law.
Regulation of Foreign Corporations.
Sec. 10. No foreign corporation shall do any business in this
State without having one or more known places of business, and,
an authorized agent or agents in the same, uoon whom process may
be served, and no company or corporation formed under the laws
of any other country, State, or Territory, shall have or be allowed
to exercise or enjoy, within this State any greater rights or privileges
122
CONSTITUTION OF IDAHO
than those possessed or enjoyed by corporations of the same or
similar character created under the laws of this State.
iCitecl: Smith v. Alberta etc. Rec.
Co. (1903) 9 Ida. 399; 74 Pac. 1071.
Provision Self -Acting: This pro-
vision is self-acting and self-operat-
ive in so far as it requires the facts
therein enumerated to exist at the
time a foreign corporation begins to
transact business within the State,
and it requires such corporations to
subject themselves to the jurisdiction
and laws of this State before they are
given recognition or legal existence
within its borders. Katz v. Herrick
(1906) 12 Ida. 1; 86 Pac. 873.
Constructing Railroad in City or Town.
Sec. 11. No street, or other railroad, shall be constructed within
any city, town, or incorporated village without the consent of the
local authorities having the control of the street or highway proposed
to be occupied by such street or other railroad.
Retroactive Laws Favoring Corporations Prohibited.
Sec. 12. The Legislature shall pass no law for the benefit of a
railroad, or other corporation, or any individual or association of
individuals retroactive in its operation, or which imposes on the
people of any county or municipal subdivision of the State, a new
liability in respect to transactions or considerations already past.
Telegraph and Telephone Companies.
Sec. 13. Any association or corporation, or the lessees or mana-
gers thereof, organized for the purpose, or any individual, shall
have the right to construct and maintain lines of telegraph or tele-
phone within this State, and connect the same with other lines; and
the Legislature shall by general law of uniform operation provide
reasonable regulations to give full effect to this section.
Consolidation of Corporations with Foreign Corporations.
Sec. 14. If any railroad, telegraph, express or other corporation,
organized under any of the laws of this State shall consolidate by
sale or otherwise with any railroad, telegraph, express, or other cor-
poration organized under any of the laws of any other State or Terri-
tory, or of the United States, the same shall not thereby become a for-
eign corporation, but the courts of this State shall retain jurisdiction
over that part of the corporate property within the limits of the
State in all matters that may arise, as if said consolidation had not
taken place.
Transfer of Franchises.
Sec. 15. The Legislature shall not pass any law permitting the
leasing or alienation of any franchise so as to release or relieve the
franchise or property held thereunder from any of the liabilities of
the lessor or grantor, or lessee or grantee, contracted or incurred
in the operation, use, or enjoyment of such franchise, or any of its
privileges.
Term "Corporation" Defined.
Sec. 16. The term "corporation" as used in this article, shall be
held and construed to include all associations and joint stock com-
CORPORATIONS, MUNICIPAL
123
panies having or exercising any of the powers or privileges of cor-
porations not possessed by individuals or partnerships.
Unincorporated Associations: An
unincorporated association or joint
stock company may be formed by in-
dividuals for the purchase of a single
tract of real estate, the title to which
may be taken in a trustee, and the
articles of agreement may provide
that the death of a shareholder shall
not result in the dissolution of the
association, and that either or any
of the officers or shareholders shall
not sell or dispose of any property of
the association, without the concur-
rence of the shareholders; such an
association is not a corporation under
the Constitution or statutes, but is a
form of special partnership. Spots-
wood v. Morris (1906) 12 Ida. 360;
85 Pac. 1094.
Liability of Stockholders: Dues.
Sec. 17. Dues from private corporations shall be secured by such
means as may be prescribed by law, but in no case shall any stock-
holder be individually liable in any amount over or above the amount
of stock owned by him.
Combinations in Restraint of Trade Prohibited.
Sec. 18. That no incorporated company, or any association of
persons or stock company, in the State of Idaho, shall directly or
indirectly combine or make any contract with any incorporated com-
pany, foreign or domestic, through their stockholders, or the trus-
tees or assignees of such stockholders, or in any manner whatsoever,
for the purpose of fixing the price, or regulating the production of
any article of commerce or of produce of the soil, or of consumption
by the people; and that the Legislature be required to pass laws for
the enforcement thereof, by adequate penalties, to the extent, if nec-
essary for that purpose, of the forfeiture of their property and fran-
chise.
ARTICLE 12.
CORPORATIONS, MUNICIPAL.
Section
1. General laws for cities and
towns.
2. Local police regulations author
ized.
Section
3. State not to assume local indebt-
edness.
4. Municipal corporations not to
loan credit.
General Laws for Cities and Towns.
Sec. 1. The Legislature shall provide by general laws for the
incorporation, organization and classification of the cities and towns,
in proportion to the population, which laws may be altered, amended,
or repealed by the general laws. Cities and towns heretofore in-
corporated, may become organized under such general laws, when-
ever a majority of the electors at a general election, shall so deter-
mine, under such provision therefor as may be made by the Leg-
islature.
Cited: People v. Bancroft (1892)
3 Ida. 35 6; 2 9 Pac. 112; (Concur, op.)
Green v. State Board Canvassers
(1896) 5 Ida. 130; 47 Pac. 259;
Brown v. Village of Grangeville.
(1902) 8 Ida. 784; 71 Pac. 151.
General Incorporation Laws: Pow-
er is directly given to the Legisla-
ture to enact general laws for the
incorporation of cities, towns and vil-
lages, and to alter, amend or repeal
such laws at any time. State v.
Steunenberg (1896) 5 Ida. 1; 45 Pac.
462.
124
CONSTITUTION OF IDAHO
Organization of Cities: The latter
part of this section of the Constitu-
tion points out a means by which
towns or villages which had been in-
corporated prior to the adoption of
the Constitution, may become organ-
ized into cities under general laws;
that is, whenever a majority of the
electors, at a general election held
for that purpose, so indicate by their
votes. lb.
Special Legislation Not Prohibited:
This section prohibits the enactment
of local or special laws on the sub-
jects therein enumerated, but leaves
the Legislature master of its own dis-
cretion in passing special laws on
subjects not prohibited by the Con-
stitution. Butler v. City of Lewiston
(1905) 11 Ida. 393; 83 Pac. 234.
Amendments of Special Charters:
The Legislature is not required to
submit acts amending special char-
ters of cities to the electors of such
cities prior to their going into effect,
lb.
Local Police Regulations Authorized.
Sec. 2. Any county or incorporated city or town may make and
enforce, within its limits, all such local, police, sanitary and other
regulations as are not in conflict with its charter or with the general
laws.
Cited: In re Francis (1900) 7 Ida.
98; 60 Pac. 561; In re Snyder (1905)
10 Ida. 682; 79 Pac. 819.
Municipal Ordinances: This pro-
vision authorizes the council of any
city to make and enforce ordinances
that are not in conflict with the gen-
eral law, and forbids the making and
enforcing of any ordinance in con-
flict with the general law. In re Rid-
enbaugh (1897) 5 Ida. 371; 49 Pac.
12.
Cities have the power to prescribe
and enforce police regulations pun-
ishing misdemeanors, notwithstand-
ing a general statute prescribing a
punishment for the same offense.
State v. Quong (1891) 8 Ida. 191; 67
Pac. 491.
State Not to Assume Local Indebtedness.
Sec. 3. The State shall never assume the debts of any county,
town, or other municipal corporation, unless such debts shall have
been created to repel invasion, suppress insurrection or defend the
State in war.
Municipal Corporations Not to Loan Credit.
Sec. 4. No county, town, city, or other municipal corporation, by
vote of its citizens or otherwise, shall ever become a stockholder
in any joint stock company, corporation or association whatever, or
raise money for, or make donation or loan its credit to, or in aid
of, any such company or associatiin: Provided, That cities and
towns may contract indebtedness for school, water, sanitary, and
illuminating purposes : Provided, That any city or town contracting
such indebtedness shall own its just proportion of the property thus
created, and receive from any income arising therefrom, its propor-
tion to the whole amount so invested.
Cited: State v. Union etc. Ins. Co.
(1902) 8 Ida. 240; 67 Pac. 647.
ARTICLE 13.
IMMIGRATION AND LABOR.
Section
1. Bureau of Immigration: Com-
missioner.
2. Protection and hours of labor.
3. Restrictions on convict labor.
4. Child labor in mines prohibited.
Section
5. Aliens not to be employed on
public work.
6. Mechanics liens to be provided.
7. Boards of Arbitration.
8. Duties and compensation of
Commissioner.
IMMIGRATION AND LABOR
125
Bureau of Immigration: Commissioner.
Sec. 1. There shall be established a Bureau of Immigration, Labor
and Statistics, which shall be under the charge of a Commissioner of
Immigration, Labor and Statistics, who shall be appointed by the
Governor, by and with the consent of the Senate. The Commissioner
shall hold his office for two years, and until his successor shall have
been appointed and qualified, unless sooner removed. The Commis-
sioner shall collect information upon the subject of labor, its rela-
tion to capital, the hours of labor and the earnings of laboring men
and women, and the means of promoting their material, social, in-
tellectual and moral prosperity. The Commissioner shall annually
make a report in writing to the Governor of the State of the in-
formation collected and collated by him, and containing such recom-
mendations as he may deem calculated to promote the efficiency of
the bureau.
Protection and Hours of Labor.
Sec. 2. Not more than eight (8) hours actual work shall con-
stitute a lawful day's work on all State and municipal works, and
the Legislature shall pass laws to provide for the health and safety
of employes in factories, smelters, mines and ore reduction works.
House Joint Resolution, approved
March 12, 1901, (Laws 1901, 311) rat-
ified Nov. 4th, 1902.
TJie section prior to amendment
read as follows:
Sec. 2. Not more than eight (8)
hours actual work shall constitute a
lawful day's work on all State and
municipal works.
Restrictions on Convict Labor.
Sec. 3. All labor of convicts confined in the State's prison, shall
be done within the prison grounds, except where the work is done
on public works under the direct control of the State.
Child Labor in Mines Prohibited.
Sec. 4. The employment of children under the age of fourteen
(14) years in underground mines is prohibited.
Aliens Not to be Employed on Public Work.
Sec. 5. No person, not a citizen of the United States, or who has
not declared his intention to become such, shall be employed upon,
or in connection with, any State or municipal works.
Mechanics' Liens to be Provided.
Sec. 6. The Legislature shall provide by proper legislation for
giving to mechanics, laborers, and material men an adequate lien on
the subject matter of their labor.
Boards of Arbitration.
Sec. 7. The Legislature may establish Boards of Arbitration,
whose duty it shall be to hear and determine all differences and
controversies between laborers and their employers which may be
submitted to them in writing by all the parties. Such Boards of Ar-
bitration shall possess all the powers and authority in respect to
administering oaths, subpoenaing witnesses, and compelling their
126
CONSTITUTION OF IDAHO
attendance, preserving order during the sittings of the board, pun-
ishing for contempt, and requiring the production of papers and
writings, and all other powers and privileges, in their nature ap-
plicable, conferred by law on Justices of the Peace.
Duties and Compensation of Commissioner.
Sec. 8. The Commissioner of Immigration, Labor and Statistics
shall perform such duties and receive such compensation as may be
prescribed by law.
ARTICLE 14.
MILITIA.
Section
1. Persons subject to military duty.
2. Legislature to provide for en-
rollment of militia.
3. Selection and commission of offi-
cers.
Section
4. Preservation of records, banners
and relics.
5. National and State flags only to
be carried.
6. Importation of armed forces pro-
hibited.
Persons Subject to Military Duty.
Sec. 1. All able bodied male persons, residents of this State, be-
tween the ages of eighteen and forty-five years shall be enrolled in
the militia, and perform such military duty as may be required by
law; but no person having conscientious scruples against bearing
arms, shall be compelled to perform such duty in time of peace.
Every person claiming such exemption from service, shall, in lieu
thereof, pay into the school fund of the county of which he may be
a resident, an equivalent in money, the amount and manner of pay-
ment to be fixed by law.
Legislature to Provide for Enrollment of Militia.
Sec. 2. The Legislature shall provide by law for the enrollment,
equipment and discipline of the militia, to conform as nearly as
practicable to the regulations for the government of the armies of
the United States, and pass such laws to promote volunteer organi-
zations as may afford them effectual encouragement.
Selection and Commission of Officers.
Sec. 3. All militia officers shall be commissioned by the Governor,
the manner of their selection to be provided by law, and may hold
their commissions for such period of time as the Legislature may
provide.
Preservation of Records, Banners and Relics.
Sec. 4. All military records, banners and relics of the State, ex-
cept when in lawful use, shall be preserved in the office of the
Adjutant General as an enduring memorial of patriotism and valor
of the soldiers of Idaho; and it shall be the duty of the Legislature
to provide by law for the safekeeping of the same.
National and State Flags Only to be Carried.
Sec. 5. All military organizations under the laws of this State
WATER RIGHTS
127
shall carry no other device, banner or flag than that of the United
States or the State of Idaho.
Importation of Armed Forces Prohibited.
Sec. 6. No armed police force, or detective agency-, or armed body
of men, shall ever be brought into this State for the suppression
of domestic violence, except upon the application of the Legislature,
or the Executive when the Legislature cannot be convened.
ARTICLE 15.
WATER RIGHTS.
Section
1. Use of waters a public use.
2. Right to collect rates a fran-
chise.
3. Appropriation of water: Priori-
ties.
Section
4. Continuing rights to wate- guar-
anteed.
5. Priorities and limitations on use.
6. Establishment of maximum
rates.
Use of Waters a Public Use.
Sec. 1. The use of all waters now appropriated, or that may here-
after be appropriated for sale, rental or distribution; also of all
water originally appropriated for private use, but which after such
appropriation has heretofore been, or may hereafter be sold, rented,
or distributed, is hereby declared to be a public use, and subject
to the regulation and control of the State in the manner prescribed
by law.
Cited: Wilterding v. Green (1896)
4 Ida. 773; 45 Pac. 134; Boise Irr. etc.
Co. v. Stewart (1904) 10 Idaho, 38; 77
Pac. 25, 321; Hill v. Standard Min.
Co. (1906) 12 Ida. 223; 85 Pac. 907.
Right to Use Water: The individ-
uals comprising the public, who are in
condition to use water, have a con-
stitutional right to use water under
such reasonable rules and regulations,
and upon such payments, as may be
prescribed. Wilterding v. Green
(1896) 4 Ida. 773; 45 Pac. 134.
Right to Collect Rates a Franchise.
Sec. 2. The right to collect rates or compensation for the use
of water supplied to any county, city, or town, or water district, or
the inhabitants thereof, is a franchise, and cannot be exercised ex-
cept by authority of and in the manner prescribed by law.
Cited: Wilterding v. Green (1896)
4 Ida, 773; 45 Pac. 134.
Requirement of Free Water: This
section simply defines the right to col-
lect rates for a water supply as a
franchise, and does not prohibit the
Legislature from passing a law com-
pelling a water company to furnish a
city with free water for fire purposes.
Boise City v. Artes. H. & C. W. Co.
(1895) 4 Ida. 351; 39 Pac. 562
Appropriation of Water: Priorities.
Sec. 3. The right to divert and appropriate the unappropriated
waters of any natural stream to beneficial uses, shall never be denied.
Priority of appropriation shall give the better right as between those
using the water ; but when the waters of any natural stream are not
sufficient for the service of all those desiring the use of the same,
those using the water for domestic purposes shall (subject to such
128
CONSTITUTION OF IDAHO
limitations as may be prescribed by law) have the preference over
those claiming for any other purpose ; and those using the water for
agricultural purposes shall have preference over those using the same
for manufacturing purposes. And in any organized mining district,
those using the water, for mining purposes or milling purposes con-
nected with mining, shall have preference over those using the same
for manufacturing or agricultural purposes. But the usage by such
subsequent appropriators shall be subject to such provisions of law
regulating the taking of private property for public and private use,
as referred to in section 14 of article 1, of this Constitution.
Cited: Hard v Boise City Irr. etc.
Co. (1904) 9 Ida. 589; 76 Pac. 331.
Preferential Rights to Water: The
framers of the Constitution, in adopt-
ing this section, realized that in some
sections of the State agriculture would
predominate, and that the use of wa-
ter for such purposes should have a
preference right in such sections,
while in other sections mining would
be the principal industry and would
be entitled to a preference right. Hill
v. Standard Min. Co. (1906) 12 Ida.
223; 85 Pac. 907.
Pollution of Streams: This section
does not authorize or permit parties
engaged in mining or other occupa-
tions to fill up the natural channel of
any of the streams of the State, or to
pollute the same with debris and poi-
sonous substances to the injury of
any other user of the waters of the
streams. lb.
Continuing Rights to Water Guaranteed.
Sec. 4. Whenever any Waters have been, or shall be, appropriated
or used for agricultural purposes, under a sale, rental, or distribu-
tion thereof, such sale, rental or distribution shall be deemed
an exclusive dedication to such use; and whenever such
waters so dedicated shall have once been sold, rented or
distributed to any person who has settled upon or improved land
for agricultural purposes with the view of receiving the benefit of such
water under such dedication, such person, his heirs, executors, ad-
ministrators, successors, or assigns, shall not thereafter, without his
consent, be deprived of the annual use of the same, when needed for
domestic purposes, or to irrigate the land so settled upon or improved,
upon payment therefor, and compliance with such equitable terms
and conditions as to the quantity used and times of use, as may be
prescribed by law.
Cited: Wilterding v. Green (1896)
4 Ida. 773; 45 Pac. 134.
Payment of Compensation: While
this section secures to every one who
has rented water the right to rent
the same from year to year, yet his
right to water for any given year de-
pends upon his compliance with stat-
utory enactments regulating the pay-
ment of compensation or tender of se-
curity therefor, and no action to con-
firm his right to such water accrues
in his favor until he has paid, or ten-
dered security for, such compensa-
tion. Bardslv v. Boise Irr. etc. Co.
(1901) 8 Ida. 155; 67 Pac. 428.
Change of Use: This section does
not require water to be used on the
land where it is firs.t taken, nor pro-
hibit the change of the place of use,
nor deny to the user a property right
in the water which he takes from a
canal. (Sullivan, C. J., dissents.)
Hard v. Boise City Irr. etc. Co. (1904)
9 Ida. 589; 76 Pac 331.
Priorities and Limitations on Use.
Sec. 5. Whenever more than one person has settled upon, or im-
proved land with the view of receiving water for agricultural pur-
poses, under a sale, rental, or distribution thereof, as in the last
preceding section of this article provided, as among such persons
priority in time shall give superiority of right to the use of such
LIVE STOCK — STATE BOUNDARIES
129
water in the numerical order of such settlements or improvements;
but whenever the supply of such water shall not be sufficient to meet
the demands of all those desiring to use the same, such priority of
right shall be subject to such reasonable limitations as to the quantity
of water used and times of use as the Legislature, having due regard
both to such priority of right and the necessities of those subsequent
in time of settlement or improvement, may by law prescribe.
Cited: Wilterding v. Green (18 96)
4 Ida. 773; 45 Pac. 134; Hard v.
Boise City Irr. etc. Co. (190 4) 9 Ida.
589; 76 Pac. 331.
Establishment of Maximum Rates.
Sec. 6. The Legislature shall provide by law the manner in which
reasonable maximum rates may be established to be charged for the
use of water sold, rented or distributed for any useful or beneficial
purpose.
Cited: Wilterding v. Green (1896)
4 Ida. 773; 45 Pac. 134.
Requirement of Free Water: The
provisions of Revised Statutes, Sec.
2711, requiring- water companies to
furnish cities with free water for fire
purposes, is not repugnant to this sec
tion. Boise City v. Artes. H. & C. W.
Co. (1895) 4 Ida. 351; 39 Pac. 562
Fixing- Rates: This section author-
izes the Legislature to provide the
manner in which water rates may be
established, and by necessary impli-
cation prohibits the Legislature from
fixing such rates as they attempted to
do by Laws 1897, 52. Wilson v. Per-
rault (1898) 6 Ida. 178; 54 Pac. 617.
This section imposes on the Legis-
lature the duty of providing the
method or means by which compen-
sation for supplying water to any
city or town are to be fixed, and until
the Legislature provides such a meth-
od, the contract rates for such supply
will be enforced. Jack v. Village of
Grangeville (1903) 9 Ida. 291; 74
Pac. 969.
ARTICLE 16.
LIVE STOCK.
Section
1. Laws to protect live stock.
Laws to Protect Live Stock.
Sec. 1. The Legislature may pass all necessary laws to provide
for the protection of live stock against the introduction or spread of
pleuro-pneumonia, glanders, splenetic or Texas fever, and other in-
fectious or contagious diseases. The Legislature may also establish
a system of quarantine or inspection, and such other regulations as
may be necessary for the protection of stock owners and most con-
ducive to the stock interests within the State.
Cited: Noble v. Bragaw (1906) 12
Ida. 265; 85 Pac. 903.
ARTICLE 17.
STATE BOUNDARIES,
Section
1. Name and boundaries of State.
Name and Boundaries of State.
Sec. 1. The name of this State is Idaho, and its boundaries are
as follows : Beginning at a point in the middle channel of Snake River
130
CONSTITUTION OF IDAHO
where the northern boundary of Oregon intersects the same; then
follow down the channel of the Snake River to a point opposite the
mouth of the Kooskooskia or Clearwater River; thence due north to
the forty-ninth parallel of latitude; thence east along that parallel
to the thirty-ninth degree of longitude west of Washington; thence
south along that degree of longitude to the crest of the Bitter Root
Mountains ; thence southward along the crest of the Bitter Root Moun-
tains till its intersection with the Rocky Mountains; thence south-
ward along the crest of the Rocky Mountains to the thirty-fourth
degree of longitude west of Washington; thence south along that
degree of longitude to the forty-second degree of north latitude;
thence west along that parallel to the eastern boundary of the State
of Oregon; thence north along that boundary to the place of begin-
ning.
ARTICLE 18.
COUNTY ORGANIZATION.
Section
1. Existing counties recognized.
Removal of county seats.
Division of counties.
New counties: Size and valua-
tion.
System of county government.
2.
3.
4.
5.
Section
6. County officers.
7. Same: Salaries.
8. Same: How paid.
9. Same: Liability for fees.
10. Board of county commissioners.
11. Duties of officers.
Existing Counties Recognized.
Sec. 1. The several counties of the Territory of Idaho as they now
exist, are hereby recognized as legal subdivisions of this State.
Cited: People ex rel Lincoln Co. v.
George (1891) 3 Ida. 72; 26 Pac. 983;
People v. Alturas Co. (1899) 6 Ida.
418; 55 Pac. 1067; Roach v. Good-
ing (1905) 11 Ida. 244; 81 Pac. 642.
Abolition of Counties: The Legis-
lature cannot abolish an existing
county. (Concur, op.; Sullivan, C. J.,
dissents.) People v. George (1891)
3 Ida. 72; 26 Pac. 983. The Legisla-
ture can not abolish an existing coun-
ty and create two new counties from
the territory formerly embraced
within the old county with different
county seats and new sets of officers.
Stockslager, C. J., dissents.) Mc-
Donald v. Doust (1905) 11 Ida. 14;
81 Pac. 60.
Removal of County Seats.
Sec. 2. No county seat shall be removed unless upon petition of
a majority of the qualified electors of the county, and unless two-
thirds of the qualified electors of the county, voting on the proposi-
tion at a general election, shall vote in favor of such removal. A
proposition of removal of the county seat shall not be submitted
in the same county more than once in six years, except as provided
by existing laws. No person shall vote at any county. seat election
who has not resided in the county six months, and in the precinct
ninety days.
Cited: (Concur, op.) People v.
George (1891) 3 Ida. 72; 26 Pac. 983;
(Concur, op.) Green v. State Board
Canvassers (1896) 5 Ida. 130; 47 Pac.
259; McDonald v. Doust (1905) 11
Ida. 14; 81 Pac. 60.
Application: The limitations im-
posed by this section on the removal
of a county seat, apply only to the
removal of a county seat which has
been permanently fixed, and do not
prohibit the Legislature from tern-
COUNTY ORGANIZATION
131
porarily locating the seat of a new
county, and further providing-, in the
act creating the county, for an elec-
tion on the question of permanent lo-
cation of the county seat. Doan v.
Board of Commrs. (1891) 3 Ida. 38;
26 Pac. 167.
Signers of Petition: The framers of
the Constitution did not intend to
prescribe a rule by which a majority
of the qualified electors, contemplat-
ed by this section as signers of a pe-
tition for the removal of a county
seat, should be ascertained, but left
that rule to be established by the Leg-
islature, as was done in Laws 1899,
41, Sec. 6, providing for county
seat elections, and by which the qual-
ified electors who sign the petition
need not be registered voters.
(Quarles, J., dissents). Wilson v.
Bartlett (1900) 7 Ida. 271; 62 Pac.
416.
Division of Counties.
Sec. 3. No county shall be divided unless a majority of the quali-
fied electors of the territory proposed to be cut off, voting on the
proposition at a general election, shall vote in favor of such division :
Provided, That this section shall not apply to the creation of new
counties. No person shall vote at such election who has not been
ninety days a resident of the territory proposed to be annexed.
When any part of a county is stricken off and attached to another
county, the part stricken off shall be held to pay its ratable propor-
tion of all then existing liabilities of the county from which it is
taken.
Cited: (Concur, op.) People v.
George (1891) 3 Ida. 72; 26 Pac. 983;
Sabin v. Curtis, 1893) 3 Ida. 662; 32
Pac. 1130; McDonald v. Doust (1905)
11 Ida. 14; 81 Pac. 60.
Division of Territory: This section
prohibits cutting off territory from
one county and annexing it to an-
other without submitting the proposi-
tion to popular vote, under the guise
of an act purporting to create two
new counties from the territory previ-
ously belonging to two existing coun-
ties, and so changing the boundary
line between them as to give one of
the counties a strip of territory which
previously belonged to the other. The
Act of March 3, 1891, purporting to
create and organize the counties of
Alta and Lincoln was held on this
ground to be unconstitutional. (Sul-
livan, C. J., dissents.) People ex rel.
Lincoln Co. v. George (1891) 3 Ida.
72; 26 Pac. 983.
Creation of New Counties:
This
section and the following one express-
ly authorize the creation of new coun-
ties, and in the creation of such a
county, the Legislature may make
any provision necessary to the com-
plete organization of that county not
specifically prohibited by the Consti-
tution, and may provide for the ap-
portionment of the debt of the origi-
nal county and for transcribing the
records. Bannock Co. v. Bunting
(1894) 4 Ida. 156; 37 Pac. 277.
Liability of Detached Territory:
This section continues the liability of
territory, detached from one county
and annexed to another, for its rata-
ble proportion of the debts of the
mother county, and prohibits the
Legislature from imposing such in-
debtedness on the county to which
the detached territory is annexed.
(Sullivan, J., dissents.) Shoshone Co.
v. Profitt (1906) 11 Ida. 763; 84 Pac.
712.
New Counties : Size and Valuation.
Sec. 4. No new counties shall be established which shall reduce
any county to an area of less than four hundred square miles nor
the valuation of its taxable property to less than one million dollars.
Nor shall any new county be formed which shall have an area of less
than four hundred square miles and taxable property of less than
one million dollars, as shown by the last previous assessment.
House Joint Resolution, approved
March 12, 1897 (Laws 1897, 183) rat-
ified Nov. 8, 1898.
The section prior to amendment
read as follows:
Sec. 4. No new county shall be es-
tablished which shall reduce any
county to an area of less than four
hundred square miles, nor shall a new
county be formed containing an area
of less than four hundred square
miles.
132
CONSTITUTION OF IDAHO
Cited: (Concur, op.) People v.
George (1891) 3 Ida. 72; 26 Pac. 983;
Sabin v. Curtis (1893) 3 Ida. 662; 32
Pac. 1130; Bannock Co. v. Bunting
(1894) 4 Ida. 156; 37 Pac. 277.
Constitutionality of Amendment :
Quaere suggested as to the constitu-
tionality of the amendment of 1898.
Holmberg v. Jones (1901) 7 Ida. 752;
65 Pac. 563.
Creation of New County: A county
cannot be created by implication and
intendment merely, and an act appar-
ently passed for the purpose of creat-
ing a county, is invalid for' that pur-
pose when it fails to declare in ex-
press language the creation of such
proposed county. Homer v. Jones
(1901) 7 Ida. 752; 65 Pac. 563.
The authority granted by this sec-
tion to create new counties does not
authorize the reorganization of an old
county under a new name. McDon-
ald v. Doust (1905) 11 Ida. 14; 81
Pac. 60.
System of County Government.
Sec. 5. The Legislature shall establish, subject to the provisions
of this article, a system of county governments which shall be uni-
form throughout the State; and by general laws shall provide for
township or precinct organization.
Cited: McDonald v. Doust (1905)
11 Ida. 14; 81 Pac. 60.
County Officers.
Sec. 6. The Legislature by general and uniform laws shall pro-
vide for the election biennially in each of the several counties of the
State, of county commissioners, a sheriff, a county treasurer,- who
is ex-officio public administrator, a probate judge, a county superin-
tendent of public instruction, a county assessor, who is ex-officio tax
collector, a coroner and a surveyor. The clerk of the District Court
shall be ex-officio auditor and recorder. No other county offices shall
be established, but the Legislature by general and uniform laws
shall provide for such township, precinct and municipal officers as
public convenience may require, and shall prescribe their duties, and
fix their terms of office. The Legislature shall provide for the strict
accountability of county, township, precinct and municipal officers
for all fees which may be collected by them, and for all public and
municipal monies which may be paid to them or officially come into
their possession. The county commissioners may employ counsel
wjien necessary. The sheriff, auditor and recorder, and clerk of the
District Court shall be empowered by the county commissioners to
appoint such deputies and clerical assistance as the business of their
offices may require, said deputies and clerical assistants to receive
such compensation as may be fixed by the county commissioners.
No sheriff or county assessor shall be qualified to hold the term of
office immediately succeeding the term for which he was elected.
The salary and qualifications of the county superintendent shall be
fixed by law.
House Joint Resolution, approved
March 9, 1895 (Laws 1895, 237) rati-
fied Nov. 3, 1896. This is a second
amendment, the original section hav-
ing- been previously amended in 1894.
(See Laws 1893, 2 24, for resolution of
submission.)
The section originally read as fol-
lows:
Sec. 6. The Legislature, by gen-
eral and uniform laws, shall provide
for the election biennially in each of
the several counties of the State, of
county commissioners, a sheriff, coun-
ty treasurer, who is ex officio public
administrator; probate judge who is
ex officio county superintendent of
public instruction; county assessor,
who is ex officio tax collector; a cor-
oner and a surveyor. The Clerk of
the District Court shall be ex officio
auditor and recorder. No other coun-
COUNTY ORGANIZATION
133
ty offices shall be established, but the
Legislature by general and uniform
laws shail provide for the election of
such township, precinct and munici-
pal officers as public convenience may
require, and shall prescribe their du-
ties and fix their terms of office. The
Legislature shall provide for the
strict accountability of county, town-
ship, precinct and municipal officers
for all fees which may be collected
by them, and for all public and mu-
nicipal moneys which may be paid
to them, or officially come into their
possession. The county commission-
ers may employ counsel when neces-
sary. The sheriff, auditor and re-
corder and Clerk of the District Court
shall be empowered by the county
commissioners to appoint such dep-
uties and clerical assistance as the
business of their offices may require,
said deputies and clerical assistance
to receive such compensation as may
be fixed by the county commissioners.
Xu sheriff or county assessor shall be
qualified to hold the term of office
immediately succeeding the term for
which he was elected.
Cited: Hillard v. Shoshone Co.
(1891) 3 Ida. 103; 27 Pac. 678; Cun-
ningham v. George (1892) 3 Ida. 45 6;
31 Pac. 809; Sabin v. Curtis (1893) 3
Ida. 662; 32 Pac. 1130; Campbell v.
Commrs. Logan Co. (1894) 4 Ida.
181; 37 Pac. 329; Ada Co. v. Gess
(1895) 4 Ida. 611; 43 Pac. 71; State
ex rel. Griffith v. Vineyard (1903) 9
Ida. 134; 72 Pac. 824; In re Sly
(1904) 9 Ida. 779; 76 Pac. 766; Felt-
ham v. Board Commrs. (1904) 10 Ida.
182; 77 Pac. 332; In re Rice (1906)
.12 Ida. 305; 85 Pac. 1109.
Effect of Amendment: A constitu-
tional amendment separating two of-
fices theretofore combined, which pro-
vides that "the Legislature by gen-
eral and uniform laws" shall pro-
vide for the "election biennially" of
such officers, is not self-executing,
and does not go into full operation
until such laws have been enacted,
and a general biennial election has
been held thereunder. Blake v.
Board Commrs. (1897) 5 Ida. 163; 47
Pac. 73 4.
Employment of Counsel: The
board of county commissioners has no
authority to employ an attorney to
act by the year as legal adviser for
the county. Meller v. Board etc. Lo-
gan Co. (1894) 4 Ida. 44; 3 5 Pac.
(12; Hampton v. Commrs. Logan Co.
(1896) 4 Ida. 646; 43 Pac. 324. The
necessity for such employment must
be apparent and the facts creating
such necessity must be made a mat-
ter of record by the commissioners.
Hampton v. Commrs. Logan Co.
(1896) 4 Ida. 646; 43 Pac. 324. And
thev must act as a board. Conger v.
Board Commrs. Latah Co. (1896) 4
Ida. 740; 48 Pac. 1064.
Where it is shown by the record
of the county commissioners that the
existence of a county is involved, and
that the constitutionality of an act
creating a new county is to be liti-
gated, the county commissioners are
justified in employing counsel. Rav-
enscraft v. Board Commrs. (1897) 5
Ida. 178; 47 Pac. 942.
County commissioners may employ
counsel only in matters over which
they have jurisdiction and control;
they cannot control or interfere with
criminal prosecutions or employ
counsel to assist the District Attorney
in the conduct thereof. (Huston, J.,
dissents.) Conger v. Commrs. Latah
Co. (1897) 5 Ida. 347; 48 Pac. 1064.
Appointment of Deputies: The
question of the appointment of depu-
ties is submitted entirely to the dis-
cretion of the county commissioners
and the sheriff cannot appoint a dep-
uty to assist him unless he is empow-
ered so to do by the commissioners.
Campbell v. Board Commrs. (1896) 5
Ida. 53; 46 Pac. 1022.
Where an officer is absent from his
office by reason of illness or private
business, the expense of employing a
deputy to transact the business of the
office is not a county charge. Wood-
ward v. Board Commrs. Ida. Co.
(1897) 5 Ida. 524; 51 Pac. 143.
Before the county commissioners
are authorized to empower the sheriff
to appoint a deputy, they must find
that the business of the office requires
the assistance of a deputy so that a
necessity exists for such appointment.
(Huston. C. J., dissents.) Taylor v.
Canyon Co. (1899) 6 Ida. 466; 56 Pac.
168.
No other county officers than those
mentioned in this section are entitled
to deputies or clerks at the expense
of the county. Fremont Co. v. Bran-
don (1899) 6 Ida. 482; 56 Pac. 264.
The authorization of an appoint-
ment of a deputy clerk and recorder
by the county commissioners is not
an infraction of the provisions of this
section which prohibits the estab-
lishment of county officers other than
those therein enumerated. Dunbar v.
Canyon Co. (1899) 6 Ida. 72 5; 59 Pac.
536.
Salaries of deputies duly and reg-
ularly employed pursuant to author-
ity conferred by the board of commis-
sioners, are a county charge, but the
salaries of deputies not so author-
ized, are not a county charge. Taylor
v. Canyon Co. (1900) 7 Ida. 171; 61
Pac. 521.
Repeal: This provision was not
intended to repeal Sec. 1815 of the
Revised Statutes, and the Act amend-
atory thereof, any further than to re-
lieve the county from the payment of
all deputies' salaries except those ap-
pointed by the sheriff, auditor, re-
corder and clerk, when duiy empow-
ered by the board of county commis-
sioners, and the salaries of such dep-
uties duly fixed. lb.
134
CONSTITUTION OF IDAHO
Same : Salaries.
Sec. 7. All county officers and deputies when allowed, shall re-
ceive, as full compensation for their services, fixed annual salaries,
to be paid quarterly out of the county treasury, as other expenses are
paid. All actual and necessary expenses, incurred by any county of-
ficer or deputy, in the performance of his official duties, shall be
a legal charge against the county, and may be retained by him out
of any fees, which may come into his hands. All fees, which may
come into his hands from whatever source, over and above his actual
and necessary expenses, shall be turned into the county treasury at
the end of each quarter. He shall at the end of each quarter file
with the clerk of the board of county commissioners, a sworn state-
ment, accompanied by proper vouchers, showing all expenses incurred
and all fees received, which must be audited by the board as
other accounts.
House Joint Resolution passed
March 8, 1897 (Laws 1897, 185) rati-
fied Nov. 8, 1898.
The section prior to amendment
read as follows:
Sec. 7. The officers provided by
section six (6) of this article shall
receive annually as compensation for
their services as follows: Sheriff, not
more than four thousand dollars and
not less than one thousand dollars,
together with such mileage as may be
prescribed by law; Clerk of the Dis-
trict Court, who is ex officio auditor
and recorder, not more than three
thousand dollars, and not less than
five hundred dollars; probate judge,
who is ex officio county superintend-
ent of public instruction, not more
than two thousand dollars, and not
less than five hundred dollars; coun-
ty assessor, who is ex officio tax col-
lector, not more than three thousand
dollars and not less than five hundred
dollars; county treasurer, who is ex
officio public administrator, not more
than one thousand dollars, and not
less than three hundred dollars; cor-
oner, not more than five hundred dol-
lars; county surveyor, not more than
one thousand dollars; county commis-
sioners, such per diem and mileage as
may be prescribed by law; and jus-
tices of the peace and constables such
fees as may be prescribed by law.
Cited: Cunningham v. Moody
(1891) 3 Ida. 125; 35 Am. St. Rep.
269; 28 Pac. 395; Eakin v. Nez
Perce Co. (1894) 4 Ida. 131; 36 Pac.
702; Campbell v. Commrs. Logan Co.
(1894) 4 Ida. 181; 37 Pac. 329; Nay-
lor v. Vermont Loan etc. Co. (1898)
6 Ida. 251; 55 Pac. 297; Taylor v.
Canyon Co. (1900) 7 Ida. 171; 61 Pac.
521.
Compensation to Officers: A coun-
ty officer who receives greater com-
pensation for his services than is al-
lowed by this section, is liable to the
county for the excess, and may be
sued by the county therefor, although
the commissioners allowed his claim
for the amount so received. Ada Co.
v. Gess (1905) 4 Ida. 611; 43 Pac. 71.
This action as amended abrogates
Laws 1891, 177, as to sheriff's
mileage in criminal cases and they
are entitled to no mileage therein. El-
lis v. Bingham Co. (1900) 7 Ida. 86;
60 Pac. 79.
This section as amended abrogates
ture to empower the county commis-
sioners of the various counties of the
State to fix the salaries of county of-
ficers of their respective counties, ex-
cept in the matter of fixing their own
salaries. The salary Act of March
7, 1899, is conformable to the pro-
visions of this section except in so
far as it authorizes the commission-
ers to fix their own salaries. Stookey
v. Board Commrs. (1899) 6 Ida. 542;
57 Pac. 312.
Fees received by the county treas-
urer in acting as ex-officio public ad-
ministrator, must be accounted for
and reported to the county and can-
not be retained by the officer for his
personal or individual use. In re Rice
(1906) 12 Ida. 305; 85 Pac. 1109.
Fees received by the clerk of the
court in taking proof made upon gov-
ernment lands, and legal fees re-
ceived by the probate judge in sol-
emnizing marriages, .must be paid in-
to the county treasury. Rhea v.
Board Co. Commrs. (1906) 12 Ida.
455; 88 Pac. 89.
Decisions Prior to Amendment: The
clerk of the District Court, as such,
and as auditor and recorder, cannot
receive as compensation for his own
use, for the performance of his du-
ties in all these capacities, any sum
in excess of $3,000 for any one year.
Hillard v. Shoshone Co. (1891) 3 Ida.
103; 27 Pac. 678.
The maximum compensation to be
paid to the assessor and tax collector
is limited by this section to $3,000
and he can in no event receive a
larger sum. Guheen v. Curtis (1892)
3 Ida. 443; 31 Pac. 805.
COUNTY ORGANIZATION
135
Where the probate judge acts as
his own clerk, his compensation as
judge, clerk and county superintend-
ent cannot exceed more than $2,000
for all his services in that capacity;
where he appoints a clerk, he and his
clerk together cannot receive more
than $2,000. Co. of Ada v. Ryals
(1895) 4 Ida. 365; 39 Pac. 556.
The object of this section was to
make county offices self-sustaining
and to limit the cost of maintenance
to the fees provided by law, except
when such fees do not amount to the
minimum salary fixed by law. Wood-
ward v. Board Commrs. Idaho Co.
(1897) 5 Ida. 524; 51 Pac. 143.
Same : How Paid.
Sec. 8. The compensation provided in section seven (7) for the
officers therein mentioned shall be paid by fees or commissions, or
both, as prescribed by law. All fees and commissions received by
such officers in excess of the maximum compensation per annum pro-
vided for each in section seven (7) of this article shall be paid to
the county treasurer for the use and benefit of the county. In case
the fees received in any one year by any one such officer shall not
amount to the minimum compensation per annum therein provided,
he shall be paid by the county a sum sufficient to make his aggregate
annual compensation equal to such minimum compensation.
Cited: Hillard v. Shoshone Co.
(1891) 3 Ida. 103; 27 Pac. 678; Eak-
in v. Nez Perce Co. (1894) 4 Ida.
131; 36 Pac. 702; Campbell v.
Commrs. Logan Co. (189 4) 4 Ida.
181; 37 Pac. 329; Co. of Ada v. Ry-
als (1895) 4 Ida. 365; 39 Pac. 556;
Taylor v. Canyon Co. (1900) 7 Ida.
171; 61 Pac. 521.
Payment of Officers: Rev. St.
Sec. 2120, providing for the pay-
ment of compensation of county offi-
cers out of the county treasury upon
warrants, is in some degree repug-
nant to this section. Naylor v. Ver-
mont Loan etc. Co. (1898) 6 Ida. 251;
55 Pac. 2 97.
Accountability for Fees: The fees
"received" by an officer for which he
must account to the county, include
fees earned though not collected by
the officer. lb.
Salaries of Officers: Where the
compensation of assessor is by stat-
ute to be paid by commissions and
fees, Jthe county commissioners ex-
ceed their power in allowing an as-
sessor a quarterly salary, and an or-
der made by them allowing such sal-
ary is void, and may be attacked di-
rectly or collaterally. Fremont Co.
v. Brandon (1899) 6 Ida. 482; 56 Pac.
264.
Same : Liability for Fees.
Sec. 9. The neglect or refusal of any county officer or deputy to
account for and pay into the county treasury any money received
as fees or compensation, in excess of his actual and necessary ex-
penses, incurred in the performance of his official duties, within ten
days after his quarterly settlement with the county, shall be a felony,
and the grade of the crime shall be embezzlement of public funds,
and be punishable as provided for such offenses.
House Joint Resolution, passed
March 8, 1897 (Laws 1897, 185) rat-
ified Nov. 8, 1898.
The section prior to amendment
read as follows:
Sec. 9. The neglect or refusal of
any officer named in this article to
account for any pay into the county
treasury any money received as fees
or compensation in excess of the max-
imum amount allowed to such officer
by the provisions of this article, with-
in forty days after the receipt of the
same, shall be a felony, and the grade
of the crime shall be the embezzle-
ment of public moneys, and be pun-
ishable as provided for such offense.
Cited: Eakin v. Nez Perce Co.
(1894) 4 Ida. 131; 36 Pac. 702; In re
Rice (1906) 12 Ida. 305; 85 Pac. 1109.
Application: This provision ap-
plies only to the liability of a dere-
lict officer criminally, and has noth-
ing whatever to do with the civil lia-
bility of the officer or his sureties.
Co. of Ada v. Ellis (1897) 5 Ida. 333;
48 Pac. 1071.
136
CONSTITUTION OF IDAHO
Board of County Commissioners.
Sec. 10. The board of county commissioners shall consist of three
members, whose term of office shall be two years.
Duties of Officers.
Sec. 11. County, township and precinct officers shall perform such
duties as shall be prescribed by law.
Cited: Conger v. Commrs. Latah
Co. (1897) 5 Ida. 347; 48 Pac. 1064;
State ex rel Griffith v. Vineyard
(1903) 9 Ida. 134; 72 Pac. 824; In re
Sly (1904) 9 Ida. 779; 76 Pac. 766.
ARTICLE 19.
APPORTIONMENT.
Section
1. Senatorial districts.
Section
2. Representative districts.
Senatorial Districts.
Sec. 1. Until otherwise provided by law the apportionment of the
two Houses of the Legislature shall be as follows:
The first Senatorial District shall consist of the county of Sho-
shone, and shall elect two Senators.
The second shall consist of the counties of Kootenai and Latah,
and shall elect one Senator.
The third shall consist of the counties of Nez Perce and Idaho,
and shall elect one Senator.
The fourth shall consist of the counties of Nez Perce and Latah
and shall elect one Senator.
The fifth shall consist of the county of Latah and shall elect one
Senator.
The sixth shall consist of the county of Boise, and shall elect one
Senator.
The seventh shall consist of the county of Custer, and shall elect
one Senator.
The eighth shall consist of the county of Lemhi, and shall elect
one Senator.
The ninth shall consist of the county of Logan, and shall elect one
Senator.
The tenth shall consist of the county of Bingham, and shall elect
one Senator.
The eleventh shall consist of the counties of Bear Lake, Oneida
and Bingham, and shall elect one Senator.
The twelfth shall consist of the counties of Owyhee and Cassia,
and shall elect one Senator.
The thirteenth shall consist of the county of Elmore, and shall
elect one Senator.
The fourteenth shall consist of the county of Alturas, and shall
elect one Senator.
The fifteenth shall consist of the county of Ada, and shall elect
two Senators.
AMENDMENTS
137
The sixteenth shall consist of the county of Washington, and shall
elect one Senator.
Cited: Sabin v. Curtis (1893) 3
Ida. 662; 32 Pac. 1130.
Representative Districts.
Sec. 2. The several counties shall elect the following members of
the House of Representatives :
The county of Ada, three members.
The counties of Ada and Elmore, one member.
The county of Alturas, two members.
The county of Boise, two members.
The county of Bear Lake, one member.
The county of Bingham, three members.
The county of Cassia, one member.
The county of Custer, two members.
The county of Elmore, one member.
The county of Idaho, one member.
The counties of Idaho and Nez Perce, one member.
The county of Kootenai, one member.
The county of Latah, two members.
The counties of Kootenai and Latah, one member.
The county of Logan, two members.
The county of Lemhi, two members.
The county of Nez Perce, one member.
The county of Oneida, one member.
The county of Owyhee, one member.
The county of Shoshone, four members.
The county of Washington, two members.
The counties of Bingham, Logan and Alturas, one member.
ARTICLE 20.
AMENDMENTS.
Section
1. How amendments may be pro-
posed.
2. Submission of several amend-
ments.
Section
3. Revision or amendment by con-
vention.
4. Submission of revised Constitu-
tion to people.
How Amendments May Be Proposed.
Sec. 1. Any amendment or amendments to this Constitution may
be proposed in either branch of the Legislature, and if the same shall
be agreed to by two-thirds of all the members of each of the two
houses, voting separately, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered on their journals,
and it shall be the duty of the legislature to submit such amendment
or amendments to the electors of the State at the next general elec-
tion, and cause the same to be published without delay for at least
six consecutive weeks, prior to said election, in not less than one
newspaper of general circulation published in each county; and if
a majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this Constitution.
138
CONSTITUTION OF IDAHO
Cited: Holmberg v. Jones (1901)
7 Ida. 752; 65 Pac. 563.
Proposal of Amendments: An
amendment to the Constitution may
be proposed by joint resolution and
need not be presented to the people
by a formal statute. Hays v. Havs
(1897) 5 Ida. 154; 47 Pac. 732.
Adoption of Amendments: Where
a majority of electors voting upon
the question of amendment of the
Constitution vote in favor of the
amendment, the amendment is rati-
fied, although the votes thus cast are
not a majority of the votes cast at
the general election for State officers.
Green v. St. Board Canvassers (1896)
5 Ida. 130; 47 Pac. 259.
Submission of Several Amendments.
Sec. 2. If two or more amendments are proposed, they shall be
submitted in such manner that the electors shall vote for or against
each of them separately.
Cited: Green v. State Board Can-
vassers (1896) 5 Ida 130; 47 Pac.
259.
Revision or Amendment by Convention.
Sec. 3. Whenever two-thirds of the members elected to each
branch of the Legislature shall deem it necessary to call a convention
to revise or amend this Constitution, they shall recommend to the
electors to vote at the next general election for or against a conven-
tion, and if a majority of all the electors voting at said election shall
have voted for a convention, the Legislature shall at the next session
provide by law for calling the same ; and such convention shall consist
of a number of members not less than double the number of the most
numerous branch of the Legislature.
Cited: Green v. State Board Can-
vassers (1896) 5 Ida. 130; 47 Pac.
2 59; Holmberg v. Jones (1901) 7 Ida.
752; 65 Pac. 563.
Submission of Revised Constitution to People.
Sec. 4. Any Constitution adopted by such convention, shall have
no validity until it has been submitted to, and adopted by, the people.
Cited: Green v. State Board Can-
vassers (18 96) 5 Ida. 130; 47 Pac.
259; Holmberg v. Jones (1901) 7 Ida.
75 2; 65 Pac. 5 63.
ARTICLE 21.
SCHEDULE AND ORDINANCE.
Section
1. Judicial proceedings continued.
Laws continued in force.
Territorial fines and forfeitures
accrue to State.
Territorial bonds and obliga-
tions pass to State.
Territorial officers to continue in
office.
Submission of Constitution to
electors.
7. When Constitution takes effect.
8. Election proclamation to be is-
sued.
9. Election to be ordered: Conduct
of election.
10. Canvass of election returns.
Section
11. Certificates of election.
12. Qualification of officers.
13. Tenure of office.
14. Convention of first Legislature.
15. Legislature to pass necessary
laws.
16. Transfer of cases to State
courts.
17. Seals of courts.
18. Transfer of probate matters.
19. Religious freedom guaranteed:
Disclaimer of title to Indian
lands.
20. Adoption of Federal Constitu-
tion.
Signatures.
SCHEDULE AND ORDINANCE
139
Judicial Proceedings Continued.
Sec. 1. That no inconvenience may' arise from a change of the
Territorial government to a permanent State government, it is de-
clared that all writs, actions, prosecutions, claims, liabilities, and
obligations against the Territory of Idaho, of whatsoever nature,
and rights of individuals, and of bodies corporate, shall continue as if
no change had taken place in this government; and all process which
may, before the organization of the judicial department under this
Constitution, be issued under the authority of the Territory of Idaho,
shall be as valid as if issued in the name of the State.
Laws Continued in Force.
Sec. 2. All laws now in force in the Territory of Idaho which are
not repugnant to this Constitution shall remain in force until they
expire by their own limitation or be altered or repealed by the Leg-
islature.
Cited: Gilbert v. Moody (1891) 3
Ida. 3; 25 Pac. 1092; Quayle v. Glenn
(1899) 6 Ida. 549; 57 Pac. 308.
Construction: "The words "limita-
tion," "altered" and "repealed" as
used in this section apply to all laws,
special as well as general, in force at
the date of the adoption of the Con-
stitution, and not repugnant to any
of its provisions. The word "altered"
means "to make different without de-
stroying identity; to vary without
change." Butler v. City of Lewiston
(1905) 11 Ida. 393; 83 Pac. 234.
Territorial Fines and Forfeitures Accrue to State.
Sec. 3. All fines, penalties, forfeitures, and escheats accruing to
the Territory of Idaho shall accrue to the use of the State.
Territorial Bonds and Obligations Pass to State.
Sec. 4. All recognizances, bonds, obligations, or other undertak-
ings heretofore taken, or which may be taken before the organiza-
tion of the judicial department under this Constitution, shall remain
valid, and shall pass over to and may be prosecuted in the name of
the State; and all bonds, obligations or other undertakings executed
by this Territory, or to any other officer in his official capacity, shall
pass over to the proper State authority, and to their successors in
office, for the uses therein respectively expressed, and may be used
for and recovered accordingly. All criminal prosecutions and penal
actions which have arisen, or which may arise before the organiza-
tion of the judicial department under this Constitution, and which
shall then be pending, may be prosecuted to judgment and execution
in the name of the State.
Territorial Officers to Continue in Office.
Sec. 5. All officers, civil and military, now holding their offices
and appointments in this Territory under the authority of the United
States, or under the authority of this Territory, shall continue to
hold and exercise their respective offices and appointments until sus-
pended under this Constitution.
Submission of Constitution to Electors.
Sec. 6. This Constitution shall be submitted for adoption or re-
jection, to a vote of the electors qualified by the laws of this Territory
to vote at all elections at an election to be held on the Tuesday next
140 CONSTITUTION OF IDAHO
after the first Monday in November, A. D., 1899. Said election shall
be conducted in all respects in the same manner as provided by the
laws of the Territory for general election, and the returns thereof
shall be made and canvassed in the same manner and by the same
authority as provided in cases of such general elections and abstracts
of such returns duly certified shall be transmitted to the Board of
Canvassers now provided by law for canvassing the return of votes
for Delegate to Congress. The said Canvassing Board shall canvass
the votes so returned and certify and declare the result of said elec-
tion in the same manner, as is required by law for the election of said
Delegate.
At the said election the ballots shall be in the following form:
For the Constitution — yes ; no.
And as a heading of each of said ballots shall be printed on each
ballot, the following instructions to voters:
All persons who desire to vote for the Constitution, or any of the
articles submitted to a separate vote, may erase the word "no."
All persons who desire to vote against the Constitution, or against
any article submitted separately may erase the word "yes."
Any person may have printed or written on his ballot only the
words, "For the Constitution," or "Against the Constitution," and
such ballots shall be counted for or against the Constitution accord-
ingly.
When Constitution Takes Effect.
Sec. 7. This Constitution shall take effect and be in full force im-
mediately upon the admission of the Territory as a State.
Election Proclamation to be Issued.
Sec. 8. Immediately upon the admission of the Territory as a
State, the Governor of the Territory, or in case of his absence or
failure to act, the Secretary of the Territory, or in case of his ab-
sence or failure to act, the president of this convention, shall issue
a proclamation, which shall be published, and a copy thereof mailed
to the chairman of the board of county commissioners of each county,
calling an election of the people of all State, district, county, township,
and other officers, creative and made elective by this Constitution,
and fixing a day for such election, which shall not be less than forty
days after the date of such proclamation, nor more than ninety days
after the admission of the Territory as a State.
Cited: Doan v. Board of Oommrs.
Logan Co. (1891) 3 Ida. 38; 26 Pac.
157.
Election to be Ordered : Conduct of Election.
Sec. 9. The board of commissioners of the several counties shall
thereupon order such election for said day, and shall cause notice
thereof to be given, in the manner and for the length of time provided
by the laws of the Territory in cases of general elections for delegate
to Congress and county and other officers. Every qualified elector
of the Territory, at the date of said election, shall be entitled to a vote
thereat. Said election shall be conducted in all respects in the same
manner as provided by the laws of the Territory for general elections,
SCHEDULE AND ORDINANCE 141
and returns thereof shall be made and canvassed in the same manner
and by the same authority as provided in cases of such general elec-
tion; but returns for all State and district officers and members of
the Legislature, shall be made to the Canvassing Board hereinafter
provided for.
Canvass of Election Returns.
Sec. 10. The Governor, Secretary, Controller, and Attorney Gen-
eral of the Territory, and the president of this convention, or a ma-
jority of them, shall constitute a Board of Canvassers to canvass the
vote at such elections for all State and district officers and mem-
bers of the Legislature. The said board shall assemble at the seat
of government of the Territory, on the thirtieth day after the date
of such election (or on the following day if such day fall on Sunday),
and proceed to canvass the vote for all State and District officers and
members of the legislature, in the manner provided by the laws of
the Territory for canvassing the vote for Delegate to Congress, and
they shall issue certificates of election to the persons found to be
elected to said offices severally, and shall make and file with the Sec-
retary of the Territory an abstract certified by them, of the number
of votes cast for each person for each of said offices and of the total
number of votes cast in each county.
Certificates of Election.
Sec. 11. The Canvassing Boards of the several counties shall issue
certificates of election to the several persons found by them to have
been elected to the several county and precinct offices.
Qualification of Officers.
Sec. 12. All officers elected at such election shall, within thirty
days after they have been declared elected, take the oath required
by this Constitution and give the same bond required by the law of
the Territory to be given in case of like officers of the Territory dis-
trict or county, and shall thereupon enter upon the duties of their
respective offices; but the Legislature may require by law all such
officers to give other or further bonds as a condition of their con-
tinuance in office.
Tenure of Office.
Sec. 13. All officers elected at said election, shall hold their offices
until the Legislature shall provide by law, in accordance with this
Constitution, for the election of their successors and until such suc-
cessors shall be elected and qualified.
Convention of First Legislature.
Sec. 14. The Governor-elect of the State, immediately upon his
qualifying and entering upon the duties of his office, shall issue his
proclamation convening the Legislature of the State at the seat of
government on a day to be named in said proclamation and which
shall not be less than thirty nor more than sixty days after the date
of such proclamation. Within ten days after the organization of the
Legislature both houses of the Legislature shall then and there pro-
ceed to elect, as provided by law, two Senators of the United States
142 CONSTITUTION OF IDAHO
for the State of Idaho. At said election. the two persons who shall
receive the majority of all the votes cast by said Senators and Repre-
sentatives, shall be elected as such United States Senators, and shall
be so declared by the presiding officers of said joint session. The
presiding officers of the Senate and House, shall issue a certificate
to each of said Senators, certifying his election, which certificates
shall also be signed by the Governor and attested by the Secretary
of State.
Cited: Goodnight v Moody (1891)
3 Ida. 7; 26 Pac. 121.
Legislature to Pass Necessary Laws.
Sec. 15. The Legislature shall pass all necessary laws to carry into
effect the provisions of this Constitution.
Transfer of Cases to State Courts.
Sec. 16. Whenever any two of the Judges of the Supreme Court
of the State, elected under the provisions of this Constitution, shall
have qualified in their offices, the causes then pending in the Supreme
Court of the Territory, and the papers, records, and proceedings of
said court, and the seal and other property pertaining thereto, shall
pass into the jurisdiction and possession of the Supreme Court of
the State and until so superseded the Supreme Court of the Territory
and the Judges thereof shall continue, with like powers and jurisdic-
tion, as if this Constitution had not been adopted. Whenever the
Judge of the District Court of any district elected under the provis-
ions of this Constitution, shall have qualified in office, the several
causes then pending in the District Court of the Territory, within any
county in such district, and the records, papers, and proceedings of
said District Court, and the seal and other property pertaining there-
to shall pass into the jurisdiction and possession of the District Court
of the State for such county; and until the District Courts of this
Territory shall be superseded in the manner aforesaid the said Dis-
trict Courts and the Judges thereof shall continue with the same
jurisdiction and power to be exercised in the same judicial districts
respectively, as heretofore constituted under the laws of the Terri-
tory.
Seals of Courts.
Sec. 17. Until otherwise provided by law, the seals now in use
in the Supreme and District Courts of this Territory are hereby de-
clared to be the seals of the Supreme and District Courts, respectively,
of the State.
Transfer of Probate Matters.
Sec. 18. Whenever this Constitution shall go into effect, the books,
records, and papers, and proceedings of the probate court in each
county, and all causes and matters of administration and other mat-
ters pending therein, shall pass into the jurisdiction and possession
of the probate court of the same county of the State, and the said
probate court shall proceed to the final decree and judgment, order, or
other determination in the said several matters and causes as the
SCHEDULE AND ORDINANCE
143
said probate court might have done if this Constitution had not
been adopted.
Religious Freedom Guaranteed: Disclaimer of Title to Indian Lands.
Sec. 19. It is ordained by the State of Idaho that perfect tolera-
tion of religious sentiment shall be secured, and no inhabitant of
said State shall ever be molested in person or property on account
of his or her mode of religious worship. And the people of the State
of Idaho do agree and declare that we forever disclaim all right and
title to the unappropriated public lands lying within the boundaries
thereof, and to all lands lying within said limits, owned or held by
any Indians or Indian tribes; and until the title thereto shall have
been extinguished by the United States, the same shall be
subject to the disposition of the United States and said Indian lands
shall remain under the absolute jurisdiction and control of the Con-
gress of the United States; that the lands belonging to citizens of
the United States, residing without the said State of Idaho, shall
never be taxed at a higher rate than the lands belonging to the
residents thereof. That no taxes shall be imposed by the State on
the lands or property therein belonging to, or which may hereafter
be purchased by, the United States, or reserved for its use. And
the debts and liabilities of this Territory shall be assumed and paid
by the State of Idaho. That this ordinance shall be irrevocable, with-
out the consent of the United States and the people of the State of
Idaho.
Adoption of Federal Constitution.
Sec. 20. That in behalf of the people of Idaho, we in convention
assembled, do adopt the Constitution of the United States.
Effect: This section does not im-
pose upon the State all the provisions
of the Federal Constitution. Rankin
v. Jauman (1894) 4 Ida. 53; 36 Pac.
502.
Signatures.
Done in open convention, at Boise City, in the Territory of Idaho,
this sixth day of August, in the year of our Lord one thousand eight
hundred and eighty-nine.
Wm. H. CLAGETT, President,
GEO. AINSLEE,
W. C. B. ALLEN,
ROB'T. ANDERSON,
H. ARMSTRONG,
ORLANDO B. BATTEN,
FRANK W. BEANE,
JAS. H. BEATTY,
J. W. BALLENTINE,
A. D. BEVAN,
HENRY B. BLAKE,
FREDERICK CAMPBELL,
FRANK P. CAVANAH,
A. S. CHANEY,
CHAS. A. CLARK,
I. N. COSTON,
JAS. I. CRUTCHER,
STEPHEN S. GLIDDEN,
JOHN S. GRAY,
Wm. W. HAMMEL,
H. S. HAMPTON,
H. 0. HARKNESS,
FRANK HARRIS,
SOL. HASBROUK,
C. M. HAYS,
W. B. HEYBURN,
JOHN HOGAN,
J. M. HOWE,
E. S. JEWELL,
G. W. KING,
Vol. 1 — 6
144
CONSTITUTION OF IDAHO
H. B. KINPORT,
JAS. W. LAMOREAUX,
JOHN LEWIS,
Wm. c. maxey,
A. E. MAYHEW,
W. J. McCONNEL,
HENRY MELDER,
JOHN H. MYER,
JOHN T. MORGAN,
A. B. MOSS,
AARON F. PARKER,
A. J. PIERCE,
A. J. PINKHAM,
J. W. POE
THOS. PYEATT,
JAS. W. REID,
W. D. ROBBINS,
Wm. H. SAVIDGE,
AUG. M. SINNOTT,
JAMES M. SHOUP,
DREW W. STANROD,
FRANK STEUNENBERG,
HOMER STULL,
WILLIS SWEET,
SAM F. TAYLOR,
J. L. UNDERWOOD,
LYCURGUS VINEYARD,
J. S. WHITTON,
EDGAR WILSON,
W. W. WOODS,
JOHN LEMP,
N. I. ANDREWS,
SAMUEL J. PRITCHARD,
J. W. BRIGHAM.
INDEX TO CONSTITUTION
Art. Sec.
ACTIONS
forms abolished 5 1
territorial continued by
State . 21 1
ADJUTANT GENERAL
to preserve military records. .14 4
ALIENS
employment on public works
prohibited 13 5
AMENDMENTS
to Constitution, see Constitution.
APPROPRIATIONS
money to be drawn only pur-
suant to 7 13
not to exceed revenue 7 11
sectarian prohibited 9 5
veto by Governor 4 11
APPORTIONMENT
of Legislature 19 1,2
ARBITRATION, BOARD OF
see Board of Arbitration.
ARMS
right to bear 1 11
ASSEMBLY
right guaranteed 1 10
ASSESSOR
cannot succeed himself 18 6
election 18 6
ATTORNEY GENERAL
Member of Board of Educa-
tion 9 2
member of Board of Equali-
zation 7 12
member of Board of Pardons 4 7
member of Land Board 9 7
member of State Prison
Board 4 18
qualifications 4 3
salary 4 19
vacancy filled by appoint-
ment 4 6
AUDITOR
see State Auditor and County
Auditor
BAIL
excessive prohibited 1 6
guaranty 1 6
Art. Sec.
BILLS OF ATTAINDER
prohibited 1 16
BOARD OF ARBITRATION
Legislature may provide for. 13 7
powers 13 7
BOARD OF EDUCATION
constitution 9 2
B'RD OF EQUALIZATION,
COUNTY
constitution and powers.... 7 12
B'RD OF EQUALIZATION,
STATE
constitution and duties 7 12
BOARD OF EXAMINERS
constitution and powers 4 18
B'RD OF LAND COM'S'NRS
duties with respect to lands. 9 8
constitution and powers.... 9 7
BOARD OF STATE PRISON
COMMISSIONERS
constitution and powers.... 4 18
BOARD OF PARDONS
constitution and powers 4 7
proceedings 4 7
BOISE
seat of government 10 2
terms of Supreme Court. ... 5 8
BONDS
territorial to pass to State.. 21 4
BOUNDARIES
of State 17 1
CERTIORARI
jurisdiction of Supreme
Court 5 9
CHILDREN
employment in mines prohib-
ited 13 4
CITIES
not to aid corporations 12 4
CITIES AND VILLAGES
debts not to be assumed by
State 12 3
extraordinary indebtedness . . 8 3
incorporation under general
laws 12 1
146
INDEX TO CONSTITUTION
Art.
CITIES AND VILLAGES —
Cont'd.
may make police reulations.12
not to lend credit 8
not to make sectarian appro-
priations 9
taxes to be levied by 7
CLERK OF DISTRICT COURT
election and qualification ... 5
is auditor and recorder 18
may appoint deputies, when. 18
CLERK OF SUPREME COURT
appointment, term of office
and compensation 5
COMMISSIONER OF IMMI-
GRATION
see Immigration and Labor
COMMON CARRIERS
discriminations and prefer-
ences prohibited 11
legislative control 11
railroads, transportation and
express companies are.... 11
CONSTITUTION
amendments —
adoption of revised Consti-
tion 18
by convention 20
how proposed 20
how proposed, separate
amendments 20
ratification by election. . .20
election for ratification. . .21
when effective 21
CONTRACTS
impairment of obligation .... 1
CONVICTS
labor restricted 13
CORONER
election 18
CORPORATIONS
acceptance of Constitution
by 11
consolidation with foreign
corporations 11
definition 11
directors, election, cumulative
voting 11
dues, how secured 11
existing charters annulled.. 11
not to receive municipal aid. 12
organization under general
laws 11
retroactive laws prohibited. .11
revocation of charters au-
thorized 11
special charters prohibited ..11
stock, fictitious increase pro-
hibited 11
Sec.
16
6
6
15
16
3
6
14
16
4
17
1
4
2
12
3
2
Art Sec
CORPORATIONS — Cont'd.
stock, increase of 11 9
stockholders, individual lia-
bility restricted 11 17
State not to become 8 2
taxation of 7 8
telegraph and telephones au-
thorized 11 13
COUNSEL
right to in criminal cases... 1 13
COUNTIES
Area of new counties 18 4
county seat, removal 18 2
debts not to be assumed by
State 12 3
division of counties 18 3
extraordinary indebtedness.. 8 3
finances, system to be provid-
ed by Legislature 7 15
finances, warrant redemption
fund 7 15
legal subdivisions of State. . .18 1
legislative districts 3 5
I legislature to establish gov-
ernment 18 5
not to aid corporations .... 12 4
not to lend credit 8 4
not to make sectarian appro-
priations 9 5
taxes to be levied by 7 6
valuation of new counties . . 18 4
COUNTY ATTORNEYS
see Prosecuting Attorney
COUNTY AUDITOR
clerk of District Court is... 18 6
appointment of deputies . . 18 6
COUNTY COMMISSIONERS
constitute board of equaliza-
tion 7 12
election and powers 18 6
may employ counsel 18 6
number and term of off ice.. 18 10
to levy special tax 7 15
COUNTY SEATS
removal 18 2
COUNTY SUPERINTENDENT
election 18 6
salary and qualifications,
how fixed 18 6
COUNTY TREASURER
election 18 6
COUNTY TREASURY
money to be drawn, how.... 7 14
COURTS
District Courts —
clerk 5 16
Judicial districts 5 24
jurisdiction 5 20
INDEX TO CONSTITUTION
147
Art. Sec.
COURTS — Cont'd.
number of districts 5 11
transfer of Territorial
proceedings 21 16
terms 5 11
enumeration 5 2
laws to be uniform 5 26
legislative power over 5 13
municipal courts, establish-
ment 5 14
open to all 1 18
probate courts —
jurisdiction 5 21
transfer of Territorial pro-
ceedings 21 18
seals, Territorial to be used. 21 17
Supreme Court —
transfer of Territorial pro-
ceedings 21 .16
claims against State .... 5 10
clerk 5 15
constitution 5 6
jurisdiction 5 9
terms 5 8
CREDIT
cities, counties etc., not to
lend 8 4
of State not to be loaned . . 8 2
CRIMINAL^ PROSECUTIONS
presentment, indictment or
information necessary .... 1 8
right to appear and defend . . 1 13
right to speedy trial 1 13
Territorial to be prosecuted
by State 21 4
DEBT
imprisonment for abolished. 1 15
of counties and cities not to
be assumed by State .... 12 3
DECLARATION" OF RIGHTS
arms, right to bear 1 11
assembly 1 10
bail 1 6
bills of attainder, etc., pro-
hibited 1 16
courts open to all 1 18
criminal prosecutions: rights
of accused 1 13
due process of law 1 13
eminent domain 1 14
freedom of speech 1 9
habeas corpus 1 5
Idaho a part of Union 1 3
imprisonment for debt abol-
ished 1 15
inalienable rights of man . . 1 1
indictment or information
prerequisite to prosecution 1 8
jury trial 1 7
military subordinate to civil
power 1 12
Art. Sec.
DECLARATION OF RIGHTS
—Cont'd.
petition 1 10
political power inherent in
people 1 2
property qualifications on
suffrage prohibited 1 20
religious freedom 1 4
reserved rights not impaired 1 21
suffrage to be freely exer-
cised 1 19
unreasonable searches and
seizures prohibited 1 17
DETECTIVE AGENCIES
not to be imported except. . . .14 6
DISTRIBUTION OF POWERS
2
DISTRICT COURTS
see Courts, District Court
DUE PROCESS OF LAW
right guaranteed 1 13
EDUCATION
see schools, university and board of
education
ELECTIONS
canvass of first election. .. .21 10
certificates of first election . .21 11
disqualifications to vote, etc.. 6 3
free exercise of suffrage.... 1 19
notice and conduct of first
election 21 9
proclamation of first election. 21 8
property qualifications pro-
hibited 1 20
qualifications may be pre-
scribed by Legislature .... 6 4
qualifications of voters .... 6 2
residence not gained or lost,
when 6 5
secret ballot guaranteed .... 6 1
EMBEZZLEMENT
neglect of county officer to
account for fees 18 9
EMINENT DOMAIN
condemnation of water
rights 15 3
corporate property may be
taken 11 8
irrigation and mining pur-
poses 1 14
right guaranteed and lim-
ited 1 14
right not to be abridged ... .11 8
EXECUTIVE DEPARTMENT
accounts and reports of offi-
cers 4 17
distinct branch of govern-
ment 2 1
duties of officers in general. 4 1
148
INDEX TO CONSTITUTION
Art. Sec.
EXECUTIVE DEPARTMENT
— Cont'd.
election of officers 4 2
fees of officers 4 19
of whom constituted 4 1
qualifications 4 3
residence of officers 4 1
salaries of officers 4 19
see Governor and other specific offi-
cers
EXEMPTION (from taxation)
existing exemptions con-
tinued 7 5
may be provided by Legisla-
ture 7 2
public property exempt .... 7 4
EX POST FACTO LAWS
prohibited 1 16
ESCHEATS
Territorial accrue to State.. 21 3
FEDERAL CONSTITUTION
adopted for State 21 20
supreme law of land 1 3
FEES
liability of county officers . . 18 6
neglect of county officers to
account for a felony 18 9
FEIGNED ISSUES
prohibited 5 1
FELONY
neglect of county officers to
account for fees 18 9
profiting from revenue 7 10
FINANCE AND REVENUE
see revenue
FINES
excessive prohibited 1 6
Territorial accrue to State. 21 3
FLAG
State and Federal only to be
carried 14 5
FOREIGN CORPORATIONS
preferences to prohibited ... .11 10
resident aliens, etc., re-
quired 11 10
FORFEITURES
Territorial accrue to State. .21 3
FRANCHISES
right to collect water rates
a franchise 15 2
restriction on alienation ... 11 15
FRAUD
imprisonment for debt 1 15
GOVERNOR
accounts for money expended 4 8
appointment of officers .... 4 6
4
8
4
4
9
7
8
12
7
7
18
8
14
3
7
19
14
• Art. Sec
GOVERNOR — Cont'd.
appoints directors of insane
asylum 10 €
commander in chief of mili-
tia 4
estimate of expenditures .... 4
impeachment 5
may call out militia 4
may call special session of
Legislature 4
may grant reprieve 4
may require reports 4
member Board of Equaliza-
tion 7
member Board of Pardons . . 4
member Land Board 9
member State Prison Board. 4
message to Legislature 4
president of Senate, to act
when 4
qualifications 4
report of pardons, etc 4
salary 4
Speaker to act, when 4
supreme executive power vest-
ed in 4
to appoint immigration com-
missioner 13
to commission militia offi-
cers 14
to sign grants 4
vacancy filled by Lieutenant
Governor 4
veto of appropriation bills. . 4
veto power 4
GRAND JURY
when and how summoned... 1
HABEAS CORPUS
guaranty 1
IMMIGRATION AND LABOR
13
bureau established 13
commissioner —
appointment and duties . . 13
duties and compensation . . 13
IMPEACHMENTS
judgment of conviction 5
power vested in House 5
trial by Senate 5
vote necessary to convict .... 5
IMPRISONMENT
for debt abolished 1
INDEBTEDNESS
OF COUNTIES
creation of extraordinary . . 8 3
INDEBTEDNESS OF STATE
extraordinary : submission to
popular vote 8 1
limit of 8 1
3
16
12
11
10
15
INDEX TO CONSTITUTION
149
Art. Sec.
INDIAN RESERVATIONS
disclaimer of title to 21 19
INDICTMENT
OR INFORMATION
when necessary 1 8
INSANE ASYLUMS
directors, appointment and
powers 10 6
medical superintendent, ap-
pointment 10 6
IRRIGATION
see water rights
JEOPARDY
twice in jeopardy prohibited. 1 13
JUDICIAL DEPARTMENT.. 5
distinct branch of govern-
ment 2 1
enumeration of courts 5 2
vacancies, how filled 5 19
JUDGES
District Judges —
election and term of office. 5 11
may hold court out of dis-
trict 5 12
qualifications 5 23
qualifications and residence 5 12
salaries 5 17
to report to Supreme
Judges 5 25
Supreme Judges —
election and term of office. 5 6
ineligible to other offices . . 5 7
report to Governor 5 25
salaries 5 17
vacancies in office, appoint-
ment 4 6
JURY
trial by, guaranteed 1 7
waiver of trial by 1 7
JUSTICE
free and speedy administra-
tion 1 18
JUSTICES OF THE PEACE
jurisdiction 5 22
LABOR
aliens not to be employed on
public works 13 5
arbitration of dispute 13 7
child labor in mines prohib-
ited 13 4
convict labor restricted 13 3
day's work on public works. .13 2
protection of health 13 2
LAWS
see Statutes
LEGISLATIVE DEPARTMENT
a distinct branch of govern-
ment 2 1
see Legislature
Art. Sec.
LEGISLATURE
adjournments 3 9
apportionment 3 4
bills, manner of passage .... 3 15
bills, origin and amendment 3 14
compensation of members . . 3 23
constitution of houses 3 2
convention of first Legisla-
ture 21 14
establishment of maximum
water rates 15 6
expulsion of members 3 11
failure to effect organiza-
tion 3 10
journal to be kept 3 13
journal: yeas and nays to be
entered 3 13
legislative power vested .... 3 1
lotteries not to be authorized. 3 20
majority to concur in bills . . 3 15
may alter compensation of
officers 5 27
may establish Boards of Ar-
bitration 13 7
may establish municipal
courts 5 14
may fix compensation of offi-
cers 4 19
may impose license taxes .... 7 2
may protect live stock 16 1
may provide exemptions from
taxation 7 2
may provide for revoking
charters 11 3
may remove public institu-
tions 10 7
may require compulsory
school attendance 9 9
mileage of members 3 23
nok to create excessive in-
debtedness 8 1
not to impose municipal taxes 7 6
not to make sectarian appro-
priations 9 5
not to pass retroactive corpo-
rate laws 11 12
oath of members 3 25
officers to be chosen by .... 3 9
pardon of treasons 4 7
power over courts 5 13
privileges of members 3 7
qualification of members .... 3 6
quorum 3 10
regulation of telegraph con-
nections 11 13
representative districts 3 5
rules of procedure 3 9
rules to be determined by
each house 3 9
secret sessions prohibited.... 3 12
senatorial districts 3 5
sessions: time of meeting... 3 8
special sessions 4 9
150
INDEX TO CONSTITUTION
^Avt Sec
LEGISLATURE Cont'd.
terms of members 3 3
to pass necessary laws ... .21 15
to pass revenue laws 7 16
to establish county govern-
ment 18 5
to establish school system . . 9 1
to levy a valuation tax .... 7 2
to provide for corporation
elections 11 4
to provide for county elec-
tions 18 6
to provide for incorporation
of cities 12 1
to provide for mechanics'
liens 13 6
to provide for sale, etc., of
lands 9 8
to provide general corpora-
tion laws 11 2
to provide system of county
finance 7 15
veto power of Governor .... 4 10
LEWISTON
terms of Supreme Court ... 5 8
LICENSES
Legislature may impose tax. 7 2
LIEUTENANT GOVERNOR
president of Senate 4 13
president of Senate, to act
when 4 13
qualifications 4 3
to fill vacancy in office of
Governor 4 12
LIVE STOCK 16
Legislature may provide pro-
tection 16 1
LIBERTY
of conscience and worship . . 1 4
of speech and writing 1 9
LOTTERIES
authorization by Legislature
prohibited 3 20
MANDAMUS
jurisdiction of Supreme
Court 5 9
MECHANICS' LIENS
Legislature may provide for. 13 6
MILITIA 14
enrollment and exemptions . . 14 1
flags to be carried 14 5
Governor is commander .... 4 4
Legislature to provide for . . 14 2
officers, selection and com-
mission 14 3
MILITARY
subordinate to civil power. . 1 12
Art. Sec.
MILITARY RECORDS
to be preserved by adjutant
general 14 4
MINES
employment of children pro-
hibited 13 4
MINES AND MINING
eminent domain 1 14
MORALS
Legislature to promote 3 24
MUNICIPAL CORPORATIONS
12
see cities; counties
OFFICERS
accounts and reports 4 17
appointment by Governor. ... 4 6
compensation may be altered 5 27
county —
compensation, how paid... 18 8
deputies and assistants. 18 6
enumeration and election . . 18 6
liability for fees 18 6
may retain expenses from
fees 18 7
neglect to account for fees
a felony 18 9
report of fees and ex-
penses 18 7
to perform required du-
ties 18 11
to receive quarterly sala-
ries 18 7
making profit from revenue
prohibited 7 10
qualification of officers un-
der first election 21 12
qualifications of State execu-
tive 4 3
report to Governor 4 8
tenure of office under first
election 21 13
Territorial to continue in of-
fice 21 5
women may hold school offices 6 2
PARDONS
see Board of Pardons
PENITENTIARY
warden, appointment and
powers 10 5
PETITION
right guaranteed 1 10
POLICE POWERS
not abridged in favor of cor-
porations 11 8
POLYGAMY
prohibited 1 4
PRECINCTS
Legislature to provide for . . 18 5
INDEX TO CONSTITUTION
151
Art. Sec.
PRESIDENT OF SENATE
to act as Governor 4 14
PRISON
see penitentiary and Board
of State Prison Commis-
sioners
PROBATE COURTS
see courts, probate courts
PROBATE JUDGE
election 18 6
PROHIBITION
jurisdiction of Supreme
Court 5 9
PROPERTY
to be denned and classified. . 7 3
PROSECUTING ATTORNEYS
election, qualification and sal-
ary 5 13
PUBLIC ADMINISTRATOR
see county treasurer
PUBLIC INDEBTEDNESS
AND SUBSIDIES 8
PUBLIC INSTITUTIONS 10
removal by Legislature 10 7
to be established by State ..10 1
PUBLIC LANDS
Legislature to provide for
sale, etc 9 8
limitations on annual sale.. 9 8
price not to be reduced to
settlers 9 8
price of school lands 9 8
price of university lands.... 9 10
PUBLIC SCHOOL FUND
loan of restricted 9 11
of what consists 9 4
to remain intact 9 3
PUBLIC USES
development of material re-
sources 1 14
preservation of health 1 14
rights of way for irrigation
and mining 1 14
use of water 15 1
PUNISHMENT
cruel and unusual prohibited 1 6
QUARANTINE
against diseased live stock.. 16 1
RAILROADS
construction, connection and
intersections 11 5
discriminations and prefer-
ences prohibited ; 11 6
legislative control over rates. 11 5
not to be constructed in cities
without consent 11 11
to be public highways 11 5
Art. Sec.
RECOGNIZANCES
Territorial to pass to State. 21 4
RECORDER
clerk of District Court is.. 18 6
may appoint deputies, when. 18 6
RELIGION
freedom of exercise guaran-
teed 21 19
public appropriations for
prohibited 9 5
tests not required of teach-
ers, etc 9 6
RELIGIOUS FREEDOM
guaranty 1 4
REPRESENTATIVES
see Legislature
RESERVED RIGHTS
not impaired 1 21
RESIDENCE
for voting purposes 6 5
RESTRAINT OF TRADE
combinations prohibited .... 11 18
REVENUE
corporations to be taxed .... 7 8
duplicate taxation prohibited 7 5
equalization of taxes —
see Board of equaliza-
tion, State; and board
of equalization, county.
exemptions from taxation —
see exemptions (from taxa-
tion)
fiscal year defined 7 1
Legislature to impose valua-
tion tax 7 2
Legislature to pass laws .... 7 16
profit not to be made from. . 7 10
property to be defined and
classified 7 3
rate for State purposes .... 7 9
special county taxes 7 15
special tax to meet appropria-
tions 7 11
State taxes to be paid in full 7 7
uniformity of taxation re-
quired 7 5
SALARIES
of county officers 18 7
SCHEDULE AND ORDI-
NANCE 21
SCHOOL DISTRICTS
extraordinary indebtedness.. 8 3
not to lend credit 8 4
not to make sectarian ap-
propriations 9 5
SCHOOL LANDS
see public lands
152
INDEX TO CONSTITUTION
Art. Sec.
SCHOOLS
board of education to super-
vise 9 2
compulsory attendance may
be required 9 9
fund, of what consists 9 4
fund to remain intact 9 3
Legislature to establish sys-
tem 9 1
loan of funds 9 11
religious test in teaching pro-
hibited 9 6
SEAL OF STATE
custody and use 4 15
to be affixed to grants 4 16
SEARCHES AND SEIZURES
unreasonable prohibited .... 1 17
SEAT OF GOVERNMENT
election to locate 10 3
located at Boise 10 2
SECRETARY OF STATE
custody of great seal 4 15
member Board of Education. 9 2
member Board of Equal-
ization 8 12
member Board of Pardons . . 4 7
member Land Board 9 7
member State Prison Board . 4 18
10 5
qualifications 4 3
to countersign grants 4 16
salary 4 19
vacancy filled by appoint-
ment 4 6
SENATE
see Legislature
SENATORS
see Legislature
SHERIFF
cannot succeed himself .... 18 6
election 18 6
may appoint deputies, when. 18 6
SOLDIERS
not to be quartered 1 12
SPEAKER OF HOUSE
to act as Governor 4 14
STATUTES
amendments to be published
in full 3 18
bills: amendment or rejection 3 14
bills may originate where. . 3 14
bills must be printed ...... 3 15
bills: signature by presiding
officer 3 21
creation of extraordinary
debt 8 1
emergency clauses 3 22
enacting clauses 3 1
19
15
12
18
19
16
17
2
22
16
15
10
15
12
3
19
6
17
8
A_rt ^>ec
STATUTES — Cont'd.
local laws prohibited 3
printing of bills 2
retroactive in favor of cor-
porations prohibited 11
revision by title prohibited . . 3
special laws prohibited 3
subject to be single 3
technical terms avoided .... 3
Territorial continued in force 21
time of taking effect 3
title to express subject .... 3
to be passed by bill 3
veto power of Governor .... 4
vote to be entered on journal 5
STATE AUDITOR
member Board of Equaliza-
tion 7
qualifications 4
salary 4
vacancy filled by appointment 4
STATE BOUNDARIES 17
STATE INSTITUTIONS
accounts and reports of offi-
cers 4
investigation and report of
condition 4
STATE PRISON
see penitentiary
STREET RAILROADS
not to be constructed in
cities without consent . . 11
STATE TREASURY
appropriation necessary to
authorize withdrawals ... 7
STATE TREASURER
custodian of school fund.... 9
member Board of Equaliza-
tion 7
qualifications 4 ,
salary 4
vacancy filled by appoint-
ment 4
SUFFRAGE
free exercise guaranteed ... 1
property qualifications pro-
hibited 1
see elections
SUFFRAGE AND ELEC-
TIONS 6
SUPT. OF PUB. INSTRUC-
TION
member of Land Board .... 9
president Board of Education 9
qualifications 4
salary 4
vacancy filled by appointment 4
SUPREME COURT
see courts, Supreme Court
11
13
12
3
19
19
20
7
2
3
19
6
INDEX TO CONSTITUTION
153
Art. Sec.
SURVEYOR
election 18 6
TAX COLLECTOR
sen assessor
TELEGRAPHS AND TELE-
PHONES
connections with other lines. 11 13
construction authorized 11 13
TERRITORY
institutions to pass to State. 10 4
TREASON
definition 5 5
effect of conviction 5 5
pardons, how granted 4 7
TREASURER
see State Treasurer and
county treasurer
TRUSTS
contracts restraining trade
prohibited 11 18
UNITED STATES
Idaho a part 1 3
UNIVERSITY LANDS
see public lands
UNIVERSITY OF IDAHO
location and rights confirmed 9 10
price of lands 9 10
regents to have supervision. 9 10
WATER RIGHTS 15
appropriation —
priorities recognized 15 3
right guaranteed 15 3
domestic rights preferred. . .15 3
eminent domain 1 14
mining rights preferred,
when 15 3
priorities among purchasers . 15 5
priorities, limitation on
rights 15 5
rates, how established 15 6
right to collect rates a fran-
chise 15 2
sales, etc., equivalent to dedi-
cation 15 4
use of water a public use... 15 1
WITNESSES
self-criminating testimony
not required 1 13
WOMEN
may vote and hold school of-
fices 6 2
THE
REVISED CODES
OF
IDAHO
AN ACT
To Compile, Revise and Consolidate the General Laws of the
State of Idaho, Repealing all Laws not Herein Contained
or Hereby Continued in Force, and Declaring an Emer-
gency.
Be It Enacted by the Legislature of the State of Idaho :
That the following Codes, Titles, Chapters, Articles and Sections
shall constitute the "REVISED CODES OF IDAHO," and be in
force as such: Provided, That nothing herein contained shall be
construed to adopt or make of force as law the headlines preceding,
or the notes following, any section, or any matter inserted by way of
mere classification, cross reference or annotation.
GENERAL
PROVISIONS APPLICABLE
TO
ALL THE CODES
GENERAL PROVISIONS APPLICABLE TO ALL
THE CODES
Section
1. Divisions of Codes.
When effective.
Codes not retroactive.
Codes liberally construed.
Codes continue existing- law.
Tenure of offices preserved.
Certain offices to cease.
Accrued rights and pending ac-
tions not affected.
Limitations not tolled.
Holidays.
Computations of time.
2.
3.
4.
5.
6.
7.
9.
10.
11.
Section
12. Same: Obligations maturing on
holidays.
13. Seal defined.
14. Joint authority construed.
15. Construction of words and
phrases.
16. Statutory terms defined.
17. General repeal of existing laws.
18. Common law in force.
19. Prior legislation repealed.
20. Past offenses may be prosecuted.
Divisions of Codes.
Sec. 1. These Codes consisting of
Part First, Political;
Part Second, Civil;
Part Third, Remedial;
Part Fourth, Penal,
constitute the Revised Codes of the State of Idaho.
Historical: Rev. St. 1887, Sec. 1.
When Effective.
Sec. 2. An emergency existing therefor, these Revised Codes take
effect immediately on their passage and approval by the Governor.
Historical: New section by Com-
missioner based on Rev. St. 1887,
Sec. 2.
Codes Not Retroactive.
Sec. 3. No part of these Revised Codes is retroactive, unless ex-
pressly so declared.
Code 1872, Sec. 3; Deering's Code, ib.
Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 3. C.
C. P. 1881, Sec. 2.
California Legislation: Same: Pol.
Codes Liberally Construed.
Sec. 4. The rule of the common law that statutes in derogation
thereof are to be strictly construed, has no application to these Re-
vised Codes. The Revised Codes establish the law of this State re-
specting the subjects to which they relate, and their provisions and all
proceedings under them are to be liberally construed, with a view
to effect their objects and to promote justice.
160
GENERAL CODE PROVISIONS
Historical: Rev. St. 1887, Sec. 4. C.
C. P. 1881, Sec. 3.
California Legislation: Same: Pol.
Code 1872, Sec. 4; Deering's Code, ib.;
Kerr's Code, ib.
Cited: State v. Inhabitants of Po-
catello (1891) 3 Ida. 174; 28 Pac.
411; Glidden v. Whittier et al. (1891)
46 Fed. Rep. 437; McDonald v. Burke
(1892) 3 Ida. 266; 35 Am. St. Rep.
2 76; 28 Pac. 440; Wright v. West-
heimer (1891) 3 Ida. 232; 28 Pac.
430; Blackfoot Stock Co. v. Delamue
(1892) 3 Ida. 291; 29 Pac. 97; Kelly
v. Leachman (1893) 3 Ida. 672; 34
Pac. 813; State v. Reed (1894) 3 Ida.
754; 35 Pac. 706; Simmons Hdw. Co.
v. Alturas Com. Co. (1895) 4 Ida. 334;
39 Pac. 550; Shaw v. Manville (1895)
4 Ida. 369; 39 Pac. 559; Guynn v.
McDaneld (1985) 4 Ida. 605; 43 Pac.
74; in re Dowling (1896) 4 Ida. 715;
43 Pac. 871; Wheeler v. Com. Bk. of
Moscow (1896) 5 Ida. 15; 46 Pac.
830; Vollmer v. Spencer (1897) 5 Ida.
55 7; 51 Pac. 60 9; Barnes v. Buffalo
Pitts Co. (1899) 6 Ida. 519; 57 Pac.
267; Salisbury v. Lane (1900) 7 Ida.
370; 63 Pac. 383; State v. Watkins
(1900) 7 Ida. 35; 59 Pac. 1106; First
Nat. Bk. of Pocatello v. Bunting &
Co. (1900)) 7 Ida. 387; 63 Pac. 694;
Phillips v. Salmon River Min. Co.
(1903) 9 Ida. 149; 72 Pac. 886; Mel-
len v. McMannis (1904) 9 Ida. 418;
75 Pac. 98.
Statutory Construction: This sec-
tion changes the rule that statutes in
derogation of the common law must
be strictly construed. Darby v. Hear-
gerty (1887) 2 Ida. 282; 13 Pac. 85.
Codes Continue Existing Law.
Sec. 5. The provisions of these Revised Codes, so far as they are
substantially the same as existing statutes, must be construed as con-
tinuations thereof, and not as new enactments.
Historical: Rev. St. 1887, Sec. 5. C.
C. P. 1881, Sec. 4.
California Legislation: Same: Pol.
Code 1872, Sec. 5; Deering's Code, ib.;
Kerr's Code, ib.
Tenure of Offices Preserved.
Sec. 6. All persons who at the time these Revised Codes take ef-
fect hold office under any of the acts repealed, continue to hold the
same according to the tenure thereof, except those offices which are
not continued by these Revised Codes.
the words "and excepting offices filled
by appointment": Deering's Code, Sec.
6; Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 6.
California Legislation: This same
provision is found in the Pol. Code of
1872 but was later amended by adding
Certain Offices to Cease.
Sec. 7. When any office is abolished by the repeal of any act, and
such act is not in substance re-enacted or continued in the Revised
Codes, such office ceases at the time the Revised Codes take effect.
Historical: Rev. St. 188 7, Sec. 7.
California Legislation : Same: Pol.
Code 1872, Sec. 7; Deering's Code, ib.;
Kerr's Code, ib.
Accrued Rights and Pending Actions Not Affected.
Sec. 8. No action or proceeding commenced before the Revised
Codes take effect, and no right accrued, is affected by their provis-
ions, but the proceedings therein must conform to the requirements
of the Revised Codes as far as applicable.
Historical: Rev. St. 1887, Sec. 8. C.
C. P. 1881, Sec. 5.
California Legislation: Same: Pol.
Code 1872, Sec. 8; Deering's Code, ib,;
Kerr's Code, ib.
Cited: Sebree v. Smith (1888) 2
Ida. 357; 16 Pac. 477.
Limitations Not Tolled.
Sec. 9. When a limitation or period of time prescribed in any ex-
GENERAL CODE PROVISIONS
161
isting statute for acquiring a right, or barring a remedy, or for any
other purpose, has begun to run before these Revised Codes go into
effect, and the same or any limitation is prescribed in these Codes,
the time which has already run shall be deemed part of the time
herein prescribed as such limitation.
Historical: Rev. St. 1887, Sec. 9.
C. C. P. 1881, Sec. 6.
California Legislation: Somewhat
similar: Pol. Code 1872, Sec. 9; same
as amended; Deering's Code, ib,;
Kerr's Code, ib.
Holidays.
Sec. 10. Holidays within the meaning of these Revised Codes are :
Every Sunday, the first day of January, the twenty-second day of
February, the fourth of July, the tWenty-fifth day of December,
every day on which an election is held throughout the State, and
every day appointed by the President of the United States, or by
the Governor of this State, for a public feast, thanksgiving or holiday.
Historical: Rev. St. 188 7, Sec. 10.
C. C. P. 1881, Sec. 7.
California Legislation: Same: Pol.
Code 1872, Sec. 10; as amended, pro-
vides for holidays falling on Sundays;
Deering's Code, ib.; by later amend-
ments the number of holidays is in-
creased: Kerr's Code, ib.
Cross- Reference: Non- judicial days:
Sec. 3866.
Computation of Time.
Sec. 11. The time in which any act provided by law is to be done
is computed by excluding the first day, and including the last, unless
the last day is a holiday, and then it is also excluded.
Code 1872, Sec. 12; Deering's Code,
ib,; Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 11.
C. C. P. 1881, Sec. 8.
California Legislation: Same: Pol.
Same: Obligations Maturing on Holidays.
Sec. 12. Whenever any act of a secular nature, other than a work
of necessity or mercy, is appointed by law or contract to be performed
upon a particular day, which day falls upon a holiday, such act may
be performed upon the next business day, with the same effect as
if it had been performed upon the day appointed.
Historical: Rev. St. 1887, Sec. 12.
C. C. P. 1881, Sec. 9.
California Legislation: Same: Pol.
Code 1872, Sec. 13; Deering's Code,
ib.; Kerr's Code, ib.
Cited: State v. Gilbert (1902) 8 Ida.
346; 6 9 Pac. 62; Sabin v. Burke
(1894) 4 Ida. 179; 37 Pac. 352.
Seal Defined.
Sec. 13. When the seal of a court, public officer or person, is re-
quired by law to be affixed to any paper, the word "seal," includes
an impression of such seal upon the paper alone, as well as upon
wax or a wafer affixed thereto.
Historical: Rev. St. 1887, Sec. 13.
C. C. P. 1881, Sec. 10.
California legislation: Same: Pol.
Code 1872, Sec. 14; Deering's Code,
ib.; Kerr's Code, ib.
Joint Authority Construed.
Sec. 14. Words giving a joint authority to three or more public
officers, or other persons, are construed as giving such authority to
162
GENERAL CODE PROVISIONS
a majority of them, unless it is otherwise expressed in the act giving
the authority.
Historical: Rev. St. 1887, Sec. 14.
C. C. P. 1881, Sec. 11.
California Legislation: Same: Pol.
Code 1872, Sec. 15; Deering's Code,
ib.; Kerr's Code, ib.
Construction: This section does not
eliminate the question of notice when
required by the Constitution or stat-
utes, but is evidence of the legislative
intent to authorize a majority of all
deriving their powers from the Legis-
lature to act in every matter over
which they have authority, unless
otherwise expressed by statute. Ack-
ley v. Perrin (1905) 10 Ida. 531; 79
Pac. 192.
Construction of Words and Phrases.
Sec. 15. Words and phrases are construed according to the con-
text and the approved usage of the language, but technical words
and phrases, and such others as have acquired a peculiar and ap-
propriate meaning in law, or are defined in the succeeding section,
are to be construed according to such peculiar and appropriate mean-
ing or definition.
Cited: Territory v. Evans (1888) 2
Ida. 425; 17 Pac. 139.
Historical: Rev. St. 1887, Sec. 15.
C. C. P. 1881, Sec. 12.
California Legislation: Same: Pol.
Code 1872, Sec. 16; Deering's Code,
ib.; Kerr's Code, ib.
Statutory Terms Defined.
Sec. 16. Words used in these Revised Codes in the present tense,
include the future as well as the present ; words used in the masculine
gender, include the feminine and neuter; the singular number in-
cludes the plural and the plural the singular; the word person in-
cludes a corporation as well as a natural person; Writing, includes
printing; oath includes affirmation or declaration, and every mode
of oral statement, under oath or affirmation, is embraced by the
term "testify," and every written one in the term "depose" ; signature
or subscription includes mark, when the person cannot write, his
name being written near it, and witnessed by a person who writes his
own name as a witness.
The following words also have, in the Revised Codes, the signifi-
cation attached to them in this section, unless otherwise apparent
from the context:
1. The word "property," includes both real and personal prop-
erty.
2. The words "real property," are co-extensive with lands, tene-
ments and hereditaments, possessory rights and claims.
3. The words "personal property," include money, goods, chat-
tels, things in action, and evidences of debt.
4. The word "month," means a calendar month, unless other-
Wise expressed.
5. The word "will," includes codicils.
6. The word "writ," signifies an order or precept in writing,
issued in the name of the people, or of a court or judicial officer,
and the word "process," a writ or summons issued in the course of
judicial proceedings.
7. The word "State," when applied to the different parts of the
United States, includes the District of Columbia and the Territories;
GENERAL CODE PROVISIONS
163
and the words "United States/' may include the District and Terri-
tories.
Historical: Rev. St. 1887, Sec. 16.
C. C. P. 1881, Sec. 13.
California Legislation: Somewhat
similar: Pol. Code 1872, Sec. 17; also
as amended: Deering's Code, ib.;
further amended: Kerr's Code, ib.
Cited: Hall v. Blackman (1902) 8
Ida. 272; 68 Pac. 19; Johnson v.
Hurst (1904) 10 Ida. 308; 77 Pac. 784.
Mark: Sufficiency of Attestation: A
mark made in place of a signature is
sufficiently witnessed by the notary's
signature affixed to his certificate of
acknowledgment of the instrument
First Nat. Bk. of Hailey v. Glenn
(1904) 10 Ida. 224; 77 Pac. 623.
Personal Property: An order in the
form of a draft is am evidence of debt
and consequently personal property
under this section. Murphy v. Mon-
tandon (1892) 3 Ida. 325; 35 Am. St.
Rep. 279; 29 Pac. 851.
General Repeal of Existing Law.
Sec. 17. No statute law is continued in force because it is con-
sistent with the provisions of the Revised Codes on the same subject,
but in all cases provided for therein all statute laws heretofore in
free in this State, whether consistent or not with the provisions
of the Revised Codes, unless expressly continued in force, are re-
pealed and abrogated. This repeal or abrogation does not revive
any former law heretofore repealed, nor does it affect any right
already existing or accrued, or any action or proceeding already
taken, except as in these Codes provided; nor does it affect any
local or special statute not expressly repealed; nor does it affect any
outstanding unexpended appropriation.
The following acts and parts of acts are the local and special
statutes which are continued in force, except in so far as the same
have been modified, amended, superseded or repealed by other legis-
lation. All others are hereby repealed:
(1) All those special and local laws continued in force by an
act entitled "An Act to Provide for Continuing in Force Certain
Special and Local Laws and Repealing All Others," approved Feb-
ruary 10, 1887, which said local and special laws are embraced within
the publication known as "Local and Special Laws of Idaho Terri-
tory," printed by direction of the 14th session of the Territorial
Legislative Assembly.
(2) An Act entitled, "An Act to Provide for a Wagon Road Be-
tween Mount Idaho in Idaho County and Little Salmon Meadows in
Washington County," Approved February 5, 1889. (Laws 1889, 30.)
(3) An act entitled, "An Act Authorizing the State of Oregon
to Erect, Maintain and Operate a Hatchery in the Territory of
Idaho." Approved February 7, 1889. (Laws 1889, 54.)
(4) An act entitled, "An Act to Annex a Portion of Nez Perce
County to Latah County for School Purposes." Approved February
7, 1889. (Laws 1889, 56.)
(5) An act entitled, "An Act to Invest the Money in the Terri-
torial General School Fund of Idaho Territory." Approved February
7, 1889. (Laws 1889, 59.)
(6) An act entitled, "An Act Supplementary to an Act En-
titled, 'An Act to Provide for a Wagon Road Between Mount Idaho
in Idaho County and Little Salmon Meadows in Washington
County,' " Approved February 14, 1891 ; re-enacted February 2,
1899. (Laws 1891, 43; Laws 1899, 23.)
164 GENERAL CODE PROVISIONS
(7) An act entitled "An Act Concerning and Providing for the
Funding of the Bonded and Other Indebtedness of the State of Idaho
at the Date of Admission." Approved March 14, 1891 ; re-enacted
February 10, 1899. (Laws 1891, 211; Laws 1899, 144.)
(8) An act amendatory of the charter of the City of Lewiston.
Approved February 10, 1893; re-enacted February 9, 1899. (Laws
1893, 19; Laws 1899, 171.)
(9) An act entitled, "An Act to Provide for the Internal Im-
provement of the State by the Construction of a System of Wagon
Roads," etc. Approved February 16, 1893; re-enacted February lu,
1899. (Laws 1893, 23; Laws 1899, 173.)
(10) An act amendatory of the charter of the City of Lewiston.
Approved March 6, 1893; re-enacted February 14, 1899. (Laws
1893, 162; Laws 1899, 225.)
(11) An act entitled, "An Act to Amend Section 16 of an Act
Entitled, 'An Act to Provide for the Internal Improvement of the
State/ " etc. Approved March 6, 1893; re-enacted February 10, 1899.
(Laws 1893, 169; Laws 1899, 173, Sec. 16.)
(12) An act entitled, "An Act Providing for the Issue of State
Bonds for the Benefit of the Albion State Normal School and the
Lewiston State Normal School," etc. Became a law March 7, 1895.
(Laws 1895, 64.)
(12a) An act to amend Section 8 of an act entitled, "An Act
Creating and Organizing the Counties of Elmore and Logan," etc.
Approved March 9, 1895; re-enacted February 16, 1899. (Laws
1895, 87; Laws 1899, 280.)
(13) An act entitled, "An Act Providing for the Issuing of
State Bonds to the Amount of Twenty-five Thousand Dollars for the
Improvements of the State Insane Asylum," etc. Approved March
11, 1895. (Laws 1895, 148.)
(14) An act entitled, "An Act Legalizing the Incorporation of
the Village of Coeur d'Alene," etc. Approved March 8, 1897; re-
enacted February 18, 1899. (Laws 1897, 44; Laws 1899, 301.)
(15) An Act amendatory of the charter of the City of Boise.
Approved March 12, 1897; re-enacted February 21, 1899. (Laws
1897, 85; Laws 1899, 310.)
(16) An act entitled, "An Act to Vacate a Part of First Street
in Boise City." Approved March 12, 1897; re-enacted February 18,
1899. (Laws 1897, 137; Laws 1899, 318.)
(17) An act amendatory of the charter of the City of Lewiston.
Approved February 28, 1899. (Laws 1899, 331.)
(18) An act entitled, "An Act to Validate and Legalize State,
County, School, Municipal or Other Bonds Issued Under Acts of the
First, Second, Third and Fourth Sessions of the Legislature of the
State of Idaho." Approved March 6, 1899. (Laws 1899, 368.)
(19) An act entitled, "An Act Providing for the Issue of State
Bonds for the Purchase of Chemicals and Chemical and Physical
Apparatus, and for the Erection of Two Dormitories for the Lewis-
ton State Normal School," etc. Approved March 18, 1899. (Laws
1899, 373.)
(20) An act entitled, "An Act to Amend Section 20 of an
GENERAL CODE PROVISIONS 165
Act * * * Entitled, 'An Act to Provide for the Internal Improve-
ment of the State/ " etc. Approved March 4, 1899. (Laws 1899, 399.)
(21) An act entitled, "An Act to Amend Section 21 of an Act
* * * Entitled, 'An Act to Provide for a Wagon Road Between Mount
Idaho in Idaho County and Little Salmon Meadows in Washington
County,' " etc. Approved March 7, 1899. (Laws 1899, 400.)
(22) An act amendatory of the charter of the City of Lewiston.
Approved March 6, 1899. (Laws 1899, 444.)
(23) An act amendatory of the charter of the City of Lewiston.
Approved March 6, 1899. (Laws 1899, 447.)
(24) An act amendatory of the charter of the City of Lewiston.
Approved March 6, 1899. (Laws 1899, 450.)
(25) An act amendatory of the charter of the City of Lewiston.
Approved March 13, 1899. (Laws 1899, 459.)
(26) An act entitled, "An Act to provide for the Issue of State
Bonds for the Construction, Improvement and Furnishing of the
Public Buildings of the State," etc. Approved March 9, 1899. (Laws
1899, 459.)
(27) Sections 15 to 25, inclusive, of an act entitle^. "An Act
to Establish and Maintain a School to Be Called the Academy of
Idaho at Pocatello," etc. Approved March 11, 1901. (Laws 1901, 21.)
(28) An act entitled, "An Act to Provide for the Issuance of
State Bonds to Pay Claims Against the State of Idaho," etc. Ap-
proved March 21, 1901. (Laws 1901, 33.)
(29) An act entitled, "An Act Providing for the Issue of State
Bonds for the Purpose of Completing the Present Building and for
the Erection of Two Dormitories for the Albion State Normal School,"
etc. Approved March 11, 1901. (Laws 1901, 74.)
(30) An act entitled, "An Act to provide for the Internal Im-
provement of the State by Construction of a Wagon Road in the
Counties of Idaho and Washington, and Appropriating Money There-
for." Approved March 5, 1901. (Laws 1901, 84.)
(31) An act entitled, "An Act to Amend an Act Entitled, 'An
Act to Incorporate Boise City, in Ada County/ " etc. Approved
March 14, 1901. (Laws 1901, 109.)
(32) An act entitled, "An Act Providing for the Issue of State
Bonds for the Purpose of Adding Twenty Rooms to Each Dormitory
of the Lewiston State Normal School," etc. Approved March 16,
1901. (Laws 1901, 133.)
(33) An act entitled, "An Act Legalizing the Improvement of
the Town of Post Falls, Kootenai County, Idaho," etc. Approved
March 14, 1901. (Laws 1901, 154.)
(34) An act entitled, "An Act Providing for the Issuing of
State Bonds for the Erection of a School of Science Hall, and for
the Erection of a Girls' Dormitory," etc. Approved March 14, 1901.
(Laws 1901, 158.)
(35) An act entitled, "An Act to Amend Sections 4 and 6 of
'An Act to Provide for the Issue of State Bonds for the Construction,
Improvement and Furnishing of the Public Buildings of the State/ "
etc. Approved March 12, 1901. (Laws 1901, 163.)
(36) An act amendatory of the charter of the City of Lewiston.
Approved March 16, 1901. (Laws 1901, 208.)
166 GENERAL CODE PROVISIONS
(37) An act entitled, "An Act Providing for the Issuance of
State Bonds for the Refunding of the Bonded Indebtedness of the
State," etc. Approved March 14, 1901. (Laws 1901, 227.)
(38) Sections 20 to 26, inclusive, of an act entitled, "An Act
Entitled an Act to Establish the Idaho Industrial Reform School/'
etc. Approved February 16, 1903. (Laws 1903, 12.)
(39) Sections 1 to 9, inclusive, of an act entitled, "An Act to
Locate and Provide a Supreme Court Building, Furniture and a Law
Library Therefor at Lewiston, Idaho," etc. Approved February 20,
1903. (Laws 1903, 42.)
(40) An act entitled, "An Act Providing for the Issuance and
Sale of State Bonds in the Sum of Thirty Thousand Dollars and
Appropriating the Proceeds Thereof to the Academy of Idaho," etc.
Approved February 27, 1903. (Laws 1903, 51.)
(41) An act entitled, "An Act Providing for the Construction
of a Wagon Road Bridge Across the Snake River Between the
Counties of Oneida and Blaine," etc. Approved March 11, 1903.
(Laws 1903, 54.)
(42) An act entitled, "An Act to Provide for the Construction
of a Wagon Road in the Counties of Boise and Idaho," etc. Approved
March 11, 1903. (Laws 1903, 83.)
(43) An act amendatory of the charter of the City of Lewiston.
Approved March 9, 1903. (Laws 1903, 105.)
(44) An act entitled, "An Act to Provide for the Internal Im-
provement of the State by the Construction of a Bridge Across
Salmon River in the County of Lemhi, and Appropriating Money
Therefor." Approved March 11, 1903. (Laws 1903, 146.)
(45) An act entitled, "An Act Providing for the Issuance and
Sale of State Bonds * * * and Appropriating the Proceeds Thereof
to the Albion State Normal School," etc. Approved March 4, 1903.
(Laws 1903, 208.)
(46) An act entitled, "An Act to Amend Sections 19 and 20
of an Act Entitled, 'An Act to Establish the Idaho Industrial Reform
School,' " etc. Approved March 6, 1903. (Laws 1903, 291.)
(47) An act entitled, "An Act to Provide for the Further Loan
and Further Issuance of State Bonds Under That Certain Act En-
titled, 'An Act to Provide for the Issuance of State Bonds and to
Pay Claims Against the State of Idaho,' " etc. Approved March 16,
1903. (Laws 1903, 292.)
(48) An act entitled, "An Act Providing Money to Pay Certain
Appropriations Made by the Legislature, and to Pay Certain De-
ficiency Claims Against the State of Idaho by Providing for the
Issuance of Bonds,' " etc. Approved March 16, 1903. (Laws 1903,
308.)
(49) An act entitled, "An Act Making Disposition of Certain
Moneys in the Hands of the Secretary of the Board of Trustees of
the Lewiston State Normal School, and Creating a Fund for the
Maintenance of the Library of Said Institution." Approved March
4, 1903. (Laws 1903, 426.)
(50) An act entitled, "An Act Providing for Issuance of State
Bonds for the Erection and Equipment of an Armory and Gym-
GENERAL CODE PROVISIONS 167
nasium, the Equipment of the Mechanical and Electrical Engineer-
ing," etc. Approved March 16, 1903. (Laws 1903, 433.)
(51) An act amendatory of an act incorporating the City of
Boise, in Ada County. Approved March 11, 1903. (Laws 1903, 437.)
(52) An act entitled, "An Act to Provide for the Issuance of
State Bonds to Improve the Idaho State Penitentiary and Secure
and Furnish Water for the Same.,, Approved March 11, 1903.
(Laws 1903, 440.)
(53) An act providing for the issuance of State bonds to pro-
vide money for the improvement of the Idaho Industrial Reform
School. Approved March 8, 1905. (Laws 1905, 91.)
(54) An act entitled, "An Act for the Purpose of Authorizing
the Modification, Enlargement and Improvement of the Present
Capitol Building at the City of Boise, State of Idaho, or for Pro-
curing a New Site at Said City of Boise and Erecting Thereon a
New Capitol Building and Making Appropriation Therefor." Ap-
proved March 3, 1905. (Laws 1905, 155.)
(55) An act entitled, "An Act Providing for the Issuance and
Sa^e of State Bonds * * * and Appropriating the Proceeds Thereof
to the Academy of Idaho," etc. Approved March 10, 1905. (Laws
1905. 166.)
(56) An act entitled, "An Act Providing the Issuance and Sale
of State Bonds * * * and Appropriating the Proceeds Thereof to
the University of Idaho," etc. Approved March 8, 1905. (Laws
1905, 194.)
(57) Sections 4 to 11, inclusive, to an act providing for the
establishment, building and equipment of the Northern Idaho Insane
Asylum. Approved March 7, 1905. (Laws 1905, 196.)
(58) An act providing for the issuance and sale of State bonds
for the improvement of the Lewiston State Normal School. Approved
March 8, 1905. (Laws 1905, 203.)
(59) An act entitled, "An Act to Provide for the Construction
cf a System of Wagon Roads and Trails in the Intermountain Region
of Idaho," etc. Approved March 8, 1905. (Laws 1905, 206.)
(59a) An act providing for the issuance and sale of bonds for
tine improvement of the Albion State Normal School. Approved
March 9, 1905. (Laws 1905, 214.)
(60) An act entitled, "An Act to Amend an Act * * * Entitled,
'An Act to Provide for the Issuance of State Bonds to Improve the
Idaho State Penitentiary/ " etc. Approved March 6, 1905. (Laws
1905, 234.)
(61) An act entitled, "An Act Making Provision for Moneys
to Be Used in the Further Improvement of the Idaho State Peni-
tentiary," etc. Approved March 6, 1905. (Laws 1905, 235.)
(62) An act entitled, "An Act Levying and Requiring the Col-
lection of a Special Ad Valorem Tax for the Payment of the Interest
Upon Certain Bonds Issued by the State of Idaho, as the Same Be-
comes Due, and Also for the Payment of the Principal," etc. Ap-
proved March 8, 1905. (Laws 1905, 280.)
(63) An act authorizing the turning over of the Soldiers' Home,
near Boise, to the Government of the United States. Approved March
2, 1905. (Laws 1905, 295.)
168 GENERAL CODE PROVISIONS
(64) An act entitled, "An Act Legalizing the Incorporation of
the Village of Oakley," etc. Approved February 11, 1905. (Laws
1905, 330.)
(65) An act entitled, "An Act to Amend Section 1 of 'An Act
to Create the Independent School District of Boise City/ " etc. Ap-
proved March 10, 1905. (Laws 1905, 372.)
(66) An act entitled, "An Act Creating and Establishing the
Normal School Fund," etc. Approved March 6, 1905. (Laws 1905,
393.)
(67) An act entitled, "An Act Making Provision for Moneys
to Be Used in the Improvement, Repair and Completion of Buildings
Belonging to Certain State Institutions/' etc. Approved March 6,
1905. (Laws 1905, 400.)
(68) An act entitled, "An Act Creating and Establishing the
Soldiers' Home Fund," etc. Approved March 6, 1905. (Laws 1905,
405.)
(69) An act entitled, "An Act Creating and Establishing the
Penitentiary Fund," etc. Approved March 6, 1905. (Laws 1905,
406.)
(70) An act entitled, "An Act Creating and Establishing the
Insane Asylum Fund," etc. Approved March 6, 1905. (Laws 1905,
407.)
(71) An act entitled, "An Act Creating and Establishing the
Academy of Idaho Fund," etc. Approved March 6, 1905. (Laws
1905, 409.)
(72) An act entitled, "An Act Making Provision for Moneys
to Be Used in the Improvement of the Idaho Soldiers' Home," etc.
Approved March 6, 1905. (Laws 1905, 410.)
(73) An act entitled, "An Act Creating and Establishing the
Idaho Industrial Reform School Fund," etc. Approved March 6,
1905. (Laws 1905, 415.)
(74) An act entitled, "An Act Creating and Establishing the
University Fund," etc. Approved March 6, 1905. (Laws 1905, 417.)
(75) An act entitled, "An Act Creating and Establishing the
Scientific School Fund," etc. Approved March 6, 1905. (Laws
1905, 418.)
(76) An act entitled, "An Act Creating and Establishing the
Agricultural College Fund," etc. Approved March 6, 1905. (Laws
1905, 419.)
(77) An act entitled, "An Act Creating and Establishing the
State Charitable Institutions Fund," etc. Approved March 6, 1905.
(Laws 1905, 421.)
(78) An act providing for the survey of certain unsurveyed
public lands of the United States within the State of Idaho. Approved
March 6, 1905. (Laws 1905, 422.)
(79) An act entitled, "An Act Prohibiting the Further Issuance
of Bonds Under the Provisions of That Certain Act of the Legis-
lature of the State of Idaho, Approved March 16, 1903," etc. Ap-
proved March 6, 1905. (Laws 1905, 429.)
(80) An act entitled, "An Act to Amend an Act Entitled, 'An
Act to Create the Independent School District of Boise City,' " etc.
Approved February 15, 1907. (Laws 1907, 7.)
GENERAL CODE PROVISIONS 169
(81) An act amendatory to an act creating and establishing
the Scientific School Fund. Approved February 19, 1907. (Laws
1907, 26.)
(82) An act entitled, "An Act to Amend Section 2 of an Act
Entitled, 'An Act Creating and Establishing the Agricultural College
Fund/ " etc. Approved February 19, 1907. (Laws 1907, 27.)
(83) An act amendatory of an act creating the independent
school district of Emmettsville in Ada County. Approved February
19, 1907. (Laws 1907, 31.)
(84) An act entitled, "An Act to Amend an Act Entitled, 'An
Act to Incorporate Boise City in Ada County,' * * * and to Amend
an Act Entitled, 'An Act Amending the Charter of the City of
Boise,' " etc. Approved February 22, 1907. (Laws 1907, 57.)
(85) An act entitled, "An Act Providing for the Issuance and
Sale of State Bonds * * * and Appropriating the Proceeds Thereof
to the Academy of Idaho," etc. Approved March 7, 1907. (Laws
1907, 135.)
(86) An act entitled, "An Act Providing for the Issuing of
State Bonds * * * for the Additional Buildings and Improvements
of the Northern Idaho Insane Asylum," etc. Approved March 7,
1907. (Laws 1907, 138.)
(87) An act entitled, "An Act Providing for the Issuance of
State Bonds to Provide Money for the Erection of a Girls' Cottage,
Boys' Cottage, East Wing for Administration Building, and Procur-
ing a Water Supply at the Idaho Industrial Training School," etc.
Approved March 7, 1907. (Laws 1907, 141.)
(88) An act entitled, "An act entitled, "An Act Providing for
the Issuance and Sale of State Bonds * * * and Appropriating the
Proceeds Thereof to the University of Idaho," etc. Approved March
7, 1907. (Laws 1907, 144.)
(89) An act entitled, "An Act Providing for the Issuance and
Sale of State Bonds in the Sum of Thirty Thousand Dollars and Ap-
propriating the Proceeds Thereof to the Continuance of the Con-
struction of the Capitol Building at Boise, Idaho," etc. Approved
March 7, 1907. (Laws 1907, 149.)
(90) An act entitled, "An Act Providing for the Issuance and
Sale of State Bonds * * * and Appropriating the Proceeds Thereof
to Supplying a Portion of the Funds Necessary for Erecting and
Rebuilding the Main Building of the University of Idaho," etc. Ap-
proved March 7, 1907. (Laws 1907, 153.)
(91) An act entitled, "An Act to Provide for the Completion
of the Atlanta Road in the Counties of Ada, Boise and Elmore," etc.
Approved March 9, 1907. (Laws 1907, 172.)
(92) An act entitled, "An Act Providing for the Issuance and
Sale of State Bonds * * * for the Purpose of Completing the Girls'
Dormitory of the Albion State Normal School," etc. Approved March
12, 1907. (Laws 1907, 228.)
(93) An act entitled, "An Act Making Disposition of Certain
Moneys in the Hands of the Secretary of the Board of Trustees of
the Lewiston State Normal School, and Creating a Fund for the Im-
provement of the Buildings and Grounds of Said Institution." Ap-
proved March 12, 1907. (Laws 1907, 233.)
170
GENERAL CODE PROVISIONS
(94) An act providing for the issuance and sale of bonds for
the internal improvement of the State. Approved March 12, 1907.
(Laws 1907, 242.)
(95) An act entitled, "An Act Providing for the Issuance and
Sale of State Bonds * * * and Appropriating the Proceeds Thereof
for the Construction of a Wagon Road Between * * * the Town of
Meadows in Washington County, and the Payette Lakes, in Boise
County," etc. Approved March 12, 1907. (Laws 1907, 251.)
(96) An act entitled, "An Act Providing for the Issue, Sale
and Redemption of State Bonds for the Purpose of Erecting a
Dormitory for Women at Lewiston State Normal School," etc. Ap-
proved March 12, 1907. (Laws 1907, 256.)
(97) An act entitled, "An Act Levying and Requiring the Col-
lection of a Special Ad Valorem Tax for the Payment of the Interest
Upon Certain Bonds Issued by the State of Idaho," etc. Approved
March 12, 1907. (Laws 1907, 260.)
(98) An act entitled, "An Act Making Provision for Moneys
to Be Used in the Improvement of the Idaho Soldiers' Home," etc.
Approved March 12, 1907. (Laws 1907, 295.)
(99) An act amendatory of the charter of the City of Lewiston.
Approved March 13, 1907. (Laws 1907, 349.)
(100) An act entitled, "An Act Providing for the Issue and Sale
of Debenture Warrants for the Purpose of Making the State Capitol
Appropriation of March 3, 1905, More Fully Available." Approved
March 15, 1907. (Laws 1907, 525.)
(101) An act entitled, "An Act to Amend Section 7 of an Act
Entitled, 'An Act for the Purpose of Authorizing the Modification,
Enlargement and Improvement of the Present Capitol Building at
the Citv of Boise/ " etc. Approved March 16, 1907. (Laws 1907,
538.)
Historical: Rev. St. 1887, Sec. 17, re-
written by the Commissioner so as to
except unexpended outstanding ap-
propriations, if any, from the scope
of the repeal, and so as to specifically
enumerate the special and local acts
and parts of acts preserved by these
Codes. This enumeration is made
without any attempt on the part of
the Commissioner to determine how
far these special or local acts are still
in force, and they are continued in
force only so far as they have not
been superseded, repealed, amended
or modified by subsequent legislation.
Thus, for example, all the Lewiston
charter amendments are included,
while many, if not all of them, are
superseded by the 1907 charter. It
was thought that it would be safer to
continue all special and local legisla-
tion in this manner, rather than at-
tempt to make an independent exam-
ination and determination of their
present force, as the Codes are not
supposed to deal with special and lo-
cal legislation at all.
California Legislation: Similar:
Pol. Code 1872, Sec. 18; Deering's
Code, ib.; Kerr's Code, ib.
Cited: Cunningham v. George
(1892) 3 Ida. 456; 31 Pac. 809.
Common Law in Force.
Sec. 18. The common law of England, so far as it is not repug-
nant to, or inconsistent with, the Constitution or laws of the United
States, in all cases not provided for in these Revised Codes, is the
rule of decision in all the courts of this State.
Historical: Rev. St. 1887, Sec. 18.
See 1 Ter. Ses. (1864) 527, Sec. 1.
California Legislation: Almost iden-
tical: Deering's Pol. Code, Sec. 446!
Kerr's Code, ib.
GENERAL CODE PROVISIONS
171
Cited: People v. Havird (1889) 2
Ida. 531; 25 Pac. 294.
Doctrine of Riparian Rights: The
doctrine of riparian rights is a part of
the common law and consequently a
part of the law of this State. (Dis.
op.) Drake v. Earhart (1890) 2 Ida.
750; 23 Pac. 541.
Prior Legislation Repealed.
Sec. 19. All general acts and parts and clauses of acts of a gen-
eral nature, passed prior to the tenth session of the State Legislature,
are hereby repealed, and these Revised Codes are in force in lieu
thereof; but such repeal does not affect any act done, or any right
accruing or accrued, or any suit or proceeding had or commenced
in any civil cause before the said repeal takes effect, but all rights
and liabilities under said repealed acts continue, in the same manner
as if said repeal had not been made.
Scope of Revision: Whatever is in-
cluded in a statutory revision must be
construed together as the law, all that
formerly existed but is not included
is repealed. Territory v. Evans (1890)
2 Ida. 651; 23 Pac. 232.
Historical: Rev. St. 1887, Sec. 19.
Changing "fourteenth session of Leg-
islative Assembly" to "fourth session
of State Legislature."
California Legislation: See Pol.
Code 1872, Sec. 18; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Cunningham v. George
(1892) 3 Ida. 456; 31 Pac. 809.
Past Offenses May Be Prosecuted.
Sec. 20. All offenses committed, and all penalties or forfeitures
incurred prior to said repeal, may be prosecuted and punished in the
same manner and with the same effect as if said repeal had not been
made.
Historical: Rev. St. 1887, Sec. 20.
POLITICAL CODE
PART FIRST— POLITICAL
POLITICAL CODE
PRELIMINARY PROVISIONS
Section
21. Title and how cited.
Title and How Cited.
Sec. 21. Part First of these Revised Codes shall be known as the
Political Code of the State of Idaho, and whenever cited, enumerated,
referred to, or amended, may be designated simply as the Political
Code, adding, when necessary, the number of the section.
Historical: Rev. St. 1887, Sec. 100. | Code 1872, Sec. 1; Deering's Code,
California Legislation: See. Pol. ib.; Kerr's Core, ib.
Vol. 1
TITLE 1
POLITICAL DIVISIONS
Chapter
1. Seat of government.
2. Counties.
3. Legislative districts.
4. Judicial districts.
Chapter
5. Cessions to the Federal Govern-
ment and assent to acts of Con-
gress.
CHAPTER 1.
SEAT OF GOVERNMENT.
Section
22. Location.
Location.
Sec. 22. The seat of government of this State is at Boise City,
in the County of Ada.
Historical: Rev. St. 1887, Sec. 105.
See 2 Ter. Ses. (1864) 427, Sec. 1.
California Legislation: Same except
as to place: Pol. Code 1872, Sec. 145;
Deering's Code, ib; Kerr's Code, ib.
Cross Reference: Seat of govern-
ment located at Boise City for twenty
years from the admission of the State:
Const. Art. 10, Sec. 2.
CHAPTER 2.
Section
23.
23a.
23b.
23c.
23d.
23e.
23f.
23g.
23h.
23i.
23j.
23k.
COUNTIES.
n
Secti
State divided into counties
231.
Ada County.
23m.
Bannock County.
23n.
Bear Lake County.
23o.
Bingham County.
23p.
Blaine County.
23q.
Boise County.
2 3r.
Bonner County.
23s.
Canyon County.
23r.
Cassia County.
2 Mil
Custer County.
23v.
Elmore County.
23w.
ion
Fremont County.
Idaho County.
Kootenai County.
Latah County.
Lemhi County.
Lincoln County.
Xez Perce County.
Oneida County.
Owyhee County.
Shoshone County.
Twin Falls County.
Washington County.
State Divided Into Counties.
Sec. 23. The State is divided into twenty-three counties, the
boundaries and county seats of which are defined and fixed by the
following sections.
Historical
missioner.
Cross Reference:
New section by Corn-
Restrictions on
the creation of new counties and the
division of old counties: Const. Art.
IS. Sees. 3, 4.
Ch. 2.
COUNTIES
177
Ada County.
Sec. 23a. All that portion of the State of Idaho included within
the following boundaries, to-wit: Commencing at the confluence
of Moore's Creek with the Boise River at the center of the channel
of Boise River; thence in a straight line north 44 degrees and 38
minutes west until the said line intersects the north line of Town-
ship 5 North [12th Ter. Ses. 67] ; thence due west to the northwest
corner of Township 5 North, Range 1 West B. M. ; thence due south
to the northwest corner of Township 3 North, Range 1 West ; thence
due east to the northwest corner of Section 4, Township 3 North,
Range 1 West; thence due south to the southeast corner of Section
32, Township 2 North, Range 1 West; thence due west to the
northwest corner of Township 1 North, Range 1 West B. M. ;
thence due south to the point in the middle of the channel of Snake
River where the line between Township 1 South of Range 1 West
and 1 South of Range 2 West B. M. crosses the said river [Laws
1891, 155] ; thence southeasterly up the center of the channel of the
said Snake River to a point in the middle of the said channel opposite
the mouth of Bruneau River; thence extending in a straight line in
a northeasterly direction to a point in the center of the channel
of Boise River opposite the mouth of Moore's Creek [Laws 1899,
234], the point of beginning, be and the same is hereby organized
into the County of Ada, and the county seat of the said county is
hereby located at Boise City.
Historical: County created by act
approved Dec. 2, 1864, 2nd Ter. Ses.
430. The boundaries above were de-
rived iri.m the following acts: Act
defining boundary between Boise and
Ada Counties, 12th Ter. Ses. 67; (See
field notes in county recorder's office;)
act creating Canyon County, Laws
18 91, 155; act defining boundary be-
tween Ada and Elmore Counties,
Laws 1899, 230 (see field notes in
county recorder's office).
Bannock County.
Sec. 23b. All that portion of the State of Idaho included within
the following boundaries, to-wit: Commencing at the intersection
of the township line between Townships 4 and 5 South with the Snake
River; thence down the Snake River southwesterly to the mouth of
Portneuf River; thence, up the Portneuf River to what is known as
the point of the mountain, about four miles northwest of Pocatello;
thence southerly in a straight line to the top of the range; thence
along the crest of the mountains between Malad and Marsh Valleys
to a point on the top of the range, due west of a point one mile south
of the present southern boundary of the townsite of Oxford ; thence
due east to the Bear Lake County line ; thence northerly and easterly
along the line of Bear Lake County to the boundary line of the State
of Wyoming; thence north to the intersection of Township line be-
tween Townships 4 and 5 South with the line of the State of
Wyoming; thence west along said township line between Town-
ships 4 and 5 to the place of beginning, be and the same is hereby
organized into the County of Bannock, and the county seat of said
county is hereby located at the town of Pocatello.
Historical: County created by act
approved March 6, 1893. Laws 1893.
170.
178
POLITICAL DIVISIONS
Tit.l
Bear Lake County.
Sec. 23c. All that portion of the State of Idaho included within the
following boundaries, to-wit: Commencing at the twenty-third mile
post on the boundary line between Utah and Idaho, and running thence
northerly along the summit of the range of mountains between Cache
Valley and Bear Lake Valley to the corner of Townships 9 and 10
South of Range 41 East; thence east twelve miles; thence north to
the summit of the divide between the waters of Bear River and the
waters of Blackfoot River ; thence easterly along said last named sum-
mit to the line between Wyoming and Idaho ; thence south on said last
named line to the southeast corner of Idaho ; thence west to the place
of beginning, be and the same is hereby organized into the County of
Bear Lake, and the county seat of the said county is hereby located at
the town of Paris.
Historical: County created by act
approved Jan. 5, 1875. See Special .
and Local Laws, 113.
Bingham County.
Sec. 23d. That all that portion of the State of Idaho contained
within the following boundaries, to-wit: Beginning at a point di-
rectly north of the Big Southern Butte where the township line be-
tween Townships 3 and 4 North meets the said point [15 Ter. Ses. 37;
Laws 1893, 94] ; thence due south to a point where it intersects with
the First Standard Parallel South ; thence easterly on the said First
Standard Parallel South to the center of the channel of Snake River;
thence up the center of the channel of Snake River to the intersection
of the township line between Townships 4 and 5 South [Laws 1893,
170] ; thence east along the said township line between Townships 4
and 5 South to the boundary line of the State of Wyoming; thence
north along the said State boundary line [Laws 1893, 171] to the
intersection of the same with the top or comb of the Big Hole mountain
range ; thence following along the top or comb of the said mountains
in a north-westerly direction to the intersection of the same with the
line between townships 3 and 4 North [Laws 1903, 222] ; thence west
along the said township line to the place of beginning, is hereby es-
tablished as the County of Bingham ; and the county seat of the said
county is hereby located at the town of Blackfoot.
Historical: County created by act
approved Jan. 13, 1885. The bounda-
ries above were derived from the fol-
lowing acts: Act defining- boundaries
of Bingham County, 15 Ter. Ses. 37;
Act creating Fremont County,
Laws 18 93, 94;- act creating Ban-
nock County, Laws 1893, 170; act
to annex portion of Bingham County
to Fremont County, Laws 1903, 222.
Blaine County.
Sec. 23e. All that portion of the State of Idaho included within the
following boundaries, to-wit : Commencing at a point on the township
line between Townships 10 and 11 North directly north of the Big
Southern Butte, thence due west to Little Lost River [Laws 1899,
111] ; thence down Little Lost River to the point where the trail lead-
ing to Pass Creek crosses the said Little Lost River; thence in a direct
line to the head of Pass Creek; thence down said Pass Creek to
Ch. 2.
COUNTIES
179
the said Big Lost River; thence along Big Lost River to the
mouth of Antelope Creek; thence up Antelope Creek to the divide
which separates its waters from those of Little Wood River; thence
westerly along and upon the summit of the range of mountains divid-
ing the headwaters of the East Fork of the Salmon River from the
waters of the Little or Big Wood River and continuing westerly on the
said divide between the East Fork of the Salmon and Wood Rivers to
the main Salmon River; thence along the said Salmon River to the
mouth of Fall Creek, a stream entering the Salmon River at a point
about fifteen miles northerly from Sawtooth City; thence up the said
Fall Creek to Pettit Lake in a right line to the right of a creek
entering the said lake at the west end thereof; thence up the said
last mentioned creek to the summit of the Sawtooth Mountains [15 Ter.
Ses. 26] ; thence following the summit of the said mountains to where
the trail crosses the summit of what is known as Mattingly Creek Di-
vide ; thence along the said divide to a point as far east as the range
line between Ranges 11 and 12 East; thence due south to the town-
ship line between Townships 2 and 3 South [15 Ter. Ses. 37] ; thence
due east along the said township line to the intersection of the same
with the line between Ranges 25 and 26 E. B. M. ; thence south along
the said range line to the middle of the channel of Snake River ; thence
up the center of the said channel of Snake River [Laws 1895, 170] to
the intersection of the same with the First Standard Parallel South ;
thence west along the said First Standard Parallel South to a point
directly south of the Big Southern Butte [15 Ter. Ses. 37, Sec. 3] ;
thence due north to the place of beginning, be and the same is hereby
organized into the County of Blaine, and the county seat of said county
is herebj' located at the town of Hailey.
Historical: County created by act
approved Mar. 5, 18 95, Laws 1895, 31.
1 he boundaries above were derived
from the following- acts: Act defining
the boundaries of Lemhi County,
Ls.ws 1S99, 111; act defining the boun-
daries of Custer County, 15 Ter. Ses.
26; act defining the boundaries of
Bingham County, 15 Ter. Ses. 37, Sec.
3; act creating Elmore County, 15
Ter. Ses. 37; act creating Lincoln
County, Laws 1895, 170.
Boise County.
Sec. 23f. All that portion of the State of Idaho included within the
following boundaries, to-wit: Commencing at the confluence of
Moore's Creek with the Boise River, at the center of the channel of
Boise River; thence north 44 degrees and 38 minutes west to a pine
tree standing on the south bank of the Payette River at a distance of
about two miles north from Pickett's Corral near the mouth of what
is known as Black Canyon on said Payette River ; thence northerly to
a central point on the summit of Squaw Creek Butte ; thence northerly
on the summit of the dividing range between the waters of Squaw7
Creek on the east and Haw Creek on the west to the intersection of
said dividing ridge with the Second Standard Parallel, U. S. survey
[12 Ter. Ses. 67] ; thence northerly on the said dividing ridge to the
summit dividing the waters of the Payette and Weiser Rivers ; thence
along the said divide in a northerly direction to a point on the said
divide known as Big Rock Flat, where the waters flow into the Little
Salmon River; thence in a northeasterly direction on a low divide
180
POLITICAL DIVISIONS
Tit. 1
separating the waters of the Little Salmon and Payette Rivers to a
point due east of a northern point of Little Salmon Meadows [Laws
1905, 303] ; thence in an easterly and southeasterly direction along
the divide which separates the waters of the Payette River and its
tributaries from the waters of Salmon River and its tributaries [Spe-
cial and Local Laws, 120] to the head of the Middle Fork of Salmon
River; thence southerly along the divide which separates the water
flowing into the S. Payette River and Bear Valley Creek from that
flowing into the main Salmon River and Cape Horn Creek to the sum-
mit of the Saw Tooth Mountains ; thence southerly along the summit
of the Saw Tooth Mountains [15 Ter. Ses. 26] to the headwaters of the
North Fork of Boise River ; thence down the center of the channel of
the North Fork of Boise River and the main Boise River to the place
of beginning [3 Ter. Ses. 214] , be and the same is hereby organized
into the County of Boise, and the county seat of said county is hereby
located at Idaho City.
Historical: County created by act
approved Feb. 4, 1864, 1 Ter. Ses. 628.
The boundaries above were derived
from the following acts: Act defining'
boundaries of Boise and Ada Coun-
ties, 12 Ter. Ses. 67 (field notes in
county recorder's office) : act defining
boundaries of Washington County,
Laws 1905, 303; act defining bounda-
ries of Custer County, 15 Ter. Ses. 26;
also Special and Local Laws, 120; and
3 Ter. Ses. 214.
Bonner County.
Sec. 23g. All that portion of the State of Idaho included within
the following boundaries, to-wit : Commencing at a point wh^re the
township line between Townships 53 and 54 North intersects the
boundary line between the State of Idaho and the State of Washing-
ton ; thence east on said township line between Townships 53 and 54
North, to the northeast corner of Township 53 North, Range 3
West B. M. ; thence north on the range line between Sections 36 and
31 to the northeast corner of Section 36, Township 54 North, Range
3 West B. M. ; thence due east six miles to the northeast corner of
Section 36, Township 54 North, Range 2 West B. M. ; thence south
along the range line between Ranges 1 and 2 to the northeast corner
of Township 52 North, Range 2 West B. M. ; thence east on the
township line between Townships 52 and 53 North to the present
county line between Kootenai and Shoshone Counties; thence north
along the west boundary line of Shoshone County to the northwest
corner thereof; thence in an easterly direction along the summit of
the Coeur d' Alene range of mountains to the west line of the State
of Montana ; thence north along the boundary line between the State
of Idaho and the State of Montana to the intersection of the interna-
tional boundary line between the United States of America and
Canada; thence west along said international boundary line to the
northwest corner of the State of Idaho ; thence south along the boun-
dary line between the State of Idaho and the State of Washington
to the place of beginning, be and the same is hereby organized into
the county of Bonner, and the county seat of the said county is
hereby located at the town of Sandpoint.
Historical: County created by act
approved Feb. 21, 1907, Laws 1907.
47.
Ch. 2.
COUNTIES
181
Canyon County.
Sec. 23h. All that portion of the State of Idaho included within
the following boundaries, to-wit: Commencing at a point in the
middle of the channel of Snake River where the line between Town-
ship 1 South, Range 1 West, and Township 1 South, Range 2 West
B. M., crosses the said river and running thence due north to the
northwest corner of Township 1 North, Range 1 West B. M. ; thence
due east to the southeast corner of Section 32, Township 2 North,
Range 1 West ; thence due north to the northwest corner of Section 4,
Township 3 North, Range 1 West; thence due west to the northwest
corner of Township 3 North, Range 1 West* thence due north to
the northwest corner of Township 5 North, Range 1 West;- thence
due east along the township line to the present boundary of Boise
County [Laws 1891, 155] ; thence along the said boundary line in
a northwesterly direction to a pine tree standing on the south bank
of the Payette River at a distance of about two miles northerly from
Pickett Corrall and near the mouth of what is known as Black Can-
yon on the said Payette River; thence northerly to the central point
on the summit of the Squaw Creek Butte; thence northerly on the
summit of the dividing ridge between the waters of Squaw Creek on
the east and Haw Creek on the west [12 Ter. Ses. 67] to the inter-
section of the same with the Second Standard Parallel North ; thence
due west along the Second Standard Parallel North to the middle of
the channel of Snake River [Laws 1905, 303] ; thence up the middle
of the channel of Snake River to the boundary line between Idaho
and Oregon ; thence south along the boundary line between Idaho and
Oregon to the middle of Snake River; thence up the middle of the
channel of Snake River to the place of beginning [Laws 1891, 155], be
and the same is hereby organized into the County of Canyon, and the
county seat of the said county is hereby located at the toWn of Cald-
well.
Historical: County created from
portion of Ada County by act ap-
proved March 7, 18 91, Laws 1891,
155. The boundaries above were de-
rived from the following acts: Act
creating- Canyon County, Laws 1891,
155; act defining- boundary between
Boise and Ada Counties, 12 Ter. Ses.
67: act defining boundaries of Wash-
ington County, Laws 1905, 303. The
act creating the county; Laws 1891,
155, was printed incorrectly in the
printed Session Laws, making an er-
ror in the boundaries. The correc-
tion above was made from the en-
rolled bill.
Cassia County.
Sec. 23i. All that portion of the State of Idaho included within
the following boundaries, to-wit: Commencing with the intersec-
tion of the middle of the channel of Snake River with the north and
south center line of Section 28 in Township 10 South of Range 21
East of Boise Meridian, running thence south on the said center line
of said Section 28 to the point of intersection of the north line of the
right of way of the Minidoka & Southwestern Railroad Company,
which point is 100 feet distant at right angles from the center of the
main track of the line of road of said railroad company as the same is
now located ; running thence in a southwesterly direction along the
north line of said railroad right of way to a point where said line
intersects the south line of the canal right of way of the Twin Falls
182
POLITICAL DIVISIONS
Tit. 1
Land & Water Company, which point of intersection is 100 feet dis-
tant at right angles from the center line of the main canal of the
said Twin Falls Land & Water Company; running thence south to
the south line of Section 36 in Township 10 South of Range 20 East
of Boise Meridian; thence west to the southwest corner of said Sec-
tion 36 ; thence south on the section lines to the south line of Town-
ship 11; thence west to the southeast corner of Township 11 South of
Range 18 East B. M. ; thence south on the range lines to the south
line of the State of Idaho [Laws 1907, 40] ; thence east along the
south boundary line of the State of Idaho to the intersection of the
same with the 113 meridian west from Greenwich; thence north
along the said meridian to the intersection of the same with the center
of the channel of Snake River ; thence down the said river in a south-
westerly direction to the point of beginning, be and the same is
hereby organized into the County of Cassia, and the county seat of
the said county is hereby located at the town of Albion. [10 Ter. Ses.
43, as amended 11 Ter. Ses. 339.]
Historical: County created by act
approved Jan. 20, 1879, 10 Ter. Ses.
43. The boundaries above were de-
rived from the following acts: Act
creating Cassia County, 10 Ter. Ses.
43; as amended 11 Ter. Ses. 33 9; act
creating Twin Falls County, Laws
1907, 40.
Custer County.
Sec. 23j. All that portion of the State of Idaho included within
the following boundaries, to-wit: Commencing at the confluence of
the Pahsimeroi River with the Salmon River and running thence
up the Pahsimeroi River to the mouth of the Big Creek; thence up
Big Creek, and on the line from the head therof, with the general
course of said creek to the summit of the divide between the waters
of the Pahsimeroi and Lemhi Rivers; thence southeasterly on the
summit of said divide to a point due west from the head waters of
said Little Lost River; thence due east to the head waters of said
Little Lost River; thence down Little Lost River to a point where
the trail leading to Pass Creek crosses Little Lost River; thence in
a direct line to the head of Pass Creek ; thence down said Pass Creek
to Big Lost River; thence along Big Lost River to the mouth of Ante-
lope Creek; thence up Antelope Creek to the divide which separates
its waters from those of Little Wood River; thence westerly along
and upon the summit of the range of mountains dividing the head
waters of the East Fork of Salmon River from the waters of the
Little or Big Wood River, and continuing westerly on said divide
between the East Fork of Salmon and Wood Rivers to the main
Salmon River ; thence along said Salmon River to the mouth of Fall
Creek, a stream entering the Salmon River at a point about fifteen
miles northerly from Sawtooth City; thence up said Fall Creek to
Pettit Lake in a right line to the right of a creek entering said lake
at the west end thereof; thence up said last mentioned creek to the
summit of the Sawtooth Mountains ; thence northerly along the sum-
mit of the Sawtooth Mountains to the divide which separates the
waters flowing into the South Payette River and Bear Valley Creek
from those flowing into the main Salmon River and Cape Horn Creek ;
thence along said divide to the Middle Fork of the Salmon River;
Ch.2.
COUNTIES
183
thence down the Middle Fork of the Salmon River to the mouth of
Loon Creek; thence up Loon Creek to the mouth of Warm Spring
Creek; thence up Warm Spring Creek and to the divide which
separates the waters of Yankee Fork on the south and Loon and
Deep Creeks on the north, and following said divide in an easterly
direction around the head of Panther Creek to the divide between
Hat Creek and Ellis Creek; thence on the divide between Hat and
Ellis Creeks in an easterly direction to the Salmon River; thence
up the main channel of said Salmon River to the place of beginning,
be and the same is hereby organized into the County of Custer, and
the county seat of said county is hereby located at the town of
Challis.
Historical: County created by act
approved Jan. 8, 1881, 11 Ter. Ses.
340. The boundaries above were de-
rived from the following acts: Act
defining- boundaries of Custer County,
If) Ter. Ses. 26.
Elmore County.
Sec. 23k. All that portion of the State of Idaho included within
the following boundaries, to-wit: Beginning at a point on the top
of the Saw Tooth Range of Mountains where the counties of Blaine,
Boise and Custer unite; thence along the present line of Custer
County to a point where the said line intersects the summit of the
Saw Tooth Range ; thence following the spur of said range to where
the trail crosses the summit of Mattingly Creek Divide ; thence along
the said divide to a point as far east as the range line between
Ranges 11 and 12 East would come if extended north; thence south
to Snake River; thence down the middle of the channel of Snake
River to a point opposite the mouth of Bruneau River [15 Ter. Ses.
38; Laws 1895, 31]; thence in a straight line in a northeasterly
direction to a point in the center of the channel of Boise River op-
posite the mouth of Moore's Creek [Laws 1895, 15 ; re-enacted Laws
1899, 234] ; thence upon and along the boundary line of the County
of Boise to the place of beginning, be and the same is hereby or-
ganized into the County of Elmore, and the county seat of said
county is hereby located at the town of Mountainhome.
Historical: County created by act
approved Feb. 7, 188 9, 15 Ter. Ses.
37. The boundaries above were de-
rived from the following acts: Act
creating- county, 15 Ter. Ses. 37; act
defining boundary between Ada and
Elmore Counties, Laws 1895, 15, re-
enacted Laws 1899, 234.
Fremont County.
Sec. 23 1. All that portion of the State of Idaho included within
the following boundaries, to-wit: Beginning at a point where the
northern boundary of the State of Idaho intersects the western
boundary of the State of Wyoming; thence running westerly along
the northern boundary of the State of Idaho [15 Ter. Ses. 38] to
the range line between Ranges 30 and 31, E. B. M. ; thence due south
along said range line to the southwest corner Township 11 North,
Range 31 East B. M., [Laws 1899, 273] ; thence due west to a point
due north of the Big Southern Butte; thence due south [15 Ter.
Ses. 38] to the line between Townships 3 and 4 North ; thence east
along the said township line between Townships 3 and 4 North
184
POLITICAL DIVISIONS
Tit. 1
[Laws 1893, 94] to a point where the said line bisects the top or
comb of the Big Hole Mountain Range; thence following along the
top or comb of the said mountains in a southeasterly direction to
the Wyoming line; thence north along the said Wyoming State line
to the point of beginning [Laws 1903, 222], be and the same is hereby
organized into the County of Fremont, and the county seat of said
county is hereby located at the town of St. Anthony.
Historical: County created by act
approved Mar. 4, 1893, Laws 1893, 94.
The boundaries above were derived
from the following acts: Act creating
Fremont County, Supra.; act denning
boundaries of Bingham County, 15
Ter. Ses. 38; act to annex portion of
Lemhi County to Fremont County,
Laws 1899, 2 73; act to annex portion
of Bingham County to Fremont
County, Laws 1903, 222.
Idaho County.
Sec. 23m. All that portion of the State of Idaho included within
the following boundaries, to-wit: Commencing at the junction of
the Salmon River with the Snake River; thence up the middle of
the channel of Salmon River to the mouth of Deep Creek; thence
up the middle of the channel of Deep Creek to the mouth of the Right
fork of Deep Creek; thence up the middle of the channel of the
Right Fork of Deep Creek to a point where the line between Ranges
1 and 2 West B. M. crosses Deep Creek; thence due north along the
said line to the point where the said line crosses Willow Creek ; thence
down the middle of the channel of Willow Creek to its junction with
Lawyer's Canyon; thence down the middle of the channel of
Lawyer's Canyon to its junction with the Clearwater River; thence
down the middle of the channel of Clearwater River to the mouth
of Lolo Creek; thence up the middle of the channel of Lolo Creek
to the head of Lolo Creek, and thence in a direct line to the Lolo
Pass at the summit of the Bitter Root Mountains; thence south-
easterly and southerly following the present defined boundary line
between the State of Idaho and the State of Montana [Laws 1899, 79]
to a point directly north of the confluence of the Middle Fork of
Salmon River with the main Salmon River in the State of Idaho,
and running thence south to the confluence of the Middle Fork of
Salmon River with the main Salmon River, running thence southerly
along the center line or middle of the channel of said Middle Fork
of Salmon River [Laws 1903, 48] to the divide which separates the
waters of Payette River and its tributaries from the waters of
Salmon River and its tributaries [3 Ter. Ses. 214; Special and Local
Laws, 120] ; thence in a northerly and northwesterly direction along
the said divide to the line of Washington County at a point due east
of the northern point of Little Salmon Meadows; thence due west
to the Little Salmon River; thence down the Little Salmon River to
a point due east of the point where the section line between Sections
6 and 7, Township 22 North, Range 1 East, B. M. intersects the
said meridian; thence due west to the middle of the main channel
of Snake River; thence down the middle of the main channel of
Snake River to the mouth of Salmon River, the place of beginning
[Laws 1905, 303], be and the same is hereby organized into the
County of Idaho, and the county seat of said county is hereby located
at the town of Grangeville.
Ch. 2.
COUNTIES
185
Historical: County created by act
approved Feb. 4, 1864, 1 Ter. Ses. 628;
boundaries denned 3 Ter. Ses. 214;
8 Ter. Ses. 730; 10 Ter. Ses. 40; Spe-
cial Laws, 12 0; 15 Ter. Ses. 54; Laws
1891, 117, re-enacted Laws 1899, 79;
Laws 1895, 21, re-enacted Laws 1899,
22. The boundaries above were de-
rived from the following acts: Act to
define boundaries of Boise County,
Laws 18 99, 79; act to define bounda-
ries of Lemhi County, Laws 1903, 48;
act defining- boundaries, 3 Ter. Ses.
214; Special Laws 120; act to define
boundaries of Washington County,
Laws 1905, 303.
Kootenai County.
Sec. 23n. All that portion of the State of Idaho included within
the following boundaries, to-wit: Commencing at a point where the
watershed between Hangman's Creek and the Palouse River crosses
the boundary line between the States of Idaho and Washington;
thence in a southeasterly direction along said watershed to a point
where this line crosses the section line between Sections 27 and 28,
in Township 43 North, Range 4 West, B. M. ; thence south on said
section line to the section corner common to Sections 27, 28, 33
and 34, in the same township and range; thence east on this section
line to the east boundary of said township and range; thence north
on the range line to !he northwest corner of Section 31, Township
43 North, Range 3 West. B. M. ; thence east along the section line
running on the north side of said Section 31 to the northeast corner
of Section 33, Township 43 North, Range 1 West B. M. ; thence
south one mile to the township line between Townships 42
and 43 North; thence east along the said township line [Laws 1905,
334] to a point due north of mouth of South Fork of Clearwater
River [1 Ter. Ses. 628] ; thence due north along the western boundary
of the County of Shoshone to the intersection of the same with the
township line between Townships 52 and 53 North in the State of
Idaho ; thence west on the said township line to the northeast corner
of Township 52 North, Range 2 West B. M. ; thence north along
range line between Ranges 1 and 2 to the northeast corner of Section
36, Township 54 North, Range 2 West B. M. ; thence due west six
miles to the northeast corner of Section 36, Township 54 North,
Range 3 West B. M. ; thence south on the range line between Sections
36 and 31 to the northeast corner of Township 53 North, Range 3
West B. M. ; thence west on the township line between Townships
53 and 54 North, to a point where the said township line intersects
the boundary line between the State of Idaho and the State of Wash-
ington [Laws 1907, 47] ; thence south along the said State boundary
line to the point of beginning [4 Ter. Ses. 126], be and the same is
hereby organized into the County of Kootenai, and the county seat
of said county is hereby located at the town of Rathdrum.
Historical: County created by act
approved Dec. 2 2, 1864, 2 Ter. Ses.
432. The boundaries above were de-
rived from the following acts: Act
defining- boundaries of Kootenai
County, 4 Ter. Ses. 126; act creating
Shoshone County, 1 Ter. Ses. 628; act
defining boundaries between Kootenai
and Latah Counties, Laws 1905, 334;
act creating Bonner County, Laws
1907, 47.
Latah County.
Sec. 23o. All that portion of the State of Idaho included within the
following boundaries, to-wit: Commencing at a point where the
middle line of Township 37 North intersects the boundary line be-
186
POLITICAL DIVISIONS
Tit. 1
tween the State of Idaho and the State of Washington [25 U. S.
Stat, at Large, 147] ; thence north along the said boundary line to a
point where the watershed between Hangman's Creek and Palouse
River crosses the said boundary line ; thence in a southeasterly direc-
tion along the said watershed to a point where this line crosses the
section line between Sections 27 and 28, in Township 43 North, Range
4 West B. M.,; thence south on the said section line to the section
corner common to Sections 27, 28, 33 and 34, in the same township
and range; thence east on this section line to the eastern boundary
of the said township and range; thence north on the range line to
the northwest corner of Section 31, Township 43 North, Range 3
West B. M. ; thence east along the section line running on the north
side of said Section 31 to the northeast corner of Section 33 in
Township 43 North, Range 1 West B. M. ; thence south one mile
to the township line between Townships 42 and 43 North; thence
east along the said township line to a point directly north of the
mouth of the South Fork of Clearwater River [Laws 1905, 333] ;
thence due south [1st Ter. Ses. 628; 8th Ter. Ses. 727] to the middle
line of Township 38 North ; thence west to Big Potlatch Creek, where
it first intersects the middle line of Township 38 North ; thence down
the said creek southwesterly to a point where it intersects the middle
line of Township 37 North ; thence due west to the point of beginning,
be and the same is hereby formed and organized into a county to
be known and designated as the County of Latah, and the county
seat of the said county is hereby located at the town of Moscow.
[25 U. S. Stat. 147.]
Historical: County created by act
of Congress approved May 14, 1888,
25 U. S. Stat. 147. The boundaries
above were derived from the follow-
ing acts: Act creating Latah County,
25 U. S. Stat. 147; act defining bound-
ary line between Latah and Kootenai
Counties, Laws 1905, 333; act creating
Shoshone County, 1st Ter. Ses. 62 8.
Lemhi County.
Sec. 23p. All that portion of the State of Idaho included within
the following boundaries, to-wit : Commencing at a point on the
boundary line between the State of Idaho and the State of Montana
directly north of the confluence of the Middle Fork of Salmon River
with the main Salmon River in the State of Idaho, and running
thence south to the confluence of the Middle Fork of the Salmon
River with the main Salmon River, running thence southerly along
the center line of the middle of the channel of the said Middle Fork
of the Salmon River to the mouth of Loon Creek [Laws 1903, 48] ;
thence up Loon Creek to the mouth of Warm Springs Creek; thence
up Warm Springs Creek and to the divide which separates the waters
of Yankee Fork on the south and Loon and Deep Creeks on the
north and following the said divide in an easterly direction around
the head of Panther Creek to the divide between Hat Creek and
Ellis Creek; thence on the divide between Hat and Ellis Creeks
in an easterly direction to the Salmon River; thence up the
main channel of said Salmon River to the confluence of the
Pahsimeroi River with the Salmon River, and running thence up
the Pahsimeroi River to the mouth of Big Creek; thence up Big
Ch.2.
COUNTIES
187
Creek and on a line from the head thereof with the general course
of the said creek to the summit of the divide between the waters
of the Pahsimeroi River and the Lemhi River; thence southeasterly
on the summit of the said divide to a point due west from the head
waters of the Little Lost River; thence due east to the head waters
of the Little Lost River; thence down the Little Lost River [15th
Ter. Ses. 2.6] to the intersection of the same with the township line
between Townships 10 and 11 North; thence due east along the
said Township line [Laws 1899, 111] to the southeast corner of
Township 11 North, Range 31 East B. M. ; thence due north
along the range line between Ranges 30 and 31 East B. M. to the
intersection of the same with the boundary line of the State of
Montana [Laws 1899, 273] ; thence generally in a northwesterly
direction along the said State boundary line to the point of beginning,
be and the same is hereby organized into the County of Lemhi, and
the county seat of the said county is hereby located at the town of
Salmon.
Historical: County created by act
approved Jan. 9, 1869, 5th Ter. Ses.
117. The boundaries above were de-
rived from the following' acts: Act to
define portion of boundary of Lemhi
County, Laws 1903, 48; act to define
boundaries of Custer County, 15th
Ter. Ses. 26; act to define boundaries
of Lemhi County, Laws 1899, 111;
act to annex portion of Lemhi County
to Fremont County, Laws 1899, 273.
Lincoln County.
Sec. 23q. All that portion of the State of Idaho included within
the following boundaries, to-wit: Commencing at the northeast cor-
ner of Township 3 South, Range 11 East B. M. ; thence south follow-
ing the township line between Ranges 11 and 12 East B. M. to a
point where the said line intersects the middle of the channel of
Snake liver; thence easterly following the middle of the channel
of Snake River to a point where the range line between Ranges 25
and 26 East intersect said channel ; thence north along said range line
to a point where said line intersects the township line between Town-
ships 2 and 3 South; thence west along said line to the place of
beginning, is hereby organized into the County of Lincoln, and the
county seat of said county is hereby located at the town of Shoshone.
Historical: County created by act
approved March 18, 1895, Laws 1895,
170.
Nez Perce County.
Sec. 23r. All that portion of the State of Idaho included within tne
following boundaries, to-wit: Commencing at a point in the
middle of the channel of Snake River opposite the junction of Salmon
River; thence up the middle of the channel of Salmon River to the
mouth of Deep Creek; thence up the middle of the channel of Deep
Creek to the mouth of the Right Fork of Deep Creek; thence up the
middle of the channel of said Right Fork of Deep Creek to the point
where the line between Ranges 1 and 2 West B. M. crosses Deep
Creek; thence due north along the said line to the point where the
said line crosses Willow Creek; thence down the middle of the chan-
nel of Willow Creek to its junction with Lawyer's Canyon; thence
188
POLITICAL DIVISIONS
Tit. 1
down the middle of the channel of Lawyer's Canyon to its junction
with Clearwater River; thence down the middle of the channel of
Clearwater River to the mouth of Lolo Creek; thence up the middle
of the channel of Lolo Creek to the head of Lolo Creek, and thence
in a direct line to the Lolo Pass at the summit of the Bitter Root
Mountains; thence in a northwesterly direction along the western
boundary of the State of Montana to the intersection of the same
[Laws 1899, 79] with the northern boundary line of Township 41
North; thence west along the said boundary line [Laws 1903, 204]
to a point directly north of the mouth of the South Fork of Clear-
water River [1st Ter. Ses. 628] ; thence due south to a point where
the middle line of Township 38 North intersects the said line ; thence
west to Big Potlatch Creek, where it first intersects with the said
middle line of Township 38 North ; thence down the said creek south-
westerly to a point where it intersects the middle line of Township
37 North; thence due west to the boundary line between the State
of Idaho and the State of Washington [25 Stat, at Large, 147] ;
thence south along the said boundary line to the point of beginning,
be and the same is hereby organized into the County of Nez Perce,
and the county seat of the said county is hereby located at the town
of Lewiston.
Historical: Act creating county ap-
proved Feb. 4, 1864, 1st Ter. Ses. 628;
boundaries defined 4th Ter. Ses. 126;
boundaries defined 13th Ter. Ses. 126.
The boundaries above were derived
from the following acts. Act defining
boundaries of Latah County, Laws
1899, 79; act to annex portion of Sho-
shone County to Nez Perce County,
Laws 1903, 204; act creating- Sho-
shone County, 1st Ter. Ses. 628; act
of Congress creating Latah County, 2 5
U. S. Stat. 14 7.
Oneida County.
Sec. 23s. All that portion of the State of Idaho included within
the following boundaries, to-wit : Commencing at a point where the
113 meridian west from Greenwich intersects with the northern
boundary line of the State of Utah, and running thence north along the
said meridian to Snake River; thence up said river [1 Ter. Ses.
625] to the mouth of the Portneuf River and up the Portneuf River
to what is known as the Point of the Mountain, about four miles
northwest of Pocatello; thence southerly in a straight line to the
top of the range; thence along the crest of the mountains between
Malad and Marsh Valleys to a point on the top of the range due
west of a point one mile south of the present southern boundary
of the townsite of Oxford; thence due east to the Bear Lake County
line [Laws 1893, 171] ; thence southerly along the said Bear Lake
County line, which is the summit of the range of mountains between
Cache and Bear Lake Valleys to the 23rd mile post on the boundary
line between the State of Utah and the State of Idaho [8 Ter. Ses.
720] ; thence west on the State boundary line to the place of be-
ginning, be and the same is hereby organized into the County of
Oneida, and the county seat of said county is hereby located at Malad
City.
Historical: County created by act
approved Jan. 2, 1864, 1 Ter. Ses. 625.
The boundaries above were derived
from the following acts: Act creat-
ing county, 1 Ter. Ses. 625; act creat-
ing Bannock County, Laws 1893, 171:
act creating Bear Lake County, 8 Ter.
Ses. 720.
Ch.2.
COUNTIES
189
Owyhee County.
Sec. 23t. All that portion of the State of Idaho included within
the following boundaries, to-wit: Beginning on the Snake River at
mouth of the Owyhee River and running due south along the eastern
boundary line of the State of Oregon to the northern boundary of
the State of Nevada; thence east along the northern boundary of
the State of Nevada [1st Ter. Ses. 628] to the 38th meridian of
longitude west from Washington; thence north along the said
meridian to the Snake River [10th Ter. Ses. 43] ; thence down the
channel of the Snake River in a westerly direction to the mouth of
the Owyhee River, the place of beginning, be and the same is hereby
organized into the County of Owyhee, and the county seat of the
said county is hereby located at Silver City.
Historical: County created Dec. 31,
1863, 1st Ter. Ses. 624; act locating
county seat at Silver City approved
Jan. 2, 1867. The boundaries above
were derived from the following acts:
Act creating Owyhee County, 1st Ter.
Ses. 624; boundaries redefined, 1st
Ter. Ses. 628; act creating Cassia
County, 10th Ter. Ses. 43.
Shoshone County.
Sec. 23u. All that portion of the State of Idaho included within
the following boundaries, to-wit: Commencing at a point where
the township line between Townships 41 and 42 North intersects
the western boundary of the State of Montana; thence in a northerly
direction along the said boundary and with the Bitter Root Range
of Mountains until the said range turns in a westerly direction and
is called Coeur d' Alene; thence with the said Coeur d' Alene Range
of Mountains in a westerly direction until a point is attained due
north of the mount of the South Fork of the Clearwater River [1st
Ter. Ses. 628] ; thence south to the township line between Townships
41 and 42 North; thence east on the said township line to the in-
tersection of the same with the boundary line of the State of Mon-
tana, the place of beginning [Laws 1903, 204], be and the same is
hereby organized into the County of Shoshone, and the county seat
of the said county is hereby located at the town of Wallace.
Historical: County created by act
approved Feb. 4, 186 4, 1st Ter. Ses.
628. The boundaries above were de-
rived from the following acts: Act
creating Shoshone County, 1st Ter.
Ses. 628; act to annex portion of Sho-
shone County to Nez Perce County,
Laws 1903, 204.
Twin Falls County.
Sec. 23w. All that portion of the State of Idaho included within
the following boundaries, to-wit : Commencing with the intersection
of the middle of the channel of the Snake River with the north and
south center line of Section 28, Township 10 South, Range 21 East
B. M., running thence south on said center line of Section 28 to the
point of Intersection of the north line of the right of way of the Mini-
doka & Southwestern Railroad Company, which point is 100 feet dis-
tant, at right angles, from the center of the main track of the line of
road of said railroad company as the same is now located; running
thence in a southwesterly direction along the north line of said rail-
road right of way to a point where said line intersects the south
line of the canal right of way of the Twin Falls Land & Water
190
POLITICAL DIVISIONS
Tit. 1
Company, which point of intersection is 100 feet distant, at right
angles, from the center line of the main canal of said Twin Falls
Land & Water Company; running thence south to the south line of
Section 36, Township 10 South, Range 20 East B. M. ; thence west
to the southwest corner of Section 36; thence south on the section
lines to the south line of Township 11; thence west to the southeast
corner of Township 11 South, Range 18 East B. M. ; thence south
on the range lines to the south line of the State of Idaho ; thence due
west along the south line of the State of Idaho to the 38th meridian
of longitude west from Washington; thence north along said me-
ridian to the intersection of the center of the main channel of Snake
River; thence up the center of the main channel of Snake River to
the point of beginning, be and the same is hereby organized into
the County of Twin Falls, and the county seat of said county is
hereby located at the village of Twin Falls.
Historical: County created by act
approved Feb. 21, 1907, Laws 1907,
40.
Washington County.
Sec. 23w. All that portion of the State of Idaho included within
the following boundaries, to-wit: Commencing at a point on Snake
River, where the Second Standard Parallel intersects the same, run-
ning thence east along said line to where said line intersects the
boundary line between the Counties of Boise and Canyon; thence
northerly upon said boundary line to the summit dividing the waters
of the Payette and Weiser Rivers; thence along said divide in a
northerly direction to a point on said divide known as Big Rock
Flat, where the waters flow into the Little Salmon; thence in a
northeasterly direction on a low divide separating the waters of the
Little Salmon and Payette Rivers to a point due east of the northern
point of Little Salmon Meadows; thence west to the Little Salmon
River; thence down the Little Salmon River to a point due east of
the point where the section line between Sections 6 and 7, Township
22 North, Range 1 East B. M. intersects said meridian; thence due
west to the middle of the main channel of Snake River; thence up
said channel to the place of beginning, be and the same is hereby
organized into the County of Washington, and the county seat of
said county is hereby located at the town of Weiser.
Historical: County created by act
approved Feb. 2, 1879, 10 Ter. Ses. 40.
The above boundaries were derived
from the following- acts: Act to better
define boundaries, Laws 1891, 41; act
to better define boundaries, Laws
1895, 21; act to better define bounda-
ries, 1899, 22; also Laws 1899, 79; act
to define boundaries, Laws 1905, 303.
CHAPTER 3.
LEGISLATIVE DISTRICTS.
Section
2 5. Apportionment of the Legisla-
ture.
Apportionment of the Legislature.
Sec. 25. The apportionment of the two houses of the Legislature
is as follows :
Ch. 3. LEGISLATIVE DISTRICTS 191
The First Senatorial District consists of the County of Ada, and
shall elect one Senator.
The Second Senatorial District consists of the County of Blaine,
and shall elect one Senator.
The Third Senatorial District consists of the County of Bannock,
and shall elect one Senator.
The Fourth Senatorial District consists of the County of Bear
Lake, and shall elect one Senator.
The Fifth Senatorial District consists of the County of Bingham,
and shall elect one Senator.
The Sixth Senatorial District consists of the County of Boise,
and shall elect one Senator.
The Seventh Senatorial District consists of the County of Canyon,
and shall elect one Senator.
The Eighth Senatorial District consists of the County of Cassia,
and shall elect one Senator.
The Ninth Senatorial District consists of the County of Bonner,
and shall elect one Senator.
The Tenth Senatorial District consists of the County of Custer,
and shall elect one Senator.
The Eleventh Senatorial District consists of the County of El-
more, and shall elect one Senator.
The Twelfth Senatorial District consists of the County of Fre-
mont, and shall elect one Senator.
The Thirteenth Senatorial District consists of the County Df
Idaho, and shall elect one Senator.
The Fourteenth Senatorial District consists of the County of
Latah, and shall elect one Senator.
The Fifteenth Senatorial District consists of the County of Lemhi,
and shall elect one Senator.
The Sixteenth Senatorial District consists of the County of
Kootenai, and shall elect one Senator.
The Seventeenth Senatorial District consists of the County of
Lincoln, and shall elect one Senator.
The Eighteenth Senatorial District consists of the County of Nez
Perce, and shall elect one Senator.
The Nineteenth Senatorial District consists of the County of
Oneida, and shall elect one Senator.
The Twentieth Senatorial District consists of the County of
Owyhee, and shall elect one Senator.
The Twenty-first Senatorial District consists of the County of
Shoshone, and shall elect one Senator.
The Twenty-second Senatorial District consists of the County of
Washington, and shall elect one Senator.
The Twenty-third Senatorial District consists of the County of
Twin Falls, and shall elect one Senator.
The several counties shall elect members of the House of Repre-
sentatives as follows :
Ada County, five (5) members.
Bannock County, three (3) members.
Bear Lake County, two (2) members.
192
POLITICAL DIVISIONS
Tit. 1
Bingham County, three (3) members.
Blaine County, two (2) members.
Boise County, one (1) member.
Bonner County, two (2) members.
Canyon County, three (3) members.
Cassia County, one (1) member.
Custer County, one (1) member.
Elmore County, one (1) member.
Fremont County, four (4) members.
Idaho County, three (3) members.
Kootenai County, three (3) members.
Latah County, three (3) members.
Lemhi County, one (1) member.
Lincoln County, one (1) member.
Nez Perce County, five (5) members.
Oneida County, two (2) members.
Owyhee County, one (1) member.
Shoshone County, three (3) members.
Twin Falls County, one (1) member.
Washington County, two (2) members.
Any new county which may hereafter be created shall constitute
a Senatorial District, and shall elect one Senator, and shall elect one
Representative.
Historical: Laws 1905, 43 0, Sec. 1;
amended Laws 1907, 472, Sees. 1, 2.
Cross Reference: Constitutional
provision relating to apportionment;
Const. Art. 3, Sec. 2. Senatorial or
Representative district, when more
than one county shall constitute the
accorded representation to two coun-
ties created by an act subsequently
declared to be unconstitutional, and
omitted to provide representation for
the counties from which the two cre-
ated counties were organized, is un-
constitutional. Balientine v. Willey
(1893) 3 Ida. 496; 31 Pac. 994.
An apportionment act which con-
templates that each county shall have
one Senator and Representatives in
proportion to population, is valid and
constitutional, although an act pur-
porting to create certain counties for
same, shall be composed of contiguous
counties, and no county shall be di-
vided in creating such districts. Const.
Art 3, Sec. 5.
Construction of Prior Acts: Laws
1891, 195, which, in providing for
the apportionment of the Legislature,
the representation of which the ap-
portionment act provides, is after-
wards held unconstitutional, and in
such case the apportionment act will
be enforced according to its terms, ex-
cept that one Senator will be accorded
to the county from which the at-
tempted new counties were created,
and Representatives will be allowed to
such county in proportion to its popu-
lation. Heitman v. Gooding (1906)
12 Ida. 581; 86 Pac. 785.
CHAPTER 4.
JUDICIAL DISTRICTS.
Section
2 6. Judicial Districts defined.
Judicial Districts Defined.
Sec. 26. The State is divided into seven Judicial Districts, which
are hereby denned as follows:
The First District comprises the Counties of Shoshone, Kootenai
and Bonner;
The Second District comprises the Counties of Latah, Nez Perce
and Idaho;
Ch. 5.
CESSIONS TO FEDERAL GOVERNMENT
193
The Third District comprises the Counties of Ada and Boise ;
The Fourth District comprises the Counties of Blaine, Lincoln,
Cassia, Elmore and Twin Falls;
The Fifth District comprises the Counties of Bear, Lake, Oneida
and Bannock;
The Sixth District comprises the Counties of Fremont, Bingham,
Lemhi and Custer; and
The Seventh District comprises the Counties of Canyon, Wash-
ington and Owyhee.
Historical: Const. Art. 5, Sec. 2 4,
as modified by acts creating new
counties and attaching- them to ju-
dicial districts, and by Laws 1891,
189; (re-enacted Laws 1899, 127), re-
establishing- the Fourth District; Laws
1903, 72, establishing the Sixth Dis-
trict, and Laws 1905, 6, establishing
the Seventh District.
CHAPTER 5.
CESSIONS TO THE FEDERAL GOVERNMENT AND ASSENTS TO ACTS
OF CONGRESS.
Section
27. Cession to the United States.
28. Consent to purchases by United
States.
Section
2 9. Establishment of agricultural ex-
periment stations.
30. Same: Assent to increased ap-
propriation.
Cession to the United States.
Sec. 27. Pursuant to Article 1, Section 8, Paragraph 17, of the
Constitution of the United States, consent to purchase is hereby
given, and exclusive jurisdiction ceded, to the United States over
and with respect to all lands embraced within the military posts
and reservations of Fort Sherman and Boise Barracks, together
with such other lands in the State as may be now or hereafter
acquired and held by the United States for military purposes, either
as additions to the said posts or as new military posts or reserva-
tions which may be established for the common defense; and, also,
all such lands within the State as may be included in the territory
of the Yellowstone National Park, reserving, however, to this State
a concurrent jurisdiction for the execution, upon said lands, or in
the buildings erected thereon, of all process, civil or criminal, law-
fully issued by the courts of the State, and not incompatible with
this cession.
Historical: Laws 1899, 22, Sec. 1;
re-enacting Laws 1890-91, 40, Sec. 1.
Consent to Purchases by United States.
Sec. 28. Consent is given to any purchase already made, or that
may hereafter be made, by the Government of the United States,
of any lots, or tracts of land, within this State, for the use of such
government, and to erect thereon and use such buildings, or other
improvements, as may be deemed necessary by said government; and
over such lands and the buildings, or improvements, that are, or may
be erected thereon, the said government shall have entire control
and jurisdiction, except that the State shall have jurisdiction to ex-
ecute thereon all process, civil or criminal, lawfully issued by the
courts of this State, and not incompatible with this cession.
194 POLITICAL DIVISIONS Tit. 1
Historical: Laws 1899, 2 35, Sec. 1;
re-enacting Laws 1895, 21, Sec. 1.
Establishment of Agricultural Experimental Stations.
Sec. 29. The assent of the Legislature of the State of Idaho is
hereby given to all the provisions of an act of Congress, approved
July 2, 1862, entitled, "An Act Donating Public Lands to the Several
States Which May Provide Colleges for the Benefit of Agriculture
and the Mechanic Arts," and the acts amendatory thereof and sup-
plementary thereto; and, also, an act approved March 2, 1887, en-
titled, "An Act to Establish Agricultural Experimental Stations in
Connection With the Colleges Established in the Several States
Under the Provisions of an Act Approved July 2, 1862, and the Acts
Supplemental Thereto," and the acts amendatory thereof and supple-
mentary thereto.
Historical: Laws 1899, 9, Sec. 1; re-
enacting Laws 189-91, 16, Sec. 1.
Same: Assent to Increased Appropriation.
Sec. 30. The assent of the Legislature of the State of Idaho shall
be, and the same is hereby, given to all the provisions of an act of
Congress, approved June 16, 1906, entitled, "An Act to Provide for
an Increased Annual Appropriation for Agricultural Experiment
Stations and Regulating the Expenditures Thereof." And the Legis-
lature of the State of Idaho hereby approves of, and assents to, the
purposes of the grants and appropriations provided for and made
by said act of Congress, and hereby agrees to abide by the terms,
conditions, requirements and limitations thereof.
Historical: Laws 1907, 2 2, Sec. 1.
TITLE 2
PUBLIC OFFICERS
Chapter
Cha
1.
Classification and term of office.
13.
2.
Legislative officers.
14.
3.
Executive officers and Ca
Trustees.
pitol
15.
4.
Governor.
16.
5.
Secretary of State.
6.
State Auditor.
17.
7.
State Treasurer.
18.
8.
Attorney General.
19.
9.
State Board of Examiners.
20.
21.
10.
State Engineer.
11.
Insurance Commissioner and
Ex-
aminer.
22.
12.
Bank Commissioner.
ipter
Fish and Game Warden.
Inspector of Mines.
Other executive officers and
boards.
Officers of the Judicial Depart-
ment.
Notaries Public.
Commissioners of Deeds.
General provisions applicable to
all officers.
Bonds of officers.
Resignations and vacancies.
Miscellaneous provisions.
CHAPTER 1.
CLASSIFICATION AND TERM OF OFFICE.
Section
31. Classification of officers.
32. Commencement of term of office.
Section
32a. Holding office after expiration of
term.
Classification of Officers.
Sec. 31. The public officers of this State are classified as follows:
1. Legislative;
2. Executive;
3. Judicial ;
4. Ministerial officers and officers of the courts. But this classi-
fication is not to be construed as defining the legal powers of either
class.
Historical: Rev. St. 1887, Sec. 110.
California Legislation: Same: Pol.
Code 1872, Sec. 220; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Classification by
Constitution: Art. 2, Sec. 1.
Commencement of Term of Office.
Sec. 32. The regular term of office of State and District officers,
and of the Judges of the Supreme and District Courts, shall
commence on the first Monday of January next after their election.
Historical: Laws 1899, 67, Sec. 1;
)' -' nacting and amending Laws 1890-
91, 57, Sec. 13.
Cross Reference: Commencement of
term of State executive officers: Const.
Art. 4, Sec. 1.
Holding Office After Expiration of Term.
Sec. 32a. Every officer elected or appointed for a fixed term shall
196
PUBLIC OFFICERS
Tit. 2
hold office until his successor is elected or appointed and qualified,
unless the statute under which he is elected or appointed expressly
declares the contrary. This section shall not be construed in any
way to prevent the removal or suspension of such officer, during or
after his term, in cases provided by law.
Historical: Laws 1899, 6 7, Sec. 5;
re-enacting Laws 1890-91, 57, Sec.
172.
Duration of Office: The right of
the incumbent to hold office until his
successor is elected and qualified is as
much a part of the estate in the office
as the original term. People v. Green
(1869) 1 Ida. 235.
CHAPTER 2.
LEGISLATIVE OFFICERS.
and assembly of
Article
1. Constitution
Legislature.
2. Contested elections.
3. Attendance of witnesses before
Legislature.
Article
4. Enactment of laws and journal.
5. Operation of laws.
6. Employees of the Legislature.
ARTICLE 1.
COXSTITUTIOX AXD ASSEMBLY OF LEGISLATURE.
Section
33. Constitution of Legislature.
3 4. Terms of members.
3 5. Certificate of election.
Section
36. Organization of Legislature.
3 7. Who may administer, oaths.
Note: Legislature to meet bi-ennially on the first Monday after the
first day of January: Const. Art. 3, Sec. 8. Extra sessions to be called
by Governor: Const. Art. 4, Sec. 9.
Constitution of Legislature.
Sec. 33. The Legislature consists of a Senate and House of Rep-
resentatives, the members of which are elected from the respective
senatorial and representative districts, as defined by Section 25 of
this Code, by the qualified electors of said districts.
Historical: New section by Com-
missioner based on Rev. St. 1887, Sec.
115, and Const. Art. 3, Sees. 1 and 2.
Cross Reference: ' Investiture of
legislative power: Const. Art. 3, Sec. 1.
Terms of Members.
Sec. 34. The Senators and Representatives shall be elected for the
term of two years from and after the first day of December next
following the general election.
Historical: Laws 1899, 67, Sec. 2;
re-enacting and amending Laws 1890-
91, 57, Sec. 14.
California Legislation: A Senator's
term is four years: Pol. Code 1872,
Sec. 2 26; Deering's Code, ib.; Kerr's
Code, ib.
Cross Reference: Constitutional
provisions: Art. 3, Sec. 3. Qualifica-
tions of Senators and Representatives:
Const. Art. 3, Sec. 6.
Certificate of Election.
Sec. 35. The certificate of election is prima facie evidence of the
right to membership.
Ch. 2. Art. 2. legislature — contested elections.
197
Historical: Rev. St. 1887, Sec. 121.
California Legislation: Same ex-
cept "primary" for "prima facie":
Pol. Code 1872, Sec. 236; now same as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Cross Reference: Secretary of State
to make out. certificates of election:
Sec. 45 5. Secretary of State to lay
before each house a list of members
elected: Sec. 456:
Organization of Legislature.
Sec. 36. At the hour of twelve o'clock M., on the day appointed
for the meeting of any regular session of the Legislature, the pre-
siding officer, or in his absence the chief clerk, of each house of
the last session, must call the same to order and preside until a pre-
siding officer is chosen, or in case of the absence of both of said
officers, the senior member present must perform said duties; all
members-elect present having certificates of election from the Secre-
tary of State, and no other persons, have the right to participate in
the organization of the respective houses. Neither house must or-
ganize or transact any business, but must adjourn from day to day,
until a majority of all the members authorized by law to be elected
are present.
Historical: Rev. St. 1887, Sec. 122.
"Clerk of the Board of County Com-
missioners" changed to "Secretary of
State" to conform to Laws 1899, 33,
Sec. 99.
California Legislation: Separate
provisions for Senate and Assembly:
Pol. Code 1872, Sees. 238, 239; Deer-
ing-'s Code, ib.; Kerr's Code, ib.
Cited: (Dis. op.) Burkhart v. Reed
(1889) 2 Ida. 503; 22 Pac. 1.
Who May Administer Oaths.
Sec. 37. The President and President pro tern, of the Senate,
and the Speaker and Speaker pro tern, of the House, may administer
the oath of office to any member, and to the officers of their respective
bodies. The members of any committee may administer oaths to
witnesses in any matter under examination.
Historical: Rev. St. 1887, Sec. 12 3.
California Legislation: Similar:
Pol. Code, 1872, Sec. 252; Deering's
Code, ib.; Kerr's Code, ib.
ARTICLE 2.
CONTESTED ELECTIONS.
Section
3 9. Grounds of contest.
40. Incumbent defined.
41. Misconduct: When sufficient to
vitiate election.
42. Jurisdiction: Contests over ex-
ecutive offices.
43. Same: Contest over legislative
offices.
4 4. Notice of contest.
15. Service of notice: Examination
of witnesses.
46. Subpoenas: Application for.
4 7. Same: How Issued.
48. Disobedience of subpoena: Pen-
alty.
Section
49. Production of papers.
5 0. Witnesses' fees and mileage.
51. Testimony: How taken, certified
and preserved.
52. Examination of poll books and
ballots.
53. Fees of officers.
54. Contest papers delivered to pre-
siding officers.
55. Same: Notice of receiving pa-
pers.
56. Opening and custody of papers.
57. Preservation of evidence.
Grounds of Contest.
Sec. 39. The election of any person to any legislative or State
198
PUBLIC OFFICERS
Tit. 2
1. For malconduct, fraud or corruption on the part of the judges
of election in any precinct, township or ward, or of any board of
canvassers, or any member of either board, sufficient to change the
result ;
2. When the incumbent was not eligible to the office at the time
of the election ;
3. When the incumbent has been convicted of felony, unless at
the time of the election he shall have been restored to civil rights ;
4. When the incumbent has given or offered to any elector, or
any judge, clerk, or canvasser of the election, any bribe or reward
in money, property, or anything of value, for the purpose of pro-
curing his election ;
5. When illegal votes have been received or legal votes rejected
at the polls sufficient to change the result;
6. For any error in any board of canvassers in counting votes
or in declaring the result of the election, if the error would change
the result;
7. When the incumbent is in default as a collector and custodian
of public money or property ;
8. For any cause which shows that another person was legally
elected.
Historical: Laws 18 99, 33, Sec. 119;
re-enacting Laws 1890-91, 57, Sec.
132. The first clause is rewritten by the
Commissioner so as to confine the
provisions of the section to the specific
subject matter of this article. The
section as originally enacted is found
in the Code of Civil Procedure, Sec.
5026. It is duplicated in this place
in order to make this article complete.
The section in its original form ap-
plies to all contests indiscriminately,
thus including those under considera-
tion in this article.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2. Sec. 5665.
Incumbent Defined.
Sec. 40. The term "incumbent" as used in the preceding section
means the person whom the canvassers declare elected.
Historical: Laws 1899, 33, Sec. 12 0;
re-enacting Laws 1890-91, 57, Sec. 133.
This is a duplicate section and is in-
serted here for the reason stated in
the note to the preceding section.
serted here for the reason stated in
the note to Section 40.
Misconduct: When Sufficient to Vitiate Election.
Sec. 41. When the misconduct complained of is on the part of the
judges of election, it shall not be held sufficient to set aside the
election unless the vote of the precinct, township or ward would
change the result as to that office.
Historical: Laws 18 99, 33, Sec. 121;
re-enacting Laws 1890-91, 57, Sec. 134.
This is a duplicate section and is in-
Jurisdiction : Contests Over Executive Offices.
Sec. 42. The Legislature, in joint meeting, shall hear and de-
termine cases of contested election for all officers of the executive de-
partment. The meeting of the two houses to decide upon such
elections shall be held in the House of Representatives, and the
Speaker of the House shall preside.
Ch. 2. Art. 2. legislature — contested elections.
199
Historical: Laws 1899, 33, Sec. 122;
re-enacting- Laws 1890-91, 57, Sec.
135.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 5668.
Cited: Hertle v. Ball (1903) 9 Ida.
193; 72 Pac. 953.
Same : Contests Over Legislative Offices.
Sec. 43. The Senate and House of Representatives shall severally
hear and determine contests of the election of their respective
members.
Historical: Laws 1899, 33, Sec. 12 3;
re-enacting Laws 1890-91, 57, Sec.
136.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 5670.
Cross Reference: Each house of
the Legislature is the judge of the
election, qualifications, and returns of
its members: Const. Art. 3, Sec. 9.
Cited: Hertle v. Ball (1903) 9 Ida.
193; 72 Pac. 953.
Notice of Contest.
Sec. 44. Whenever any elector of this State chooses to contest the
validity of the election of any of the officers of the executive de-
partment of the State, or whenever any elector of the proper county
or district chooses to contest the election of any member of the
Legislature from such county or district, such person shall give notice
thereof, in writing, and leave a copy thereof with the person whose
election he intends to contest, within twenty days after the election
(if the person cannot be found in his district, then a copy to be lelt
at his last place of residence in the district), naming the points on
wfhich the election shall be contested, and the name of some person
authorized by law to administer oaths, selected by him to take the
depositions, and the time and place for the taking of the same; the
adverse party may also select one such person on his part to attend
at the time and place of taking such depositions.
Historical: Laws 1899, 33, Sec. 12 7;
re-enacting Laws 1890-91, 57, Sec.
140.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 5674.
Service of Notice : Examination of Witnesses.
Sec. 45. The notice provided for in the preceding section shall
be served at least ten days before the day fixed for the taking of
depositions. The said two persons selected as aforesaid to take the
depositions shall proceed jointly, or in default of either one of such
persons to attend at the time and place fixed upon, the one attending
shall proceed, to hear and reduce to writing the testimony of all
witnesses who may be produced by either of said parties, and may
adjourn from day to day until all said testimony shall have been
taken and reduced to writing: Provided, That such testimony shall
be finally closed on or before the 29th of December following.
Historical: Laws 1899, 33, Sec. 128;
re-enacting Laws 1890-91, 57, Sec. 141.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 5675.
Subpoenas : Application For.
Sec. 46. When any contestant or returned member is desirous of
obtaining testimony respecting a contested election, he may apply for
a subpoena to any District Judge of the State, or to the probate judge,
200
PUBLIC OFFICERS
Tit. 2
or any justice of the peace, notary public, mayor, recorder, or other
civil officer authorized to administer oaths within the county where
the witness resides or may be found.
Historical: Rev. St. 18 87, Sec. 131.
11 Ter. Ses. (1881) 257, See. 13.
This section and the four following
sections are perhaps technically re-
pealed by Laws 1899, 33, Sec. 162, but
are preserved out of necessity to make
this article effective.
California Legislation: See Pol.
Code 1872, Sec. 277; Deering's Code,
ib.; Kerr's Code, ib.
Same: How Issued.
Sec. 47. The officer to whom the application authorized by the
preceding section is made, must thereupon issue his writ of subpoena,
directed to all such witnesses as are named to him, requiring their
attendance before the officer named in the notice, at some time and
place named in the subpoena, in order to be examined respecting the
contested election.
Historical: Rev. St. 188 7, Sec. 132.
11 Ter. Ses. (1881) 257, Sec. 14.
California Legislation: See refer-
ences following Section 46, ante.
Disobedience of Subpoena: Penalty.
Sec. 48. Any person who, having been summoned in the manner
above directed, refuses or neglects to attend and testify, unless pre-
vented by sickness or unavoidable necessity, forfeits the sum of
twenty dollars, to be recovered, with costs of suit, by the party at
whose instance the subpoena was issued, and for his use, and is
guilty of a misdemeanor.
Historical: Rev. St. 1887, Sec. 134.
See 11 Ter. Ses. (1881) 257, Sec. 16.
Production of Papers.
Sec. 49. The officers have power to require the production of
papers; and on the refusal or neglect of any person to produce and
deliver up any paper or papers in his possession pertaining to the
election, or to produce and deliver up certified or sworn copies of
the same in case they be official papers, such person is guilty of a
misdemeanor.
Historical: Rev. St. 1887, Sec. 13 7
See 11 Ter. Ses. (1881) 257, Sec. 19.
California Legislation: See refer-
ences following Section 46, ante.
Witnesses' Fees and Mileage.
Sec. 50. Every witness attending by virtue of any subpoena here-
in directed to be issued is entitled to receive the sum of two dollars
for each day's attendance, and the further sum of twenty-five cents
for every mile necessarily traveled in going and returning. Such
allowance must be ascertained and certified by the officer taking
the examination, and paid by the party at whose instance such wit-
ness was summoned.
Historical: Rev. St. 188 7, Sec. 138.
11 Ter. Ses. (1881) 257, Sec. 20.
Testimony : How Taken, Certified and Preserved.
Sec. 51. No testimony shall be received by the person officiating
at the taking of the depositions on the part of the contestant which
Ch. 2. Art. 2 LEGISLATURE — CONTESTED elections.
201
does not relate to the points specified in the notice, a copy of which
notice shall be delivered to the person or persons so officiating, and
said testimony, together with a copy of the notice, when taken, shall
be certified by the person or persons before whom the same is taken,
enveloped, sealed up, indorsed "Deposition taken in the matter of
the contest of the election of A. B. to the office of ," and
directed to the Secretary of State, who shall preserve the same, un-
opened, till the meeting of the Legislature.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 1, Sec. 5676.
Historical: Laws 1899, 33, Sec. 12 9;
re-enacting Laws 1890-91, 57, Sec. 142.
Examination of Poll Books and Ballots.
Sec. 52. If, at the time of taking depositions to be used before
the Legislature, or either branch thereof, in the case of a contested
election, the notice shall allege that it is necessary for the determina-
tion of such contest that the ballots or the poll books of any election
district or districts, should be inspected, the officer or officers before
whom such depositions shall be taken shall, on the request of either
party to the contest, issue an order requiring the county auditor, or
other person in whose custody or possession the ballots or poll books
may be, naming the district or districts mentioned in the notice, to
deliver them to the person or persons therein named, who shall de-
liver them to the person or persons issuing such order. Such officer
or officers shall transmit such ballots or poll books, unopened, in
the same envelope with the depositions, as provided in the preceding
section.
Historical: Laws 1899, 33, Sec. 130;
re-enacting Laws 1890-91, 57, Sec. 143.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 5677.
Fees of Officers.
Sec. 53. Officers performing services, in a contested election case,
may charge and collect from the party at whose instance such services
were performed, the same fees as are allowed for similar services in
civil cases.
Historical: Rev. St. 188 7, Sec. 139.
See 11 Ter. Ses. (1881) 257, Sec. 21.
This section is possibly repealed by
the act referred to in the note to Sec-
tion 46, but is preserved for the rea-
sons there stated.
California Legislation: Same: Pol.
Code 1872, Sec. 280; Deering's Code,
ib. ; Kerr's Code, ib.
Contest Papers Delivered to Presiding Officers.
Sec. 54. On the second day of the organization of the Legislature,
the Secretary of State shall deliver to the Speaker of the House all
papers relating to the contested elections of executive officers, and
to the presiding officers of each house, all papers relating to contested
elections of the members of their respective nouses. .
Historical: Laws 1899, 33, Sec. 131;
re-enacting Laws 1890-91, 57, Sec. 144.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 5678.
Same : Notice of Receiving" Papers.
Sec. 55. Upon the reception, by such presiding officers, of papers
relating to contested elections, they shall immediately give notice to
202
PUBLIC OFFICERS
Tit. 2
:heir respective houses that such papers are in their possession.
Where the papers relate to the contest of a State executive officer,
the House of Representatives shall notify the Senate, and a day
shall be fixed by both houses, by concurrent resolution, for the unit-
ing of the two houses to decide upon the same, in which decision
the yeas and nays shall be taken and entered upon the journal.
Historical: Laws 1899, 33, Sec. 132;
re-enacting Laws 1890-91, 57, Sec. 145.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 5679.
Opening and Custody of Papers.
Sec. 56. The papers relating to any such contest shall be opened
only in the presence of the body by the presiding officer, to whom
the same shall be delivered. If ballots or poll books are contained
therein, they shall, after being opened, remain in the custody of
such presiding officer, subject to the inspection of the members, un-
less they shall by vote be temporarily committed to the chairman
of a committee, in which case such chairman shall return them to
the proper presiding officer; and they shall, upon the decision of
the contest, be again sealed up in an envelope, and returned by mail
or otherwise to the office of the county auditor in which they were
first required to be filed.
Historical: Laws 1899, 33, Sec. 13 3;
re-enacting Laws 1890-91, 57, Sec. 146.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 5680.
Preservation of Evidence.
Sec. 57. All the evidence in any contest provided for in the last
preceding section, except ballots or poll books, shall, after a decision
thereof, be preserved in the offiee of the Secretary of State.
Historical: Laws 1899, 33, Sec. 134;
re-enacting- Laws 1890-91, 57, Sec. 147.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 5681.
ARTICLE 3.
ATTENDANCE OF WITNESSES BEFORE LEGISLATURE.
Section
5 8. Subpoenas for witnesses.
5 9. Service of subpoena.
60. Refusal to obey subpoena a con-
tempt.
Section
61. Compelling attendance.
62. Self-criminating testimony may
be exacted.
Subpoena for Witnesses.
Sec. 58. A subpoena requiring the attendance of any witness be-
fore either house of the Legislature, or a committee thereof, may
be issued by the President of the Senate, Speaker of the House, or
the chairman of any committee before whom the attendance of the
witness is desired; and it is sufficient if:
1. It states whether the proceeding is before the Senate or
House, or a committee;
2. It is addressed to the witness;
3. It requires the attendance of such witnesses at a time and
place certain;
4. It is signed by the President of the Senate, Speaker of the
House, or chairman of a committee.
Ch. 2. Art. 4. legislature — enactment of laws
203
Historical: Rev. St. 1
California Legislation :
\1, Sec. 145. Code 1872, Sec. 300; Deering's Code,
Same: Pol. ib- Kerr's Code, ib.
Service of Subpoenas.
Sec. 59. The subpoena may be served by any person who might
be a witness in the matter, and his affidavit that he delivered a copy
to the witness is evidence of service.
Historical: Rev. St. 1887, Sec. 146.
California Legislation: Same: Pol.
Code 1872, Sec. 301; Deering's Code,
ib.; Kerr's Code, ib.
Refusal to Obey Subpoena a Contempt.
Sec. 60. If any witness neglects or refuses to obey such subpoena,
or appearing, refuses to testify, the Senate or House may, by resolu-
tion entered on the journal, commit him for contempt.
Historical: Rev. St. 1887, Sec. 147.
California Legislation: Similar Pol.
Code 1872, Sec. 302; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Neglect of witness
to obey subpoena is a misdemeanor:
Sec. 6414.
Compelling Attendance.
Sec. 61. Any witness neglecting or refusing to attend in obedience
to subpoena, may be arrested by the sergeant-at-arms, and brought
before the Senate or House. The only warrant of authority necessary
to authorize such arrest is a copy of a resolution of the Senate or
House, signed by the presiding officer, and countersigned by the clerk.
Historical: Rev. St. 1887, Sec. 148.
California Legislation: Similar Pol.
Code 1872, Sec. 303; Deering's Code,
ib.; Kerr's Code, ib.
Self-Criminating Testimony May Be Exacted.
Sec. 62. No statement made by any such witness on such ex-
amination before either house, or a committee, is competent evidence
in any criminal proceeding against such witness; nor can such wit-
ness refuse to testify to any fact or to produce any pa,per, touching
which he is examined, for the reason that his testimony or the
production of such paper may tend to disgrace him, or render him
infamous. Nothing in this section exempts any witness from prose-
cution and punishment for perjury committed by him on such ex-
amination.
Historical: Rev. St. 18 87, Sec. 149.
California Legislation: Similar: Pol.
Code 18 72, Sec. 3 04; Deering's Code,
ib.; Kerr's Code, ib.
ARTICLE 4.
ENACTMENT OF LAWS WD JOURNAL.
Section
63. Indorsement of bills.
64. Approval of bills.
65. Passage of bills over veto; Au-
thentication.
66. Return of bill during adjourn-
ment.
Section
67. Bills not returned.
68. Proposal of constitutional amend-
ments.
69. Enrollment and preservation of
amendments.
70. Printing of legislative journals.
Note: Constitutional provisions governing the enactment of laws: Const.
Art. 3, Sees. 14-22.
204
PUBLIC OFFICERS
Tit. 2
Indorsement of Bills.
Sec. 63. Every bill must, as soon as delivered to the Governor, be
indorsed as follows: "This bill was received by the Governor this
day of , nineteen ."
Historical: Rev. St. 18 8 7, Sec. 150.
California Legislation: Same with
the addition of the words, "The in-
dorsement must be signed by the Pri-
vate Secretary of the Governor"; Pol.
Code 1872, Sec. 309; Deering's Code,
ib.; Kerr's Code, ib.
Approval of Bills.
Sec. 64. When the Governor approves a bill he must set his name
thereto, with the date of his approval.
Historical: Rev. St. 188 7, Sec. 151.
California Legislation: Same: Pol.
Code 1872, Sec. 310, as amended;
Deering's Code ib. ; Kerr's Code, ib.
Passage of Bills Over Veto : Authentication.
Sec. 65. When a bill has passed both houses of the Legislature,
and is returned by the Governor without his signature and with
objections thereto, and upon a reconsideration passes both houses
by a two-thirds vote, it must be authenticated as having become a
law by a certificate indorsed thereon, or attached thereto, in the
following form:
"This bill having been returned by the Governor with his objec-
tions thereto, and after reconsideration having passed both houses,
by a two-thirds vote, it has become a law this day of ,
A. D. ," which indorsement, signed by the President of the Senate
and Speaker of the House, is a sufficient authentication thereof.
Such bill must then be deposited with the laws, in the office of the
Secretary of State.
Historical: Rev. St. 188 7, Sec. 152.
California Legislation: See Pol.
Code 1872, Sec. 311; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Cross Reference: Veto power of
Governor: Const. Art. 4, Sec. 10. Dis-
approval of appropriation bills: Const.
Art. 4, Sec. 11.
Return of Bill During Adjournment.
Sec. 66. If, on the day the Governor desires to return a bill with-
out his approval and with his objections thereto to the house in
which it originated, that house has adjourned for the day (but not
for the session), he may deliver the bill with his message to the
presiding officer, clerk, or any member of such house, and such de-
livery is as effectual as though returned in open session, if the Gov-
ernor, on the first day the house is again in session, by message
notifies it of such delivery, and of the time when, and the person to
whom, such delivery was made.
Historical: Rev. St. 1887, Sec. 153.
California Legislation: Similar: Pol.
Code 1872, Sec. 312; Deering's Code,
ib.; Kerr's Code, ib.
Bills Not Returned.
Sec. 67. Every bill which has passed both houses of the Legis-
lature, and has not been returned by the Governor within five days,
thereby becoming a law, is authenticated by the Governor causing
the fact to be certified thereon by the Secretary of State in the
Ch. 2. Art. 4. legislature — enactment of laws
205
following* form: 'This bill having remained with the Governor five
days (Sundays excepted), and the Legislature being in session, it
has become a law this day of , A. D. ," which
certificate must be signed by the Secretary of State and deposited
with the laws in his office. Where the Legislature, by adjournment,
prevents the return of a bill, the Governor, if he disapproves
thereof, shall file the same, with his objections, in the office of the
Secretary of State within ten days after said adjournment (Sundays
excepted) or the same shall become a law.
Historical: Rev. St. 1887, Sec. 15 4.
"Three" days changed to "five" days
to comply with Const. Art. 4, Sec. 10.
The last sentence is added by the
Commissioner on the authority of the
same section of the Constitution.
California Legislation : First part
same except "ten days" for "five
days": Pol. Code 1872, Sec. 313;
Deering's Code, ib.; Kerr's Code, ib.
Proposal of Constitutional Amendments.
Sec. 68. Amendments to the Constitution may be proposed by
joint resolution in either house of the Legislature of this State, and
if the same shall be voted for byl two-thirds of all the members of
each of the two houses, voting separately, in the manner provided
by Section 1, of Article 20, of the Constitution, the amendment or
amendments proposed shall be submitted to the electors of this State
for adoption or rejection in the manner provided by the election
laws of the State.
Historical: Laws 1899, 162, Sec. 1;
re-enacting Laws 1890-91, 229, Sec. 1.
Cross Reference: Advertisement of
proposed constitutional amendments
Sec. 356. Form of ballot: Sec. 405.
Enrollment and Preservation of Amendments.
Sec. 69. Whenever any amendments to the Constitution shall have
been proposed to and adopted by the electors of this State, as by this
and the preceding sections provided, the same shall be enrolled and
numbered in the order of time in which they may be adopted, and
preserved by the Secretary of State among the public records of his
office.
Historical: Laws 1899, 162, Sec. 2;
re-enacting Laws 1890-91, 229, Sec. 2.
Printing of Legislative Journals.
Sec. 70. Before the assembling of each session of the Legislature,
the Secretary of State shall provide, in the same manner as for other
public printing, for the printing of the journals of the two houses
of the Legislature. They shall be printed in super royal octavo form,
in neat eight-point type, with at least two thousand four hundred
ems in a page, without any unnecessary leads, blank or broken lines
or pages. Three hundred and fifty copies of the said journals shall
be printed daily during the sessions of the Legislature in the same
form as herein provided ; said copies to be bound in pamphlet form
without covers, and the portions of the journal of the Senate shall
precede the portions of the journal of the House of Representatives
in the pamphlets. Said pamphlets shall be placed daily, one on the
desk of each Senator and member of the House of Representatives,
206
PUBLIC OFFICERS
Tit. 2
and one to each head of a department of the State government; and
of those remaining, one-third shall be distributed by the members
of the Senate, under the direction of the secretary of the Senate, and
two-thirds shall be distributed by the members of the House of Rep-
resentatives under the direction of the clerk of the House : Provided,
That as rapidly as possible the usual number of sheets, not exceeding
two hundred and fifty, for the bound and permanent copies of the
said journals, shall be printed and retained for binding at such times
as the indexes therefor are prepared and printed.
Historical: Laws 1907, 327, Sec. 1.
Omitting the clause relating to the
session of 1909, the purposes of which
will have been accomplished at the
time of the submission of these Codes
to the Legislature.
ARTICLE 5.
OPERATION OF LAWS.
Section
71. Statutes and resolutions:
effective.
72. Effect of amendment.
When
Section
73. Repeal of repealing act.
74. Repeal of penal law.
Statutes and Resolutions: When Effective.
Sec. 71. No act shall take effect until sixty days from the end of
the session at which the same shall have been passed except in case
of emergency, which emergency shall be declared in the preamble
or body of the law.
Every joint resolution, unless a different time is prescribed therein,
takes effect from its passage.
Historical: Rev. St. 1887, Sees. 155,
156. The former section is re-
written by the Commissioner to con-
form to Const. Art. 3, Sec. 22.
California Legislation: Same as to
joint resolutions. Statutes take effect
sixty days from passage: Pol. Code
1872, Sees. 323, 324; Deering's
Code, ib.; Kerr's Code, ib.
■Cross Reference: Constitutional pro-
vision: Const. Art. 3, Sec. 22.
Effect of Amendment.
Sec. 72. Where a section or part of a statute is amended, it is
not to be considered as having been repealed and re-enacted in the
amended form; but the portions which are not altered are to be con-
sidered as having been the law from the time when they were enacted,
and the new provisions are to be considered as having been enacted
at the time of the amendment.
Historical: Rev. St. 1887, Sec. 157.
California Legislation; Same: Pol.
Code 1872, Sec. 325; Deering's Code,
ib.; Kerr's Code, ib.
Repeal of Repealing Act.
Sec. 73. No act or part of an act, repealed by another act of the
Legislature, is revived by the repeal of the repealing act without ex-
press words reviving such repealed act or part of an act.
Historical: Rev. St. 18 8 7, Sec. 15:
Ter. Ses. (1875) 858, Sec. 1.
Code 1872, Sec. 328; Deering's Code,
ib.; Kerr's Code, ib.
Repeal of Penal Law.
Sec. 74. The repeal of any law creating a criminal offense does
Ch. 2. Art. 6.
LEGISLATURE — EMPLOYEES
207
not constitute a bar to the indictment and punishment of an act
already committed in violation of the law so repealed, unless the in-
tention to bar such indictment and punishment is expressly declared
in the repealing act.
Historical: Rev. St. 1887, Sec. 159.
Sec. 8 Ter. Ses. (1875) 858, Sec. 2.
California Legislation: Same: Pol.
Code 1872, Sec. 329; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Construction: This section is a
general saving clause to .insure the
punishment of offenders, and pre-
serves in force, in order to attain that
end, statutes providing for the punish-
ment of offenders, which are amended
in such a way as to change or increase
the punishment and which would
otherwise be subject to objection as
ex post facto laws. In re Davis (1899)
6 Ida. 766: 59 Pac. 544.
ARTICLE 6.
EMPLOYEES OF THE LEGISLATURE.
Section
75. Employees of Senate.
Employees of the House.
Compensation of employees.
Duties of employees.
Delivery of bills and papers to
Secretary of State.
Election of officers and em-
ployees.
76.
77.
80.
Section
81. Assistants to aid in copying bills.
82. Removal of officers and em-
ployees.
83. Additional officers and employees.
84. Salary begins when.
Employees of Senate.
Sec. 75. The officers and employees of the Senate shall consist of
one secretary, one assistant secretary, one engrossing clerk, one as-
sistant engrossing clerk, one enrolling clerk, one assistant enrolling
clerk, one journal clerk, one chaplain, one sergeant-at-arms, one com-
mittee clerk, two pages, one doorkeeper and one janitor.
Historical: Laws 189 9, 3, Sec. 1; re-
enacting Laws 1890-91, 5, Sec. 1.
California Legislation: See Pol.
Code 1872, Sec. 245; similar as amend-
ed: Deering's Code, ib.; see Kerr's
Code, ib.
Employees of the House.
Sec. 76. The officers and employees of the House of Representa-
tives shall consist of one chief clerk, one assistant clerk, one enrolling
clerk, one assistant enrolling clerk, one engrossing clerk, one assistant
engrossing clerk, one chaplain, one sergeant-at-arms, one doorkeeper,
two pages, one committee clerk and one janitor.
Historical:. Laws 1899, 3, Sec. 2;
re-enacting laws 1890-91, 5, Sec. 2.
California Legislation: See Pol.
Code 1872, Sec. 246; as amended;
Deering's Code, ib.; further amended;
Kerr's Code, ib.
Compensation of Employees.
Sec. 77. There shall be paid to the several officers and employees
named in this article, for all services rendered by them under the
provisions of this article, the following sums, and no more :
The secretary of the Senate, seven dollars per day.
The assistant secretary of the Senate, six dollars per day.
The chief clerk of the House, seven dollars per day.
The assistant chief clerk of the House, six dollars per day.
All other clerks of the two houses shall receive five dollars per day.
Vol 1-
208
PUBLIC OFFICERS
Tit. 2
The sergeant-at-arms of the Senate and the Sergeant-at-arms of
the House, each, six dollars per day.
The doorkeepers of the Senate and House, each, five dollars per
day.
The messengers, each, three dollars per day.
The pages, each, three dollars per day.
The janitors, each, four dollars per day.
The journal clerks, each, five dollars per day.
The chaplains, each, two dollars per day.
Historical: Laws 18 99, 3, Sec. 3;
re-enacting- Laws 1890-91, 4, Sec. 3.
California Legislation: See Pol.
Code 1872, Sec. 268; as amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Duties of Employees.
Sec. 78. It shall be the duty of the secretary of the Senate to at-
tend each day, call the roll, read the journals and bills, and to copy
or take charge of and superintend all copying necessary to be done
for the Senate.
It shall be the duty of the chief clerk of the House to attend each
day, to call the roll, read the journal and bills, and to copy or take
charge of and superintend all copying necessary to be done for the
House.
It shall be the duty of the assistant secretary of the Senate and
the assistant clerk of the House to take charge of all bills, petitions
and other papers presented to their respective houses, to file and
enter the same in the books provided for that purpose, and perform
such other duties as may be directed by the secretary of the Senate
and chief clerk of the House.
It shall furthermore be the duty of the secretary of the Senate
and chief clerk of the House, to keep a correct record of the proceed-
ings of each day, for the purpose of having such proceedings entered
in the journal by the journal clerks of their respective houses.
It shall be the duty of the journal clerk of the Senate to record
each day's proceedings in the journal, from which they shall be read
by the secretary each day of meeting, in order that they may be
authenticated by the signature of the President.
It shall be the duty of the journal clerk of the House to perform
all similar duties for the House which are required to be performed
by the journal clerk of the Senate.
It shall be the duty of the sergeant-at-arms of the Senate and the
sergeant-at-arms of the House to give a general supervision, under
the direction of the presiding officers, of the Senate and House cham-
bers, with the rooms attached; to attend during the sittings of their
respective bodies, execute their commands, together with all such
proceedings issued by authority thereof, as shall be directed to them
by their presiding officers. They shall receive no other compensation
for their services beyond their per diem, except actual expenses in-
curred in arrests made by them, and for traveling expenses for them-
selves or special messenger, which expenses so incurred shall be naid
from the contingent fund of their respective houses : Provided, That
no messenger shall be employed by any officer of either house unless
expressly authorized so to do by the house of which he is an officer.
Ch. 2. Art. 6.
LEGISLATURE — EM PLOYEES
209
They shall have power to appoint a deputy each on a vote of their
respective houses. It shall be the duty of the deputy sergeant-at-
arms of each house to assist the sergeant-at-arms in the performance
of his duties.
It shall be the duty of the doorkeeper of each house to prohibit
all persons, except members of the Legislature and State officers,
employees and reporters and persons who may, on invitation, be en-
titled to seats, from entering within the bar of the house of which
he is doorkeeper, unless upon invitation, and to arrest for contempt
all persons outside of the bar or in the gallery found engaged in loud
conversation, or otherwise making a noise, to the disturbance of their
respective houses.
It shall be the duty of the janitors to keep the furniture of their
respective houses in good order, to clean and light lamps and perform
such other duties as they may be directed to do, by the President of
the Senate or the Speaker of the House.
It shall be the duty of the chaplains to open the proceedings in
their respective houses with prayer.
Historical: Laws 1899, 3, Sec. 4;
re-enacting Laws 1890-91, 4, Sec. 4.
California Legislation: Similar: Pol.
Code 1872, Sees. 253-260, inclusive;
Deering's Code, ib.; as amended:
Kerr's Code, ib.
Delivery of Bills and Papers to Secretary of State.
Sec. 79. It shall be the duty of the secretary of the Senate and
chief clerk of the House, at the close of each session of the Legislature,
to mark, label and arrange all bills and papers belonging to the
archives of their respective houses, and to deliver the same, together
with all the books of both houses, to the Secretary of State, who shall
certify to the reception of the same ; and upon the production of said
certificate to the State Auditor, the Auditor is authorized and directed
to draw his warrant upon the Treasurer in favor of the above named
parties for the sum of twenty-five dollars each, and the Treasurer is
authorized to pay the same out of any money in the general fund not
otherwise appropriated.
Historical: Laws 18 99, 3, Sec. 5;
re-enacting Laws 1890-91, 4, Sec. 5.
California legislation: Similar
though "same," line 6: Pol. Code
1872, Sec. 261: Deering's Code, ib.;
Kerr's Code, ib.
Review of Clerk's Acts: It is the
duty of the clerk to make up such
records as he deems proper to be de-
livered to the Secretary and to deliver
the same. If he has done this, it will
be presumed that he has done it cor-
rectly, and the Supreme Court will not
entertain, by mandamus proceedings,
the question whether the papers so
delivered to the Secretary are correct
or not. Burkhart v. Reed (1889) 2
Ida. 503; 22 Pac. 1.
Election of Officers and Employees.
Sec. 80. All officers and employees of the Senate and House pro-
vided for in this article shall be elected by the Senate and House, re-
spectively.
Historical: Laws 1899, 3, Sec. 6;
re-enacting Laws 1890-91, 4, Sec. 6.
California Legislation: Similar: Pol.
Code 18 72, Sec. 2 47; additional pro-
vision as amended: Deering's Code,
ib.; Kerr's Code, ib.
Assistants to Aid in Copying Bills.
Sec. 81. The President of the Senate and the Speaker of the House
210
PUBLIC OFFICERS
Tit. 2
may direct the assistant enrolling clerk and the assistant engrossing
clerk to aid in copying bills, messages or other lengthy documents,
when they are not otherwise employed.
Historical: Laws 1899, 3, Sec. 7;
re-enacting Laws 1890-91, 4, Sec. 7.
Removal of Officers and Employees.
Sec. 82. Any of the officers and employees mentioned in this article
may be removed by a two-thirds vote of the members of the house
in which they are connected for failure to perform the duties imposed
upon them by this article, or for incompetency, or for conduct which
shall by each house be deemed improper.
Historical: Laws 1899, 3, Sec. 8;
re-enacting Laws 1890-91, 4, Sec. 8.
Additional Officers and Employees.
Sec. 83. No additional number of officers or employees of the
Senate or House shall be elected or appointed unless on a two-thirds
vote.
Historical: Laws 1899, 3, Sec. 9;
re-enacting Laws 1890-91, 4, Sec. 9.
Salary Begins When.
Sec. 84. The per diem of all officers fixed by this article shall date
from the day on which they shall have been elected and qualified.
Historical: Laws 1899, 3, Sec. 10;
re-enacting Laws 1890-91, 4, Sec. 10.
CHAPTER 3.
EXECUTIVE OFFICERS AND CAPITOL TRUSTEES.
Section
85. State executive officers enumer-
ated.
86. Board of Trustees of Capitol
building.
Section
87. Same: Duties of Board.
88: Same: Appointment of janitor.
89. Same: Nightwatchman.
State Executive Officers Enumerated.
Sec. 85. The executive department shall consist of a Governor,
Lieutenant Governor, Secretary of State, State Auditor, State Treas-
urer, Attorney General and Superintendent of Public Instruction.
Historical: New section by Com-
missioner compiled from Const. Art.
4, Sec. 1. See also Rev. St. 1887, Sec.
170.
California Legislation: See Pol.
Code 1872, Sec. 343; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Board of Trustees of Capitol Buiding.
Sec. 86. The Governor, Secretary of State and State Treasurer
shall constitute a Board of Trustees for the custody and maintenance
of the Capitol building and grounds.
Historical: Rev. St. 1887, Sec. 172,
amended Laws 1899, 6, Sec. 1; re-
enacting Laws 1890-91, 10, Sec. 1.
i
Same: Duties of Board.
Sec. 87. Said Board of Trustees have control of the Capitol build-
Ch. 4.
GOVERNOR
211
ing and grounds with authority to receive, collect and receipt for all
rents for the use of such parts of the building as may be rented by
the State, and fix the amount of such rents, and execute all necessary
leases and agreements. All rents so received must be paid into the
Capitol building fund as provided by Section 38 of the Special and
Local Laws. All bills for fuel, lights and water furnished for, and
for necessary repairs to, the Capitol building must, when approved
and certified by the Trustees, be audited by the Board of Examiners,
and warrants issued therefor, which must be paid by the Treasurer
out of moneys appropriated therefor ; but the Trustees must not make
or erect permanent improvements without special authority of the
Legislature. They must keep the Capitol building insured for not
less than fifty thousand dollars, in good responsible companies, that
have complied with all of the laws of the State relating to fire insur-
ance companies, and the premiums for such insurance must be audited
and paid as aforesaid.
Historical: Rev. St. 1887, Sec. 173,
amended act 15th Ter. Ses. (Laws
1888-89), 14, Sec. 1. Omitting- the
clause in relation to expenses, "not ex-
ceeding in amount the sum of twelve
hundred dollars for any one calendar
year," and changing "not otherwise
appropriated" to "appropriated there-
for" to conform to Const. Art. 7, Sec.
13, which requires specific appropria-
tions. The words "Board of Examin-
ers" are substituted for "Auditor" to
conform to Const. Art. 4, Sec. 18. Also
omitting clause relative to insurance
of State Library, which is superseded
by Laws 1899, 134, Sec. 6 (Code, Sec.
838).
Same: Appointment of Janitor.
Sec. 88. The Trustees shall have power to appoint a competent
person for janitor, at a salary not exceeding seventy-five dollars per
month; the janitor to have direct supervision over the whole building;
take care of all the offices, halls and rooms, except legislative halls
and Supreme Court chambers during sessions; and shall attend to
the warming of the building.
Historical: Rev. St. 1887, Sec. 175.
Omitting last line, "after adjournment
of the Legislature, commencing third
quarter of 1888."
Same: Night Watchman.
Sec. 89. The Trustees are empowered to employ a competent per-
son as night watchman, at a salary not exceeding sixty dollars per
month; the night watchman shall take charge of the building at 8
o'clock P. M. and remain in or around the building until 6 o'clock
a. m. It shall be his duty to watch and guard the premises during
flhe night; to visit every office or -room occupied during the day, at
frequent intervals, and, when necessary, to attend to the steam heater
during the night.
Historical: Rev. St. 1887, Sec. 176.
Act Feb. 9, 1887.
CHAPTER 4.
GOVERNOR.
Section
90. Duties of Governor.
91. Transmission of list of appoint-
ments.
Section
92. Records of Governor's office.
93. Acting Governor to perform the
same duties.
212
PUBLIC OFFICERS
Tit. 2
Duties of Governor.
Sec. 90. In addition to those prescribed by the Constitution, the
Governor has the powers, and may perform the duties, prescribed in
this and the following sections :
1. To supervise the official conduct of all executive and minis-
terial officers.
2. To see that all offices are filled, and the duties thereof per-
formed, or, in default thereof, apply such remedy as the law allows;
and if the remedy is imperfect, acquaint the Legislature therewith at
its next session.
3. To make the appointments and supply the vacancies provided
by law.
4. He is the sole official organ of communication between the
government of this State and the government of any other State or
Territory, or of the United States.
5. Whenever any suit or legal proceeding is pending in this State,
or which may affect the title of this State to any property, or which
may result in any claim against the State, he may direct the Attorney
General to appear on behalf of the State.
6. He may require the Attorney General or prosecuting attorney
of any county to inquire into the affairs or management of any cor-
poration existing under the laws of this State.
7. He may require the Attorney General to aid any prosecuting
attorney in the discharge of his duties.
8. He may offer rewards not exceeding one thousand dollars each,
payable out of the State Treasury, for the apprehension of any convict
who has escaped from the State Prison, or of any person who has
committed, or is charged with the commission of, an offense punish-
able with death ; and also offer like rewards, not exceeding five hun-
dred dollars, each, in cases of felony, where the offense is not punish-
able with death.
9. To perform such duties respecting fugitives from justice as
are prescribed by the Penal Code.
10. To issue and transmit election proclamations as prescribed
by law.
11. He may require any officer to make special reports to him in
writing on demand.
12. He has such other powers and may perform such other duties
as are devolved upon him by any law of this State.
Historical: Rev. St. 1887, Sec. 180,
amended Laws 1899, 135, Sec. 1; re-
enacting Laws 1890-91, 198, Sec. 1.
California Legislation: Similar with
additional provisions: Pol. Code 18 72,
Sec. 380; Deering's Code, ib.; Kerr's
Code, ib.
Cross Reference:. Constitutional
provisions: Term of office, and resi-
dence at the seat of government: Art.
4, Sec. 1. Election: Art. 4, Sec. 2.
Qualifications: Art. 4, Sec. 3. Is com-
mander in chief of militia: Art. 4,
Sec. 4. Supreme executive power
vested in: Art. 4, Sec. 5. To nominate
and appoint certain officers and to fill
vacancies: Art. 4, Sec. 6. Is a mem-
ber of Board of Pardons: Art. 4, Sec.
7. May grant respites or reprieves:
Art. 4, Sec. 7. May require informa-
tion from officers and from managers
of institutions, and transmit messages
to Legislature: Art. 4, Sec. 8. May
convene Legislature in special session:
Art. 4, Sec. 9. To approve or veto
bills passed by Legislature: Art. 4, Sec.
10. Same: Appropriation bills: Art.
4, Sec. 11. Is member of Board of
State Prison Commissioners: Art. 4,
Sec. 18. Also of Board of Examiners:
ib. Also of State Board of Equaliza-
Ch. 4.
GOVERNOR
213
tion: Art. 7, Sec. 12. Also of Board
of Land Commissioners: Art. 9, Sec. 7.
To appoint Commissioner of Immigra-
tion, Labor and Statistics: Art. 13, Sec.
1. To commission militia officers: Art.
14, Sec. 3.
Salary: Sec. 2 74.
Member of Boards: Of State Board
of Canvassers: Sec. 4 50; of State
Board of Equalization: Sec. 1702; of
State Land Board: Sec. 1558; of State
Military Board: Sec. 709; of State
Highway Commission: Sec. 1061; of
Board of Trustees of Industrial Train-
ing School: Sec. 806; of Board of Capi-
tol Building Trustees: Sec. 86. Chair-
man of Board of Examiners: Sec. 144.
Chairman of Board of Prison Com-
missioners: Sec. 8461. President of
Board of Pardons: Sec. 8249. Chair-
man of Trustees of the Soldiers'
Home: Sec. 794.
Appointment of officers: State En-
gineer: Sec. 149; Insurance Commis-
sioner: Sec. 161; Commissioners of
Deeds: Sec. 243; Notaries: Sec. 231;
Fish and Game Warden: Sec. 195;
Bank Commissioner: Sec. 189; State
Veterinary Surgeon: Sec. 1158; Same:
May remove appointee for cause: Sec.
1159; member of Board of Dairy, Pood
and Oil Commissioners: Sec. 1114;
military staff officers: Sec. 685; Labor
Commission: Sec. 1427; Commissioner
of Immigration, Labor and Statistics:
Sec. 1418; Directors of Insane Asylum:
Sec. 752; Directors of North Idaho In-
sane Asylum, Sec. 786; Trustees of
Industrial Training School; Sec. 8 06;
State Board of Health: Sec. 1080;
Trustees of Historical Society: Sec.
848; Livestock Sanitary Board: Sec.
1153; Trustees of Albion Normal
School: Sec. 517; Trustees of Academy
of Idaho; Sec. 546; Regents of Uni-
versity: Sec. 4 86; Trustees of Lewiston
Normal School: Sec. 5 01; Lumber In-
spectors: Sec. 1495; State Grain Com-
mission: Sec. 1478; Board of Examin-
ing Surveyors: Sec. 1401; Board of
Horticultural Inspection: Sec. 1310;
Board of Medical Examiners: Sec.
1341; State Board of Dental Examin-
ers: Sec. 1357; Osteopathic Board:
Sec. 1366; Examiners in Optometry:
Sec. 1374; Board of Pharmacy: Sec.
1385.
Is commander in chief of the mili-
tia: Sec. 684. To Commission Quarter-
master of militia: Sec. 710. To com-
mission regimental staff officers: Sec.
690. Same: Other officers: Sec. 695.
To have printed and distributed copies
of the National Guard law: Sec. 748.
May loan stands of arms and equip-
ments to Grand Army posts: Sec. 750.
To approve discharge of militia offi-
cers: Sec. 705. May call out militia
to suppress invasion or insurrection:
Sec. 739. Reinstatement of members
of militia after dishonorable dis-
charge: Sec. 719.
Duties in relation to deposit of State
funds: Sees. 127, 129, 131, 136. May
examine State Treasury: Sec. 138.
Suspension and removal of State
Treasurer for default reported by
State Examiner: Sec. 187.
Indorsement of bills: Sec. 63. Ap-
proval of bills: Sec. 6 4. Veto of bills:
Sees. 65, 66. Authentication of bills:
Sec. 67. Filing bills disapproved after
adjournment of Legislature: Sec. 67.
Transmission to Legislature of reports
of Commissioner: Sec. 169.
To issue election proclamations:
Sec. 353. To sign certificates of Presi-
dential Electors: Sec. 45 9. To decide
ties in elections to fill vacancies in
Presidential Electors and to notify
persons elected to fill such vacancies:
Sees. 463, 464.
To commission officers: Sec. 265.
To approve bonds of State officers
Sec. 283.
To take possession of State offices in
case of vacancies: Sec. 330.
To fill vacancies in State offices: Sec.
320. Same: In board of county com-
missioners: Sec. 321. To call election
to fill vacancy in Legislature: Sec. 32 5.
Same: In office of Representative in
Congress: Sec. 32 6. To fill vacancies
caused by the temporary absence of
State officers: Sec. 332.
May require advice and impose
duties on State Engineer: Sec. 160.
May inspect Soldiers' Home: Sec.
797.
To pass on estimate of supplies for
State institutions: Sec. 865.
To take action on the report of the
State Examiner: Sec. 177.
To proclaim quarantine of infected
livestock: Sec. 1160. May issue proc-
lamation prohibiting importation of
livestock: Sec. 1184. To procure co-
operation of Bureau of Animal In-
dustry in eradicating contagious dis-
eases of livestock: Sec. 1206.
Appeal to Governor and Attorney
General from action of State Board
of Pharmacy in granting or revoking
a druggist's license: Sec. 1393.
To inquire into the fitness of institu-
tions receiving delinquent children.
Sec. 8334.
May require opinion of Justices of
Supreme Court or Attorney General
on statement of Judge in capital
cases: Sec. 8011. May restore to citi-
zenship any person who has served a
term of imprisonment in the Peni-
tentiary: Sec. 8257. Offer reward for
apprehension of fugitive from justice:
Sec. 8415. To issue warrant for dis-
charge of convict on expiration of
term: Sec. 8507. May order removal
of prisoner from one county jail to
another: Sec. 8546. Issuance of war-
rant for execution :of judgment in
capital case when sentence has been
suspended pending inquiry into sanity:
Sec. 8016: same, in case of pregnancy:
Sec. 8018.
214
PUBLIC OFFICERS
Tit. 2
Transmission of List of Appointments.
Sec. 91. Within ten days after the meeting of the Legislature the
Governor must transmit to it a list of all the appointments made by
him and not before communicated.
Historical Rev. St. 1887, Sec. 181.
California Legislation: See Pol.
Code 1872, Sec. 381; Deering's Code,
ib.; Kerr's Code, ib.
Records of Governor's Office.
Sec. 92. The Governor must cause to be kept the following
records :
1. A register of all applications for pardon or for commutation
of any sentence, With a list of the official signatures and recommenda-
tions in favor of each application.
2. A register of statements in capital cases made to him, with
his action thereon.
3. An account of all his disbursements of State moneys, and of
all rewards offered by him for the apprehension of criminals and
persons charged with crime.
4. A register of all appointments made by him, with date of corn-
commission, names of appointee and predecessor.
5. A record of all persons confined in the State Prison, showing
the name of the convict, his age and general appearance, when and
Where convicted, and of what crime, the time of his sentence, and
when such time expires.
Historical: Rev. St. 18 87, Sec. 182.
California Legislation: Similar: Pol.
Code 1872, Sec. 382; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Applications for
pardon and proceedings thereon: Sec.
8248 et seq. Statements in capital
cases: Sec. 8010. Offering rewards for
fugitives: Sec. 8415.
Acting Governor to Perform the Same Duties.
Sec. 93. Every provision in the laws of this State in relation to the
powers and duties of the Governor and in relation to acts and duties
to be performed by others towards him, extends to the person per-
forming for the time being the duties of Governor.
Historical: Rev. St. 1!
California Legislation:
87, Sec. 183. Code 1872, Sec. 383; Deering's Code,
Same: Pol. ib.; Kerr's Code, ib.
CHAPTER 5.
SECRETARY OF STATE.
Section
94. Custody of records.
95. Duties.
96. Distribution of statutes, etc.
97. Same: Marking books.
98. Same: Expenses, how paid.
Section
99. Fees.
100. Same: Filing articles of eleemo-
synary corporations.
101. Official bonds.
Custody of Records.
Sec. 94. The Secretary of State is charged with the custody :
1. Of all acts and resolutions passed by the Legislature.
2. Of the journals of the Legislature.
3. Of the Great Seal.
Ch. 5.
SECRETARY OF STATE
215
4. Of all books, records, deeds, parchments, maps, and papers,
kept or deposited in his office pursuant to law.
Historical: Rev. St. 1887, Sec. 190.
California Legislation: See Pol. Code
1872, Sec. 407; Deering's Code, ib.;
Kerr's Code, ib.
Custody of Journal: This section
places no obligation upon the Secre-
tary with respect to the legislative
journal except to receive the same
from the clerk and record it. Burk-
hart v. Reed (1889) 2 Ida. 503; 22
Pac. 1.
95. It is the duty of the Secretary of State :
To keep a register of and attest the official acts of the Gov-
Duties.
Sec
1.
ernor.
2. To affix the great seal, with his attestation, to commissions,
pardons, and other public instruments to which the official signature
of the Governor is required.
3. To record in proper books all conveyances made to the State,
and all articles of incorporation filed in his office.
4. To receive and record in proper books the official bonds of all
the officers whose bonds are required to be filed with him.
5. To take and file in his office receipts for all books distributed
by him.
6. To furnish on demand to any person paying the fees therefor
a certified copy of all, or any part, of any law, record, or other in-
strument filed, deposited, or recorded in his office.
7. To present to the Legislature, at the commencement of each
session thereof, a full account of all purchases made and expenses
incurred by him on account of the State.
Historical: Rev. St. 1887, Sec. 191.
Omitting Subd. 6, relative to certifica-
tion of elective officers commissioned
by the Governor, which is now obso-
lete, as the Secretary issues certificates
of election.
California Legislation: See. Pol.
Code 1872, Sec. 408; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Coss Reference: Term of office
and residence at seat of government:
Const. Art. 4, Sec. 1. Election: Art.
4, Sec. 2. Qualifications: Art. 4, Sec.
3. To keep seal of State: Art. 4, Sec.
15. To countersign grants and permis-
sions: Art. 4, Sec. 15. Is member of
Board of State Prison Commissioners:
Art. 4, Sec. 18. Also of Board of Ex-
aminers: Art. 4, Sec. 18. Also of Board
of Kqualization: Art. 7, Sec. 12. Also
of Board of Education: Art. 9, Sec. 2.
of Board of Land Commissioners:
Art. 9, Sec. 7.
Salary: Sec. 274.
Members of Boards: Of State Board
of Canvassers: Sec. 450; of Board of
Prison Commissioners: Sec. 8461. Sec-
retary of Board of Pardons: Sec. 82 49.
Of Board of Capitol Building Trustees :
Sec. 86; of State Land Board: Sec.
of State Board of Equalization:
Sec. 1702; of State Board of Public
Instruction: See. 558; of State Library
Commission: Sec. 672; of State Board
of Dairy Food and Oil Commission-
ers: Sec. 1114. Secretary of Board of
Examiners: Sec. 14 4. Secretary of
Trustees of Soldiers' Home: Sec. 794.
To publish and distribute copies of
election law: Sec. 345. To certify par-
ty emblems to county auditors prior
to elections: Sec. 405. To certify pro-
posed constitutional amendments to
county auditors: Sec. 356. To file and
preserve certificates of nominations
for State and district offices: Sees. 384,
387, 391. To certify to county audit-
ors names of candidates to be voted
for at elections: Sees. 389, 391. To
send special messengers for abstracts
of votes not received within twenty
days after an election: Sec. 451. To
record determinations of State Board
of Canvassers and to issue certificates
of election: Sec. 455. To prepare lists
of and issue certificates to Presidential
Electors: Sec. 459.
To transmit to the Legislature lists
of members elected thereto: Sec. 456:
To preserve and deliver to the presid-
ing officers of the Legislature testi-
mony taken in legislative and State
executive election contests: Sees. 51,
5 4. Preservation of evidence taken in
election contests before the Legisla-
ture: Sec. 57. Authentication of bills
not approved by Governor: Sec. 67.
216
PUBLIC OFFICERS
Tit. 2
Filing bills disapproved and returned
after adjournment of Legislature: Sec.
67. Preservation of amendments to
the Constitution after their adoption.
Sec. 69. Certificate to reception of
bills from Legislature: Sec. 79.
To provide office for State Engineer:
Sec. 150. To file oath of Engineer and
bond: Sees. 151, 152.
To provide office for Insurance Com-
missioner: Sec. 162. To file oath and
bond of Commissioner: Sees. 163, 164.
To provide office for Register of
Land Board: Sec. 1562.
To provide room for Bureau of Im-
migration, Labor and Statistics: Sec.
1418.
To furnish transfer tax book to pro-
bate judge: Sec. 1892.
To distribute reports of officers: Sec.
280.
To file impressions of seals of State
executive officers: Sec. 336.
To attest commissions of officers:
Sec. 265.
To file and record bonds of State
officers: Sec. 283.
To file oaths of State officers: Sec.
272.
To file oaths of Trustees of Lewis-
ton and Albion Normal Schools: Sees.
501, 517.
Filing oath of Commissioner of
Deeds: Sec. 246. Transmission of
commission to appointee: Sec. 248.
Fee for issuing commission: Sec. 249.
To file bond of State Examiner: Sec.
170.
To file appointments to fill vacan-
cies: Sec. 328.
To file bond and warrant of Water-
Commissioner: Sec. 3272.
To take possession of office of Au-
ditor, of Superintendent of Public In-
struction or of State Treasurer in case
of vacancy and absence of Governor:
Sec. 330.
To pass on estimate of supplies for
State Institutions: Sec. 865.
Duties in relation to deposit of State
funds: Sees. 127, 129, 131, 136.
Filing affidavit of paid-up capital by
guaranty, title and trust companies:
Sec. 2963.
Filing resolution of shareholders of
guaranty, title and trust company
adopting the law governing such com-
panies: Sec. 2962. Filing articles or
surety companies: Sec. 2939.
Filing articles of mutual livestock
insurance companies: Sec. 2925.
Issuance of certificate to mutual co-
operative insurance companies: Sec.
2906.
To file certified copy of order estab-
lishing drainage districts: Sec. 2448.
Fee for incorporation of water
users' association: Sec. 2 842.
Record of articles of incorporation:
Sec. 2721. Issuance of certificate of
incorporation: Sec. 2719.
Issuance of Notarial commission:
Sec. 233. Issuance of duplicate certifi-
cate to Notary the county of whose
residence has been changed: Sec. 2 35.
To file description of seal of Bank
Commissioner: Sec. 193.
To record labels, trade marks, etc.:
Sec. 1451. Fee for recording trade
marks and labels and for issuing cer-
tificates thereof: Sec. 1451.
Record of contract for the condi-
tional sale of railway equipment: Sec.
2828. Fee for recording contract for
the conditional sale of railway equip-
ment: Sec. 2828.
To notify prosecuting attorney of
failure of officers to make reports and
to accept deposit of fines collected for
the benefit of the general school fund:
Sec. 281.
Distribution of Statutes, Etc.
Sec. 96. Immediately after the laws, resolutions, and journals are
bound, the Secretary of State must distribute the same as follows :
1. To each department of the government at Washington and
of the government of this State, one copy.
2. To the library of Congress and the State Library, two copies
each.
3. To each of the States and Territories, one copy.
4. To our Senators and Representatives in Congress, and to each
of the Judges of the Supreme Court of this State, one copy.
5. To each member of the Legislature, at the session when such
laws and journals were adopted, one copy.
6. Of the laws alone, to the auditor of each county, in the cheap-
est and most expeditious manner, to be by the sheriff distributed
under the directions of the auditor, one copy for the board of com-
missioners, one copy to each county officer and each justice of the
peace.
Ch. 5.
SECRETARY OF STATE
217
Historical: Rev. St. 188 7, Sec. 192.
California Legislation: See Pol. Code
1872, Sec. 409; Deering's Code,
as amended: Kerr's Code, ib.
ib.
Same: Marking Books.
Sec. 97. The Secretary must indelibly mark each book distributed
to officers in this State (except legislative officers) with the name of
the county to which, and the official designation of the officer to whom,
it is sent. Such books remain the property of the State, and must be,
by the officers receiving them, delivered to their successors.
Historical: Rev. St. 1887, Sec. 194.
Omitting- the words "and the Re-
porter" in the parenthesis, which is
obsolete under the repeal of Rev. St.
Sec. 193, by Laws 1903, 367, Sec. 5.
(Codes, Sec. 226.)
California Legislation : Same: Pol.
Code 1872, Sec. 411; Deering's Code,
ib.; Kerr's Code, ib.
Same: Expenses, How Paid.
Sec. 98. The expenses incurred by him, in carrying into effect the
provisions of the two preceding sections, must be audited by the Board
of Examiners and paid out of any moneys specially appropriated for
that purpose.
California Legislation: See Pol. Code
1872, Sec. 414; Deering's Code, ib.;
Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 195.
Changing "three" sections to "two"
for the reasons stated in the historical
note to the preceding section. "Comp-
troller" changed to "Board of Examin-
ers" to conform to Const. Art. 4, Sec.
18.
Fees.
Sec. 99. The Secretary of State, for services performed in his
office, shall charge and collect the following fees:
For a copy of any law, resolution, record or other document or
paper on file in his office, 20 cents per folio.
For affixing certificate and seal of the State, $1.00.
For filing articles of incorporation :
(a) When the authorized capital stock does not exceed
$25,000.00 $ 10.00
(b) When the authorized capital stock exceeds $25,000.00
and does not exceed $50,000.00 20.00
(c) When the authorized capital stock exceeds $50,000.00
and does not exceed $100,000.00 40.00
(d) When the authorized capital stock exceeds $100,-
000.00 and does not exceed $500,000.00 60.00
(e) When the authorized capital stock exceeds $500,-
000.00 and does not exceed $1,000,000.00 | 100.00
(f) When the authorized capital stock exceeds $1,000,-
000.00 150.00
For filing certificates of increase of capital stock there shall be
charged the fee hereinbefore prescribed for the total capitalization
of the corporation, less the amount already paid for filing the original
articles of incorporation.
For filing certificates of all other changes in articles of incorpora-
tion prescribed by law, $5.00.
218
PUBLIC OFFICERS
Tit. 2
For issuing each certificate of incorporation, or qualification, or
increase or decrease in capital stock, $3.00.
For receiving and recording each official bond, 20 cents per folio.
For each commission, or other document signed by the Governor
and attested by the Secretary (pardons excepted), $5.00.
For searching records and archives of the State, $1.00.
But no member of the Legislature or State officer can be charged
for any search relative to matters appertaining to the duties of their
offices ; nor must they be charged any fee for a certified copy of any
law or resolution passed by the Legislature relative to their official
duties.
For recording and indexing all papers and documents required
by law to be recorded, 20 cents per folio.
For filing and indexing any map or other paper where the fee
for the same is not already fixed by law, $2.00.
For filing, recording and indexing designation of agent for foreign
corporations, $2.00.
For searching Legislative Journals for records of enacted and
re-enacted laws, and certifying to the same, $5.00.
For certifying and attaching certificate to any State law, pub-
lished in pamphlet form, which shall include comparing the same with
the enrolled act, $3.00.
For any other certificate required of the Secretary of State, the
fee for which is not hereinbefore prescribed, $3.00.
For filing, recording and indexing any label or trademark, $3.00.
For all services not hereinbefore provided for, such fees therefor
as may now be prescribed by law.
All fees must be paid in advance.
Historical: Laws 1901, 141, Sec.
196; amended Laws 1907, 215, Sec. 1.
California Legislation: See Pol. Code
1872, Sec. 416; as amended: Deering's
Code, ib.; further amended: Kerr's
Code, ib.
Same: Filing Articles of Eleemosynary Corporations.
Sec. 100. The Secretary of State shall charge and collect from
each fraternal, religious, or eleemosynary society or organization, or
any other society or organization not having capital stock and not
organized for the purpose of profit, a fee of five dollars for filing arti-
cles of incorporation and issuing certificate of incorporation to such
society or organization, and twenty cents per folio for recording, and
he shall make no other charge, and collect no other fee, for filing, and
for his certificate issued to such corporation.
Historical: Laws 1907, 451, Sec. 1.
Official Bond.
Sec. 101. The Secretary of State must execute an official bond to
the State, in the sum of two thousand dollars, and must receive no fees
under the laws of the State until such bond, approved by the Governor,
is filed with the Auditor.
Historical: Rev. St. 1887. Sec. 19 7.
California Legislation: See Pol.
Code, Sec. 423; Deering's Code, ib.;
Kerr's Code, ib.
Ch. 6.
STATE AUDITOR
219
CHAPTER 6.
STATE AUDITOR.
Section
102. Duties of Auditor.
103. Same: Certificate of settlement.
104. Same: Account of school fund.
105. Warrants: How drawn.
106. Lost Warrants: Issuance of du-
plicates.
107. Proceedings against defaulters.
108. Printing of blanks.
109. Claims against the State.
110. Vouchers and accounts pre-
served.
Section.
111. Appropriation necessary to au-
thorize warrant.
112. Auditor to report delinquent
collectors.
113. Inspection of books by Legisla-
ture.
114. Seal of office.
115. Official bond.
116. Appointment of deputy.
Duties of Auditor.
Sec. 102. It is the duty of the Auditor:
1. To superintend the fiscal concerns of the State.
2. To report to the Governor on or before the first day of De-
cember preceding each regular session of the Legislature, a state-
ment of the funds of the State, its revenues, and of the public ex-
penditures during the two preceding fiscal years, together with a
detailed estimate of the expenditures to be defrayed from the Treasury
for the two ensuing fiscal years, specifying therein each object of
expenditure, and distinguishing between such as are provided for
by permanent or temporary appropriations and such as must be pro-
vided for by a new statute, and suggesting the means from which
such expenditures are to be defrayed.
3. To accompany his biennial report with tabular statements,
showing: 1. The amount of each appropriation for the two preceding
fiscal years, the amounts expended, and the balance, if any. 2. The
amount of revenue chargeable to each county for such years, the
amount paid, and the amount unpaid or due therefrom.
4. When requested, to give information in writing to either house
of the Legislature relating to the fiscal affairs of the State or the
duties of his office.
5. To suggest plans for the improvement and management of the
public revenues.
6. To keep and state all accounts in which the State is interested.
7. To keep an account of all warrants drawn upon the Treasurer,
and a separate account under the head of each specified appropriation,
showing at all times the unexpended balance of such appropriation.
8. To keep an account between the State and the Treasurer, and
therein charge the Treasurer with the balance in the Treasury when
he came into office, and with all moneys received by him, and credit
him with all warrants drawn on and paid by him.
9. To keep a register of warrants, showing the fund upon which
they are drawn, the number, in whose favor, for what service, the
appropriation applicable to the payment thereof, when the liability
accrued, and a receipt from the person to whom the warrant is de-
livered.
10. To examine and settle the accounts of all persons indebted
to the State, and to certify the amount to the Treasurer, and upon
220
PUBLIC OFFICERS
Tit. 2
the presentation and filing of the Treasurer's receipt therefor to
give such person a discharge and charge the Treasurer therewith.
11. In his discretion to require any person presenting an account
for settlement to be sworn before him, and to answer, orally or in
writing, as to any facts relating to it.
12. To require all persons who have received any moneys be-
longing to the State and have not accounted therefor to settle their
accounts.
13. To direct and superintend the collection of all moneys due
the State, and institute suits in its name for all official delinquencies
in relation to assessment, collection and payment of the revenue, and
against persons who by any means have become possessed of public
money or property and fail to pay over or deliver the same, and
against all debtors of the State, of which suits the courts of Ada
County have jurisdiction, without regard to the residence of the
defendants.
14. To draw warrants on the Treasurer for the payment of
moneys directed by law to be paid out of the Treasury; but no war-
rant must be drawn unless authorized by law. Every warrant must
be drawn upon the fund out of which it is payable, and specify the
service for which it is drawn, and when the liability accrued.
15. To furnish the State Treasurer with a list of warrants drawn
upon the Treasury.
16. To have printed and forwarded to the treasurer of each
county blank State licenses.
17. To authenticate with his official seal all drafts and warrants
drawn by him, and all copies of papers issued from his office.
Historical: Rev. St. 1887, Sec. 205.
See 3 Ter. Ses. (1886) 190, Sees. 3, 4.
Subd. 1 modified by inserting after
"Governor" in line 1, the words "on or
before the first day of December" in
place of "at least twenty days" to con-
form to Laws 1903, 149 (Codes Sees.
279-281). Subd. 10 omitted because
superseded by Const. Art. 4. Sec. 18,
creating- the Board of Examiners.
Subd. 21 omitted because imposing- a
duty in connection with Rev. St. Sec.
146 2, which was repealed by Laws
1899, 254. Subds. 14 and 15 omitted
because covered by the State exam-
iner law, Laws 1905, 386 (Codes, Sees.
170-188.)
California Legislation: Similar:
Pol. Code 1872, Sec. 433; Deering's
Code, ib.; Kerr's Code, ib.
Cross Reference: Report: Const.
Art. 4, Sec. 17; also as to printing the
report: Sees. 279-281 post.
Constitutional Provisions: Term of
office and residence at seat of govern-
ment: Const. Art. 4, Sec. 1. Election:
Art. 4, Sec. 2. Qualifications: Art. 4,
Sec. 3. Member of State Board of
Equalization: Art 7, Sec. 12.
Salary: Sec. 274.
Member of Boards: Of State Board
of Equalization: Sec. 1702; of State
Board of Canvassers: Sec. 450.
Is ex-officio recorder of brands:
"ec. 1227.
To draw no warrants disapproved
by the Board of Examiners: Sec. 147.
Duties relating to revenue: To have
blank licenses printed and transmit
the same to the county treasurer, and
to hold the county officers responsible
for licenses not accounted for: Sees.
1828, 1829, 1833. Duties with ref-
erence to transfer taxes: Sees. 1873-
1897. Settlements with county offi-
cers for taxes collected: Sees. 1795-
1803. To have assessment book print-
ed: See. 1718. To have tax receipts
printed if required by the county com-
missioners and supply same to asses-
sors: Sees. 1734-1735. To have as-
sessment rolls printed: Sec. 1726. To
have printed and furnished to the as-
sessors blank statements for taxpay-
ers: Sec. 1684. May examine books
of officers charged with collection of
revenue: Sec. 1825. To prosecute
delinquent revenue officials and for
that purpose may emplov counsel:
Sees. 1826, 1827.
Duties with reference to deposit of
State funds: Sees. 128, 129, 135.
Duplicate receipts for license money
collected from surety companies to be
filed with State Auditor: Sec. 2942.
Transfer to general fund of unex-
Ch. 6.
STATE AUDITOR
221
pended balances in special funds: Sec.
120.
To certify to money received in the
Treasury: Sec. 118.
To take possession, with the Secre-
tary of State, of the office of State
Treasurer in case of vacancy and ab-
sence of Governor: Sec. 330.
To assist State Examiner: Sec. 178.
To issue subpoenas for officers fail-
ing to make reports or transmit funds:
Sec. 281a.
Same: Certificate of Settlement.
Sec. 103. The certificate mentioned in Subdivision 10, of Section
102, must show by whom the payment is to be made, the amount
thereof, and the funds into which it is to be paid, and must be
numbered in order, beginning with number one at the commence-
ment of each fiscal year.
Historical: Rev. St. 188 7, Sec. 206.
Subd. "11" changed to subd. "10" to
conform to changes in preceding sec-
tions.
California Legislation : Same except
"Section 433" for "Section 102" line
2: Pol. Code 1872, Sec. 434; Deer-
ing's Code, ib.; Kerr's Code, ib.
Cited: Steunenberg v. Storer (1898)
6 Ida. 44; 52 Pac. 14.
Same: Account of School Fund.
Sec. 104. The Auditor must keep a separate account of the school
fund, and of the interest and income thereof, together with such
moneys as may be raised by special tax or otherwise for school
purposes.
Historical: Rev. St. 1887, Sec. 207.
California Legislation: Same except
"Controller" for "Auditor," with ad-
ditional provisions: Pol. Code 1872,
Sec. 435; Deering's Code, ib.; as
amended: Kerr's Code, ib.
Warrants, How Drawn.
Sec. 105. All warrants for claims which have been filed in his office
must be drawn in the order of their allowance.
Historical: Rev. St. 1887, Sec. 2 08.
Omitting "audited by (him)" as now
obsolete under Const. Art. 4, Sec. 18,
creating the Board of Examiners.
California Legislation: Similar:
Pol. Code 1872, Sec. 436; Deering's
Code, ib.; Kerr's Code, ib.
Lost Warrants: Issuance of Duplicates.
Sec. 106. In case of the loss or destruction of any warrant here-
tofore issued or that may be issued by the Auditor of the State of
Idaho, in payment of any claim against the State of Idaho, the State
Auditor is hereby authorized to issue his duplicate warrant to take
the place of the warrant so lost or destroyed, upon satisfactory proof
by affidavit of the loss of the said warrant: Provided, That in case
of the issuance of any such duplicate warrant, the Auditor shall re-
quire an indemnity bond of not less than double the amount of the
warrant lost, conditioned upon the payment to the State of Idaho
of any loss or damage or obligation by reason of the said lost war-
rant becoming a claim against the State ; and, Provided further, That
it shall be the duty of the State Auditor to notify the State Treasurer
of the issuance of the said duplicate warrant so that payment may
be stopped upon the warrant so lost.
Historical: Laws 1907, 348, Sec. 1.
Proceedings Against Defaulters.
Sec. 107. Whenever any person has received moneys, or has money
or other personal property which belongs to the State, or has been
222
PUBLIC OFFICERS
Tit. 2
intrusted with the collection, management, or disbursement of any
moneys, bonds, or interest accruing therefrom, belonging to, or held
in trust by, the State, and fails to render an account thereof to, and
make settlement with, the Auditor within the time prescribed by law,
or, When no particular time is specified, fails to render such account
and make settlement, or who fails to pay into the State Treasury any
moneys belonging to the State, upon being required so to do by the
Auditor, within twenty days after such requisition, the Auditor must
state an account with such person, charging twenty-five per cent
damages, and interest at the rate of ten per cent per annum from
the time of failure; a copy of which account in any suit therein is
prima facie evidence of the things therein stated. But in case the
Auditor cannot, for want of information, state an account, he may,
in any action brought by him, aver that fact, and allege generally
the amount of money or other property which is due to or which
belongs to the State.
Historical: Rev. St. 1887, Sec. 2 09.
California Legislation: Similar to
last sentence, which is omitted: Pol.
Code 1S72, Sec. 437; simila> as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Damages — When Imposed: The
damages imposed by this section are
intended as a penalty for wilful dere-
liction or refusal of an officer to ac-
count for moneys which he receives,
and will not be imposed where there
is no design of the officer to avoid
his duty or misinterpret the laws to
his own advantage, and he has acted
on the advice of the Attorney Gen-
eral. Anderson v. Lewis (1898) 6
Ida. 51; 52 Pac. 163.
Printing of Blanks.
Sec. 108. The State Auditor must, on the first day of August in
each year, advertise that he will receive sealed proposals for con-
tracts, for the printing and delivery at the Auditor's office in Boise
City, of all blanks required by said office during the year next ensuing,
and such notice must state the date for delivery of such blanks. A
description and schedule must be made out, and kept by the Auditor
in his office for the inspection of any person desirous of making
proposals for the printing of the same. Said notice must be published
in two newspapers, published in the State, at least once a week, for
at least four successive weeks, and must state the time that all
proposals will be opened. The proposals must be publicly opened
and the award made to the lowest bidder, at the office of the Auditor
by the State Treasurer and Auditor, on the day and hour named in
the notice, which must be within five days from the last publication ;
and the blanks must be delivered within sixty days. after the award;
but this section does not authorize the expenditure of more than one
thousand dollars in any one year. The person to whom the contract
is awarded must, within ten days thereafter, file with said Auditor
a bond in the sum of two thousand dollars, with at least two good
and sufficient sureties, to be approved by the Auditor, and conditioned
for the faithful performance of his contract in accordance with the
terms thereof. And if he fails or refuses to give such bond, the
contract must be awarded to the next lowest bidder, or the Auditor
may advertise for other proposals as he may think best. All blanks
of every description, required to be furnished by the Auditor, under
any of the laws of the State, must be printed under a contract in
Ch. 6.
STATE AUDITOR
223
accordance with the provisions of this chapter, and not otherwise;
and no warrant must be drawn by the Auditor upon the State Treas-
urer for any sum for printing, except as herein provided.
Historical: Rev. St. 1887, Sec. 210.
See 6 Ter. Ses. (1871) 46, Sees. 1, 2,
3; first section amended by 7 Ter. Ses.
(1873) 53, Sec. 1, and 9 Ter. Ses.
(1877) 40, Sec. 1.
(Cross Reference: Public printing- to
be done in the State: Sees. 1474-1476.
Claims Against the State.
Sec. 109. All persons having claims against the State must exhibit
the same, with the evidence in support thereof, to the Auditor, to be
audited, settled and allowed by the Board of Examiners, within two
years after such claim shall accrue, and not afterward. In all suits
brought in behalf of the State, no debt or claim must be allowed
against the State as a set-off but such as have been exhibited to the
Auditor, and allowed or disallowed by the Board of Examiners except
only in cases where it is proved to the satisfaction of the court that
the defendant, at the time of the trial, is in possession of vouchers
which he could not produce to the Auditor, or that he was prevented
from exhibiting the clami to the Auditor by absence from the State,
sickness, or unavoidable accident. No claim which is not provided for
by law shall be audited or set off.
Historical: Rev. St. 18 87, Sec. 211.
See 3 Ter. Ses. (1866) 90, Sec. 7.
Re-written to conform to Const. Art.
4, Sec. 18, creating the Board of Ex-
aminers.
Cross Reference: Board of Exami-
ners: Const. Art. 4, Sec. 18; also Sees.
144-148 post.
Vouchers and Accounts Preserved.
Sec. 110. All accounts, vouchers, and documents settled, or to be
settled, by the Auditor or Board of Examiners must be preserved in
his office, and copies thereof, authenticated by the official seal of the
Auditor, shall be given to any person interested therein who requires
the same.
Historical: Rev. St. 1887, Sec. 213.
3 Ter. Ses. (1866) 190, Sec. 9, Words
"or Board of Examiners" inserted on
the authority of Const. Art. 4, Sec. 18.
Appropriation Necessary to Authorize Warrant.
Sec. 111. In all cases of specific appropriations, salaries, pay and
expenses, ascertained and allowed by law, found due to individuals
from the State, when audited, the Auditor must draw warrants upon
the Treasury for the amount; but in cases of unliquidated accounts
and claims, the adjustment and payment of which are not provided
for by law, no warrants must be drawn by the Auditor, or paid by
the Treasurer, until appropriation is made by law for that purpose,
nor must the whole amount drawn for and paid for any purpose or
under any one appropriation ever exceed the amount appropriated.
Historical: Rev. St. 1887, Sec. 214.
See 3 Ter. Ses. (1866) 190, Sec. 10.
Cross Reference: No money shall
be drawn from the Treasury except
pursuant to appropriation: Const. Art.
7, Sec. 13.
Cited:. King-sburv v. Anderson
(1898) 5 Ida. 771; 51 Pac. 744.
Auditor to Report Delinquent Collectors.
Sec. 112. The Auditor must report to the Legislature, within ten
224 PUBLIC OFFICERS Tit. 2
days after the commencement of each regular session, a list of all
the collectors of revenue, and other holders of public money, whose
accounts remain unsettled for six months after they ought to have
been settled according to law, and the reasons therefor.
Historical: Rev. St. 1887, Sec. 217.
3 Ter. Ses. (1866) 190, Sec. 13.
Inspection of Books by Legislature.
Sec. 113. All the books, papers, letters, and transactions pertain-
ing to the office of the Auditor are open to the inspection of a com-
mittee of the Legislature, or either branch thereof, who shall examine
all the Auditor's accounts.
Historical: Rev. St. 1887, Sec. 219.
3 Ter. Ses. (1866) 190, Sec. 15.
Seal of Office.
Sec. 114. The Auditor must keep a seal of office, for the authenti-
cation of all papers, writings, and documents required by law to be
certified by him, and copies so authenticated and certified, of all
papers and documents lawfully deposited in his office, must be re-
ceived in evidence as the original.
Historical: Rev. St. 1887, Sec. 220.
3 Ter. Ses. (1866) 190, Sec. 17.
Official Bond.
Sec. 115. The Auditor must execute an official bond in the sum
of ten thousand dollars.
Historical: Rev. St. 1887, Sec. 222. Code 1872, Sec. 442; Deering's Code,
California Legislation: Sec. Pol. ' ib'> Kerr's Code, ib.
Appointment of Deputy.
Sec. 116. The Auditor may appoint a deputy who shall receive no
compensation as deputy.
Historical: Last part of Rev. St.
1887, Sec. 218, re-written. The sal-
ary of the deputy is payable out of
tho appropriation for clerical assist-
ance found in the general appropri-
ation bills.
CHAPTER 7.
STATE TREASURER.
/Vri'Cie
1. Duties in general.
2. Funds and warrants.
Article
3. Deposit of State funds.
4. Miscellaneous provisions.
ARTICLE 1.
DUTIES IX GENERAL.
Section
117. Duties of Treasurer.
118. Money to be' accompanied by
certificate.
Section
118a. Money to be kept in vault.
Duties of Treasurer.
Sec. 117. It is the duty of the Treasurer:
Ch. 7. Art. 1.
STATE TREASURER — DUTIES
225
1. To receive and keep all moneys belonging to the State not
required to be received and kept by some other person.
2. To file and keep the certificates of the Auditor delivered to
him when moneys are paid into the Treasury.
3. To deliver to each person paying money into the Treasury a
receipt showing the amount, the sources from which the money ac-
crued, and the funds into which it is paid, which receipts must be
numbered in order, beginning with number one at the commencement
of each fiscal year.
4. To pay warrants drawn by the Auditor out of the funds upon,
and in the order in, which they are drawn.
5. Upon payment of any warrant, to take upon the back thereof
the receipt of the person to whom it is paid, and file and preserve
the same.
6. To keep an account of all moneys received and disbursed.
7. To keep separate accounts of the different funds.
8. To report to the Auditor, on the last day of each month, the
amount disbursed for redemption of bonds and in payment of war-
rants during the month ; which report must show the date and number
of such bonds and warrants, the funds out of which they were paid,
and the balance of cash on hand in the Treasury to the credit of each
fund.
9. At the request of either house of the Legislature, or any com-
mittee thereof, to give information in writing as to the condition
of the Treasury or upon any subject relating to the duties of his office.
10. To report to the Governor at the time prescribed in this
Code, the exact balance in the Treasury to the credit of the State,
with a summary of the receipts and payments of the Treasury during
the two preceding fiscal years.
11. To authenticate with his official seal all writings and papers
issued from his office.
12. To discharge such other duties as may be imposed upon him
by law.
Historical:. Rev. St. 1887, Sec. 230.
See 2 Ter. Ses. (1864) 415, Sec. 2.
California Legislation: Similar
but "Controller" for "Auditor"
throughout: Pol. Code 1872, Sec. 452;
Deering's Code, ib.; Kerr's Code, ib.
Cross Reference: Term of office:
Const. Art. 4, Sec. 1. Residence at
seat of government: Ib. Qualifica-
tions: Art. 4 Sec. 3. Election: Art.
4, Sec. 2. Member of Board of Equal-
ization: Art. 7, Sec. 12. Is custodian
of school fund: Art. 9, Sec. 3.
Salary: Sec. 2 74.
Member of Boards: Of State Board
of Canvassers: Sec. 450; of State
Board of Equalization: Sec. 1702; of
Board of Capitol Building Trustees:
Sec. 86; is ex-officio Treasurer of
Board of Trustees of Lewiston Nor-
mal School: Sec. 502; is ex-officio
Treasurer of Board of Trustees of
Academy of Idaho; Sec. 548; is ex-
officio Treasurer of Board of Trustees
of Albion Normal School: Sec. 519; is
Treasurer of State Highway Commis-
sion: Sec. 1063; is ex-officio Treasurer
of Board of Trustees of Industrial
Training School: Sec. 808; is ex-of-
ficio Treasurer of Board of Trustees
of North Idaho Insane Asylum: Sec.
787.
Deposit of securities by surety com-
panies; Sec. 2939.
Payment to Treasurer of license
fees collected from insurance com-
panies: Sec. 2942.
Revocation of authority of insur-
ance companies for failure to pay
judgment of fine incurred by violation
of law requiring insurance poli-
cies to be countersigned by resident
agents: Sec. 2879.
Award of contracts for printing
supplies for Auditor's office: Sec. 108.
To take charge of unclaimed pro-
ceeds of sale of floating timber: Sec.
870.
To take possession of office of Sec-
retary of State in case of vacancy
226
PUBLIC OFFICERS
Tit. 2
and absence of Governor: Sec. 330.
To keep papers and securities be-
longing to Land Board: Sec. 1367.
To assist State Examiner: Sec. 178.
Duties in collection of transfer tax:
Sees. 1873-1897.
To issue subpoenas for officers fail-
ing to make reports or transmit funds:
Sec 281a.
Settlements with county officers for
ta\tG collected: Sees. 1795-1803.
n'o report for fees paid over by
the clerk of the Supreme Court: Sec.
220.
To deposit fees of officers: Sec. 274.
To audit salary of Auditor: Sec. 274.
To pay no warrant until appropria-
tion is made: Sec. 111.
To stop payment on lost warrants:
Sec. 106.
Money to Be Accompanied by Certificate.
Sec. 118. He must receive no money into the Treasury unless ac-
companied by the certificate of the Auditor.
Historical: Rev. St. 1887, Sec. 231.
California L/egislation : Same except
"Controller" for "Auditor," and with
cidditional provisions: Pol. Code 1872.
Sec. 453; Deering's Code, ib.; Kerr's
Code, ib.
Money to Be Kept in Vault.
Sec. 118a. All State moneys in the custody of the State Treasurer
not otherwise deposited as is or may be by law provided, shall be
kept in the vault and safe as provided for that purpose in the Capitol
building and in no other place. A violation of this section shall sub-
ject the State Treasurer, upon conviction thereof, to pay a fine of
not less than five thousand dollars nor more than ten thousand dollars,
or to imprisonment in the State Prison for a period of not less than
one nor more than ten years, or to both such fine and imprisonment.
Historical: Laws 1905, 31, Sec. 1;
re- written so as to omit portion re-
quiring capiiol trustees to furnish a
vault and safe and making an appro-
priation therefor, the purposes of
which have been fulfilled.
ARTICLE 2.
FUNDS AND WARRANTS.
Section
119. General fund defined.
1 masters to general fund.
Same: Revenues temporarily
diverted.
Apportionment of forest reserve
funds.
120.
12 I.
122.
Section
12 3. Payment of warrants.
124. Payment in part.
12 5. Unpaid warrants: Interest.
12 6. Refusal to pay warrants.
General Fund Denned.
Sec. 119. The general fund consists of moneys received into the
Treasury and not specially appropriated to any other fund.
Historical: Rev. St. 1887, Sec. 232.
California Legislation: Same: Pol.
Code 18 72, Sec. 45 4; Deering's Code,
ib; Kerr's Code, ib.
Cited: Steunenberg v. Storer (1898)
6 Ida. 44; 52 Pac. 14.
Transfers to General Fund.
Sec. 120. Whenever there shall be or remain in any special or
temporary fund created or established by or under any law of the
State of Idaho, a surplus or unexpended balance after the purpose
or purposes for which such special or temporary fund was provided
shall have been fully accomplished, the State Auditor and State Treas-
urer are hereby authorized, directed and Required to transfer
Ch. 7. Art. 2. state treasurer — funds and warrants 227
such surplus or unexpended balance, from the fund in which the
same shall be or remain to the general fund of the State.
Historical: Laws 1905, 219, Sec. 1.
Same: Revenues Temporarily Diverted.
Sec. 121. Whenever revenues are diverted from the general fund
of the State, in order to provide a special or temporary fund for a
particular purpose or a number of purposes, and such purpose or
purposes shall have been fully accomplished, such diversion shall
cease, and thereafter such revenues shall accrue to the general fund
as they did prior to the time when such diversion was authorized and
required.
Historical: Laws 1905, 219, Sec. 2.
Apportionment of Forest Reserve Funds.
Sec. 122. It shall be the duty of the State Treasurer to receive
any and all moneys paid or offered to be paid to him as such Treasurer
by the Treasurer of the United States on account of the moneys re-
ceived from such forest reserve, under and by virtue of the act of
Congress of June 30, 1906, and to keep a separate account of the
sums received from each reserve, and to apportion the distributive
shares of the same among the several counties in which such forest
reserves are situated in proportion to the area of such reserve in
such county, and to pay the same over to the several county treasurers
of such counties at least once in each and every year, and as soon
after the same is received as such apportionment can be made.
As soon as any of said moneys are received by the county treas-
urer, he shall apportion the same as follows. Seventy-five per cent
thereof to the general road fund of the county, to be used in the
construction and repair of roads and bridges in the county, under
the direction of the county commissioners of the county, giving the
preference, when other conditions are equal, to roads and bridges in
the reserves whenever and wherever the same are most needed, and
twenty-five per cent thereof to the general common school fund of
the county, to be used in the construction, support and maintenance
of public school houses and schools in such county according to the
school laws.
Historical: Laws 1907, 162, Sees.
1, 2.
Payment of Warrants.
Sec. 123. The State Treasurer must pay warrants on any of the
several funds in his office in their regular order, as prescribed by law.
Historical: Rev. St. 1887, Sec. 235.
6 Ter. Ses. (1871) 41, Sec. 1.
Payment in Part.
Sec. 124. When any warrant is presented for payment and there
is not money on hand to pay the Warrant in full, the Treasurer must
pay to the holder thereof such sums only as may be in the fund upon
which the warrant is drawn, and divide the warrant, retaining that
portion on which the number of the warrant is, and require the owner
228 PUBLIC OFFICERS Tit. 2
of the warrant to receipt for the amount received, on the back of
said portion; the other part of the warrant must be returned to the
owner thereof, with the following indorsement on the back: No. (in
figures) ; number of warrant written; total amount of warrants to
date; amount paid on warrant; balance due on warrant on the date
of partial payment; date of partial payment; name of Treasurer.
And said portion of warrant, so indorsed, constitutes a charge against
the fund on which it was originally drawn for the amount of the
balance as shown by the indorsement, and is payable out of the first
money in said fund; and the above provided division of any warrant
in no way destroys its validity; but nothing in this chapter must be
construed as allowing the payment of interest on interest.
Historical: Rev. St. 1887, Sec. 236.
6 Ter. Ses. (1871) 41, Sec. 2.
Unpaid Warrants: Interest.
Sec. 125. It is the duty of the State Treasurer to keep a register
of the State warrants presented to him, and not paid for want of
funds, in the order of their presentation, and to write across the
back of the same, "Presented and not paid for want of funds," said in-
dorsement to be dated and signed by the Treasurer ; and said warrants
draw interest at the rate of six per cent per annum from date of
presentation until paid.
Historical: Rev. St. 1887, Sec. 238; I amended Laws 1899, 228, Sec. 1;
(See 2 Ter. Ses. (1864) 415, Sec. 5.) I amended Laws 1901, 107, Sec. 1.
Refusal to Pay Warrants.
Sec. 126. If the State Treasurer wilfully and unlawfully refuses
to pay any warrant lawfully drawn upon the Treasury, he forfeits
and must pay fourfold the amount, to be recovered by action against
the Treasurer and his sureties on his official bond, or otherwise.
Historical: Rev. St. 188 7, Sec. 2 4 0.
See 2 Ter. Ses. (1864) 415, Sec. 10.
ARTICLE 3.
DEPOSIT OF STATE FUNDS.
Section
132. Treasurer to make no profit.
13 3. Neglect of Treasurer a misde-
meanor.
13 4. Bribery of Treasurer a felony.
135. Sale of deposited securities.
136. Definition of "Several Current
Funds"; Application of law.
Section
127. State funds to be deposited in
banks.
128. Interest on deposit: How com-
puted.
12 9. Security for deposits.
130. Definition of bank and security.
131. Investigation of banks and se-
curities.
State Funds to Be Deposited in Banks.
Sec. 127. The State Treasurer shall deposit, and at all times keep
on deposit, in the State or national banks, or some of them, doing
business in this State and of approved standing and responsibility,
the amount of money in his hands belonging to the several current
funds in the State Treasury, and any such bank may apply for the
privilege of keeping on deposit such funds or some part thereof. All
Ch. 7. Art. 3. state treasurer — deposit of funds 229
such deposits shall be subject to payment when demanded by the
State Treasurer on his check, and any bank receiving and holding
any such deposit as aforesaid, shall .be required to pay, and shall pay,
to the State, for the privilege of holding the same, not less than two
per cent per annum upon the amount so deposited, as herein provided ;
and subject, also, to such regulations as are imposed by law and
the rules adopted by the State Treasurer for receiving and holding
such deposits. The Treasurer shall not give a preference to any one
or more banks applying to be made such depositories, as in this
article provided, in the amount he may so deposit, but shall keep
deposited with each of said banks such part of said money, so on
deposit, as the par value of the securities, or the penalty in the bond
furnished by said bank, is a part of the sum of all the penalties of
all the bonds and the par value of all the securities, so furnished by
the banks so applying to be made depositories, so that such moneys
may at all times be deposited with said banks pro rata as to the
penalty of the bond, or the par value of the securities, furnished by
them respectively: Provided, The Treasurer shall not have on de-
posit in any bank, at any time, more than the par value of the securi-
ties, nor more than one-half of the amount of the bond given by
said bank: Provided, further. That where a surety bond in some
responsible surety company shall be furnished to the satisfaction
and approval of the Governor, Secretary of State and Attorney Gen-
eral, as hereinafter provided, the amount on deposit may equal, but
shall not exceed, ninety per cent of the penalty of the bond ; but in
no case shall the amount deposited by him in any bank exceed seventy
five per cent of its paid-up capital stock. The Governor, Secretary
of State and Attorney General shall, annually, on the last day of
April, or when said day shall fall on Sunday, then on the day next
preceding, fix the rate of interest to be paid on such deposits, which
shall be not less than the rate hereinbefore in this article established,
and which rate, when so established, shall not be changed for such
period of one year.
Historical: Laws 1905, 305, Sec. 1.
Interest on Deposit: How Computed.
Sec. 128. The amount to be paid by any and all banks, under the
provisions of this article, for the privilege of keeping such public
funds .on deposit, shall be computed on the average daily balance of
the public moneys kept on deposit therewith, and shall be credited
and paid to the State quarterly on the first day of January, April,
July and October of each year, and such depositary shall, quarterly,
on the days aforesaid, render a statement, in duplicate, to the Treas-
urer and Auditor, showing the amounts so credited. The Treasurer
shall require, and it is hereby made the duty of, every such depository
to keep accurate accounts of all such moneys deposited with it, show-
ing the amount deposited and when deposited, and to render, at the
beginning of each and every month, to the Treasurer and Auditor, a
statement, in duplicate, showing the daily balance of the State moneys
held by it during the month next preceding, and the interest thereon,
and all sums paid to the State for the privilege of keeping said
230 PUBLIC OFFICERS Tit. 2
moneys on deposit as aforesaid, shall be apportioned by the Auditor
and credited by the Treasurer to the account of the general fund.
Historical: Laws 1905, 305, Sec. 2; •
amended Laws 1907, 95, Sec. 1.
Security for Deposit.
Sec. 129. For the security of funds so deposited under the provi-
sions of this article, the State Treasurer shall require all such depos-
itories to deposit securities of the kind and character hereinafter de-
scribed, or to give bonds, for the payment of such deposits and the
interest thereon. Said bonds, when given, shall run to the State of
Idaho, and, together with the securities offered, are to be approved
by the Governor, Secretary of State and Attorney General. The offi-
cers, or stockholders, of the bank seeking to qualify as a depository
shall be ineligible as sureties on the bond provided for under this
section. Said, bond shall be conditioned that the depositary shall, at
the beginning of each and every month, render to the Treas-
urer and Auditor a statement, in duplicate, showing the daily balance
and the amount of money of the State held by it during the month
preceding, and the amount of the interest thereon, and for the pay-
ment of the said deposit and the interest thereon, as hereinbefore
provided, when demanded by the State Treasurer on his check at any
time, and, generally, to do and perform whatever may be required by
the provisions of this article and a faithful discharge of the trust
reposed in such depository. The said bond shall be in substance as
follows :
Know all men by these presents, that as principal and
sureties, are held and firmly bound unto the State of
Idaho, in the sum of dollars for the payment of which, well
and truly to be made, we hereby bind ourselves, our and each of our
heirs, executors, and administrators, jointly and severally, by these
presents.
Dated the ...day of A. D.
Whereas, the said principal, the bank of , has ap-
plied for a part of the current funds in the State Treasury of the
State of Idaho to be deposited in said bank, the amount whereof shall
be subject to withdrawal or diminution by said Treasurer as the re-
quirements of the State shall demand, and which amount may be in-
creased or decreased as the said Treasurer may determine; and
Whereas, the said bank, in consideration of said deposit and for
the privilege of keeping the same, has agreed to pay the State of
Idaho interest on such sum a rate not less than two per cent per
annum on the amount of said deposit, the same to be credited and
paid quarterly upon the daily average of such amount as the said
bank shall have on deposit for the quarter, or any fraction thereof,
next preceding the crediting or payment of said interest, which in-
terest shall be computed and credited to the account of the State and
shall become henceforth a part of such deposit.
Now, therefore, if said bank of .....shall, at the begin-
ning of each and every month render to the State Treasurer and State
Auditor a statement, in duplicate, showing the daily balance of the
State moneys held by it during the month next preceding, and the
Ch. 7. Art. 3. state treasurer — deposit of funds 231
interest thereon, and shall well and truly keep all said sums of money
so deposited, or to be deposited, as aforesaid, and the interest thereon,
subject at all times to the check and order of the State Treasurer as
aforesaid, and shall pay over the same, and any part thereof, upon
the check or written demand of the State Treasurer, and to his suc-
cessor in office as shall be by him demanded, and shall calculate,
credit and pay said interest as aforesaid, and shall in all respects,
save and keep the State of Idaho and the said State Treasurer
harmless and indemnified for and by reason of the making of said
deposit, or deposits, then this obligation shall be void and of no
effect, otherwise to be and to remain in full force and virtue.
Witness our hands and seals the day and year first above written.
(Seal) ...(Seal)
(Seal) .(Seal)
(Seal) (Seal)
Where the penalty of any such bond exceeds ten thousand dol-
lars, the sureties thereon may become severally liable for any sum
not less than ten thousand dollars; but such surety or sureties shall
be required to justify in double the amount for which each, respec-
tively, becomes liable on said bond; in all other respects, the justifi-
cation of sureties shall be as required by Section 4934 of these Codes.
All bonds and securities, after approval, shall be deposited with and
held by the State Auditor. It shall be the duty of the Attorney Gen-
eral to enter and prosecute to final determination all suits for the
recovery of any penalty arising under the conditions of any bond
required to be given by the provisions of this article.
Historical: Laws 1905, 305, Sec. 3.
Definition of Bank and Security.
Sec. 130. The word "bank" or "banks" whenever used in this
article, shall be held to include trust companies, and the word "bonds"
to include bonds furnished by surety companies authorized and quali-
fied to do business in this State. The word "security" or "securities"
shall be construed to include United States bonds, bonds of the State
of Idaho, and those for which it is ultimately liable, bonds of the
several counties, cities, villages, towns and school districts of this
State, warrants of the State of Idaho, and of the several counties
thereof drawn on the current expense fund. No securities shall be
approved unless their market value shall equal their par or face
value, or where there has been default within three years in the pay-
ment of the principal or interest of any obligation issued by the same
maker. Upon payment to the State of the deposits and accrued in-
terest for which security was given, it shall be returned to the bank
furnishing the same, and when such securities can be conveniently
segregated, the amount thereof may be reduced in proportion as such
deposits shall be reduced or repaid to the State.
Historical: Laws 1905, 305, Sec. 4.
Investigation of Bank and Securities.
Sec. 131. All personal bonds shall be investigated and the suffi-
ciency of the same, or the securities thereon, determined as often as
once every six months, and shall be renewed every two years by- the
232 PUBLIC OFFICERS Tit. 2
Governor, Secretary of State and Attorney General, or a majority
of them, may cause an investigation to be made at any time to as-
certain the condition of any bank or the sufficiency of any bond or
security offered or given under this article, and to require new or
additional security whenever in their judgment the safety of any
deposit of State moneys under this article requires it; and such de-
posit shall be withdrawn unless such new or additional security be
given. Any expense incurred in carrying out the provisions of this
article shall be audited by the State Board of Examiners and paid
out of the "Official Bonds and Insurance Fund" of the State. The
State Treasurer shall not be liable personally or upon his official
bond for any moneys that may be lost by reason of the failure or in-
solvency of any bank which becomes a depository under this article.
The Governor, or any person authorized by him in writing, may,
during business hours, in the presence of the Treasurer or his deputy,
inspect and examine the books of account in the office of the Treas-
urer, and all contracts, writings, securities and other papers belong-
ing to the State, or pertaining to the business thereof, held by the
Treasurer, and may inspect and count the moneys belonging to this
State and the several funds thereof in the custody of the Treasurer,
and it is hereby made the duty of the State Treasurer to furnish all
reasonable facilities for the purpose.
Historical: Laws 1905, 305, Sec. 5.
Treasurer to Make No Profit.
Sec. 132. The making of profit, directly or indirectly, by the State
Treasurer, out of any money in the State Treasury, belonging to the
State, the custody of which the State Treasurer is charged with, by
loaning or otherwise using it, or depositing the same in any manner
contrary to law, or the removal by the State Treasurer or by his con-
sent, of such moneys, or a part thereof, out of the vault or safe of the
Treasurer's department, after the same shall have been provided by
the State, or out of any legal depository of such moneys, except for
the payment of warrants legally dawn, or for the purpose of depos-
iting the same, under the provisions of this article, in banks which
shall have qualified as depositories, shall constitute a felony, and, on
conviction thereof, shall subject the Treasurer to imprisonment in
the State Penitentiary for a term not exceeding two years or a fine
not exceeding five thousand dollars, or to both such fine and impris-
onment, and the Treasurer shall be liable uDon his official bond for
all profits realized from such unlawful use of such funds.
Historical: Laws 1905, 305, Sec. 6.
Neglect of Treasurer a Misdemeanor.
Sec. 133. If the State Treasurer shall wilfully fail or refuse at
any time to do or perform any act required of him by this article, he
shall be guilty of a misdemeanor, and, upon conviction thereof, he
shall be sentenced to pay a fine not exceeding five thousand dollars.
Historical: Laws 1905, 305, Sec. 7.
Bribery of Treasurer a Felony.
Sec. 134. The offering, or giving, directly or indirectly, by any
Ch. 7. Art. 4. state treasurer — miscellaneous provisions
233
bank or depository, or by any officer or stockholder thereof, or by
any other person or persons in its or their behalf, or by its or their
knowledge, acquiescence or authority, or in its or their interest, to the
State Treasurer, of any gift, compensation, reward or inducement
with the intent or for the purpose of inducing said Treasurer to de-
posit funds of the State in any bank contrary to any law of this State,
shall constitute a felony, and shall, upon conviction thereof, subject
the party or parties offending to imprisonment in the State Peniten-
tiary for a period not exceeding two years, or to a fine not exceeding
five thousand dollars, or to both such fine and imprisonment.
Historical: Laws 1905, 305, Sec. 8.
Sale of Deposited Securities.
Sec. 135. The State Auditor is hereby authorized and empowered
to sell any or all of the bonds or warrants, or both, that may be de-
posited as security for the deposit of any State funds in any deposi-
tory under this article, at public or private sale, whenever there shall
be a failure or refusal upon the part of any such bank, as a deposi-
tory, to pay over the said funds or any part thereof upon the check
or demand of the Treasurer made on such bank. Notice of the sale
of such bonds or warrants, under this article, shall be given for a
period of thirty days in a newspaper published in the city of Boise,
Idaho, and when the sale of bonds is made by the said Auditor, either
at public or private sale, under this article, and such bonds or war-
rants, or both, have been transferred by the Auditor, the absolute
ownership of such bonds and warrants rests in the purchaser or pur-
chasers, upon the payment of the purchase money to the Treasurer
and upon filing a duplicate receipt thereof with the Auditor. Should
there be any surplus after paying the amount due the State, and ex-
penses of sale, it shall be paid over to the bank making the deposit.
Historical: Laws 1905, 305, Sec. 9.
Definition of "Several Current Funds": Application of Law.
Sec. 136. The words "several currrent funds" used in this article
shall be held to apply to all funds in the State Treasury, except the
permanent educational, public school, or university lands funds.
Nothing in this article contained shall be construed to deprive the
State Board of Land Commissioners of the power to invest or dis wsa
of the funds derived from the sale of public lands as is now or may
be provided by law. Whenever, by the provisions of this article, a
duty is enjoined upon the Governor, Secretary of State and Attorney
General, a majority may act and the decision of the majority shall
be sufficient.
Historical: Laws 1905, 305, Sec. 10.
ARTICLE 4.
MISCELLANEOUS PROVISIONS.
Section
137. Inspection of Treasurer's office.
138. Same: Inspection by Governor.
139. Official seal: Authentication of
papers.
Section
140. State Treasurer may appoint a
deputy.
141. Official bond.
234
PUBLIC OFFICERS
Tit. 2
Inspection of Treasurer's Office.
Sec. 137. The books, papers, letters and transactions pertaining to
the office of Treasurer, are at all times during office hours open to
the inspection of a committee of the Legislature, or either branch
thereof, to examine and settle all accounts, or to take copies of the
same, and to count all moneys; and when the successor of any such
Treasurer is appointed and qualified, the State Auditor must examine
and settle all the accounts of such Treasurer, remaining unsettled, and
give to him a certified statement, showing the balance of moneys
securities and effects for which he is accountable, and which have
been delivered to his successor, and report the same to the Legislature.
Historical: Rev. St. 1887, Sec. 2 37.
See 2 Ter. Ses. (1864) 415, See. 4.
Same: Inspection by Go er^or
Sec. 138. The Governor of the State is hereby authorized and
directed, at any time whenever he considers it necessary for the safe
keeping and disbursement of public moneys, to make an examination
of the amount in the possession of the State Treasurer, and for that
purpose must have access to the same.
Historical: Rev. St. 188 7, Sec. 242.
3 Ter. Ses. (1865) 141, Sec. 2.
Official Seal : Authentication of Papers.
Sec. 139. The Treasurer must keep a seal of office for the au-
thentication of all papers, writings and documents required by law
to be certified by him; and copies so authenticated and certified, of
all papers and documents lawfully deposited in his office, must be
received in evidence as the original documents.
Historical: Rev. St. 1887, Sec. 2 39.
2 Ter. Ses. (1864) 415, Sec. 9.
Deputy Treasurer.
Sec. 140. The State Treasurer may appoint a deputy State Treas-
urer, who shall take the oath required of his principal, and may per-
form all the official duties of such principal, being subject to the same
regulations and penalties, and for all whose official acts the State
Treasurer shall be responsible.
Historical: Laws 1899, 2 20, Sees. 1.
2, 3; re-enacting Laws 1893, 150, Sees.
1, 2, 3; re-written in combination.
Official Bond.
Sec. 141. The Treasurer must execute an official bond in the sum
of sixty-five thousand dollars.
Historical: Rev. St. 1887, Sees. 23 4.
Act Feb. 10, 1887.
California Legislation: Similar ex-
cept amount of bond is $100,000: Pol.
Code 1872, Sec. 459; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 8.
ATTORNEY GENERAL.
Section
142. Duties of Attorney General.
Section
143. Official bond.
Ch. 8. ATTORNEY GENERAL 235
Duties of Attorney General.
Sec. 142. It is the duty of the Attorney General:
1. To attend the Supreme Court and prosecute or defend all
causes to which the State or any officer thereof, in his official capacity,
is a party; and all causes to which any county may be a party unless
the interest of the county is adverse to the State or some officer
thereof acting in his official capacity. Also to prosecute and defend
all the above mentioned causes in the United States courts. And in
all cases where he shall be required to attend upon the United States
courts, other than those sitting wi+hm this State, he shall be allowed
his necessary and actual expenses, all claims for which shall be
audited by the State Board of Examiners. And there is hereby an-
nually appropriated out of any money in the State Treasury not
otherwise appropriated, a sufficient sum for the payment of such
expenses not exceeding the sum of five hundred dollars in any one
year.
2. Afte-: judgment m any of the causes referred to in the pre-
ceding sub-division, Id direct the issu'ng of such proce^r as iiiay be
necessary to carry the same into execution.
3. To account for and pay over to the proper officer all moneys
which mar come into his possession belonging to the Stat'^ or to any
county.
4. To keep a docket of all causes in which he is required to
appear, which must, during business hours, be open to the inspection
of the public, and must show the county, district, and court in which
the causes have been instituted and tried, and whether they are civil
or criminal ; if civil, the nature of the demand, the stage of the pro-
ceedings, and, when prosecuted to judgment, a memorandum of the
judgment; of any process issued thereon, and whether satisfied or
not, and if not satisfied, the return of the sheriff; and if criminal,
the nature of the crime, the mode of prosecution, the stage of the
proceedings, and, when prosecuted to sentence, a memorandum of
the sentence and of the execution thereof, if the same has been ex-
ecuted, and if not executed, of the reasons of the delay or prevention.
5. To exercise supervisory powers over prosecuting attorneys
in all matters pertaining to the duties of their offices, and from time
to time require of them reports as to the condition of public business
intrusted to their charge.
6. To give h'is opinion in writing, without fee, to the Legislature
or either house thereof, and to the Governor, Secretary of State,
Treasurer, Auditor, and the Trustees or Commissioners of State Insti-
tutions, when required, upon any question of law relating to their re-
spective offices.
7. When required by the public service, to repair to any county
in the State and assist the prosecuting attorney thereof in the dis-
charge of his duties.
8. To bid upon and purchase, when necessary, in the name of
the State, and under the direction of the Auditor, any property offered
for sale under execution issued upon judgments in favor of or for
the use of the State, and to enter satisfaction in whole or in part
of such judgments as the consideration for such purchases.
236
PUBLIC OFFICERS
Tit. 2
9. Whenever the property of a judgment debtor in any judg-
ment mentioned in the preceding sub-division has been sold under a
prior judgment, or is subject to any judgment, lien, or incumbrance,
taking precedence of the judgment in favor of the State, under the
direction of the Auditor, to redeem such property from such prior
judgment, lien, or incumbrance; and all sums of money necessary
for such redemption must, upon the order of the Board of Examiners,
be paid out of any money appropriated for such purposes.
10. When in his opinion it may be necessary for the collection
or enforcement of any judgment hereinbefore mentioned, to institute
and prosecute, in behalf of the State, such suits or other proceedings
as he may find necessary to set aside and annul all conveyances fraud-
ulently made by such judgment debtors; the cost necessary to the
prosecution must, when allowed by the Board of Examiners, be paid
out of any appropriations for the prosecution of delinquents.
11. To discharge the other duties prescribed by law.
12. To report to the Governor, at the time required by this Code,
the condition of the affairs of his department, and to accompany
the same with a copy of his docket, and of the reports received by
him from prosecuting attorneys.
Historical: Rev. St. 1887, Sec. 250.
(See 13 Ter. Ses. (1885) 31, Sec. 3.)
Subd. 1 amended Laws 1901, 162, Sec.
1. "Board of Examiners" substituted
for '*Controller" in subds. 9 and 10 to
conform to Const. Art. 4, Sec. 18.
California Legislation: See Pol.
Code 1872, Sec. 470; Deering's Code,
ib.; as amended: Kerr's Code, ib.
Cross Reference: Term of office and
residence at seat of government:
Const. Art. 4, Sec. 1. Election: Art.
4, Sec. 2. Qualifications: Art. 4, Sec.
3. Is member of Board of Pardons:
Art. 4, Sec. 7. Also of Board of Prison
Commissioners: Art. 4, Sec. 18. Also
of Board of Examiners: Art. 4, Sec.
18. Also of Board of Equalization:
Art. 7, Sec. 12. Also of Board of Edu-
cation: Art. 9, Sec. 2. Also of Board
of Land Commissioners: Art. 9, Sec. 7.
Salary: Sec. 274.
Member of Boards: Of State Board
of Canvassers: Sec. 45 0; of State
Board of Equalization: Sec. 1702; of
State Land Board: Sec. 1558; of Board
of Prison Commissioners: Sec. 8461;
of Board of Public Instruction: Sec.
558; of State Board of Health: Sec.
108 0; of Board of Trustees of Soldiers*
Home: Sec. 7 94. Chairman State Li-
brary Commission: Sec. 672.
Is ex-officio Judge Advocate General
of Militia: Sec. 685.
To bring suit against officers who
fail to perform any duty required of
them by the transfer tax law: Sec.
1896.
Duties in relation to deposit of State
funds: Sees. 127, 129, 131, 136.
To bring suit to cancel State high-
way leases on direction of State High-
way Commission: Sec. 1074.
To represent the State or cause it to
be represented in proceedings before
the land office: Sec. 1561.
To bring suits against persons oc-
cupying State lands without a lease.-
Sec. 1578.
Approval of Bank Commissioner's
bond: Sec. 191.
To institute suit for penalties in-
curred by foreign banks. Sec. 2984.
To conduct suits brought under the
banking law: Sec. 3010.
To give legal advice and conduct
prosecutions for State Examiner: Sec.
186. To enforce compliance with the
instructions of the State Examiner:
Sec. 176.
To sue insurance companies for fines
incurred by non-payment of premium
tax. Sec. 2867. To bring action to en-
join fraternal insurance companies
from doing business: Sec. 2901.
To advise State Engineer: Sec. 158.
To render assistance to Labor Com-
mission: Sees. 1436, 1439.
To pass on estimates of supplies for
State Institutions: Sec. 86 5.
To render assistance to the Dairy,
Pood and Oil Commissioner and to
prosecute violations of the dairy, food
and oil law: Sec. 1121.
To represent the State Medical
Board on appeal to the Supreme
Court: Sec. 1355.
Appeal to Governor and Attorney
General from action of State Board of
Pharmacy in granting or revoking a
druggist's certificate: Sec. 1393.
To prosecute mine owners for re-
fusal to comply with orders of Inspec-
tor: Sec. 2 0 5.
To foreclose school fund mortgages
under direction of the State Board of
Land Commissioners: Sec. 1642.
Ch. 9.
BOARD OF EXAMINERS
237
May employ counsel to conduct
prosecutions of officials who neglect or
violate their duty under the revenue
laws: Sec. 1827.
May be required to give opinion on
statement of judge furnished in capi-
tal case: Sec. 8011.
Cases in Supreme Court: The attor-
ney general is the attorney for the
State on an appeal from a judgment
of conviction in a criminal case and
must be served with the transcript and
appellant's brief. State v. Miles
(1906) 11 Ida. 784; 83 Pac. 697.
The attorney general is the attorney
for a county on an appeal from a
judgment in a suit in which the coun-
ty is a party, and must be served as
such with the transcript and brief of
appellant. Corker v. Elmore Co.
(1906) 11 Ida. 787; 84 Pac. 509.
Official Bond.
Sec. 143. The Attorney General must execute an official bond in
the sum of five thousand dollars.
Historical: Rev. St. 18 87, Sec. 252.
California Legislation: Same except
'ten" for "five": Pol. Code 1872, Sec.
473; Deering's Code, ib.; Kerr's Code,
ib.
CHAPTER 9.
STATE BOARD OF EXAMINERS.
Section
144. Organization of Board.
145. Sessions of Board.
146. Examinations of claims.
Section
14 7. Auditor drawing warrant for
disapproved claim: Liability.
148. Board may make rules.
Organization of Board.
Sec. 144. The Board of Examiners created by Section 18, of Arti-
cle 4, of the Constitution, shall be styled the "State Board of Ex-
aminers." The Governor shall be chairman and the Secretary of
State shall be secretary of the Board.
Historical: Laws 1899, 24, Sec. 1;
re-enacting Laws 1890-91, 45, Sec. 1.
Cross Reference: Constitution and
powers of Board: Const. Art. 4, Sec.
18.
Sessions of Board.
Sec. 145. Regular sessions of the Board shall be held on the first
and third Tuesdays of every month, and special sessions at any time,
if all the members are present.
Cited: (Dis. op.) Pyke v. Steunen-
berg (1897) 5 Ida. 614; 51 Pac. 614.
Historical: Laws 18 99, 2 4, Sec. 2;
re-enacting Laws 1890-91, 45, Sec. 2.
Examination of Claims.
Sec. 146. It shall be the duty of the Board to examine all claims
against the State, except salaries and compensation of officers fixed
by law, and except fixed appropriations for principal and interest
of the public bonded debt, and except claims against the State already
presented to the Board and favorably reported by it to the Legis-
lature for passage. The Board may approve or disapprove any claim
or demand against the State, or any item thereof, or may recommend
a less amount in payment of the whole, or any item thereof, and a
decision of a majority of the members shall stand as the decision of
the Board. But no claim shall be examined, considered or acted
upon by said Board, unless an account is filed, giving all the items
of the claim, duly verified by the oath of the person presenting said
238
PUBLIC OFFICERS
Tit. 2
claim, or his agent, as to its correctness, and that the amount claimed
is justly due, and receipted vouchers showing the payment of said
money be filed with the claim.
Historical: Laws 1890-91, 45, Sec. 3
re-enacted Laws 1899, 24, Sec. 3
amended Laws 1903, 373, Sec. 1
amended Laws 190 5, 365, Sec. 1.
Cross Reference: Claims to be ex-
hibited to Auditor: Sec. 109. Allowed
claims to be preserved by Auditor:
Sec. 110.
Claims to Be Presented: Under a
territorial staute requiring persons
having claims against the Territory to
exhibit the same, with the evidence in
support thereof, to the controller to be
audited, settled and allowed, the con-
troller has discretion in allowing a
claim and issuing his warrant there-
for although the same has been cer-
tified and corrected by another territo-
rial officer, whose duty it is to exam-
ine and certify accounts of the control-
ler when satisfied of their legality.
Crutcher v. Cram (1871) 1 Ida. 372.
A claim arising out of a contract
for the construction of a State wagon
road which stipulates for final pay-
ment when the contract is executed to
the satisfaction of the commissioners
and Board of Examiners, must be sub-
mitted for the approval of the Board
of Examiners before the Auditor can
be required to issue his warrant there-
for. Winter v. Ramsey (1895) 4 Ida.
303; 39 Pac. 193.
Judicial Review: It is within the
legitimate authority of the court to
compel the Board to act upon any
matter which it is by law required to
act upon, but the Supreme Court has
no authority to direct or control how
such Board shall act. (Sullivan, J.,
dissents.) Pyke v. Steunenberg (1897)
5 Ida. 614; 51 Pac. 614.
Auditor Drawing Warrant for Disapproved Claims: Liability.
Sec. 147. In case the Auditor shall draw a warrant for any claim,
or part of a claim or item thereof, which is disapproved by the
Board, he shall be liable upon his official bond for the same if any loss
shall accrue to the State therefrom.
Historical: Laws 1899, 2 4, Sec. 4;
re-enacting Laws 1890-91, 45, Sec. 4.
Board May Make Rules.
Sec. 148. The Board may make such rules and regulations for the
conduct of its business as it may deem desirable, not inconsistent
with law.
Historical: Laws 189 9, 24, Sec. 5
re-enacting Laws 1890-91, 45, Sec. 5.
Cited: Winters v. Ramsey (1895) 4
Ida. 303; 39 Pac. 193.
CHAPTER 10.
STATE ENGINEER.
Section
Sect
149.
Appointment and qua
iifications
15 5.
of Engineer.
15 6.
15 0.
Office to be provided.
15 7.
151.
Oath of office.
158.
152.
Bond.
153.
Salary and expenses.
15 9.
154.
Duties of Engineer.
160.
154a.
Examination of plans
for
dams.
Inspection- of dams.
Same.
Duty to supply information.
Attorney General to advise En-
gineer.
Engineer to make report.
Additional duties of Engineer.
Appointment and Qualifications of Engineer.
Sec. 149. There shall be appointed by the Governor, by and with
the advice and consent of the Senate, a State Engineer, who shall
hold his office for the term of four years, and until his successor is
appointed and qualified. No person shall be appointed as such State
Ch. 10. STATE ENGINEER 239
Engineer who is not known to have such theoretical and practical
qualifications as shall fit him for the position. The Governor may
remove such State Engineer for cause, and, in case of such removal,
or in case of death or resignation, appoint a successor.
Historical: Laws 1899, 2 82, Sec. 1; i omitting the words "as soon as may be
re-enacting Laws 1895, 215, Sec. 1. after the passage of this act."
Office to Be Provided.
Sec. 150. Such State Engineer shall have his office at the State
Capitol in an office to be provided for him by the Secretary of State.
Historical: Laws 1899. 282, Sec. 2;
re-enacting Laws 18 99, 215, Sec. 2.
Oath of Office.
Sec. 151. Before entering upon the duties of his office, said State
Engineer shall take and subscribe an oath before some duly authorized
officer to faithfully perform the duties of his office, and shall file
such oath with the Secretary of State.
Historical: Laws 1899, 2 82, Sec. 3;
lt-t-nacting Laws 1895, 215, Sec. 3.
Bond.
Sec. 152. Before entering upon the duties of his office, said State
Engineer shall file with the Secretary of State an official bond in
the penal sum of thirty thousand dollars, with not less than two
sureties to be approved by the Governor, and conditioned upon the
faithful discharge of his duties and for delivery to his successor of
all property belonging to the State then in his possession or control.
Historical: Laws 1899, 282, Sec. 4;
re-enacting Laws 1895, 215, Sec. 4.
Salary and Expenses.
Sec. 153. Said State Engineer shall receive a salary of two thou-
sand five hundred dollars per year payable monthly by the State
Treasurer upon warrants drawn by the State Auditor, together with
his actual expenses, as shown by an itemized bill, necessarily incurred
when called away from the State capital in the discharge of his duties,
in a sum not to exceed one thousand dollars per annum.
Historical: Laws 18 95, 215, Sec. 5;
re-enacted Laws 18 99, 282, Sec. 5;
amended Laws 1907, 311, Sec. 1.
Duties of Engineer.
Sec. 154. The State Engineer shall make or cause to be made
careful measurements of the flow in cubic feet per second of the vari-
ous streams in the State whose waters are, or are likely to be, appro-
priated and used, through that part of the season which he may deem
necessary or expedient, to afford information for irrigating purposes,
commencing with those streams most used for irrigation. He shall
collect facts and make surveys to ascertain suitable locations for
reservoirs upon streams where such reservoirs may be possible and
beneficial, and shall, as far as possible, determine the cost of con-
structing such reservoirs, and all other facts possible in regard to
Vol 1—9
240 PUBLIC OFFICERS Tit. 2
quantity of water possible to be stored, the character and extent of
land that may be reclaimed by the water from such reservoirs,
together with all other information possible that may bear upon the
subject. He shall become familiar with the waterways and irriga-
ble land in the State and the needs of the State as to irrigation
matters, and all records of any such information shall be the property
of the State and open to public inspection. He shall keep full and
complete records of all measurements of streams, surveys, examina-
tions or other valuable information that may come into his posses-
sion concerning any of the duties of his office, and shall furnish
reasonable information in regard to such measurements or surveys
to the newspapers of the State upon proper request.
Historical: Laws 1899, 282, Sec. 6;
re-enacting Laws 1895, 215, Sec. 7.
Examination of Plans for Dams.
Sec. 154a. Any person, association or corporation who shall desire
to construct any dam or dyke, for the purpose of storing or appro-
priating or diverting any of the waters of this State, when the same
is to be more than ten feet in height, except as otherwise in this
chapter provided, shall submit duplicate plans, drawings and speci-
fications of the proposed work to the State Engineer who shall, as
speedily as possible and within forty-five days, examine such plans,
drawings and specifications, and, if he approve them, he shall affix
his approval thereto, and return one copy of each such plan, drawing
of specification, with his approval, to the party or parties proposing
to construct the works. If the State Engineer shall disapprove of
such plans, drawings or specifications, he shall return the same with
his written objections thereto and suggestions of changes, to the party
or parties filing the same: Provided, Where said dam or dyke is, in
the opinion of said Engineer, not of sufficient importance to have the
provisions of this section apply to such dam or dyke, then said Engi-
neer shall have power, upon written application, to suspend the pro-
visions of this section in regard to such dam or dyke.
In cases of works of great importance, especially where life or
property would be endangered by the failure of such works, the
State Engineer may require excavations to be made to determine the
character of the foundation, and require a statement of the facts
in the case to be filed in his office before approving such plans, draw-
ings or specifications; or he may, if he deems the public interest
demands, visit the locality of such proposed works before approval of
said plans, drawings or specifications; and no rights of any kind
under the laws of this State shall be deemed to be obtained, where
the prooosed works, as in this section provided, have not been ap-
proved by the State Engineer.
Whenever any party or parties feel themselves aggrieved by the
determination of the State Engineer in refusing to approve any plan
or specification as mentioned in this section, then such party or
parties may have an appeal to the courts.
Historical: Laws 1899, 2 82, Sees. 7,
8; re-enacting Laws 1895. 215. Sees. 8,9.
Ch. 10. STATE ENGINEER 241
Inspection of Dams.
Sec. 155. The State Engineer shall inspect, or cause to be in-
spected, as often as he thinks advisable, every dam or embankment
used for holding water in this State, where the same is more than
twenty feet in height; and if after any such inspection such dam
or embankment, in the opinion of the State Engineer, is unsafe, and
life or property liable to be endangered by reason thereof, he shall
order the owner or owners to repair the same so as to make it safe.
If such owner or owners shall neglect or refuse to repair the same
after a reasonable notice to that effect has been given in writing
by the State Engineer, the said State Engineer shall report the facts
in the case to the Judge of the District Court of the district in which
such dam or embankment is situated, who shall, after hearing such
facts, if he deem it necessary for the public welfare, order the water
master of the district in which such dam or embankment is situated,
if there be one, if not, the sheriff of the county, to draw off such
water from behind such dam or embankment and to keep said water
drawn off till such time as the orders of the State Engineer shall
be complied with : Provided, That when great damage would result
to those depending upon such dam or reservoir or embankment for
irrigation if such withdrawal of water were made, and when such
impending danger to life and property can be prevented at reason-
able expense without such withdrawal being first made, the State
Engineer shall make an estimate of the cost of such necessary repair
and report the same to the District Judge, who shall, if he deem it
necessary for the public welfare, order the board of county com-
missioners of the county in which said works are situated to make,
under the direction of the State Engineer, such repairs as are rec-
ommended by said Engineer, and to pay for the same by warrants
drawn on the current expense fund of the county. The county auditor
and recorder shall immediately present a bill of the amount of such
expenses to the person or persons owning or controlling such dam
or embankment, and unless the same is paid within three days from
the presentation of said bill, or as much as shall not be so naid, shall
thereafter become a lien upon the said dam or reservoir embankment,
and other irrigation works appurtenant thereto, which amount shall
be added to the taxes against such pronerty and shall be collected
in the manner provided by law for the collection of other taxes.
Historical: Laws 18 95, 215, Sec. 10:
nacted Laws 1899, 282, Sec. 9;
amended Laws 1991, 191, Sec. 5.
Same.
Sec. 156. If any person or persons shall report in writing to the
State Engineer that any dam or embankment, used for holding water,
is unsafe and endangering life or property, then it shall be the duty
of said State Engineer to inspect, or cause to be inspected, such dam
or embankment as soon as possible, and, if he considers it unsafe,
to proceed as provided in the preceding section.
Historical: Laws 1899, 2 82, Sec. 10,
re-enacting Laws 1895, 215, Sec. 11. J
242
PUBLIC OFFICERS
Tit. 2
Duty to Supply Information.
Sec. 157. The State Engineer shall, free of charge, give any in-
formation desired by any person as to the proper method of measur-
ing water, or of constructing an apparatus for such measurement,
upon proper application being made; and shall give special instruc-
tions to all water masters as to measurement of water so as to secure
a just distribution of the same.
Historical: Laws 1899, 282, Sec. 11;
re-enacting- Laws 1895, 215, Sec. 12. ♦
Attorney General to Advise Engineer.
Sec. 158. The State Engineer may require, and shall receive, from
the Attorney General of the State, advice upon any question of public
interest arising in the performance of his duties under this chapter,
Which advice shall be in writing when so desired by said Engineer.
Historical: Laws 1899, 282, Sec. 12;
re-enacting Laws 1895, 215, Sec. 13.
Engineer to Make Report.
Sec. 159. The State Engineer shall make and render to the Gov-
ernor, biennially, or oftener, if required, full and true reports of his
work performed by virtue of his office, which reports shall contain
any recommendations he may have to make in reference to legislation
affecting his office, or in reference to matters of interest in regard
to irrigation that his experience and information may cause him
to make.
Historical: Laws 1899, 282, Sec. 13;
re-enacting Laws 1895, 215, Sec. 14.
Cross Reference: Reports of offi-
cers: Sec. 2 7 9.
Additional Duties of Engineer.
Sec. 160. In addition to the duties prescribed in this chapter, the
State Engineer shall perform such other professional duties as may
be required of him by the Governor, and shall give advice on any
matters of a professional nature, when called upon by the Governor
to do so ; and shall prepare all maps required for the use of the Board
of Land Commissioners.
Historical: Laws 18 9 9, 2 82, Sec. 14;
re-enacting Laws 1895, 215, Sec. 15.
Cross Reference: Member of State
Highway Commission: Sec. 61; of
State Board of Health: Sec. 1080;
president of Board of Irrigation: Sec.
3273; is chairman of Board of Exam-
ining Surveyors: Sec. 1401.
To inspect measuring devices and to
furnish instructions as to their use:
Sec. 32 86. To furnish plans for meas-
uring devices: Sec. 3282. To devise
system for measurement and distri-
bution of water: Sec. 32 41.
To report on proposed construction
work of irrigation district: Sec. 2 3 96.
Plans of reservoir dams and em-
bankments to be filed in Engineer's
office: Sec. 1635. Examinations of
plans for dams and dykes: Sec. 3256.
To examine plan and report on pro-
posed irrigation district: Sec. 2374.
Examination of diversion works pre-
paratory to issuing license: Sec. 3261.
Issuance of license: Sec. 3262. Exam-
ination, report and issuance of certifi-
cate on completion of diversion works.
Sees. 3258, 3259.
Arbitration of disputes between
ditch owners and water users as to de-
livery of water: Sec. 3288.
Considerations involved in the issu-
ance of licenses: Sec. 3266.
Issuance of certificate of transfer of
water: Sec. 3265.
Filing reports of water masters: Sec.
3276.
Supervision of water commissioners:
Sec. 3270.
Piling fee with application for per-
mit for appropriation of water: Sec.
3253.
Duties with respect to Carey Act
land: Sees. 1615-1627.
Ch. 11. Art. 1.
INSURANCE COMMISSIONER
243
Cancellation of appropriation per-
mits pursuant to contest: Sec. 3257.
Issuance of amended permits for ap-
propriation of water: Sec. 3255.
Issuance of permits for appropria-
tion of water: Sec. 3254.
Record of applications for appropri-
ation permits: Sec. 3253.
To report on advisability of consoli-
dating irrigating- districts: Sec. 2438.
To give advice to directors of irri-
gation districts: Sec. 2393.
To make examination respecting
State lands included within irrigation
districts: Sec. 2439.
Examination of and mapping the
streams of the State: Sec. 3267.
Fees for issuing certificates, examin-
ing ditches and making copies of pa-
pers: Sec. 3264. For issuing certifi-
cate of transfer: Sec. 3265.
CHAPTER 11.
INSURANCE COMMISSIONER AND EXAMINER.
Article
1. Duties as Commissioner.
Article
2. Duties as Examiner
ARTICLE 1.
DUTIES AS COMMISSIONER.
Section
161. Appointment and qualifications.
162. Office.
163. Oath.
164. Bond.
165. Seal.
Section
166. Disqualifications.
167. Salary.
168. General duties.
169. Reports.
Appointment and Qualifications.
Sec. 161. There shall be appointed by the Governor, by and with
the advice and consent of the Senate, an Insurance Commissioner,
who shall hold his office for two years and until his successor is
appointed and qualified. No person shall be appointed as such Com-
missioner who is not a citizen of the State and who is not experienced
in matters of insurance. The Governor may remove such Commis-
sioner for cause, and in case of such removal, or in case of death
or resignation, appoint a successor.
Historical: Laws 1901, 165, Sec. 1,
omitting the opening words "as soon
as may be after the passage of this
act."
Office.
Sec. 162. The Insurance Commissioner shall have his office at the
State Capitol in an office provided for him by the Secretary of State.
Historical: Laws 1901, 165, Sec. 2.
Oath.
Sec. 163. Before entering upon the duties of his office said Com-
missioner shall take and subscribe an oath, before some duly au-
thorized officer, to faithfully perform the duties of his office, and
shall file such oath with the Secretary of State.
Historical: Laws 1901, 165, Sec. 3.
Bond.
Sec. 164. Before entering upon the duties of his office said Com-
244
PUBLIC OFFICERS
Tit. 2
missioner shall file with the Secretary of State an official bond in
the penal sum of ten thousand dollars, by a fidelity or guaranty com-
pany, or a bond With not less than four responsible sureties, to be
approved by the Governor, and conditioned upon the faithful dis-
charge of his duties, and for the delivery to his successor of all
property belonging to the State then in his possession or control.
Historical: Laws 1901, 165, Sec. 4.
Seal.
Sec. 165. Said Commissioner shall have a seal of office of suitable
design copied from the great seal of the State.
Historical: Laws 1901, 165, Sec. 5.
Disqualifications.
Sec. 166. No person who is director, officer or agent of, or directly
or indirectly interested in, any insurance company, except as insured,
shall be such Commissioner.
Historical: Laws 1901, 16 5, Sec. 6.
Salary.
Sec. 167. Said Insurance Commissioner shall receive a salary of
twenty-four hundred dollars per year, payable quarterly by the State
Treasurer out of the general fund upon warrants drawn by the State
Auditor. Said Insurance Commissioner shall also be allowed not to
exceed eighteen hundred dollars per annum, payable in the same
manner as his own salary, for a deputy commissioner. Said In-
surance Commissioner shall also be allowed not to exceed sixteen
hundred and forty-five dollars per annum for additional clerk hire
and office expenses.
Historical: Laws 1901, 16 5, Sec. 7;
amended Laws 1905, 255, Sec. 1;
amended Laws 1907, 557, Sec. 1.
General Duties.
Sec. 168. The Insurance Commissioner shall be charged with the
execution of the laws relating to insurance and insurance companies
doing business in this State, and he shall do and perform such other
duties as may be required of him by law.
Historical: Laws 19 01, 16 5, Sec. 8.
Cross Reference: The Insurance law,
and the duties of the Commissioner
with reference thereto, is found in the
Civil Code, Title 4, Chs. 7-10, Sees.
2855-2937. Duties with respect to
surety companies: Sees. 2938-2944.
Reports.
Sec. 169. It shall be the duty of the Commissioner to make such
reports of the business of his office and the information therein col-
lected and preserved as the Governor may require, and all such re-
ports shall be, by the Governor, laid before the Legislature at its
next session after they shall have been made and printed.
Historical: Laws 1901, 165, Sec. 9.
Cross Reference: Reports to be de-
livered to Secretary of State on or be-
fore December 1st: Sec. 279.
Ch. 11. Art. 2.
EXAMINER
245
ARTICLE 2.
DUTIES AS EXAMINER.
Section
170. Insurance Commissioner is
State Examiner.
Inventory of State Property.
Supervision of accounts.
Report as to bondsmen.
Examination of State and coun-
ty offices.
Inspection of securities held by
county officers.
Report of official neglect.
Report to Governor: Suspension
of delinquent official.
178. Officers to assist Examiner.
179. Examination of accounts.
171.
172.
173.
174.
175.
176.
177.
a
Section
180 Refusal to make returns
felony.
181 Rendering- false statements is
perjury.
182. Obstruction of Examiner a
felony.
183. Examiner may issue subpoenas:
Refusal to furnish information.
184. Annual report of Examiner.
185. Examiner to receive no fee.
186. Duty of Attorney General and
prosecuting- attorneys.
187. Default of State Treasurer.
188. Default of county treasurer.
Note: This article follows in a general way the North Dakota law, but
not closely enough to admit of literal comparison. See Rev. Codes, North
Dakota, 1899, Sees. 136 et seq.
Insurance Commissioner Is State Examiner.
Sec. 170. The State Insurance Commissioner is hereby consti-
tuted, ex-officio, State Examiner. As such he shall give bond to the
State of Idaho, to be approved by the Governor and filed with the
Secretary of State, in the sum of ten thousand dollars. He shall
be allowed no salary as such Examiner, but shall be allowed his actual
expenses, to be audited by the State Board of Examiners and paid as
other salaries and expenses of other State officers are paid.
Historical: Laws 1905, 386, Sec. 1.
Inventory of State Property.
Sec. 171. It is hereby made the duty of the State Examiner to
keep an exact and true inventory of all chattel property belonging
to the State, which inventory shall be recorded in a permanent record
to be kept for that purpose, showing a description of the property,
condition, for what used, where located and its cost, and said in-
ventory shall annually be revised on the 31st day of December.
Historical: Laws 1905, 386, Sec. 2.
Supervision of Accounts.
Sec. 172. He shall order and enforce a correct, and, as far as
practicable, uniform system of bookkeeping by State and county
officers, so as to afford a suitable check on their mutual action, and
insure the safety and a thorough supervision of the funds of the
State and of the counties therein. He shall have full power to expose
false or erroneous systems of accounting, and when necessary shall
instruct State and county officers in the proper mode of keeping such
accounts.
Historical: Laws 1905, 386, Sec. 3.
Report as to Bondsmen.
Sec. 173. He shall ascertain the character and financial standing
of all present and proposed bondsmen of State and county officers.
246 PUBLIC OFFICERS Tit. 2
He shall, in the case of county officers, report to the board of county
commissioners, and to the Governor, and in case of State officers,
he shall report to the Governor, the knowledge so obtained.
Historical: Laws 1905, 386, Sec. 4.
Examination of State and County Officers.
Sec. 174. He shall require of treasurers of counties, from time
to time, as often as he shall deem necessary, a verified and complete
statement of their accounts. He shall personally, without notice to
the officers and at irregular intervals, visit State officers at least
twice in each year, and county officers at least once in each year,
and at such time shall make a thorough examination of the books,
accounts and vouchers of said officers. He shall ascertain in detail
the various items of receipts and expenditures, and submit a report
to the proper authority thereof.
Historical: Laws 1905, 386, Sec. 5.
Inspection of Securities Held by County Officers.
Sec. 175. He shall inspect and verify the character and amount
of any and all assets and securities held by county officers on public
account. He shall ascertain the character and amount of any com-
mission, fee or other charges for services exacted by such officers
without warrant of law.
Historical: Laws 190 5, 386, Sec. 6.
Report of Official Neglect.
Sec. 176. He shall report to the Attorney General or prosecuting
attorney, the refusal or neglect of county officers to obey his instruc-
tions. The Attorney General, in case of State officers, and the prose-
cuting attorney, in case of county or municipal officers, shall promptly
take action to enforce a compliance with such instructions of the
State Examiner.
Historical: Laws 190 5, 386, Sec. 7.
Report to Governor: Suspension of Delinquent Official.
Sec. 177. He shall report to the Governor the result of his ex-
amination, as well as any failure of duty of any public official, as
often as he thinks it may be required by public interest. The Gov-
ernor may cause the result of any examination, made by the State
Examiner, to be made public, or, at his discretion, may take such
action for the public security as the exigency may demand. He may,
if he deem the public interest to require it, suspend any officer from
further performance of duty until the examination be had, or such
security be obtained as may be demanded for the prompt protection
of public funds.
Historical: Laws 1905, 386, Sec. 8.
Officers to Assist Examiner.
Sec. 178. To enable the State Examiner to properly perform the
services herein required of him, the county commissioners and officers
of the several counties, and State Treasurer and Auditor, and all
Ch. 11. Art. 2. examiner 247
other county and State officers, shall afford all reasonable and needed
facilities to the State Examiner. All officers and employes of the
counties, herein referred to, shall make returns and exhibits to the
State Examiner, under oath, in such form, and at such time or times,
as he shall prescribe.
Historical: Laws 1905, 3 86, Sec. 9.
Examination of Accounts.
Sec. 179. He may examine any of the books, papers, accounts,
bills, vouchers or other documents or property of any or all of the
county and state officers, and custodians of county and State funds.
He may examine, under oath, county and State officers, and the
custodians of county and State funds aforesaid.
Historical: Laws 19 05, 3 86, Sec. 10.
Refusal to Make Returns a Felony.
Sec. 180. Each and every person required herein to make returns
and exhibits to the State Examiner, who shall refuse or neglect to
make such returns or exhibits, or who shall refuse to give such
information required by the State Examiner, shall be guilty of felony,
and shall be punished by a fine not exceeding five thousand dollars,
or imprisonment in the Penitentiary not more than five years, or both.
Historical: Laws 19 05, 386, Sec. 11.
Rendering False Statements Is Perjury.
Sec. 181. Any person making any exhibit, or giving information,
as herein required, or making any statement under this article, on
oath, who shall knowingly swear falsely concerning the same, shall
be guilty of perjury, and shall be punished in the manner prescribed
by law for the punishment of perjury.
Historical: Laws 1905, 386, Sec. 12.
Cross Reference: Punishment for
perjury: Sec. 6486.
Obstruction of Examiner a Felony.
Sec. 182. Any person who shall wilfully obstruct or mislead the
State Examiner in the execution of his duties as by this chapter
prescribed, shall be guilty of felony, and upon conviction thereof,
shall be punished by a fine of not more than five thousand dollars,
or imprisonment in the Penitentiary not more than five years, or
both.
Historical: Laws 1905, 386, Sec. 13.
Examiner May Issue Subpoenas: Refusal to Furnish Information.
Sec. 133. The State Examiner may issue subpoenas and ad-
minister oaths, in the same manner, with the same power to enforce
obedience thereof in the performance of his said duties, as belongs
and pertains to courts of law in this State. Any person refusing
access to the State Examiner to any such books or papers, or officer,
agent, clerk, employee or other person aforesaid, or who shall obstruct
such access, or who shall refuse to furnish any required information,
248 PUBLIC OFFICERS Tit. 2
or who shall in any manner hinder the thorough examination re-
quired by this article, of the officers or of the books, accounts, papers
and finances pertaining to the county and State officers aforesaid,
shall be guilty of a felony, and upon conviction thereof, shall be
punished by a fine not exceeding one thousand dollars, or imprison-
ment in the State Penitentiary for a period not exceeding one year,
or both.
Historical: Laws 1905, 386, Sec. 14.
Annual Eeport of Examiner.
Sec. 184. The State Examiner shall make an annual written re-
port to the Governor of his various official proceedings. He shall
embody therein an abstract of the condition and statistics of the
several county and State finances as ascertained by him. The re-
ports hereinbefore required to be made to the Governor shall be
printed when ordered by the Legislature.
Historical: Laws 1905, 386, Sec. 15.
Cross Reference: Reports of officers:
Sec. 279.
Examiner to Receive No Fee.
Sec. 185. If the State Examiner shall, directly or indirectly, bar-
gain for or receive any fee, compensation or reward, other than is
provided by this article, for the doing or refraining to do his duty,
as required by this article, he shall be guilty of a felony, and upon
conviction thereof, shall be fined not exceeding five thousand dollars,
or imprisonment in the State Penitentiary not more than five years,
or both.
Historical: Laws 1905, 386, Sec. 16.
Duty of Attorney General and Prosecuting Attorneys.
Sec. 186. The Attorney General, or prosecuting attorney, shall
when called upon by the State Examiner, aid him in any investiga-
tion or matter; giving legal advice, and shall supervise the prosecu-
tion of all offenders under the provisions of this article.
Historical: Laws 1905, 386, Sec. 17.
Default of State Treasurer.
Sec. 187. If, at any time, upon an examination being made by the
State Examiner of the books and accounts of the State Treasurer,
and the funds under his control, it shall be found that said State
Treasurer is a defaulter, it shall be the duty of the State Examiner
to at once report such fact to the Governor, who shall have authority
upon receiving such report to at once suspend the Treasurer, and to
appoint a Treasurer temporarily, and to continue such suspension
until such defalcation shall have been made good : Provided, however,
That in case it shall appear to the satisfaction of the Governor that
such defalcation cannot be made good by the State Treasurer, he
shall have authority to declare said office vacant, and fill the same by
appointment as in cases of other vacancies.
Historical: Laws 1905, 386, Sec. 18.
Ch. 12.
BANK COMMISSIONER
249
Default of County Treasurer.
Sec. 188. If, at any time, the State Examiner, upon an examina-
tion of the books and accounts of any treasurer of any county, and
the funds under the control, or in the custody of, such treasurer, as
authorized by law, shall find that any such treasurer is a defaulter,
he shall at once report such defalcation or inability of such treasurer
to the board of county commissioners of the county interested, which
board of county commissioners shall, upon receiving such notice, from
the Examiner, have authority to suspend such treasurer, and to ap-
point a treasurer temporarily, and to continue such suspension until
such defalcation shall have been made good: Provided, however,
That such board of county commissioners shall have power, in case
it shall appear to their satisfaction that such defalcation cannot be
made good, to declare said office vacant, and to fill the same by
appointment as required by law in case of vacancies arising in any
such office.
Historical: Laws 1905, 386, Sec. 19.
CHAPTER 12.
BANK COMMISSIONER.
Section
189. Appointment and qualifications:
Vacancy.
190. Clerical assistance.
191. Bond and oath.
Section
192. Salary.
193. Seal of Commissioner.
194. Duties of Commissioner.
Appointment and Qualifications: Vacancy.
Sec. 189. The Governor shall appoint, by and with the advice and
consent of the Senate, a Bank Commissioner for the State of Idaho,
whose term of office shall be four years, unless sooner removed for
cause, and until his successor is appointed and qualified. No person
shall be appointed to such office who shall not have had at least five
years' practical experience in the banking business, or shall have
served for a like period in the banking department of this or some
other State ; nor shall an officer or employee of any bank in the State
of Idaho, or person interested as owner or stockholder thereof, be
eligible for such office. If a vacancy shall occur in the office of Bank
Commissioner by death, resignation or otherwise, the same shall be
filled by appointment of the Governor, and such appointee, or any
person aopointed to such position when the Legislature is not in
session, shall hold office until the first day of the next ensuing session
of the Legislature.
Historical:
1, 2.
Laws 1905, 175, Sees.
Clerical Assistance.
Sec. 190. Every Bank Commissioner, with the approval of the
State Board of Examiners, shall have the right to employ such cleri-
cal assistance as shall be required in the conduct of his office.
Historical: Laws 1905, 175, Sec. 3.
250
PUBLIC OFFICERS
Tit. 2
Bond and Oath.
Sec. 191. The Bank Commissioner shall, before entering upon the
duties of his office, take and subscribe an oath to faithfully discharge
the duties of such office, and shall execute to the State of Idaho a
bond in the sum of fifty thousand dollars, in some surety company
authorized to do business in this State, conditioned that he will faith-
fully and impartially discharge the duties of his office, and pay over
to the persons entitled by law to receive it all money coming into his
hands by virtue of his office, and conditioned further for the payment
of any and all damages and costs that may be adjudged against him
under the provisions of this chapter and Chapter 13, of Title 4, of
the Civil Code, the cost of which bond shall be a charge against the
State, to be audited and allowed as other claims, and which bond
shall be approved by the Attorney General.
Historical: Laws 1905, 175, Sec. 4.
"This chapter and Chapter 13 of Title
4 of the Civil Code" inserted for "this
act." The chapter of the Civil Code
referred to is the one relating to bank-
ing corporations (Sees. 2968-3010).
Salary.
Sec. 192. The Bank Commissioner shall receive a salary of two
thousand four hundred dollars a year, together with his actual travel-
ing expenses while engaged in bank examination, to be audited and
allowed as other claims against the State, which examination must
be conducted personally by the Bank Commissioner.
Historical: Laws 1905, 175, Sec. 4.
Seal of Commissioner.
Sec. 193. The Bank Commissioner, with the approval of the Gov-
ernor, shall devise a seal with suitable inscription for his office, a
description of which, with a certificate of approval by the Governor,
shall be filed in the office of the Secretary of State, with an impression
thereof, which shall thereupon be and become the seal of office of the
Bank Commissioner. Every certificate, assignment and conveyance,
executed by said Bank Commissioner in pursuance of the authority
conferred upon him by law and sealed with the seal of office, shall
be received as evidence and recorded in the proper recording offices,
in the same manner and with like effect as a deed regularly acknowl-
edged as required by law ; and all copies of papers in the office of said
Commissioner, certified by him and authenticated by his seal, shall
be received in evidence equally and in like manner as the originals.
Historical: Laws 1905, 175, Sec. 6.
Duties of Commissioner.
Sec. 194. The duties of the Commissioner are those prescribed by
Chapter 13, of Title 4, of the Civil Code.
Historical: New section by Commis-
sioner. The preceding sections are
taken from the same act as the chap-
ter of the Civil Code above referred to,
and relate only to the creation of the
office of the Bank Commissioner. It
was thought best to leave the sections
prescribing his duties with the bank-
ing law, which it is his province to
enforce.
Cross Reference: The chapter above
referred to is found in Sees. 2968-
3010 of the Civil Code.
Ch. 13.
FISH AND GAME WARDEN
251
CHAPTER 13.
FISH AND GAME WARDEN.
Section
198. Extermination of wild animals.
Section
195. Appointment, bond and duties.
196. Deputies and assistants.
19 7. Salaries of Warden, deputies and
assistants.
Appointment, Bond and Duties.
Sec. 195. The Governor shall appoint a suitable person to serve
as State Fish and Game Warden, whose duty it shall be to protect
the fish and game of this state, and to enforce the laws relating there-
to. The State Fish and Game Warden shall hold his office for
the term of two years or until his successor is appointed and qualified.
Before entering upon his duties, the State Fish and Game Warden
shall execute a bond to the State of Idaho, in the penal sum of five
thousand dollars, conditioned for the faithful performance of his
duties, and his bond shall be approved by the Governor. The Gover-
nor shall have power, at any time, to remove the State Fish and
Game Warden, at pleasure, for misconduct or neglect of his duties,
and the Governor shall be the exclusive judge of misconduct or neglect
of duties and shall, upon removal, appoint a successor.
The State Game Warden is hereby authorized to arrest,
without warrant, any person or persons found violating any of the
provisions of the fish and game laws, when detected in the act, or
found with fish or game in their possession, at the time of their
arrest. The State Fish and Game Warden shall be an active ex-
ecutive officer, and shall at all times take the field in person in the
performance of his duties, when possible. He shall personally super-
vise the protection of all game and fish protected by the Penal Code,
and be energetic in the detection and punishment of the violators of
the fish and game laws. He shall make quarterly report to the Gov-
ernor of his doings, beginning with the first day of April, and shall
keep the Governor informed of his whereabouts. He shall make a
biennial report to the Governor and Legislature of the doings and
conditions of his office, which report shall be made during the first
week of the regular session of the Legislature.
It shall be lawful for the State Fish and Game Warden, or any
person appointed by him in writing so to do, to take fish and game
of any kind, dead or alive, or in any manner, under the direction
of the State Fish and Game Warden, for the purpose of inspection,
cultivation, propagation, distribution, scientific or other purposes,
deemed by him to be in the interest of the fish and game industry
of the State. He shall make a detailed report of his official transac-
tions, including the number and kinds of fish distributed, and the
locality and names of streams, ponds or lakes where the same have
been placed, and submit such report to the Legislature during the
first wreek of its ensuing regular session.
Historical: Laws 1905, 258, Sec. 1; laws are found in the Penal Code,
amended Laws 1907, 112, Sec. 1. Sees. 7180-7203. Warden to erect and
Cross Reference: The fish and game maintain a fish hatchery: Sec. 857.
252 PUBLIC OFFICERS Tit. 2
Deputies and Assistants.
Sec. 196. The State Fish and Game Warden shall have power to
appoint such deputies as are necessary in the various counties of
this State to properly enforce the laws; and he is hereby authorized
to appoint one chief deputy and two assistants, and one or more
deputies, as the emergency may demand, in any county of this State,
whenever he shall receive from such county a petition signed by ten
or more resident tax payers, asking for the appointment of such
deputy game warden. Such chief deputy and assistants shall each
execute a bond to the State of Idaho in the penal sum of three thou-
sand dollars, conditioned for the faithful performance of their duties,
and such other deputy wardens shall execute a bond to the State of
Idaho in the penal sum of five hundred dollars, conditioned for the
faithful performance of their duties, and they shall have the same
power to make arrests as the State Fish and Game Warden. Their
commissions may be revoked at any time by the State Fish and Game
Warden. The State Fish and Game Warden shall file with the Gov-
ernor a list of all deputy game wardens appointed by him. He shall
have further power to appoint one clerk, who shall have charge of
the office and perform the clerical duties thereof. Such clerk shall
execute a bond to the State of Idaho in the penal sum of three thou-
sand dollars, conditioned for the faithful performance of his duties.
Historical: Laws 1905, 258, Sec. 2;
amended Laws 1907, 112, Sec. 2.
Salaries of Warden, Deputies and Assistants.
Sec. 197. The State Fish and Game Warden shall receive as full
compensation for salary the sum of eighteen hundred dollars per
annum, and one thousand dollars per annum for traveling expenses.
The chief deputy shall receive as compensation twelve hundred dollars
per annum and shall be allowed actual and necessary traveling ex-
penses not to exceed six hundred dollars per annum. Each assistant
shall receive one thousand dollars per annum, and actual and neces-
sary traveling expenses not to exceed six hundred dollars. The clerk
to the State Fish and Game Warden shall receive a salary of one
thousand dollars per annum as full compensation for his services.
The State Fish and Game Warden, chief deputy and two assistants
and the clerk shall be paid monthly on the first of each month out
of the public treasury. And the chief deputy, two assistants and the
clerk shall be paid upon their sworn statements, which accounts
shall be approved by the State Game Warden. All other deputy
wardens shall each receive as compensation the sum of three dollars
per day for each day actually employed, but shall not be entitled
to receive any traveling or other expenses, except when sent out
of his district, and such expenses shall be subject to approval by
the State Game Warden, and shall not receive pay for more than
one hundred and fifty days in one year; such compensation to be
paid out of the public treasury upon the sworn account of the deputy,
which account shall be approved by the State Fish and Game Warden,
and forwarded to the State Auditor: Provided, That as soon as
sufficient funds are accumulated in the State fish and game fund in
Ch, 14. INSPECTOR OF MINES 253
the hands of the State Treasurer, the salary of the State Game
Warden, and the salaries of the deputy wardens and clerk shall be
paid out of that fund.
Historical: Laws 1905, 2 5 8, Sec. 23;
amended Laws 1907, 112, Sec. 13.
Extermination of Wild Animals.
Sec. 198. It is hereby made the duty of the State Game Warden
to devise and put into operation such methods and means as will
best secure and attain the extermination of wolves, coyotes, wildcats,
cougars and such other wild animals as are in the habit of preying
upon such game animals, birds and fowls as are protected by the
game laws of this State. The State Game Warden shall keep an
accurate account of all animals destroyed under the provisions of
thus section, and make report thereof at the same time and manner
as in the case of his other official acts, and shall, where practicable,
skin and preserve and dispose of all hides and furs of value, the
proceeds of which shall be accounted for, and paid into the State
Treasury an J credited to the fish and game fund.
Historical: Laws 1907, 301, Sees. of Section 1. Existing appropriations
1, 2, omitting the appropriation clause are saved by Section 17 of these Codes.
CHAPTER 14.
INSPECTOR OF MINES.
Section
2 05 Neglect of mine owner: Duty of
Attorney General.
206. Appointment of deputies.
207. Duty of Inspector in case of ac-
cidents.
208. Duties of Deputies.
209. Report of Inspector.
Section
199. Election, term of office and sal-
ary.
200. Disqualifications: Oath of In-
spector.
201. Duties in general.
:''!'. Examination of mines.
203. Office: Records: Reports to In-
spector.
204. Complaints to Inspector: Duties
of Inspector.
Note: This Chapter follows in a general way the Montana law. See
Montana Codes, 1895, Pol. Code, Sees. 580-590.
Election, Term of Office and Salary.
Sec. 199. The office of Inspector of Mines for the State of Idaho
is hereby created, the same to be filled biennially at the general
election by the qualified electors of the State as other offices. The
Inspector of Mines shall hold his office for the term of two years and
until his successor is elected and qualified. Before entering upon
the discharge of his duties as such Inspector of Mines, he shall file
an official bond in the sum of five thousand dollars, conditioned for
the faithful performance of the duties of his office, in form and
manner as other official bonds of State officers. The Inspector of
Mines shall receive as full compensation for his services a salary
of twenty-four hundred dollars per annum and his actual and neces-
sary traveling expenses when traveling in the discharge of his official
duties, not to exceed eighteen hundred dollars per annum, and all
necessary expenses for clerk hire, postage, stationery, printing, the
254
PUBLIC OFFICERS
Tit. 2
compensation of deputies and other office expenses, not to exceed
twelve hundred dollars per annum; and such compensation and ex-
penses shall be paid as the salary and expenses of other State officers
are paid.
Historical: Laws 18 99, 2 21, Sees. 1,
2, 13; re-enacting Laws 1895, 160,
Sees. 1, 2, 13. Sec. 2 was amended by
an act of the 9th session of the State
Legislature (H. B. No. 230) which,
through some oversight, is omitted
from the 1907 Session Laws. The lan-
guage of the foregoing section follows
the amendatory act. The three sec-
tions are re-written in combination,
the order of phraseology being slightly
changed.
Cross Reference: Member State
Highway Commission: Sec. 1061. Sal-
ary: Sec. 274.
Disqualifications: Oath of Inspector.
Sec. 200. The Inspector of Mines shall not, at the time of his ap-
pointment or any time during his term of office, be an officer, director,
or employee in or of any mining corporation in this State, or in
or of any milling corporation in the State engaged in the business
of smelting or reducing ores. Such Inspector shall devote his whole
time to the duties of his office and snail take and subscribe to the
following oath:
State of Idaho, County of — ss,
I, of County, do solemnly swear that I will perform
each and every duty required of me as Inspector of Mines for the
State of Idaho; that I will, at all times while acting in my official
capacity, fulfill the duties of such office according to law, and to the
best of my skill and understanding; that I will never at any time
while holding the office of Inspector of Mines disci ose to any one
directly or indirectly, under any circumstances, any information rela-
tive to ore bodies, chutes, or deposits of ore, or the location, course
or character of underground workings, or give my opinion founded
on any examination made in the performance of my official duties
relative to the value of any mine or mining property, unless by per-
mission of the person or persons in charge of the same; to all of
Which I pledge my sacred honor. So help me God.
Nothing in said oath, however, shall be construed to prevent such
Mining Inspector from making full and complete statistical reports
as required by law.
Historical: Laws 18 99, 221, Sec. 3;
re-enacting Laws 18 93, 15 2, Sec. 2;
amended Laws 1895, 160, Sec. 2.
Duties in General.
Sec. 201. It shall be the duty of the Inspector of Mines, at least
once each year, to visit in person each mining county in the State
of Idaho and examine all such mines therein as, in his judgment,
may require examination for the purpose of determining the con-
dition of such mines as to safety, and to collect information and
statistics relative to mines and mining and the mineral resources
of the State, and to collect, arrange and classify mineral and geological
specimens found in this State and to forward the same to the State
School of Mines.
Historical: Laws 1899, 221, Sec. 4;
re-enacting Laws 1893, 152, Sec. 4;
amended Laws 1895, 160, Sec. 3.
Ch. 14. INSPECTOR OF MINES 255
Examination of Mines.
Sec. 202. Said Inspector shall have full power and authority, at
all reasonable hours, to enter and examine any and all mines in this
State, and shall have the right to enter into any and all mine stopes,
levels, winzes, tunnels, shafts, drifts, cross-cuts, workings and ma-
chinery, for the purpose of such examination; and the owner, lessor,
lessee, agent, manager, or other person in charge of such mine or
mines, shall render the Inspector such assistance as may be required
by the Inspector to enable him to make a full, thorough and com-
plete examination of each and every part of such mine or mines, and
whenever, as the result of the examination of any mine (whether
such examination is made in consequence of a complaint, as herein-
after provided, or otherwise) the Inspector shall find the same to be
in an unsafe condition, he shall at once serve, or cause to be served,
a written notice upon the owner, lessor, lessee, agent, manager or
other person in charge of such mine, stating in detail in what par-
ticular or particulars the mine is dangerous or insecure, and shall
require all necessary changes to be made, without delay, for the
purpose of making said mine safe for the employees therein. Upon
the neglect or refusal of any owner, lessor, lessee, agent, manager
or other person in charge, so notified to comply with the requirements
stated in such notice so served, such owner, lessor, lessee, agent,
manager or other person in charge, of such mine shall be deemed
guilty of a misdemeanor, and is punishable by a fine of not more
than five hundred dollars, and each day's continuance of such neglect
or refusal shall be a separate offense, and in case of any criminal
or civil proceeding at law against the party or parties so notified,
on account of the loss of life, or bodily injury sustained by any em-
ployee subsequent to the service of such notice, and in consequence
of a neglect or refusal to obey the Inspector's requirement, a certified
copy of the notice served by the Inspector shall be prima facie evi-
dence of the culpable negligence of the party or parties so notified.
Historical: Laws 1899, 221, Sec. 5;
re-enacting- Laws 1893, 152, Sec. 5;
amended Laws 1895, 160, Sec. 4.
Office: Records: Reports to Inspector.
Sec. 203. The Inspector of Mines shall be provided with a properly
furnished office, at the State House in Boise City, Idaho, in which he
shall carefully keep a complete record of all mines examined, showing
the date of examination, the condition in which the mines were found,
the manner and method of working, the extent to which the laws
are obeyed, and what recommendations, if any, were ordered by the
Inspector.
It is hereby made the duty of the owner, lessor, lessee, agent,
manager or other person in charge of each and every mine, of what-
ever kind or character, within the State, to forward to the Inspector
of Mines at his office, not later than the first day of June in each year,
a detailed report showing the character of the mine, the number of
men then employed and the estimated maximum number of men to
be employed therein during the ensuing year, the method of working
such mine and the general condition thereof, and such owner, lessor,
256 PUBLIC OFFICERS Tit. 2
lessee, agent, manager or other person in charge of any mine within
the State, must furnish whatever information relative to such mine
as the Inspector of Mines may, from time to time, require for his
guidance in the proper discharge of his official duties.
Historical: Laws 1899, 221, Sec. 6;
re-enacting Laws 18 93, 152, Sec. 6;
amended Laws 1895, 160, Sec. 5.
Complaints to Inspector: Duty of Inspector.
Sec. 204. Whenever the Inspector of Mines shall receive a formal
complaint in writing, signed by three or more persons, setting forth
that the mine in which they are employed is dangerous in any respect,
he shall, in person, visit and examine such mine: Provided, Every
such formal complaint shall in all cases specifically set forth the nature
of the danger existing at the mine and shall describe, with as much
certainty as is possible, how much danger, apparent or real, renders
such mine dangerous, and shall set forth the time when such danger
was first observed, and shall distinctly set forth whetner or not
any notice of such defect or danger has been given to the complain-
ants, or any one else to their knowledge, to the superintendent or
other person in charge of such mine, and if no such complaint has
been made to such superintendent or other person in charge, the
reason why it has not been made: and Provided, further, That all
complaints shall be duly verified by the parties complaining, before
some officer authorized by law to administer oaths. After such com-
plaint shall have been received by the Inspector of Mines, it shall
be the duty of such Inspector to serve a certified copy thereof, but
Without the names of the complainants, upon the owner, lessor, lessee,
agent, manager, or other person in charge, and, as soon as possible
after receiving such complaint to visit and examine such mine, and
if, from such examination he shall find such complaint to be just, he
shall give notice in writing of the danger existing to the owner, lessor,
lessee, agent, manager, or other person in charge thereof, and in
such notice may, in his discretion, order such mine or workings in
which such danger exists, closed, until such danger has been removed.
The names of complainants complaining as in this section provided,
shall not, under any circumstances, be divulged to any person by
said Inspector except such action be necessary in the administration
of justice in the courts of the State.
Historical: Laws 189 9, 221, Sec. 7;
re-enacting Laws 1893, 152, Sec. 7;
amended Laws 1895, 160, Sec. 6.
Neglect of Mine Owner: Duty of Attorney General.
Sec. 205. It shall be the duty of the Inspector of Mines upon the
neglect or refusal of any owner, lessor, lessee, agent, manager, or
other person in charge of any mine or working, notified of the unsafe
or dangerous condition of his mine, promptly to comply with the
requirements of the notice served upon him, to at once notify the
Attorney General of such neglect or refusal, and the Attorney Gen-
eral must thereupon immediately commence action in the name of
the State against the party so notified for the recovery of the penalty
Ch. 14. INSPECTOR OF MINES 257
mentioned in Section 202, in any court of competent jurisdiction,
and the amount so recovered shall be paid into the general school
fund of the State and constitute a part thereof.
Historical: Laws 18 99, 221, Sec. 8;
re-enacting Laws 1893, 152, Sec. 9;
amended Laws 1895, 160, Sec. 8.
Appointment of Deputies.
Sec. 206. With the consent and approval of the Governor, the In-
spector of Mines may appoint such deputy inspectors as in his judg-
ment may be necessary. Such deputy inspectors shall be allowed,
as full compensation for all services, five dollars per day for each
day actually engaged in the performance of their duties.
Historical Laws 1899, 221, Sec. 9;
re-enacting Laws 1895, 160, Sec. 9.
Duty of Inspector in Case of Accidents.
Sec. 207. Whenever a serious or fatal accident shall occur in any
mine in the State of Idaho, it shall be the duty of the owner, lessor,
lessee, agent, manager or other person in charge thereof, immediately
and by the quickest means, to notify the Inspector of Mines or his
deputy, as may be most convenient, of such accident; and upon re-
ceiving such notice the Inspector or his deputy, or both, shall at
once repair to the place of the accident and investigate fully the
cause of such accident; and the Inspetor or his deputy shall be
present at any coroner's inquest held over the remains of any person
or persons killed in any such accident, and shall have power at such
inquest to examine and cross-examine witnesses, and may have
process to compel the attendance of necessary witnesses at such in-
quest. If the Inspector or deputy inspector cannot be immediately
present in case of a fatal or serious accident occurring, it shall be
the duty of the owner, lessor, lessee, agent, manager, or other person
in charge of the mine in which such accident has occurred, to have
statements made and verified by those witnessing such accident (in
case no person was present at the time of the accident, then the
statement of those first present thereafter shall be taken), which
statements shall be verified, and such verified statements shall be
placed in the hands of the Inspector or deputy inspector, upon the
demand of such officer. Whenever any deputy inspector is present
at any coroner's inquest and assists in the examination, he shall at
the conclusion thereof, at once prepare and forward to the Inspector
a full and detailed report of the accident, giving all information ob-
tainable regarding the same.
Historical: Laws 1899, 221, Sec. 10;
re-enacting Laws 1895, 160, Sec. 10.
Duties of Deputies.
Sec. 208. The duties of deputy inspectors shall only be such as
are indicated in the preceding section; that is, to attend and act
either with or in place of the Inspector of Mines in cases of accident,
at the scene of such accident, and at coroner's inquests, and to make
reports.
258
PUBLIC OFFICERS
Tit. 2
Historical: Laws 1899, 221, Sec. 11;
re-enacting Laws 1895, 160, Sec. 11.
Report of Inspector.
Sec. 209. The Inspector of Mines shall, on or before the first day
of December of each year, file with the Governor of the State a
printed report giving :
1. A list of all accidents that have occurred during the year, the
nature and cause of the same, together with the persons killed and
injured:
2. The number of mines visited or examined during the year;
the number of mines in operation; the number of mines idle; the
number of men employed; the wages paid, and the nationality of
employees ;
3. The name and location of each mine in the State, which has
been examined and from which the Inspector has received a report
as provided in Section 203, and all data possible in regard to the
manner of working the same, whether by shaft, tunnel, incline or
otherwise; the condition of the hoisting machinery, boilers, whims,
engines, cars, buckets, ropes and chains, used in the mines; also the
appliances used for the extinguishing of fires ; the manner and
methods of working and timbering the shafts, drifts, inclines, stopes,
winzes, tunnels and up-rises through which persons pass to and fro
while engaged in their daily labor; the character of the exits from
the mine, the methods of ventilation, and the system of signals used
in the mine;
4. The number and character of notices served, together with
suggestions and recommendations made, and the manner in which
such suggestions and recommendations were complied with;
5. The number of complaints received and actions thereon ;
6. The number of prosecutions for neglect or refusal to comply
with notices;
7. A summary of the reports received from mine owners and
deputy inspectors;
8. A full statement containing all available statistical and other
information calculated to exhibit the mineral resources of the State,
and to promote the development of the same;
9. Generally, such other information and suggestions as may be
deemed advisable.
Historical: Laws 1899, 221, Sec. 12;
re-enacting Laws 1895, 160, Sec. 12.
"On or before the first day of Decem-
ber" inserted in place of "on the first
Monday of December" to conform to
Laws 1903, 149," Sec. 2. (Codes, Sec.
279.)
CHAPTER 15.
OTHER EXECUTIVE OFFICERS AND BOARDS.
Section
210. General reference to other offi-
cers and boards.
General Reference to Other Officers and Boards.
Sec. 210. The appointment or constitution, and the organization,
powers and duties, of such other State boards and commissions as
Ch. 16. Art. 1.
JUDICIAL DEPARTMENT — JUDGES
259
are authorized and provided for by law, for the administration of
departments of the government, or the supervision, direction and
control of the educational, charitable, penal or other institutions, of
the State, and the election or appointment, and the powers and duties,
of officers and employees working under or in co-operation with such
boards or commissions, or independently thereof in the administra-
tion of departments or branches of the State government, are pro-
vided for in these Codes in the titles, chapters and articles treating
of the institutions or departments of government supervised and
administered by such boards, commissions, officers or employees.
Historical: New section by Com-
missioner inserted to preserve the con-
tinuity of the text.
Cross Reference: Board of Pardons:
Sees. 8248-8264. Board of State Pris-
on Commissioners. Sees. 8460-8469.
Board of Land Commissioners: Sec.
1558. Board of Equalization: Sec.
1702. Highway Commission: Sec. 1061.
Regents of University: Sec. 486.
Trustees of Lewiston Normal School:
Sec. 501. Trustees of Albion Normal
School: Sec. 517. Trustees of Acad-
emy of Idaho: Sec. 546. Commission
of Summer Normal Schools: Sec.
533. State Board of Public Instruc-
tion: Sec. 558. State Superintendent
of Public Instruction: Sec. 565. State
Library Commission: Sec 672. Direc-
tors of Insane Asylum: Sec. 751. Di-
rectors of North Idaho Insane Asylum:
Sec. 786. Trustees of Industrial
Training School: Sec. 806. Trustees
of Soldiers' Home: Sec. 794. Trus-
tees of Historical Society: Sec. 848.
Live Stock Sanitary Board: Sec. 115 3.
Board of Health: Sec. 1080. Board
of Dairy, Food and Oil Commission-
ers: Sec. 1114. Board of Horticultural
Inspection: Sec. 1310. Grain Commis-
sion: Sec. 1478. Board of Medical
Examiners: Sec. 1341. Board of Den-
tal Examiners: Sec. 13 57. Board of
Osteopathic Examination and Regis-
tration: Sec. 1366. Board of Exam-
iners in Optometry. Sec. 1374. Board
of Pharmacy: Sec. 1385. Board of
Examining Surveyors: Sec. 1401. La-
bor Commission: Sec. 1426. Commis-
sioner of Immigration, Labor and
Statistics: Sec. 1418. Librarian of
Law Library: Sec. 834. Lumber In-
spectors: Sec. 1495.
CHAPTER 16.
OFFICERS OF THE JUDICIAL DEPARTMENT.
Article
1. Judges.
2. Clerk of the Supreme Court.
Article
3. Supreme Court Reporter.
4. Other court officers.
ARTICLE 1.
JUDGES.
Section
211. Cross reference to Judges.
Cross Reference to Judges.
Sec. 211. The election, duties and powers of the Justices of the
Supreme Court and Judges of the District Courts are provided for
in the Code of Civil Procedure and the Penal Code. Probate judges
and justices of the peace are provided for in Title 11, of this Code,
and their powers and duties are such as are prescribed by this Code,
the Code of Civil Procedure and the Penal Code.
Historical: New section by Commis-
sioner inserted to preserve the con-
tinuity of the text.
Cross Reference: Justices of the Su-
preme Court: Const. Art. 5, Sec. 6;
C. C. P. Sec. 3814. District Judges:
Const. Art. 5. Sec. 11; C. C. P. Sec.
3 82 9. Probate Judges: Const. Art.
5, Sec. 21; Pol. Code, Sees. 1989, 1990.
Justices of the peace: Const. Art. 5,
Sec. 22; Pol. Code, Sec. 2104.
260
PUBLIC OFFICERS
Tit 2
ARTICLE 2.
CLERK OF THE SUPREME COURT.
Section
Sect
ion
212. Duties in general.
217.
Prohibitions.
213. Fees.
218.
May take acknowledgments
214. Filing papers.
219.
Official bond.
215. Responsibility for books and
220.
Salary.
papers.
221.
Deputy clerks.
216. May administer oaths.
Duties in General.
Sec. 212. The Clerk of the Supreme Court must perform such
duties as are prescribed in the Penal Code and Code of Civil Pro-
cedure, and such duties as may be required of him by the rules and
practice of the Court. He must keep his office in the Capitol building.
Cross Reference: Clerk of Supreme
Court to be appointed by the Court:
Const. Art. 5, Sec. 15. Clerk to report
to State Treasurer names of attorneys
admitted to practice: Sec. 840.
Historical: Rev. St. 188 7, Sec. 2 60,
and first clause of Sec. 263. The re-
mainder of Sec. 263 is repealed by
Const. Art. 4, Sec. 18, creating the
Board of Examiners.
California Legislation: Same: Pol.
Code 1872, Sec. 750; Deering's Code,
ib.; Kerr's Code, ib.
Fees.
Sec. 213. The Clerk of the Supreme Court may lawfully charge,
demand and receive the following fees for services rendered in dis-
charging the duties imposed on him by law :
For filing each transcript of record from an inferior court, one
dollar; for entering any motion, rule or order, fifty cents; for en-
tering judgment, for each folio, thirty cents; for each certificate
given at request, and under seal, fifty cents; for copy of record, or
opinion of court, or other paper, for each folio, twenty cents; for
entering each cause on calendar, and making copy for bar, fifty
cents; for filing each paper, twenty-five cents; for every remittitur
or mandate, for each folio, twenty cents ; for certificate of admission,
as attorneys or counsellors, including seal, oath and order, two dollars;
for administering oaths, or affirmations, including jurat, twenty-five
cents; for taking and writing out acknowledgments of deeds, or
other instruments, for each signature, including seal, fifty cents;
for recording opinion of Court, each folio, twenty cents; for issuing
any process of Court, including seal, one dollar. .
Historical: Rev. St. 1887, Sec. 262.
See 6 Ter. Ses. (1871) 15, Sec. 3.
California Legislation: Different:
Pol. Code 1872, Sec. 752; as amended;
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Filing Papers.
Sec. 214. He must file all papers that may be legally lodged with
him for that purpose, noting the day, month, and year when so filed.
Historical: Rev. St. 1887, Sec. 2 64.
2 Ter. Ses. (1864) 423, Sec. 4.
Responsibility for Books and Papers.
Sec. 215. He is responsible for the safe custody and delivery to
his successor of all books and papers belonging to his office.
Ch. 16. Art. 2. judicial department — clerk of supreme court 261
Prohibitions.
Historical: Rev. St. 188 7, Sec. 2 6 5.
2 Ter. Ses. (1864) 423, Sec. 5.
May Administer Oaths.
Sec. 216. He may administer oaths in every case where an oath
is authorized by law.
Historical: Rev. St. 18 87, Sec. 266.
2 Ter. Ses. (1864) 423, Sec. 6.
Prohibitions.
Sec. 217. He must not practice as an attorney or counsellor, nor
be surety or bail in any case in the court of which he is clerk.
Historical: Rev. St. 1887, Sec. 267.
2 Ter. Ses. (1864) 423, Sec. 7.
May Take Acknowledgments.
Sec. 218. He is authorized to take acknowledgments of deeds and
instruments of writing under the seal of his office.
Historical: Rev. St. 1887, Sec. 26 8.
2 Ter. Ses. (1864) 423, Sec. 8.
Cross Reference: May take acknowl-
edgments: Sec. 3123.
Official Bond.
Sec. 219. The Clerk of the Supreme Court must execute an official
bond in the sum of five thousand dollars.
Historical: Rev. St. 188 7, Sec. 2 69.
See 2 Ter. Ses. (1864) 423, Sec. 2.
California Legislation: Same except
"ten" for "five": Pol. Code 1872, Sec.
757; Deering's Code, ib.; Kerr's Code,
ib.
Salary.
Sec. 220. The Clerk of the Court shall receive a salary of two
thousand five hundred dollars per annum, payable quarterly out of
the State Treasury upon warrants issued by the Auditor. Said salary
shall be the only compensation he shall receive for all services re-
quired of him, or of any deputy he may appoint, with the exception
of the deputy resident at the City of Lewison, provided for in the
next section. Nothing herein contained shall affect the right of the
Clerk to receive compensation as reporter of the decisions of the
Supreme Court as provided in Section 222.
The Clerk shall, on the first day of January, April, July and
October of each year, deliver to the State Auditor a statement, verified
by oath, showing the different items of fees received or charged by
him, from whom, at what time, and for what services, during the
preceding three months, and on the same day he shall pay to the
State Treasurer the amount of said fees, who shall give his receipt
therefor, and, upon exhibition of said receipt, the Auditor shall draw
his warrant upon the Treasury for the amount of salary due.
Historical: This section is a com-
pilation based on Laws 1899, 6, Sees.
4, 5, 6, 7, which re-enact Laws 1890-
91, 11, Sec. 3, amended Laws 1893, 63,
3; Laws 1893, 63, Sec. 2; Laws
1890-91, 11, Sec. 3, amended Laws
1893, 63, Sec. 4; Laws 1890-91, 11, Sec.
~, respectively. The exception of the
Lewiston deputy from the salary
provision is not found verbatim in the
1899 laws but is based on the fifth
section of that law (see following sec-
tion). The provision of Sec. 4 of the
1899 law which authorizes the ap-
pointment of deputies by the cierk is
not germane to that section and is in-
cluded in Sec. 221. The portion of Sec.
6 of the 18 99 laws which requires the
clerk to provide furniture, etc., for the
Lewiston deputy is obsolete since the
enactment of Laws 1903, 42, provid-
ing a Supreme Court building located
262
PUBLIC OFFICERS
Tit 2
at the city of Lewiston. The further
provisions of this section for the sal-
aries of crier, bailiff, and messen-
ger are found in Sec. 3822.' The ex-
ception, from the salary, provision, of
the clerk's compensation as reporter is
based on Laws 1903, 367, Sec. 1, found
in Sec. 222 post.
Deputy Clerks.
Sec. 221. The Clerk of the Supreme Court may appoint one or
more deputies, and shall appoint a deputy clerk resident at the City
of Lewiston, who shall keep his office in the Supreme Court building
in said city, and who shall receive as compensation for his services
the sum of seventy-five dollars per month, in full payment for all
his services as such deputy clerk, to be paid to him monthly by the
Treasurer of the State out of any moneys in the Treasury not other-
wise appropriated.
Historical: Laws 18 99, 6, Sec. 5; re-
enacting Laws 1893, 63, Sec. 2, as
modified by, and combined with, the
latter part of Laws 1903, 42, Sec. 12.
The words "may appoint one or more
deputies" are inserted on the authority
of Laws 1899. 6, Sec. 4.
Cross Reference: Lewiston deputy
clerk is custodian of Lewiston Law
Library: Sec. 841.
ARTICLE 3.
SUPREME COURT REPORTER.
Section
222. Clerk to be ex-officio reporter
223. Decisions to be reported.
2 2 4. Same: How prepared.
225. Name of reports.
Section.
2 2 6. Distribution of reports.
227. Contract to print reports.
228. Bond of printer.
229. Receipt to printer.
Clerk to Be Ex-Officio Reporter.
Sec. 222. The Clerk of the Supreme Court shall be ex-officio re-
porter of the decisions of the Supreme Court, and shall receive the
sum of one hundred dollars per volume for his services in the prep-
aration of the decisions of said court.
Historical: Laws 1903, 36 7, Sec. 1.
Decisions to Be Reported.
Sec. 223. The reporter of the decisions of the Supreme Court must
prepare a report of all decisions of such court not reported in Volume
1, new series.
Historical: Laws 1903, 36 7, Sec. 2.
Same: How Prepared.
Sec. 224. The decisions shall be prepared for publication by giv-
ing the title to each case, a syllabus of the points decided, the names
of the counsel appearing in the Supreme Court in the case, and
synopsis of the briefs with reference to such standard reports and
text books as have a special bearing upon the points decided, and
each volume shall contain, at the end thereof, a full and comprehensive
index alphabetically arranged, and there shall be prefixed thereto
a table of cases decided, a table of cases cited, and a table of statutes
and constitutional provisions construed.
Historical: Laws 19 03, 367, Sec. 3.
Ch. 16. Art. 3. judicial department — supreme court reporter 263
Name of Reports.
Sec. 225. The first volume to be published under the provisions
of this article shall be called "Idaho Reports Volume 2," and shall
commence with the decisions immediately following those reported
in Volume 1, Idaho Reports, new series, published 1882, and all
decisions reported in said Volume 2, and subsequent volumes, shall
be reported in the order in which the decisions were handed down,
chronologically. Said volume and all subsequent volumes shall be
uniform in size and amount of matter contained with said Volume
1, Idaho Reports, new series, and the style of type the same and
composition shall be similar, and the paper and binding and all
material and work, including sewing, shall be equally as good, and
similar to that used in said Volume 1, Idaho Reports, new series.
Each volume of said reports when printed, shall contain not less
than eight hundred pages, exclusive of the index thereto.
Historical: Laws 1903, 36 7, Sec. 4.
Distribution of Reports.
Sec. 226. The reporter shall have no pecuniary interest in the re-
ports, but he shall, in his name, but for and on behalf and for
the sole benefit of the State of Idaho, copyright each and every
volume of said reports before final issue from press. The decisions
of the said Supreme Court which are not contained in said Volume 1,
Idaho Reports, new series, shall be prepared for publication, by
the reporter, as rapidly as possible, and as soon as a sufficient num-
ber of decisions are prepared to fill a volume, such volume shall be
printed, and four hundred copies thereof delivered to the State
Librarian, who shall distribute them as follows: To the Librarian
of Congress, two copies; to the Idaho State Library, five copies;
to the University of Idaho, to the Albion Normal School, and to
the Lewiston Normal School, each one copy; to the library at the
State Penitentiary, one copy; to each county prosecuting attorney,
one copy; to each probate judge, one copy; to each District Judge,
one copy; to each Justice of the Supreme Court, one copy; to the
Clerk of the Supreme Court, two copies, to be kept in the court
room during the sessions of court for the use of the bar; to each
State and Territory in the United States, two copies, for the use
of the State Library thereof; to each foreign state or country, send-
ing to this State copies of its printed court reports, two copies; to
the Governor, Secretary of State, State Treasurer, State Auditor,
Attorney General, Superintendent of Public Instruction, State En-
gineer, and State Mine Inspector, each, one copy: Provided, That
each public officer receiving a copy of any volume or volumes of said
reports, under the provisions of this section, shall take good care
of the same, and shall, upon retiring from office, turn the same over
to his successor in office: Provided further, That copies of any
volume of such reports may be again issued to any of said officers,
institutions, States or Territories upon good and sufficient proof of
loss of the copies sought to be replaced, presented to the Justices
of the Supreme Court, who may, by writing signed by a majority
of the Justices, direct the Librarian to furnish another copy of the
264 PUBLIC OFFICERS Tit 2
volume so lost, in place thereof, but no direction to furnish another
copy shall be made in any case, without good and sufficient evidence
showing that the officer, institution, State or Territory sustaining
such loss, sustained the same without fault or negligence.
Historical: Laws 1903, 367. Sec. 5.
Contract to Print Reports.
Sec. 227. The contract to print the reports of such decisions, shall
be let by the reporter with the approval of the Justices of the Su-
preme Court, or a majority therof, to some person or persons who
will print the same on terms most advantageous to the State, and
who will furnish the State with four hundred copies of each volume
at a cost not to exceed three dollars and fifty cents per copy, per
volume, and who will agree to furnish copies of the reports to the
public at a price not exceeding three dollars and fifty cents per copy,
per volume : Provided, The work shall be done in the State of Idaho,
if responsible parties therein offer to do said work on terms as favor-
able to the State as any outside bidder.
Historical: Laws 1903, 36 7, Sec. 6.
Bond of Printer.
Sec. 228. The person to whom the contract for printing any one
or more volumes of reports under the provisions of this article, may
be awarded, shall give a good and sufficient bond running to the
State, in the penal sum of five hundred dollars for each volume,
conditioned that he will faithfully perform all the requirements of
said contract and all of the provisions of this article.
Historical: Laws 1903, 36 7, Sec. 7.
Receipt to Printer.
Sec. 229. The Librarian of the State Library shall give to the
contracting printer a receipt for all copies of reports of said decisions
delivered to him by such printer, and the Librarian shall keep a
correct record, in a book kept especially for that purpose, of all
volumes received and distributed under the provisions of this article,
and shall take a receipt for all copies of such reports distributed,
and file and preserve the same.
Historical: Laws 1903, 367, Sec. 8.
ARTICLE 4.
OTHER COURT OFFICERS.
Section
230. Cross Reference to other court
officers.
Cross Reference to Other Court Officers.
Sec. 230. Other officers of courts are the clerks of the District
Courts; clerks of the probate courts; stenographic reporters, and
the crier, bailiff and messenger of the Supreme Court. The office,
bond, fees and general duties of the clerks of the District Courts
are provided for in Title 11, of this Code, and the appointment, com-
Ch. 17.
NOTARIES PURLIC
265
pensation and duties of the other officers mentioned in this section
are provided for in the Code of Civil Procedure and the Penal Code.
Historical: New section by Commis-
sioner inserted to preserve the con-
tinuity of the text.
Cross Reference: Clerks of the Dis-
trict Courts: Election: Const. Art. 5,
Sec. 16; duties in general. Sees. 2049-
2051; deputies: Sees. 1975-1980; bond:
Sec. 1987; fees: Sec. 212JL. Clerks of
probate courts: Sec. 3844. Stenograph-
ic reporters: Sees. 3980-3988. Su-
preme Court crier, bailiff and messen-
ger: Sec. 3822.
CHAPTER 17.
NOTARIES PUBLIC.
Section
231. Appointment and commission.
232. Oath and bond.
233. Same: Filing.
234. Qualifications and residence of
notaries.
235. Change in county of residence.
Duplicate certificate.
236. General duties.
Section
23 7. Protest as evidence of facts.
238. Removal, death or resignation.
2 3 9. Certified copies of predecessor's
records.
2 40. Fees of notaries.
241. Certificate to be transmitted to
clerk.
2 42. Liability for misconduct.
Appointment and Commission.
Sec. 231. The Governor may appoint and commission in each
county as many notaries public as he may deem necessary, who shall
hold said office for the term of four years.
Historical: Rev. St. 1887, Sec. 285.
See 4 Ter. Ses. (1867) 47, Sec. 1;
amended 7 Ter. Ses. (1873) 59, Sec. 1.
California Legislation: Different:
Pol. Code 1872, Sec. 791; as amend-
ed: Deering's Code, ib.; similar as
further amended: Kerr's Code, ib.
Oath and Bond.
Sec. 232. Each notary public before entering upon the duties of
his office must take the usual oath of office, which must be indorsed
upon his bond, and must execute a bond to the State of Idaho in
the sum of one thousand dollars, with two or more sufficient sureties,
to be approved by the probate judge of the county for which said
notary may be appointed.
Historical: Rev. St. 1887, Sec. 286.
4 Ter. Ses. (1867) 47, Sec. 2; amend-
ed 5 Ter. Ses. (1868) 99, Sec. 1.
California Legislation: Different:
Pol. Code 1872, Sec. 799; as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Same : Filing.
Sec. 233. The bond, with the oath of office indorsed thereon and
duly attested, together with a specimen of the signature, and impress
of the official seal of the appointee, must be filed in the office of the
Secretary of State. At the issuance of any commission each appointee
must pay the sum of ten dollars to said Secretary, who must keep
an account of the same and pay one-half thereof to the State Library
fund, and may apply the residue as his fees in that behalf.
Historical: Rev. St. 1887, Sec. 287.
4 Ter. Ses. (1867) 47, Sec. 3;
amended 5 Ter. Ses. (1868) 99, Sec. 2.
California Legislation: Different:
Pol. Code 1872, Sec. 800; as amend-
ed: Deering's Code, ib.; further
amended: Kerr's Code, ib.
266
PUBLIC OFFICERS
Tit 2
Qualifications and Residence of Notaries.
Sec. 234. Every person appointed as notary public must, at the
time of his appointment, be an elector of the county for which he is
appointed, and must continue to reside in such county: Provided,
hoivever, That when by the creation of a new county, or a change
in the boundary of a county, or in any other manner, a notary be-
comes a resident of a county other than that of his appointment, he
he may hold his office for the county in which his residence may be,
without further appointment, for the remainder of the term covered
by his commission.
Historical: Rev. St. 188 7, Sec. 288;
amended Laws 1907, 55, Sec. 1.
Change in County of Residence: Duplicate Certificate.
Sec. 235. Upon the application of any notary, the county of whose
residence is changed as mentioned in the preceding section, and the
payment of a fee of one dollar, the Secretary of State shall issue
to such notary a certificate, in duplicate, of the facts, and showing
the authority of the notary to act in the county of his residence, one
copy of which certificate shall be filed in the office of the clerk of
the District Court of said county. Such notary shall thereupon pro-
cure, and thereafter use, a new seal to be engraved as is now required
by law.
Historical: Laws 1907, 55, Sec. 2.
General Duties.
Sec. 236. It is the duty of a notary public :
1. When requested, to demand acceptance and payment of for-
eign, domestic and inland bills of exchange, or promissory notes,
and protest the same for non-acceptance and non-payment, and to
exercise such other powers and duties as by the law of nations and
according to commercial usages, or by the laws of any other State,
Territory, government or country, may be performed by notaries ;
2. To take the acknowledgment of proof of powers of attorney,
mortgages, deeds, grants, transfers, and other instruments of writing
executed by any person, and to give a certificate of such proof or
acknowledgment indorsed on, or attached to, the instrument;
3. To take depositions and affidavits, and administer oaths and
affirmations, in all matters incident to the duties of the office, or to
be used before any court, judge, officer, or board' in this State;
4. To keep a record of all official acts done by him under the
first subdivision of this section;
5. When requested, and upon payment of his fees therefor, to
make and give a certified copy of any record in his office ;
6. To provide and keep an official seal, upon which must be en-
graved his name, the words, "Notary Public," and the name of the
county for which he is commissioned ;
7. To authenticate with his official seal all official acts.
Historical: Rev. St. 1887, Sec. 289.
See 4 Ter. Ses. (1867) 47, Sees. 4-11.
California Legislation: Similar: Pol.
Code 1872, Sec. 794; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Notary public
may take acknowledgments: Sec. 3124.
Ch, 17.
NOTARIES PURLIC
267
Protest as Evidence of Facts.
Sec. 237. The protest of a notary, under his hand and official seal,
of a bill of exchange or promissory note, for non-acceptance or non-
payment, stating the presentment for acceptance or payment, and
the non-acceptance or non-payment thereof, the service of the notice on
any or all of the parties to such bill of exchange or promissory note,
and specifying the mode of giving such notice and the reputed place
of residence of the party to such bill of exchange or promissory note,
and of the party to whom the same was given, and the postofnce
nearest thereto, is prima-facie evidence of the facts contained therein.
last line: Pol. Code 1872, Sec. 795;
same as amended: Deering's Code,
ib.; Kerr's Code, ib.
Historical: Rev. St. 18 87, Sec. 2 90.
See 4 Ter. Ses. (1867) 47, Sec. 12.
California Legislation: Same except
"primary" tor "prima facie", in the
Removal, Death or Resignation.
Sec. 238. If any notary die, resign, is disqualified, removed from
office, or removes from the county for which he is appointed, his
records and all his public papers must, within thirty days, be de-
livered to the recorder of the county, who must deliver them to the
notary's successor when qualified.
Historical: Rev. St. 1887, Sec. 2 91.
4 Ter. Ses. (1867) 47, Sec. 14.
California Legislation: Same except
"clerk" for "recorder", line 4: Pol.
Code 1872, Sec. 796; Deering's Code,
ib.; Kerr's Code, ib.
Certified Copies of Predecessor's Records.
Sec. 239. Every notary having in his possession the records and
papers of his predecessor in office, may grant certificates or give
certified copies of such records and papers, in like manner and with
the same effect as such predecessor could have done.
Code 1872, Sec. 797; Deering's Code,
ib.; Kerr's Code, ib.
Historical: Rev. St. 188 7, Sec. 2 92.
4 Ter. Ses. (1867) 47, Sec. 16.
California Legislation: Same: Pol.
Fees of Notaries.
Sec. 240. The fees of notaries are as follows: For drawing and
copying every protest for non-payment of a promissory note, or for
the non-payment or non-acceptance of a bill of exchange, draft or
check, three dollars, said sum shall be in full payment of all fees
for services of such notaries for drawing and serving every notice
of non-payment of a promissory note, or of the non-payment or non-
acceptance of a bill of exchange, order, draft or check, jor for
recording every protest, or for any other services necessary by such
notaries in connection therewith; for taking an acknowledgment or
proof of a deed or other instrument, to include the seal and the
writing of the certificate, fifty cents; for administering and certify-
ing an oath, twenty-five cents; for every certificate under seal, to
include writing the same, fifty cents.
Historical: Rev. St. 1887, Sec. 2 93;
amended Laws 1907, 156, Sec. 1.
California Legislation: See Pol.
Code 1872, Sec. 798; as amended
Deering's Code, ib.; Kerr's Code, ib.
268
PUBLIC OFFICERS
Tit 2
Certificate to Be Transmitted to Clerk.
Sec. 241. Each notary, as soon as he has taken his official oath
and filed his official bond, must transmit a certificate of the facts,
under the hand and seal of the Secretary of State, to the clerk of
the District Court for his county.
Historical: Rev. St. 1887, Sec. 294.
California Legislation: Similar: Pol.
Code 1872, Sec. 80 0; different as
amended: Deering's Code, ib.; fur-
ther amended: Kerr's Code, ib.
Liability for Misconduct.
Sec. 242. For the official misconduct or neglect of a notary public,
he and the sureties on his official bond are liable to the parties in-
jured thereby for all the damages sustained.
Historical: Rev. St. 18 8 7, Sec. 2 95;
See 4 Ter. Ses. (1867) 47, Sec. 13.
California L/egislatioii : Same: Pol.
Code 1872, Sec. 801; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 18.
COMMISSIONERS OF DEEDS.
Section
243. Appointment.
244. General duties.
2 45. Effect of Commissioner's acts.
246. Filing of oath.
Section
247. Fees.
2 48. Copy of chapter to be trans-
mitted.
2 49. Fee for issuing commission.
Appointment.
Sec. 243. The Governor may appoint in each State or Territory
of the United States, or in any foreign State, one or more commis-
sioners of deeds, to hold office for the term of four years from and
after the date of their commission.
Historical: Rev. St. 1887, Sec. 300.
See 1 Ter. Ses. (1864) 522, Sec. 1.
California Legislation: Same except
"or Territory" omitted: Pol. Code
1872, Sec. 811; Deering's Code, ib.;
Kerr's Code, ib.
General Duties.
Sec. 244. Every commissioner of deeds has power, within the
State for which he is appointed :
1. To administer and certify oaths;
2. To take and certify depositions and affidavits;
3. To take and certify the acknowledgment of proof of powers
of attorney, mortgages, transfers, grants, deeds, or other instru-
ments, for record;
4. To provide and keep an official seal, upon which must be en-
graved the words, "Commissioner for the State of Idaho,'' and the
name of the commissioner.
5. To authenticate, with his official seal, all his official acts.
Historical: Rev. St. 1887, Sec. 301.
See 1 Ter. Ses. (1864) 522, Sec. 1.
California Legislation: Similar: Pol.
Code 1872, Sec. 812; Deering's Code,
ib.; Kerr's Code, ib.
Effect of Commissioners' Acts.
Sec. 245. All oaths administered, depositions and affidavits taken,
Ch. 19. Art. 1. GENERAL PROVISIONS — QUALIFICATIONS
269
and all acknowledgments and proofs certified by commissioners of
deeds, have the same force and effect, to all intents and purposes,
as if done and certified in this State by any officer authorized by
law to perform such acts.
Historical: Rev. St. 1887, Sec. 30 2;
See 1 Ter. Ses. (1864) 522, Sec. 2.
California Legislation: Same: Pol.
Code 1872, Sec. 813; Deering's Code,
ib.; Kerr's Code, ib.
Filing of Oath.
Sec. 246. The official oaths of commissioners of deeds must be
filed in the office of the Secretary of State within six months after
they are taken.
Historical: Rev. St. 188 7, Sec. 303.
See 1 Ter. Ses. (1864) 522, Sec. 3.
California Legislation: Same: Pol.
Code 1872, Sec. 814; Deering's Code,
ib.; Kerr's Code, ib.
Fees.
Sec. 247. The fees of commissioners of deeds are the same as those
prescribed for notaries public.
Historical: Rev. St. 1887, Sec. 304.
California Legislation : Same: Pol.
Code 1872, Sec. 815; Deering-'s Code,
ib.; Kerr's Code, ib.
Cross Reference: Fees of notaries;
Sec. 240.
Copy of Chapter to Be Transmitted.
Sec. 248. The Secretary of State must transmit, with the com-
mission to the appointee, a certified copy of this chapter.
Historical: Rev. St. 18 8 7, Sec. 305.
See 1 Ter. Ses. (1864) 522, Sec. 4.
California Legislation: Same except
"Article, and of Section 798" for
"chapter"; Pol. Code 1872, Sec. 817;
Deering's Code, ib.; Kerr's Code, ib.
Fee for Issuing Commission.
Sec. 249. The Secretary of State is entitled to receive a fee of
five dollars for issuing each commission under the provisions of this
chapter, to be paid by the party applying therefor.
Historical: Rev. St. 1887, Sec. 306.
8 Ter. Ses. (1875) 674, Sec. 5.
CHAPTER 19.
GENERAL PROVISIONS APPLICABLE TO ALL OFFICERS.
Article
1. Qualifications and restrictions on
residence.
2. Prohibition against contracts with
officers.
3. Nominations and commissions.
Article
4. Oath of office.
5. Salaries of officers.
6. Reports of officers.
ARTICLE 1.
QUALIFICATIONS AND RESTRICTIONS ON RESIDENCE.
Section
250. Qualifications in general.
251. Legislators disqualified from
holding certain offices.
252. Residence of certain officers.
Section
2 53. Absence of State officers.
254. Offices to be provided in Capi-
tol building.
270
PUBLIC OFFICERS
Tit 2
Qualifications in General.
Sec. 250. Every qualified elector shall be eligible to hold any office
of this State for which he is an elector, except as otherwise provided
by the Constitution.
Historical: Laws 1899, 33, Sec. 5;
re-enacting Laws 1890-91, 57, Sec. 5.
Cross Reference: Qualifications of
electors: Const. Art. 6, Sec. 2. Of Leg-
islative officers: Const. Art. 3,
Sec. 6. Of executive officers:
Const. Art. 4, Sec. 3. ■ Of District
Judges: Const. Art. 5, Sec. 23. Of
prosecuting attorneys; Const. Art. 5,
Sec. 18. Disqualifications to hold of-
fice enumerated: Const. Art. 6, Sec. 3.
Legislators Disqualified From Holding Certain Offices.
Sec. 251. It shall be unlawful for any member of the Legislature,
during the term for which he was elected, to accept or receive, or
for the Governor, or other official or board, to appoint such member
of the Legislature to, any office of trust, profit, honor or emolument,
created by any law passed by the Legislature of which he is a member.
Any appointment made in violation of this section shall be null and
void and without force and effect, and any attempt to exercise the
powers of such office by such appointee shall be a usurpation, and
the appointee shall be deemed guilty of a misdemeanor, and, on
conviction, shall be fined not less than five hundred dollars nor more
than five thousand dollars.
Historical: Laws 1907, 308, Sees.
1, 2.
Residence of Certain Officers.
Sec. 252. The following officers must reside at and keep their
offices in Boise City:
The Governor;
Secretary of State;
Auditor ;
Treasurer ;
Attorney General;
Superintendent of Public Instruction, and
Clerk of the Supreme Court.
Historical: Rev. St. 1887, Sec. 325.
California Legislation: Similar:
Pol. Code 1872, Sec. 852; Deering's
Code, ib.; Kerr's Code, ib.
Absence of State Officers.
Sec. 253. No State or district officer must absent himself from
the State or district for more than thirty days, unless upon business
of the State, or with the consent of the Governor.
Historical: Rev. St. 1887, Sec. 326;
amended Laws 1890-91, 21, Sec. 1;
re-enacted Laws 1899, 13, Sec. 1.
California Legislation: See Pol.
Code 1872, Sec. 853; as amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Offices to Be Provided in Capitol Building.
Sec. 254. The officers enumerated in Section 252 may occupy,
without rent or charge, the offices provided for them respectively in
the Capitol building; and no pay or allowance must be made to any
one of said officers for rent, fuel, or lights whether such officer occupy
such office or not.
Ch. 19. Art. 2. general provisions — prohibitions
271
Historical: Rev. St. 1887, Sec. 327.
ARTICLE 2.
PROHIBITIONS AGAINST CONTRACTS WITH OFFICERS.
Section
255. Officers not to be interested in
contracts.
256. Nor in sales.
Prohibited contracts voidable.
Section
258. Dealing in warrants prohibited.
259. Officers to make affidavit.
260. Duty of disbursing officers.
2 61. Prosecution of offenders.
Officers Not to Be Interested in Contracts.
Sec. 255. Members of the Legislature, State, county, city, district
and precinct officers, must not be interested in any contract made
by them in their official capacity, or by any body or board of which
they are members.
Historical: Rec. St. 1887, Sec. 365.
California Legislation: Same except
"and township" for "district and pre-
cinct}": Pol. Code 1872, Sec. 920;
Deering's Code, ib.; Kerr's Code, ib.
Cited: (Dis. op.) Ponting v. Isa-
man (1901) 7 Ida. 581; 65 Pac. 434;
Xuckols v. Lyle (1902) 8 Ida. 589; 70
Pac. 401.
Prohibited Contracts: A contract
made between the Secretary of State
and a printing company whereby the
former is to receive a part of the com-
pensation payable to the latter for
printing session laws and legislative
journals, is within the prohibitions of
this section. Anderson v. Lewis (1898)
6 Ida. 51; 52 Pac. 163.
Nor in Sales.
Sec. 256. State, county, district, precinct and city officers must
not be purchasers at any sale nor vendors at any purchase made by
them in their official capacity.
Historical: Rec. St. 18 8 7, Sec. 366.
California Legislation: Same except
"township" for "district, precinct":
Pol. Code 1872, Sec. 921; Deering's
('ode, ib.; Kerr's Code, ib.
Cross Reference : Penalty for offi-
cers purchasing at sales: Sec. 63 84.
Cited: Nuckols v. Lyle (1902)
Ida. 589; 70 Pac. 401.
Prohibited Contracts Voidable.
Sec. 257. Every contract made in violation of any of the pro-
visions of the two preceding sections may be avoided at the instance
of any party except the officer interested therein.
Historical: Rev. St. 1887, Sec. 367.
California Legislation: Same: Pol.
«''-<le 1872, Sec. 922; Deering's Code,
ib.; Kerr's Code, ib.
Dealing in Warrants Prohibited.
Sec. 258. The State Treasurer and Auditor, the several county,
city, district or precinct officers of this State, their deputies and
clerks, are prohibited from purchasing or selling, or in any manner
receiving to their own use or benefit, of any person or persons what-
ever, any State, county, or city warrants, scrip, orders, demands,
claims, or other evidences of indebtedness against the State, or any
county or city thereof, except evidences of indebtedness issued to or
held by them for services rendered as such officer, deputy or clerk,
and evidences of the funded indebtedness of such State, county, city,
district or corporation.
Vol 1—10
272
PUBLIC OFFICERS
Tit 2
Historical: Rev. St. 1887, Sec. 36 8.
See 8 Ter. Ses. (1875) 667, Sec. 1.
California Legislation: Similar
but "Controller" for "Auditor": Pol.
Code 1872, Sec. 923; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Penalty for offi-
cers dealing in scrip: Sec. 6384.
Officers to Make Affidavit.
Sec. 259. Every officer whose duty it is to audit and allow the
accounts of other State, county, district, city or precinct officers,
must, before allowing such accounts, require each of such officers
to make and file with him an affidavit that he has not violated any
of the provisions of this chapter.
Historical: Rev. St. 1887, Sec. 369.
California Legislation: Same Except
'city or town" for "district, city or
precinct", line 2: Pol. Code 1872,
Sec. 924; Deering's Code, ib.; Kerr's
Code, ib.
Duty of Disbursing Officers.
Sec. 260. Officers charged with the disbursement of public moneys
must not pay any warrant or other evidence of indebtedness against
the State, county, city or district, when the same has been purchased,
sold, received or transferred contrary to any of the provisions of
this chapter.
Historical: Rev. St. 1887, Sec. 370.
California Legislation: Same Except
"or town" for "or district", line 3:
Pol. Code 1872, Sec. 925; Deering's
Code, ib.; Kerr's Code, ib.
Prosecution of Offenders.
Sec. 261. Every officer charged with the disbursement of public
moneys, who is informed by affidavit that any officer whose account
is to be settled, audited, or paid by him, has violated any of the pro-
visions of this chapter, must suspend such settlement or payment,
and cause such officer to be prosecuted for such violation.
Historical: Rev. St. 1887, Sec. 371.
See 8 Ter. Ses. (1875) 667, Sec. 5.
California Legislation: Same Except
"about" inserted after "is", line 3:
Pol. Code 1872, Sec. 926; additional
provision as amended: Deering's Code,
ib.; Kerr's Code, ib.
ARTICLE 3.
NOMINATION'S AND COMMISSIONS.
Section
262. Nominations to be in writing.
263. Resolution of concurrence.
264. Commissions by Governor.
Section
265. Form of commission.
266. Other. commissions.
267. Appointment of deputies.
Nominations to Be in Writing.
Sec. 262. Nominations made by the Governor to the Senate must
be in writing, designating the residence of the nominee and the office
for which he is nominated.
Historical: Rev. St. 1887, Sec. 335.
California Legislation : Same: Pol.
Code 1872, Sec. 889; Deering's Code,
ib.; Kerr's Code, ib.
Resolution of Concurrence.
Sec. 263. Whenever the Senate concurs in a nomination, its Secre-
tary must immediately deliver a copy of the resolution of concurrence,
certified by the President and Secretary, to the Governor.
Ch. 19. Art. 4. general provisions — oath of office
273
Appointment of Deputies.
Sec. 267. The appointment of deputies, clerks, and subordinate
1 officers, when not otherwise provided for, must be made in writing,
filed in the office of the appointing power or the office of its clerk.
Historical: Rev. St. 1887, Sec. 336.
California Legislation : Similar:
Pol. Code 1872, Sec. 890; Deering's
Code, ib.; Kerr's Code, ib.
Commissions by Governor.
Sec. 264. The Governor must commission :
1. All officers of the militia;
2. All officers appointed by the Governor, or by the Governor
with the advice and consent of the Senate.
Historical: Rev. St. 188 7, Sec. 337.
California Legislation: Same in
part: Pol. Code 1872, Sec. 891; Deer-
ing's Code, ib. ; Kerr's Code, ib.
Form of Commission.
Sec. 265. The commissions of all officers commissioned by the
Governor must be issued in the name of the people of this State,
and must be signed by the Governor and attested by the Secretary
of State, under the great seal.
Historical: Rev. St. 1887, Sec. 33 8.
California Legislation: Same: Pol.
Code 1872, Sec. 892; Deering's Code,
ib.; Kerr's Code, ib.
Other Commissions.
Sec. 266. The commissions of all officers, where no special pro-
vision is made by law, must be signed by the presiding officer of the
body, or by the person, making the appointment.
Historical: Rev. St. 1887, Sec. 339.
California Legislation: Same: Pol.
Code 1872, Sec. 893; Deering's Code,
ib.; Kerr's Code, ib.
Historical: Rev. St. 188 7, Sec. 3 40.
California Legislation : Same: Pol.
Code 1872, Sec. 894; Deering's Code,
ib.; Kerr's Code, ib.
ARTICLE 4.
OATH OF OFFICE.
Section
268. Form of oath.
269. Time of taking oath.
270. Before whom taken.
Section
2 71. Same: County officers.
2 72. Where filed.
273. Oath of deputies.
Form of Oath.
Sec. 268. Before any officer elected or appointed to fill any office,
created by the laws of the State of Idaho, enters upon the duties of
his office, he must take and subscribe an oath, to be known as the
official oath, which is as follows:
I do solemnly swear (or affirm) that I will support the Constitu-
tion of the United States, and the Constitution and the laws of this
State; that I will faithfully discharge all the duties of the office
of according to the best of my ability. So help me God.
Historical: Rev. St. 1887, Sec. 350;
amended Laws 1895, 14, Sec. 1; re-
enacted Laws 1899, 234, Sec. 1.
California Legislation: Similar:
Pol. ('ode 1872, Sec. 904; Deering's
Code, ib.; Kerr's Code, ib.
Cross Reference: Oath of members
of the Legislature: Const. Art. 3, Sec.
2.",; of Mine Inspector: Sec. 200.
274
PUBLIC OFFICERS
Tit. 2
Time of Taking Oath.
Sec. 269. Whenever a different time is pot prescribed by law, the
oath of office must be taken, subscribed and filed within ten days
after the officer has notice of his election or appointment, or before
the expiration of fifteen days from the commencement of his term
of office, when no such notice has been given.
Historical: Rev. St. IS
California Legislation :
7, Sec. 353.
Same: Pol.
Code 1872, Sec. 907; Deering's Code,
ib.; Kerr's Code, ib.
Before Whom Taken.
Sec. 270. Except when otherwise provided, the oath may be taken
before any officer authorized to administer oaths.
Historical: Rev. St. 1887, Sec. 35 4.
California Legislation: Same: Pol.
Code 1872, Sec. 908; Deering's Code,
ib.; Kerr's Code, ib.
Same: County Officers.
Sec. 271. The oath of office must be taken by county commission-
ers before the county recorder of their respective counties, on the
second Monday of January succeeding each general election, and on
the same day the other county officers must take and subscribe the
official oath before the chairman of the board.
Historical: Laws 1899, 67, Sec. 4;
re-enacting Laws 1895, 139, Sec. 1.
Cited: Castle v. Bannock Co. (1901)
8 Ida. 124; 67 Pac. 35.
Where Filed.
Sec. 272. Every oath of office, certified by the officer before whom
the same was taken, must be filed within the time required by law,
except when otherwise specially directed, as follows :
1. The oath of all officers whose authority is not limited to any
particular county, in the office of the Secretary of State;
2. The oath of all officers elected or appointed for any county,
district or precinct, in the offices of the recorder of their respective
counties.
Historical: Rev. St. 1887, Sec. 356.
California Legislation: Similar:
Pol. Code 1872, Sec. 909; additional
provisions as amended: Deering's
Code, ib.; Kerr's Code, ib.
Oath of Deputies.
Sec. 273. Deputies, clerks, and subordinate officers must take and
file an official oath before entering upon their duties.
Historical: Rev. St. 1887, Sec. 3 5 7.
California Legislation: Different:
Pol. Code 1872, Sec. 910; Deering's
Code, ib.; Kerr's Code, ib.
ARTICLE 5.
SALARIES OF OFFICERS.
Section
274. Salaries of State elective officers.
275. Salaries of judges.
276. Time of payment of salaries.
Section
277. Salary when title is contested.
278. Same: Certificate of Pending
suit.
Salaries of State Elective Officers.
Sec. 274. The Governor, Secretary of State, State Auditor, State
Ch. 19. Art. 5.
GENERAL PROVISIONS — SALARIES
275
Treasurer, Attorney General, and Superintendent of Public Instruc-
tion, shall, during their continuance in office, receive for their services
compensation as follows:
Governor, five thousand dollars per annum;
Secretary of State, three thousand dollars per annum;
State Auditor, three thousand dollars per annum, said salary to
be audited by the State Treasurer ;
Attorney General, four thousand dollars per annum ;
State Treasurer, four thousand dollars per annum;
Superintendent of Public Instruction, two thousand four hundred
dollars per annum, and
State Mining Inspector, two thousand four hundred dollars per
annum.
Such compensation shall be paid quarterly as due out of the State
Treasury, and shall be in full for all services, by said officers re-
spectively rendered in any official capacity or employment whatever
during their respective terms of office; but no increase of com-
pensation shall affect the salaries of such officers during their present
term of office: Provided, however, That the actual and necessary
expenses of the Governor, Lieutenant Governor, Secretary of State,
Attorney General, and Superintendent of Public Instruction while
traveling within the State, or between points within the State, in the
performance of official duties, shall be allowed and paid by the State ;
not, however, exceeding such sum as shall be appropriated for such
purpose.
No officer named in this section shall receive, for the performance
of any official duty, any fee for his own use, but all fees fixed by
law for the performance, by either of them, of any official duty, shall
be collected in advance, and deposited with the State Treasurer quar-
terly to the credit of the State.
Historical: Laws 1907, 4 6 5, Sec. 1.
The words "said salary to be audited
by the State Treasurer", are added on
the authority of Rev. St. 1887, Sec.
218, which is otherwise repealed ex-
cept as to the appointment of a dep-
uty, which is covered by Sec. 118 of
this Code.
Cross Reference: Salaries as fixed
by Constitution: Art. 4, Sec. 19. Of-
ficers to receive no fees for their own
use: ib. Diminution and increase of
compensation: Const. Art. 5, Sec. 27;
Legislature may provide for expenses,
ib.
Salaries of Judges.
Sec. 275. The salary of the Justices of the Supreme Court shall
be five thousand dollars per annum, and the salary of the Judges of
the District Courts shall be four thousand dollars per annum. Such
compensation shall be paid quarterly out of the State Treasury, but
no Justice of the Supreme Court or Judge of the District Court shall
be paid his salary or any part thereof, unless he shall have first taken
and subscribed an oath that there is not in his hands any matter in
controversy not decided by him, which has been finally submitted
for his consideration and determination thirty days prior to his
taking and subscribing said oath.
Historical: Laws 190 7, 465, Sec. 2.
Cross Reference: Salaries of Jus-
tices of Supreme and Judges of Dis-
trict Courts: Const. Art. 5, Sec. 17.
Expenses of Justices of Supreme
Court: Sec. 3823. Expenses of Dis-
trict Judges: Sec. 3836.
276
PUBLIC OFFICERS
Tit. 2
Time of Payment of Salaries.
Sec. 276. The salaries of all State and district officers, whose
salaries are paid from the State Treasury, shall be paid quarterly,
on the second Monday of January, April, July and October, of each
year, out of any money in the Treasury not otherwise appropriated.
Historical: Laws 1899, 142, Sec. 1;
re-enacting Laws 1890-91, 204, Sec. 1.
Salary When Title Is Contested.
Sec. 277. When the title of the incumbent of any office in this
State is contested by proceedings instituted in any court for that
purpose, no warrant can thereafter be drawn or paid for any part
of his salary until such proceedings have been finally determined.
Historical: Rev. St. 1887, Sec. 380.
California Legislation: Same: Pol.
Code 1872, Sec. 936; Deering's Code,
ib.; additional provision as amended:
Kerr's Code, ib.
Cited: Gorman v. Havird (1891) 10
Supr. Ct. Rep. 943; 141 U. S. 206; 35
S. C. R. (Law ed.) 717.
Allowance of Expenses: While this
section prohibits the payment of a sal-
ary of a de facto officer during the
pendency of a trial over the right to
the office, it does not preclude the
board of commissioners from allowing
the de facto officer the amount of ex-
penses incurred by him in behalf of
the county in the administration of the
office. Havird v. Board of Commis-
sioners (1890) 2 Ida. 687; 24 Pac. 542.
Same : Certificate of Pending Suit.
Sec. 278. As soon as such proceedings are instituted, the clerk
of the court in which they are pending must certify the facts to the
officers, whose duty it would otherwise be to draw such warrant or
pay such salary.
Historical: Rev. St. 1887, Sec. 381.
California Legislation: Same: Pol.
Code 1872, Sec. 937; Deering's Code,
ib.; similar
Code. ib.
as amended: Kerr's
ARTICLE 6.
REPORTS OF OFFICERS.
Section
279. Reports to be printed and de-
livered to Secretary.
Distribution of reports.
Failure to make report a mis-
demeanor.
280.
281.
Section
2 81a. Subpoenas for officers failing to
report.
2 81b. Sheriffs to serve subpoenas.
Reports to Be Printed and Delivered to Secretary.
Sec. 279. All annual and biennial reports of State officers and
State boards of control, both elective and appointive, which are now
authorized or which may be hereafter authorized by law to issue
such reports, shall be compiled, printed and delivered to the Secre-
tary of State, on or before the first day of December of the last year
which said reports cover, to be by him delivered to the persons here-
inafter mentioned, said reports to be of uniform size, quality and
print.
Historical: Laws 1903, 149, Sec. 2.
Distribution of Reports.
Sec. 280. There shall be delivered to the Secretary of State on
Ch. 19. Art. 6. general provisions — reports 277
or before the first day of December of the said year, to be by him
receipted for, at least three hundred, copies of each of the said reports
for distribution as follows: One copy of each to the Governor; one
to each head of the executive departments of the government; one
of each to each member of the Legislature, on the first day of the
session, or sooner if practicable, and the remainder to such citizens
as the Secretary of State may deem proper.
Historical: Laws 1903, 149, Sec. 2.
Failure to Make Report a Misdemeanor.
Sec. 281. Any failure to comply with the provisions of the two
preceding sections by the person or persons charged by law with
the duty of making, compiling and delivering said reports as in said
sections provided for, shall be a misdemeanor, and upon conviction
thereof in any court of competent jurisdiction the person so failing
shall be fined in any sum not less than two hundred dollars, nor
more than three hundred dollars, and upon notification from the
Secretary of State to the prosecuting attorney of any county wherein
such offense shall have been committed, it shall be his duty to prose-
cute such person or persons, and collect such fine as may by such
court be imposed, and upon the collection thereof to deposit the
same with the Secretary of State for the benefit of the general school
fund.
Historical: Laws 1903, 149, Sec. 3.
Phraseology slightly changed to com-
plete the sense.
Subpoenas for Officers Failing to Report.
Sec. 281a. In case any county or other officer of this State, who
is authorized or directed by law to make certain or any reports to
the State Auditor, or to the State Treasurer, or to the State Board
of Land Commissioners, or to any other official or board of this
State, shall fail or neglect to transmit such report, or reports, or
funds, by registered mail, or draft, express or money order, within
the time provided by law for the sending of such report, or reports,
or funds, and in case the said report, or reports, or funds, have not
been received by the State Auditor, or State Treasurer, or any officer
or board to whom said report or reports, or funds, should be made
or delivered, within five days after the last day of the time in which
said report, or reports, or funds, are required by law to be trans-
mitted or delivered, then and in that case the State Auditor, the
State Treasurer, or the officer or board to whom such report, or
reports, or funds, must be made as required by law, shall forthwith
issue a subpoena for any officer or officers so failing or neglecting
to transmit the same, requiring such officer or officers to
appear forthwith before the State Auditor, or State Treasurer, or
officer or board issuing said subpoena, and produce said report, or
reports, or funds aforesaid.
Historical: Laws 1899, 432, Sec. 1.
Sheriffs to Serve Subpoenas.
Sec. 281b. The sheriffs of the several counties are hereby desig-
278
PUBLIC OFFICERS
Tit. 2
nated as the officers by whom such subpoenas shall be served, and for
such services said sheriffs shall be paid the same compensation as is
by law provided for similar services in civil cases. The officer so
failing or neglecting to transmit such report, or reports, or funds,
must pay forthwith to the sheriff aforesaid the compensation for
services allowed in this section, and shall be liable upon his official
bond for the compensation due said sheriff.
Historical: Laws 1899, 432, Sec. 2.
CHAPTER 20.
BONDS OF OFFICERS.
Section
282. Time for filing bond.
283. Approval of bonds of State offi-
cers.
284. Same: Bonds of county officers.
285. Record of official bonds.
2 86. Approval endorsed on bond.
287. Bond to be approved before fil-
ties.
288. Conditions, signatures and sure-
ties.
2 89. Justification of sureties.
290. Sureties for less than penal sum.
291. Custody of official bonds.
292. Form of bond.
2 93. Extent of sureties' liability.
294. Same: Duties subsequently im-
posed.
2 95. Suits by persons injured.
296. Same: Successive suits.
297. Defects not to affect liability.
298. Insufficiency of sureties: Pro-
ceedings.
299. Same: Additional bond.
Secti
300.
301.
302.
303.
304.
305.
306.
307.
308.
309.
310.
311.
312.
313.
314.
315.
316.
on
Same: Original bond not dis-
charged.
Same: Action on either bond.
Same: Separate judgments on
bonds.
Same: Contribution between
sureties.
Discharge of sureties by new
bond.
Vacancies: Bond of appointee.
Release of sureties.
Same: Application for release.
Service of statement.
Office declared vacant.
Remaining sureties lia-
Accrued liabilities unaf-
Same:
Same:
Same:
ble.
Same:
fected.
Application of chapter.
Bonds of receivers, etc.
Actions on bonds: Lis pendens.
Same.
Bonds of deputies.
Time for Filing Bond.
Sec. 282. Every official bond must be filed in the proper office
within the time prescribed for filing the oath, unless otherwise ex-
pressly provided by statute.
Historical: Rev. St. 1887, Sec. 3 90.
See 4 Ter. Ses. (1867) 5 0, Sec. 1.
California Legislation: Same: Pol.
Code 1872, Sec. 948; Deering's Code,
ib.; Kerr's Code, ib.
Approval of Bonds of State Officers.
Sec. 283. Unless otherwise prescribed by statute, the official bonds
of State officers must be approved by the Governor, and filed and
recorded in the office of the Secretary of State.
Historical: Rev. St. 1887, Sec. 391.
See 4 Ter. Ses. (1867) 50, Sec. 1.
California Legislation: Same: Pol.
Code 2872, Sec. 948; Deering's Code,
ib.; Kerr's Code, ib.
Same: Bonds of County Officers.
Sec. 284. Unless otherwise prescribed by statute, the official bonds
Ch. 20.
BONDS OF OFFICERS
279
of county and precinct officers must be approved by the board of
county commissioners, and filed and recorded in the office of the
county recorder, and must be in such penalties as are required by
law, or, when not fixed by law, as required by the board. *
Historical: Rev. St. 1887, Sec. 292.
See 4 Ter. Ses. (1867) 50, Sec. 1.
California Legislation: Different:
Pol. Code 1872, Sec. 950; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Approval: It is the duty of the
board of county commissioners and
not of the county attorney to approve
official bonds. Miller v. Smith (1900)
7 Ida. 204; 61 Pac. 824.
Record of Official Bonds.
Sec. 285. Official bonds must be recorded in a book kept for that
purpose, and entitled "Record of Official Bonds."
Historical: Rev. St. 1887, Sec. 393.
California Legislation: Same: Pol.
Code. 1872, Sec. 951; Deering's Code,
ib.; Kerr's Code, ib.
Approval Indorsed on Bond.
Sec. 286. The approval of every official bond must be indorsed
thereon and signed by the officer approving the same.
Historical: Rev. St. 188 7, Sec. 394.
See 4 Ter. Ses. (1867) 50, Sec. 2.
California Legislation: Same: Pol.
Code 1872, Sec. 952; Deering's Code,
ib.; Kerr's Code, ib.
Bond to Be Approved Before Filing.
Sec. 287. No officer with whom any official bond is required to be
filed must file such bond until approved.
Historical: Rev. St. 1887, Sec. 395.
See 4 Ter. Ses. (1867) 50, Sec. 3.
California Legislation: Same: Pol.
Code 1872, Sec. 953; Deering's Code,
ib.; Kerr's Code, ib.
Conditions, Signatures and Sureties.
Sec. 288. The condition of an official bond must be that the
principal will well, truly and faithfully perform all official duties then
required of him by law, and also all such additional duties as may
be imposed on him by any law of the State. Such bond must be
signed by the principal and at least two sureties, to the full penalty
of the bond. No person shall be accepted as surety on such bond
unless he shall, during the year immediately preceding, have been
assessed for and paid taxes, in his own right, upon property to the
amount for which he has become surety.
Historical: Rev. St. 1887, Sec. 396.
Act Feb. 3, 1887.
California Legislation : Same
through "sureties", line 5, rest omit-
ted: Pol. Code 1872, Sec. 954; Deer-
ing's Code, ib.; Kerr's Code, ib.
Defective Bond: The failure of an
official bond to contain all of the stat-
utory conditions required of such bond
is no defense to an action to enforce
a liability admittedly covered by the
bond. People v. Slocum (1886) 1
Ida. 62.
Absence of Signature: The failure
of the principal on an official bond to
sign the same as principal does not
invalidate the bond. State v. McDon-
ald (1895) 4 Ida. 468; 40 Pac. 312.
Justification of Sureties.
Sec. 289. The officer whose duty it is to approve official bonds
required of State, county, district or precinct officers, must not
accept or approve any such bond unless each of the sureties severally
280
PUBLIC OFFICERS
Tit. 2
justify, before an officer authorized to administer oaths, as follows:
1. On a bond given by a State officer, that such surety is a resident
and freeholder or householder within this State ; and on a bond given
by a county, district, or precinct officer, that such surety is a resident
and freeholder or householder within such county or within an ad-
joining county;
2. That such surety is worth the amount for which he becomes
surety over and above all his debts and liabilities in unincumbered
property situated within this State, exclusive of property exempt
from execution and forced sale.
Justification of Sureties: A com-
pliance with this section in the mat-
ter of justification is all that is re-
quired in the first instance, but after
the approval of a county officer's bond
by the commissioners, they may re-
quire a further justification if, for
any cause, they believe the sureties
insufficient. Gorman v. Board of Com-
missioners (1874)) 1 Ida. 553.
Historical: Rev. St. 1887, Sec. 397.
See 4 Ter. Ses. (1867) 50, Sec. 7.
California Legislation: Same except
"or township" for "district or pre-
cinct," lines 2 and 7: Pol. Code 1872.
Sec. 955; additional subd. as amend-
ed: Deering's Code ib; further
amended: Kerr's Code, ib.
Cross Reference: Sufficiency of cor-
porate sureties: Sec. 2940. Reim-
bursement of officers for premiums
paid for official bonds: Sec. 2941.
Sureties for Less Than Penal Sum.
Sec. 290. When the penal sum of any bond required to be given
amounts to more than one thousand dollars the sureties may be-
come severally liable for portions of not less than five hundred
dollars thereof, making in the aggregate at least two sureties for the
whole penal sum. And if any such bond becomes forfeited, an
action may be brought thereon against all or any number of the
obligors, and judgment entered against them, either jointly or sev-
erally, as they may be liable. The judgment must not be entered
against a surety severally bound for a greater sum than that for
which he is specially liable by the terms of the bond. Each surety
is liable to contribution to his co-sureties in proportion to the
amount for which he is liable.
Historical: Rev. St. 18 87, Sec. 3 9 8.
4 Ter. Ses. (1867) 50, Sec. 8.
California Legislation: Same except
"specifically" for "specially," line 10:
Pol. Code 1872, Sec. 956; Deering's
Code, ib.; additional sentence as
amended: Kerr's Code, ib.
Liability of Sureties: Where the
sureties on an official bond, contain-
ing joint and several obligations, jus-
tify in sums less than the penalty of
the bond, they are, nevertheless, lia-
ble for the full penalty of the bond;
the sums set opposite their respective
names in the justification merely indi-
cate the sums for which they intend
to justify, and fix their liability toward
each other for contribution. People
v. Slocum (1866) 1 Ida. .62.
Custody of Official Bonds.
Sec. 291. Every officer with whom official bonds are filed must
carefully keep and preserve the same, and give certified copies
thereof to any person demanding the same, upon being paid the same
fees as are allowed by law for certified copies of papers in other
cases.
Historical: Rev. St. 188 7, Sec. 399.
See 4 Ter. Ses. (1867) 50, Sec. 5.
California Legislation: Same: Pol.
Code 1872, Sec. 957; Deering's Code,
ib.; Kerr's Code,, ib.
Ch. 20.
BONDS OF OFFICERS
281
Form of Bond.
Sec. 292. All official bonds must be in form joint and several, and
made payable to the State of Idaho in such penalty and with such con-
ditions as required by this chapter, or the law creating or regulating
the duties of the office.
Historical: Rev. St. 18 87, Sec. 400.
See 4 Ter. Ses. (1867) 50, Sec. 6.
California Legislation: Same except
"California" for "Idaho," line 2: Pol-
Code 1872, Sec. 958; Deering's Code,
ib.; Kerr's Code, ib.
Extent of Sureties' Liability.
Sec. 293. Every official bond executed by any officer pursuant to
law is in force and obligatory upon the principal and sureties therein
for any and all breaches of the conditions thereof committed during
the time such officer continues to discharge any of the duties of or
hold the office, and whether such breaches are committed or suffered
by the principal officer, his deputy, or clerk.
Historical: Rev. St. 188 7, Sec. 401.
See 4 Ter. Ses. (1867) 50, Sec. 9.
California Legislation: Same: Pol.
Code 1872, Sec. 959; Deering's Code,
ib.; Kerr's Code, ib.
Breach of Sheriffs Bond: The seiz-
ure and sale by a deputy sheriff, un-
der a lawful writ of attachment, of
goods worth three times the amount
of plaintiff's claim, constitutes a
breach of the sheriff's bond for which
his sureties are liable. Work Bros,
v. Kinney (1900) 7 Ida. 460; 63 Pac.
5 96.
Liability of Sureties: The sureties
on the sheriff's bond are not liable for
the delinquencies and defalcations of
the sheriff during a former term of
office. Work Bros. v. Kinney (1902)
8 Ida. 771; 71 Pac. 477.
Same: Duties Subsequently Imposed.
Sec. 294. Every such bond is in force and obligatory upon the
principal and sureties therein for the faithful discharge of all duties
which may be required of such officer by any law enacted subse-
quently to the execution of such bond, and such condition must be
expressed therein.
Cited: Work Bros. v. Kinney (1900)
7 Ida. 460; 63 Pac. 596.
Historical: Rev. St. 188 7, Sec. 402.
4 Ter. Ses. (1867) 50, Sec. 10.
California Legislation: Same: Pol.
Code 1872, Sec. 960; Deering's Code,
ib.; Kerr's Code, ib.
Suits by Persons Injured.
Sec. 295. Every official bond executed by any officer pursuant to
law is in force and obligatory upon the principal and sureties
therein to and for the State of Idaho, and to and for the use and
benefit of all persons who may be injured or aggrieved by the wrong-
ful act or default of such officer in his official capacity, and any person
so injured or aggrieved may bring suit on such bond, in his own name,
without an assignment thereof.
Historical: Rev. St. 1887, Sec. 403.
4 Ter. Ses. (1867) 50, Sec. 11.
California Legislation: Same except
"California" for "Idaho", line 3: Pol-
Code 1872, Sec. 961; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Palmer v. Pettingill (1898)
6 Ida. 346; 55 Pac. 653.
Same: Successive Suits.
Sec. 296. No such bond is void on the first recovery of a judgment
thereon ; but suit may be afterwards brought, from time to time, and
282
PUBLIC OFFICERS
Tit. 2
judgment recovered thereon by the State of Idaho, or by any person
to whom a right of action has accrued, against such officer and his
sureties, until the whole penalty of the bond is exhausted.
Historical: Rev. St. 1887, Sec. 4 0 4.
4 Ter. Ses. (1867) 50, Sec. 12.
California Legislation : Same except
"California" for "Idaho," line 3: Pol.
Code 1872, Sec. 962; Deering's Code,
ib.; Kerr's Code, ib.
Defects Not to Affect Liability.
Sec. 297. Whenever an official bond does not contain the substan-
tial matter or conditions required by law, or there are any defects
in the approval or filing thereof, it is not void so as to discharge
such officer and his sureties; but they are equitably bound to the
State, or a party interested, and the State or such party may, by
action in any court of competent jurisdiction, suggest the defect in
the bond, approval or filing, and recover the proper and equitable
demand or damages from such officer and the persons who intended
to become, and were, included as sureties in such bond.
Historical: Rev. St. 188 7, Sec. 405.
See 4 Ter. Ses. (1867) 50, Sec. 13.
California Legislation : Same: Pol.
Code 1872, Sec. 963; Deering's Code,
ib. ; Kerr's Code, ib.
Insufficiency of Sureties: Proceedings.
Sec. 298. Whenever it is shown by the affidavit of a credible
witness, or otherwise comes to the knowledge of the judge, court,
board, officer, or other person whose duty it is to approve the official
bond of any officer, that the sureties, or any one of them, has, since
such bond was approved, died, removed from the State, become insol-
vent, or from any other cause has become incompetent or insufficient
surety on such bond, the judge, court, board, officer, or other person
may issue a citation to such officer, requiring him, on a day therein
named, not less than three nor more than ten days after date, to
appear and show cause why such office should not be vacated, which
citation must be served and return thereof made as in other cases.
If the officer fails to appear and show good cause why such office
should not be vacated, on the day named, or fails to give ample addi-
tional security, the judge, court, board, officer, or other person must
make an order vacating the office, and the same must be filled as
provided by law.
Historical: Rev. St. 1887, Sec. 406.
See 4 Ter. Ses. (1867) 50, Sec. 16.
California Legislation: Same: Pol.
Code 1872, Sec. 964; Deering's Code,
ib.; Kerr's Code, ib.
Same: Additional Bond.
Sec. 299. The additional bond must be in such penalty as directed
by the court, judge, board, officer, or other person, and in all other
respects similar to the original bond, and approved by and filed
with the same officer as required in case of the approval and filing
of the original bond. Every such additional bond so filed and ap-
proved is of like force and obligation upon the principal and sureties
therein, from the time of its execution, and subjects the officer and
his sureties to the same liabilities, suits, and actions as are pre-
scribed respecting the original bonds of officers.
Ch. 20.
BONDS OF OFFICERS
283
Historical: Rev. St. 1887, Sec. 407.
See 4 Ter. Ses. (1867) 50, Sec. 20.
California Legislation : Same: Pol.
Code 1872; Sec. 965; Deering's Code,
ib.; Kerr's Code, ib.
Same: Original Bond Not Discharged.
Sec. 300. In no case is the original bond discharged or affected
when an additional bond has been given, but the same remains of like
force and obligation as if such additional bond had not been given.
Historical: Rev. St. 1887, Sec. 408.
4 Ter. Ses. (1867) 50, Sec. 21.
California Legislation: Same: Pol.
Code 1872. Sec. 966; Deering's Code,
ib.; Kerr's Code, ib.
Same : Action on Either Bond.
Sec. 301. The officer and his sureties are liable to any party in-
jured by the breach of any condition of an official, bond, after the
execution of the additional bond, upon either or both bonds, and such
party may bring his action upon either bond, or he may bring separate
actions on the bonds respectively, and he may allege the same cause
of action, and recover judgment therefor in each suit.
Historical: Rev. St. 1887, Sec. 40 9.
See 4 Ter. Ses. (1867) 50, Sec. 22.
California Legislation: Same: Pol.
Code 1872, Sec. 967; Deering's Code,
ib.; Kerr's Code, ib.
Same: Separate Judgments on Bonds.
Sec. 302. If separate judgments are recovered on the bonds by
such party for the same cause of action, he is entitled to have ex-
ecution issued on such judgments respectively, but he must only col-
lect, by execution or otherwise, the amount actually adjudged to him
on the same causes of action in one of the suits, together with the
costs of both suits.
Historical: Rev. St. 1887, Sec. 410.
4 Ter. Ses. (1867) 50, Sec. 23.
California Legislation: Same: Pol.
Code 1872, Sec. 968; Deering's Code,
ib.; Kerr's Code, ib.
Same: Contribution Between Sureties.
Sec. 303. Whenever the sureties on either bond have been com-
pelled to pay any sum of money on account of the principal obligor
therein, they are entitled to recover, in any court of competent juris-
diction, of the sureties on the remaining bond, a distributive part of
the sum thus paid, in the proportion which the penalties of such bonds
bear one to the other and to the sums thus paid, respectively.
Historical: Rev. St. 1887, Sec. 411.
4 Ter. Ses. (1867) 50, Sec. 24.
California Legislation: Same: Pol.
Code 1872, Sec. 969; Deering's Code,
ib.; Kerr's Code, ib.
Discharge of Sureties by New Bond.
Sec. 304. Whenever any sureties on the official bond of any officer
wish to be discharged from their liability, they and such officer may
procure the same to be done if such officer will execute a new bond,
with sufficient sureties, in like form, penalty, and conditions, and to
be approved and filed, as the original bond. Upon the filing and ap-
proval of the new bond such first sureties are exonerated from all
further liability, but their bond remains in full force as to all liabili-
284
PUBLIC OFFICERS
Tit. 2
ties incurred previous to the approval of such new bond. . The liability
of the sureties in such new bond is in all respects the same, and may
be enforced in like manner as the liability of the sureties in the
original bond.
Historical: Rev. St. 1887, Sec. 412.
See 4 Ter. Ses. (1867) 50, Sec. 27 et
seq.
California Legislation: Same: Pol.
Code 1872, Sec. 970; Deering's Code,
ib.; Kerr's Code, ib.
Vacancies : Bond of Appointee.
Sec. 305. Any person appointed to fill a vacancy, before entering
upon the duties of the office, must give a bond corresponding in sub-
stance and form with the bond required of the officer originally elected
or appointed, as hereinbefore provided.
Historical: Rev. St. 188 7, Sec. 413.
4 Ter. Ses. (1867) 50, Sec. 26.
California Legislation: Same: Pol.
Code 18 72, Sec. 971; Deering's Code,
ib.; Kerr's Code, ib.
Eelease of Sureties.
Sec. 306. Any surety on the official bond of a city, district, pre-
cinct, county or State officer may be relieved from liabilites thereon
afterwards accruing by complying with the provisions of the three
sections following.
Historical: Rev. St. 1887, Sec. 414.
See 4 Ter. Ses. (1867) 50, Sec. 27.
California Legislation: Same except
"town" for "district, precinct," line 1:
Pol. Code 1872, Sec. 972; Deering's
Code, ib. ; Kerr's Code, ib.
Same : Application for Release.
Sec. 307. Such surety must file with the judge, court, board, officer
or other person authorized by law to approve such official bond, a
statement in writing setting forth the desire of the surety to be re-
lieved from all liabilities thereon afterwards arising, and the reasons
therefor, which statement must be subscribed and verified by the
affidavit of the party filing the same.
Historical: Rev. St. 1887, Sec. 415.
4 Ter. Ses. (1867) 50, Sec. 28.
California Legislation: Same: Pol.
Code 1872, Sec. 973;
ib.; Kerr's Code, ib.
Deering's Code,
Service of Statement.
308. A copy of the statement must be served on the officer
Same:
Sec
named in such official bond and due return or affidavit of service made
thereon as in other cases.
Historical: Rev. St. 1887, Sec. 416.
4 Ter. Ses. (1867) 50, Sec. 29.
California Legislation: Same: Pol.
Code, 1872, Sec. 974; Deering's Code,
ib.; Kerr's Code, ib.
Same: Office Declared Vacant.
Sec. 309. In twenty days after the service of such notice the judge,
court, board, officer, or other person with whom the same is filed, must
make an order declaring such office vacant, and releasing such surety
from all liability thereafter to arise on such official bond, and such
office thereafter is in law vacant, and must be immediately filled by
election or appointment, as provided for by law, as in other cases of
vacancy of such office, unless such officer has, before that time, given
Ch. 20.
BONDS OF OFFICERS
285
good and ample surety for the discharge of all his official duties as
required originally.
Historical: Rev. St. 1887, Sec. 417.
4 Ter. Ses. (1867) 50, Sec. 30.
California Legislation : Same except
"ten" for "twenty", line 1: Pol. Code
1872, Sec. 975; Deering's Code, ib.;
Kerr's Code, ib.
Same: Remaining Sureties Liable.
Sec. 310. The release, discharge, voluntary withdrawal, or incom-
petency, of a surety on any official bond, does not affect the bond as
to the remaining sureties thereon, or alter or change their liability
in any respect.
Historical: Rev. St. 188 7, Sec. 418.
California Legislation: Same. Pol.
Code 1872, Sec. 977; Deering's Code,
ib. ; Kerr's Code, ib.
Same: Accrued Liabilities Unaffected.
Sec. 311. No surety must be released from damages or liabilities
for acts, omissions, or causes existing or which arose before the mak-
ing of the order releasing him from liability, but such legal proceed-
ings may be had therefor in all respects as though no such order had
been made.
Historical: Rev. St. 188 7, Sec. 419.
4 Ter. Ses. (1867) 50, Sec. 31.
California Legislation: Same except
"mentioned in Section 975" for "re-
leasing him from liability", line 3;
Pol. Code 1872, Sec. 980; Deering's
Code, ib.; Kerr's Code, ib.
Application of Chapter.
Sec. 312. The provisions of this chapter apply to the bonds of re-
ceivers, executors, administrators and guardians.
Historical: Rev. St. 1887, Sec. 42 0.
4 Ter. Ses. (1867) 50, Sec. 32.
California Legislation: Same except
"article for "chapter", line 1: Pol.
<"ode 1872, Sec 981; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Bonds of receiv-
ers: Sec. 4332; of executors and ad-
ministrators: Sec. 53 71; of guardians:
Sec. 5777.
Bonds of Receivers, Etc.
Sec. 313. All bonds or undertakings given by trustees, receivers,
assignees, or officers of a court in an action or proceeding for the
faithful discharge of their duties, where it is not otherwise provided,
must be in the name of and payable to the State of Idaho ; and upon
the order of the court where such action or proceeding is pending
may be prosecuted for the benefit of any and all persons interested
therein.
Historical: Rev. St. 1887, Sec. 421.
4 Ter. Ses. (1867) 50, Sec. 33.
California Legislation: Same except
"California" for "Idaho", line 4: Pol.
Code 1872, Sec. 982; Deering's Code,
ib.; Kerr's Code, ib.
Actions on Bonds: Lis Pendens.
Sec. 314. When an action is commenced in any court in this State
for the benefit of the State, to enforce the penalty of, or to recover
money upon, an official bond or obligation, or any bond or obligation
executed in favor of the State of Idaho, or of the people of this State,
the attorney or other person prosecuting the action may file with
the court in which the action is commenced an affidavit, stating either
286
PUBLIC OFFICERS
Tit. 2
positively or on information and belief that such bond or obligation
was executed by the defendant or one or more of the defendants
(designating whom), and made payable to the people of this State,
or to the State of Idaho, and that the defendant or defendants have
real estate or interest in lands (designating the county or counties in
which the same is situated), and that the action is prosecuted for
the benefit of the State; and thereupon the clerk receiving such affi-
davit must certify, to the recorder of the county in which such real
estate is situated, the names of the parties to the action, the name
of the court in which the action is pending and the amount claimed
in the complaint, with the date of the commencement of the suit.
Cited: Western Loan & Sav. Co. v.
Kendrick State Bank (1907) 13 Ida.
. . .; 90 Pac. 112.
Historical: Rev. St. 1887, Sec. 422.
4 Ter. Ses. (1867) 50, Sec. 34.
California Legislation: Same except
"California" for "Idaho": Pol. Code
1872, Sec. 983; Deering's Code, ib.;
Kerr's Code, ib.
Same.
Sec. 315. Upon receiving such certificate the county recorder must
indorse upon it the time of its reception, and such certificate must
be filed and recorded in the same manner as notices of the pendency
of an action affecting real estate; and any judgment recovered in such
action is a lien upon all real estate belonging to the defendant or to
one or more of the defendants, situated in any county in which such
certificate is so filed, for the amount that the owner thereof is or
may be liable upon the judgment, from the filing of the certificate;
and the fees due the clerk and recorder for the services required are
a charge against the county where the suit is brought, to be recovered
like other costs.
Historical: Rev. St. 1887, Sec. 423.
See 4 Ter. Ses. (1867) 50, Sec. 35. The
clause "belonging- to the defendant",
etc., is transposed for grammatical
reasons.
California Legislation: Same: Pol.
Code 1872, Sec. 984; Deering's Code,
ib.; Kerr's Code, ib.
Bonds of Deputies.
Sec. 316. Every officer or body appointing a deputy, clerk or
subordinate officer, may require an official bond to be given by the
person appointed, and may fix the amount thereof.
Historical: Rev. St. 1887, Sec. 42 4.
California Legislation: Same: Pol.
Code 1872, Sec. 985; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 21.
RESIGNATIONS AND VACANCIES.
Section
317. How vacancies occur.
318. Resignations.
319. Notice of removal.
320. Vacancies in State offices.
321. Vacancies: How filled.
32 2. Same: County and precinct of-
ficers.
322a Same: Appointments to be pe-
titioned for.
Section
323. Residence of appointed commis-
sioner.
324. Vacancies occurring immediate-
ly before election.
325. Vacancies in legislative office:
Special election.
32 6. Same: Representative in Con-
gress.
Ch. 21.
RESIGNATIONS AND VACANCIES
287
Section
327. Vacancies not otherwise pro-
vided for.
328. Appointments to be in writing-.
329. Tenure of appointee.
Section
330. When vacancies occur posses-
sion to be taken.
331. Powers of appointee.
332. Temporary inability of officers.
How Vacancies Occur.
Sec. 317. Every civil office shall be vacant upon the happening of
either of the following events at any time before the expiration of the
term of such office, as follows:
1. The resignation of the incumbent.
2. His death.
3. His removal from office.
4. The decision of a competent tribunal declaring his office
vacant.
5. His ceasing to be a resident of the State, district or county in
which the duties of his office are to be exercised, or for which he may
have been elected.
6. A failure to elect at the proper election, there being no in-
cumbent to continue in office until his successor is elected and qualified,
nor other provisions relating thereto.
7. A forfeiture of office as provided by any law of the State.
8. Conviction of any infamous crime, dr of any public offense
involving the violation of his oath of office.
9. The acceptance of a commission to any military office, either
in the militia of this State, or in the service of the United States,
which requires the incumbent in the civil office to exercise his military
duties out of the State for a period of not less than sixty days.
Historical: Laws 18 99, 67, Sec. 1;
re-enacting- Laws 1890-91, 57, Sec. 169.
California Legislation: See Pol.
Code 1872, Sec. 996; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Failure of county
officer who is granted leave of ab-
sence to appoint a deputy during his
absence creates a vacancy in the of-
fice: Sec. 19 77.
Resignations.
Sec. 318. Resignations of civil offices must be in writing, and may
be made as follows :
1. By the Governor to the Legislature, if in session; if not, to
the Secretary of State.
2. By Senators and Representatives in Congress, and by all
officers elected by the qualified voters of the State, and by Judges of
the Supreme Court and District Courts, and Regents of the Uni-
versity, to the Governor.
3. By members of the Senate and House of Representatives, to
the presiding officers of their respective bodies, in session, who
shall immediately transmit information of the same to the Governor.
If such bodies are not in session, to the Governor.
4. By all county and precinct officers, to the county board, and by
members of the county board, to the county auditor.
5. By all township officers, to the township clerk; and by the
township clerk to the town board.
6. By all officers holding appointment, to the officer or body by
whom they were appointed.
288
PUBLIC OFFICERS
Tit. 2
Such resignation shall not take effect until accepted by the board
or officer to Whom the same is made.
Historical: Laws 1899, 67, Sec. 2;
re-enacting Laws 1890-91, 57, Sec. 170.
The phrase "must be in writing" is
taken from Rev. St. 1887, Sec. 430,
which is repealed, in other respects,
by this section. "District Attorneys"
omitted from subd. 2, the office being
superseded by that of prosecuting at-
torney, which is a county office.
California Legislation: See Pol.
Code 1872, Sec. 995; Deering's Code,
ib.; Kerr's Code, ib.
Notice of Removal.
Sec. 319. Whenever an officer is removed, convicted of any in-
famous crime or offense involving a violation of his oath of office,
or whenever his election or appointment is declared void, the body,
judge, or officer before whom the proceedings were had, must give
notice thereof to the officer empowered to fill the vacancy.
Historical: Rev. St. 188 7, Sec. 432;
re- written to conform to Laws 18 99,
67, Sec. 1. (Sec. 317, subd. 8, ante.)
California Legislation: Similar:
Pol. Code 1872, Sec. 997; Deering's
Code, ib.; Kerr's Code, ib.
Vacancies in State Offices.
Sec. 320. All vacancies in any State office, and in the Supreme and
District Courts, unless otherwise provided for by law, shall be filled
by appointment by the Governor, until the next general election after
such vacancy occurs, when such vacancy shall be filled by election.
Historical: Laws 1899, 6 7, Sec. 3;
re-enacting Laws 1890-91, 57, Sec. 12,
omitting the words "or in the office
of district attorney". That office is
abolished, and prosecuting attorneys
are county officers.
California Legislation: See Pol.
Code 1872, Sec. 1001; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Vacancies: How Filled.
Sec. 321. Vacancies shall be filled in the following manner: In
the office of the Clerk of the Supreme Court, by the Supreme Court.
In all other State and judicial district offices, and in the membership
of any board or commission created by the State, where no other
method is specially provided, by the Governor. In county and precinct
offices, by the county board; and in the membership of such board,
by the Governor. In city and village offices, by the mayor and council
or board of trustees.
Historical: Laws 1899, 67, Sec. 4;
re-enacting Laws 1890-91, 57, Sec. 171.
Omitting the provision relating to
"township offices" as there are no
such offices. "Clerk" for "reporter"
of Supreme Court.
Same: County and Precinct Offices.
Sec. 322. All vacancies in any county or precinct office of any of
the several counties of the State, except that of the county commis-
sioners (who shall be appointed by the Governor), shall be filled by
appointment by the county commissioners of the county in which the
vacancy occurs until the next general election, when such vacancy
shall be filled by election.
Historical: Laws 1899, 67, Sec. 9.
Same: Appointments to Be Petitioned For.
Sec. 322a. No appointment to fill a vacancy in office must be made
Ch. 21.
RESIGNATIONS AND VACANCIES
289
by the board except upon petition, signed by at least thirty qualified
electors of the county, if for a county office, or by not less than fifteen
of the qualified electors of the precinct, or district, if for a precinct
or district office.
Historical: Rev. St. 1887, Sec. 1765.
California Legislation: Same except
"township" for "precinct": Pol. Code
1872, Sec. 4066; Deering's Code, ib.
Kerr's Code, ib.
Residence of Appointed Commissioner.
Sec. 323. Whenever the Governor appoints a county commissioner
to fill a vacancy in any county, he shall appoint a person who is a
resident of the commissioner district of the county in which the
vacancy exists.
Historical: Laws 1899, 67, Sec. 10.
Vacancies Occurring Immediately Before Election.
Sec. 324. Vacancies occurring in any State, judicial district,
county, precinct, township or any public elective office, thirty days
prior to any general election, shall be filled thereat. Vacancies occur-
ring in the office of probate judge or justice of the peace, shall be
filled by appointment by the county commissioners.
Historical: Laws 1899, 6 7, Sec. 8;
re-enacting Laws 1890-91, 57, Sec. 175.
Vacancy in Legislative Office: Special Election.
Sec. 325. When a vacancy occurs in the office of a member of the
Legislature, and the body in which such vacancy exists is in session,
or will convene prior to the next general election, the Governor shall
order a special election to fill such vacancy at the earliest practicable
time, and ten days' notice of such election shall be given.
Historical: Laws 1899, 67, Sec. 12.
Omitting "Representative in Con-
gress" which is covered by the fol-
lowing section, and inserting the
words "is in session", which are added
on the authority of Rev. St. 1887, Sec.
433, which is otherwise repealed by
this section.
California Legislation: See Pol.
Code 1872, Sec. 998; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Conduct of special
election: Sees. 480-484.
Same: Representative in Congress.
Sec. 326. Whenever any vacancy shall occur in the office of Rep-
resentative in Congress from the State, it shall be the duty of the
Governor to appoint a day to hold a special election to fill such vacancy,
and cause notice of such election to be given as required in Sections
354 and 355 of these Codes.
Historical: Laws 1899, 67, Sec. 11;
re-enacting Laws 1890-91, 57, Sec. 176.
Vacancies Not Otherwise Provided For.
Sec. 227. When any office becomes vacant, and no mode is pro-
vided by law for filling such vacancy, the Governor must fill such
vacancy by granting a commission, to expire at the end of the next
session of the Legislature or at the next election by the people.
290
PUBLIC OFFICERS
Tit. 2
Historical: Rev. St. 1887, Sec. 434.
California Legislation: Same: Pol.
Code 1872, Sec. 999; Deering's Code,
ib.; Kerr's Code, ib.
Appointments to Be in Writing.
Sec. 328. Appointments under the provisions of this chapter shall
be in writing, and continue until the next election, at which the va-
cancy shall be filled, and until a successor is elected and qualified, and
be filed with the Secretary of State, or proper county auditor, re-
spectively.
Historical: Laws 1899, 67, Sec. 6;
re-enacting Laws 1890-91, 5 7, Sec. 173.
Omitting "or proper township clerk"
as there is no such office.
Tenure of Appointee.
Sec. 329. Any of the said officers that may be elected or appointed
to fill vacancies may qualify and enter upon the discharge of the
duties of their offices immediately thereafter; and, if elected, they
may hold the same during the unexpired term for which they were
elected, and until their successors are elected and qualified; but if
appointed they shall hold the same only until their successors are
elected and qualified.
Historical: Laws 18 99, 6 7, Sec. 13,
omitting the last four lines, which are
covered by Sec. 325 ante.
When Vacancies Occur Possession to Be Taken.
Sec. 330. When a vacancy occurs in a public office, possession shall
be taken of the office room, and of the books, papers, and all things
pertaining to the office, to be held until the election or appointment
and qualification of a successor, as follows :
Of the office of county recorder and auditor, by his deputy, if there
be one ; if not, by the county commissioners ; and in case of any delay
in the election or appointment of a successor to the recorder and
auditor, his deputy shall continue to discharge the duties of the office,
being responsible for the conduct and management thereof upon his
official bond. Of the office of county treasurer, by the sheriff. Of
any of the State officers, by the Governor, or in his absence or in-
ability at the time of the occurrence as follows : Of the Secretary
of State, by the Treasurer; of the Auditor, and Superintendent of
Public Instruction, by the Secretary of State; of the Treasurer, by
the Secretary of State and Auditor, who shall make an inventory of
the money and warrants therein, sign the same and transmit it to
the Governor, if he be in the State; and the Secretary of State shall
take the keys of the safes and desks, after depositing the books, papers,
money and warrants therein, and the Auditor shall take the key of
the office room.
Historical: Laws 1899, 67, Sec. 7;
re-enacting Laws 1890-91, 57, Sec. 174,
omitting the "Commissioner of Pub-
lic Lands and Buildings," as there is
no such officer. "Recorder and Aud-
itor" substituted for "county clerk" to
conform to proper nomenclature.
Powers of Appointee.
Sec. 331. Any person elected or appointed to fill a vacancy, after
filing his official oath and bond, possesses all the rights and powers,
Ch. 22.
MISCELLANEOUS PROVISIONS
291
and is subject to all the liabilities, duties and obligations, of the officer
whose vacancy he fills.
Historical: Rev. St. 188 7, Sec. 436.
California Legislation: Same Pol.
Code 1872, Sec. 1004; Deering's Code,
ib.; Kerr's Code, ib.
Temporary Inability of Officers.
Sec. 332. Whenever for any reason the Secretary of State, State
Auditor, Attorney General and Superintendent of Public Instruction
are temporarily unable to perform the duties of their respective offices,
the Governor may appoint a suitable person to perform such duties
temporarily as an acting officer, until the incumbent of the office shall
be able to resume the performance of his duties, or a vacancy occurs
in such office. The Governor shall require such bonds for persons so
appointed as may appear to him necessary for the protection of the
State, not exceeding the bonds given by the officer in whose stead he
acts. Such acting officer shall be nominated by the incumbent of the
office: Provided, That when the incumbent is unable or fails to so
nominate, the Governor may appoint without such nomination :
Provided further, That nothing in this section contained shall be con-
strued to amend or repeal existing laws relating to filling vacancies
in State offices.
Historical: Laws 1899, 21, Sees. 1,
2: re-enacting Laws 1890-91, 39, Sees.
1, 2.
CHAPTER 22.
MISCELLANEOUS PROVISIONS.
Section
333. Possession of books and papers.
334. Same: Proceedings to compel
delivery.
335. Same: Attachment to enforce
delivery.
336. Seals of executive officers.
337. Great Seal of State.
338. Officers may administer oaths.
339. Office hours.
Section
3 40. Signature of ex-officio officers.
341. Official records open to inspec-
tion.
3 42. Officers to keep accounts.
343. Furnishing account books: Ex-
amination by citizens.
343a. Sale of pamphlet laws.
343b. Same: Penalty for non-compli-
ance. «,
Possession of Books and Papers.
Sec. 333. Every public officer is entitled to the possession of all
books and papers pertaining to his office, or in the custody of a former
incumbent by virtue of his office.
Historical: Rev. St. 18 8 7, Sec. 440.
California Legislation: Same: Pol.
Code 1872, Sec. 1014; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Penalty for with-
holding books and records from suc-
cessor: Sec. 6389.
Same: Proceedings to Compel Delivery.
Sec. 334. If any person, whether a former incumbent or another
person, refuse or neglect to deliver to the actual incumbent any such
books or papers, such actual incumbent may apply by petition to
any court of record sitting in the county where the person so re-
fusing or neglecting resides, or to any Judge of the District or probate
292
PUBLIC OFFICERS
Tit. 2
court residing therein, and the court or officer applied to must pro-
ceed in a summary way, after notice to the adverse party, to hear
the allegation and proofs of the parties, and to order any such books
or papers to be delivered to the petitioner.
Historical: Rev. St. 1887, Sec. 441.
California Legislation : Same except
'county" for "probate", line 5: Pol.
Code 1872, Sec. 1015; Superior Court
system as amended: Deering's Code,
ib. ; Kerr's Code, ib.
Same: Attachment to Enforce Delivery.
Sec. 335. The execution of the order and the delivery of the books
and papers may be enforced by attachment as for a witness, and also,
at the request of the petitioner, by a warrant directed to the sheriff
or a constable of the county, commanding him to search for such
books and papers, and to take and deliver them to the petitioner.
Histoical: Rev. St. 1887, Sec. 442.
California Legislation : Same: Pol.
Code 1872, Sec. 1016; Deering's Code,
ib.; Kerr's Code, ib.
Seals of Executive Officers.
Sec. 336. Except when otherwise specially provided by law, the
seals of office of the various executive officers are those in use by such
officers at the time this title takes effect, and each of such officers
must at once file a description and impression of such seal in the
office of the Secretary of State.
Historical: Rev. St. 188 7, Sec. 443.
California Legislation: Same except
'Code" for "title", line 3: Pol. Code
1872, Sec. 1026; Deering's Code, ib.;
Kerr's Code, ib.
Great Seal of State.
Sec. 337. The design drawn and executed by Miss Emma Edwards,
of Boise City, and reported and recommended by the select joint com-
mittee to devise a Great Seal for the State, with the Latin motto,
"Esto Perpetua," is adopted, and is hereby made the Great Seal of
the State of Idaho.
Historical: Laws 1899, 147, Sec. 1;
re-enacting Laws 1890-91, 215, Sec. 1.
•California Legislation: See Pol.
Code 1872, Sec. 1027; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Secretary of State
to keep and use seal: Const. Art. 4.
Sec. 15. Grants and permissions to
bear seal: Art. 4, Sec. 16. Great Seal
to be attached to commissions of offi-
cers: Sec. 265.
Officers May Administer Oaths.
Sec. 338. Every executive and judicial officer may administer and
certify oaths.
Historical: Rev. St. 1887, Sec. 450.
California Legislation: Same: Pol.
Code 1872, Sec. 1028; Deering's Code,
ib.; Kerr's Code, ib.
Office Hours.
Sec. 339. Unless otherwise provided by law, every officer must
keep his office open for the transaction of business from ten o'clock
a. m. until four o'clock p. m. each day, except upon holidays.
Historical: Rev. St. 188 7, Sec. 452.
California Legislation: Same: Pol.
Code 1872, Sec. 1030; Deering's Code,
ib.; Kerr's Code, ib.
Ch. 22. MISCELLANEOUS PROVISIONS 293
Signature of Ex-Officio Officers.
Sec. 340. When an officer discharges ex-officio the duties of an-
other office than that to Which he is elected or appointed, his official
signature and attestation must be in the name of the office the duties
of which he discharges.
Historical: Rev. St. 1887, Sec. 453. Code 1872, Sec. 1031; Deering's Code,
California Legislation: Same: Pol. ' ib- Kerr's Code, ib.
Official Records Open to Inspection.
Sec. 341. The public records and other matters in the office of any
officer are, at all times during office hours, open to the inspection of
any citizen of this State.
Historical: Rev. St. 1887, Sec. 454.
California Legislation: Same: Pol.
Code 1872, Sec. 1032; same with ad-
ditional provisions as amended: Deer-
ing's Code, ib.; Kerr's Code, ib.
Officers to Keep Accounts.
Sec. 342. It shall be the duty of all State, county, city and precinct
officers, who receive fees for services in an official capacity, or who
receive public moneys for safe keeping, to at all times keep a public
account of the same, consisting of a day book and ledger in which
shall be entered all receipts of fees or moneys, with a brief statement
of from whom and on what account the same were received; and a
like account of all disbursements of such moneys, and to whom and
on what account the same were paid. A failure to comply with the re-
quirements of this section shall subject the offender, upon conviction,
to the payment of a fine not exceeding three hundred dollars, or to
imprisonment in the county jail for a period not exceeding six months,
or to both such fine and imprisonment.
Historical: Laws 1901, 20 8, Sec. 1;
amended Laws 1903, 282, Sec. 1.
Furnishing Account Books: Examination by Citizens.
Sec. 343. It shall be the duty of the State and county officers re-
spectively charged with furnishing books and stationery for public
use, to furnish suitable books for the purpose to such officers ; and
such books shall be subject to examination by any citizen at any
reasonable time, and such citizen shall be entitled to take memoranda
from the same without charges being imposed : Provided, If any
person or persons desire certified copies of any such account, the
officer or person in charge of said books shall be entitled to demand
and receive fees for the same, as for copies of other public records
in his control.
Historical: Laws 1901, 20 8, Sec. 2.
Sale of Pamphlet Laws.
Sec. 343a. All publications of laws and the Constitution of the
State of Idaho, issued in pamphlet form, other than the regular bi-
ennial edition of the session laws, shall be sold by the officer or officers
having the same published, at a price of not less than ten cents, nor
more than twenty cents, per one hundred folios contained in each copy.
The moneys arising from the sale of such publications shall be turned
294 PUBLIC OFFICERS Tit. 2
into the State Treasury, quarterly, to the credit of the general fund,
on the first days of January, April, July and October of each year.
A report under oath must accompany each quarterly payment into
the State Treasury, stating the number of copies of each publication
sold, and the amount received therefor.
Historical: Laws 1905, 2 31, Sees.
1, 2.
Same: Penalty for Non-Compliance.
Sec. 343b. Any failure to comply with the provisions of the pre-
ceding section by any person or persons charged by law with the
duty of publishing any of said laws as in said section provided for,
shall be a misdemeanor, and upon conviction thereof in any court
of competent jurisdiction the person guilty shall be fined in any
sum not less than two hundred dollars nor more than three hundred
dollars, and upon information, it shall be the duty of the Attorney
General or the prosecuting attorney of any county, to prosecute such
person or persons, and upon conviction to collect such fine as may
be imposed, and deposit the same with the State Treasurer for the
benefit of the general school fund.
Historical: Laws 1905, 231, Sec. 3.
Phraseology slightly changed to make
the section grammatical.
TITLE 3
ELECTIONS
Chapter
1. General provisions.
2. Time for holding elections.
3. Notices of election.
4. Qualifications of voters.
5. Election precincts, judges
clerks.
6. Primary elections.
7. Nominations.
and
Chapter
8. Registration of electors.
Ballots and supplies.
Conduct of election.
Canvass of returns.
Presidential electors.
Removal of county seats and
changing county boundaries.
Special elections.
9.
10.
11.
12.
13.
14.
Note: The act which forms the basis of this title was enacted at the first
session of the State Legislature (1890-91) and re-enacted at the fifth ses-
sion (1899). This act expressly repealed the Territorial statutes governing
elections which were embodied in Tit. 2 of the Political Code of the Re-
vised Statutes. For election contests, see Sees. 50 26 et seq. Contest of
State executive and legislative offices: Sees. 39-57. Crimes against the
elective franchise: Sees. 6354 et seq.
CHAPTER 1.
GENERAL PROVISIONS.
Section
344. Application of title.
345. Distribution of copies of law.
Section
346. Privilege from arrest.
Application of Title.
Sec. 344. The provisions hereinafter enacted shall regulate and
govern all elections hereafter holden in the State of Idaho for election
of all officers provided for by the Constitution and the laws of the
State of Idaho, at either general or special elections, except school
district elections, and such other elections as are in these Codes else-
where specially provided for.
Cited: Hertle v. Ball (1903) 9 Ida.
193; 72 Pac. 953; Cunningham v.
George (1892) 3 Ida. 456; 31 Pac. 809.
Sabin v. Curtis (1893) 3 Ida. 662; 32
Pac. 1130.
Historical: Laws 1899, 33, Sec. 1;
re-enacting Laws 1890-91, 57, Sec. 1.
The concluding clause is added to cov-
er such elections as are held in irri-
gation districts, drainage districts,
good roads districts etc., for which
special provision is made.
Distribution of Copies of Law.
Sec. 345. It shall be the duty of the Secretary of State to cause
to be published in pamphlet form and distributed, through the county
auditors of the respective counties, a sufficient number of copies of
this law, and of such other laws as bear upon the subject of elections,
as will place a copy thereof in the hands of all officers of elections.
Historical: Laws 1899, 33, Sec. 156; dorks" to conform to local nomencla-
nacting Laws 1890-91, 57, Sec. 160. ture.
'County auditors" inserted for "county
296
ELECTIONS
Tit. 3
Privilege From Arrest.
Sec. 346. Electors are privileged from arrest except for treason,
felony, or breach of the peace, during their attendance on election.
Historical: Laws 1899, 3 3, Sec. 5;
re-enacting Laws 1890-91, 57, Sec. 5.
Last part of section. The first para-
graph relative to eligibility to hold of-
fice, constitutes Sec. 250 of this Code.
CHAPTER 2.
TIME FOR HOLDING ELECTIONS.
Section
347. Time for holding elections.
348. Officers to be elected: County
349.
officers.
Same: State officers.
Section
35 0. Same: Judges.
351. Same: Presidential electors.
3 52. Same: Precinct officers.
Time for Holding Elections.
Sec. 347. A general election shall be held in the several precincts
in this State on the Tuesday succeeding the first Monday of Novem-
ber, A. D. 1910, and on the Tuesday succeeding the first Monday of
November every alternate year thereafter.
Historical: Laws 18 99, 33, Sec. 6;
re-enacting Laws 1890-91, 57, Sec. 6.
"1910" inserted for "1892."
Definition: The "general election" Is
the election at which all State officers
are elected; whether an election is
general or special is determined, not
by the date on which it is held nor the
authority which designates such date,
but by the character of the election.
Doan v. Board of Commrs. of Logan
Co. (1891) 3 Ida. 38; 26 Pac. 167.
Officers to Be Elected: County Officers.
Sec. 348. At the general election A. D. 1910, and every fourth
year thereafter, there shall be elected in every county of the State,
a clerk of the District Court, who is ex-officio auditor and recorder,
and at said general election, and every alternate year thereafter,
there shall be elected in every county of the State, the following offi-
cers, to-wit: Three county commissioners; a sheriff; county treas-
urer, who is ex-officio public administrator; probate judge; county
superintendent of public instruction ; a prosecuting attorney ; a county
assessor, who is ex-officio tax collector ; one coroner, and one surveyor.
Historical: Laws 1899, 33, Sec. 7;
re-enacting Laws 18 90-91, 5<, Sec. 7.
"County superintendent of public in-
struction" inserted for "who is ex-
officio county superintendent of public
instruction," to conform to Const. Art.
18, Sec. 6, as amended, "Prosecuting
attorney" is inserted in place of the
"District Attorney," provided for in
Sec. 9 of the act (Sec. 350 post).
Cited: Castle v. Bannock Co. (1901)
8 Ida. 124; 67 Pac. 35.
Vote for Commissioners: While com-
missioners are elected one from each
district, the voters of the whole coun-
ty should cast their votes for each of
the commissioners and all the votes
so cast should be counted in determin-
ing who is elected to the board. Cun-
ningham v. George (1892) 3 Ida. 456;
31 Pac. 809.
Same: State Officers.
Sec. 349. At the general election, A. D. 1910, and every alternate
year thereafter, there shall be elected the following State officers, to-
wit : One Governor, one Lieutenant Governor, one Secretary of State,
one State Treasurer, one State Auditor, one Superintendent of Public
Instruction, one Attorney General, and one Inspector of Mines, and
in each Representative and Senatorial district of the State such Rep-
Ch. 3.
NOTICES OF ELECTION
297
resentatives and Senators as they may severally be entitled to. Also
on the first Tuesday succeeding the first Monday of November, A. D.
1910, and every alternate year thereafter, there shall be elected the
number of Representatives in Congress to which the State may be
entitled.
Historical: Laws 18 99, 33, Sec. 8;
re-enacting Laws 1890-91, 57, Sec. 8.
Inspector of Mines inserted on author-
ity of Laws 1899, 221, Sec. 13.
Same : Judges.
Sec. 350. At the general election, A. D. 1910, and every alternate
year thereafter, there shall be elected one Judge of the Supreme
Court, and at said general election, and every fourth year thereafter,
there shall be elected in each judicial district of the State, one Dis-
trict Judge.
Historical: Laws 1899, 33, Sec. 9;
re-enacting Laws 1890-91, 57, Sec. 9,
omitting the provision for the election
of a District Attorney. The prosecut-
ing attorney is provided for in Sec.
348, ante.
Same: Presidential Electors.
Sec. 351. At the general election, A. D. 1910, and every fourth
year thereafter, there shall be elected such a number of Electors of
President and Vice President of the United States as the State may
be entitled to in the Electoral College.
Historical: Laws 18 9 9, 33, Sec. 10;
re-enacting Laws 1890-91; 57, Sec. 10.
Same: Precinct Officers.
Sec. 352. At the general election, A. D. 1910, and every alternate
year thereafter, there shall be elected in each justice's precinct, except
wards in incorporated cities, two justices of the peace and one con-
stable, and all other officers, not herein specified, that now are, or
hereafter may be, created shall, unless otherwise provided, be elected
on the day of the general election.
Historical: Laws 1899, 33, Sec. 11;
re-enacting Laws 1890-91, 57, Sec. 11.
Cited: State v. Vineyard (1903) 9
Ida. 134; 72 Pac. 824.
.Justices in Cities: This section has
no application to the formation of
justices' precincts and the provision
for the election of two justices in all
precincts "except wards in incorpo-
rated cities," does not constitute such
wards justices' precincts, nor prohibit
the county commissioners from es-
tablishing precincts within such cities.
Johnston v. Savidge (1905) 11 Ida.
204; 81 Pac. 616.
CHAPTER 3.
NOTICES OF ELECTION.
Section
353. Election proclamation.
354. Notices of election.
355. Same: Posting notices.
Section
356. Advertisement of special ques-
tions.
Election Proclamation.
Sec. 353. At least forty days before each general election, and
whenever he orders a special election, the Governor must issue an
election proclamation under his hand and the great seal of the State
of Idaho, and transmit copies thereof to the board of com-
missioners, of the counties in which such elections are to be held.
298 ELECTIONS Tit. 3
Such proclamation must contain a statement of the time of election
and of the offices to be filled.
Historical: Laws 18 99, 33, Sees. 12,
13; re-enacting Laws 1890-91, 57,
Sees. 20, 21.
Notices of Election.
Sec. 354. The clerks of the several boards of county commissioners
must, at least twenty days before any general election, make out and
transmit by registered mail to the registrar of each election precinct,
three notices to be as nearly as circumstances will admit of as follows :
Notice is hereby given that on the Tuesday following the first
Monday of November next, at the (here designate polling
place) in the County of ., an election will be held for
members of Congress, State, county, district and precinct officers
(naming the candidates and offices to be filled as the case may be),
which election shall be open at eight o'clock in the morning and will
continue until seven o'clock in the evening of the same day. Dated
this day of , A. D. 19 (as the case may be).
(Signed)
Clerk of the Board of County Commissioners.
Historical: Laws 1899, 33, See. 14;
re-enacting Laws 1890-91; 57, See. 22.
Same: Posting Notices.
Sec. 355. The registrar aforesaid to whom such notices are trans-
mitted as aforesaid, must cause to be posted, in three of the most
public places of each election precinct, the notices referring to such
election precinct, at least fifteen days previous to the time of holding
any general election. Said notices shall be posted as follows: One
at the house or place where the election is authorized to be held, and
the others at two of the most public and suitable places in the precinct.
Historical: Laws 1899, 33, Sec. 15;
re-enacting- Laws 1890-91, 57, Sec. 23;
amended Laws 1897, 29, Sec. 2.
Advertisement of Special Questions.
Sec. 356. Whenever a proposed Constitution or Constitutional
amendment, or other question, is to be submitted to the people of
the State for popular vote, the Secretary of State shall duly, and not
less than thirty days before election, certify the same to the auditor
of each county in the State. Questions to be submitted to the people
of a county or municipality shall be advertised in some newspaper of
general circulation in the county or town to be affected at least twice,
and twenty days before election.
Historical: Laws 189 9, 33, Sec. 27;
re-enacting Laws 1890-91; 57, Sec. 36.
CHAPTER 4.
QUALIFICATIONS OF VOTERS.
Section
357. Qualifications of voters.
3 58. Disqualifications.
Section
35 9. Soldiers, sailors, students and
inmates of asylums.
Ch. 4
QUALIFICATIONS OF VOTERS
299
Section
360. Prostitutes and inmates of
houses of ill-fame.
361. Same: Examination by regis-
trar.
Section
362. Same: Challenge of proposed
voter.
363. Same: Penalty for false state-
ment.
Qualifications of Voters.
Sec. 357. Every person over the age of twenty-one years, possess-
ing the qualifications following, shall be entitled to vote at all elections :
He shall be a citizen of the United States and shall have resided in
this State six months immediately preceding the election at which
he offers to vote, and in the county thirty days : Provided, That no
person shall be permitted to vote at any county seat election who has
not resided in the county six months, and in the precinct ninety days,
where he offers to vote; nor shall any person be permitted to vote
at any election for the division of the county, or striking off from
any county any part thereof, who has not the qualifications provided
for in Section 3, Article 18, of the Constitution ; nor shall any person
be denied the right to vote at any school district election, nor to hold
any school district office on account of sex.
Historical: Laws 1899, 33, Sec. 2;
re-enacting Laws 1890-91, 57, Sec. 2;
omitting the word "male" in the first
line on the authority of the amend-
ment to Const. Art. 6, Sec. 2.
Cross Reference: Qualifications of
electors: Const. Art. 6, Sec. 2. Leg-
islature may prescribe qualifications
additional to those prescribed by the
Constitution: Const. Art. 6, Sec. 4.
Disqualifications.
Sec. 358. No person is permitted to vote who is under guardian-
ship, idiotic or insane, or who has at any place been convicted of
treason, felony, embezzlement of public funds, bartering or selling,
or offering to barter or sell, his vote, or purchasing, or offering to
purchase, the vote of another, or other infamous crime, and who has
not been restored to the right of citizenship, or who, at the time of
such election, is confined in prison on conviction of a criminal offense.
Historical: Laws 1899, 33, Sec. 3;
re-enacting Laws 1890-91, 57, Sec. 3;
amended Laws 1893, 35, Sec. 1; Laws
1895, 7, Sec. 1.
Cross Reference: Similar provision
with additional clauses disfranchising
polygamists: Const. Art. 6, Sec. 3.
Test Oath — Constitutionality: A
territorial statute withholding the
elective franchise from polygamists or
members of any organization which
teaches or encourages polygamy and
prescribing a test oath is not repug-
nant to the federal Constitution.
Wooley v. Watkins (1889) 2 Ida.
590; 22 Pac. 102.
Soldiers, Sailors, Students and Inmates of Asylums.
Sec. 359. For the purpose of voting, no person shall be deemed
to have gained or lost a residence by reason of his presence or absence
while employed in the service of this State or of the United States,
nor while engaged in the navigation of the waters of this State, or
of the United States, nor while a student of any institution of learn-
ing, nor while kept at any almshouse or other asylum at the public
expense.
Historical: Laws 1899, 33, Sec. 4;
re-enacting Laws 1890-91, 57, Sec. 4.
Cross Reference: Similar provi-
sion: Const. Art. 6, Sec. 5.
Prostitutes and Inmates of Houses of Ill-Fame.
Sec. 360. No common prostitute, or person who keeps or main-
tains, or is interested in keeping or maintaining, or who resides in
300 ELECTIONS Tit. 3
or is an inmate of, or frequents or habitually resorts to, any house
of prostitution or of ill-fame, or any other house or place commonly
used as a house of prostitution or of ill-fame, or as a house or place
of resort of lewd persons for the purpose of prostitution or lewdness,
or who, being male and female, do lewdly and lasciviously cohabit
together, shall be permitted to register as a voter or to vote at any
election in this State, and any such person who shall so register or
vote, or offer or attempt to so register or vote, shall, on conviction
thereof, be punished by a fine not exceeding five hundred dollars, or
by imprisonment in the county jail not exceeding six months, or by
both such fine and imprisonment.
Historical: Laws 1907, 170, Sec. 1.
Same: Examination by Registrar.
Sec. 361. Whenever any person within any of the prohibited
classes mentioned in the preceding section shall offer himself or her-
self for registration, it shall be the duty of the registrar, in addition
to offering to said person any elector's oath provided by law, to ex-
amine such person as to his or her qualifications under the preceding
section, and if such person is not qualified by reason of being within
the prohibited class, it shall be the duty of the registrar to refuse to
register such person, and the registrar shall keep a brief memo-
randum in writing showing all such examinations and his determina-
tion thereon.
Historical: Laws 1907, 170, Sec. 2.
Same : Challenge of Proposed Voter.
Sec. 362. If any person within any of the prohibited classes men-
tioned in Section 360, shall be registered and shall offer to vote, he
or she may be challenged for being within such prohibited class or
classes, and thereupon such person shall be examined as to his or her
qualifications under said section, and if the board of election is satis-
fied that such person is within any such prohibited class, his or her
vote shall not be received.
Historical: Laws 1907, 170, Sec. 3.
Same: Penalty for False Statement.
Sec. 363. If any person within any of the prohibited classes men-
tioned in Section 360 shall make any false answer to any such ex-
amination, either by such registrar or on such challenge before the
board of election, it shall be considered and held to be a separate and
distinct offense from any offense mentioned in Section 360, and on
conviction thereof such person shall, in addition to any penalty in-
curred by any provision of said section, be punished by a fine not
exceeding five hundred dollars, or by imprisonment in the county jail
not exceeding six months, or by both such fine and imprisonment.
Historical: Laws 1907, 170, Sec. 4.
CHAPTER 5.
ELECTION PRECINCTS, JUDGES AND CLERKS.
Section
364. Establishment of election pre-
cincts.
Section
36 5. Changing boundaries of pre-
cincts.
Ch. 5
PRECINCTS, JUDGES AND CLERKS
301
Section
369. Judges to appoint clerks.
370. Compensation of judges
clerks.
and
Section
366. Designation and plan of polling
places.
367. Appointment of judges and dis-
tributing clerks.
368. Same: Vacancies filled by elec-
tion.
Establishment of Election Precincts.
Sec. 364. The board of commissioners of each county must estab-
lish a convenient number of election precincts therein.
Historical: Laws 18 9 9, 33, Sec. 28;
re-enacting Laws 1890-91, 57,- Sec. 37.
Changing Boundaries of Precincts.
Sec. 365. The board may, from time to time, change the bound-
aries of, create new, or consolidate established, precincts; but they
must not alter or change any election precinct, or change the place
of holding elections in any precinct after their regular July meeting
next preceding any election : Provided, That the precincts and wards
established, and the places designated in which to hold elections at
the time of the taking effect of this,title, shall so remain until changed.
Historical: Laws 1899, 33, Sec. 29;
re-enacting Laws 1890-91, 57, Sec. 38.
Designation and Plan of Polling Places.
Sec. 366. The county commissioners of each county, at their meet-
ing in July next preceding any general election, shall designate and
appoint suitable polling places, throughout the county, and shall cause
the same to be suitably provided with a sufficient number of voting
shelves or compartments, at or in which voters may conveniently
mark their ballots, so that in the marking thereof they may be
screened from the observation of others, and a guard rail shall be so
constructed and placed that only such persons as are inside said rail
can approach within ten feet of the ballot boxes and of such voting
shelves, places or compartments as are herein provided for. The
arrangement shall be such that neither the ballot boxes nor the voting
shelves or compartments shall be hidden from view of those just
outside the said guard rail, and such polling places shall be as near
as practicable in the following form :
Judges
O
Rail
Rail or Wall
3|
*£5
CO ^
Rail of any suitable material
Constable
Gate
2 v
■ n
302 ELECTIONS Tit. 3
The number of such voting shelves or compartments shall not be
less than one for every fifty electors, or fraction thereof, registered
in the precinct, and the expense of providing such polling places,
compartments, guard rails, and all necessary supplies, shall be a
public charge, and shall be provided for in the same manner as all
other election expenses. Each voting shelf or compartment shall be
kept provided with proper supplies and conveniences for marking
the tickets. At their regular meeting in July next preceding any
election, the board of county commissioners of each county shall, as
far as necessary, alter or divide the election precincts in such manner
that each election precinct shall not contain more than six hundred
voters: Provided, That in precincts containing less than twenty-five
registered voters the election may be conducted under the provisions
of this title without the preparation of such booths or compartments
as are required in this section.
In all municipal elections the duties specified in this section as
devolving on the county commissioners, shall devolve on the officers
in each city or town whose duty it is to designate and appoint polling
places therein.
Historical: Laws 1890-91, 57, Sec. I bined with Laws 1899, 33, Sec. 43;
51; re-enacted Laws 1899, 33, Sec. 42; re-enacting Laws 1890-91, 57, Sec. 51.
amended Laws 1905, 317, Sec. 1 com- 1
Appointment of Judges and Distributing Clerks.
Sec. 367. It is the duty of the county commissioners, at their
regular session in July next preceding a general election, to appoint
four capable and discreet persons possessing the qualifications of
electors, three of such persons to act as judges of election, and one
to act as distributing clerk of election, at each election precinct ; and
the clerk of the board must make out and deliver to the sheriff of
the county, immediately after the appointment of such judges and
distributing clerk, a notice thereof, in writing, directed to the judges
and distributing clerks so appointed ; and the sheriff, within ten days
of the receipt of said notice, must serve the same upon each of the
said judges and distributing clerks of election by registered mail. If
in any precinct any of said judges or distributing clerk do not serve,
the voters of said precinct may elect a judge or judges or distributing
clerk to fill the vacancy on the morning of the election, to serve at
such election. The selection of officers must, as nearly as practicable,
represent all the different political parties or principles represented
by the nominees in each county.
Historical: Laws 1899, 33, Sees. 40,
41, re-enacting Laws 1890-91, 57,
Sees. 49, 50.
Same: Vacancies Filled by Election.
Sec. 368. If in any precinct any of said judges or distributing
clerk do not serve, the voters of said precinct may elect a judge or
judges or distributing clerk to fill the vacancy, on the morning of
the election, to serve at such election. The election of officers must,
as nearly as practicable, represent all the different political parties
or principles represented by the nominees in each county.
Ch. 6.
PRIMARY ELECTIONS
303
Historical: Laws 1899, 33, Sees. 62,
63; re-enaeting Laws 1890-91, 57,
Sees. 71, 72.
Judges to Appoint Clerks.
Sec. 369. The judges must choose two persons having similar
qualifications with themselves to act as clerks of the election.
The said judges and distributing clerk shall be and continue
judges and distributing clerk of all elections of civil officers to be
held in their respective wards or precincts until other judges and
distributing clerk are appointed, and the said clerks of election may
continue to act as such during the pleasure of the judges of election.
The county commissioners must, from time to time, fill all vacancies
which may occur in the office of judges of election and distributing
clerk at any election precinct within their respective counties.
Historical: Laws 18 99, 33, Sec. 67;
re-enacting Laws 1890-91, 57, Sec. 76.
Compensation of Judges and Clerks.
Sec. 370. It is the duty of the clerk of the board of commissioners
of each county, on the receipt of the returns of any general or special
election, to make out his certificate, stating therein the compensation
to which the judges and clerks of the election are entitled for their
services, and lay the same before the county commissioners at their
next session, and the board of commissioners must order the com-
pensation paid out of the county treasury. The compensation of
judges of election and clerks is four dollars per day, and of constables,
on duty at polling places, three dollars per day.
Historical: Laws 1899, 33, Sec. 57:
re-enacting Laws 1890-91, 57, Sec. 66.
CHAPTER 6.
PRIMARY ELECTIONS.
Section
171. Primary election defined.
Notice of primary election.
Time for holding election.
Conduct of election.
('heck list and ballot "box
be borrowed.
Persons entitled to vote.
Oath of office: Challenge
voters.
72.
7 3.
74.
7.",.
75a.
76.
may
of
Section
377. Result of election.
Delegates not to give proxies.
Delegates fraudulently elected to
be denied seats.
Penalty for violations of chap-
ter.
Application of chapter.
378.
379.
380.
381.
Primary Election Defined.
Sec. 371. A primary election, within the meaning of this chapter,
s an election held in any county, city, town or precinct in the State
)f Idaho by any political party, for the purpose of electing delegates
;o political conventions, and the provisions hereof shall apply only
o general State and county, and general city or town, elections.
Historical: Laws 1903, 360, Sec. 1.
Notice of Primary Election.
Sec. 372. When any political party desires to hold a primary elec-
Vol. 1—11
304 ELECTIONS Tit. 3
tion in any county, city or town, it is the duty of the duly authorized
committee of such political party for such county, city or town, to
publish a notice in a newspaper of general circulation and of the
same political affiliation, if there be one in the county, once a week
for at least two consecutive weeks, the first publication of which
must be at least twenty, and not over thirty, days prior to the day
appointed for such primary election ; also to post at least two notices,
fifteen days prior to the primary election, in public places, in each
voting precinct in the county, city or town. Such notices must give
the date when, the hours during which, and the place where, the
primary election will be held, the number of delegates each election
precinct is entitled to in convention, and the offices for which can-
didates are to be nominated in such convention.
Historical: Laws 1903, 360, Sec. 2.
Time for Holding Election.
Sec. 373. Such primary election must be held in each voting pre-
cinct in the county, city or town, on the same Monday afternoon,
commencing in the county precincts at three p. m. and continuing
until six p. m., and in city or town precincts it must commence at
two p. m. and continue until seven p. m.
Historical: Laws 1903, 360, Sec. 3.
Conduct of Election.
Sec. 374. When the hour for holding such primary election arrives
it shall be called to order by the chairman or secretary of the precinct
committee, or, in their absence, by some qualified voter of the party;
holding such primary election. The qualified voters present, who
are members of the political party holding such primary, shall choose
from their number a chairman, two clerks and two judges of election,
who shall not be selected in the interest of any particular candidate
or candidates before the convention for which the delegates are tc
be elected. Such officers of the primary may be elected by a viva
voce vote, but the delegates to the convention must be elected b\
ballot, and each qualified voter at such primary shall have on his
ballot, which may be written or printed or partly written or parth
printed, as many names for delegates as such precinct is entitled to
in convention : Provided, That if any ballot contains more names
of delegates than such precinct is entitled to, such ballot shall be
void, and must not be counted. Also when it shall appear that the
same person casts more than one ballot, as when two or more ballots
are folded together, or from other clear evidence, all such ballots art
void and must not be counted.
If primary elections for more than one political party are helc
on the same day they must not be held in the same room, or in the
same immediate locality.
Historical: Laws 1903, 360, Sec. 4.
Check List and Ballot Box May Be Borrowed.
Sec. 375. For the information and assistance of the officers of t!u
primary election in city or town precincts, where the voters are s<
Ch. 6 PRIMARY ELECTIONS 305
numerous as not to be well known to such officers, the county com-
mittee of the political party holding such primary may borrow from
the proper county custodian a check list of the voters of each of such
precincts, used at the last general election, also a ballot box. When
such county commiftee shall deem best, the provisions of this section
may be applied to any precinct in the county. In any precinct where
the county official ballot boxes are not available, any convenient box
or receptacle may be used. Any such check list or ballot box so
borrowed must be promptly returned to the proper county custodian
upon the close of the primary election.
Historical: Laws 1903, 360, Sec. 5.
Persons Entitled to Vote.
Sec. 375a. Only regularly qualified voters who are entitled to vote
at such primary elections are permitted to vote thereat, or to take
part therein, and it is unlawful for any person who was not affiliated
at the last general election with the party holding the primary, or who
has not resided for at least thirty days in the election precinct where
the primary election is held, to vote or to take any part in such
primary election : Provided, That one who since the last election has
become of age, may vote if otherwise qualified.
Historical: Laws 1903, 360, Sec. 6. i the primary" are inserted to express
The woids "with the party holding the obvious intent of the section.
Oath of Office: Challenge of Voters.
Sec. 376. It is the duty of the chairman to administer the oath of
office to the clerks and judges elected, to the effect that each will
faithfully perform the duties imposed upon him by law, and one
of the clerks shall thereupon administer a like oath to the chairman.
When any person offering to vote is challenged, which may be done
by any one qualified to vote at such primary, who shall state the
ground of his challenge, or when any of the officers of the election
shall suspect that any person is not qualified to vote, the chairman
shall administer to such person so challenged an oath to the effect
that he has resided in the election precinct for the past thirty days ;
that by the next general election he will have resided in the State
for at least six months ; that at the last general election he was affili-
ated with the (name the party) party; that he has not during this
year voted at any other primary election ; that he is in all respects
qualified to vote at this primary, and shall further particularly specify
in the oath the ground or challenge or objection made to such voter.
The officers of election may, in addition to administering such oath,
briefly, orally examine under oath any person as to his qualifications
as a voter, and any one refusing to take such oath or to testify, or
who, by a majority of the election officers, is found disqualified, shall
not be allowed to vote. It is the duty of the clerks of the election
to keep written minutes of the proceedings of such primary election.
It is the duty of the judges to receive and deposit in the ballot box
the ballots of the voters qualified under the provisions of this chapter,
and of the clerks to enter in two alphabetical lists the names, con-
secutively numbered, of the voters, and, when for any cause any of
306 ELECTIONS Tit. 3
the officers of the election deems it best, the place of residence of
any voter shall be placed opposite his name upon said lists. No person
shall, during any calendar year, vote at the primary election of more
than one political party.
Historical: Laws 1903, 360, Sec. 7. i serted before "particularly specify" to
The words "shall further" are in- complete the sense.
Result of Election.
Sec. 377. At the close of the election it is the duty of the judges
to count the ballots and report the same to the chairman, who shall
then publicly announce the result. Those persons receiving the high-
est number of votes, to the number of delegates allowed, shall be
declared elected. Tie votes or results must be settled by lot. When
it is determined who are elected delegates, they shall be furnished
with proper credentials, certifying to their election, which shall be
signed by the chairman and countersigned by the clerks. The officers
of election must then, in the presence of any qualified voters present,
carefully wrap into a package, which must be sealed, the ballots, the
lists of voters, and the written minutes, which must include a state-
ment showing the number of votes cast for each candidate for election
as delegate, and deliver the same to the chairman, who shall cause
such package to be duly delivered to the convention to which the
delegates are accredited.
Historical: Laws 1903, 360, Sec. 8.
Delegates Not to Give Proxies.
Sec. 378. In case any delegate elected to a convention fails to
appear and serve, he shall not give his proxy to any one, but the
vote of such delegate must be cast by the balance of the delegation
from the precinct, and if no delegate appears from the precinct, such
precinct must be without any representation.
Historical: Laws 1903, 360, Sec. 9.
Delegates Fraudulently Elected to Be Denied Seats.
Sec. 379. When at any primary election such irregularities or
frauds on the part of the voters, or of the officers of election, or of
any other persons, shall occur, resulting in the election of delegates,
which the convention to which they are elected is clearly satisfied
would not have been elected had the primary been fairly and honestly
conducted, the convention must deny any delegate, so fraudulently
elected, a seat in the convention.
Historical: Laws 1903, 360, Sec. 10.
Penalty for Violations of Chapter.
Sec. 380. Any person voting at any primary election, when under
the provisions of this chapter he is disqualified to so vote, or who
falsely takes any oath or falsely testifies, or who violates any oath
taken, or any officer of election who fraudulently does anything as
such officer, or who fraudulently fails to perform any duty devolved,
upon him by this chapter, or any person who violates any of the
provisions of this chapter, is guilty of a misdemeanor, and on con-
Ch. 7.
NOMINATIONS
307
viction thereof shall be punished by a fine of not less than twenty-
five dollars and not to exceed five hundred dollars, or by imprison-
ment for not less than thirty days nor to exceed six months, or by
both such fine and imprisonment.
Historical: Laws 1903, 360, Sec. 12.
Application of Chapter.
Sec. 381. The application of this chapter to any political party,
which at the last general election cast less than ten per cent of the
whole number of votes cast, is optional with such party. This chapter
does not prevent any political party from providing and directing
that the delegates elected under the provisions of this chapter to the
county convention, may select delegates to the State convention.
Any expense incurred in the enforcement of this chapter shall be
borne by the political party holding the primary election.
Historical: Laws 1903, 360, Sec. 11.
CHAPTER 7.
NOMINATIONS.
Section
382.
383.
384.
385.
386.
Nominations by convention.
Certificate of nomination.
Certificates to be filed where.
Nominations other than by con-
vention.
Restrictions
nominations.
on independent
Section
387. Preservation of certificates.
388. Time for filing certificates.
389. Names of candidates to be cer-
tified by Secretary of State.
390. Declination of nomination.
3 91. Mode of filling vacancies.
392. Use of stickers on tickets.
Nominations by Convention.
Sec. 382. Any convention or primary meeting, as hereinafter de-
fined, held for the purpose of making nominations to public office,
and also electors to the number hereinafter specified, may nominate
candidates for public office to be filled by election within the State.
A convention or primary meeting within the meaning of this chapter,
is an organized assemblage of electors or delegates representing a
political party or principle.
Historical: Laws 1899, 33, Sec. 16;
re-enacting Laws 1890-91, 57, Sec. 25.
What Constitutes a Convention:
This section does not prescribe the
number of people requisite to consti-
tute a convention or primary meeting
under the statute. Baker v. Scott
(1895) 4 Ida. 596; 43 Pac. 76.
Certificate of Nomination.
Sec. 383. All nominations made by such convention or primary
meeting shall be certified as follows: The certificate of nomination,
which shall be in writing, shall contain the name of each person
nominated, his residence, his business, and the office for which he is
named, and shall designate in not more than five words, the party
or principle which such convention or primary meeting represents,
and it shall be signed by the presiding officer and secretary of such
convention or primary meeting, who shall add to their signatures
their respective places of residence and their business. Such certifi-
cates, made out as herein required, shall be delivered by the secretary
308
ELECTIONS
Tit. 3
or president of such convention or primary meeting to the Secretary
of State or to the county auditor, as hereinafter required.
Historical: Laws 18 99, 33, Sec. 17;
re-enacting Laws 1890-91, 57, Sec. 26.
Certificates to Be Filed Where.
Sec. 384. Certificates of nominations of candidates for offices to
be filled by the electors of the entire State, or of any division or district
greater than a county, shall be filed with the Secretary of State.
Certificates of nomination for county and precinct officers shall be
filed with the auditors of the respective counties wherein the officers
are to be elected. Certificates of nomination for municipal offices
shall be filed with the clerks of the respective municipal corporations
wherein the officers are to be elected.
Historical: Laws 18 99, 33, Sec. IS;
re-enacting Laws 1890-91, 57, Sec. 27.
Cited: Cunningham v. George
(1892) 3 Ida. 456; 31 Pac. 809.
Nominations Other Than by Convention.
Sec. 385. Candidates for public office may be nominated, other-
wise than by convention or primary meeting, in the following manner:
A certificate of nomination, containing the name of a candidate for
the office to be filled, with such information as is required to be given
in certificates provided for in Section 383, shall be signed by electors
residing within the district or political division in and for which the
officer or officers are to be elected, in the following numbers: The
number of signatures, when the nomination is for a State office, shall
not be less than three hundred; for the district office, or subdivision
of the State including two or more counties, the number of signatures
shall not be less than one hundred and fifty; for a county office, not
less than fifty; and for a township, precinct or ward office, not less
than ten : Provided, That the said signatures need not all be ap-
pended to one paper. Each elector signing a certificate shall add to
his signature his place of residence and his business. Such certificates
may be filed as provided for in Section 384, in the same manner and
With the same effect as a certificate of nomination made by a party
convention or primary meeting: Provided, That the registrar of
each precinct or ward, as the case may be, shall certify to the Secre-
tary of State, the county auditor, or the clerk of the municipality,
as the case may be, that all the signers of such certificates are qualified
electors and registered according to law for the ensuing election.
Historical: Laws 1899, 33, Sec. 19;
re-enacting Laws 1890-91, 57, Sec. 28.
The section numbers in the body of
the section are taken from the act of
1890-91, to which they obviously re-
ferred. The numbers of the sections
were changed in the re-enactment, but
the internal cross references were
overlooked.
Independent Candidates: Where a
petition nominating a candidate for
office is signed by a sufficient number
of electors and is filed in due form
within the time required by law, the
candidate named thereon is entitled to
have his name appear on the official
ballot as an independent candidate for
the office designated, but not upon the
ticket of any particular party. Phil-
lips v. Curtis (1894) 4 Ida. 193; 38
Pac. 405.
Same — Number of Signers: Since
members of the Legislature are not
officers required to be voted for by
the electors of the entire State, they
do not come within the class who,
when nominated as independent can-
didates, require a petition to be signed
by 300 electors, ib.
Ch. 7.
NOMINATIONS
309
Same: Restrictions on Independent Nominations.
Sec. 386. No certificate of nomination shall contain the name of
more than one candidate for each office to be filled. No person shall
join in nominating* more than one person for each office to be filled,
and no person shall accept a nomination to more than one office.
Historical: Laws 1899, 33, Sec. 20;
re-enacting Laws 1890-91, 57, Sec. 29.
Signers of Petition: Persons who
participated in nominating one person
for an office at a political convention
of one party, cannot afterwards sign
a petition nominating another person
belonging to another party for the
same office. Phillips v. Curtis (1894)
4 Ida. 193; 38 Pac. 405.
Preservation of Certificates.
Sec. 387. The Secretary of State, the auditors of the several coun-
ties, and the clerks of the several municipal corporations, shall cause
to be preserved, in their respective offices, for one year, all certificates
of nominations ffied in their lesi.ective offices under the provisions
of this chapter. All such certificates shall be open to public inspection
under the proper regulations to be made by the officers with whom
the same are filed.
Historical: Laws 1899, 33, Sec. 21;
re-enacting Laws 1890-91, 57, Sec. 30.
Time for Filing Certificates.
Sec. 388. Certificates of nomination to be filed with the Secretary
of State shall be filed not more than sixty days and not less than
thirty-five days before the day fixed by law for the election of the
persons in nomination. Certificates of nomination herein directed
to be filed with the county auditor shall be filed not more than sixty
days and not less than twenty-five days before election. Certificates
for the nomination of candidates for municipal offices shall be filed
with the clerks of the respective municipal corporations not more
than thirty days and not less than ten days previous to the day of
election: Provided, That the time specified for filing certificates of
nominations, as provided in this section, shall not be held to apply
to nominations for special elections to fill vacancies caused by death,
resignation or otherwise.
Historical: Laws 1899, 33, Sec. 22;
re-enacting Laws 1890-91, 57, Sec. 31.
Names of Candidates to Be Certified by Secretary of State.
Sec. 389. Not less than thirty days before an election to fill any
public office, the Secretary of State shall certify to the county auditor
of each county within which any of the electors may by law vote
for candidates for such office, the name and description of each
person nominated for such office, as specified in the certificates of
nomination filed with the Secretary of State.
Historical: Laws 1899, 33, Sec. 23;
re-enacting Laws 1890-91, 57, Sec. 32.
Declination of Nomination.
Sec. 390. Whenever any person nominated for public office, as in
this chapter provided, shall, at least thirty days before election, except
310
ELECTIONS
Tit. 3
in the case of municipal elections, in a writing signed by him, and
certified to by the registrar of the precinct where the person nomi-
nated resides, notifying the officer with whom the certificate nominat-
ing him is by this chapter required to be filed, that he declines such
nomination, such nomination shall be void. In municipal elections
such declination must be made at least ten days before the election.
Historical: Laws 18 99, 3 3, Sec. 24;
re-enacting Laws 1890-91, 57, Sec. 33.
Mandatory Provision: The provision
of this section requiring declinations
of nominees 'to be fined at least thirty
days before election is mandatory, and
the auditor may refuse to accept a
declination presented for filing within
thirty days of the election. Napton
v. Meek (1902) 8 Ida. 625; 70 Pac.
945.
Historical: Laws 1899, 33, Sec. 25;
re-enacting Laws 1890-91, 57, Sec. 34.
Cited: Baker v. Scott (1895) 4 Ida.
596; 43 Pac. 76.
Use of Stickers on Tickets.
Sec. 392. When any vacancy occurs before election day and after
the printing of the tickets, and any person is nominated according
to the provisions of this chapter to fill such vacancy, the officer whose
duty it is to have the tickets printed and distributed, shall thereupon
have printed a requisite number of stickers, and shall mail them by
registered letter to the judges of election in the various precincts
interested in such election. The distributing clerk, whose duty it
is made by the provisions of this title to distribute the tickets, shall
Mode of Filling Vacancies.
Sec. 391. Should any person so nominated die before the printing
of the tickets, or decline the nomination as in this chapter provided,
or should any certificate of nomination be or become insufficient or
inoperative from any cause, the vacancy or vacancies thus occasioned
may be filled in the manner required for original nominations. If
the original nomination was made by a party convention which had
delegated to a committee the power to fill vacancies, such committee
may, upon the occurring of such vacancies, proceed to fill the same.
The chairman and secretary of such committee shall thereupon make
and file with the proper officer a certificate setting forth the cause
of the vacancy, the name of the person nominated, the office for
which he was nominated, the name of the person for whom the new
nominee is to be substituted, the fact that the committee was au-
thorized to fill vacancies, and such further information as is required
to be given in an original certificate of nomination. The certificate
so made shall be executed in the manner prescribed for the original
certificate of nomination, and shall have the same force and effect
as an original certificate of nomination. When such certificate shall
be filed with the Secretary of State, he shall, in certifying the nomi-
nations to the various county auditors, insert the name of the person
who has thus been nominated to fill a vacancy in place of that of the
original nominee. And in the event that he has already sent forth
his certificate, he shall forthwith certify to the auditors of the proper
counties the name and description of the person so nominated to
fill a vacancy, the office he is nominated for, the party or political
principle he represents, and the name of the person for whom such
nominee is substituted.
Ch. 8.
REGISTRATION
311
affix such stickers in the proper place on each ticket before it is given
out to the elector.
Historical: Laws 189 9, 33, Sec. 26;
re-enacting- Laws 1890-91, 57, Sec. 35.
CHAPTER 8.
REGISTRATION OF ELECTORS.
Section
393. Appointment of registrars.
394. Registration notices, books and
supplies.
395. Oath of registrar.
396. Registration of voters: Elector's
oath: Check lists.
397. Preservation of registrar's pa-
pers.
Section
39 8. Registrar to estimate tickets re-
quired.
3 9 9. Transfer certificates.
400. Mandate to compel registration.
4J1. Compensation of registrar.
Appointment of Registrars.
Sen. 393. The board of county commissioners of each county of
the State must, at its regular meeting in July, next preceding each
general election, appoint a registrar for each election precinct in
the county, who must be a qualified elector, resident of such precinct,
and otherwise a proper person and qualified to perform the duties
of such office, and such registrar may hold his office until his successor
is appointed and qualified. When any registrar fails to act, or the
office becomes vacant, the said board, if in session, must appoint
another registrar; or if said board is not in session, the chairman
of the board must appoint; and should a registrar not be appointed,
or from any cause, none should act, the electors may, on the second
Saturday of September at one o'clock p. m. next preceding any gen-
eral election to which this title is applicable, meet at the place in
the precinct appointed by said board for the holding of such election,
or should the board fail to appoint a place, then at the place where
the last general election was held, and elect a registrar.
Historical: Laws 1890-91, 57, Sec.
40; re-enacted Laws 1899, 33, Sec. 31;
amended Laws 1903, 354, Sec. 1.
Registration Notices, Beoks and Supplies.
Sec. 394. The said board must, prior to the first day of August
next preceding any general election, cause notice to be given for not
less than fifteen days, by publication in some newspaper published
in the county if there be one, otherwise by at least three notices
posted up in different parts of the county, one of which must be at
the court house door, giving the names and general description of
election precincts, the name of the registrar for each precinct, and
the time during which registration may be made, which shall be,
for every general election, during each Saturday including and from
the first day of September, to and including the Saturday next pre-
ceding the election. At the time of or before giving such notice,
the board must furnish to each registrar two books, one to be known
as the "election registrar" for the registry of qualified electors, and
312
ELECTIONS
Tit. 3
the other for the registry of rejected applicants. Each of such
books must be ruled and headed substantially as follows :
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At the same time the said board must furnish to the registrar
the blank notices, certificates, oaths and all other blanks, books, and
papers, needed and required to perform the duties of his office as
such registrar.
Historical: Laws 1890-91, 57, Sec.
41; re-enacted Laws 1899, 33, Sec. 32;
amended Laws 1903, 354, Sec. 1
amended Laws 1905, 380, Sec. 1.
Oath of Registrar.
Sec. 395. Before entering upon the duties of his office, each
registrar must take and subscribe, before any officer authorized to
administer oaths, the official oath required of all officers acting
under the laws of the State of Idaho, which, when so taken and sub-
scribed, must be by him filed with the clerk of the board of county
commissioners, and said registrar may thereupon register his own
name in the elector's register.
Historical: Laws 1899, 33, Sec. 33;
re-enacting Laws 1890-91, 57, Sec. 42.
Registration of Voters: Elector's Oath: Check Lists.
Sec. 396. He must also, prior to the time of commencement of
registration, post notices in at least three public places in different
parts of his precinct, most likely to give notice to the inhabitants
thereof, giving the time, days and hours during, and the place at
which he will be ready to receive and hear applications for registra-
tion, and he must thereafter, on the days named by him in said
notice, be at the place designated, from the hours of nine o'clock
a. m. to five o'clock p. m., and from seven o'clock p. m. to nine o'clock
p. m., and receive and register the names of all persons applying,
who are, or will be on the day of election for which registration is
made, entitled to vote thereat. He must, also, on any other day of
the week, except holidays, during said time of registration, register
any such elector who may find and apply to him at his place of
registration, and he may, at any time or place during said time of
registration, register any such elector of his precinct. He may, at
any time, examine under oath any applicant as to his qualifications,
Ch. 8. REGISTRATION 313
and he must examine and permit any qualified elector of his county
to examine any applicant for registration, either when such applicant
is not known to the registrar to be a qualified elector, or when any
such qualified elector challenges such applicant and specifies his cause
of challenge.
When any applicant claims to be a naturalized citizen the pro-
duction by him of his certificate of naturalization is prima facie
evidence of citizenship. If he cannot produce such certificate, he must
state, under oath, positively, the time when, and place and court
where, he was naturalized; and he must by his own, or other testi-
mony, make it satisfactorily appear to such registrar that he has
been duly naturalized and that his certificate thereof has been lost,
destroyed or is beyond his control ; and thereupon he must be deemed
a citizen, and entitled to registration if otherwise qualified. All
examinations before such registrar must be reduced to writing, when
desired by such applicant, challenging elector or registrar. Such
examination for any one applicant shall not exceed one-half hour,
without the consent of the registrar. If any applicant refuses to
answer all questions, give all information under his control, take all
other oaths, and do all other acts and things required of him by law,
his application must be rejected by the registrar.
The registrar must, before he registers any applicant, require him
to take and subscribe the oath to be known as the "Elector's Oath,"
which is as follows:
ELECTOR'S OATH.
I do swear (or affirm) that I am a citizen of the United States,
of the age of twenty-one years, or will be the day of
A. D. 19 (naming the date of the next succeeding election) ; that I
have (or will have) actually resided in this State for six months,
and in this county for thirty days next preceding the next ensuing
election (in case of any election requiring a different time of resi-
dence so make it) ; that I have never been convicted of treason,
felony, embezzlement of public funds, bartering or selling or offering
to barter or sell my vote, or purchasing or offering to purchase the
vote of another, or other infamous crime, without thereafter being
restored to the rights of citizenship ; that I will not commit any act
in violation of the provisions in this oath contained; that I am not
now registered or entitled to vote at any other place in this State;
that I do regard the Constitution of the United States and the laws
thereof, and the Constitution of this State and the laws thereof, as
interpreted by the courts, as the supreme law of the land; (when
made before a judge of election add: "and I have not previously
voted at this election,") so help me God.
(Signed) ..!
Subscribed and sworn to before me this day of ,
A. W. 19 .
Registrar of . ...Precinct, County, Idaho.
When the registrar admits any one to registration he must enter,
in the proper column of the "Elector's Register," the number, the
name in full (except any middle name, which may be by initial),
314
ELECTIONS
Tit. 3
date of registry, age, place of nativity and residence of the elector
so admitted. The residence must be so described by giving the house,
street, ward, or part of the precinct he resides in, that it may be
easily found; also it shall be stated, if a naturalized citizen, whether
or not he produced his certificate, and the registrar may, in the
column of remarks, add any pertinent notes.
He must also enter the names, with statements similar to the
above, of all persons who are refused registration, in the books kept
for that purpose, and therein state the reason of such refusal.
During the time between the last day of registration and the
day of election each registrar must prepare for his "Elector's Regis-
ter" two "check lists" of all the names registered by him, arranged
alphabetically according to the surname, placing on the left of the
name the same number it bears in the "Elector's Register," and on
the right of the column of names, a blank column in which to indicate
by the word "voted" when the elector votes; said "check lists" must
have a heading showing for what election it was prepared and used;
they must be carefully prepared without interlineations, in legible
writing or typewriting, certified and sworn to by the registrar, and,
not later than the day next preceding the election, he must deliver
to one of the judges of election of his precinct his "Elector's Regis-
ter," and the register containing the names of those refused regis-
tration, and to each of the other two judges, who are not of the
same political party, a copy of said "check lists," and such judges
must, as the electors vote, write the word "voted" opposite their
names in said "check lists," while the clerks of election keep the
record of the electors voting as elsewhere provided in this title.
Historical: Laws 1890-91, 57, Sec.
43; re-enacted Laws 1899, 33, Sec.
34; amended Laws 1903, 354, Sec.
1; amended Laws 1905, 380, Sec. 1.
Cited: Wilson v. Bartlett (1900) 7
Ida. 271; 62 Pac. 416.
Power to Administer Oath: This
section confers upon the registrar the
power to administer oaths. Terri-
tory v. Anderson (1889) 2 Ida. 573; 21
Pac. 417.
Preservation of Registrars' Papers.
Sec. 397. All persons offering to vote at any election are subject
to challenge, as provided by the election laws, but registration of
any elector's name is prima facie evidence of his right to vote, and
no person shall vote unless he is first registered.
Each registrar, after so preparing his "check lists," must arrange
the "Elector's Oaths" taken before him in the order the names of
the electors who took them appear upon the "check lists," and attach
them together, putting the names under each letter in a separate
package ; and all such oaths, certificates and written testimony taken
by the registrar, and the register books of electors and persons re-
jected, delivered to said judges, must all be transmitted, and other
election returns, to the clerk of the board of county commissioners,
who must preserve the same for at least one year.
Historical: Laws 1899, 33, Sec. 35;
re-enacting Laws 1890-91, 57, Sec. 44.
Cited: Wilson v. Bartlett (1900) 7
Ida. 271; 62 Pac. 416.
Registrar to Estimate Tickets Required.
Sec. 398. Each registrar must, twenty-five days previous to the
Ch. 8. REGISTRATION 315
day of election, notify the clerk of the board of county commission-
ers of his county of the probable number of tickets required for the
precinct of which he is registrar, basing his estimate upon the number
of registered electors, allowing a sufficient number for contingencies.
Historical: Laws 1899, 33, Sec. 36;
re-enacting Laws 1890-91, 57, Sec. 45.
Transfer Certificates.
Sec. 399. When a registered elector desires to remove from a pre-
cinct where he is registered, he may, at any time before the registrar
has closed his registration books, apply to such registrar to have
his name stricken from the register, and the registrar must then
strike the name of such elector from the register, and shall deliver
to said elector a transfer certificate substantially in the following
form, to-wit:
TRANSFER CERTIFICATE,
"This certifies that was on the day of
_ , 19 , duly registered in Precinct, in the County
of , State of Idaho; and that at his own request his name
has been this day erased from the official register of said precinct.
"Witness my hand this day of ..., 19
"Registrar of .Precinct, County, Idaho."
Such transfer certificate shall entitle the elector named therein
to be registered in any other precinct in the same county, if it be
filed with the registrar of such other precinct at any time before the
close of the last day of registration.
Any elector who has taken out a transfer certificate as in this
section provided, may personally file the same with the registrar
of the precinct in which he desires to register and vote, or he may
send his transfer certificate to such registrar by registered mail.
If the elector file his transfer certificate personally, he shall be treated
as any other applicant for registration ; if the elector send his trans-
fer certificate by mail to the registrar, his name shall be entered in
the official register and check lists; and on the check lists, opposite
the name of each elector who has filed a transfer certificate person-
ally, the registrar shall enter the words, "Registered by certificate, "
and opposite the name of each elector who has sent his transfer
certificate by mail the registrar shall enter, "Registered by certificate
by mail," and the registry number appearing upon the envelope in
which the transfer was sent to him. Upon the day of election, when
an elector registered by transfer certificate by mail offers to vote,
the judges of election, or one of them, shall, before receiving and
depositing the ballot, administer to such elector the same oath that
is required to be taken before registrars by all electors applying for
registration, and shall require such elector to exhibit the original
registered letter receipt issued to him when he mailed his transfer
certificate to the registrar, and the number on the check list opposite
the name of such elector must correspond with the number on the
registered letter receipt.
316
ELECTIONS
Tit. 3
Historical: Laws 1899, 33, Sec. 37;
re-enacting Laws 1890-91, 57, Sec. 46;
amended Laws 1895, 91, Sec. 2.
Mandate to Compel Registration.
Sec. 400. Should any registrar at any time refuse to register any
applicant, such applicant may apply to the District Court, or the
Judge thereof, for a writ of mandate to compel the registrar to regis-
ter him, and the provisions of the Code of Civil Procedure in similar
proceedings are applicable.
Historical: Laws 18 99, 33, Sec. 38;
re-enacting- Laws 1890-91, 57, Sec. 47.
Cross Reference :
4976-4989.
Mandate: Sees.
Compensation of Registrar.
Sec. 401. The several registrars shall receive such compensation
as shall be allowed by the board of county commissioners, which in
no case shall exceed twenty-five cents for each name registered, and
the compensation herein provided for shall be paid out of the current
expense fund.
Historical: Laws 1890-91, 57, Sec.
48; re-enacted Laws 1899, 33, Sec.
39; amended Laws 1903, 354, Sec. 1.
Omitting the provision for names car-
ried from the old to the new election
CHAPTER 9.
BALLOTS AND SUPPLIES.
Section
402. Official election stamp.
Ballot boxes.
Official ballots to be provided.
Form and contents of ballots.
Submission of special questions.
Same: Errors and omissions.
Only official ballots counted.
403.
404.
405.
406.
407.
408.
Section
409. Folding of ballots.
410. Distribution of ballots.
411. Record of number of ballots.
41ii Delivery of and receipt for sup-
plies.
413. Instruction cards and sample
ballots.
Official Election Stamp.
Sec. 402. The board of county commissioners shall, at their regu-
lar meeting in July next preceding a regular election, make provision
for an official election stamp (which must bear the date and year
of the election at which it is used, and the words "official ballot"),
of such character or device, and of such material, as said board
may select, and such official stamp must be changed at each general
election and kept secret by the officers furnishing and using it, as
provided by law, and no one else must know of its form or make
until used according to law. It is also the duty of the county com-
missioners, at their regular session in July next preceding a general
election, to authorize the county auditor to provide a suitable num-
ber of election tickets for the county, said tickets to be printed under
the same regulations as other county printing. The tickets must
be bound in book form, each book containing one hundred tickets
and printed in the manner prescribed by law.
register, which is obsolete because
now all voters must register anew for
each election. See Laws 1905, 380
(Sec. 396 ante).
Historical: Laws 1899, 33, Sec. 44;
re-enacting- Laws 1890-91, 57, Sec. 53.
CL 9.
BALLOTS AND SUPPLIES
317
Ballot Boxes.
Sec. 403. The county commissioners must provide, at the expense
of the county, suitable ballot boxes, with lock and key, and an opening
in the lid sufficient to admit a single folded ballot, and no larger,
and similar boxes for the use of the distributing clerks, in which
they shall deposit defaced, mutilated and returned ballots. The keys
must be delivered to one of the judges designated by the board.
Historical: Laws 18 9 9, 33, Sec. 45;
nacting Laws 1890-91, 57, Sec. 54.
Official Ballots to Be Provided-
Sec. 404. Except as in this title otherwise provided, it shall be
the duty of the county auditor of each county to provide printed ballots
for every election for public officers in which electors, or any of the
electors, within the county, participate, and cause to be printed in
the ballot the name of every candidate whose name has been certified
to or filed with the county auditor in the manner provided for in this
title. Ballots, other than those printed by the respective county
auditors, according to the provisions of this title, shall not be cast
or counted in any election. Nothing in this title contained shall pre-
vent any voter from writing on his ticket the name of any person
for whom he desires to vote for an office, and such vote shall be
counted the same as if printed upon the ballot and marked by the
voter. The voter may place a cross (X) opposite the name he has
written, but his having written the name of his choice is sufficient
evidence that such is the person for whom he desires to vote. Elec-
tions for school district officers are excepted from the provisions of
this section. In all municipal elections the duties specified in this
section as devolving on the county auditor shall devolve on the mu-
nicipal clerk.
on the ballot in the proper column
the names of the candidates whose
nominations have been duly certified
to him; he cannot reject the name of
any nominee on the ground that he
is ineligible to the office for which
he is nominated. Miller v. Davenport
(1902) 8 Ida. 593; 70 Pac. 610.
Historical: Laws 1899, 33, Sees. 46,
47, re-enacting Laws 1890-91. 57, Sees.
55, 56.
Cross Reference: Secret ballot
guaranteed: Const. Art. 6, Sec. 1.
Duties of Auditor: A county audi-
tor in preparing official ballots acts
ministerially only, and must place up-
Form and Contents of Ballots.
Sec. 405. All election ballots prepared under the provisions of this
title for the election of candidates for office shall be white in color,
and of good quality of printing paper, and the name shall be printed
thereon in black ink.
Every ballot shall contain thereon the names of every candidate
whose nomination for any office specified in the ballot has been
certified or filed according to the provisions of this title, but no name
shall appear thereon more than once.
The ballot shall be of sufficient size to contain the names of all
the candidates and questions to be voted on, exclusive of the stub or
counterfoil. The width of the stub or counterfoil shall be two inches,
and of the same length as the ballot. Each stub shall be consecutively
numbered, beginning with number one; the ballot and stub being
connected by a perforated line.
318 ELECTIONS Tit. 3
The width of the ballot must be divided into equal perpendicular
spaces, one for each political party represented by the different op-
posing candidates, in which the tickets of the different parties must
be printed, and one similar in which only the names of the different
offices to be filled at the election shall be printed, and below which
the voter may write the names of the persons he wishes to vote for.
These perpendicular spaces, or party tickets, must each be surrounded
by very heavy leaded lines, and between each space, or party ticket,
there must be a blank space of at least one inch. At the top of each
of said spaces, or party tickets, must be left a space wherein must
be printed any emblem which the several political parties may,
through their several state conventions, respectively select, and at
the same time that the officers of such convention certify to the
Secretary of State the names of the persons nominated by such con-
ventions, they shall also certify to him such emblem, which the Sec-
retary of State must certify to the several county auditors, when he
certifies to them the names of the candidates for the State offices:
Provided, however, That no political party may use the national flag
as its emblem, nor the emblem already adopted by any other political
party. Immeditely below the emblem or the space therefor, the cap-
tion or name of the political party must be printed on one straight line
and in a size of type not smaller than long primer. Immediately
below the middle of such caption or name, must be printed a circle at
least three-fourths of an inch in diameter, within which the voter
may place a cross (X), and thereby he votes, and his vote must be
counted for all the candidates named in that perpendicular space, or
party ticket, except such as he shall erase by drawing lines through
the names of those he does not wish to vote for. Immediately be-
low the circle above named must be drawn a horizontal line, below
which must be printed the names of the offices, to be printed in
small capitals, and the names of the candidates therefor in not smaller
than long primer capitals.
When a President and Vice President of the United States are
to be elected, the name of the office and the names of the candidates
for electors must be printed in like type as directed for other offices
and candidates, immediately below the last named horizontal line.
The name of each office and the candidate therefor must be included
in one space, but separated from other offices and candidates by
horizontal lines. To the right of names of the offices and candidates
must be a light ruled perpendicular line, within which, and opposite
the name of each candidate, must be printed a circle one-half inch
in diameter, within which, if the voter places a cross (X) his vote
must be counted for the candidate whose name is thus marked:
Provided, That if he has placed a cross in the large circle at the head
of the ticket, his cross opposite the name of the candidate in any
other ticket must not be counted unless he has erased the name of
any opposing candidate in the ticket in which he placed his cross (X)
in the large circle. The voter may, instead of placing a cross in the
large circle, vote only for such candidates as he desires, by placing
a cross on the right of their names in the small circle, or by writing
in the blank ticket the names of the persons he desires to vote for,
and placing a cross on the right of their names in the circle. Circles
Gh. 9.
BALLOTS AND SUPPLIES
319
one-half inch in diameter must be placed in the blank perpendicular
You can vote a ticket "straight" by placing an X in large circle below name <
straight ticket you do not wish to vote for, and placing an X in small circle on r
(Emblem.)
REPUBLICAN TICKET
FOR CONGRESS
JOHN JONES
FOR GOVERNOR
WILLIAM JOHNS
OR SECRETARY OF STATE
HENRY BOND
FOR REPRESENTATIVES
JOHN DOE
GEORGE HOOD
WILLIAM V™T
JOHN OSBORNE
V2 inch
(Emblem.)
DEMOCRATIC TICKET
FOR CONGRESS
ALEXANDER KNIGHT
FOR GOVERNOR
CONRAD DWIGHT
FOR SECRETARY OF STATE
RICHARD ROE
FOR REPRESENTATIVES
GEORGE FOX
ANDREW WILSON
JOHN ALSTON
ASA DALE
tne space to the right of each question. The ballot shall be of sufficient
318
ELECTIONS
Tit. 3
The width of the ballot must be divided into equal perpendicular
spaces, one for each political partv rpnrp.spnt.pH Vw trip Aifpavant
posing candidates, in which th<
be printed, and one similar in
offices to be filled at the electi
the voter may write the names
hh™?T?iUlLTeS' °r l Pacing an X in large circle below na
by very heavy leaded lines, am \ , _ . * . „ . ■
there must be a blank space of e for> and Pacing an X in small circle
of said spaces, or party tickets
m<
on
be printed any emblem which
through their several state cor
the same time that the officer
Secretary of State the names o
ventions, they shall also certify
retary of State must certify to
certifies to them the names of
Provided, however, That no pol
as its emblem, nor the emblem
party. Immeditely below the e
tion or name of the political par
and in a size of type not sma
below the middle of such captio:
least three-fourths of an inch "
may place a cross (X), and th
counted for all the candidates r
party ticket, except such as he
the names of those he does no-
low the circle above named mu
which must be printed the na
small capitals, and the names of
than long primer capitals.
When a President and Vic(
to be elected, the name of the c
for electors must be printed in
and candidates, immediately b
The name of each office and th(
in one space, but separated f:
horizontal lines. To the right (
must be a light ruled perpendic
the name of each candidate, m
in diameter, within which, if t
must be counted for the cane
Provided, That if he has placed
of the ticket, his cross opposit
other ticket must not be counte
any opposing candidate in the ti
in the large circle. The voter i
large circle, vote only for such
a cross on the right of their na
in the blank ticket the names c
and placing a cross on the righ
(Emblem.)
DEMOCRATIC TICKET
FOR CONGRESS
ALEXANDER KNIGHT
FOR GOVERNOR
CONRAD DWIGHT
FOR SECRETARY OF STATE
RICHARD ROE
FOR REPRESENTATIVES
GEORGE FOX
ANDREW WILSON
JOHN ALSTON
ASA DALE
v \jx liicii iictmcs in uit; uncie. untico
Oh. 9.
BALLOTS AND SUPPLIES
319
one-half inch in diameter must be placed in the blank perpendicular
^n/.o /~m fVio hdllnt fnr fViP name nf pa.r.h randidatp. who mav be
party you wish to vote for. You can "scratch" your ticket by erasing name on
ht of name you wish to vote for. See illustration on Representatives ticket.
(Emblem.)
POPULIST TICKET
FOR CONGRESS
FOR GOVERNOR
FOR SECRETARY OF STATE
FOR REPRESENTATIVES
O
<
X
o
w
o
FOR CONGRESS
FOR GOVERNOR
FOR SECRETARY OF STATE
FOR REPRESENTATIVES
tne space to tne ngnr 01 eacn question, i ne oanor snan oe 01 sumcienx
318 ELECTIONS Tit. 3
The width of the ballot must be divided into equal perpendicular
soaces. one for each nolitiVal nart.v rpnrp^pntprl hv fh<=> Hiffavanf ^*%
^""v"'0
Ch, 9. BALLOTS AND SUPPLIES 319
one-half inch in diameter must be placed in the blank perpendicular
space on the ballot, for the name of each candidate who may be
therein voted for. All the names of the several like offices and the
several opposing candidates therefor must be placed on the same
horizontal straight line. On the ballot, in aid of the voter, may be
placed such words or explanations as "Vote for one," "Vote for
three," "Yes," "No," and the like. The same margin must be left
above and below the printed matter. The face of the ballot and the
stub thereof must be in substantially the following form:
(See accompanying form.)
At the general elections held in this State nothing shall be placed
on the main ballots excepting the names of the different tickets, the
emblems, if any, of the different parties, the names of candidates for
the different offices on the several party tickets, and the circles as
herein provided for.
When a constitutional amendment is to be submitted to a vote
of the people the question shall be printed on a separate ballot on
pink colored paper, and this colored paper shall not be used in print-
ing ballots referring to any other questions than those of constitu-
tional amendment : Provided, That if more than one one constitutional
amendment is to be voted on at any election they shall all be printed
on one ballot.
All other questions to be submitted to the votes of the people,
excepting constitutional amendments and county seat or boundary
questions shall be printed on separate ballots, on light blue colored
paper: Provided, That if more than one question is to be submitted
at any election they shall all be printed on one ballot.
The county auditors of each county in the State shall cause such
separate ballots to be printed and furnished for each precinct in
their respective counties at all general elections, the ballots to be
prepared as follows :
The ballots shall be seven inches wide and shall be attached to
a stub or counterfoil two inches wide by a perforated line. At the
top of the pink colored ballots shall be the words "Constitutional
Amendment" or "Constitutional Amendments," as the case may be,
and at the top of the blue colored ballots shall be the words "Other
Question" or "Other Questions," as the case may be. Below these
words, and one-half inch from the upper margin, on each ballot, a
line shall be printed reaching the full width thereof. From a point
one inch from the right end of this line, a perpendicular line shall
be printed reaching to the lower margin of the ballot. In the space
to the left of this perpendicular line shall be printed the question
to be submitted to the vote of the people as now required by law.
In the space to the right of this perpendicular line two circles each
one-half inch in diameter shall be printed, one above the other with
the word "Yes" to the left of the upper circle, and the word "No"
to the left of the lower circle. The voter may place a cross (X)
within one of these circles and thereby he votes. Should two or
more questions be submitted to a vote on the same ballot, they shall
be separated from each other by a printed line running the full width
of the ballot, and two circles as provided above shall be printed in
the space to the right of each question. The ballot shall be of sufficient
320
ELECTIONS
Tit. 3
length to contain all questions submitted, printed in long primer type.
The stubs or counterfoil shall contain the name of the county, the
date of the election, and shall be numbered consecutively from one
upwards for each separate precinct in the county.
Historical: Laws 1890-91, 57, Sec.
57; re-enacted Laws 1899, 33, Sec. 48;
amended Laws 1903, 354, Sec. 1;
amended Laws 1905, 311, Sec. 1.
The words "and county seat or boun-
dary questions" in the third paragraph
from the end are inserted for the
reasons stated in the note to Sec.
479, which see.
Cited: (Concur, op.) Green v. State
Board Canvassers (1896) 5 Ida. 130;
47 Pac. 259.
Party Tickets: Only one ticket un-
der the recognized name or designa-
tion of a political party is entitled to
be placed upon the official ballot. Wil-
liams v. Lewis (1898) 6 Ida. 184; 54
Pac. 619.
Same — Determination of Conflict:
Where contention arises between two
conventions of the same party as to
which is entitled to have the ticket
nominated by it placed upon the offi-
cial ballot under the recognized party
name, the question will be decided in
favor of the ticket nominated by the
convention called by the regular State
Central Committee of the party. lb.
Same: Submission of Special Questions.
Sec. 406, Whenever the Secretary of State has duly certified to
the county auditor any question to be submitted to a vote of the
people, the county auditor shall have a separate ballot printed there-
for in the form prescribed by the preceding section for such question.
The county auditor shall also prepare the necessary tickets whenever
any question is required by law to be submitted to the vote of the
electors of any locality, and not to the State generally: Provided,
however, That in all questions submitted to the voters of a municipal
corporation alone, it shall be the duty of the municipal clerk to pro-
vide the necessary tickets.
Historical: Laws 1899, 33, Sec 49;
re-enacting Laws 1890-91, 57, Sec. 58.
The clause "a separate ballot printed
therefor in the form prescribed by
the preceding section for such ques-
tion", is inserted in place of "printed
on the regular tickets the question in
such form as will enable the electors
to vote upon the question so pre-
sented in the manner as in this act
provided ", to conform to the require-
ment of separate ballots prescribed by
the preceding section as amended in
1905. In the 1899 law special ques-
tions were required to be printed on
the regular ballots.
Same: Errors and Omissions.
Sec. 407. Whenever it shall appear by affidavit that an error or
omission has occurred in the publication of the names or descriptions
of the candidates nominated for office, or in the printing of the
tickets, the probate court of the county may, upon application of
any elector, by order, require the county auditor or municipal clerk
to correct such error, or to show cause why such error should not
be corrected.
Historical: Laws 1899, 33, Sec 50;
re-enacting Laws 1890-91, 57, Sec. 59.
Defective Ballots — Correction:
Where a candidate for a county of-
fice neglects to have a defect in the
official ballot corrected as provided
for in this section, he cannot after
the election is had and he finds him-
self defeated, raise the objection that
the name of the successful candidate
was improperly placed on the official
ballot. Baker v. Scott (1895) 4 Ida.
596; 43 Pac. 76.
Only Official Ballots Counted.
Sec. 408. No ballot must be used or counted at any election except
the legal ballot printed by the county auditor, or, in the case of munic-
ipal elections, by the clerk of the municipality, and distributed accord-
Ch. 9. BALLOTS AND SUPPLIES 321
ing to law by the distributing clerk within the polling place. And no
ticket must be distributed by the distributing clerk, or permitted to
be used by the election officers, which has any mark or thing on the
back or outside thereof whereby it might be distinguished from any
other ballot legally used on the same day. No ballot or ticket printed
in imitation of the legal ticket furnished by the county auditor, or,
in the case of municipal elections, by the clerk of the municipality,
according to law, shall be circulated on the day of election, or brought
into the polling place, and no elector shall be permitted to vote any
other ballot than the one he received from the distributing clerk.
Historical: Laws 18 99, 33, Sec. 51;
re-enacting Laws 1890-91, 57, Sec. 60.
Folding of Ballots.
Sec. 409. Every ticket, when used as a ballot, must be folded so
as to conceal its contents and to expose the impression of the official
election stamp on the back.
Historical: Laws 18 99, 33, Sec. 52;
re-enacting Laws 1890-91, 57, Sec. 61.
Distribution of Ballots.
Sec. 410. It shall be the duty of the county auditor of the county
(or the municipal clerk in the case of municipal elections) to furnish
and cause to be delivered to the judges of election of each election
precinct within the county (or within the municipality in case of
municipal elections), and in which the election is to be held, at the
polling place of the precinct before the opening of the polls, the
proper number of tickets as required by this title: Provided, That
not less than one hundred tickets shall be furnished for each fifty
or fraction of fifty electors registered in each precinct in the county
(and in the case of municipal elections, each precinct in the mu-
nicipality) .
Historical: Laws 1899, 33, Sec. 53;
re-enacting Laws 1890-91, 57, Sec. 62.
Record of Number of Ballots.
Sec. 411. The county auditor of each county shall keep a record
of the number of tickets printed and furnished to each polling place
and preserve the same for one year.
Historical: Laws 1899, 33, Sec. 54;
re-enacting Laws 1890-91, 57, Sec. 63.
Delivery of and Receipt for Supplies.
Sec. 412. The required number of tickets, together with the official
stamp and ink pad for the purpose of stamping or designating the
official tickets, as hereinbefore provided, shall be delivered to the
judges of election in sealed packages, with marks on the outside
clearly designating the polling place for which they are intended,
upon receipt of which at least a majority of the judges of election
must return receipts therefor to the county auditor in case of county
elections, and to the clerk of the municipality in case of municipal
elections, and the several auditors and clerks shall preserve the re-
ceipts for one year.
322
ELECTIONS
Tit. 3
Historical: Laws 18 99, 3 3, Sec. 55;
re-enacting Laws 1890-91, 57, Sec. 64.
Instruction Cards and Sample Ballots.
Sec. 413. The county auditor of each county in case of a general
election, and the several city clerks in case of city elections, shall
prepare full instructions for the guidance of voters at such elections,
as to obtaining tickets, as to the manner of marking them, and as
to obtaining new tickets in place of those accidentally spoiled, and
they shall respectively cause the same, together with copies of Sec-
tions 6370, 6371 and 6372, of the title relating to crimes against the
elective franchise, to be printed in large, clear type, on separate cards,
to be called cards of instruction. The county auditor of each county,
and the several city clerks in case of a municipal election, shall fur-
nish four such cards to the judges of election in each election pre-
cinct, and one additional card for each fifty registered electors or
fractional part thereof, at the same time and in the same manner
as the printed tickets. The judges of election shall post not less than
one of such cards in each place or compartment provided for the
preparation of tickets, and not less than three of such cards elsewhere
in and about the polling places, upon the day of election. The county
auditor of each county, and the several city clerks in case of a mu-
nicipal election, shall cause to be printed on tinted or colored paper,
without official indorsement of any kind, and furnish to the judges
of election of each election precinct, at the same time and in the
same manner as the official tickets and official stamps, six sample or
specimen tickets and one additional sample ticket for each fifty regis-
tered electors or fractional part thereof in the precinct. The sample
tickets shall be printed like the official or regular tickets, and of
the same size without the stub. There shall be posted in each of
the compartments or booths, one of the sample tickets without the
official stamp, and not less than four such tickets shall be posted
elsewhere in and about the. polling places on the day of election. It
shall be the duty of the same officers, at the same time and in the
same manner, to provide and furnish to each polling place proper
and necessary supplies and conveniences for marking the tickets.
Historical: Laws 1899, 33, Sec. 56;
re-enacting Laws 1890-91, 57, Sec. 65.
CHAPTER 10.
CONDUCT OF ELECTION.
Section
414. Election officers to take oath.
415. Opening and closing of polls.
416. Changing polling place.
417. Same: Proclamation and no-
tice.
418. Opening ballot boxes.
419. Opening supplies.
42 0. Judges may administer oaths.
421. Duties of constable.
4 2 2. Voting to continue during elec-
tion.
Section
423. Delivery of ticket to elector.
42 4. Manner of voting.
425. Spoiled ballots.
426. Deposit of ballot in box.
426a. Same: Unstamped ballots.
42 7. Officers not to divulge informa-
tion.
42 8. Challenging voters.
42 9. Challenge for want of citizen-
ship.
430. Same: For conviction of felony.
Ch. 10. CONDUCT OF ELECTION 323
Section
Sectior
431. Same: For want of residence:
435. ,
For non-age.
436.
432. Same: Residence: How deter-
437. ]
mined.
1
433. Oath of challenged person.
438. ]
434. Duty of clerks.
Judge's duty to challenge.
Refusal to take oath.
Disposal of stubs and defaced
tickets .
Form of poll lists.
Election Officers to Take Oath.
Sec. 414. Before opening the polls, all officers of election must
take and subscribe an oath to faithfully perform the duties imposed
upon them by law. Any elector of the township may administer and
certify such oath.
Historical: Laws 1899, 33, Sec. 58;
re-enacting Laws 1890-91, 57, Sec. 67.
Opening and Closing of Polls.
Sec. 415. At all elections to be held under this title, the polls must
be opened at the hour of eight o'clock in the forenoon, if the regularly
appointed judges of election and distributing clerk are present; but
in case they are not present, then the polls must not be opened by
the judges or distributing clerk elected until the hour of nine o'clock,
unless a majority of the regular appointed judges are present, and
the polls must continue open until seven o'clock in the evening of
the same day, at which time the polls must be closed ; and upon
opening the polls, one of the clerks, under the direction of the judges,
must make proclamation of the same; and thirty minutes before
closing the polls, proclamation must be made in like manner, and
the polls closed in half an hour thereafter.
Historical: Laws 1899, 33, Sec. 59;
re-enacting Laws 1890-91, 57, Sec. 68.
Changing Polling Place.
Sec. 416. Whenever it shall become impossible or inconvenient to
hold an election at the place designated therefor, the judges of elec-
tion, after having assembled as near as practicable to such place, and
before receiving any vote, may adjourn to the nearest convenient
place for holding the election, and at such adjourned place forthwith
proceed with the election.
Historical: Laws 1899, 33, Sec. 60;
nacting Laws 1890-91, 57, Sec. 69.
Same: Proclamation and Notice.
Sec. 417. Upon adjourning any election, as provided in the pre-
ceding section, the judges shall cause proclamation thereof to be
made, and shall post a notice upon the place where the adjournment
was made from, notifying electors of the change of polling place.
Historical: Laws 1899, 33, Sec. 61;
nacting Laws 1890-91, 57, Sec. 70.
Opening Ballot Boxes.
Sec. 418. Before receiving any ballots the judge must, in the pres-
ence of any persons assembled at the polling place, open and exhibit,
close and lock, the ballot boxes, and thereafter they must not be
324 ELECTIONS Tit. 3
removed from the polling place until all the ballots are counted, nor
must they be opened until after the polls are finally closed, and then
in the presence of the bystanders: Provided, That in precincts hav-
ing two sets of election officers and duplicate ballot boxes, as provided
for in Sections 443 to 447, inclusive, of this title, said ballot boxes
may be opened during the election for the purpose of counting the
ballots as in said sections provided.
Historical: Laws 1899, 33, Sec. 64; Proviso added to conform to Laws
re-enacting Laws 1890-91, 57, Sec. 73. I 1899, 372, (Sees. 443-447 post).
Opening Supplies.
Sec. 419. The judges of election, on the opening of the polls, must
break the sealed packages of election tickets, official stamp and other
supplies, in the presence of bystanders.
Historical: Laws 1899, 33, Sec. 65;
re-enacting Laws 1890-91, 57, Sec. 74.
Judges May Administer Oaths.
Sec. 420. Either judge may administer and certify any oath re-
quired to be administered during the progress of an election, and
either judge may challenge a voter of whose qualifications to vote
he is in doubt, but in such case one of the remaining judges must
administer the oath.
Historical: Laws 1899, 33, Sec. 66; Phraseology transposed so as to ren-
re-enacting Laws 1890-91, 57, Sec. 75. der the section grammatical.
Duties of Constable.
Sec. 421. The constable of the precinct shall be in attendance at
the polling place on the day of election, and, where there is no con-
stable, the judges of election may appoint some capable person to
act as such during the election, and he shall have the power to make
arrests for disturbance of the peace, as provided by law for such
officers, and he shall allow no one within the guard rail of the polling
place except those who go to vote, and shall allow but one elector in
a compartment at one time.
Historical: Laws 1899, 33, Sec. 76;
re-enacting Laws 1890-91, 57, Sec. 85.
Voting to Continue During Election.
Sec. 422. Voting may commence as soon as the polls are opened,
and may be continued during all the time the polls remain open.
Historical: Laws 1899, 33, Sec. 72;
re-enacting Laws 1890-91, 57, Sec. 81.
Delivery of Ticket to Elector.
Sec. 423. An elector desiring to vote shall give his name and, if
requested to do so, his residence, to one of the clerks of election, who
shall thereupon announce the same in a loud and distinct tone of
voice, clear and audible, and if such name is found on the check list
by the election officer having charge thereof, he shall likewise repeat
the said name, and the voter shall be allowed to enter the space en-
closed by the guard rail as hereinbefore provided. The distributing
Ch. 10. CONDUCT OF ELECTION 325
clerk shall give him one, and only one, ticket, and his name shall be
immediately checked on said list by placing a mark on the registry
list to denote that he has received a ticket, and the ticket must be
stamped on the back and near the top of the ticket with the official
stamp by the distributing clerk, and thereupon delivered to the elector.
Besides the election officers, not more than one voter, in excess of the
voting shelves or compartments provided, shall be allowed in said
enclosed space at one time.
Historical: Laws 1899, 33, Sec. 68;
re-enacting Laws 1890-91, 57, Sec. 77.
Manner of Voting.
Sec. 424. On receipt of his ticket, the voter shall forthwith and
without leaving the enclosed space, retire alone to one of the voting
shelves or compartments so provided, and shall prepare his ticket by
marking in the appropriate margin, or place a cross (X) opposite
the name of the candidate of his choice for each office to be filled,
or in the circle provided therefor at the head of the several party
tickets, or by filling in or writing the name of the person for whom
he wishes to vote in the blank space provided therefor in the column
or division of the ticket for that purpose provided, and marking a
cross (X) opposite thereto; and in case of a question submitted to a
vote of the people, by marking in the appropriate margin or place a
cross (X) against the answer which he desires to give. Before
leaving the voting shelf or compartment the voter shall fold his ticket
without displaying the marks thereon, and so as to expose the im-
pression of the official stamp on the back, and he shall keep the same
so folded until he has voted. He shall then hand his ballot to one
of the judges and announce his name. He shall mark his ticket or
ballot without delay and shall quit said enclosed space as soon as
he has voted.
No such voter shall be allowed to occupy a voting shelf or com-
partment already occupied by another, nor to remain within said
enclosed space more than ten minutes, nor to occupy a voting shelf
or compartment more than five minutes in case all of such shelves or
compartments are in use and other voters are waiting to occupy the
same. No voter, not an election officer, whose name has been checked
on the list of the election officers, shall be allowed to re-enter said
enclosed space during said election. It shall be the duty of the judges
for the time being to secure the observance of the provisions of this
section : Provided, That if any registered elector, who is blind or
otherwise disqualified by reason of physical infirmities rendering such
voter incapable of personally marking his ballot, desires to vote, then
and in that case, any two of the judges not of the same political party
may, at the request of such elector, mark and prepare his ballot for
him, placing an (X) mark in the proper place and opposite the names
of the candidates for whom such elector desires to vote. When the
ballot so marked by the judges is properly prepared and folded it
shall be given to the elector, who shall deliver it to the proper judge
to be deposited in the ballot box, as in other cases. The judges
assisting any such physically incapacitated elector in the preparation
of his ballot, must not influence or attempt to influence such voter
326
ELECTIONS
Tit. 3
in the selection of candidates to be voted for, and any judge who
has assisted any such elector, who shall divulge to any person the
name of any candidate for whom such elector voted, shall be guilty
of a misdemeanor.
Historical: Laws 18 9 9, 33, Sec. 69;
re-enacting- Laws 1890-91, 57, Sec. 78;
amended Laws 1895, 91, Sec. 4. The
clause "or in the circle provided
therefor at the head of the sev-
eral party tickets" is added to con-
form to Laws 1905, 311, Sec. 1 (Sec
405 ante).
Cross Reference: As to manner of
voting, see also Sec. 405.
Spoiled Ballots.
Sec. 425. No person shall take or remove any ticket from the
polling place before the close of the polls. If an elector inadvertently
or by mistake spoils a ticket, he shall return it folded to the dis-
tributing clerk, who must, if satisfied of such inadvertence, give him
another ticket. The ticket thus returned shall, without examination,
be immediately canceled by writing across the back, or outside of
the ticket as folded, the words "Spoiled ticket, another issued," and
deposit the defaced ticket in a box provided for that purpose. And
no one shall be allowed within the guard rails of the polling place,
except the election officers duly appointed, together with the number
of voters, as provided in this chapter.
Historical: Laws 1899, 33, Sec. 70;
re-enacting Laws 1890-91, 57, Sec. 79.
Cross Reference: Number of voters
allowed inside the rails: Sec. 423.
Deposit of Ballots in Box.
Sec. 426. The judge to whom any ballot may be delivered shall,
upon the receipt thereof, pronounce in an audible voice the name of
the elector, and if no objection shall be made to him, and the judges
are satisfied that he is a legal voter, and is duly registered, and the
official stamp is plainly visible on the outside of the folded ballot,
he shall, without opening or examining, immediately deposit the ballot
in the ballot box, and the clerks of the election shall enter the name
of the elector in the poll books.
Historical: Laws 1899, 33, Sec. 73;
re-enacting Laws 1890-91, 57, Sec. 82.
Same: Unstamped Ballots.
Sec. 426a. No judge of election shall deposit in any ballot box any
ballot upon which the official stamp, as hereinbefore provided for,
does not appear. Every person violating the provisions of this sec-
tion shall be guilty of a misdemeanor.
Historical: Laws 1899, 33, Sec. 74;
re-enacting Laws 1890-91, 57, Sec. 83.
Officers Not to Divulge Information.
Sec. 427. No officer, judge or clerk shall communicate, except for
some purpose authorized by law, before the polls are closed, any
information as to the name or number on the registry list of any
elector who has not applied for a ticket, or who has not voted at
the polling place; and no officer, judge or clerk, or other person whom-
Ch. 10
CONDUCT OF ELECTION
327
soever, shall interfere with, or attempt to interfere with, a voter
when marking his ticket. No officer, judge or clerk, or other person,
shall, directly or indirectly, attempt to induce any voter to display
his ticket after he shall have marked the same, or to make known
to any person the name of any candidate for or against whom he may
have voted.
Historical: Laws 189 9, 33, Sec. 75;
re-enacting Laws 1890-91, 57, Sec. 84.
Challenging Voters.
Sec. 428. In case any person offering to vote is challenged, one
of the judges must declare the qualifications of an elector to such
person ; if the person so challenged then declare himself duly qualified,
and the challenge is not withdrawn, one of the judges must then
tender him the elector's oath, as provided for in Section 396.
Historical: Laws 18 99, 33, Sec. 77;
re-enacting Laws 1890-91; 5 7, Sec. 8 6.
"Section 396" for "Section 43." The
reference in the 1899 law was inaccu-
rate as it was to Sec. 43, whereas it
should have been to Sec. 34 which re-
enacted Sec. 43 of the 1891 act.
Same: Challenge for Want of Citizenship.
Sec. 429. If the person be challenged as unqualified, on the ground
that he is not a citizen, and will not exhibit his papers pertaining
to his naturalization, the judges, or one of them, shall put the follow-
ing questions :
1. Are you a citizen of the United States?
2. Are you a native or naturalized citizen?
3. Have you become a citizen of the United States by reason of
the naturalization of your parents or one of them?
4. Where were your parents, or one of them, naturalized?
If the person offering to vote claims to be a naturalized citizen
of the United States, he shall state, under oath, when and in what
court he was naturalized.
Historical: Laws 1889, 33, Sec. 78;
re-enacting Laws 1890-91, 57, Sec. 87.
Same: For Conviction of Felony.
Sec. 430. If the challenge is on the ground that the person chal-
lenged has been convicted of felony and has not been pardoned, he
must not be questioned ; but the fact may be proved by the production
of an authenticated copy of the record, or by the oral testimony of
two witnesses and the non-production of a pardon.
Historical: Laws 1899, 33, Sec. 78;
re-enacting Laws 1890-91, 57, Sec. 88.
Same: For Want of Residence: For Non-Age.
Sec. 431. If the person be challenged as unqualified on the ground
that he has not resided in this State for six months immediately pre-
ceding the election, the judges, or one of them, shall put the follow-
ing questions:
1. Have you resided in this State for six months immediately
preceding this election, and during that time have you retained a
home or domicile elsewhere?
328 ELECTIONS Tit. 3
2. Have you been absent from this State within the six months
immediately preceding this election?
3. If so, when you left, was it for a temporary purpose, with
the design of returning or did you intend remaining away?
4. Did you, while absent, look upon and regard this State as
your home ?
5. Did you, while absent, vote in any State or Territory?
If the person be challenged on the ground that he has not resided
in the county thirty days, one of the judges shall question him as
to his residence in the county, precinct or ward in a manner similar
to the before-mentioned method of questioning a person as to his
residence in this State.
If the person be challenged as unqualified on the ground that he
is not twenty-one years of age, the judges, or one of them, shall put
the following question : Are you twenty-one years of age, to the
best of your knowledge and belief. The judges of election, or one of
them, shall put all such other questions to the person challenged
under the respective heads aforesaid, as may be necessary to test his
qualifications as an elector at that election.
Historical: Laws 18 99, 33, Sec. 81;
re-enacting Laws 1890-91; 57, Sec. 90.
Same: Residence: How Determined.
Sec. 432. The judges of election, in determining the residence of
a person offering to vote, shall be governed by the following rules,
so far as they may be applicable :
1. That place shall be held and considered to be the residence
of a person in which his habitation is fixed, and to which, whenever
he is absent, he has the intention of returning.
2. A person shall not be considered or held to have lost his resi-
dence who shall leave his home and go into another State, Territory
or county of this State, for temporary purpose merely, with an in-
tention of returning.
3. If a person remove to any other State or to any of the Terri-
tories, with the intention of making it his permanent residence, he
shall be considered and held to have lost his residence in this State.
4. If a person remove from one county in this State to any other
county in the State with the intention of making it his permanent
residence, he shall be considered and held to have lost his residence
in the county from which he removed.
Historical: Laws 18 99, 33, Sec. 80;
re-enacting Laws 1890-91, 57, Sec. 89;
amended Laws 1895, 91, Sec, 6.
Oath of Challenged Person.
Sec. 433. If the challenge be not withdrawn after the person offer-
ing to vote shall have answered the questions put to him as aforesaid,
one of the judges shall tender to him the following oath: "You do
solemnly swear (or affirm) that you are a citizen of the United States,
of the age of twenty-one years; that you have been a resident of
this State for six months next immediately preceding this election,
Ch. 10 CONDUCT OF ELECTION 329
and have not retained a home or domicile elsewhere; that you have
been for the last thirty days, and now are, a resident of this county,
and that you have not voted at this election. "
Historical: Laws 18 99, 33, Sec. 82;
re-enacting Laws 1890-91; 57, Sec. 91;
amended Laws 1895, 91, Sec. 5.
Duty of Clerks.
Sec. 434. Whenever any person's vote shall be received after hav-
ing taken the oath or affirmation prescribed in the preceding section,
it shall be the duty of the clerks of the election to write on the poll
books, at the end of the person's name, "Sworn."
Historical: Laws 1899, 33, Sec. 84;
re-enacting Laws 1890-91, 57, Sec. 93.
Judge's Duty to Challenge.
Sec. 435. It shall be the duty of any judge of election to challenge
any person offering to vote whom he believes not to be qualified as
an elector.
Historical: Laws 1899, 33, Sec. 85;
re-enacting Laws 1890-91, 57, Sec. 94.
Refusal to Take Oath.
Sec. 436. If any person challenged refuses to take the oath or
affirmation tendered, or refuses to be sworn and to answer the ques-
tions touching the matter of naturalization, he must not be allowed
to vote : Provided, That after such oath shall have been taken, the
judges may nevertheless refuse to permit such person to vote if they
shall be satisfied that he is not a legal voter.
Historical: Laws 1899, 33, Sees. 83,
86, re-enacting Laws 1890-91, 57, Sees.
92, 95; re-written in combination.
Disposal of Stubs and Defaced Tickets.
Sec. 437. As soon as the polls are finally closed the distributing
clerk must deliver to the judges of election the book or books of tickets
from which tickets have been taken during the election, and the box
containing the defaced, mutilated or returned ballots.
Historical: Laws 1899, 33, Sec. 87;
re-enacting Laws 1890-91, 57, Sec. 96.
Form of Poll Lists.
Sec. 438. The following is the form of poll lists to be kept by the
judges and clerks of election.
Poll Lists.
Of the election held in the precinct of , in the County of ,
on the day of , in the year A. D. one thousand nine hundred
and A. B., C. D. and E. F., judges, and G. H., I. J., and K. L.,
clerks, of said election, were respectively sworn (or affirmed), as the
law directs, previous to their entering on the duties of their respective
offices.
330
ELECTIONS
Tit. 3
Number and Names of Electors Voting.
No.
Name
No.
Name
1
2
A. B.
C. D.
3
4
E. F.
G. H.
We hereby certify that the number of electors voting at this elec-
tion amounts to
Attest :
G. H.,)
I. J.,) Clerks.
K. L.,)
A. B.,)
C. D.,) Judges of Election.
E. F.,)
Historical: Laws 1899, 3 3, Sec. 71;
re-enacting- Laws 1890-91, 57, Sec. 80.
CHAPTER 11.
CANVASS OF RETURNS.
Article
1. Canvass by judges.
2. Canvass by county commissioners.
3. State Board of Canvassers.
Article
4. Errors and mistakes
and returns.
in ballots
ARTICLE 1.
CANVASS BY JUDGES.
Section
439. Canvass of votes.
440. Comparison of poll lists, bal-
lots and stubs: Void ballots.
441. Count: Certificate by judges
and clerks.
442. Transmission of supplies to
county commissioners: Custody.
Section
443. Appointment of two sets of of-
ficers.
444. Duplicate ballot boxes.
445. Counting of ballots: Witnesses:
Concealment of results.
446. Judges to join in making return.
447. Application of sections.
Canvass of Votes.
Sec. 439. When the polls are finally closed the judges of election
must immediately proceed to canvass the votes given at such election.
The canvass must be public, in the presence of bystanders, and must
be continued without adjournment until completed and the result
thereof declared.
Historical:. Laws 189 9, 33, Sec. 88;
re-enacting Laws 1890-91, 57, Sec. 97.
The opening clause "when the polls
are finally closed" is inserted to bridge
the hiatus caused by the division of
the act into chapters.
Comparison of Poll Lists, Ballots and Stubs: Void Ballots.
Sec. 440. The canvass must commence by comparison of the poll
lists from the commencement, and a correction of any mistake that
may be found therein, until they are found to agree. The box must
then be opened, and the ballots found therein counted by the judges,
unopened, and the number of ballots in the box must agree with the
Ch. 11, Art. 1 CANVASS — BY JUDGES 331
number marked on the poll list or registry list as having received a
ticket, and this number, together with the number of defaced, muti-
lated and returned ballots, must agree with the number of stubs or
counterfoils in the books from which the tickets have been taken.
Any ballot or part of a ballot from which it is impossible to deter-
mine the elector's choice, shall be void and shall not be counted : Pro-
vided. That when a ballot is sufficiently plain to gather therefrom a
part of the voter's intention, it shall be the duty of the judges to count
such part.
Historical: Laws 18 99, 33, Sec. 89;
re-enacting- Laws 1890-91; 57, Sec. 98.
Count: Certificate by Judges and Clerks.
Sec. 441. The ballots and poll lists agreeing, the board must then
proceed to count and ascertain the number of votes cast, and the clerks
must set down in their poll books the name of every person voted for,
and then at full length the office for which such person received such
votes, and the number he did receive, the number being expressed at
full length; such entry to be made, as nearly as circumstances will
permit, in the following form, to wit :
At an election held at the house of (A. B.) in the town (district or
precinct) of , in the County of , and in the State of
Idaho, on the day of , A. D , the following named persons re-
ceived the number of votes annexed to their respective names for the
following described offices, to wit: (A. B.) has votes for member
of Congress; (I. J.) has votes for member of State Senate; (K.
L.) has votes for member of House of Representatives, (and
in like manner for any other person voted for). Certified by us,
Attest :
S. T.,) M. N.,)
U. V.,) Clerks of Election. 0. P.,) Judges of Election.
W. Y.,) Q. R.,)
Historical: Laws 1899, 33, Sec. 90;
re-enacting Laws 1890-91, 57, Sec. 99.
Transmission of Supplies to County Commissioners: Custody.
Sec. 432. After the canvass of the votes the judges of election
must enclose and seal one of the poll books ; the register of the quali-
fied electors, also all stubs and unused ticket books, and defaced or
mutilated ballots, and the election stamp, under cover, directed to the
clerk of the board of county commissioners of the county in which
such election was held. The packages thus sealed must be delivered
direct to the said clerk personally, or transmitted by special messen-
ger without expense to the county, or deposited in the nearest post-
office, by one of the judges to be chosen by lot, and the postage thereon
and the fees for registering the same must be fully prepaid, and said
package must be duly registered and receipt therefor taken. The
other poll book, together with the ballots, must be, by said judges,
placed in the ballot box, and by them sealed up and then deposited with
one of said judges, to be decided by lot if they cannot otherwise agree;
and the said poll book and ballots must be kept with the seal unbroken
for at least eight months, unless the same is required as evidence in
332
ELECTIONS
Tit. 3
a court of law in any case arising under the election laws of this State,
and then only when the judge having said ballot box in charge is
served with a subpoena requiring him to produce the same in court as
evidence in any such beforementioned case, when the same may be
opened under the direction of the court.
Historical: Laws 1890-91, 57, Sec.
100; re-enacting Laws 1899, 33, Sec.
91; amended Laws 1901, 291, Sec. 1.
Omitting the proviso, which applied
only to the election of 1900.
Appointment of Two Sets of Officers.
Sec. 443. In every precinct where, at the general election then next
preceding, there were more than one hundred votes cast for the office
of Governor, the board of county commissioners of the county wherein
the same is situated, shall, at the time provided for the appointment
of election officers, appoint two sets of such officers, and in making
such appointment shall designate which set shall act under the provi-
sions of this and the following sections of this article. And such
board shall also make suitable provision for the carrying of these sec-
tions into effect.
Historical: Laws 1899, 372, Sec. 1.
Duplicate Ballot Boxes.
Sec. 444. When, at any election in any precinct to which these
sections apply, fifty votes shall have been cast, another ballot
box for receiving ballots shall be used, and the first ballot box shall
be closed and delivered to such judges designated as provided in the
preceding section, who shall proceed to the place provided for them,
and shall at once count the votes in said ballot box ; and when counted,
they shall return said emptied ballot boxes to the judges receiving the
ballots and otherwise conducting the election, and the latter shall
then deliver to the judges who were designated to count the ballots,
the second ballot box, and such judges shall immediately count the
ballots therein contained as above provided; and they shall continue
so to count the ballots and so to exchange the ballot boxes till the
close of the polls, after which time both sets of judges shall, acting
separately, count the remaining ballots, dividing the same between
them.
Historical: Laws 1899, 372, Sec. 2.
Counting of Ballots : Witnesses : Concealment of Results.
Sec. 445. The board of county commissioners of the several coun-
ties must provide two sets of ballot boxes for all precincts where
these sections apply, and shall provide a suitable and convenient place
or room immediately adjoining the place where the election is being
held, for the use of the election officers counting the ballots during
the day. Such counting may be witnessed by one representative
from each of the political parties represented upon the official ballot,
which representative shall be designated in writing by the chairman
and secretary of the respective county central committees, or in case
of a city election by the city central committee, and who shall each
take and subscribe an oath before one of the judges of election that
he will not, prior to the closing of the polls, communicate in any
Ch. 11. Art. 2. CANVASS — BY COUNTY COMMISSIONERS 333
manner, directly or indirectly, by word or sign, the progress of the
counting, nor the result so far as ascertained, nor any information
whatsoever in relation thereto; and such representatives and the
judges counting the ballots shall be confined to the room or place
provided, and shall not leave the same during the count except in
case of necessity, and then in the custody of the constable of election ;
nor shall any such election officers or party representatives in any
manner, directly or indirectly, by word or sign, disclose or com-
municate the progress of the counting, nor the result so far as
ascertained, nor any information whatsoever in relation thereto,
until the polls are closed.
Any person who shall intentionally ascertain or attempt to ascer-
tain the progress or state of the count before the close of the polls,
and any officer of election or party representative designated as afore-
said, who shall violate any of the provisions of this section, shall be
guilty of a felony, and shall be punished by a fine not to exceed one
thousand dollars, or imprisonment in the Penitentiary for a period
not to exceed one year, or by both such fine and imprisonment.
Historical: Laws 18 99, 372. Sec 4;
amended Laws 1901, 16, Sec. 1.
Judges to Join in Making" Return.
Sec. 446. All the judges of election shall join in making the return
to the board of county commissioners.
Historical: Laws 189 9, 372, Sec. 3.
Application of Sections.
Sec. 447. These sections shall only apply to general elections, and,
except as herein modified, the general election laws are in every way
applicable to the precincts acting under the provisions hereof, and
to all the officers of election.
Historical: Laws 1899, 372, Sees.
5, 6.
ARTICLE 2.
CANVASS BY COUNTY COMMISSIONERS.
Section
448. Canvass of returns: Abstracts
Section
449. Disposition of abstracts of votes.
of votes.
Canvass of Returns: Abstracts of Votes.
Sec. 448. The board of county commissioners, the auditor acting
as clerk, in the several counties, must act as a board of canvassers
of elections and must on the tenth day of after any general or special
election, or sooner, if all the returns be received, and any two of
the commissioners are present, proceed publicly, at their office, to
open the returns and canvass the votes of said election, and make
up abstracts thereof; and it is their duty to canvass and make up
abstracts of all returns that are intelligible on their face and which
are sufficiently authenticated to show what returns they are; and if
any returns are rejected on account of informality, ambiguity or
uncertainty — and none must be rejected for other causes — then it is
334
ELECTIONS
Tit, 3
the duty of the board to deliver the returns so rejected to the sheriff
of the county, who must proceed at once to summon and call to-
gether the board of judges of election of the precinct from which
said returns were received, and inform them that such return has
been rejected; and it is the duty of such board of judges to meet
publicly, at the place where the election was held in their precinct,
immediately after receiving such notice, and at once proceed to put
said return in due form and certify to the same ; and for the purpose
of so doing they may have the ballot box brought in and opened in
their presence and the contents thereof inspected, and when said
returns have been duly corrected they must be delivered into the
hands of the sheriff, and the board of canvassers may adjourn, to
await the correction of said returns for the period of not more
than five days at one time, nor more than ten days in all. When
said canvass is completed the abstracts must be made up and signed
by the board. The abstracts shall be made out in the following
manner :
The abstract of votes for electors for President and Vice Presi-
dent of the United States shall be on one sheet, and the abstract of
votes for Representative in Congress shall be on another sheet, and
the abstract of votes for officers of fhe executive department shall
be on another sheet, and the abstract of votes for Senators shall be
on another sheet, and the abstract of votes for Representatives shall
be on another sheet, and the abstract of votes for Judges of the
Supreme Court shall be on another sheet, and the abstract of votes
for Judges of the District Court shall be on another sheet, and the
abstract of votes for county and precinct officers shall be on another
sheet; and it shall be the duty of the auditor of the county immedi-
ately to make out a certificate of election to each of the persons
having the highest number of votes for county and precinct officers,
respectively, and cause such certificate to be delivered to the person
entitled to it. If any two or more persons have an equal number of
votes for the same county or precinct office, and a higher number
than any other person, the county commissioners shall immediately
determine by lot which of the two candidates shall be elected.
Historical: Laws 189 9, 33, Sec. 92;
re-enacting Laws 1890-91, 57, See, 101.
Omitting "and district attorney" after
"Judges of the District Court," that
office having been abolished, and the
prosecuting attorney being a county
officer.
Duty of Canvassers: The board of
commissioners in acting as a board of
canvassers, has no authority to de-
clare any person elected to an office
but must make out the abstracts of
votes for each office separately, and
deliver them to the auditor whose
duty it is, as auditor and not as clerk
of the board, to make out a certificate
of election to each of the persons hav-
ing the highest number of votes. Cun-
ningham v. George (1892) 3 Ida. 456;
31 Pac. 809.
Disposition of Abstracts of Votes.
Sec. 449. The auditor of the county, immediately after making
out abstracts of votes given in his county, shall make a copy of such
abstracts and deliver or transmit the same in a registered package
by mail to the office of the Secretary of State : the original abstracts
he shall file and record in a book in his office to be kept for that
purpose. He shall also certify to the abstracts and copies, and affix
Ch. 11. Art. 3.
CANVASS — BY STATE BOARD
335
thereto the county seal, and the said auditor shall indorse on the
back of each abstract; "Certified copy of the abstract of votes cast
for Governor, etc., members of the Legislature, etc., (as the case
may be) cast at the regular election in County, , 19......"
Historical: Laws 1899, 33, Sec. 93;
re-enacting Laws 1890-91, 57, Sec.
102.
ARTICLE 3.
STATE BOARD OF CANVASSERS.
Section
450. Constitution of Board.
4.r,l. Delay in remitting abstracts.
452. Meeting of Board.
453. Duties of Board: Statement of
result.
Section
454. Same: In case of tie vote.
455. Record of statement: Certifi-
cates of election.
456. List of members of Legislature.
Constitution of Board.
Sec. 450. The Governor, Secretary of State, State Auditor, State
Treasurer and Attorney General, or any three of them, shall con-
stitute the State Board of Canvassers, and shall canvass the abstracts
of votes cast in the different counties of the State for electors of
President and Vice President of the United States, for Representa-
tive in Congress, for Judges of the Supreme Court and District
Courts, and for Senators and Representatives and all State officers.
Historical: Laws 1899, 33, Sec. 94;
re-enacting Laws 1890-91, 57, Sec. 103.
Omitting "district attorneys" after
"District Courts" as the office is abol-
ished and county attorneys are county
officers.
Delay in Remitting Abstracts.
Sec. 451. If from any county no such abstract of votes shall have
been received within twenty days next after election by the Secretary
of State, he shall dispatch a special messenger to obtain a copy of
the same from the county auditor of such county, and such county
auditor shall immediately, on demand of such messenger, make out
and deliver to him the copy required, which copy of the abstract of
votes the messenger shall deliver to the Secretary of State without
delay. The said messenger shall receive as compensation for his
services three dollars per day and fifteen cents for each mile traveled
in going to and returning from the county seat of said county, by
the usual route, to be paid by the county.
Historical: Laws 1899, 33, Sec. 95; i
nacting Laws 1890-91, 57, Sec. 104.
Meeting of Board.
Sec. 452. For the purpose of canvassing the result of elections,
the State Board of Canvassers shall meet at the office of the Secre-
tary of State, at ten o'clock of the forenoon of the twentieth day
after any election for any of the officers mentioned in Section 450
(if it be not on Sunday; if it be on Sunday, then they shall meet
on the twenty-first day), when they shall, if the returns from all
the counties of the State be in the possession of the Secretary of
State, proceed to canvass the votes. If the returns are not all in,
Vol. 1 — 12
336
ELECTIONS
Tit. 3
they shall adjourn from time to time, as they deem proper, to await
the receipt of all the returns : Provided, hoivever, That on the second
Wednesday of December next after the election, they shall canvass
the votes, whether all the returns be received or not.
Historical: Laws 1899, 33, Sec. 96;
re-enacting Laws 1890-91, 57, Sec. 105.
Duties of Board: Statement of Result.
Sec. 453. The State Board of Canvassers, wiien met in accordance
with law and a quorum (three) being present, shall proceed to ex-
amine and make statement of the whole number of votes given at
any such election for all the officers mentioned in Section 450, that
shall have been voted for in said election, which statement will show
the names of the persons to whom such votes shall have been given
for either of said offices, and the whole number given to each,
distinguishing the several districts and counties in which they were
given. They shall certify such statement to be correct, and subscribe
their names thereto, and they shall thereupon determine what per-
sons have been, by the greatest number of votes, duly elected to
such offices, or either of them, and shall indorse and subscribe on
such statement a certificate of their determination, and deliver it to
the Secretary of State.
Historical: Laws 189 9, 33, Sec. 97;
re-enacting Laws 1890-91, 57, Sec. 106.
Duty of Convassers: It is not neces-
sary for the State Board of Canvass-
ers to declare in terms whether, in
their opinion, any amendment to the
Constitution has been adopted or not.
Hays v. Hays (1897) 5 Ida. 154; 47
Pac. 733.
Same: In Case of Tie Vote.
Sec. 454. If any two or more persons have an equal and the high
est number of votes for member of either house of the Legislature,
for Judge of the Supreme or District Courts, or for any State office,
other than those mentioned in Section 1, of Article 4, of the Con-
stitution, the State canvassers shall proceed to determine, by lot,
which of the candidates shall be declared elected. Reasonable notice
shall be given to each candidate of the time when such election will
be so determined.
ting- the proviso for district attorney,
as now obsolete.
Historical: Laws 18 99, 33, Sec. 98;
re-enacting Laws 1890-91, 57, Sec. 107;
amended Laws 1895, 90, Sec. 1. Omit-
Record of Statement: Certificates of Election.
Sec. 455. The Secretary of State shall record in his office, in a
book to be kept by him for that purpose, each certified statement
and determination as made by the State Board of Canvassers, and
shall, without delay, make out and transmit to each of the persons
thereby declared to be elected a certificate of his election, certified
by him under his seal of office.
Historical: Laws 1899, 33, Sec. 99; tion is prima facie evidence of right
re-enacting- Laws 1890-91, 57, Sec. 108. to membership in Legislature: Sec.
Cross Reference: Certificate of elec-
Ch. 11. Art. 4. CANVASS — ERRORS AND MISTAKES 337
List of Members of Legislature.
Sec. 456. Upon the day fixed by law for the assembling of the
Legislature, the Secretary of State shall lay before each house a list
of the members elected thereto, with the districts they represent, in
accordance with the returns in his office.
Historical: Laws 18 99, 33, Sec. 100;
re-enacting Laws 1890-91, 57, Sec. 109.
ARTICLE 4.
ERRORS AND MISTAKES IN BALLOTS AND RETURNS.
Section l Section
Misspelled name on ballots. 45 8. Correction of mistakes.
Mispelled Names on Ballots.
Sec. 457. Whenever the judges of election in any precinct or ward
discover in the canvassing of votes that the name of any candidate
voted for be misspelled, or the initial letters of his Christian name
or names be transposed or omitted in part, or altogether, on the
ballot, the vote or votes for such candidate shall be counted for him,
if the intention of the elector to vote for him be apparent ; and when-
ever the board of county canvassers, or of State canvassers, shall
find that the returns from any precinct, ward, county or district
(as the case may be) do not strictly conform to the requirements
of law, in the making, certifying and returning of the same, the
votes polled in such precinct, ward, county or district shall, never-
theless, be canvassed and counted, if such returns shall be sufficiently
explicit to enable such boards, or any person or persons authorized
to canvass votes and returns, to determine therefrom how many
votes were polled for the several persons who were candidates and
voted for at the election of which the votes are being canvassed.
Historical: Laws 1899, 33, Sec. 103;
re-enacting Laws 1890-91, 57, Sec. 116.
Correction of Mistakes.
Sec. 458. If upon proceeding to canvass the votes it shall clearly
appear to the canvassers that in any statement produced to them
certain matters are omitted in such statement which should have
been inserted, or that any mistakes which are clerical, merely, exist,
they shall cause the said statement to be sent by one of their number
(whom they shall depute for that purpose) to the precinct or ward
judges, or to the county board of canvassers (as the case may be)
from whom they were received, to have the same corrected; and
the judges of election or county auditor (as the case may be), when
so demanded, shall make such correction as the facts of the case
require, but shall not change or alter any decision before made by
them, but shall only cause their canvass to be correctly stated; and
the canvassing board may adjourn from day to day for the purpose
of obtaining and receiving such statement : Provided, always, That
they shall not delay counting past the day provided by law for the
completion of the canvass.
Historical: Laws 1899, 33, Sec. 104; i Cross Reference: Day provided for
"-enacting Laws 1890-91, 57, Sec. 117. completion of canvass: Sec. 452.
338
ELECTIONS
Tit. 3
CHAPTER 12.
PRESIDENTIAL ELECTORS.
Section
45 9. Certificates of election.
Election for Presidential Elect-
ors.
Meeting of Electors.
Same: Notice to Governor: Va-
cancies.
460.
461.
462.
Section
463. Pilling vacancies: Tie vote.
464. Notification of election to fill
vacancy.
465. Compensation of Electors.
Certificates of Election.
Sec. 459. The Secretary of State shall prepare lists of the names
of the Electors of President and Vice President of the United States,
elected at any election, procure thereto the signature of the Governor,
affix the seal of the State to the same, and deliver one of such cer-
tificates thus signed to each of said Electors on or before the second
Wednesday in December next after such election.
Historical: Laws 1899, 33, Sec. 101;
re-enacting Laws 1890-91, 57, Sec. 110.
Election for Presidential Electors.
Sec. 460. There shall be an election held in this State for the
election of such Electors, at the times appointed by any law of the
Congress or the Constitution of the United States for such election,
and when such election shall be special, the same shall be called and
held, and the votes polled and canvassed, in all respects as at a gen-
eral election, and the duties of the Electors so elected shall be the same
as prescribed by law for Electors elected at a general election.
Historical: Laws 1899, 33, Sec. 102;
re-enacting- Laws 1890-91, 57, part of
Sec. 115.
Meeting of Electors.
Sec. 461. The Electors chosen to elect a President and Vice Presi-
dent of the United States shall, at twelve o'clock noon on the day
which is or may be directed by the Congress of the United States,
meet at the seat of government of this State, and then and there
perform the duties enjoined upon them by the Constitution and laws
of the United States.
Historical: Laws 18 99, 66, Sec. 1;
re-enacting Laws 1890-91, 57, Sec. 111.
"Noon" inserted to make the section
definite.
Same: Notice to Governor: Vacancies.
Sec. 462. Each elector of President and Vice President of the
United States shall, before the hour of twelve o'clock noon on the
day next preceding the day fixed by the law of Congress to elect
President and Vice President, give notice to the Governor that he
is at the seat of government and ready at the proper time to perform
the duties of an Elector; and the Governor shall forthwith deliver
to the Electors present a certificate of all the names of the Electors:
and if any Elector named therein fails to appear before nine o'clock
on the morning of the day of election of President and Vice President
as aforesaid, the Electors then present shall immediately proceed tc
Ch. 13.
COUNTY SEATS AND BOUNDARIES
339
elect, by ballot, in the presence of the Governor, persons to fill such
vacancies.
"Noon" inserted to make the section
definite
Historical: Laws 1899, 66, Sec. 2;
re-enacting Laws 1890-91, 57, Sec ll'i.
Filling Vacancies: Tie Vote.
Sec. 463. If more than the number of persons required to fill the
vacancies, as aforesaid, have the highest and an equal number of
votes, then the Governor, in the presence of the Electors attending,
shall decide by lot which of said persons shall be elected; otherwise
they, to the number required, having the greatest number of votes,
shall be considered elected to fill such vacancies.
Historical: Laws 18 99, 66, Sec. 3;
re-enacting Laws 1890-91, 57, Sec. 13 3.
Notification of Election to Fill Vacancy.
Sec. 464. Immediately after such choice is made the names of the
persons so chosen shall forthwith be certified to the Governor by
the Electors making such choice; and the Governor shall cause im-
mediate notice to be given in writing to the Electors chosen to fill
such vacancies ; and the said persons so chosen shall be Electors, and
shall meet the other Electors at the same time and place, and then
and there discharge all and singular the duties enjoined on them
as Electors aforesaid by the Constitution and laws of the United
States and of this State.
Historical: Laws 1899, 66, Sec. 4;
re-enacting Laws 1890-91, 57, Sec. 114.
Compensation of Electors.
Sec. 465. Every Elector of this State for the election of President
and Vice President of the United States, hereafter elected, who shall
attend and give his vote for those offices at the time and place ap-
pointed by law, shall be entitled to receive the sum of five dollars
per day for each day's attendance at such election, and fifteen cents
per mile for each mile he shall travel in going to and returning from
the place where the Electors shall meet, by the most usual traveled
route, to be paid out of the general fund, and the State Auditor shall
audit the amount and draw his warrant for the same.
Historical Laws 1899, 66, Sec. 5; re-
nting Laws 1890-91; 57, Sec. 115.
CHAPTER 13.
REMOVAL OF COUNTY SEATS AND CHANGING COUNTY BOUNDARIES.
ion
466. Time for holding county seat
election.
*';" Petition for removal.
468. Same: How signed.
469. Petition open to inspection.
170. Contesting right to sign petition.
471. Same: Procedure in case of
contest.
472. Same: Contests have prece-
dence.
Section
473. Voting for removal of county
seat.
474. Same: Challenging voters.
4 7 5. Canvass of returns.
476. Same: Result of vote.
477. Changing county boundaries.
478. Conduct of election.
479. Form of ballot.
340
ELECTIONS
Tit. 3
Time for Holding County Seat Election.
Sec. 466. All elections for the removal of county seats shall be
held at the same time and place at which general elections are held.
moval of county seats to be presented
not more than once in six years:
Const. Art. 18, Sec. 2.
Historical: Laws 1899, 33, Sec. 105;
re-enacting Laws 1890-91, 57, Sec. 118.
Cross Reference: Question of re-
Petition for Removal.
Sec. 467. Public notice shall be given of the intention to circulate
a petition praying for the removal of the county seat of any county
from its then present location to some other point within said county,
and in said petition designated, at least ten days before the same
is circulated, by publication in some newspaper printed in the county
(if there be one), and by posting three printed notices in three public
places at the county seat, and a like number at the place to which
the county seat is proposed to be removed, in which notices the intent
of said petition shall be set forth; and all signers to such petition
or petitions shall be void and stricken from such petition if procured
six months before the first day of the term of court at which the
application is to be made; and whenever such petition or petitions,
addressed to the District Court of such county, and stating the time
when such election shall be held, shall be signed by a number of
legal voters of said county, equal in number to a majority of all
votes cast at the last general election therein, and shall be filed in
the office of the clerk of the District Court of said county, not less
than twenty nor more than forty days before the first day of the
term of said court next preceding the next general election, unless
said term commences after the first day of October, then, in such
case, the next preceding term. Such petition shall be deemed a
proposal to remove the county seat of such county, and the point
designated in said petition shall be deemed and taken as fixed by
said petition, in pursuance of law, whenever the court shall order
an election to such point as hereinafter provided, as the point to
which it is proposed to remove the county seat of such county.
Historical: Laws 1899, 33, Sec. 10 6;
re-enacting Laws 1890-91, 57, Sec. 119.
Qualification of Signers: The sign-
ers of the petition for the removal of
a county seat need not be registered
voters, but merely persons who are
qualified to register as voters. Wilson
v. Bartlett (1900) 7 Ida. 271; 62 Pac.
416.
Same — Determination of Qualifica-
tions: When a petition is presented
to a court for the removal of a county
seat and all the signers of said peti-
tion state over their signatures that
they are qualified electors of such
county, the petitioners make a prima
facie case, and no further evidence of
the qualifications of such signers is
required unless a contestant appears
as provided by law, and enters his
contest. If specifications in contest-
ant's affidavit raise no valid objection
to the qualifications of any of the
signers of the petition, the court is
justified in finding, without further
proof, that all of the signers of said
petition are qualified electors. lb.
Same: How Signed.
Sec. 468. Each petitioner signing such petition shall write, or
cause to be written, opposite to his name on said petition, the name
of the city and ward in which he then resides, if he resides in a city ;
or, if he does not reside in a city, then the name of the precinct in
Ch. 13
COUNTY SEATS AND BOUNDARIES
341
which he resides at the time of signing such petition ; and no person
?hall sign such petition unless he shall be, at the time, a legal voter
at general elections.
Historical: Laws 18 9 9, 3 3, Sec. 107;
re-enacting Laws 1890-91, 57, Sec. 120.
Petition Open to Inspection.
Sec. 469. Said petition or petitions shall, after they are filed in
the office of the clerk of the District Court of the county be open to
the inspection of any and all citizens of the county, but shall not be
removed therefrom.
Historical: Laws 18 99, 33, Sec. 108;
re-enacting Laws 1890-91, 57, Sec. 121.
Contesting Right to Sign Petition.
Sec. 470. Any citizen and legal voter at general elections in said
county may contest the right of any person whose name is subscribed
to said petition, to sign such petition under this chapter, and shall
have the right to contest said petition as to any names subscribed
thereto that he shall have good reason to believe are fictitious:
Provided, He shall, ten days before the first day of the term of said
court, file in the office of the clerk of the District Court of such
county, a list of the names of the persons whose right to sign said
petition he is desirous of contesting, together with his affidavit in-
dorsed thereon, that he has good reason to believe, and does verily
believe that such persons named in said list are not legal voters of
such county and had no right in law to sign such petition ; and shall
also file in the office of said clerk, ten days before said term of said
court, a list of such names as he has reason to believe are fictitious,
together with his affidavit, that he has good reason to believe, and
does verily believe, that such names are fictitious; and such persons
shall have the right to contest such petitions only as to the names
included in said lists.
Historical: Laws 1899, 33, Sec. 109;
re-enacting Laws 1890-91, 57, Sec. 122.
Affidavit of Contest: The affidavit of
a contestant in a county seat removal
case, must show that the list of names
that he desires to contest, if stricken
from the petition, would reduce the
number of names on the petition to
less than the number required by law
to be on such petition; if it does not,
the trial court ought to deny the con-
test and strike the affidavit from its
files. Wilson v. Bartlett (1900) 7 Ida.
271; 62 Pac. 416.
Same: Procedure in Case of Contest.
Sec. 471. It shall be the duty of said court, on the first day of
and during said term of court, to hear all evidence for and against
said petition or petitions as to the lists of names filed in said court un-
der this chapter, and to strike from such petition or petitions all names
proven by competent evidence to be fictitious, and the names of per-
sons having no legal right to sign the same under this chapter. In
case there shall be no contest, or if the court finds, after striking
from said petition or petitions all names proven to be fictitious, and
all names not legally signed thereto, that it still contains the number
of names of legal voters required by this chapter, the court shall
order said election according to the prayer of said petition. In case
342
ELECTIONS
Tit. 3
of a contest to said petition or petitions, it shall be the duty of the
clerk of said court, on request of the persons contesting any petition
under the provisions of this chapter, to issue subpoenas for such
witnesses as said persons shall name; and it shall be the duty of
said clerk, on request of any legal voter of the county for the pur-
pose of sustaining any petition, in like manner to issue subpoenas
for such witnesses as he shall name. Said subpoenas to be made
returnable to the term of court at which such contest will be made.
Historical: Laws 1899, 33, Sec. 110;
re-enacting Laws 1890-91, 57, Sec. 123.
Same: Contests Have Precedence.
Sec. 472. All cases of contest arising upon said petitions or affi-
davits shall have precedence over all other cases at said term of said
court, and shall be heard and determined at said term, and the de-
cision of the court shall be final.
Historical: Laws 1899, 33, Sec. Ill;
re-enacting Laws 1890-91, 57, Sec. 124.
Right of Appeal: This section was
not intended to take away the right
of appeal in proceedings of this kind,
and by the language, "the decision of
the court shall be final," it was intend-
ed to indicate that such decision was
in harmony with Section 4807 of the
Revised Statutes and appealable. Wil-
son v. Bartlett (1900) 7 Ida. 269; 62
Pac. 415.
Voting for Removal of County Seat.
Sec. 473. The voting for the removal of any county seat shall be
by ballot, and each ballot shall have printed or written thereon the
words stated in Section 479. Such ballot shall be smaller than the
general election ballots, and shall be officially stamped, and there
shall be printed or written thereon the words "County Seat Ballot,"
and any elector who is registered, as in this title provided, and who,
in addition to being qualified to vote for county officers, has resided
in the county six months, and in the precinct ninety days, shall be
permitted to vote for or against the removal of the county seat, by
handing to one of the judges of election a county seat ballot, at the
same time announcing that he is entitled to vote on the question of
the removal of the county seat. If the judges of election are of the
opinion that the said elector is entitled to vote on the question of the
removal of the county seat, his ballot shall then be deposited in the
ballot box, and the clerks of election shall write opposite his name
in brackets the words "County Seat" or "County Division," as the
case may be.
Historical: Laws 1899, 33, Sec. 112;
re-enacting Laws 1890-91, 57, Sec. 125.
Cross Reference: Qualifications of
voters at county seat elections: Const.
Art. 18, Sec. 2.
Same: Challenging Voters.
Sec. 474. Any person who offers to vote on the question of the
removal of the county seat may be challenged by any person and
for any of the reasons allowed for other challenges, and the rules
provided for other challenges shall apply to such challenges.
Historical: Laws 1899, 33, Sec. 113;
re-enacting Laws 1890-91, 57, Sec. 126.
Ch. 13
COUNTY SEATS AND BOUNDARIES
343
Canvass of Returns.
Sec. 475. The returns for county seat elections shall be canvassed
by the same officers and in the same manner as the returns for county
and precinct officers are canvassed, and the result of the vote for
the removal of the county seat shall be officially declared by the
county board of canvassers in the following manner:
They shall record the total votes cast in each ward or precinct both
for and against the proposed removal, upon the book provided for
recording the results of the general election. This record shall be
made upon a separate page, or pages, of said book, and after the
record is complete, and the total result known, they shall make a
complete copy of such record, certified to by each member of the
board. They shall deposit this certificate with the county auditor,
who shall, without delay, file the same with the clerk of the District
Court which authorized the election, and the auditor shall also cause
a copy of the certificate to be published in some newspaper of general
circulation in the county.
Historical: Laws 1899, 33, Sec. 114;
re-enacting Laws 1890-91, 57, Sec. 127.
Same: Result of Vote.
Sec. 476. When the attempt has been made to remove the county
seat of any county, as in this chapter provided, and the county board
of canvassers have found and declared that two-thirds of the voters
of the county who have voted for or against such removal have voted
in favor of such removal, then said county seat of said county is
thereby removed to the point named in the petition.
Historical: Laws 1899, 33, Sec. 115;
• -enacting Laws 1890-91, 57, Sec. 128.
Cross Reference: Two-thirds affirm-
ative vote required:
Sec. 2.
Const. Art. 18,
Changing County Boundaries.
Sec. 477. Whenever the Legislature has enacted that a part of
any county be stricken off from any county, and annexed to an ad-
joining county, the provisions of the Constitution being complied
with, the qualified electors who have resided ninety days next pre-
ceding the first general election after the passage of this chapter
within the boundary lines of the territory stricken off and annexed,
shall be permitted to vote at said general election, for or against
said annexation. If a majority of said electors voting at said elec-
tion vote in favor of annexation, said territory is then stricken off*
and annexed, as provided in this chapter: Provided, That all the
requirements of the Constitution have been complied with.
Historical: Laws 189 9, 3 3, Sec. 116;
re-enacting Laws 1890-91, 57, Sec. 129.
Cross Reference: Constitutional re-
quirements: Art. 18, Sees. 3, 4.
Conduct of Election.
Sec. 478. The rules and regulations for voting at county seat elec-
tions, as provided in this chapter, so far as they apply to ballots,
voting, challenging, canvassing the returns and declaring the result,
shall apply to elections for the striking off of any part of any county
and annexing the same to any adjoining county.
344
ELECTIONS
Tit. 3
Historical: Laws 1899, 33, Sec. 117;
re-enacting Laws 1890-91, 57, Sec. 130.
Form of Ballot.
Sec. 479. It shall be the duty of the auditor of the county wherein
it is proposed to hold an election for the removal of the county seat,
or changing county lines, to cause to be printed separate ballots at
the same time and in the same manner as ballots for the general
election are printed.
Such separate ballots shall be three inches square, or as near
this size as practicable, and on one side there shall be printed the
following words :
For removal of the county) No.
seat to * ) Yes.
For changing county lines) No.
) Yes.
(As the case may be.)
And the auditor shall send an equal number of these special ballots,
with the ballots furnished for the general election, to each voting
precinct of the county and at the same time.
Historical: Laws 1899, 33, Sec. 118;
re-enacting Laws 1890-91, 57, Sec. 131.
There is some question as to whether
this section, in so far as it prescribes
the form of ballot, should be regarded
as superseded or modified bv Laws
1905, 311 (Codes, Sec. 405 ante.),
which prescribes the form of ballot
for "all" special questions. But as
that act did not in terms mention
county seat elections, but merely pur-
ported to amend Section 48 of the
1899 law, it was thought that it was
safer and more in accord with the
established rule of statutory construc-
tion to leave this section as it stood,
and to modify Section 405 as stated
in the note to that section, which see.
CHAPTER 14.
SPECIAL ELECTIONS.
Section
480. Conduct of special elections.
481. Meeting of canvassing board.
482. Same: Time of meeting.
Section
483. General election law applicable.
484. Notice of special election.
Conduct of Special Elections.
Sec. 480. Special elections shall be conducted and the results
thereof canvassed and certified in all respects, as near as practicable,
in like manner as general elections, except as otherwise provided;
but special elections shall not be held, unless when required by public
good, and in no case within ninety days next preceding a general
election.
Historical: Laws 1899, 3 3, Sec. 15 7;
re-enacting Laws 1890-91, 57, Sec. 16.
Cross Reference: Special elections
to fill vacancies in the Legislature:
Sec. 325. In office of Representative
in Congress: Sec. 32 6. County bond
elections: Sees. 1968-1972.
Meeting of Canvassing Board.
Sec. 481. In all cases where special elections are to be held to fill
vacancies in offices, the board of canvassers shall meet at twelve
o'clock noon on the third day after such election, to canvass the votes
cast at such election, and the county auditor, within four days after
Ch. 14 SPECIAL ELECTIONS 345
any special election for a member of the Legislature, or Representa-
tive in Congress, shall transmit to the Secretary of State an abstract
of the votes cast at said election, if there be more than one county
in the district.
Historical: Laws 1899, 33, Sec. 158;
re-enacting Laws 1890-91, 57, Sec. 178.
Omitting the words "mentioned in the
preceding subdi/ision" after "vacan-
cies in offices" as those words are
meaningless, no offices being men-
tioned in the preceding subdivision or
section.
Same: Time of Meeting.
Sec. 482. Within ten days after said election in the case last men-
tioned, the Board of State Canvassers shall meet and canvass the
votes cast to fill such vacancy, and if the returns have not been re-
ceived from all the counties composing said district, they may adjourn
to such day as they deem necessary, not exceeding five days, for the
purpose of receiving said returns.
Historical: Laws 1899, 33, Sec. 159;
re-enacting Laws 1890-91, 57, Sec. 179.
General Election Law Applicable.
Sec. 483. The provisions relating to general elections shall govern
special elections, except where otherwise provided for.
Historical: Laws 18 99, 33, Sec. 160;
re-enacting Laws 1890-91, 57, Sec. 177.
Notice of Special Election.
Sec. 484. Whenever a special election is ordered by the board of
commissioners, notice must be issued and posted in the same manner
as for a general election.
Historical: Laws 1899, 33, Sec. 161;
re-enacting Laws 1890-91, 57, Sec. 24.
TITLE 4
EDUCATION
Chapter
1. State University.
2. Lewiston Normal School.
3. Albion Normal School.
4. Summer normal schools.
Note: Education of deaf, dumb an
Training School: Sees. 805-832.
Ch
apter
5.
Academy of Idaho.
6.
Public
schools.
7.
State :
Library Commission.
8.
Public
libraries.
d
blind:
Sees. 800-804.
Industrial
CHAPTER 1.
STATE UNIVERSITY.
Secti
485.
486.
487.
488.
489.
490.
491.
492.
on
University established.
Board of regents.
Executive committee of board.
General duties of board.
Meetings of board.
Powers of board: Sectarian
tests prohibited.
Same: Erection of buildings.
Duties of treasurer.
Section
493. Report of regents.
494. Expenses of regents.
495. Powers of president and fac-
ulty.
496. Departments of university.
497. Same.
4 98. Women students admitted.
499. Tuition not required.
University Established.
Sec. 485. There is hereby established in this State, at the town of
Moscow, in the county of Latah, an institution of learning, by the
name and style of "The University of Idaho. "
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 1.
Cross Reference: Location and
rights confirmed:
10.
Const. Art. 9, Sec.
Board of Regents.
Sec. 486. The government of the University shall vest in a board
of regents, to consist of five members chosen from the State at large,
which board the Governor shall nominate, and, with the advice and
consent of the Senate, appoint. The said board shall be non-part-
isan; no more than three of the members shall be of the same
political party. The terms of office of said regents shall be six years
from the first Monday in February in the year in which appointed.
Two members shall be appointed each odd numbered year: Pro-
vided, That the present members of said board shall hold office for
the remainder of their respective terms. The Governor shall have
power to fill vacancies in the board by appointment, which appoint-
ment shall be valid until the last day of the regular session of the
Legislature following such appointment.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 2, amended Laws
1901, 14, Sec. 2. Rewritten by omit-
ting proviso relating to the regents
appointed in 1901, and preserving the
present constitution of the board.
Ch. 1
STATE UNIVERSITY
347
Executive Committee of Board.
Sec. 487. The president and secretary ex-officio, and one member
or the board to be appointed by the president thereof, shall constitute
an executive committee of said board, whose duties shall be pre-
scribed by the by-laws of the board.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 15.
General Duties of Board.
Sec. 488. The board of regents and their successors in office, shall
constitute a body corporate by the name of "The Regents of the
University of Idaho," and shall possess all the powers necessary or
convenient to accomplish the objects and perform the duties pre-
scribed by law, and shall have the custody of the books, records,
buildings and other property of said University. The board shall
elect a president, secretary and treasurer, who shall perform such
duties as shall be prescribed by the by-laws of the board. The
secretary shall keep a faithful record of all the transactions of the
board and of the executive committee thereof. The treasurer shall
perform all the duties of such office, subject to such regulations as
the board may adopt, and for the faithful discharge of all his duties
shall execute a bond in such sum as the board may direct.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 3.
Cross Reference: Regents to have
general supervision of University and
the control and direction of its funds:
Const. Art. 9, Sec. 10.
Meetings of Board.
Sec. 489. The time of the election of the president, secretary and
treasurer of said board, and the duration of their respective terms
of office and the times for holding the regular annual meeting and
such other meetings as may be required, and the manner of notifying
the same, shall be determined by the by-laws of the board. A ma-
jority of the board shall constitute a quorum for the transaction of
business, but a less number may adjourn from time to time.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 4.
Powers of Board: Sectarian Tests Prohibited.
Sec. 490. The board of regents shall enact laws for tne govern-
ment of the University in all its branches, elect a president and the
requisite number of professors, instructors, officers and employes,
and fix the salaries and the term of office of each, and determine the
moral and educational qualifications of applicants for admission to
the various courses of instruction ; but no instruction either sectarian
in religion or partisan in politics shall ever be allowed in any de-
partment of the University, and no sectarian or partisan test shall
ever be allowed or exercised in the appointment of regents or in the
election of professors, teachers, or other officers of the University,
or in the admission of students thereto, or for any purpose whatever.
The board of regents shall have power to remove the president or
any professor, instructor or officer of the university, when, in their
judgment, the interests of the University require it. The board
348
EDUCATION
Tit. 4
may prescribe rules and regulations for the management of the
libraries, cabinet, museum, laboratories and all other property of
the University and of its several departments, and for the care and
preservation thereof, with penalties and forfeitures, by way of dam-
ages for their violation, which may be sued for and collected in the
name of the board before any court having jurisdiction of such action.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 5.
Cross Reference: Religious tests,
qualifications and teachings prohib-
ited: Const. Art. 9, Sec. 6.
Same : Erection of Buildings.
Sec. 491. The board of regents are authorized to expend such
portion of the income of the University fund as they may deem ex-
pedient for the erection of suitable buildings and the purchase of
apparatus, a library, cabinets and additions thereto.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 6: Omitting "here-
inafter created" after "university
fund." The act created no permanent
fund, but merely appropriated $15,000
for the purchase and improvement of
a site. Sec. 11 of the Idaho Admis-
sion Bill (page 55 ante) granted 50,-
000 acres of land to the State for uni-
versity purposes, and this grant is reg-
ulated by Const. Art. 9, Sees. 10, 11.
Special appropriations and bond is-
sues have been made and provided for
from time to time for the support and
improvement of the University, and
the "University Fund" is created by
Laws 1905, 417, which is not included
in these Codes, but is preserved by
the table of Special Laws (Sec. 17).
Duties of Treasurer.
Sec. 492. The treasurer of said board shall, out of any moneys
in his hands belonging to said board, pay all orders drawn upon him
by the president and secretary thereof, when accompanied by vouch-
ers fully explaining the character of the expenditure, and the books
and accounts of the treasurer shall at all times be opened to the
inspection of the board. The treasurer shall make an annual report
to the president of the board of all transactions connected with the
duties of his office.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 17.
Report of Regents.
Sec. 493. At the close of each fiscal year, the regents, through
their president, shall make a report in detail to the Governor, ex-
hibiting the progress, conditions and wants of the University, the
courses of study, the number of professors and students, the amount
of receipts and disbursements, together with the nature, costs and
results of all important investigations and experiments, and such
other information as they may deem important.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 7.
Expenses of Regents.
Sec. 494. The regents shall receive the actual amount of their
expenses in traveling to and from, and in attendance upon, all meet-
ings of the board, or incurred in the performance of any duty in
pursuance of any direction of the board. Accounts of such expenses
shall be duly authenticated and audited by the board and be paid
Ch. 1.
STATE UNIVERSITY.
349
on their order by the Treasurer out of any fund belonging to the
University not otherwise appropriated; no regent shall receive any
pay, mileage or per diem, except as above prescribed.
Historical: Act 15th Ter. Ses. (Laws
-89) 21, Sec. 19.
Powers of President and Faculty.
Sec. 495. The president of the University shall be president of
the faculty, or of the several faculties as they may be hereafter estab-
lished, and the executive head of the instructional force in all its
departments. As such, he shall have authority, subject to the board
of regents, to give general direction to the instruction and scientific
investigation of the University, and so long as the interests of the
institution require it, he shall be charged with the duties of one of
the professorships. The immediate government of the University
shall be entrusted to the faculty, but the regents shall have the power
to regulate the courses of instruction, and prescribe the books or
works to be used in the several courses, and also to confer such
degrees and grant such diplomas as are usual in Universities, or as
they shall deem appropriate, and to confer upon the faculty, by
by-laws, the power to suspend or expel students for misconduct or
other cause prescribed by such by-laws.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 8.
Cross Reference: The president is
also a member of the State Library
Commission: Sec. 672.
Departments of University.
Sec. 496. The object of the University of Idaho shall be to provide
the means of acquiring a thorough knowledge of the various branches
of learning connected with scientific, industrial and professional pur-
suits, and to this end it shall consist of the following colleges or
departments, to-wit:
1. The College or Departments of Arts.
2. The College or Department of Letters.
3. The professional or other colleges or departments, as may
from time to time be added thereto or connected therewith.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 9.
Same.
Sec. 497. The college or department of arts shall embrace courses
of instruction in mathematical, physical and natural sciences, with
their application to the industrial arts, such as agriculture, mechanics,
engineering, mining and metallurgy, manufactures, architecture and
commerce, and such branches included in the college of letters as shall
be necessary to a proper fitness of the pupils in the scientific and
practical courses for their chosen pursuits ; and as soon as the income
of the University will allow, in such order as the wants of the public
shall seem to require, the said courses in the sciences and their ap-
plication to the practical arts shall be expanded into distinct colleges
of the University, each with its own faculty and appropriate title.
The college of letters shall be co-existent with the college of arts and
shall embrace a liberal course of instruction in language, literature
350
EDUCATION
Tit. 4
and philosophy, together with such courses or parts of courses in
the college of arts as the regents of the University shalf prescribe.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 10.
Woman Students Admitted.
Sec. 498. The University shall be open to female as well as male
students, under such regulations and restrictions as the board of
regents may deem proper.
Historical: Act 15th Ter. Ses. (Laws
1888-89) 21, Sec. 11.
Tuition Not Required.
Sec. 499. No student who shall have been a resident of the State
for one year next preceding his admission shall be required to pay
any fees for tuition in the University, excepting in a professional
department and for extra studies. The regents may prescribe rates
of tuition for any pupil in a professional department, or who shall
not have been a resident as aforesaid, and for teaching extra studies.
Historical: Act 15th Ter. Ses. (Laws
1S8S-89) 21, Sec. 12.
CHAPTER 2.
LEWISTON NORMAL SCHOOL.
Section
500. Establishment of school.
501. Constitution of board of trus-
tees.
502. Meetings, officers and proceed-
ings of board.
503. General powers and duties of
board.
504. Same: Control of funds.
505. Meetings of board.
506. Election of principal.
507. Course of study, certificates and
diplomas.
Section
5 08. Text books, supplies and appa-
ratus.
509. Training or model schools.
510. Admission of pupils.
511. Same: Pupils from other State*
512. Scientific lectures.
513. Expenses of trustees.
514. Government of school and pu-
pils.
515. Report of trustees.
Establishment of School.
Sec. 500. A normal school for the State of Idaho is hereby estab-
lished in the City of Lewiston, in the County of Nez Perce, to be called
the Lewiston State Normal School, the purpose of which shall be
training and educating teachers in the art of instruction and govern-
ing in the public schools of this State, and teaching the various
branches that pertain to a good common school education.
Historical: Laws 1899, 164, Sec. 1;
re-enacting Laws 1893, 6, Sec. 1.
Omitting the proviso, which author-
ized the conveyance of a site to the
board of trustees by the city of Lew-
iston, the purposes of which have
been accomplished.
Constitution of Board of Trustees.
Sec. 501. The said Lewiston State Normal School shall be under
the direction of a board of trustees to be known as "The Board of
Trustees of the Lewiston State Normal School. " The said board of
trustees shall consist of seven members, one of whom shall be the
Ch. 2. LEWISTON NORMAL 351
State Superintendent of Public Instruction ex-officio. The remaining
six members shall be present trustees, who shall hold office for
the term for which they were appointed in the same manner as if
these Codes had not been enacted. Their successors shall be ap-
pointed for the term of six years by the Governor of the State of
Idaho, by and with the advice and consent of the Senate, the terms
of two of said appointed trustees expiring on the twenty-seventh day
of January of every odd numbered year. The Governor shall fill by
appointment all vacancies that may, from any cause, occur in said
board of trustees. Before entering upon the duties of his office, each
of said trustees shall take and subscribe an oath or affirmation, before
some person duly authorized to administer the same, that he Will
support the Constitution of the United States and of the State of
Idaho, and will faithfully and impartially discharge the duties of
the office of trustee of the Lewiston State Normal School, which oath
or affirmation shall be filed in the office of the Secretary of State.
Historical: Laws 1893, 6, Sec. 2, re- isting- constitution of the board. The
enacted Laws 1899, 164, Sec. 2, State Superintendent is added to the
amended Laws 1899, 36 9, Sec. 1. The board on the authority of Laws 1903,
portion relating- to the constitution of 222, Sec. 1. The provision for filling
the board is re-written so as to omit vacancies in the board is taken from
specific names and to preserve the ex- Sec. 15 of the acts of 1893 and 1'899.
Meetings, Officers, and Proceedings of Board.
Sec. 502. The said board of trustees may conduct its proceedings
in such manner as will best conduce to the proper dispatch of busi-
ness. A majority of the board of trustees shall constitute a quorum
for the transaction of business, but a less number may adjourn from
time to time. No member of said board of trustees shall participate
in any proceeding in which he has any pecuniary interest. Every
vote and official act of the said board of trustees shall be entered of
record. Said board of trustees shall have an official seal, which shall
be judiciously noticed. Said board of trustees may sue and be sued.
No vacancy in the board of trustees shall impair the right of the
remaining trustees to exercise all the powers of the said board of
trustees. At their first meeting, and annually thereafter, the said
board of trustees shall elect from their number a president and a
secretary. The State Treasurer shall be ex-officio treasurer of said
board of trustees. It shall be the duty of the secretary to keep an
exact and detailed account of the doings of said board, and an item-
ized account of all expenditures authorised by said board.
Historical: Laws 1899, 16 4, Sec. 3;
re-enacting Laws 1893, 6, Sec. 3.
General Powers and Duties of Board.
Sec. 503. The said board of trustees are hereby authorized, and
it is made their duty, to take and at all times to have general super-
vision and control of all buildings and property appertaining to said
Normal School ; and to have general charge and control of the con-
struction of all buildings to be built. They shall have power to let
contracts for buildings and completion of any such buildings, and the
entire supervision of their construction.
Historical: Laws 1899, 164, Sec. 4;
'acting Laws 1893, 6, Sec. 4.
352
EDUCATION
Tit. 4
Same: Control of Funds.
Sec. 504. One-half of all funds appropriated for the use and bene-
fit of normal schools in the State of Idaho, from every source, in-
cluding sales of land donated by the government of the United States
to the State of Idaho, for the establishment and maintenance of State
normal schools, shall be under the direction and control of the said
board of trustees subject to the provisions herein contained. The
treasurer of the board shall pay out of such funds all orders or drafts
for money to be expended under the provisions of this chapter.
Such orders or drafts shall be drawn by the State Auditor on cer-
tificates of the secretary, countersigned by the president, of the said
board of trustees. No such certificates shall be given except upon
accounts audited and allowed by the said board : Provided, Not more
than fifty thousand acres of said lands shall ever be sold for said
purpose of establishing and maintaining the Lewiston State Normal
School, and said board of trustees shall never use more of said funds
than necessary for the purpose of carrying out the provisions of this
chapter.
Historical: Laws 1899, 164, Sec. 5;
re-enacting- Laws 1893, 6, Sec. 5. Omit-
ting the first proviso which is obsolete
since the establishment of the Albion
Normal School.
Meetings of Board.
Sec. 505. The board of trustees shall hold two regular meetings
annually, at the said City of Lewiston, but special meetings may be
called by the president of the board by sending written notice, at
least ten days before such meeting, to each member.
Historical: Laws 1899, 16 4, Sec. 6;
re-enacting Laws 1893, 6, Sec. 6.
Election of Principal.
Sec. 506. The board of trustees shall have power to elect a princi-
pal and all other teachers that may be deemed necessary, to fix
salaries of the same and to prescribe their duties. They shall have
power to remove either the principal, assistant or teachers, and ap-
point others in their stead.
Historical: Laws 1899, 16 4, Sec. 7;
re-enacting Laws 1893, 6, Sec. 7.
Course of Study, Certificates and Diplomas.
Sec. 507. It shall be the duty of the board of trustees to prescribe
the course of study and the time and standard of graduation, and to
issue such certificates and diplomas as may from time to time be
deemed suitable. These certificates and diplomas shall entitle the
holder to teach in the public schools of any county in this State for
the time and in the grade specified in the certificate or diploma.
Historical: Laws 1899, 164, Sec. 8;
re-enacting Laws 1893, 6, Sec. 8.
Text Books, Supplies and Apparatus.
Sec. 508. The board of trustees shall prescribe the text books,
apparatus, and furniture, and provide the same, together with all
necessary stationery for the use of pupils.
Ch. 2 LEWISTON NORMAL SCHOOL 353
Historical: Laws 18 99, 164, Sec. 9;
re-enacting Laws 1893, 6, Sec. 9.
Training or Model Schools.
Sec. 509. The board of trustees shall, when deemed expedient,
establish and maintain a training or model school or schools, in which
the pupils of the normal school shall be required to instruct classes
under the supervision and direction of experienced teachers.
Historical: Laws 1899, 16 4, Sec. 10;
re-enacting Laws 1893, 6, Sec. 10.
Admission of Pupils.
Sec. 510. The board of trustees shall ordain such rules and regu-
lations for the admission of pupils to said Normal School as they shall
deem necessary and proper. All classes may be admitted into the
said normal school who are admitted without restriction into the
public schools of the State : Provided, The applicant, if a male, must
be not less than sixteen years of age, or if a female, not less than
fifteen years of age. Applicants must also present letters of recom-
mendation from the county superintendent of public instruction of
the county in which they reside, certifying to their good moral char-
acter and their fitness to enter the Normal School. Before entering
all applicants must sign the following declaration: "We hereby de-
clare that our purpose in entering the Lewiston State Normal School
is to fit ourselves for the profession of teaching, and that it is our
intention to engage in teaching in the public schools of this State."
Historical: Laws 1899, 16 4, Sec. 11;
re-enacting Laws 1893, 6, Sec. 11.
Same: Pupils From Other States.
Sec. 511. Pupils from other States and Territories may be ad-
mitted to all the privileges of the said Normal School, on presenting
letters of recommendation from the Executive or State School Super-
intendent thereof, and the payment of one hundred dollars. Pupils
from other states shall not be required to sign the declaration named
in the foregoing section.
Historical: Laws 1899, 164, Sec. 12;
re-enacting Laws 1893, 6, Sec. 12.
Scientific Lectures.
Sec. 512. Lectures in chemistry, comparative anatomy, agricul-
tural chemistry, and any other science or any other branch of litera-
ture that the board of trustees may direct, may be delivered to those
attending such school, in such manner and on such conditions as the
board of trustees may prescribe.
Historical: Laws 1899, 164, Sec. 13;
tiacting Laws 1893, 6, Sec. 13.
Expenses of Trustees.
Sec. 513. The actual and necessary personal expenses incurred by
the members of the board of trustees, in carrying out the provisions
of this chapter, shall be paid, on the proper certificate, out of any
funds belonging to said Normal School in the hands of the treasurer.
354
EDUCATION
Tit. 4
Historical: Laws 1899, 16 4, Sec. 14;
re-enacting Laws 1893, 6, Sec. 14.
Government of School and Pupils.
Sec. 514. The board of trustees, in their regulations, and the
principal and assistants in their supervision and government of the
said school, shall exercise a watchful guardianship over the morals
of the pupils at all times during their attendance upon the same,
but no religious or sectarian tests shall be applied in the selection of
teachers, and none shall be adopted in said school.
Historical: Laws 1899. 164, Sec. 17;
re-enacting Laws 1893, 6, Sec. 17.
Cross Reference: Religious tests,
qualifications and teachings prohib-
ited: Const. Art. 9, Sec. 6.
Report of Trustees.
Sec. 515. The president and secretary of the board of trustees
shall, on or before the first day of December of each year transmit
to the Governor of the State, a full report of the doings of the said
board of trustees, the progress and condition of the said Normal
School, together with a full report of the expenditures of the same
for the previous year, setting forth each item in full, and the date
thereof, and such recommendations as they deem proper for the good
of said Normal School.
Historical: Laws 1899, 164, Sec. 16;
re-enacting Laws 1893. 6, Sec. 16. "On
or before the first day of December"
inserted for "on the first day of Jan-
uary" to conform to Laws 1903, 149,
Sec. 1 (Codes, Sec. 279).
CHAPTER 3.
ALBION NORMAL SCHOOL.
Section
516. Establishment of school.
517. Constitution of board of trus-
tees.
518. Title to property.
519. Proceedings of board. •
5 2 0. Control of buildinsrs.
5 21. Control of funds.
5 2 2. Meetings of board.
523. Election and removal of prin-
cipal and teachers.
52 4. Course of study, certificates
and diplomas.
Section
525. Text
apparatus and
books,
furniture.
526. Training or model schools.
527. Admission of pupils.
5 2 8. Same: Pupils from other States.
529. Lecture courses.
5 3 0. Expenses of board.
5 31. Report to Governor.
532. Supervision of pupils.
Establishment of School.
Sec. 516. A Normal School for the State of Idaho is hereby estab-
lished at or near the Town of Albion, in the County of Cassia, to
be called the Albion State Normal School, the purpose of which will
be training and educating teachers in the art of instruction and
governing in the public schools of the State, and teaching the various
branches that pertain to a good common school education.
Historical: Laws 1§99, 22 8, Sec. 1;
re-enacting Laws 1893, 179, Sec. 1,
omitting the proviso relating to the
donation of land for the school, the
purposes of which have been accom-
plished. The concluding clause, vest-
ing title to real estate in the trustees,
is covered by the third section of the
article (Sec 518, post).
Ch. 3.
ALBION NORMAL SCHOOL
355
Constitution of Board of Trustees.
Sec. 517. The Albion State Normal School shall be under the di-
rection of a non-partisan board of trustees, consisting of six mem-
bers— exclusive of the State Superintendent of Public Instruction,
who is ex-officio a member of said board — no more than four of
whom shall be of the same political party. Said board shall be
known as the "Board of Trustees of the Albion State Normal School. "
The board of trustees as at present constituted shall continue to hold
office during the respective terms of the members thereof, and their
successors shall be appointed for the term of six years from and
after the fifth day of March, by the Governor of the State of Idaho,
by and with the advice and consent of the Senate, and in such a
manner that two trustees shall be appointed each odd numbered
year. It shall be the duty of the Governor to fill, by appointment,
all vacancies that may from any cause occur in said board of trustees.
Before entering upon the duties of their office, each of the trustees
provided for in this chapter shall take and subscribe an oath or
affirmation that he will support the Constitution of the United States,
and the Constitution and Laws of the State of Idaho, and will faith-
fully and impartially discharge the duties of said office, which oath
or affirmation shall be filed in the office of the Secretary of State.
Historical: Laws 1893, 17 9, Sec. 15;
re-enacted Laws 18 9 9, 228, Sec. 2;
amended Laws 1905, 129, Sec. 1. Re-
written so as to omit the provisions
for the first board of trustees, to pre-
serve the present constitution of the
hoard, and to include the State Su-
perintendent of Public Instruction as
a member of the board as provided
for in Laws 1903, 222, Sec. 1. The
section aiso includes Sec. 15 of the
18 93 (Sec. 16 of 18 99) Law providing
for filling- vacancies in the board.
Title to Property.
Sec. 518. All the rights, powers, duties, and title to real estate or
personal property belonging to or vested in said Albion State Normal
School are hereby vested in the trustees of said school herein pro-
vided for.
Historical: Laws 1899, 228, Sec. 3.
Proceedings of Board.
Sec. 519. The said board of trustees may conduct its proceedings
in such manner as will best conduce to the proper dispatch of busi-
ness. A majority of the board of trustees shall constitute a quorum
for the transaction of business, but a less number may adjourn from
time to time. No member of said board of trustees shall participate
in any proceeding in which he has any pecuniary interest. Every
vote and official act of said board of trustees shall be entered of
record. Said board of trustees shall have an official seal, which shall
be judicially noticed. Said board of trustees may sue and be sued.
No vacancy in the board of trustees shall impair the right of the
remaining trustees to exercise all the powers of the said board of
trustees. At their first meeting, and annually thereafter, the said
board of trustees shall elect from their number a president and
secretary. The State Treasurer shall be ex-officio treasurer of said
board of trustees. It shall be the duty of the secretary to keep an
exact and detailed account of the doings of said board, and an item-
ized account of all expenditures authorized by said board.
356 EDUCATION Tit. 4
Historical: Laws 1899, 22 8, Sec. 4;
re-enacting- Laws 1893, 179, Sec. 3.
Control of Buildings.
Sec. 520. The said board of trustees are hereby authorized, and
it is made their duty, to take and at all times to have general super-
vision and control of all buildings and property appertaining to said
Normal School, and to have general charge and control of the con-
struction of all buildings to be built. They shall have power to let
contracts for building and completion of any such buildings, and the
entire supervision of their construction.
Historical: Laws 1899, 228, Sec. 5;
re-enacting Laws 1893, 179, Sec. 4.
Control of Funds.
Sec. 521. All funds appropriated for the use and benefit of said
Normal School, from every source, including the pro rata share of
the available proceeds of sales of lands granted by the Government
of the United States to the State of Idaho for the establishment and
maintenance of State Normal Schools due to said Normal School,
shall be under the direction and control of the said board of trustees
subject to the provisions herein contained. The treasurer of the
board of trustees shall pay out of such funds all orders or drafts
for money to be expended under the provisions of this chapter. Such
orders or drafts shall be drawn by the State Auditor on certificates
of the secretary, countersigned by the president of said board of
trustees, and approved by the State Board of Examiners. No such
certificates shall be given except on accounts audited and allowed
by said board of trustees.
Historical: Laws 1899, 2 28, Sec. 6;
re-enacting Laws 1893, 179, Sec. 5.
Meetings of Boarr!.
Sec. 522. The board of trustees shall hold two regular meetings
annually, at the said Town of Albion, but special meetings may be
called by the president of the board by sending written notice of at
least ten days to each member.
Historical: Laws 1899, 2 28, Sec. 7;
re-enacting Laws 1893, 179, Sec. 6.
Election and Removal of Principal and Teachers.
Sec. 523. The board of trustees shall have power to elect a princi-
pal and all other teachers that may be deemed necessary, to fix the
salaries of the same and to prescribe their duties. They shall have
power to remove either the principal, assistant, or teachers, and
appoint others in their stead.
Historical: Laws 1899, 228, Sec. 8;
re-enacting Laws 1893, 179, Sec. 7.
Course of Study, Certificates and Diplomas.
Sec. 524. It shall be the duty of the board of trustees to prescribe
the course of study, and the time, and standard, of graduation, and
to issue such certificates and diplomas as may from time to time
be deemed suitable. These certificates and diplomas shall entitle
Ch. 2. ALBION NORMAL SCHOOL 357
the holders to teach in the public schools in any county in this State
for the time and in the grade specified in the certificate or diploma.
Historical: Laws 1899, 228, Sec. 9;
re-enacting Laws 1893, 17 9, Sec. 8.
Text Books, Apparatus and Furniture.
Sec. 525. The board of trustees shall prescribe the text books,
apparatus, and furniture, and provide the same, together with all
necessary stationery for the use of pupils.
Historical: Laws 18 99, 22 8, Sec. 10;
re-enacting Laws 1893, 179, Sec. 9.
Training or Model Schools.
Sec. 526. The board of trustees shall, when deemed expedient,
establish and maintain a training or model school or schools in which
the pupils of the Normal School shall be required to instruct classes,
under the supervision and direction of experienced teachers.
Historical: Laws 1899, 228, Sec. li-
re-enacting Laws 1893, 179, Sec. 10.
Admission of Pupils.
Sec. 527. The board of trustees shall ordain such rules and regu-
lations for the admission of pupils to said Normal School as they
shall deem necessary and proper. All classes may be admitted into
the said Normal School who are admitted without restriction into
the public schools of the State: Provided, The applicant, if a male,
must be not less than sixteen years of age, or if a female, not less
than fifteen years of age. Applicants must also present letters of
recommendation from the county superintendent of public instruc-
tion, of the county in which they reside, certifying to their good
moral character and their fitness to enter the Normal School. Before
entering, all applicants must sign the following declaration: "We
hereby declare that our purpose in entering the Albion State Normal
School is to fit ourselves for the profession of teaching, and that
it is our intention to engage in teaching in the public schools of this
State."
Historical: Laws 18 99, 228, Sec. 12;
re-enacting Laws 1893, 179, Sec. 11.
Same: Pupils From Other States.
Sec. 528. Pupils from other States and Territories may be ad-
mitted to all the privileges of said Normal School on presenting
letters of recommendation from the Executive, or State School Super-
intendent thereof, and paying such tuition fee as the board of trustees
may prescribe. Each of such pupils must sign the following declara-
tion: "I hereby declare that my purpose in entering the Albion
State Normal School is to fit myself for the profession of teaching."
Historical: Laws 1899, 228, Sec. 13;
nacting Laws 1893, 179, Sec. 12;
amended Laws 1895, 19, Sec. 1.
Lecture Courses.
Sec. 529. Lectures in chemistry, comparative anatomy, the me-
358
EDUCATION
Tit. 4
chanical arts, agricultural chemistry, and any other science, or any
other branch of literature that the board of trustees may direct, may
be delivered to those attending such school, in such manner and on
such conditions as the board of trustees may prescribe.
Historical: Laws 1899, 22 8, Sec. 14;
re-enacting- Laws 1893, 179, Sec. 13.
Expenses of Board.
Sec. 530. The actual and necessary personal expenses incurred by
the members of said board of trustees in carrying out the provisions
of this chapter shall be paid on the proper certificate out of any funds
belonging to said Normal School, in the hands of the treasurer.
Historical: Laws 1899, 2 2 8, Sec. 15:
re-enacting Laws 1893, 179, Sec. 14.
Report to Governor.
Sec. 531. The president and secretary of the said board of trustees
shall, on the first days of January and July of each year, transmit
to the Governor of the State a full report of the doings of the said
board of trustees and the progress and condition of the said Normal
School, together with a full report of the expenditures of the same
for the previous six months, setting forth each item in full, and the
date thereof, and such recommendations as they deem proper for
the good of said Normal School.
Historical: Laws 1899, 228, Sec. 17;
re-enacting Laws 1893, 179, Sec. 16.
Supervision of Pupils.
Sec. 532. The board of trustees in their regulations, and the
principal and assistant in their supervision and government of the
said school, shall exercise a watchful guardianship over the morals
of the pupils at all times during their attendance upon the same, but
no religious or sectarian test shall be applied in the selection of
teachers, and none shall be adopted in the said school.
Historical: Laws 1899, 228, Sec. 18;
re-enacting Laws 1893, 179, Sec. 17.
Cross Reference: Religious tests,
qualifications and teachings prohibit-
ed: Const. Art. 9, Sec. 6.
CHAPTER 4.
SUMMER NORMAL SCHOOLS.
Section
533. Commission of Summer Normal
Schools.
5 34. Meetings and officers of com-
mission.
535. Courses of study.
5 36. Report to Governor.
537. Places of holding schools.
538. Annual term of schools.
Section
5 39. Who may receive instruction.
540.
541.
542.
543.
544.
Expense of conducting schools.
Number of instructors.
Superintendent to visit schools.
Use of buildings to be free.
Allowance of claims.
Commission of Summer Normal Schools.
Sec. 533. A commission of summer Normal Schools is hereby
created, consisting of the State Board of Education, the principal of
Ch. 4. SUMMER NORMAL SCHOOLS 359
the Lewiston State Normal School, and the principal of the Albion
State Normal School, which commission is hereby authorized to
establish three summer normal schools.
Historical: Laws 1907, 22 5, Sec. 1.
Meetings and Officers of Commission.
Sec. 534. Said commission shall hold at least two meetings an-
nually at a time and place to be designated by the Superintendent
of Public Instruction, who shall act as chairman of the commission.
The commission shall elect a secretary from their own number at
their first regular meeting.
Historical: Laws 1907, 22 5, Sec. 2.
Courses of Study.
Sec. 535. Said Commission shall determine the courses of study,
fix the credit students shall receive for work performed in said
schools, and engage a conductor and three or more assistant in-
structors for each of said schools. One of said instructors shall be
from without the State of Idaho.
Historical: Laws 1907, 225, Sec. 3.
Report to Governor.
Sec. 536. The secretary shall keep an accurate record of all busi-
ness transacted by the commission; keep on file, in the office of the
Superintendent of Public Instruction, a duplicate itemized bill of all
claims allowed, and make a full and complete report to the Governor
on the first day of January of each year, showing items allowed and
paid from the "Summer Normal School Fund."
Historical: Laws 1907, 225, Sec. 4.
Places of Holding Schools.
Sec. 537. One of said schools shall be held at Pocatello, Idaho,
either in the Academy of Idaho, or in such other place in said city
as said commission shall select; one of said schools shall be held
in Boise City, Idaho, either in the high school building, or in such
other place in said city as the commission shall select, and one of
said schools shall be held in Coeur d' Alene, Idaho, in such building
in said city as the commission may select.
Historical: Laws 1907, 225, Sec. 5.
Annual Term of Schools.
Sec. 538. The length of the annual term in each of said schools
shall not be less than six weeks, beginning with the third Monday
in July of each year.
Historical: Laws 1907, 22 5, Sec. 6,
omitting the clause relating to the
term to be held in the year 1907.
Who May Receive Instruction.
Sec. 539. Any person may receive instruction in said schools who
is a teacher, or expects to become a teacher, in the State of Idaho,
360
EDUCATION
Tit. 4
or any other person desiring such instruction, by paying an enroll-
ment fee of not less than one dollar, and otherwise complying with
the regulations of the school.
Historical: Laws 1907, 225, Sec. 7.
Expense of Conducting Schools.
Sec. 540. Said commission is authorized to expend for the ex-
penses of conducting each of said schools, not to exceed one thousand
dollars per annum of the money appropriated by the State of Idaho,
together with all sums received as enrollment fees.
Historical: Laws 1907, 225, Sec. 8.
"Hereby" omitted before "appropri-
ted." The appropriation section is
omitted in accordance with the gen-
eral plan to omit all appropriation
acts and sections, but their effect is
preserved by the exception to the re-
peal found in Section 17 of these
Codes, which saves existing- appropri-
ations.
Number of Instructors.
Sec. 541. In case the annual enrollment of any one of said schools
shall be less than seventy-five, said commission may decrease the
number of instructors accordingly, and in case said enrollment shall
be less than fifty, said commission may discontinue said school. In
case the annual enrollment exceeds one hundred, the commission is
authorized to increase the number of instructors accordingly.
Historical: Laws 1907, 225, Sec. 9.
Superintendent to Visit Schools.
Sec. 542. It shall be the duty of the Superintendent of Public
Instruction to visit each of said schools annually and inspect the work
done.
Historical: Laws 1907, 225, Sec. 10.
Use of Buildings to Be Free.
Sec. 543. No part of the money appropriated by the State for the
support of said schools shall be used for the payment of rent for the
use of any of the buildings in which said schools may be held. The
use of said buildings shall be furnished free by the locality where
said schools are held.
Historical: Laws 1907, 2 2 5, Sec. 11.
Allowance of Claims.
Sec. 544. All bills, accounts, or claims arising in pursuance of the
provisions of this chapter must be submitted by an itemized state-
ment in writing, duly verified in duplicate, to the commission, which
must be carefully examined by them and passed upon at a regular
or special meeting. For any claim found by them to be correct, they
must transmit the original itemized bill, account or claim, signed
by the secretary, to the State Board of Examiners, through the State
Auditor's office, and when allowed by the State Board of Examiners,
the same shall be paid by a warrant drawn by the State Auditor on
the "Summer Normal School Fund.,,
Historical: Laws 1907, 225, Sec. 13.
Ch. 5.
ACADEMY OF IDAHO
361
CHAPTER 5.
ACADEMY OF IDAHO.
Section
545. Establishment of academy.
546. Board of trustees, constitution.
547. Same: Title to property.
548. Same: Proceedings of board.
549. Control of board over buildings.
550. Appropriation of lands to
academy.
551. Funds: Allowance of bills.
Section
552. Meetings of board.
553. Teachers, course of study and
text books.
554. Rules for admission of pupils.
555. Allowance of expenses to board.
55 6. Report to Governor.
557. Guardianship over pupils.
Establishment of Academy.
Sec. 545. A school which shall be called the Academy of Idaho, is
hereby established at the City of Pocatello, Idaho, the purpose of
which shall be the teaching of all the branches commonly taught in
academies, including also the various studies pertaining to a good
common school education, and such special courses as are usually
taught in business colleges.
are now obsolete, and the provisions
vesting title to the land conveyed in
the trustees, which is covered by Sec-
tion 3 of the act (Sec. 547, post).
Historical: Laws 1901, 17, Sec. 1,
omitting the provisions relating to the
conveyance of land to the Academy,
which have been complied with and
Board of Trustees : Constitution.
Sec. 546. A non-partisan board of trustees to be known as the
"Board of Trustees of the Academy of Idaho," consisting of six
members, no more than three of whom shall be of the same political
party, is hereby created for the management and control of said
Academy. Said trustees shall be appointed by the Governor by and
with the advice and consent of the Senate for terms of six years, and
until their successors are appointed and qualified: Provided, That
two members of said board shall be appointed each odd numbered
year, and the present trustees shall hold office to the expiration of the
terms for which they were appointed, in the same manner as if these
Codes had not been enacted. It shall be the duty of the Governor
to fill by appointment all vacancies that may from any cause occur in
the board of trustees. Before entering upon the duties of their
office, each of said trustees shall take and subscribe an oath or affirm-
ation that he will support the Constitution of the United States, and
the Constitution and laws of the State of Idaho, and will faithfully
and impartially discharge the duties of said office, which oath, or
affirmation, shall be filed in the office of the Secretary of State.
Historical: Laws 1901, 17, Sees. 2.
12. The provision for filling vacancies
is taken from Section 12. The pro-
viso is rewritten so as to omit the
Same: Title to Property.
Sec. 547. All rights in and title to real estate or personal property
belonging to or vested in said Academy are hereby vested in said
board of trustees.
Historical: Laws 1901, 17, Sec. 3.
provision for the appointment of the
first board and to preserve the pres-
ent constitution of the board.
362 EDUCATION Tit. 4.
Same : Proceedings of Board.
Sec. 548. The said board of trustees may conduct its proceedings
in such manner as will best conduce to the proper dispatch of busi-
ness. A majority of the board of trustees shall constitute a quorum
for the transaction of business, but a smaller number may adjourn
from time to time. No member of said board of trustees shall par-
ticipate in any proceedings in which he has any pecuniary interest.
Every vote and official act of said board of trustees shall be entered
of record. Said board of trustees shall have an official seal which
shall be judicially noticed. Said board of trustees may sue and be
sued. No vacancy in the board of trustees shall impair the right of
the remaining trustees to exercise all the powers of said board of
trustees. At their first meeting and annually thereafter, the said
board shall elect from their number a president and a secretary. The
State Treasurer shall be ex-officio treasurer of said board of trustees.
It shall be the duty of the secretary to keep an exact and detailed
account of the doings of said board, and an itemized account of all
the expenditures authorized by said board.
Historical: Laws 1901, 17, Sec. 4.
Control of Board Over Buildings.
Sec. 549. The said board of trustees are hereby authorized, and
it is made their duty, to take and at all times to have general super-
vision and control of all buildings and property appertaining to said
academy, and to have general charge and control of the construction
of all buildings to be built. They shall have power to let contracts
for building any such buildings, and also the entire supervision of
their construction.
Historical: Laws 1901, 17, Sec. 5.
Appropriation of Lands to Academy.
Sec. 550. Forty thousand acres of the lands granted to the State
of Idaho by an act of Congress, entitled "An act to provide for the
admission of the State of Idaho into the Union," approved July 3,
1890, "for other State charitable, educational, penal and reformatory
institutions," are hereby appropriated and set apart for the exclusive
use and benefit of said Academy, said lands to be held, disposed of,
and the proceeds thereof used and applied for the benefit of said
Academy, subject to the provisions of said admission bill and of the
Constitution of the State of Idaho, and, so far as may be practicable,
in conformity with the established procedure of holding, disposing of,
and applying the proceeds of the sales of lands granted for the
establishment and maintenance of State Normal Schools in Idaho.
Historical: Laws 1901, 17, Sec. 6.
Funds: Allowance of Bills.
Sec. 551. All funds appropriated for the use and benefit of said
Academy, from every source, including the available proceeds from
the sales of said land, and the sale of bonds provided for said
Academy, shall be under the control and direction of said board of
trustees, subject to the provisions herein contained. The treasurer
of the board of trustees shall pay out of such funds all orders or
Ch. 5.
ACADEMY OF IDAHO
363
drafts for money to be expended under the provisions of this chapter.
Such orders or drafts shall be drawn by the State Auditor upon
certificates of the secretary, countersigned by the president of said
board of trustees, and approved by the State Board of Examiners.
No such certificates shall be given except on accounts audited and
allowed by said board of trustees.
Historical: Laws 1901, 17, Sec. 7.
"Bonds provided for said Academy"
inserted for "bonds hereinafter pro-
vided for." The provisions for bonds
are omitted from this chapter, but are
included in the table of special laws
continued in force by Section 17 of
these Codes.
Meetings of Board.
Sec. 552. The board of trustees shall hold two regular meetings
annually, at the City of Pocatello, but special meetings may be called
by the president of the board by sending written notice of at least
ten days to each member.
Historical: Laws 1901, 17, Sec. 8.
Teachers, Course of Study and Text Books.
Sec. 553. The board of trustees shall have power to elect a princi-
pal and all other teachers that may be deemed necessary, to fix the
salaries of the same, and to prescribe their duties. They shall have
power to remove the principal or teachers and appoint others in their
stead. It shall be the duty of the board of trustees to prescribe the
course of study and the time and standard of graduation, and to
issue such certificates of graduation and diplomas as may from time
to time be deemed suitable. The board of trustees shall prescribe
the text books, and shall provide such suitable apparatus and fur-
niture from time to time as they may deem necessary: Provided,
That for the purpose of prescribing a course of study, but for that
purpose only, the president of the State University and the State
Superintendent of Public Instruction shall be ex-officio members of
the board of trustees.
Historical: Laws 1901, 17, Sec. 9.
Rules for Admission of Pupils.
Sec. 554. The board of trustees shall ordain such rules and regu-
lations for the admission of pupils to said Academy as they shall
deem necessary and proper. Pupils from other States and Territories
may be admitted to all the privileges of such Academy upon paying
such reasonable tuition fee as the trustees may prescribe.
Historical: Laws 1901, 17, Sec. 10.
Allowance of Expenses to Board.
Sec. 555. The actual and necessary personal expenses incurred by
the members of said board of trustees in carrying out the provisions
of this chapter shall be paid, on the proper certificate, out of any
funds belonging to said academy in the hands of the treasurer.
Historical: Laws 1901, 17, Sec. 11.
Report to Governor.
Sec. 556. The president and secretary of said board of trustees
shall, on the first days of January and July of each year, transmit
364
EDUCATION
Tit. 4
to the Governor of the State a full report of the doings of the said
board of trustees, the progress and condition of said academy, to-
gether with a full report of the expenditures of the same for the
previous six months, setting forth each item in full, and the date
thereof, and such recommendations as they deem proper for the good
of said academy.
Historical: Laws 1901, 17, Sec. 13.
Guardianship Over Pupils.
Sec. 557. The board of trustees in their regulations, and the
principal and assistants in their supervision and government of said
school, shall exercise a watchful guardianship over the morals of
the pupils at all times during their attendance upon the same, but
no religious or sectarian test shall be applied in the selection of
teachers, and none shall be adopted in said school.
Historical: Laws 1901, 17, Sec. 14.
Cross ^Reference: Religious tests,
qualifications and teachings prohibit-
ed: Const. Art. 9, Sec. 6.
CHAPTER 6.
PUBLIC SCHOOLS.
Article
1. The
Board of Public In-
o.
6.
7.
State
struction.
The State Superintendent.
Board of Text Book Commission-
ers.
County superintendent.
School funds and finances.
School districts.
District trustees.
Article
8. Teachers.
9. Compulsory education.
10. Teachers' institutes.
11. School district bonds.
12. Independent school districts.
13. Prevention of disease.
14. Miscellaneous provisions.
Note: The school law constituted Title 3 of the Revised Statutes of
1887. This title was superseded and repealed by an act of the first
session of the State Legislature (Laws 1890-91, 131), which in turn
was repealed by Laws 1893, 187; re-enacted Laws 1899, 85, which
forms the basis of this chapter. The law is said to be derived in part
from the New York and Illinois laws of the period, but the present
resemblance is very remote.
ARTICLE 1.
THE STATE BOARD OF PUBLIC
INSTRUCTION.
Section
558. Constitution of Board.
559. Meetings of Board.
560. Conduct of teachers' examina-
tions.
561. State certificates and diplomas.
Section
5 62. Diplomas equivalent to teaching
experience.
5 6 3. University graduates entitled to
certificates.
56 4. Revocation of certificates and
diplomas.
Constitution of Board.
Sec. 558. The Superintendent of Public Instruction, the Secretary
of State, and the Attorney General shall constitute the State Board
of Public Instruction, of which the Superintendent shall be president.
The Board shall have power to appoint a secretary.
Historical: Laws 1899, 85, Sec. 1;
re-enacting Laws 1893, 187, Sec. 1.
Cross Reference: Board established
by Constitution: Art. 9, Sec. 2.
Ch. 6. Art. 1. PUBLIC SCHOOLS — STATE BOARD 365
Meetings of Board.
Sec. 559. The Board of Public Instruction shall meet at the capital
on the first Monday of June and December of each year for the trans-
action of business, and at such other times as its president shall direct,
and shall have power to adopt rules and regulations, not inconsistent
with the laws of this State, for its own government.
Historical: Laws 1899, 85, Sec. 2;
re-enacting Laws 1893, 187, Sec. 2.
Conduct of Teachers' Examinations.
Sec. 560. The State Board shall hold, annually, at least two public
examinations of teachers, at each of which examinations one member
of the Board shall preside, assisted by such person or persons, not to
exceed two in number, as the Board may select, who shall receive
for such services not to exceed five dollars per day, and said Board
shall keep a full and correct record of its proceedings, and a complete
register of all persons to whom certificates are issued.
Historical: Laws 189 9, 85, Sec. 3:
re-enacting Laws 1893, 187, Sec. 3.
State Certificates and Diplomas.
Sec. 561. Said Board shall issue State certificates and State di-
plomas to those persons only who possess good moral character, and
who shall have passed a thorough examination in all the branches
included in the course of study prescribed for the public schools of
the State, didactics and such other branches as the Board may direct :
Provided, That in no case shall a State certificate be granted unless
the applicant has been successfully engaged in teaching for at least
three years, and can furnish the Board satisfactory evidence of his
or her ability to instruct and properly manage any school in the State,
and holds at that time a valid first grade county certificate. Such
certificate shall authorize the person to whom it is issued to teach
in any public school in the State for a term of eight years from and
after the date of its issue, unless sooner revoked by the State Board
of Public Instruction ; and, Provided further, That in no case shall a
State diploma be granted unless the applicant has been successfully
engaged in teaching for a term of at least five years, two of which
shall have been in the State of Idaho, and can furnish the Board
satisfactory evidence of his ability to instruct and properly manage
any school in the State, and holds at that time a valid State
certificate. Such diploma shall authorize the person to whom it is
issued to teach in any public schools in the State during the lifetime
of the holder, unless revoked by the State Board of Public Instruction :
Provided, The Board may issue certificates to persons holding State
diplomas from other States requiring similar qualifications. Every
person before receiving a State diploma shall pay to the State Treas-
urer the sum of ten dollars, and every person before receiving a State
certificate shall pay to the State Treasurer the sum of five dollars,
for the use of the teachers' institute fund ; and said Board shall re-
quire the receipt of said Treasurer before issuing said diploma or
said certificate.
The teachers' institute fund shall be used to aid teachers' insti-
366
EDUCATION
Tit. 4
tutes, and shall be divided pro rata among the several counties of
the State by said Board; and upon demand of said Board, the State
Auditor shall draw his warrant upon the State Treasurer, payable
to the county superintendent of public instruction of the several
counties.
Historical: Laws 1899, 85, Sec. 4;
amended Laws 1905, 83, Sec. 1;
amended Laws 1907, 56, Sec. 1.
Diplomas Equivalent to Teaching Experience.
Sec. 562. The following diplomas shall be considered equivalent to
the teaching experience required by the preceding section for State
certificates, to-wit : Diplomas from any chartered institutions of this
State, of collegiate grade, granted upon a completion of a course of
at least five years' work above the eighth grade of the public school
system of this State, on the basis of thirty recitations per week, and
forty weeks per year, the State Board of Education being the judge
of the standard of such schools : Provided, That this section shall not
be so construed as to permit the issuance of any State certificate with-
out an examination by the State Board of Public Instruction: Pro-
vided, further, That no certificate shall be issued, under the provisions
of this section, to any person who is not eighteen years of age.
Historical: Laws 1901, 30, Sees. 1,
2. Rewritten by inserting the words
"by the preceding section" instead of
"an act of the Legislature of the State
of Idaho, entitled, 'An act to establish
and maintain a system of free
schools,' " etc.
University Graduates Entitled to Certificates.
Sec. 563. Every graduate from the University of Idaho, receiving
either the degree of bachelor of arts or bachelor of science, who has
finished a two years' course in the department of pedagogy or has
taught successfully in the public schools of the State for a period of
five years, and who is recommended by the professor or instructor
of pedagogy of said institution, shall receive a State teacher's cer-
tificate from the State Superintendent of Public Instruction, who is
hereby empowered, and whose duty it is, to issue such certificate to
any applicant who has complied with the requirements, and who re-
ceives the recommendation provided for in this section.
Historical: Laws 1905, 169, Sees. 1,
2, re-written in combination.
Revocation of Certificates and Diplomas.
Sec. 564. The State Board of Public Instruction shall have the
power to revoke any State certificate or State diploma, for any cause
of disqualification which would have been sufficient ground for re-
fusing to issue the same, had the cause existed or been known at
the time of its issue: Provided, That before revoking any such cer-
tificate or diploma, the holder thereof shall have at least thirty days'
notice to appear before the State Board and show cause why such
revocation should not be made.
Historical: Laws 1899, 85, Sec. 5;
re-enacting Laws 1893, 187, Sec. 5.
Ch. 6. Art. 2. PUBLIC schools — STATE superintendent
367
ARTICLE 2.
THE STATE SUPERINTENDENT.
Section
569. Regulation of teachers' insti-
tutes.
5 70. Meetings with county superin-
tendents.
571. General duties.
Section
565. Election, residence and oath of
office.
566. Office, seal, etc.
567. Supervision of county superin-
tendents and schools.
568. Preparation of examination
questions.
Election, Residence and Oath of Office.
Sec. 565. There shall be elected biennially, by the qualified electors
of the State, a State Superintendent of Public Instruction, who shall
reside at the seat of government, and shall perform such duties as
are prescribed by the Constitution and laws of the State. Before
entering upon the duties of his office the State Superintendent of
Public Instruction shall take and subscribe to the oath, prescribed
by the Constitution, and execute a bond in the penal sum of two
thousand dollars, payable to the State of Idaho, with sureties to be
approved by the Governor, conditioned upon the faithful performance
of his official duties, and the delivery to his successor of all books,
papers, documents and other property belonging to the office. Said
bond and oath shall be deposited with the Secretary of State.
Historical: Laws 1899, 85, Sec. 6;
re-enacting Laws 1893, 187, Sec. 6.
The clause relating to the election and
residence of the State Superintendent
is taken from Const. Art. 4, Sec. 1.
Cross Reference: Salary: Sec. 2 74.
Term of office and residence at seat
of government; Const. Art. 4, Sec. 1;
Election: ib. Sec. 2; Qualifications: ib.
Sec. 3. Member Board of Education:
Const. Art. 9, Sec. 2. Member Board
of Land Commissioners: Const. Art. 9,
Sec. 7; Codes, Sec. 1558. Member
Board of Trustees of Industrial Train-
ing School: Sec. 806. To prepare
course of study for Industrial Train-
ing School: Sec. 817. To act as chair-
man of Commission of Summer Nor-
mal Schools: Sec. 534. Member State
Library Commission. Sec. 672.
Office Seal, Etc.
Sec. 566. He shall have an office at the capital, where a seal shall
be kept which shall be the official seal of the State Superintendent
of Public Instruction, by which all his official acts may be authenti-
cated, and all records, books and papers appertaining to the business
of this office. He shall file all papers, reports and public documents
transmitted to him by the county superintendents of the several
counties, and hold the same in readiness to be exhibited to the Gov-
ernor, or to any commiittee of any house of the Legislature, or any
citizen of the State.
Historical: Laws 1899, 85, Sec. 7;
re-enacting Laws 1893, 187, Sec. 7.
Supervision of County Superintendents and Schools.
Sec. 567. He shall have general supervision of the county super-
intendents and of the public schools of the State, and shall prepare
and prescribe a course of study for use in all such public schools.
Historical: Laws 1899, 85, Sec. 8;
re-enacting Laws 1893, 187, Sec. 8.
Preparation of Examination Questions.
Sec. 568. He shall prepare or cause to be prepared all examination
Vol. 1 — 13
368 EDUCATION Tit. 4
questions to be used by the county superintendents of the several
counties of the State in the examination of applicants for teachers'
certificates, and shall prescribe the rules and regulations for con-
ducting all such examinations.
Historical: Laws 18 99, 85, Sec. 9;
re-enacting Laws 1893, 187, Sec. 9.
Regulation of Teachers' Institutes.
Sec. 569. He shall prescribe rules and regulations for the holding
of teachers' institutes, and, after consulting and advising with county
superintendents, shall appoint assistant conductors therefor, when
deemed necessary ; and shall, as far as he shall find practicable, attend
and assist at such institutes and aid and encourage, generally, teachers
in qualifying themselves for their duties.
Historical: Laws 18 99, 85, Sec. 10;
re-enacting Laws 18y3, 187, Sec. 10.
Meetings With County Superintendents.
Sec. 570. He shall meet the county superintendents of each judicial
district, or of two or more districts combined, at such time and place
as he shall appoint, giving them due notice of such meeting. The
object of such meeting shall be to accumulate facts relative to schools,
to compare views, to discuss principles, to hear discussions and sug-
gestions appertaining to the examination and qualification of teachers,
methods of instruction, institutes and all other matters embraced in
the public school system.
Historical: Laws 1899, 8 5, Sec. 11;
re-enacting Laws 1893, 187, Sec. 11.
General Duties.
Sec. 571. He shall prepare, have printed and furnished, through
the county superintendents, to all officers charged with the adminis-
tration of the laws relating to the public schools, and to teachers,
such blank forms and books as are needed or required to be used
in the discharge of their duties. He shall have the law relating to
the public schools printed in pamphlet form and shall supply school
officers, school libraries and State librarians with one copy each of
such pamphlets ; said printing to be paid for on the warrant of the
Auditor out of the general fund, on bills approved by the State Board
of Examiners, and he shall on or before the first day of December
in every year preceding that in which shall be held a regular session
of the Legislature, report to the Governor the condition of the public
schools, the amount of State school fund apportioned and sources
from which derived, with such suggestions and recommendations re-
lating to the affairs of his office as he may think proper. It shall
be his duty to visit annually such counties of the State as most need
his person attendance, and all counties if practicable, for the purpose
of inspecting the schools and awakening and guiding public sentiment
in relation to the practical interests of education. He shall open such
correspondence as may enable him to obtain all necessary information
relating to the system of public schools in other States. All office,
fuel, furniture, books, postage, stationery and other contingent ex-
Ch. 6. Art. 3.
PUBLIC SCHOOLS — TEXT BOOKS
369
penses pertaining to his office, shall be furnished in the same manner
as those of the other departments of the State government.
Historical: Laws 1899, 85, Sec. 12;
re-enacting Laws 1893, 187, Sec. 12.
Omitting the provision relating to
traveling expenses, which is supersed-
ed by Laws 1907, 465, Sec. 1. (Codes
Sec. 274.)
ARTICLE 3.
BOARD OF TEXT BOOK COMMISSIONERS.
Section
572. Constitution of Board.
Meetings: When and where held.
Advertisement for bids.
Adoption of text books: Inde-
pendent school districts.
Contracts for books: Bonds of
publishers.
Publishers to furnish lists of
books.
573.
574.
575.
576.
577.
Section
578. Publishers to keep books on
hand.
5 79. Requisition for books.
580. Same: Account of books or-
dered.
581. Custody and distribution of
books.
5 82. Reserve supply of books.
?83. Expenses of Commissioners.
Note: So much of this article as relates to the 1907 meeting of the
Tt:xt Book Commissioners, and the adoption of a list of text books by
them for the ensuing six years, is now obsolete, but is retained here as it
serves at least to explain the remainde* of the article. Similar legislation
Is found in the earlier school laws. See Laws 1893, 187, Sees. 55-64; Laws
1S99, 401.
Constitution of Board.
Sec. 572. It shall be the duty of the State board of Education of
the State of Idaho to appoint a State Board of Text Book Commis-
sioners, on or before the first day of April, 1907. Said board shall
consist of seven members, one of whom shall be the State Superinten-
dent of Public Instruction, who shall be ex-ofncio chairman of the said
board, and two of whom shall be practical business men. Any resi-
dent of the State of Idaho who has had not less than five years ex-
perience as a teacher, and who, at the time of receiving and holding
the appointment, shall be actually engaged in school work in the
State of Idaho, shall be eligible for appointment to membership of said
State Board of Text Book Commissioners as herein provided. The
term of office of said board shall be six years, and the State board of
Education of the State of Idaho is hereby empowered to fill any
vacancy that may arise in said board. Said board shall have power
to formulate rules for the government of its own proceedings, and
three members shall constitute a quorum: Provided, That the re-
strictions relating to the eligibility for appointment to membership
do not include the appointment of the two business men.
Historical: Laws 1907, 476, Sec. 1.
Meetings : When and Where Held.
Sec. 573. The said Board of Text Book Commissioners shall hold
its first meeting at the State capitol in the Senate chamber on or
before the fifteenth day of April, 1907, for the purpose of organi-
zation and the formation of terms of proposals and contracts for
the furnishing of text books to the State of Idaho. The second meet-
ing shall be held at the same place not later than the seventh day of
June, 1907, for the purpose of selecting and adopting a uniform series
of text books for use in all the public schools of the State, excepting
370 EDUCATION Tit. 4
as hereinafter provided. Any and all subsequent meetings of said
State Board of Text Book Commissioners shall be held at a time and
place designated by the State Superintendent of Public Instruction,
and said Superintendent of Public Instruction is hereby authorized
to call any such meeting, provided that such subsequent meeting shall
be called only in accordance with the formal written request of a ma-
jority of the members of the said State Board of Text Book Commis-
sioners. Such formal request shall set forth the purpose for which
such meetings shall be called.
Historical: Laws 1907, 476, Sec. 2.
Advertisement for Bids.
Sec. 574. Immediately following the first meeting of the State
Board of Text Book Commissioners, the State Superintendent of
Public Instruction shall, in accordance with the instructions of the
said board, advertise for at least thirty days in two newspapers
having a general circulation throughout the State, giving notice that
the said State Board of Text Books Commissioners will meet as herein
provided, and will consider said offers and proposals for supplying
the schools of the State of Idaho with a uniform series of text books
for use in all public schools of the 'State, excepting as hereinafter
provided, in the following branches, to-wit :
Spelling
Arithmetic
Physiology and Hygiene
Reading
Geography
United States History
Civil Government
Writing
Grammar
and in all other branches taught in common, graded and high schoools
of the State, as prescribed in the State Course of Study of the State
of Idaho. Said proposals shall be in accordance with the form of
proposal supplied by the State Board of Text Book Commissioners,
and shall name the exchange price, net wholesale price f. o. b. cars
at each publisher's address, and mailing price of single copies to
districts or individuals : Provided, That the price so quoted on such
books shall not exceed the lowest price quoted to any dealer, State
county, township, school district or any other individual or corpora-
tion in the United States.
Historical: laws 190 7, 476, Sec. 3.
Adoption of Text Books : Independent School Districts.
Sec. 575. It shall be the duty of said State Board of Text Book
Commissioners to meet at the time and place mentioned, and to care-
fully consider all proposals made to them in regular form for the
furnishing of the said text books as hereinbefore provided, and said
board shall select and adopt such text books for use in all the public
schools as will, in their judgment, best subserve the interests and
promote the progress of the public schools of the State. The series
of text books so selected and adopted by the said State Board of Text
Ch. 6. Art. 3. public schools — text books 371
Book Commissioners shall be certified to by the chairman, and said
certificate, with a copy of all books named therein, and the contracts
for the same, shall be placed on file in the office of the State Super-
intendent of Public Instruction. Such certificate must contain a com-
plete list of all books adopted by the said Board, giving the price for
which each kind and grade of books will be furnished, and the name
and address of the publisher agreeing to furnish the same. The said
books named in said certificate shall, for a period of six years from
and after the first day of September, 1907, be used in all the public
schools in the State, to the exclusion of all others as texts : Provided,
That in independent school districts in the State of Idaho, if it shall
appear to the board of trustees of such independent school district
or districts, that on account of special conditions existing in connec-
tion with the adopted course of study, or the special conditions of
the school work and school environment, the adoption of one or more
additional text books, or the adoption of some one or more text books
differing from the generally adopted list as provided elsewhere in this
article, shall be to the best interests of the educational work of such
independent school district, then said board of trustees of such in-
dependent school district may, by presenting their claim, or by ap-
pearing in person or through an officially chosen representative, before
the State Board of Text Book Commissioners, at a regularly called
meeting, secure consideration of said claim for such special adoption,
and may submit special information as may enable the State Board
of Text Book. Commissioners to reach a conclusion concerning the
merits of said claim for special adoption; and the State Board of
Text Book Commissioners is hereby authorized, if deemed advisable,
to make such special adoption for such independent school district
or districts : Provided, further, That in any and all such cases, the
decision of the State Board of Text Book Commissioners as to such
adoption shall be final, and that all text books adopted in accordance
with such decisions shall be used by such independent school district
for a period of six years from and after the first day of September,
1907, to the exclusion of all other school books as texts. It shall be
the duty of the Superintendent of Public Instruction to enforce the
use of said text books in all public schools of the State, and to with-
hold twenty-five per centum of the State school funds apportioned
to any school district neglecting or refusing to introduce and use
said books as hereinbefore provided.
Historical: Laws 1907, 476, Sec. 4.
Contracts for Books: Bond of Publishers.
Sec. 576. The said Board of Text Book Commissioners shall have
power to make such contracts and agreements with the publishers
as they shall deem necessary for the best interests of the public schools
of the State, and shall require all publishers, contracting and agreeing
to furnish books adopted by the said Commissioners, to furnish a good
and satisfactory bond in the amount of not less than twenty-five
hundred dollars, as a guarantee of the faithful performance of the
conditions of the said contract.
Historical: Laws 1907, 476, Sec. 5.
372 EDUCATION Tit. 4
Publishers to Furnish Lists of Books.
Sec. 577. It shall be the duty of book publishers furnishing books
to the State of Idaho under this article, to have printed and to keep
on hand at all times, free of charge, at the office of the county super-
intendent of public instruction in each county of the State of Idaho,
a sufficient number of lists of the text books, adopted by the said
Board, with the price of each of the said books as certified to in said
certificate ; and each county superintendent of public instruction shall
immediately forward one such list to each trustee and to each teacher
in his or her county.
Historical: Laws 1907, 476, Sec. 6.
Publishers to Keep Books on Hand.
Sec. 578. It shall be the duty of the book publishers furnishing
books to the State of Idaho under this article, to keep the books they
agree to furnish on hand at all times at their places of business, and
at such places in the State of Idaho as is hereinafter provided.
Historical: Laws 190 7, 476, Sec. 7.
Requisition for Books.
Sec. 579. Not later than the first Monday in August following the
adoption, and at such times thereafter as may be necessary to properly
supply the schools of said districts, the chairman of each of the boards
of trustees of the schools of each county which supply free text books,
shall forward to the county superintendent of his county a list of the
kinds of books, and the number of each kind, which shall be required
to supply the pupils of the schools of his district. Immediately upon
receipt of this requisition from the chairman of the board of trustees,
the county superintendent shall order, from the nearest depository
furnishing said books, the books designated therein, and upon delivery
of said books to the said trustee, the trustee shall cause to be issued,
in regular form, payable to the dealer who furnishes the books, a
warrant covering the value of said books as established by contract
existing between said publishers and the State Board of Text Book
Commissioners : Provided, That if from any cause the accounts are
not paid within ninety days, the same shall draw interest at the rate
of seven per centum per annum from the date of the shipment of
the books to the date of the payment.
Historical: Laws 1907, 476, Sec. 8.
Same: Account of Books Ordered.
Sec. 580. The clerk of each school district which supplies free text
books, and the county superintendent of public instruction, shall keep
an account of all books ordered, showing the number of the district,
the number of kinds of books, the date of the order, the place from
whence ordered, the date and the amount if the remittance, and such
other items as will, in their judgment, render the whole transaction
easily understood.
Historical: Laws 1907, 4 76, Sec. 9.
Custody and Distribution of Books.
Sec. 581. The clerk of the board of trustees is hereby made the
Ch. 6. Art. 4. PUBLIC schools — COUNTY superintendents
373
custodian of the text books belonging to the district, and he shall,
on the morning of the opening of the school, or prior thereto, count
out the number of the books belonging to the district, noting carefully
the condition of said books, and placing the same in the hands of the
teacher, taking a receipt for the same, and at the end of the term of
school the said clerk of the board of trustees shall receive the said
books from the teacher, giving his receipt for them, and any missing
or destroyed books shall be accounted for by the teached: Provided,
That the pupil shall be responsible, through his parent or guardian,
to the district, if the responsibility is fixed upon said pupil; and
Provided, further, That no one shall be responsible for the natural
wear and tear of the books. In the interim of the sessions of the
school, the clerk of the board of trustees shall safely keep the books
and use due diligence in their preservation.
Historical: Laws 1907, 476, Sec. 10.
Reserve Supply of Books.
See. 582. It shall be the duty of the book publishers furnishing
books to the State of Idaho under this article, to keep at all times
on deposit at Boise, Pocatello, Levriston and Coeur d' Alene, all in
the State of Idaho, a sufficient number of the books they contract to
furnish.
Historical: Laws 1907, 476, Sec. 11.
Expenses of Commissioners.
Sec. 583. The members of the said State Board of Text Book
Commissioners shall each receive his actual and necessary expenses,
including railway fare, while in the discharge of his official duties,
including the time actually and necessarily consumed in going to and
returning from the meeting of the Board. Such claim for expenses
shall be accompanied by vouchers, and upon being presented to the
Board in duplicate with vouchers attached, and being passed by the
same, the vouchers shall be signed by the secretary of the Board,
countersigned by the chairman and transferred to the State Auditor.
The State Auditor shall present such vouchers to the State Board of
Examiners, who, upon finding the same to be correct, shall issue
warrants upon the proper fund. Said fund is the "Idaho State Text
Book Commission Fund," of one thousand dollars, created and ap-
propriated by the act of March 14, 1907.
Historical: Laws 1907, 476, Sec. 12.
The concluding- clause is taken from
Section 13 of the act, which is other-
wise omitted as being- a specific ap-
propriation, but its effect is preserved
by the exception to the repeal, con-
tained in Section 17 of these Codes.
ARTICLE 4.
COUNTY SUPERINTENDENTS
Section
584. Election, residence and term of
office.
585. Oath, bond and qualifications.
586. Duties.
587. Office and supplies: Office days.
588. Repair of school property.
589. Records.
Section
590. Conduct of teachers' examina-
tions.
591. County teachers' certificates.
592. Same: Grades of certificates.
5 9 3. Certificates to normal and col-
lege graduates.
374
EDUCATION
Tit. 4
Section
594. Certificates not to be granted to
aliens.
5 9.">. Revocation of teachers' certifi-
cates.
59C. Record of certificates.
597. Annual report: Ascertainment
of district boundaries.
Section
5 9 3. Appointment of trustees for new
district.
599. Expenses of conducting examin-
alions.
600. Failure to report to State Super-
intendent: Penalty.
Note: The 1897 law referred to in the historical notes throughout this
article was enacted to meet the requirements of the amendment to
Const. Art. 18, Sec. 6, ratified November 3, 1906, which segregated the of-
fices of county superintendent and probate judge, which had theretofore
been filled by the same person. In other respects the 1897 law follows in
a general way the school law of 1893 (Laws 1893, 131, Sees. 10-18).
Election, Residence and Term of Office.
Sec. 584. There shall be elected in each county in the State of
Idaho, at the general election, a superintendent of public instruction,
who shall reside at the county seat of the county in which he is elected,
and who shall hold his office for a term of two years, from and after
his taking charge of the same, and until his successor has been elected
and qualified.
Historical: Laws 1899, 306, Sec. 1;
re-enacting Laws 1897, 79, Sec. 1,
omitting the first clause "at the next
ensuing general election," etc., and in-
serting "at the general election."
Oath, Bond and Qualifications.
Sec. 585. Before entering upon the duties of his office the county
superintendent of public instruction shall take and subscribe the oath
prescribed by law, and execute a bond, payable to the State of Idaho,
with two or more sureties to be approved by the board of county
commissioners, in the penal sum of not less than two thousand dollars,
conditioned upon the faithful performance of his official duties, and
the delivery of all moneys and property received by him as such
superintendent to his successor in office, which official bond, together
with his official oath, shall be filed in the office of the county recorder,
not later than the second Monday in January, next after election:
Provided, that no person shall be eligible to the office of county super-
intendent of public instruction except a first grade practical teacher
of not less than two years' experience in Idaho, one of which must
have been while holding a valid first grade certificate issued by a
county superintendent, and the holder of a first grade certificate at
the time of his election or appointment, nor unless twenty-five years
of age.
Historical: Laws 1897, 79, Sec. 2;
re-enacted Laws 1899, 306, Sec. 2;
amended Laws 1903, 284, Sec. 2, omit-
ting redundant repetition of the re-
quirement of filing the bond.. The
concluding paragraph of the original
section relating to a monthly meeting
of teachers is transferred to the fol-
lowing section to which it seemed
more germane.
Duties.
Sec. 586. The county superintendent of public instruction shall
have charge and oversight of the public schools of his county, and it
shall be his duty to visit every public school in his county at least
once during each term and remain at said public school at least one-
half day; at such visits he shall carefully observe the methods em-
ployed by the teacher in giving instruction to the several branches
Ch. 6. Art. 4. public schools — county superintendents
375
taught; the manner of discipline and government, the classification
of the pupils, and general management of the school, and shall give
the school such instruction and encouragement as he deems for the
best interests of all concerned, and he shall make such suggestions
to the teacher in private as, in his judgment, will render the said
teacher more efficient, and promote the general educational interests
of the district. It shall be his further duty to organize a monthly
meeting of the teachers of the schools under his supervision, for the
purpose of exchanging ideas of professional interest, for the study
of methods and for general culture.
Historical: Laws 1899, 30 6, Sec. 3;
re-enacting Laws 1897, 79, Sec. 3. The
last clause is taken from Section 2 of
the act as amended by Laws 1903,
284, Sec. 2, which otherwise consti-
tutes the preceding section of these
Codes.
Cross Reference: County superin-
tendent to report to probate judge all
cases of truancy, delinquency and in-
corrigibility: Sec. 8336d. To pass on
application for exemption of children
from requirements of compulsory edu-
cation: Sec. 8336. To furnish in-
formation for Commissioner of Immi-
gration: Sec. 1420. To bring action
against assessor for omitting names
from poll tax book: Sec. 1858.
Office and Supplies: Office Days.
Sec. 587. The county commissioners shall furnish the county su-
perintendent of public instruction an office in the county seat, and
they shall furnish him with all necessary office furniture, including
seal and blank books, stationery, postage, expressage, all blanks neces-
sary for his office, and all blank books and blanks necessary for the
use of the trustees and teachers in the discharge of their respective
official duties within his county. The county superintendent of public
instruction shall designate certain days in each month as his office
days, which shall not be less than five in any month, and upon these
days so designated by him, he shall keep his office open from nine
o'clock a. m. until five o'clock p. m.
Historical: Laws 18 9 9, 306, Sec. 4;
re-enacting Laws 1897, 79, Sec. 4.
Repair of School Property.
Sec. 588. He may, in his discretion, require the trustees in any
district to repair the school buildings or property, or to abate any
nuisance in and about the premises, if such repair or abatement can
be done for a sum not to exceed seventy-five dollars : Provided, There
is a sufficient amount of money in the treasury to the credit of the
district. He may also in all cases require the trustees to provide
suitable outhouses; and in case the trustees fail to make such pro-
vision within a reasonable time, he may cause it to be done, and draw
an order for a warrant, as hereinafter provided, upon the county
auditor for said expenses, who shall draw his warrant payable out
of any money to the credit of such district.
Historical: Laws 1899, 306. Sec. 5;
re-enacting Laws 1897, 79, Sec. 5.
Records.
Sec. 589. He shall keep a complete record of all his official acts;
preserve all blanks, maps, charts and apparatus, sent him as such
officer, and file all papers, reports and statements from teachers and
school boards ; keep a register of all teachers employed in his county,
376 EDUCATION Tit. 4
giving name of teacher, number of district, salary per month, grade
of certificate and date of superintendent's visit. He shall obey the
legal instructions of the State Superintendent.
Historical: Laws 1899, 306, Sec. 6;
re-enacting Laws 1897, 79, Sec. 6.
Conduct of Teachers' Examinations.
Sec. 590. He shall hold one regular public examination in each
year for the purpose of examining all persons who may offer them-
selves as teachers in the public schools; said examination to be held
in some suitable room at the county seat, and commencing on the
fourth Thursday of August and continuing not to exceed three days.
And for a like purpose the said county superintendent shall hold not
to exceed three special examinations at such times and places as in
his judgment the interests of the schools and teachers of the county
shall require ; Provided, That it shall be the duty of the county super-
intendent to give at least fifteen, days notice of such regular and
special public examinations in some newspaper published in the
county.
Historical: Laws 1899, 306, Sec. 7;
re-enacting Laws 1897, 79, Sec. 7.
County Teachers' Certificates.
Sec. 591. The county superintendent shall grant certificates, in
such form as the State Superintendent shall prescribe, to those persons
only who shall have attained the age of eighteen years, who have
attended the said public examination and shall be found to possess
good moral character, thorough scholarship, and ability to govern
and instruct the school; but no certificate shall be granted to any
person, except to applicants for primary certificates, who shall not
pass a satisfactory examination in orthography, reading, writing,
grammar, arithmetic, geography, history of the United States, civil
government, physiology and hygiene, with particular reference to
the effects of alcoholic drinks, stimulants and narcotics upon the
human system, theory and practice of teaching, State Constitution
and so much of the general school laws as relates to the duties and
responsibilities of teaching. Said certificates shall be signed by the
county superintendent and associate examiner or examiners, and no
person shall be considered a qualified teacher within the meaning of
the law, who has not a certificate granted by the said superintendent
or other lawful authority : Provided, That all examination questions
shall have been prepared as prescribed by law, furnished under the
seal of the State Superintendent, and opened before the applicants
for certificates on the day of examination : Provided, That first grade
certificates shall be granted to all applicants who are otherwise quali-
fied by law and who shall have passed in all the branches required
in this section, and algebra, general history and rhetoric in addition
thereto, with a general average of not less than ninety per cent, and
with a minimum of not less than seventy-five per cent in any branch;
and all applicants who are otherwise qualified according to law shall
be granted second grade certificates, who shall have attained an
average of eighty per cent and a minimum of not less than seventy
per cent ; and third grade certificates shall be granted to all applicants
Ch. 6. Art. 4. PUBLIC SCHOOLS — COUNTY SUPERINTENDENTS
377
who are otherwise qualified according to law, and who shall have
attained a general average of seventy-five per cent and a minimum
in any branch of not less than sixty per cent, but the holder of such
shall be ineligible to another certificate of the same grade : Provided,
That teachers holding valid second grade certificates with an average
of ninety per cent or above may take the additional branches and
receive a first grade certificate, and the county superintendent may
renew first grade certificates at their expiration so long as the teacher
is actually engaged in teaching: Provided, That primary certificates
shall be granted, to be good only in primary departments of graded
schools, which include the first four grades, and that examination
for such certificates shall be upon questions prepared by the State
Superintendent of Public Instruction: Provided, That each applicant
for a teacher's certificate, under the provisions of this article, shall
pay to the county superintendent the sum of one dollar, the same
to be deposited by him in the county treasury to the credit of the
institute fund, to be used in the institute work in addition to the
regular appropriation.
authenticate his official acts, and fur-
ther require him to prepare examina-
tion questions. They do not appear
in the enrolled bill in which this sec-
tion appears, but the words "under
the seal" are meaningless without
them.
Historical: Laws 1897, 79, Sec. 8;
re-enacted Laws 1899, 306, Sec. 8;
amended Laws 1901, 217, Sec. 1. The
words "of the State Superintendent"
after "seal" in the first proviso, are
inserted on the authority of Sections
556, 558, ante, which require the State
Superintendent to keep a seal and
Same : Grades of Certificates.
Sec. 592. The certificates issued by the county superintendent, sub-
ject to the rules and regulations prescribed by the State Superintend-
ent, shall be of four grades, valid in the counties in which they are
issued for the term hereinafter specified, unless sooner revoked:
1. First grade, five years from the date thereof.
2. Second grade, three years from the date thereof.
3. Primary grade, four years from the date thereof.
4. Third grade, one year from the date thereof: Provided, That
first grade, second grade and primary grade certificates shall be good
in any county in the State for the same period, by the holder thereof
filing a certified copy of the same with the county superintendent in
the county in which he desires to teach.
Historical: Laws 18 97, 79, Sec. 9;
re-enacted Laws 1899, 306, Sec. 9,
amended Laws 1901, 217, Sec. 2.
Certificates to Normal and College Graduates.
Sec. 593. The State Board of Education shall have power to au-
thorize the county superintendents to issue teachers' certificates to
graduates of State Normal Schools, and to graduates of any chartered
college or university having the right to grant degrees: Provided,
That applicants for certificates under the provisions of this section
shall have been successfully engaged in teaching not less than twenty-
seven months, and shall present to the State Board of Education a
certificate of graduation from a State Normal School, or a literary
degree from a chartered college or university. The State Board of
Education, or the county superintendents, may revoke any certificate
378 EDUCATION Tit. 4
issued under the provisions of this section whenever the holder of
such certificate shall prove himself incapable of teaching successfully
in any public school in the State of Idaho.
Historical: Laws 1907, 255, Sees.
1, 2.
Certificates Not to Be Granted to Aliens.
Sec. 594. No certificate shall be granted or teacher employed in
any of the public schools of this State to any person not a citizen of
the United States.
Historical: Laws 1899, 306, Sec. 17;
re-enacting Laws 1897, 79, Sec. 17.
Revocation of Teachers' Certificates.
Sec. 595. The county superintendent of public instruction shall
have power to revoke any teacher's certificate, other than those
granted by the State Superintendent, for neglect of duty, for incom-
petency to instruct and govern a school, for immorality or for any
cause or disqualification which would have been sufficient ground for
refusing to issue the same, had the cause existed or been known at
the time of its issue: Provided, That no certificate shall be revoked
or annulled without a personal hearing, unless the holder thereof
shall, after reasonable notice, neglect or refuse to appear before the
superintendent for that purpose.
Historical: Laws 1899, 3 06, Sec. 10;
re-enacting Laws 1897, 79, Sec. 10.
Record of Certificates.
Sec. 596. He shall keep a record of all certificates granted or re-
voked, showing to whom issued, age of grantee, date of issue, grade
and duration of each certificate, and if revoked, the date and reason
therefor.
Historical: Laws 1899, 306, Sec. 11;
re-enacting Laws 1897, 79, Sec. 11.
Annual Report : Ascertainment of District Boundaries.
Sec. 597. He shall, on or before the first day of October in each
year, make and transmit an annual report to the State Superintendent
for the school year ending August 31st, next preceding, which report
shall contain an abstract of all reports made to him by the district
clerks of the several districts of the county, together with such
statistics, items and statements, relative to the schools of the county,
as may be required and prescribed by the State Superintendent. Such
reports shall be made upon, and conform to, the blanks furnished
by the State Superintendent for that purpose. He shall inquire and
ascertain whether the boundaries of the school districts in his county
are definitely and plainly described in the records of the clerk of the
board of county commissioners, and keep in his office a full and
correct transcript of such boundaries. In case the boundaries of
districts are conflicting or incorrectly described, he shall report such
fact to the board of county commissioners at their regular meeting
in July, and such board shall immediately take such steps as are
necessary to change, harmonize and clearly define them. The county
Ch. 6. Art. 5. public schools — funds and finances
379
superintendent, if he deem it necessary for the guidance of school
census marshals, may order the description of the district boundaries
printed in pamphlet form, to be paid out of current expense fund of
the county.
Historical: Laws 1899, 306, Sec. 12;
re-enacting Laws 1897, 79, Sec. 12.
Appointment of Trustees for New District.
Sec. 598. The county superintendent shall appoint trustees for all
newly organized school districts, who shall serve until the next regu-
lar election, and shall fill all vacancies that may occur in the board of
trustees by reason of death, resignation or otherwise, and such ap-
pointment shall hold until the next regular election.
Historical: Laws 1899, 306, Sec. 13;
re-enacting Laws 1897, 79, Sec. 13.
Expenses of Conducting Examinations.
Sec. 599. The county superintendent shall be allowed all necessary
expenses incurred in the examination of teachers, for blanks, books,
stationery, pens, ink, and assistants, not to exceed two in number,
who shall receive as compensation four dollars per day, such expenses
to be paid out of the current expense fund of the county.
Historical: Laws 1897, 79, Sec. 14;
re-enacted Laws 1899, 306, Sec. 14;
amended Laws 1907, 323, Sec. 1.
Failure to Report to State Superintendent : Penalty.
Sec. 600. If the county superintendent fails to make a full and
correct report to the State Superintendent of Public Instruction of
all statements required by law to be made, he forfeits the sum of
one hundred dollars from any moneys due him from the county, and
the board of county commissioners are hereby authorized and re-
quired to deduct therefrom the sum aforesaid upon information from
the State Superintendent of Public Instruction, that such reports have
not been made.
Historical: Laws 1899, 306, Sec. 16;
re-enacting Laws 1897, 79, Sec. 16.
ARTICLE 5.
SCHOOL FUNDS AND FINANCES.
Section
601. Public school fund.
602. Additional school lands.
603. County school taxes.
G04. Distribution of school moneys.
605. Apportionment by county su-
perintendent.
606. Accounts of treasurer with
school districts.
607. Duties of county superintendent.
to draw school war-
Section
608. Auditor
rants.
Deficiency warrants.
Same: Superintendent to coun-
tersign orders.
Same: Issuance of warrant
Same: Presentment for pay-
ment.
Investment of surplus moneys.
6 09.
610.
611.
612.
613.
Public School Fund.
Sec. 601. The public school fund of the State shall consist of the
proceeds of such lands as have hitherto been granted, or may here-
after be granted, to the State by the general government known as
380
EDUCATION
Tit. 4
"school lands" and those granted in lieu of such. Lands acquired by
gift or grant from any person or corporation under any law or grant,
and of all other grants of land or money made to the State for general
educational purposes, and all moneys accruing to the State from the
estates of deceased persons.
Historical: Laws 189 9, 85, Sec. 27;
re-enacting Laws 1893, 187, Sec. 27.
Cross Reference: What constitutes
school fund: Const. Art. 9, Sec. 4.
Funds to remain intact: ib. Sec. 4.
Investment of funds: ib. Sec. 11.
Items ^payable to fund: License
money: Sec. 1837. Moneys of intes-
tate dying without heirs: Sec. 5702.
Money received from forest reserve:
Sec. 122. School money withheld
from non-complying districts: Sec.
606. Proceeds of property not
claimed by succession: Sec. 5717. Pro-
ceeds of sale of estrays: Sec. 1299.
Proceeds of sale of floating timber:
Sec. 8 71. Proceeds of sale of fire-
arms taken from Indians: Sec. 7218.
Proceeds of sale of property of lapsed
district: Sec. 620. Proceeds of sale of
roving stallions: Sec. 1287. Proceeds
of sale of trespassing animals: Sec.
12 9 7. Unclaimed bank deposits: Sec.
2997.
For fines and forfeitures payable in-
to school fund see cross reference
note to Sec. 603.
Additional School Lands.
Sec. 602. All lands, title to which is acquired by the State by fore-
closure or otherwise, on loans of school funds, and all lands which
escheat to the State by virtue of Section 5717 of these Codes or other-
wise, shall be held and treated as school lands, and may be sold and
disposed of in the same manner. Said lands shall be under the charge
and control of the State Land Board.
Historical: Laws 1899, 443, Sees.
1, 2.
County School Taxes.
Sec. 603. For the purpose of establishing and maintaining public
schools in the several counties of the State the board of county com-
missioners of each county shall, at the time of levying the taxes for
State and county purposes, levy a tax of not less than five mills nor
more than ten mills on each dollar of taxable property, in their re-
spective counties, for school purposes. Said taxes must be assessed
and collected in each county as other taxes for State and county pur-
poses. For the further support of the public schools there shall be
set apart by the county treasurer of each county and placed in the
county school fund all moneys arising from fines, forfeitures or
breaches of any of the public penal laws of the State.
Historical: Laws 189 9, 85, Sec. 28;
re-enacting Laws 1893, 187, Sec. 28.
Cross Reference: Fines and forfeit-
ures payable into school fund: In gen-
eral: Sec. 8440. Fine against assessor
for omitting names from poll tax
book: Sec. 1858. Fine against county
attorney for neglect to sue assessor:
Sec. 1817. Fines assessed against mine
owner: Sec. 205; against officers fail-
ing to make reports: Sec. 281; against
officers violating provisions governing
sale of pamphlet publications: Sec.
343b; against railroads for failing to
keep hides of animals killed: Sec.
2820; against recorder for failure to
properly record instruments: Sec.
z074, against Indians carrying arms:
Sec. 7217; for neglect of assessor: Sec.
1815; for neglect to deliver water:
Sec. 7149; for failure to send children
to school: Sec. 637; for permitting
stallions to run at large: Sec. 1285;
for usury: Sec. 1540; for violation of
optometry law: Sec. 1382 under mar-
riage license law: Sec. 2639; under
Sunday rest law: Sec. 6828.
Distribution of School Moneys.
Sec. 604. The income of the State school fund and taxes collected
by the State for the support of the public schools which shall be re-
Ch. 6. Art. 5. public schools — funds and finances 381
ceived up to the first day of January and the first day of July of each
year, shall be distributed semi-annually during said months respec-
tively in each year among the several counties of the State from which
reports have been received by the State Superintendent of Public
Instruction, as provided in this chapter, in proportion to the number
of children of school age, as shown by the last school census list of
each county, and the Superintendent of Public Instruction shall certify
such apportionment to the State Auditor, and upon such certificate
the Auditor shall draw his warrant in favor of the county treasurer
of each county, for the amount due such county. The Superintendent
shall also certify to the treasurer and superintendent of each county
the amount apportioned to each county.
Historical: Laws 1899, 85, Sec. 29; i Cross Reference: Reports to State
re-enacting- Laws 1893, 187, Sec. 29. Superintendent: Sec. 597.
Apportionment by County Superintendent.
Sec. 605. The county superintendent shall require of the county
treasurer quarterly each year, a report of the amount of money on
hand to the credit of the school fund of each county, not already
apportioned, and the county treasurer shall furnish such report when
so required. The county superintendent, upon receiving such report,
shall proceed to apportion the public school moneys, both county and
State, reported by the county treasurer to be in the county treasury,
among the several school districts in the following manner, to-wit:
One-third of the whole amount he shall divide equally among the
several districts that have complied with the provisions of this chap-
ter. The remaining two-thirds of said whole amount he shall appor-
tion per capita among the several districts in proportion to the number
of children in each district, as shown by the last report of the census
marshal of each district, and credit each district with the amount
to which the apportionment entitles it: Provided, That each district
is entitled to one share in the apportionment of the first one-third,
regardless of the number of children therein. Immediately after such
apportionment he shall certify to the county treasurer the amounts
which are to be placed to the credit of each district and notify the
clerk of each district of the amount placed to the credit of his district.
Historical: Laws 1899, 306, Sec. 15;
re-enacting Laws 1897, 79, Sec. 15.
Accounts of Treasurer With School Districts.
Sec. 606. It is hereby made the duty of the county treasurer of
each county to keep a separate account with each school district in
the county ; to place to the credit of each the amount of money certified
to by the county superintendent, as provided in this chapter, and to
pay over the money on legally drawn warrants or orders of the
district officers entitled to draw the same: Provided, That it shall
be the duty of the county superintendent whenever any board of
trustees fails to fully comply with the provisions of this chapter, or
any subsequent act, to notify the county treasurer in writing that
there has been a failure upon the part of such board of trustees to
comply with the law. Whereupon it shall be the dut/ of the county
treasurer to withhold all moneys apportioned to the district governed
by said board of trustees, until he shall have received notice from
382
EDUCATION
Tit. 4
the county superintendent that the board governing said district has
fully complied with the law. All moneys that shall be finally forfeited
by any district shall be put into the general school fund of the county
and be apportioned as other moneys. And it shall be the duty of
said treasurer to receive and hold, as special deposits, all moneys
belonging to the public school fund of his county, in accordance with
the provisions of this chapter, and to pay them over only on warrants
of the county auditor : Provided, further, That the said county treas-
urer shall pay over to the treasurer of any independent school district
organized under the provisions of this chapter, all moneys belonging
to such district, upon the presentation of an order from the clerk
of the board of trustees of such district, signed also by the chairman
thereof, and countersigned by the county superintendent and county
auditor.
Historical: Laws 18 93, 187, Sec. 31;
amended Laws 1897, 11, Sec. 1; re-
enacted Laws 1899, 85, Sec. 31;
amended Laws 1901, 217, Sec. 8
Duties of County Superintendent.
Sec. 607. It shall be the duty of the county superintendent in each
county to keep a separate account with each school district in his
county; to place to the credit of each district the amount apportioned
by him as provided for in this article ; to countersign all legally drawn
warrants and orders of the district officers entitled to draw the same ;
to enter the same upon his books in proper form, giving date, number
of such warrant or order, to whom drawn, for what purpose, and the
amount of the same. And further, it shall be the duty of the county
superintendent to collect, by process of law, all penal fines not paid
over by the justice of the peace, or other officers required by law
to pay the same into the county treasury; and the same may be col-
lected and recovered by action at law, in which the State of Idaho,
by the county superintendent, is plaintiff and the officer neglecting
or refusing to pay over said moneys is defendant.
Historical: Laws 1899, 85, Sec. 32;
re-enacting Laws 1893, 187, Sec. 32.
Auditor to Draw School Warrants.
Sec. 608. It shall be the duty of the county auditor, upon the
presentation of any order from the clerk of the board of trustees of
any school district in his county (said order also being signed by the
chairman of the said board of trustees, or, in his absence, by the
other members of the board), to draw his warrant upon the school
fund standing to the credit of the said district in favor of the person
mentioned in the said order: Provided, That in case of independent
school district orders, he shall not draw his warrant, but countersign
the warrant or order of said district officers : Provided, further, That
the said orders have been countersigned by the county superintendent,
but in no case shall he issue a warrant, or countersign an order, for
a greater amount than there is cash in the treasury to the credit of
said district, except as provided in the four following sections.
Historical: Laws 1899, 85, Sec. 33;
re-enacting Laws* 1893, 187, Sec. 33;
amended Laws 1897, 11, Sec. 2. The
concluding clause, "except as provided
in the four following sections," is in-
serted to harmonize this section with
Laws 1905, 93, contained in said sec-
tions.
Ch. 6. Art. 5. public schools — funds and finances
383
Deficiency Warrants.
Sec. 609. The trustees of any school district may issue orders for
warrants for the payment of teachers for their services in teaching,
and for other necessary expenses connected with the school, whether
or not there is any money in the treasury to the credit of the district
issuing such orders for warrants: Provided, That the total amount
of such orders for warrants shall not exceed the income and revenue
for such district for such year: Provided, further, That the total
amount of such orders for warrants shall not exceed ninety-five per
cent of the income and revenue for such district for such year, until
such income and revenue has been paid into the treasury to the credit
of the district issuing such orders for warrants.
Historical: Laws 1905, 93, Sec. 1.
Same: Superintendent to Countersign Orders.
Sec. 610. It shall be the duty of the county superintendent of the
county in which such orders for warrants are issued to countersign
all such legally drawn orders for warrants when presented to him
for his signature.
Historical: Laws 1905, 93, Sec. 2.
Same: Issuance of Warrant.
Sec. 611. On the presentation of an order for a warrant properly
countersigned by the county superintendent, the county auditor shall
issue a county warrant for the same as provided by law.
Historical: Laws 1905, 93, Sec. 3.
Same: Presentment for Payment.
Sec. 612. The person holding such warrant issued by the county
auditor may present the same to the county treasurer for payment.
And if there is not money in the treasury to the credit of the said
district on which the warrant is drawn to pay such warrant the
treasurer shall indorse on the back of said warrant, "Not paid for
want of funds." Warrants so indorsed by the county treasurer shall
draw interest at the rate of seven per cent per annum from the date
of indorsement until paid.
warrants are required to be registered,
when drawn, by Section 2056.
Historical: Laws 1905, 93, Sec. 4.
This section contains no provision for
registration of the warrant, but all
Investment of Surplus Moneys.
Sec. 613. Whenever there shall have accumulated in the hands of
the treasurer of any school district in the State, moneys belonging to
said school district to an amount in excess of the amount which, in
the opinion of the school district board of said district, shall be neces-
sary for the necessary current expenses of maintaining the schools
in said district, the same shall be invested by said board in United
States bonds, State bonds, State warrants or county warrants, when
the market value thereof is not below par. And said board shall
deposit said securities in some safe deposit, and they shall there be
kept until it shall become necessary to convert the same into money
for school district purposes, to be determined by said board.
Historical: Laws 1899, 85, Sec. 86;
re-enacting Laws 1890-91, 186, Sec. 1.
384
EDUCATION
Tit. 4
ARTICLE 6.
SCHOOL DISTRICTS.
Section
614. School districts are corporations.
615. New districts and changes in
616.
boundaries.
Notice of proposed changes.
Section
617. Action on petition.
618. Joint districts: How formed.
619. Apportionment for new districts.
620. Lapsed districts.
School Districts Are Corporations.
Sec. 614. Each regularly organized school district in this State is
hereby declared to be a body corporate by the name and style of
"School District Number .... in the County of , State of
Idaho"; and in that name the trustees may sue and be sued, hold
and convey property for the use and benefit of such district, and make
contracts the same as municipal corporations in this State.
Historical: Laws 18 99, 85, Sec. 34;
re-enacting- Laws 1893, 187, Sec. 34.
Sufficiency of Contract: A contract
between a teacher and a school dis-
trict wherein E. is designated as the
party of the first part, and "the board
of trustees of school district No. 8,"
etc., is designated as the party of the
second part, and the contract is signed
by E. and the individual members of
the school board whose names are
followed by the further description:
"The board of trustees of School Dis-
trict No. 8, in and for the County of
Shoshone, State of Idaho," is a suf-
ficient compliance with this section to
constitute such agreement, the con-
tract of the school district and en-
forceable as such. Ewin v. Independ-
ent School District No. 8 (1904) 10
Ida. 102; 77 Pac. 222.
New Districts and Changes in Boundaries.
Sec. 615. The board of county commissioners of the several coun-
ties of the State shall have power to create new districts from organ-
ized territory or from old districts, to change the boundaries of any
district heretofore established, or to attach to one or more districts
the territory included within the boundaries of any district which
shall lapse by reason of failure to comply with the provisions of this
chapter : Provided, That no district shall be formed from any terri-
tory, nor the boundaries of any district be changed, at any other time
than at the regular April meetings of the board; nor at any time
unless a petition for such new district or the change of boundaries
is filed in the office of the county superintendent on or before the
fifteenth day of the month preceding : Provided, further, That in no
instance shall the changing of the boundaries of any organized district
take effect until after the close of school in that district for that school
year. If such petition is for a new district, it must set forth the
boundaries of the new district asked for, and must be signed by the
parents or guardians of at least ten children of school age who are
residents of the proposed new district, and, if for a change of bound-
aries, such petition must set forth the change of the boundaries
desired, and the reason for the same, and must be signed by at least
two-thirds of those who are heads of families and residents of the
district or districts whose boundaries are in question: Provided,
further, That two or more districts lying contiguous, may, upon peti-
tion of a majority of the heads of families residing in each of the
said districts, be united to constitute one district: Provided, also,
That no district shall be divided for the purpose of forming a new
district unless it contains an area of more than nine square miles,
except on the approval of the county superintendent of schools and
Ch. 6. Art. 6
PUBLIC SCHOOLS — DISTRICTS
385
by the unanimous vote of the board of county commissioners, nor
shall a new district be divided if, by so doing, the remainder of the
district shall be found to contain less than fifteen persons of school
age; nor shall incorporated cities or towns hereafter be divided into
two or more districts : Provided, further, That when it shall appear
that a pupil living in one district cannot attend school in his or her
own district because of the distance of the school house, or for any
other valid reason, such pupil may attend the school in any district
in the county in which his or her own district is situated, upon making
the proper application to the county superintendent, which official
shall be the judge of the necessity for making such change, and that
district shall receive, for such pupil's tuition from such pupil's district,
such an amount as the said pupil would be accredited with in his or
her own district.
Historical: Laws 1893, 187, Sec. 35;
amended Laws 1895, 156, Sec. 1; re-
enacted Laws 1899, 85, Sec. 35;
amended Laws 1901, 217, Sec. 5;
amended Laws 1905, 218, Sec. 1;
amended Laws 1907, 16, Sec. 1.
Notice of Proposed Changes.
Sec. 616. It shall be the duty of the county superintendent, upon
receipt of any petition as herein provided for, to immediately give
notice to all parties interested, by sending notice by registered mail
to each of the trustees of the district to be affected by such change
or changes; and by causing printed notices to be posted in at least
three public places in the districts so affected, one of which shall be
on the door of the school house in said district, for at least one week.
Such notice must state the change or changes to be made in said
district, that the said petition is on file in the office of the county
superintendent, and that the same will be presented to the board of
county commissioners at its next regular meeting for final action.
The superintendent must transmit the said petition to the said board
with his approval or disapproval, and, if he approve the same, he
may note such changes in boundaries as in his judgment shall be for
the best interests of all parties concerned.
Historical: Laws 1899, 85, Sec. 36;
re-enacting Laws 1893, 187, Sec. 36;
amended Laws 1895, 156, Sec. 2.
Action on Petition.
Sec. 617. The board of county commissioners must, at its next
regular meeting, act upon the same. If such petition be granted it
may be in accordance with the original prayer or with such modifica-
tions as the board may choose to make.
Historical: Laws 1899, 85, Sec. 37;
re-enacting Laws 1893, 187, Sec. 37;
amended Laws 1895, 156, Sec. 3. "The
Joint Districts : How Formed.
Sec. 618. A joint school district may be formed from territory be-
longing to two or more contiguous counties. For the purpose of
organizing a joint district the same preliminary steps must be taken
and the same course be pursued, as is pursued in the organization
of other districts, as provided in Sections 615 and 616. Such district
shall be designated as "Joint District No of the Counties
board" inserted for "it" in the last line
to express the sense.
386 EDUCATION Tit. 4
of ," and be so numbered that it shall have the same
number in all the counties from which it was formed. The petition
required by Section 615 shall be made to each county superintendent
interested: Provided, That the school census, the record of attend-
ance at school, the assessing of property, the collection of taxes, and
all acts which, from their nature, shall be separately kept, shall be
kept and done, and the report thereof made, as if each portion of
said joint district were an entire district in the respective counties.
The teacher of such joint district shall not be required to hold a
certificate in both counties.
Historical: Laws 1899, 85, Sec. 38;
re-enacting- Laws 1893, 187, Sec. 38.
Apportionment for New Districts.
Sec. 619. All new districts formed of unorganized territory shall
be entitled to their just proportion of school moneys at the next ap-
portionment and the county superintendent shall place the same to
the credit of such district: Provided, That in no case shall such dis-
trict be entitled to use the same unless school has actually been
commenced therein, and six months shall not have elapsed since the
date of its organization: Provided, further, If any new district is
organized from any part of any other organized district or districts,
as provided in this chapter, the county superintendent, after having
ascertained the amount of moneys belonging to said old district or
districts and deducting said indebtedness and liabilities, must appor-
tion to said new district its due per capita proportion of money or
indebtedness, as the case may be, from said districts from which it
may be formed. And in case of joint districts the county superin-
tendent must apportion to such district such proportion of the school
money to which such district is entitled, as the number of school
children residing in that portion of the district situated in his county
bears to the whole number of school census children in the whole
district.
Historical: Laws 1899, 85, Sec. 39;
re-enacting Laws 1893, 187, Sec. 139.
Lapsed Districts.
Sec. 620. If any school district shall, for the period of one year,
fail to maintain a school for at least four school months, or keep up
its organization of officers as, is required by law, or if there has
been an average attendance for three consecutive months of only five
pupils or less, such district shall lapse, and the money in the treasury
of the county belonging thereto shall be apportioned by the county
superintendent among the other districts in the same manner as other
moneys are apportioned. The property of any school district that
shall lapse shall be sold by the county superintendent in such manner
as he shall deem best. The proceeds of such sale, after the payment
of any indebtedness of said district, shall be placed to the credit of the
general school fund. The territory included within the boundaries
of the said school district shall, by order of the county commissioners,
be attached to one or more school districts. The board of trustees
shall, if necessary, levy a special tax upon all property in the district,
which when added to moneys apportioned by the county superinten-
Ch. 6. Art. 7.
PUB'IC SCHOOLS — TRUSTEES
387
dent of schools, will be sufficient to provide funds for the maintenance
of the school for five months in the year. The taxes so levied are and
shall be a lien upon property taxed, the same as other taxes, and
shall be collected in the same manner.
Historical: Laws 1893, 187, Sec. 40;
re-enacted Laws 1899, 85, Sec. 40;
amended Laws 1901, 217, Sec. 4.
ARTICLE 7.
DISTRICT TRUSTEES.
Section
621. Constitution of board of trus-
tees.
Election of trustees: Voting
special taxes.
Assessment and collection of tax.
Regular meetings of board.
622.
623.
624.
Section
625. General duties of trustees.
Trustees must qualify: To pro-
vide flag.
Attendance of non-resident pu-
pils.
Report of trustees.
626.
627.
628.
Constitution of Board of Trustees.
Sec. 621. The board of trustees of each school district consists of
three members, one of whom shall be elected at each regular school
election, for the term of three years, so that but one trustee shall
retire in any year. Immediately after their election, they must elect
from their number a chairman and a clerk.
Historical:. Laws 1899, 85, Sec. 41;
re-enacting Laws 1893, 187, Sec. 41.
Re-written so as to omit the provision
for the first election "following the
passage of this (the original) act."
Election of Trustees: Voting Special Taxes.
Sec. 622. The regular election for electing members of the board
of school trustees shall be held annually in each district on the first
Monday in June, at which time it shall be lawful to transact any
business pertaining to schools and school interests. The clerk of
said board of trustees shall cause printed or written notices to be
posted, specifying the time and place of holding such election and
the time during which the ballot box shall be kept open not less,
however, than three hours, and further specifying at what hour
other business shall be transacted. Said notices shall be posted in
three public places in the district, one of which shall be the school
house, if there be one, at least ten days previous to such time of
election. If the clerk fail to give such notice, then any two legal
voters residing in the district may give such notice over their own
names, and such election may be held after the day fixed in this
section, for such election. All elections shall be by ballot; the polls
shall be opened by one of the board of trustees, or by any qualified
elector if no trustee be present at the time specified in the notice.
If no time is specified in the notice, then the polls shall be opened
at one o'clock p. m. and closed at five o'clock p. m. of the same day.
Said election shall be conducted as any other county elections, except
that one judge and one clerk may constitute a board of election, and
any trustee may administer the oath to said judge and clerk. Said
judge and clerk shall make return of such election to the county
superintendent immediately, which return shall be filed in the office
of the county superintendent: Provided, further, That it shall be
388
EDUCATION
Tit. 4
lawful at such annual meeting and election on said first Monday in
June, to vote upon the question of whether or not any special tax
shall be levied for any purpose, such as building or repairing school
houses, or for the support of public schools in the district. Said
meeting may first decide the rate to be levied, not to exceed fifteen
mills on the dollar of taxable property, then proceed to ballot, on
which ballot shall be written or printed, "Tax Yes" or "Tax No",
and none but actual resident freeholders or heads of families of said
districts shall vote at such election. A separate ballot box shall be
used for voting on any question of taxation or other business con-
cerning schools and school interests from that used in voting for
trustees. If a majority of the votes polled at such election are in
favor of a tax, the board of trustees must immediately make such
levy and certify the fact, the date thereof and the rate of tax levied,
the year for which levied, and the number of the district, to the
clerk of the board of county commissioners and the county assessor,
but not more than one such special tax can be levied in any one year.
the 1907 amendment as unconstitu-
tional on the ground of insufficiency of
title, thus leaving the 1903 amend-
ment in force. The title to the 1907
amendment is obviously defective in
that it does not properly indicate the
section proposed to be amended, and
while as a rule the Commissioner has
not attempted to pass independently
on the constitutionalty of the various
sections of the Codes, the defect in
this case is so obvious, and the con-
sequences of retaining the obnoxious
amendment so grave, as to require a
departure from the usual rule.
Historical: Laws 1893, 187, Sec. 42
re-enacted Laws 1899, 85, Sec. 42
amended Laws 1901, 217, Sec. 7
amended Laws 1903, 430, Sec. 1. A
purported amendment is found on
page 343 of Laws 1907. Such amend-
ment, however, omitted, doubtless
through inadvertence, the provision
authorizing school districts to levy spe-
cial taxes. This oversight was of such
a serious nature as to induce the Com-
missioner to critically examine the
1907 law and as a result of such ex-
amination, together with the advice of
the Attorney General's office, to omit
Assessment and Collection of Tax.
Sec. 623. Upon receiving such statement from the trustees of any
school district the assessor must assess upon all property in the dis-
trict subject to taxation the tax so levied and certified to him as
aforesaid ; but for that purpose he is not required to take new state-
ments from the owners of property, but his assessment of all special
taxes so levied may be computed and made upon the valuation of
property as fixed by the board of equalization for State and county
purposes, and as appears upon the assessment roll in the same year;
said special taxes so levied as aforesaid shall become a lien upon the
property so assessed from the date of assessment, and shall be due
and payable at the same time as State and county taxes, and in all
respects are to be collected in the same way, except that the assessor
must keep a separate list or assessment roll thereof, and when paid
must be named in his receipt to the taxpayer as a separate item, and
he must pay them to the county treasurer as he pays other taxes;
but at the time of payment he must specify to the treasurer what
taxes they are, and take a separate receipt therefor and keep separate
accounts thereof. The board of county commissioners shall furnish
the assessor with such blanks as are needed to comply with the pro-
visions hereof. The provisions of this and the preceding sections for
the levy and collection of taxes shall not apply to independent
districts now established, which have special laws for the collection
of school taxes.
Ch. 6. Art. 7. public schools — trustees 389
Historical: Laws 1899, 85, Sec. 43;
re-enacting- Laws 1893, 187, Sec. 43.
Omitting the clause alowing the as-
sessor a commission for collecting the
tax which is repealed by Laws 1899,
405, placing county officers on salaries
Regular Meetings of Board.
Sec. 624. The regular meetings of the board of trustees shall be
held on the last Saturday of March, June, September and December.
The board may, however, hold other special or adjourned meetings,
as they may from time to time determine.
Historical: Laws 1899, 85, Sec. 44;
re-enacting Laws 1893, 187, Sec. 44.
General Duties of Trustees.
Sec. 625. It shall be the duty of the trustees of each district to
employ teachers on written contract, but before such contract can
be legally signed it shall be the duty of the teacher to exhibit his or
her certificate to the board of trustees, and it shall be the duty of
1he trustees 1,0 file a copy of such contract with the county superin-
tendent; to fix, allow and order paid the salaries and compensation
of such teachers, and to discharge the same , to fix the compensation
of the clerk of the board, and to determine the rate of tuition of
non-resident pupils: Provided, That any pupil or pupils of the
eighth grade or of high school qualifications of any district, shall be
eligible to attend any high school within his county without paying
tuition, but the county superintendent shall transfer from the dis-
trict to which said pupil or pupils belong, to the district holding the
high school attended, a sum of money bearing the same proportion
to the amount of money received by the district during the year, as
said pupil or pupils bear to the total school census of the district in
which said pupil or pupils belong. The trustees shall have power
to discharge any teacher for neglect of duty, or for any cause that,
in their opinion, renders the services of such teacher unprofitable to
the district; but no teacher shall be discharged before the end of his
or her term without a reasonable hearing. The trustees may not con-
tract to compel teachers to make up time while attending any annual
county or joint institute. Any two of such trustees shall constitute
a quorum for the transaction of business.
The trustees shall have charge of all school property in their dis-
trict and shall have the power to receive in trust all real estate or
other property conveyed to said school district; and to convey by
deed, duly executed and delivered, all the estate or interest of their
district in any school house or site directed to be sold by vote of their
district. All conveyances made to said board must be made in their
corporate name, to-wit : "To trustees of School District No
County State of Idaho." Said trustees have further
power, when directed by a vote of their district, to build or remove
school houses, to purchase, receive, hold and convey real and per-
sonal property for school purposes, and to hold, purchase and repair
school houses and to supply the same with necessary furniture and
to fix the location of school houses: Provided, That a school house
already built shall not be removed, nor a new site for a school house
be designated, except when directed by a two-thirds vote of the elec-
tors of said district at an election held for that purpose, which elec-
tion may be a special or general school election: Provided, That no
390 EDUCATION Tit. 4
trustee shall be pecuniarily interested in any contract made by the
board of trustees, of which he is a member, and any contract made in
violation of this section is null and void.
The trustees of the respective districts must furnish all things,
not herein provided for, necessary for the comfort and use of their
district, such as janitor service, fuel, improvements, maps and appa-
ratus, and library, and for such purpose may audit and allow ac-
counts against the school fund of their district, not to exceed twenty-
five per cent of the amount of such school fund in any one year.
At least three per cent of the moneys annually appropriated to
any district shall be applied by the trustees for the maintenance of
a school library, selections of books for which shall be made from a
list of books furnished to each district and compiled by the State
Board of Education. The board of trustees shall keep the library in
a suitable case at the school house; shall keep a list of all books in
the library; loan the books to pupils and patrons within the district
for a period not to exceed four weeks at any one time ; hold patrons,
parents or guardians to strict accountability for books loaned, re-
quiring them to replace the same in event of loss, or spoliation; re-
port to the county superintendent the number of books purchased
during the year, the number of books lost and other information re-
quired by the county superintendent, and for the further good of the
library shall make all needed rules and regulations: Provided iur-
ther, That the trustees shall not draw an order for a warrant in
excess of the amount to the credit of the district at the time the
order is given.
It shall be the duty of the clerk of the board of trustees of each
district to keep a record of the transactions of his district in a book
furnished by the county superintendent, the form of which shall be
prescribed by the State Superintendent; said record so kept must
show all the data and information required in said books to be shown
by the forms thereof; and the trustees of each district must make a
full report in writing annually, on the first day of September, to the
county superintendent of their county, on blanks furnished, which
shall be exact copies of the pages of the book herein required to be
kept, together with such matters pertaining to schools as may be
required of them by the State Superintendent.
It is the duty of the trustees of the respective districts, on re-
ceiving a report from any teacher of the disorderly conduct of any
pupil, to decide how said insubordinate pupil shall be punished, or
whether he or she shall be dismissed from school, and the teacher
must enforce the decision so made.
The clerk of the board of trustees must, on the first Tuesday of
September of each year, proceed to enumerate the children of school
age in his district, and he must not enumerate any except bona fide
residents thereof, and the board of trustees must cause a true and
certified copy of said census to be transmitted to the county super-
intendent. School age, as herein used, is defined as applying to all
persons between the ages of six and twenty-one years. For said
services said clerk shall be allowed, as full compensation therefor,
five cents for each child so enumerated, and the chairman of the
board of trustees shall draw his order upon the county auditor, which
Ch. 6. Art. 7.
PUBLIC SCHOOLS — TRUSTEES
391
must be countersigned by at least one other member of the board of
said district, for the amount so allowed, and it must be charged
against and paid out of the fund of said district.
Historical: Laws 1893, 187, Sec. 45
re-enacted Laws 18 9 9, 85, Sec. 45
amended Laws 1901, 217, Sec. 6
amended Laws 1903, 285, Sec. 1
amended Laws 1907, 341, Sec. 1.
Cross Reference: Establishment of
and tax for libraries: Sec. 676. Trus-
tees to provide fire escapes for school
buildings over two stories in height:
Sec. 1552. To report to the county-
superintendent all cases of truancy,
delinquency and incorrigibility: Sec.
8336d.
Removal of Teacher: Before a
teacher of an ordinary school district
can be removed by the trustees, he
must be given notice and an oppor-
tunity to be heard in his defense
Ewin v. Independent School District
No. 8 (1904) 10 Ida. 102; 77 Pac. 222.
Prohibited Contracts:. A School
trustee is pecuniarily interested in a
contract whereby his wife is employed
by the board of trustees to teach the
school, and such contract is null and
void. Nuckols v. Lyle (1902) 8 Ida.
589; 70 Pac. 401.
Trustees Must Qualify: To Provide Flag.
Sec. 626. Trustees must qualify within fifteen days after receiving
notice of their election by taking the official oath, which oath may be
administered by either of the other trustees or retiring trustee, and
such oath shall be subscribed and filed in the office of the county
superintendent.
It shall be the duty of the trustees of every school district in the
State of Idaho to cause to be erected, and to keep in repair, upon all
public school houses, or within the school house grounds surrounding
such public school building, which may be in their respective school
district, a good and sufficient flag staff or pole, together with all neces-
sary adjustments, and they shall provide a United States flag of not
less than four by eight feet in size, which shall be floated from such
flag staff or pole during the school hours of such days as the trus-
tees and teacher may determine: Provided, That the flag shall not
be hoisted on any school building during any day when a violent
storm or inclement weather would destroy or materially injure such
flag. The flag used by any and all such school districts, as provided
for in this section, shall be paid for out of the current expense fund
of said district. The flags for use of public school buildings are
hereby declared to be necessary supplies and are to be so paid for out
of the aforesaid fund Anv person or persons who shall wilfully
injure, deface, or destroy any flag, flag staff or pole, or adjustment
attached thereto, erected and arranged for the purpose of carrying
out the requirements of this section, shall be deemed guilty of a
misdemeanor, and upon conviction shall be fined not less than five
dollars, nor more than fifteen dollars.
Historical: Laws 1893. 187, Sec. 46;
re-enacted Laws 1899, 85, Sec. 46;
amended Laws 1903, 285, Sec. 2.
Attendance of Non-Resident Pupils.
Sec. 627. Trustees may determine whether pupils outside of their
counties may attend school within their districts and upon what
terms.
Historical: Laws 1893, 18 7, Sec. 66;
if-onacted Laws 1899, 85, Sec. 66:
amended Laws 1907, 16, Sec. 2.
392
EDUCATION
Tit. 4
Report of Trustees.
Sec. 628. It is the duty of the board of school trustees to make a
report in writing, on the first Monday in June, of the financial con-
dition of their respective school districts, showing the amount of
money received, from what source, the amount expended, and in
What manner and for what purposes expended, and the amount of
money in the treasury of the district, or to the credit of the district
on hand at the date of the report, the said report to fully show the
financial condition of the district at the date thereof. It is hereby
made the duty of the board of school trustees of each district to
cause the said report to be published in a newspaper, or posted in
three conspicuous places in the district, and to retain a copy of the
said report in the office of the clerk of the school board of said dis-
trict, where the same may be at all times open to examination and
inspection by any person.
Historical: Laws 1905, 319, Sees.
1, 2.
ARTICLE 8.
TEACUKRS.
Section
62 9 Register and report of teachers.
630, General duties of teachers: Sus-
pension of pupils.
Section
631. Teacher must have certificate.
Register and Report of Teachers,
Sec. 629. Teachers of the public schools must be furnished with
a school register by the trustees of the district, for the purpose of reg-
istering the names of their pupils, and their daily attendance at
schools, and at the close of the term said register must be delivered
to the clerk of the board of trustees of the district. The teacher
must also be furnished with a blank report by said trustees, which
report said teacher must fill up according to the heading of the same,
and transmit it to the county superintendent of the county at the
close of the term,, and no teacher shall be allowed an order in excess
of ninety per cent of his or her salary until said report is so made
out and transmitted.
Historical: Laws 1899, 85, Sec. 47;
re-enacting Laws 1893, 187, Sec. 47;
amended Laws 1895, 31, Sec. 1.
General Duties of Teachers : Suspension of Pupils.
Sec. 630. Every teacher in the public schools may suspend, for
good cause, any pupil, and report such suspension to the board of
trustees for review^ If the action of the teacher is sustained by the
board, the pupil may be censured and returned to the school or ex-
pelled from school, as in the judgment of the board seems proper;
but if not sustained, the teacher may appeal to the county superin-
tendent, whose decision shall be final.
Every teacher shall make reports, in addition to those mentioned
elsewhere in this chapter, which may be required by the State Super-
intendent, county superintendent, or by the school district board of
trustees; shall use the text books provided for the schools of the
Ch. 6. Art. 9. public schools — compulsory education
393
State; enforce the course of study and the rules and regulations pre-
scribed by the State Superintendent; hold pupils to a strict account
for disorderly conduct or improper language in or about the build-
ing, on the play grounds, and on the way to and from school; shall
keep himself or herself above reproach, and endeavor to impress
upon the minds of the pupils the principles of truth, justice, morality,
patriotism and refinement, and to avoid idleness, falsehood, profan-
ity, vulgarity, and intemperance; give attention during every school
term to the cultivation of manners, and shall, if there be a library
in the school, devote not less than one hour in each week to systemat-
ically reviewing the works contained therein.
Historical: Laws 1893, 187, Sec. 48;
re-enacted Laws 1899, 85, Sec. 48;
amended Laws 1899, 337, Sec. 1;
amended Laws 1901, 215, Sec. 1.
Teacher Must Have Certificate.
Sec. 631. No teacher shall be entitled to, or receive, any compen-
sation for the time he or she teaches in any public school without a
certificate valid or in force for such time in the county where such
school is taught, except that if a teacher's certificate shall expire by
its own limitation within six weeks of the close of the term, such
teacher may finish such term without re-examination or renewal of
his or her certificate.
Historical: Laws 1899, 85, Sec. 49;
re-enacting- Laws 1893, 187, Sec. 49.
ARTICLE 9.
COMPULSORY EDUCATION.
Section
6 35. Refusal to comply with demand.
6 36. Same: Penalty.
637. Same: Disposition of fine.
Section
632. Compulsory attendance on dis-
trict schools.
633. Same: At government free
schools.
634. Demand for attendance of chil-
dren.
Note: The sections of this article from 633 to 637 inclusive, relating to
compulsory attendance at government free schools, were enacted in 1901
with particular reference to a school established by the government on the
then Lemhi Indian Reservation, which has since been abandoned. Conse-
quently those sections have no present value or effect, but in view of their
C-neral language and theoretical application to any school complying
with the conditions therein named, thi> Commissioner felt that he had no
authority to omit them. It should be remembered, however, that the com-
pulsory school law as practically administered is found in the first section
>i this article, and in Sec. 8336 of the Penal Code, and not in these Sees.
633 to 637.
Compulsory Attendance on District Schools.
Sec. 632. Every parent, guardian or other person in the State of
Idaho, having control of a child or children between the ages of
eight and fourteen years, shall be required to send such child or
children to a public school for a period of twelve weeks in each school
year, at least eight weeks of which shall be consecutive, unless such
child or children are excused from such attendance by the board of
school trustees of the school district in which such parents or guar-
dians reside, upon it being shown to their satisfaction that the bodily
or mental condition of such children has been such as to prevent his,
her or their attendance at school, or application at study for the period
394 EDUCATION Tit. 4
required, or that such child or children are taught in a private school
or at home, in such branches as are usually taught in a primary
school, or have already acquired the ordinary branches of learning
taught in the public schools: Provided, In case a public school shall
not be taught for a period of twelve weeks, during the year, within
three miles by the nearest traveled road of the residence of any such
parent or guardian within the school district, he or she shall not be
liable to the provisions of this article.
First. It shall be the duty of the board of school trustees of each
district in this State, on or before the first Monday in September in
each year, to furnish the principal in each public school in such dis-
trict with a list of all the children in the school district between the
ages of eight and fourteen years, said list to be taken from the report
of the school census marshal. Any board of trustees failing to com-
ply with this provision shall be liable to a fine of not less than five
dollars nor more than ten dollars for a first offense, and not less than
ten dollars nor more than thirty dollars for a second offense.
At the beginning of each school month thereafter it shall be the
duty of the principal of each school in such district to report, to the
board of trustees and to the county superintendent, the names of all
children between the ages of eight and fourteen who failed to attend
school during the previous school month. It shall be the duty of the
county superintendent to refuse to countersign the teachers' war-
rants until such reports are made as herein provided. When it shall
appear, at the expiration of three school months, to the board of
trustees, that any parent, guardian or other person having charge or
control of any child or children, shall have failed to comply with the
provisions of this section, the board shall cause demand to be made
upon such parent, guardian or other person, for the amount of the
penalty hereinafter provided, and if such parent, guardian or other
person shall neglect or refuse to pay the same within five days after
the making of such demand, the board shall commence proceedings in
the name of the school district for the recovery of the fine hereinafter
provided, before any court having jurisdiction : Provided, That noth-
ing in this subdivision shall apply to any child or children, who are
actually and necessarily compelled to labor for the support of a
parent or parents.
Second. Any parent, guardian or other person having control or
charge of any child or children, failing to comply with the provisions
of this section, shall be liable to a fine of not less than five dollars,
nor more than twenty-five dollars, for the first offense, nor less than
ten dollars nor more than fifty dollars for the second and each sub-
sequent offense, besides the cost of collection.
Third. All fines collected under the provisions of this section
shall be paid into the county treasury, the same to be placed to the
credit of the school district collecting the same.
Fourth. The board of school trustees in each district shall cause
to be posted annually, in three public places in the district, notices
of the requirements and penalties of this law.
Historical: Laws 18 99, 85, Sec. 50,
re-enacting Laws 1893, 187, Sec. 50;
subdivision first amended Laws 1903,
295, Sec. 3.
Cross Reference: Legislature may
require attendance at school for a
time equivalent to three years be-
tween the ages of six and eighteen:
Ch. 6. Art. 9. PUBLIC schools — COMPULSORY education 395
Const. Art. 9, Sec. 9. Provisions of compulsory attendance of children on
the delinquent child law relative to I schools: Sec. 8336.
Same: At Government Free Schools.
Sec. 633. Whenever the Government of the United States
or the State of Idaho shall erect, or cause to be erected and main-
tained, a school for general educational purposes within the State of
Idaho, and the expense of the tuition, lodging, food and clothing of
the pupils therein is borne by the United States or the State of Idaho,
it shall be compulsory on the part of every parent, guardian or other
person in the State of Idaho having control of a child or children
between the ages of five and eighteen years, eligible to attend said
school, to send such child or children to said school for a period of
nine months in each year, or during school for a period of nine months
in each year, or during the annual term, unless such child
or children is or are excused from such attendance by the prin-
cipal or superintendent of said school, upon it being shown to the
satisfaction of said principal or superintendent that the bodily or
mental condition of such child or children has been and is such as
to prevent his, her or their attendance at school, or application at
study for the period required, or that such child or children is or are
taught in the public schoils, private school, or other school or at
home, in such branches as are usually taught in public schools:
Provided, That in case the Government of the United States or the
State of Idaho does not make provision for free transportation of
said child or children to and from their homes to said school, then he,
she or they shall not be liable to the provisions of this section, unless
they reside less than ten miles from such school.
Historical: Laws 1901, 85, Sec. 1.
Demand for Attendance of Children.
Sec. 634. It shall be the duty of all principals or superintendents
of the school or schools mentioned in Section 633, before attempting
to enforce the provisions of this article hereinafter mentioned, to
serve, or cause to be served, a demand for the attendance of certain
children, naming them, and also designating the school to which their
attendance is required, upon the parent, guardian or other person
having charge of said child or children as may be eligible to attend
said school over which he has charge, and a copy of this article ; and
such parent, guardian or other person having charge of said child or
children shall have ten days to either deliver said child or children at
said school or to the principal or superintendent thereof, or furnish
satisfactory proof that the bodily or mental condition of said child will
not admit of attendance.
Historical: Laws 1901, 85, Sec. 2.
Refusal to Comply With Demand.
Sec. 635. If, at the expiration of ten days after such notice or de-
mand, the parents, guardian or other person having charge of said
child or children, shall have failed or refused to comply with this ar-
ticle, the principal or superintendent shall cause a demand to be
made upon such parent, guardian or other person, for the amount
of the penalty hereinafter provided ; and if such parent, guardian or
396
EDUCATION
Tit. 4
person shall neglect or refuse to pay the same within five days after
making said demand, the superintendent or principal shall commence
proceedings in the name of the State for the recovery of the fine here-
inafter provided, before any court having jurisdiction: Provided,
That nothing in this article shall apply to any child or children who
is or are actually and necessarily compelled to labor for the support
of such parent.
Historical: Laws 1901, 85, Sec. 3.
Same : Penalty.
Sec. 636. Any parent, guardian or other person having control or
charge of any child or children, failing to comply with the provisions
of the three preceding sections, shall be liable to a fine of not less
than five dollars nor more than twenty-five dollars for the first of-
fense, or less than ten dollars nor more than fifty dollars for the
second offense and each subsequent offense, beside the cost of col-
lection.
Historical: Laws 1901, 85, Sec. 4.
Same: Disposition of Fine.
Sec. 637. All fines collected under the provisions of the preceding
section shall be paid into the county treasury, the same to be placed
to the credit of the general school fund.
Historical: Laws 1901, 85, Sec. 5.
ARTICLE 10.
TEACHERS' INSTITUTES.
Section.
640. Teachers of adjourned schools
to draw pay.
Section.
638. County superintendent to hold
institute.
639. Teachers must attend institute.
641. Conduct and expenses of in-
stitute.
County Superintendent to Hold Institute.
Sec. 638. The county superintendent of each county in this State
must hold annually a teachers' institute at such time as he may des-
ignate, and such institute must continue in session not less than five
nor more than fifteen days. He must give at least ten days' notice of
the time and place of holding such institute by publication in some
newspaper published in the county, or by a written notice to each
qualified teacher in the county : Provided, That two or more adjoin-
ing counties may unite in holding a joint institute under the joint
supervision of the county superintendents of such counties.
Historical: Laws 1893, 187, Sec. 51;
re-enacted Laws 1899, 85, Sec. 51;
amended Laws 1899, 439, Sec. 1.
Teachers Must Attend Institute.
Sec. 639. It is the duty of all teachers engaged in the county and
of all persons holding certificates, to attend such institute and par-
ticipate in the exercises thereof, and all teachers who may have charge
of schools at the time of holding the annual institute must adjourn
Ch. 6. Art. 11.
PUBLIC SCHOOLS— BONDS
397
their schools for the time during which the institute is held : Provided,
That when joint institutes are held in accordance with the provisions
of the preceding section, it shall be the duty of all teachers in
said counties and of all persons holding certificates therein, to attend
such joint institute.
Historical: Laws 1893, 18 7, Sec. 52;
re-enacted Laws 1899, 85, Sec. 52;
amended Laws 1899, 439, Sec. 1.
Teachers of Adjourned Schools to Draw Pay.
Sec. 640. All teachers who may adjourn school for the purpose
of attending any annual county or joint institute must be allowed
the same pay while in actual attendance, as when teaching, and the
county superintendent must certify to the number of days attendance
of each teacher, and the trustees of the several districts must count
them as so many days lawfully employed.
Historical: Laws 1893, 187, Sec. 53;
re-enacted Laws 1899, 85, Sec. 53;
amended Laws 1899, 439, Sec. 1.
Conduct and Expenses of Institute.
Sec. 641. The county superintendent shall procure the services of
one or more competent persons to assist in conducting said institute ;
he must also provide a building, lights, stationery, janitor service,
and all things necessary for the holding of the institute; and must
present an itemized account of such expenses, not to exceed one
hundred and fifty dollars exclusive of the amount received from
fees of applicants for teachers' certificates, to the auditor of his
county, and the county auditor shall issue a warrant in favor of
the county superintendent equal to the amount of such expenses:
Provided, In case joint institutes are held as provided in Section 638,
the county superintendents of the counties holding such institutes
shall each present an itemized account of such expenses as aforesaid
to the auditor of his county, and the expenses thereof shall be borne
equally by such counties, and the county auditor shall issue a warrant
in favor of the county superintendent for the part chargeable against
such county.
Historical: Laws 1893, 187, Sec. 54;
re-enacted Laws 1899, 85, Sec. 54;
amended Laws 1899, 439, Sec. 1.
ARTICLE 11.
SCHOOL DISTRICT BONDS.
Section
642. Calling bond elections.
643. Klection- Issuance and registra-
tion of bonds.
644. Sale of bonds.
64.". Liability of school district.
64K. Tax levy to pay bond: Invest-
ment oi sinking fund.
Section
6 4 7. Redemption of bonds.
648. Payment of interest on bonds.
049. Uonds to be printed.
650. Neglect to pay over money a
felony.
Calling Bond Elections.
Sec. 642. The board of school trustees of any school district may,
whenever a majority so decides, submit to the qualified voters of the
398 EDUCATION Tit. 4
State of Idaho who are resident freeholders or householders of the
district, and their wives, the question whether the board be authorized
to issue coupon bonds to a certain amount, not to exceed eight
per centum of the taxable property in said district, and bearing a
rate of interest not exceeding six per centum per annum, and payable
and redeemable at a certain time, for the purpose of building or
providing one or more school houses in said district, with all necessary
furniture, desks, blackboards, globes, charts, outline maps, etc. And
the board of school trustees of any school district which has issued
bonds for any of the purposes enumerated in this section, may submit
to the electors of such district the question whether the board shall
be authorized to issue coupon bonds to refund or take up any of the
bonded indebtedness of such district, at a rate of interest not ex-
ceeding six per centum per annum.
Historical: Laws 1893, 187, Sec. 69;
re-enacted Laws 1899, 85, Sec. 69;
amended Laws 1901, 12, Sec. 1;
amended Laws 1903, 344, Sec. 1.
Cited: Ewin v. Independent School
District No. 8 (1904) 10 Ida. 102; 77
Pac. 222.
Election: Issuance and Registration of Bonds.
Sec. 643. Such elections must be held in the manner prescribed
for elections in this chapter. The ballots must contain the words
"Bonds Yes" or "Bonds No." If two-thirds of the votes cast at such
election are "Bonds Yes," the board of trustees must issue such bonds
in such form as the board may direct ; they must bear the signature
of the chairman of the board of trustees, and be countersigned by
the clerk of the school district, and the coupons attached to the bonds
must be signed by said chairman and said clerk; and each bond so
issued must be registered by the county treasurer in a book provided
for that purpose, which must show the number and amount of each
bond and the person to whom the same is issued, and the said bonds
must be sold by the said school trustees as hereinafter provided.
Historical: Laws 1899, 85, Sec. 70;
re-enacting Laws 1893, 187, Sec. 70.
Sale of Bonds.
Sec. 644. The school trustees must give notice in some newspaper
published in the State, for a period of not less than four weeks, to
the effect that said school trustees will sell said bonds, briefly de-
scribing the same, and stating the time when, and the place where
said sale will take place: Provided, That the said bonds must not
be sold for less than their par value, and the trustees are authorized
to reject any bids and to sell said bonds at private sale, if they deem
it for the best interest of the district, and all moneys arising from
the sale of said bonds must be paid forthwith into the treasury of
the county in which said district may be located, to the credit of
said district, and the same are immediately available for any of the
purposes authorized by this chapter.
Historical: Laws 1899, 85, Sec. 71;
re-enacting- Laws 1893, 187, Sec. 71.
Liability of School District.
Sec. 645. The faith of each school district is solemnly pledged for
Ch. 6. Art. 11.
PUBLIC SCHOOLS — BONDS
399
the payment of the interest and the redemption of the principle of
all bonds, which are issued under this article. And for the purpose
of enforcing the provisions of this article, each school district is a
body corporate, and may sue and be sued by or in the name of the
board of school trustees of said district.
Historical: Laws 1899, 85, Sec. 72;
re-enacting Laws 1893, 187, Sec. 72.
Tax Levy to Pay Bonds : Investment of Sinking Fund.
Sec. 646. The school trustees of each district must ascertain and
levy annually the tax necessary to pay the interest as it becomes
due and a sinking fund to redeem the bonds at their maturity, and
said tax is a lien upon the property of said school district, and must
be collected in the same manner as other taxes for school purposes:
Provided, That the said sinking fund may, at the discretion of the
board, be loaned on first mortgage or improved farm lands, but no
loan shall exceed one-third of the market value of the land, exclusive
of the improvements thereon, given as security for such loans. The
annual interest on all loans herein provided for shall be seven per
cent. Said sinking fund may be invested in United States bonds,
State bonds, county bonds, county or State warrants, when the market
value thereof is not below par, at the discretion of said board.
Historical: Laws 18 99, 85, Sec. 73;
re-enacting Laws 1893, 187, Sec. 73.
"Said sinking fund" inserted before
"may be invested" to express the sense
of the section.
Redemption of Bonds.
Sec. 647. When the sum in the sinking fund equals or exceeds
the amount of any bond then due, the county treasurer shall post
in his office a notice that he will, within thirty days from the date
of such notice, redeem the bonds then payable, giving the number
thereof; and preference must be given to the oldest issue; and if, at
the expiration of the said thirty days, the holder or holders of said
bonds shall fail or neglect to present the same for payment, interest
thereon must cease; but the treasurer shall, at all times thereafter,
be ready to redeem the same on presentation, and when any bonds
are so purchased or redeemed, the county treasurer must cancel the
same by writing across the face of each bond, in red ink, the word
"Redeemed," and date of such redemption.
Historical: Laws 18 9 9, 85, Sec. 74;
n-f-nacting Laws 1893, 187, Sec. 74.
Payment of Interest on Bonds.
Sec. 648. The county treasurer must pay out of any moneys be-
longing to a school district, the interest upon any bonds issued under
this article by such school district when the same becomes due, upon
the presentation, at his office, of the proper coupon, which must
show the amount due and the number of the bond to which it be-
longed ; and all coupons so paid must be reported to the school trustees
at the first meeting thereafter.
Historical: Laws 1899, 85, Sec. 75;
re-enacting Laws 1893, 187, Sec. 75.
Vol. 1—14
400
EDUCATION
Tit. 4
Bonds to Be Printed.
Sec. 649. The school trustees of any district must cause to be
printed or lithographed at the lowest rates, suitable bonds, with the
coupons attached, when the same becomes necessary, and pay therefor
out of any moneys in the county treasury to the credit of the school
district.
Historical: Laws 1899, 85, Sec. 76;
re-enacting Laws 1893, 187, Sec. 76.
Neglect to Pay Over Money a Felony. .
Sec. 650. If any of the school trustees fraudulently fail or refuse
to pay, into the property county treasury, the money arising from
the sale of any bonds provided for by this article, they are guilty
of a felony.
Historical: Laws 1899, 65, Sec. 77;
re-enacting Laws 1893, 187, Sec. 77.
ARTICLE 12.
INDEPENDENT SCHOOL DISTRICTS.
Section.
651. Organization of districts.
Corporate powers.
Board of trustees.
Election of trustees.
Prohibition against contracts
with trustees.
Qualification and organization
of board.
652.
652.
654.
655.
656.
Section.
657. Meetings of board.
65 8. Duties and powers of trustees.
659. Issuance of funding bonds.
660. Original bond elections.
661. Tax levy for payment of bonds.
662. Application of school law.
Organization of Districts.
Sec. 651. Whenever any school district within this State, as de-
fined by the board of county commissioners, has within its limits
taxable property of the amount of one hundred and fifty thousand
dollars or over, as shown by the last assessment roll for the county,
it may be organized into an independent school district upon a vote
of one-fifth or over of those within the district Who are qualified to
vote at school elections, petitioning the said board for the establishing
of such district as an independent school district; and if a greater
number of such qualified voters do not remonstrate against such
establishment, the board must clearly, by its order of record, define
the boundaries of such district, if not already done, and within one
month order that the question of so establishing such independent
school district must be submitted to a vote of all the electors of the
district, who, under the provisions of this chapter, are authorized
to vote for the levy of taxes and issue of bonds, and must make the
necessary arrangements for such election, giving at least twenty days
notice thereof, and the time and place of holding the same. If a
majority of those so voting, vote in favor of so organizing such
independent district, said board must make its order of record and
declare such district established, and designate it as the "Independent
School District (state name and number of district), in
County, Idaho."
Historical: Laws 1899, 85, Sec. 78;
re-enacting Laws 1893, 187, Sec. 78;
amended Laws 1897, 96, Sec. 1.
Ch. 6. Art. 12. PUBLIC SCHOOLS — INDEPENDENT DISTRICTS 401
Corporate Powers.
Sec. 652. The district so established is constituted a body cor-
porate, and succeeds to the title of all property rights and privileges,
and assumes and must discharge and pay all debts, obligations and
duties, belonging to or devolving upon the old district or districts
of which it is so formed and established, and by its corporate name
it may:
1. Make contracts, sue and be sued;
2. Take, hold and convey such real and personal property only
as is needed for actual school purposes ;
3. Have a corporate seal;
4. Choose such officers as are herein provided for.
Historical: Laws 1899, 85, Sec. 79;
re-enacting Laws 1893, 187, Sec. 79.
Board of Trustees.
Sec. 653. The officers of such district shall consist of a board of
trustees, composed of six qualified electors who are resident free
holders within the district. The first board of trustees must be
appointed by the board of county commissioners immediately after
the district is so established, and shall hold their offices for terms
as follows, to-wit: Two until the next school election under the
provisions hereof; two for one and two for two years after such
election, and until their successors are elected and qualified. Said
board so appointing must designate the term of each trustee so
appointed.
Historical: Laws 1893, 187, Sec. 80;
re-enacted Laws 1899, 85, Sec. 80;
amended Laws 1903, 335.
Election of Trustees.
Sec. 654. There must be an election for two members of the board
of trustees, to be held on the first Tuesday of September following
the establishment of such district, and annually thereafter an elec-
tion must be held to elect two trustees. The clerk of the board must
give at least ten days' notice of the time and place of such election,
by publication in a newspaper, or by three posted notices in the
district, and at all elections under this article voters must have the
same qualifications prescribed by this title for school elections. At
such elections any person offering to vote may be challenged and
required to take all oaths required for voters at the general elections
in this State, and on refusing to take such oaths must not be allowed
to vote. The board of trustees may appoint for all such elections two
judges and one clerk. Voting must be by ballot, and if, upon counting
the ballots, there is a tie, and three qualified persons have the highest
and an equal number of votes, the board of trustees must select two
from the three, and when there is a failure to elect by reason of a
tie vote, the board of trustees must select.
If any trustee dies, removes from the district or ceases to have
the qualifications for such office, or for any cause his office is vacant,
or he neglects or refuses to act, or without excuse ceases to attend
the meetings of the board for four successive regular meetings thereof,
his office thereby becomes vacant and a majority of said board of
402 EDUCATION Tit 4
trustees may appoint another qualified person to fill his unexpired
term.
Historical: Laws 1893, 187, Sec. 81; I amended Laws 1903, 335; amended
re-enacted Laws 1899, 85, Sec. 81; I Laws 1907, 316.
Prohibition Against Contracts With Trustees.
Sec. 655. No trustee must be interested in any contract let, or
made by, or with the board, or with any officer thereof, or in any
supplies furnished to or for said district, or a surety for the per-
formance of any contract with said board or district, or the agent
or partner of any contractor with said board or district; and no
action can be maintained or recovery had against said board or dis-
trict, upon any contract or obligation in which any trustee is so
interested, but the same is void.
Historical: Laws 1893, 187, Sec. 82; j part of section; the remainder corn-
re-enacted Laws 1899, 85, Sec. 82; prises the following section of these
amended Laws 1905, 71; Sec. 1. First Codes.
Qualification and Organization of Board.
Sec. 656. Each trustee must, before entering upon the duties of
his office, take and subscribe the official oath, which must be filed
with the county school superintendent. Immediately after the ap-
pointment of such trustees by the board of county commissioners,
as above provided, and after each biennial election, the trustees, or
a majority thereof, must meet at the school house and organize as
a board, and from their number must select a chairman, a clerk and
a treasurer, or they may elect as treasurer some competent and re-
sponsible person who is not a trustee. Said trustees of independent
school districts may provide pay or compensation for the clerk, but
no other school officer whatever must receive any pay or compensa-
tion for his time or services or in any way be allowed to make any
pecuniary profit or gain by reason of his office, and any school officer
or person who has the custody in any way of any school funds must
give bonds, with at least two good sureties, in double the amount
of funds likely at any time to be in his custody.
Historical: Laws 1893, 187, Sec. 82;
re-enacted Laws 1899, 85, Sec. 82;
amended Laws 1905, 71, Sec. 1. Last
part of section; the first part is con-
tained in the preceding section.
Meetings of Board.
Sec. 657. Regular meetings of the board of trustees must be held
on the second Monday of each month, and special meetings may be
called by the chairman of the board, or by any two trustees, by per-
sonal notice of the time and place of such meetings to each member
of the board, or, if he cannot be found, by leaving such notice at his
place of residence, with some person of suitable age and discretion.
Four trustees constitute a quorum for the transaction of any business,
but a less number may adjourn any regular meeting from time to
time, until a quorum can be obtained; but no meeting of the board,
not provided for by the rules or by law, is legal unless all the
members thereof have been notified as provided for in this section.
Historical: Laws 1899, 85, Sec. 83;
re-enacting Laws 1893, 187, Sec. 83.
Ch. 6. Art. 12. PUBLIC SCHOOLS — INDEPENDENT DISTRICTS
403
Duties and Powers of Trustees.
Sec. 658. The board of trustees of said district shall have power,
and it is their duty:
1. To make such by-laws for their own government and for the
government of the schools of the district as they may deem expedient,
not inconsistent with the provisions of this chapter:
2. To employ or discharge teachers, mechanics and laborers, and
to fix, allow and order paid their salaries and compensation, and to
determine the rates of tuition for non-resident pupils;
3. To levy a special tax if necessary, which, when added to
moneys apportioned by the county superintendent of schools, will be
sufficient to provide funds for the maintenance of the schools for
nine months in each year; the special taxes levied by said board of
trustees for the payment of interest on bonds and sinking fund, for
payment of bonds at maturity, together with the levy for the main-
tenance of schools, shall not exceed twenty mills on the dollar ;
4. To provide furniture, fixtures and apparatus, and everything
needed in the school house or for the use of the board ;
5. To rent, repair and insure school houses and property and
preserve the same for the benefit of the schools of the district ;
6. To build or remove school houses and buildings and to pur-
chase or sell school lots ;
7. To expel pupils from school who refuse to obey the rules
thereof, and to exclude from school children under six years of age;
8. To determine the number and qualifications of teachers who
shall be employed and the length of time the school shall be kept,
to fix the time for opening or closing of schools, and for the dismissal
of primary pupils before the regular time of closing schools ;
9. To require pupils to be furnished with proper and suitable
books as a condition of membership in the schools;
10. To exclude from the schools and school libraries of said
district all books, papers and catechisms of a sectarian nature;
11. To require teachers to conform to the laws and regulations
of the board ;
12. To protect the morals and health of the pupils while at
school.
Historical: Laws 1893, 187, Sec. 84;
re-enacted Laws 1899, 85, Sec. 84;
amended Laws 1903, 430, Sec. 2;
amended Laws 1907, 304, Sec. 1.
Removal of Teacher: The trustees
of an independent school district, un-
like those of an ordinary school dis-
trict, have unlimited power to dismiss
a teacher either with or without no-
tice, and the exercise of that power is
not subject to review or control by
the courts. Ewin v. Independent
School District No. 8 (1904) 10 Ida.
102; 77 Pac. 222.
Issuance of Funding Bonds.
Sec. 659. The board of trustees of any independent school district,
organized under any general or special law, may issue negotiable
coupon bonds of their district for the purpose of paying, redeeming
or refunding the principal of any of the outstanding bonded indebted-
ness of their district, whenever the same can be done to the profit or
advantage of their district and without the district incurring any
additional indebtedness or liability exceeding in any year the income
or revenue provided for such year. Said bonds must bear interest
at not exceeding six per centum per annum, payable semi-annually,
404
EDUCATION
Tit. 4
at the office of the treasurer of the district, or at such banking house
in the City of New York as may be designated by the board of
trustees; and the principal of said bonds, or any part thereof, may
at the option of the district, be paid at any time after ten years, and
must be paid within twenty years from the time they are issued,
and in the order in which they are issued and numbered. Semi-
annual interest coupons, covering the interest to grow due, must be
attached to each bond; the bonds must be signed by the presiding
officer of the board and attested by its secretary and the seal of the
district, if it have a seal, and the coupons must be signed, and the
bonds registered by the treasurer of the board. No bond shall be
sold at less than its par value, and the proceeds thereof must be
devoted to the payment, redemption or refunding of the outstanding
bonded indebtedness of the district.
Historical: Laws 1899, 84, Sec. 1;
re-enacting Laws 1890-91, 129, Sec.
737.
Not Repealed: The act to establish
a system of free schools, approved
March 6, 1891, which repeals Title 3
of the Revised Statutes covering the
same subject, does not repeal that
other act approved March 6, 1891,
authorizing independent school dis-
tricts to issue bonds. Barton v. Mos-
cow, etc., School District (1892) 3 Ida.
270; 29 Pac. 43.
Original Bond Elections.
Sec. 660. The board of trustees of any such independent district
may, whenever two-thirds of the board so decide, submit to the quali-
fied electors of the district, at an election to be held for that purpose,
and to be called and conducted as other school elections in said district,
the question whether the board shall be authorized to issue the
negotiable coupon bonds of the district in an amount to be mentioned
in the notice of election, for the purposes of providing and improving
school houses and grounds and furniture, apparatus, and fixtures
for said district, or for any or either of said purposes ; and if at such
election two-thirds of the qualified electors of said district voting at
said election assent thereto, the board of trustees may issue such
bonds of the district to the amount and for the purpose designated
in said notice; which bonds shall be in all respects similar to, and
shall be signed, negotiated, registered, bear interest, and be made
payable as, the bonds provided for in the last preceding section;
and no bond shall be sold for less than its par value, and the proceeds
thereof must be devoted to the purposes mentioned in said notice.
Historical: Laws 1899, 84, Sec. 1;
re-enacting Laws 1890-91, 129, Sec.
738.
Tax Levy for Payment of Bonds.
Sec. 661. The board of trustees of any such district that has issued
bonds under either of the last two preceding sections must annually
levy upon all the taxable property of the district, in addition to other
authorized taxes, a tax sufficient to pay the interest on all bonds so
issued as it falls due, and also to constitute a sinking fund for the
payment of the principal thereof within twenty years from the time
the bonds are issued; which taxes shall be levied, assessed, collected
and paid over as other taxes are levied, assessed, collected and paid
over in the district, and shall be devoted to the payment of the princi-
Ch. 6. Art. 13. public schools — prevention of disease
405
pal and interest of said bonds only ; and the accumulated sinking fund
may be used for the redemption of said bonds at any time after ten
years from the date of their issue.
Historical: Laws 18 9 9, 84, Sec. 1;
re-enacting Laws 1890-91, 129, Sec.
739.
Application of School Law.
Sec. 662. All the provisions of this chapter providing for a public
school system wherein not contradictory to or inconsistent with the
provisions of this article, and which may be made applicable to the
objects thereof, are adopted as a part of the law governing the estab-
lishment and management of independent school districts.
Historical: Laws 1899, 85, Sec. 85;
re-enacting Laws 1893, 187, Sec. 85.
ARTICLE 13.
PREVENTION OF DISEASE.
Section
663. Notice to trustee of infectious
disease.
664. Exclusion of pupils from infect-
ed households.
Section
665. Disinfection of text books.
666. Violation of article a misde-
meanor.
Notice to Trustees of Infectious Disease.
Sec. 663. The owner, or agent of the owner, or a house in which a
person resides who has the small-pox, diphtheria, scarlet fever or any
other contagious or infectious disease, dangerous to the public health,
and the physician called to attend the person or persons so affected
shall, within twenty-four hours after becoming cognizant of the fact,
give notice thereof to the clerk of the board of trustees of the school
district in which said person so afflicted resides, and said person so
afflicted shall be kept away and apart from all other persons except
those whose presence may be necessary to the physical or spiritual
well being of such person or persons.
Historical: Laws 1899, 451, Sec. 1.
Cross Reference: Persons residing
in quarantined houses are to be ex-
cluded from school: Sec. 1104. Schools
may be closed during- prevalence of
epidemic: Sec. 1107.
Exclusion of Pupils From Infected Households.
Sec. 664. The school trustees of the various school districts in the
State shall not allow any pupil to attend the public schools while any
member of the household to which such pupil belongs is sick of small-
pox, diphtheria, scarlet fever or other contagious or infectious disease,
dangerous to the public health, or during the period of two weeks
after the death, recovery, or removal of such sick person; and any
pupil coming from such household shall be required to present, to
the teacher of the school the pupil desires to attend, a certificate from
the attending physician of the facts necessary to entitle him to ad-
mission in accordance with the above regulations.
Historical: Laws 1899, 451, Sec. 2.
Disinfection of Text Books.
Sec. 665. Whenever any text book or books, belonging to any
406
EDUCATION
Tit. 4
school district, shall be in any house during the time that pupils
residing in such house are prevented from attending the public school
in accordance with the provisions of this article, such book or books
shall not be returned to such public school until the same shall have
been thoroughly disinfected under the direction of the attending
physician, who shall certify the same to the teacher of said school,
or to the clerk of the board of trustees in case the school is not in
session at such time.
Historical: Laws 1899, 451, Sec. 3.
Violation of Article a Misdemeanor.
Sec. 666. Any school trustee or other person violating any of the
provisions of this article shall be deemed guilty of a misdemeanor.
Historical: Laws 1899, 451, Sec. 4.
ARTICLE 14.
MISCELLANEOUS PROVISIONS.
Section
667. School year and month defined.
668. Sectarian and partisan instruc-
tion forbidden.
Section
6 6 9. Eighth grade examinations.
670. Arbor day.
6 71. Establishment of kindergartens.
School Year and Month Denned.
Sec. 667. The school year within this State shall commence on the
first Monday in September in each year. A school month is four
weeks, of five school days.
Historical: Laws 1899, 85, Sec. 67;
re-enacting Laws 1893, 187, Sec. 67.
Sectarian and Partisan Instruction Forbidden.
Sec. 668. No books, papers, tracts or documents of a political,
sectarian or denominational character must be used or introduced
in any school established under the provisions of this chapter, and
any and every political, sectarian or denominational doctrine is hereby
expressly forbidden to be taught therein; nor shall any teacher or
any district receive any of the public school moneys in which the
schools have not been taught in accordance with the provisions of
this chapter.
qualifications and teachings prohibit-
ed: Const. Art. 9, Sec. 6.
Historical: Laws 1899, 8 5, Sec. 65;
re-enacting Laws 1893, 187, Sec. 65.
Cross Reference: Religious tests,
Eighth Grade Examinations.
Sec. 669. It shall be the duty of the State Superintendent of Public
Instruction to prepare, or cause to be prepared, eighth grade ex-
amination questions to be used by the county superintendents of the
several counties of the State in the examination of applicants _ for
eighth grade diplomas, and to prescribe the rules and regulations
for conducting all such examinations. All pupils shall be required
to take such eighth grade examination upon completing the eighth
grade work, and only those pupils shall be entitled to pass who shall
obtain a general average of not less than eighty-five per cent., and
not falling below seventy per cent, in any branch. All pupils passing
Ch. 6. Art. 14. public schools — miscellaneous provisions 407
such examination shall be granted a diploma by the county superin-
tendent of public instruction. No pupil shall be permitted to enter
the first year of any high school in the State of Idaho, who has not
passed the eighth grade examination satisfactorily and obtained his
or her diploma.
Historical: Laws 1907, 168, Sees. 1,
2 and 3.
Arbor Day.
Sec. 670. It shall be the duty of the county superintendent to set
apart one day, in the proper time in each year between the first day
of April and the first day of May, to be known as Arbor Day. He
shall by written or printed notice, notify the clerk of each school
district in his county of the day so set apart, at least twenty days
prior to said day. It shall be the duty of the authorities of every
public school in this State to assemble the pupils in their charge on
that day in the school building, or elsewhere, as they may deem
proper, and to provide for and conduct, under the general supervision
of the county superintendents of public instruction, such exercise as
shall tend to encourage the planting, protection and preservation of
trees and shrubs, and an acquaintance with the best methods to be
adopted to accomplish such results. The State Superintendent of
Public Instruction shall have power to prescribe, from time to time,
in writing, a course of exercises and instructions in the subjects
hereinbefore mentioned, which shall be adopted and observed by the
school authorities on Arbor Day, and upon receipt .of copies of such
course, sufficient in number to supply all the schools under his super-
vision, the county superintendent of public instruction shall promptly
provide each of the schools under his charge with a copy, and cause
it to be adopted and observed.
Historical: Laws 1903, 215, Sees. 1,
J and 3
Establishment of Kindergartens.
Sec. 671. The school board of any school district in the State is
hereby empowered to establish and maintain free kindergartens, in
connection with the public schools of said district, for the instruction
of children between the ages of three and six years residing in said
district, and shall establish such courses of training, study and dis-
cipline, and such rules and regulations governing such preparatory
or kindergarten schools, as said board may deem best: Provided,
That nothing in this section shall be construed to change the law
relating to the taking of the census of the school population, or the
apportionment of State and county school funds among the several
counties and districts in this State: Provided, further, That the
cost of establishing and maintaining such kindergartens shall be paid
from the special school fund of said districts, and the said kinder-
gartens shall be a part of the public school system, and governed,
as far as practicable, in the same manner and by the same officers
as is now, or hereafter may be, provided by law for the government
of the other public schools of the State: Provided, further, That
all teachers employed in these schools shall have a diploma from some
reputable kindergarten training school, or shall be licensed in ac-
408
EDUCATION
Tit. 4
cordance with the rules and regulations established by the
Superintendent of Public Instruction.
State
Historical: Laws 1901, 108, Sec. 1.
CHAPTER 7.
STATE LIBRARY COMMISSION.
Section
672. Constitution of commission.
673. Management of traveling
brary-
li-
Section
674. Accounts of commission.
Constitution of Commission.
Sec. 672. The Attorney General, Secretary of State, State Super-
intendent of Public Instruction, and the president of the State Uni-
versity, ex officio, are hereby constituted a State Library Commission,
of which the Attorney General shall be chairman, and the State
Superintendent of Public Instruction secretary.
Historical: Laws 1903, 283, Sec. 1.
Management of Traveling Library.
Sec. 673. Said Commission shall have the management of the
traveling library or libraries belonging to the State, and shall make
such rules governing the use of the same, and of the books and prop-
erty pertaining thereto, as it may deem necessary. Said Commission
shall cause said books to be distributed throughout the State, and
at suitable intervals change such distribution in such manner as to
secure the use and enjoyment of said books to the people of the
State. It shall co-operate with the management of public school
and other free libraries within the State, and adopt such means as
shall best promote their establishment. Said commission may re-
ceive donations of money, books or other property, real or personal,
for the benefit of such traveling library or libraries, the title to
which property shall vest in the State of Idaho, to be held and con-
trolled by said Commission. Said Commission shall report annually
to the Governor, with such recommendations at it may deem proper.
Historical: Laws 1903, 283, Sec. 2.
Cross Reference: Reports of officers
and boards: Sec. 279.
Accounts of Commission.
Sec. 674. The secretary of said Commission shall keep a full re-
port of the proceedings of said Commission, and accurate accounts
of expenses incurred by it in carrying out the provisions of this
chapter. The chairman of said Commission may issue certificates,
countersigned by the secretary, for all claims against said Commis-
sion, incurred in the management of said traveling library or li-
braries, and in carrying out the objects of this chapter, which claims,
when approved by the Board of Examiners, shall be paid by warrants
drawn upon the fund in the State Treasury provided for such pur-
pose, i
Historical: Laws 1903, 283, Sec. 3.
Ch. 8.
PUBLIC LIBRARIES
409
CHAPTER 8.
PUBLIC LIBRARIES.
Section
675. Cities may establish libraries.
School district libraries: Elec-
tion.
Directors of libraries.
Organization and powers of di-
rectors.
676.
677.
678.
Section
679. Libraries to be free.
680. Report of directors.
681. Donations to library.
682. Taxes for existing
Definitions.
libraries;
Cities May Establish Libraries.
Sec. 675. The common council of every city and of every village
of the State of Idaho shall have power to establish a public library
and reading room, and for such purpose may annually levy, and
cause to be collected, as other taxes are, a tax not exceeding one
mill on the dollar of the taxable property of such city or village, to
constitute a library fund, which shall be kept by the treasurer sep-
arate and apart from other moneys of the city or village, and be
used exclusively for the purchase of books, periodicals, necessary
furniture and fixtures, and whatever is required for the maintenance
of such library and reading room.
Historical: Laws 1901, 3, Sec. 1.
School District Libraries: Election.
Sec. 676. The trustees of a school district in which is situated
no incorporated town or village, on the petition of twenty electors
thereof, shall, upon four weeks' notice published in some newspaper
of general circulation published in the county wherein such district
is situated, submit to the electors thereof, at the first election held
therein for the purpose of electing a member, or members, of the
board of trustees, following the publication of the said notice, the
question whether there shall be a public library established in such
school district for the use and benefit of the citizens thereof. Those
voting at such election in favor of such library shall put upon their
ballots the words, "Public Library, Yes," and those voting thereat
against such library the words, "Public Library, No." If a majority
of the electors voting at such election shall vote in favor thereof,
the trustees aforesaid have authority, annually, to levy upon all the
taxable property in such school district a tax not exceeding one mill
on the dollar valuation thereof, to be applied to the establishment
and maintenance of a library as aforesaid, and the procuring of
suitable rooms for the same. All boards of school trustees acting
under the provisions of this section shall perform the same duties
required of, and have the same powers and authority granted to,
the common council of a city or village by the provisions of this
chapter under like conditions, and the treasurer of such board of
trustees shall perform the duties of treasurer for the public library.
Historical: Laws 1901, 3, Sec. 2.
Directors of Library.
Sec. 677. For the government of such library and reading room
there shall be a board of five directors appointed by the council of
such city or village from among the citizens thereof at large, and
410 EDUCATION Tit. 4
not more than one member of the council of such city or village
shall, at any time, be a member of said board. Such directors shall
hold their office for three years from the date of appointment and
until their successors are appointed, but upon their first appointment
they shall divide themselves at their first meeting by lot into three
classes: Two members shall form the first class and shall serve
for one year from the date of appointment ; two members the second
class and shall serve for two years from the date of appointment,
and one member the third class and shall serve for three years from
the date of appointment. All vacancies shall be immediately re-
ported to the proper council by the directors, and shall be filled by
appointment in the same manner as appointments are originally made.
Appointments to complete an unexpired term shall be for the residue
of the term only. No compensation shall be paid or allowed to any
director in any manner whatsoever.
Historical: Laws 1901, 3, Sec. 3.
Organization and Powers of Directors.
Sec. 678. Said directors shall, immediately after their appoint-
ment, meet and organize by the election of one of their number presi-
dent, and by the election of such other officers as they may deem
necessary. They shall make and adopt such by-laws, rules and regu-
lations for their own guidance and for the government of the library
and reading room as may be expedient. They shall have the exclusive
control of the expenditure of all moneys collected for the library
fund, and the supervision, care and custody of the room or buildings
constructed, leased or set apart for that purpose; and such money
shall be drawn from the treasury by the proper officers upon properly
authenticated vouchers of the board of directors without otherwise
being audited. They may, with the approval of the common council,
lease and occupy, or purchase or erect on purchased ground, an ap-
propriate building: Provided, That not more than one-half the in-
come in any one year can be set apart in said year for such purchase
or building. They may appoint a librarian and assistants, and pre-
scribe rules for their conduct.
Historical: Laws 1901, 3, Sec. 4.
Libraries to Be Free.
Sec. 679. Every library and reading room established under this
chapter shall be forever free for the use of the inhabitants of the
city, village or school district where located, always subject to such
reasonable rules and regulations as the library board may find neces-
sary to adopt and publish in order to render the use of the library
and reading room of the greatest benefit to the greatest number,
and they may exclude and cut off from the use of said library and
reading room any and all persons who shall willfully violate such rules.
Historical: Laws 1901, 3, Sec. 5.
Report of Directors.
Sec. 680. The said board of directors shall make an annual item-
ized report to the State Library Commission on June 30th of each
year, stating the condition of their trust, the various sums of money
Ch. 8. PUBLIC LIBRARIES 411
received from the library fund and from all sources, and how much
has been expended, the number of books and periodicals on hand, and
the number added by purchase, gift or otherwise during the year,
the number lost or missing, the number of books loaned out, and the
general kind and character of such books, with such other statistics,
information and suggestions as they may deem of general interest,
and the State Library Commission may require.
Historical: Laws 1901, 3, Sec. 6.
Donations to Library.
Sec. 681. All persons desirous of making donations of money, per-
sonal property or real estate for the benefit of such library shall have
the right to vest the title to the same in the board of directors created
under this chapter, to be held and controlled by said board, when
accepted according to the terms of the deed of gift, devise or bequest
of such property; and as to such property the said board shall be
held and considered to be the special trustees.
Historical: Laws 1901, 3, Sec. 7.
Taxes for Existing Libraries: Definitions.
Sec. 682. In case a free subscription library has been established
in any city or incorporated village, and duly incorporated and organ-
ized, the council may levy a tax for its support as provided in this
chapter, without change in the organization of such library associa-
tion: Provided, It becomes a free library. The sums so raised shall
be duly paid to the officer duly authorized to receive the same, and
shall be under the control of said library association: Provided,
That if at any time the said library association ceases to exist, or
from any reason fails to provide a free circulating library as required
by the provisions of this chapter, the books and other property ac-
cumulated from the proceeds of the levy herein authorized shall
become the property of the city or village, and be subject to the
control of the council as herein provided.
In this chapter, unless the context otherwise requires, "library"
includes libraries with branches, loans, reference, traveling and
reading room departments, lectures and museums; "city" includes
towns and villages; "council" means the legislative body of an in-
corporated city, town or village; "mayor" means the chief executive
officer of an incorporated city, town or village.
Historical: Laws 1901, 3, Sec. 8.
TITLE 5
STATE MILITIA
Chapter
1. Enumeration of persons liable to
military duty.
2. Organization.
3. Staff department, officers and
their duties.
Chapter
4. Discipline, uniforms,
encampments.
5. Military courts.
6. Miscellaneous.
drills and
Note: This act is based promarily on a circular dated Oct. 8, 1903,
issued by the War Department. This circular outlines and suggests a
general military law for the several States with the object of making their
laws on this subject uniform. The classification and sectioning follows the
act without change. Prior acts are as follows: Laws 1890-91, 217, re-en-
acted Laws 1899, 156; Laws 1893, 57; Laws 1905, 10.
CHAPTER 1.
ENUMERATION OF PERSONS LIABLE TO MILITARY DUTY.
Section
683. Persons liable to military duty.
Persons Liable to Military Duty.
Sec. 683. Every able bodied male citizen of the State of Idaho,
and those who have declared their intention to become citizens of the
United States, residing therein, between the ages of eighteen and
forty-five years, except persons exempt by law shall be subject to mili-
tary duty; excepting (a) persons exempted by any statute of this
State; (b) all persons in the army and navy of the United States and
those who have been honorably discharged therefrom; (c) idiots, lu-
natics, habitual drunkards, and felons convicted of infamous crimes
and not pardoned.
Historical: Laws 1907, 195, Art. 1,
Sec. 1.
Cross Reference: Persons liable to
military duty: Const. Art. 14, Sec. 1.
CHAPTER 2.
ORGANIZATION.
is commander in
Section
68 4. Governor
chief.
Military staff.
Military units.
Election of officers.
Enlistment of recruits.
Selection of field and medical
staff officers.
Appointment and commission
of regimental staff.
Notice to and examination of
staff officers.
685.
686.
687.
688.
689.
690.
691.
for eligibility to
Section
692. Examination
commission.
693. Election to fill vacancies.
694. Bond and oath of officers.
695. Issuance of commission.
696. Corps of cadets.
697. Retired list.
698. Rank of officers: How deter-
mined.
699. Resignation of officers.
700. Vacation of office.
Ch. 2
ORGANIZATION
413
Section
701. Abandonment of companies.
702. Command of troops in field.
703. Exemption from taxes and jury
duty.
704. Term of enlistment: Discharge.
705. Discharge of commissioned of-
ficers.
Section
70 6. Assessors to make military lists.
707. Transmission of lists to adju-
tant general.
708. Armory expenses: How paid.
709. Constitution of State Military
Board.
Governor Is Commander in Chief.
Sec. 684. The Governor shall be commander in chief of the militia,
except when it be called into the service of the United States, and
may employ it for the defense or relief of the State, the enforcement
of its laws and the protection of life and property within its terri-
tory. He shall make and publish regulations for the government of
the National Guard, and shall have all the power necessary to carry
into full effect the provisions of this title ; and for the purpose of for-
mulating these regulations, he may convene boards of officers who
shall recommend, for his approval, a code prescribing the duties of
the staff department, the messing and interior economy of the com-
panies, sanitation of camps, rules for the preservation of health, etc.
Historical: Laws 1907, 195, Art. 2,
Sec. 1.
Military Staff.
Sec. 685. The Governor shall, as soon as practicable after assuming
his office, appoint an adjutant general, who shall be chief of staff and
inspector general, with the rank of brigadier general; one quarter
master general with the rank of colonel, who shall also act as pay
master; one commissary general with the rank of colonel; one assist-
ant inspector general with the rank of lieutenant colonel; one as-
sistant adjutant general with the rank of major; one medical direc-
tor with the rank of lieutenant colonel; two or more aides de camp
each with the rank of captain ; all to take office immediately upon ap-
pointment by the Governor and to serve for two years, or until their
successors are qualified, unless sooner removed by him: Provided,
That the Governor shall have power to remove for cause any and
all said officers, and to fill vacancies. The Attorney General of the
State shall be ex-officio judge advocate general with the rank of lieu-
tenant colonel. Should a United States army officer be detailed for
duty with the National Guard, he shall be known as the deputy in-
spector general.
Historical: Laws 1907, 195, Art. 2,
Sec. 2.
Military Units.
Sec. 686. The military units of the organized militia shall be des-
ignated "The National Guard of Idaho." In time of peace it shall
consist of the commander in chief, the corps of cadets of the State
University; not more than one gatling gun or light battery; one
squadron of cavalry of four troops; two regiments of twelve com-
panies of infantry, divided into three battalions of four companies;
a signal corps; a medical corps to consist of a surgeon with the rank
of major, two assistant surgeons with the rank of captain, and one
414 STATE MILITIA Tit. 5
assistant surgeon with the rank of first lieutenant, and the retired
list, and shall be composed and organized as follows :
INFANTRY.
A company shall consist of: One captain, one first lieutenant,
one second lieutenant, one first sergeant, one quartermaster sergeant,
four sergeants, eight corporals, two cooks, two musicians, one ar-
tificer, eighty-seven privates. Total enlisted, 106. The minimum
strength of a company shall be fifty-eight enlisted men.
A battalion shall consist of: One major, one battalion adjutant
(first lieutenant), one battalion quartermaster and commissary (sec-
ond lieutenant), one battalion sergeant major, four companies. To-
tal enlisted (maximum), 425.
A regiment shall consist of: One colonel, one lieutenant colonel,
one adjutant (captain), one quartermaster (captain), one commis-
sary (captain), one surgeon (major), two assistant surgeons (cap-
tains), one assistant surgeon (first lieutenant), one chaplain (cap-
tain), one sergeant major, one quartermaster sergeant, one commis-
sary sergeant, two color sergeants, one chief musician, one principal
musician, one drum major, four sergeants, eight corporals, one cook,
twelve privates (band 28), one sergeant, first class of the hospital
corps, three sergeants of the hospital corps, six privates, first class,
of the hospital corps, three privates of the hospital corps, three bat-
talions. Total enlisted (maximum), 1,321.
CAVALRY.
A squadron shall consist of: One major, one squadron adjutant
(first lieutenant), one squadron quartermaster and commissary (sec-
one lieutenant), one assistant surgeon (captain), one veterinary sur-
geon (first lieutenant), one squadron sergeant major.
A troop shall consist of: One captain, one first lieutenant, one
second lieutenant, one first sergeant, one quartermaster sergeant, six
sergeants, eight corporals, two cooks, two farriers and blacksmiths,
one saddler, one wagoner, two trumpeters, seventy-six privates. Total
enlisted (maximum), 100. The minimum strength of a troop shall
be 51 enlisted men.
SIGNAL CORPS.
A company shall consist of: One captain, one first lieutenant,
one second lieutenant, five first class sergeants, ten sergeants, ten
corporals, thirty first class privates, twenty second class privates.
Total enlisted, 75. The minimum strength of the company shall be
thirty enlisted men. The company shall be divided into squads of
suitable size to be stationed at places designated by the commanding
officer of the National Guard. At least two thirds of the officers and
men shall be expert telegraphers and electricians.
HOSPITAL CORPS.
The hospital corps of the National Guard shall consist of one
ambulance company, one field hospital, and of the sergeants first class,
sergeants, corporals, and privates of the hospital corps who are mem-
Ch. 2.
ORGANIZATION.
415
bers of regiments, separate battalions, and squadrons. The Gover-
nor shall be authorized to increase the number of enlisted men in the
hospital corps so as to provide for medical attendance in batteries,
separate troops, and companies, and such additional men shall be
considered a part of the hospital corps. The ambulance company
shall consist of: For medical and bearer work; one major, surgeon,
commanding; one captain, assistant surgeon; one first lieutenant, as-
sistant surgeon; four sergeants, first class; nine sergeants, one mu-
sician, thirty privates, first class, seventeen privates.
Historical: Laws 1907, 193, Art. 2,
Sec. 3.
Election of Officers.
Sec. 687. The company officers shall be elected by ballot, by the
members of their respective commands, subject to the approval of
the commander in chief. If the candidate elected fails to receive the
approval of the commander in chief, his name shall not again be pre-
sented to fill the vacancy, except by permission of the commander in
chief. In all cases, a majority of all of the votes of the organiza-
tion, cast at an election, shall be necessary to a choice. All commis-
sioned officers shall hold their commissions for three years from the
date of election, or appointment, and continuously thereafter subject
to removal at any time for cause. In case of vacancy, each officer
and enlisted man, entitled to a vote at the election to fill the vacancy,
shall be served with a notice at his last known address, at least ten
days prior to said election.
Historical: Laws 1907, 195, Art. 2,
Sec. 4.
Cross Reference: Officers are to be
commissioned by the Governor and the
manner of their selection is to be de-
termined by law: Const. Art. 14, Sec. 3.
Enlistment of Eecruits.
Sec. 688. After the organization of a company, battery, or troop,
recruits may be enlisted into the same by the commanding officer, and
shall be required to sign their names to an enlistment roll to be fur-
nished by the adjutant general for that purpose, and such signing
shall be legal enlistment. Every commissioned officer shall be em-
powered to administer the oath required on enlistment.
Historical: Laws 1907, 195, Art. 2,
Sec. 5.
Selection of Field, and Medical Staff Officers.
Sec. 689. The military officers of the State shall be chosen as
follows: Field officers of the regiment, squadron and battalion by
the written, or printed, votes of a majority of the commissioned offi-
cers of said company, squadron and battalion. The medical staff to
be appointed by the commander in chief: Provided, That no officer,
other than the medical staff, shall be commissioned until he has suc-
cessfully passed an examination as to his educational and technical
qualifications, necessary to an efficient performance of his duty, be-
fore a board of three qualified examiners, to be appointed by the
commander in chief. And no officer shall be commissioned who is
under twenty-one years of age.
416 STATE MILITIA Tit. 5
Historical: Laws 1907, 195, Art. 2,
Sec. 6.
Appointment and Commission of Regimental Staff.
Sec. 690. The regimental staff shall be appointed by the colonel,
and commissioned by the Governor, upon the recommendation of
the commander thereof, subject to the provisions of the preceding
section.
Historical: Laws 1907, 195, Art. 2,
Sec. 7.
Notice to and Examination of Staff Officers.
Sec. 691. Staff officers of the regiment and battalion and officers
appointed as herein provided shall be notified by letter of their ap-
pointment, by the adjutant general. They shall be allowed thirty
days from the date of such letter in which to prepare for an exami-
nation which will consist of a thorough examination as to their fit-
ness for their position, and shall be conducted by the board of exam-
iners heretofore prescribed. Should any of these officers fail to
pass the examination they shall be reported as incompetent and
shall not be commissioned. Appointments shall be made to fill va-
cancy or vacancies as the case may require.
Historical: Laws 1907, 195, Art. 2,
Sec. 8.
Examination for Eligibility to Commission.
Sec. 692. All members of any of the units of the National Guard
of the State, who shall have served at least one year in the army of
the United States, or in the National Guards of this or some other
State, or who shall have attended some school or college where mili-
tary instruction is had, shall be eligible to enter an examination to
determine their eligibility for a commission: Provided, That such
examination shall be held by the board of examiners heretofore pro-
vided, and shall consist of a thorough examination of the mental,
moral and physical qualifications of the candidate. These examina-
tions shall be in writing, and the questions therefor shall be pre-
pared by the board of examiners. These questions shall be furnished
the adjutant general who shall conduct the examination and forward
the examination papers to the board of examiners, who shall care-
fully consider them and certify the names of the successful candi-
dates to the adjutant general, who shall keep a roster of the same.
Historical: Laws 1907, 195, Art. 2,
Sec. 9.
Election to Fill Vacancies.
Sec. 693. When a vacancy occurs among the commissioned officers
of any of the units aforesaid, the adjutant general shall notify the
commanding officer, and furnish him a list of all the members of the
command who are eligible to election. The commanding officer shall
then order an election to be held, and shall furnish the list of eligible
candidates to the officer directed to preside at the election.
Historical: Laws 1907, 19 5, Art. 2,
Sec. 10. f
Ch. 2.
ORGANIZATION.
417
Bond and Oath of Officers.
Sec. 694. An officer thus elected shall, within ten days of his
election, file his bond, and shall take and subscribe to the following
oath or affirmation: "I do hereby solemnly swear (or affirm) that
I will bear allegiance to the United States of America and to the
State of Idaho ; that I will serve them honestly and faithfully against
all their enemies and opposers whomsoever; that I will observe and
obey the orders of the President of the United States, the Governor
of the State of Idaho, and the officers appointed over me according
to the rules and articles for the government of the army of the
United States and the National Guard of this State," before some
officer qualified to administer oaths. The officer who administers this
oath shall certify the fact, and transmit the oath or affirmation, prop-
erly sealed and attested, to the adjutant general, who shall file the
same.
Historical: Laws 1907, 195, Art. 2,
Sec. 11.
Issuance of Commission.
Sec. 695. A commission signed by the Governor and counter-
signed by the adjutant general under seal of the adjutant general's
office, shall then be issued to the officer, to take rank from the date
of original appointment or election. If it shall appear to the satis-
faction of the Governor, by the affidavit of a competent witness, that
an officer offered any consideration, reward or favor, for the with-
holding of casting of a vote at the election at which he was chosen,
he shall be dishonorably discharged from the service ot the State:
Provided, That no charge shall be allowed or pay received for any
commission issued under the provisions of this title.
Historical: Laws 1907, 19 5, Art. 2,
Sec. 12.
Cross Reference: Officers to be com-
missioned by the Governor:
Art. 14, Sec. 3.
Const.
Corps of Cadets.
Sec. 696. The corps of cadets shall be organized and governed by
such rules as may be prescribed by the faculty of the University.
They shall not be subject to duty in case of riots, tumults, breach of
peace, resistance to process, invasion, or insurrection, but may only,
with a consent of a majority of the faculty, be ordered to parade,
encampment or other military exercise. They may, under orders of
the commander in chief, be paraded on the University grounds for
inspection.
Historical :
Sec. 13.
Laws 1907, 195, Art. 2,
Retired List.
Sec. 697. The retired list shall consist of all ex-adjutants general,
all ex-inspectors general, all ex-medical directors, ex-chief commis-
saries and quartermasters general, and such other officers as shall,
after having served five years as officers, and enlisted men after hav-
ing served nine years, apply to the Governor to be placed on the re-
tired list, without pay.
418 STATE MILITIA Tit. 5
Historical: Laws 1907, 195, Art. 2,
Sec. 14.
Rank of Officers: How Determined.
Sec. 698. The rank of officers now in the service or hereafter
commissioned, shall date from date of election or appointment, and
an officer who has served continuously in the same grade for more
than one term, either by re-election or appointment, shall take rank
from the date of his first commission in that grade.
Historical: Laws 1907, 19 5, Art. 2,
Sec. 15.
Resignation of Officers.
Sec. 699. The resignation of officers shall be addressed to the
commander in chief and transmitted to the adjutant general, through
the regular military channels; and all commanding officers, before
forwarding a resignation, shall indorse thereon their approval or dis-
approval, together with all facts bearing on the case. But an officer
tendering his resignation shall not be considered out of the service
until his resignation has been accepted.
Historical: Laws 1907, 195, Art. 2,
Sec. 16.
Vacation of Office.
Sec. 700. An officer who moves out of the county where his com-
mand is located, or who absents himself from his command for one
month without leave from his commanding officer, shall be considered
as having vacated his office, and an election shall be ordered and held
without delay to fill the vacancy.
Historical: Laws 1907, 19 5, Art. 2,
Sec. 17.
Abandonment of Companies.
Sec. 701. Whenever a company, troop or battery, becomes reduced
in number below the minimum strength, (fifty-eight enlisted men),
or from general insubordination, contention, or other cause becomes
demoralized and inefficient, and its disbandment is therefore neces-
sary for the good of the service, the commander in chief shall dis-
band the same and order the officers thereof to be mustered out of
service. But no member of the company, troop, or battery shall be
dishonorably discharged except upon due trial and conviction by a
court martial, or in some other lawful manner.
Historical: Laws 1907, 195, Art. 2,
Sec. 18.
Command of Troops in Field.
Sec. 702. The command of any military force called into service,
under the provisions of this title, shall devolve upon the senior officer
present of such force, until a field officer shall have been designated
by the commander in chief.
Historical: Laws 1907, 195, Art. 2,
Sec. 19.
Ch. 2 ORGANIZATION 419
Exemption From Taxes and Jury Duty.
Sec. 703. All officers and enlisted men of the National Guard of
Idaho are hereby declared exempt from all poll or road tax, and jury
duty, so long as they continue active members thereof.
Historical: Laws 1907, 195, Art. 2,
Sec. 20.
Term of Enlistment: Discharge.
Sec. 704. Every enlisted man shall be held to service for a term
of three years unless he be properly discharged. Upon the expira-
tion of the service of any enlisted man, the commandant of his com-
pany, troop or battery, shall prepare a discharge on the blank fur-
nished for that purpose, and submit it to the senior officer of the
command to which he belongs, who, having signed it, shall return it
to the commanding officer of the company, troop or battery in time
for it to be delivered to the man on the day on which his term of ser-
vice expires. In all other cases, enlisted men shall not be discharged
except upon receipt of a specific order from the commander in chief
directing such discharge. The company commander shall, upon his
monthly return, report all discharges to his regimental, battalion, or
squadron commander.
Historical: Laws 1907, 195, Art. 2,
Sec. 21.
Discharge of Commissioned Officers.
Sec. 705. At the expiration of the term of service, or upon the
acceptance of the resignation of a commissioned officer, the adjutant
general, upon the approval of the Governor, shall issue to such officer
a discharge, showing the reason therefor, and the length of term
served.
Historical: Laws 1907, 195, Art. 2,
Sec. 22.
Assessor to Make Military Lists.
Sec. 706. It shall be the duty of the assessor of each county in the
State, annually, at the time prescribed by law for assessing property,
to make out a list of all persons in the respective counties who are
liable to military duties under the laws of the United States and the
State of Idaho, which list shall designate the precinct in which each
person named in such list resides, and shall be filed by such as-
sessor in the office of the county auditor, of the respective counties,
at the same time and in the same manner as is provided by law for
the assessment roll; and the auditor shall keep the same open for
inspection, as is provided by law for the assessment roll, and also
record the same alphabetically, in his office in a book kept for that
purpose.
Historical: Laws 1907, 195, Art. 2,
Sec. 23.
Transmission of Lists to Adjutant General.
Sec. 707. The said military assessment list shall be corrected in
the same manner, and at the same time, as is provided by law for
the assessment roll ; and it shall be the duty of the county auditor of
420
STATE MILITIA
Tit. 5
each county, within thirty days after the list has been corrected, to
transmit, to the adjutant general of the State, a certificate, under his
official seal, of the total number of names on such military assessment
list arranged according to the several precincts of the county.
Historical :
Sec. 2 4.
Laws 1907, 195, Art. 2,
Armory Expenses: How Paid.
Sec. 708. There shall be expended annually, out of the general
fund the sum of five hundred dollars, to each organized company of
the National Guard for armory rent, and for rent of a State armory,
until the State shall have provided and owns such institution. If the
officers of any company aforesaid, neglect to secure a proper armory
for drill purposes, or are remiss or neglectful in their attendance at
the regular drills, or the company habitually falls in attendance below
a minimum of twenty-five enlisted men, a penalty of five dollars per
drill shall be deducted from the said armory rent. In addition
thereto the county commissioners of each county may, in their dis-
cretion, expend annually, not to exceed $150.00 out of the county cur-
rent expense fund, for repairs or rent of armory buildings for the
use of such company of the National Guard of Idaho as organized
under the provisions of this title, and which shall meet, at least twice
in each month, in such armory, for military instruction.
Historical: Laws 1907, 195, Art. 2,
Sec. 25.
Constitution of State Military Board.
Sec. 709. The State Military Board shall consist of the com-
mander in chief, adjutant general, quartermaster general, a field
officer and a captain of the line, to be designated by the commander
in chief. It shall be the duty of the board to determine the necessary
purchase of all equipment, supplies and stores required for the use of
the National Guard.
Historical: Laws 1907, 195, Art. 2,
Sec. 26.
CHAPTER 3.
STAFF DEPARTMENT, OFFICERS AND THEIR DUTIES.
Section
714. Salary of adjutant general and
clerk.
715. Annual appropriation for ex-
penses.
Section
710. Duties of adjutant general.
711. Duties of quartermaster gen-
eral.
712. Bonds of disbursing officers.
713. Distribution of rosters and pa-
pers.
Duties of Adjutant General.
Sec. 710. The adjutant general shall hold his office for a term of
two years or until his successor is appointed and qualified, unless
sooner removed for misconduct, or in the case of the vacation of his
office by resignation duly accepted. He shall distribute all orders
from the commander in chief; he shall be the organ of all communi-
cations from the State troops to the commander in chief, and shall
Ch. 3.
STAFF DEPARTMENT
421
attend him when required in a review of the State troops or whenever
ordered in the performance of duty; he shall obey and issue such
orders as the commander in chief shall give in relation to all military
matters, and shall be entitled to the use of the Coat of Arms of the
State as his seal of office, with the words added thereto: "State of
Idaho, Adjutant General's Office." He shall annually make return,
in triplicate, of all militia of the State, one copy whereof he shall
deliver to the commander in chief on or before the fifteenth day of
December; one copy shall be transmitted to the President of the
United States, on or before the first day of January thereafter, and
one shall be filed in his office. He may have one chief clerk who shall
be military storekeeper and a quartermaster with the rank of captain,
which officer shall be appointed and commissioned by the Governor
upon the recommendation of the adjutant general, and shall, at the
time of his appointment, be an officer in active service in the National
Guard of Idaho, and shall be entitled to the rights and privileges of
officers of the National Guard of corresponding rank. The adjutant
general shall, under the direction of the military board, purchase
clothing, camp and garrison equipage, ammunition, and such other
military stores as may be authorized, all of which shall be given into
the custody of the quartermaster general : Provided, That where
it is deemed inexpedient for the quartermaster general to carry out
the provisions of the following section, all such duties shall devolve
upon the adjutant general.
Historical: Laws 1907, 195, Art. 3,
Sec. 1.
Cross Reference: Adjutant general
is custodian of military records and
relics: Const. Art. 14, Sec. 4.
Duties of Quartermaster General.
Sec. 711. The quartermaster general shall keep in good order and
preservation all ordnance and ordnance stores, clothing and equip-
ment, camp and garrison equipage, flags, banners and military relics
of all description, which are the property of the State and not issued
to troops, and shall have control of the same, subject to the order
of the commander in chief. He shall, upon requisition properly
approved, issue ordnance and ordnance stores, clothing, camp and
garrison equipage and such other stores as may be necessary to the
respective commands.
Historical: Laws 1907, 195, Art. 3,
Sec. 2.
Bonds of Disbursing Officers.
Sec. 712. The adjutant general shall require a bond from all dis-
bursing officers of his department and other officers in charge of
public property, the amount to be fixed by the State Military Board
and approved by the commander in chief, which bonds, when ap-
proved by the military board, shall be filed in the office of the adju-
tant general.
Historical: Laws 190 7, 195, Art. 3,
Sec. 3.
Distribution of Rosters and Papers.
Sec. 713. The adjutant general shall provide the several depart-
ments, on their requisition, with the necessary rosters, books of
422 STATE MILITIA Tit. 5
record, blank warrants, enlistments, discharges, rolls, and other
papers required by law and regulation, at the expense of the State.
Historical: Laws 1907. 195, Art. 3,
Sec. 4.
Salary of Adjutant General and Clerk.
Sec. 714. The annual compensation of the adjutant general in
time of peace shall be one thousand eight hundred dollars, and it
shall be payable monthly out of the general fund not otherwise ap-
propriated. The salary of the chief clerk and military store keeper
shall be one thousand two hundred dollars annually, payable monthly
out of the general fund not otherwise appropriated.
Historical: Laws 1907, 195, Art. 3,
Sec. 5.
Annual Appropriation for Expenses.
Sec. 715. For the purpose of defraying the current expenses of the
militia; extra clerical hire and labor in State armory when required
by the adjutant general or the quartermaster general ; the arming and
equipping of companies thereof as they are organized, freight, ex-
pressage, telegraph, telephone, printing of necessary blank forms,
orders, circulars, paper, envelopes and postage for the official use
of the adjutant general's office and of regimental, battalion, and com-
pany commanders, and such other imperative expenses not herein
enumerated, there is hereby appropriated out of the general fund,
not otherwise appropriated, the sum of two thousand six hundred
dollars annually.
Historical: Laws 1907, 195, Art. 3,
Sec. 6.
CHAPTER 4.
DISCIPLINE, UNIFORMS, DRILLS AND ENCAMPMENTS.
Section
716. Regulations governing- National
Guard.
717. Attendance at drills and target
practice.
718. Failure to attend a misde-
meanor.
719. Discharge for non-attendance:
Re-instatement.
720. Uniforms of officers.
721. Same: Allowance for uniforms.
722. Full dress uniforms.
Section
723. Penalty for losing military
property.
724. Unauthorized wearing or dis-
posing of uniforms.
725. Annual encampments.
726. Pay of officers and men in ser-
vice.
727. Same: Audit and allowance of
pay.
728. Same: Officers serving on
boards.
Regulations Governing National Guard.
Sec. 716. The National Guard of Idaho shall be governed by the
military law of the State, the code of regulations, the orders of the
commander in chief, and, wherever applicable, by the regulations,
articles of war, and customs of the service in the United States army.
Historical: Laws 1907, 195, Art. 4,
Sec. 1.
Attendance at Drills and Target Practice.
Sec. 717. Officers and enlisted men of each company, troop or
Ch. 4. DISCIPLINE, UNIFORMS, DRILLS, ETC. 423
battery, shall assemble for and undergo drill and instruction at the
company, troop or battery armories, or for target practice, when
ordered so to do by the commanding officer of such company, troop
lc battery.
Historical: Laws 1907, 195, Art. 4,
Sec. 2.
Failure to Attend a Misdemeanor.
Sec. 718. Any officer or member of any company, troop or battery
who absents himself from any meeting for drill or instruction with-
out written consent of the officer in command, having been ordered
to attend by general or special order, shall be guilty of a misde-
meanor, and it shall be the duty of the commanding officer of such
company to cause a warrant for his arrest to be issued, and he shall
be tried before a justice of the peace as in the case of other mis-
demeanors, and upon conviction thereof shall be imprisoned in the
county jail for a period not exceeding thirty days, or by a fine not
exceeding one hundred dollars, or punished by both such fine and im-
prisonment.
Historical: Laws 1907, 195, Art. 4,
Sec. 3.
Discarge for Non- Attendance : Reinstatement.
Sec. 719. Any member who absents himself from all meetings for
instruction during a period of thirty days, unless properly excused
by his commanding officer, shall, in addition to all other penalties,
be debarred from the exemption from jury duty, be considered a
deserter, and be dishonorably discharged. Any enlisted man may be
so punished for absence from his command when called out for the
suppression of riot or for any other active duty, for drunkenness,
immoral conduct or insubordination, continued non-attendance at
drills, or refusal to pay any fine properly imposed. Any enlisted man
dishonorably discharged may, at the discretion of the Governor, be
reinstated, provided his application for reinstatement is approved
by the officer who made the application for his discharge, and pro-
vided that upon reinstatement he re-enters the service and ser/es
out the unexpired term of his enlistment.
Historical: Laws 1907, 195, Art. 4,
Sec. 4.
Uniforms of Officers.
Sec. 720. The uniform and equipment of all the officers in the Na-
tional Guard shall be the uniform of the officers of the United States
army, except as to such minor changes as may be ordered by the
commander in chief. The letters "I-D-A" (abbreviation for the word
"Idaho") shall appear on collars of all uniforms. The button shall
have the coat of arms of the United States. Facings shall constitute
a part of the uniform and these facings shall be distinct for each
regiment, squadron or battery.
Historical: Laws 1907, 195, Art. 4,
Sec. 5.
Same: Allowance for Uniform.
Sec. 721. Commissioned officers shall receive annually the sum of
424 STATE MILITIA Tit. 5
thirty dollars and mounted officers the sum of fifty dollars to assist
in uniforming and equipping themselves, but not until they have
performed eighty per centum of all ordered duty, and been in active
service as such a calendar year of twelve months from date of com-
mission.
Historical: Laws 1907, 195, Art. 4,
Sec. 6.
Full Dress Uniforms.
Sec. 722. Each regiment, squadron or battery may also be
equipped with full dress uniform at the expense of the individual
members, unless otherwise provided by the Legislature. But no
uniform shall be selected for this purpose until recommended by a
board of officers, and the recommendation shall have been approved
by the commander in chief.
Historical: Laws 1907, 195, Art. 4,
Sec. 7.
Penalty for Losing Military Property.
Sec. 723. Any member of the National Guard losing, destroying,
mutilating, or making away with, any of the military property of
the United States, thus furnished, or any part thereof, shall be pun-
ished at the discretion of a court martial.
Historical: Laws 1907, 195, Art. 4,
Sec. 8.
Unauthorized Wearing or Disposing of Uniforms.
Sec. 724. It shall be unlawful for any person, not a member of
the National Guard, to wear any portion of the uniform prescribed
for the National Guard of this State. Any person so offending shall,
upon conviction, be fined in the sum of not less than five nor more
than twenty-five dollars, or imprisoned in the county jail for a period
of not more than twenty-five days. And whosoever shall secrete,
sell, dispose of, offer for sale, purchase or retain, after proper de-
mand is made, or in any manner pawn or pledge, any uniform, over-
coat, clothing or equipage, or any part thereof, which shall have
been issued by the State, or purchased with company funds,
shall be guilty of a misdemeanor, and shall be punished by
imprisonment in the county jail for not less than one, nor more than
three months, or by a fine of not more than one hundred dollars, nor
less than fifty dollars.
Historical: Laws 1907, 195, Art. 4,
Sec. 9.
Annual Encampments-
Sec. 725. It shall be the duty of the commander in chief, under
Sections 14 and 18 of an act of Congress, entitled "An Act to Promote
the Efficiency of the Militia, and for Other Purposes," approved
January 21, 1903, to order an encampment of the National Guard to
be held each year, such encampment to be held at some convenient
point to be selected by the commander in chief. At least one month's
notice of such encampment shall be given each company commander
by his commanding officer.
Ch. 4.
DISCIPLINE, UNIFORMS, DRILLS, ETC.
425
Historical: Laws 1907, 195, Art. 4,
Sec. 10. The words "of Congress, enti-
tled An Act" are inserted to define
the act referred to. The sections in-
dicated are as follows:
Sec. 14. That whenever it shall ap-
pear by the report of inspections,
which it shall be the duty of the Sec-
retary of War to cause to be made
at least once in each year by officers
detailed by him for that purpose, that
the organized militia of a State or
Territory or of the District of Colum-
bia is sufficiently armed, uniformed,
and equipped for active duty in the
field, the Secretary of War is author-
ized, on the requisition of the Gover-
nor of such State or Territory, to pay
to the cuartermaster general thereof,
or to such other officer of the militia
of said State as the said Governor may
designate and appoint for the pur-
pose, so much of its allotment out of
the said annual appropriation under
section sixteen hundred and sixty-one
of the Revised Statutes as amended as
shall be necessary for the payment,
subsistence, and transportation of
such portion of said organized militia
as shall engage in actual field or camp
service for instruction, and the officers
and enlisted men of such militia while
so engaged shall be entitled to the
same pay, subsistence, and transporta-
tion or travel allowances as officers
and enlisted men of corresponding
grades of the Regular Army are or
may hereafter be entitled by law, and
the officer so designated and ap-
pointed shall be regarded as a dis-
bursing officer of the United States,
and shall render his accounts through
the War Department to the proper
accounting officers of the Treasury for
settlement, and he shall be required
to give good and sufficient bonds to
the United States, in such sums as the
Secretary of War may direct, faith-
fully to account for the safe-keeping
and payment of the public moneys so
intrusted to him for disbursement.
Sec. 18. That each State or Terri-
tory furnished with material of war
under the provisions of this or former
acts of Congress shall, during the year
next preceding each annual allotment
of funds, in accordance with section
sixteen Hundred and sixty-one of the
Revised Statutes as amended, have
required every company, troop, and
battery in its organized militia not ex-
cused by the Governor of such State
or Territory to participate in practice
marches or go into camp of instruc-
tion at least five consecutive days, and
to assemble for drill and instruction at
company, battalion, or regimental ar-
mories or rendezvous or for target
practice not less than twenty-four
times, and shall also have required
during such year an inspection of each
such company, troop, and battery to
be made by an officer of such militia
or an officer of the Regular Army.
Pay of Officers and Men in Service.
Sec. 726. Officers and enlisted men, when serving under the orders
of the Governor to prevent violation of the laws of the State, or to
prevent or suppress riot or insurrection, or to repel or prevent in-
vasion, or during State encampments or maneuvers, shall, until such
time as other provision is made for the payment of the services
rendered, receive pay out of the general fund of the State, not other-
wise appropriated, at the following rates : All commissioned officers
shall receive the same pay as is paid to the United States army officers
of like grade. Sergeant majors, quartermaster sergeants and hos-
pital stewards shall be paid the sum of two dollars per day for the
first twenty days' service; first sergeants and acting hospital stew-
ards, one dollar and seventy cents per day for the first twenty
days' service; sergeants and corporals, one dollar and sixty-five cents
per day for the first twenty days' service, and privates one dollar
and fifty cents per day for the first twenty days' service. After
twenty days' service, fifty cents less per day shall be paid to each
of the above non-commissioned officers and privates. The necessary
transportation, medical attendance and supplies, quarters and sub-
sistence, shall also be provided for them, and reasonable allowance
shall also be made for animals necessarily used.
When the troops of the State, by order of the Governor, shall
engage in any encampment or maneuver in conjunction with troops
of the United States army, in which case they receive the same pay
as officers and men of like grade in the United States army, the
426
STATE MILITIA
Tit. 5
enlisted men shall receive the same pay as in case of State encamp-
ment, less the pay received from the United States Government.
Historical: Laws 1907, 195, Art. 4,
Sec. 11.
Same: Audit and Allowance of Pay.
Sec. 727. Payments under the preceding section shall be made by
the paymaster; no voucher for any such payment shall be audited
unless certified as correct by the proper commanding officer and
passed upon by the State Military Board; pay rolls of companies,
troops and batteries, and also of field officers, non-commissioned staff
of bands and regiments, shall be furnished and certified to by the
commanding officer of such organizations.
Historical: Laws 1907, 195, Art. 4,
Sec. 12
Same: Officers Serving on Boards.
Sec. 728. All officers detailed to serve on any board, commission
or court, ordered by the Governor or under his authority by the
commanding officer of the National Guard, or by other proper au-
thority in pursuance of any provision of this title, shall be paid their
actual expenses for each day actually employed in such board, com-
mission or court, or traveling to and from the same; and shall be
allowed mileage at the rate of seven cents for each mile necessarily
traveled, going and returning. All such claims, under the provisions
of the above section, shall be allowed by the State Auditor and pay-
ment made out of the general fund of the State, not otherwise ap-
propriated: Provided, Any or all such claims have been certified
as correct and passed upon by the State Military Board, and are
accompanied by all receipts and vouchers covering the same.
Historical: Laws 1907, 195, Art. 4,
Sec. 13.
CHAPTER 5.
MILITARY COURTS.
Section
729. Military courts enumerated.
730. Manner of ordering- courts.
731. Same: General courts martial.
732. Transmission of proceedings.
733. Attendance of witnesses.
Section
734. Collection of fines
735
736.
Fines and dues paid to com-
pany treasurers.
Imprisonment for non-payment
of fine.
Military Courts Enumerated.
Sec. 729. The military courts of this State shall be: (a) courts
of inquiry; (b) general courts martial; (c) summary courts.
Historical: Laws 1907, 195, Art. 5,
Sec. 1.
Manner of Ordering Courts.
Sec. 730. Courts of inquiry and summary or garrison courts may
be ordered under such regulations as may be prescribed by the Mili-
tary Board in the Code of Regulation provided for in Section 716.
Historical: Laws 1907, 195, Art. 5,
Sec. 2.
Ch. 5. MILITARY COURTS 427
-
Same: General Courts Martial.
Sec. 731. General courts martial for the trial of officers and en-
listed men upon charges and specifications preferred by commissioned
officers shall be ordered by the commander in chief, and shall consist
of not less than five nor more than nine members and a judge advo-
cate. The jurisdiction and mode of procedure of general courts
martial shall conform to the jurisdiction and practice of like courts
in the United States army.
Historical: Laws 1907, 195, Art. 5,
Sec. 3.
Transmission of Proceedings.
Sec. 732. The proceedings of all general courts martial, and all
papers relating thereto, shall be transmitted to the adjutant general
for the action of the commander in chief.
Historical: Laws 19 07, 195, Art. 5,
Sec. 4.
Attendance of Witnesses.
Sec. 733. The president of the courts martial, court of inquiry,
or summary court, may issue subpoenas and force the attendance of
witnesses, and punish a refusal, as provided for in civil court.
Historical: Laws 1907, 195, Art. 5,
Sec. 5.
Collection of Fines.
Sec. 734. When fines assessed by courts martial or courts of in-
quiry are not paid within ten days after the sentence is approved,
a list thereof, and of the delinquents, certified by the judge advocate
of such courts martial or courts of inquiry, shall be placed in the
hands of the justices of the peace, within the precinct in which the
delinquents reside, who shall thereupon render judgment against such
delinquents, separately, together with the costs of suits, without
issuing process, and shall issue process thereon, directed to any con-
stable of the proper precinct who shall collect the same; and the
money so collected shall, after deduction of costs, be paid over to
such justices, who shall immediately dispose of the same as herein
provided.
Historical: Laws 1907, 195, Art. 5,
Sec. 6.
Fines and Dues Paid to Company Treasurers.
Sec. 735. Fines assessed by courts martial, and dues, shall, when
collected, be paid to the treasurer of the proper company, troop or
battery for the use of the organization, and all other fines shall, when
collected, be paid into the treasury of the proper county, to the credit
of the State military fund.
Historical: Laws 1907, 195, Art. 5,
Sec. 7.
Imprisonment for Non-Payment of Fine.
Sec. 736. Whenever any constable to whom execution shall have
been issued, as provided in Section 734, shall fail to discover sufficient
428
STATE MILITIA
Tit. 5
goods and chattels to satisfy the same, he shall take the body of such
delinquent and carry him to the common jail of such county; the
jailer shall keep the said delinquent closely confined, without bail,
for one day for any fine or penalty not exceeding one dollar, and
one additional day for each additional dollar, unless the fine or pen-
alty, together with the costs, be sooner paid; but no such imprison-
ment shall extend beyond the period of thirty days: Provided, how-
ever, That the prisoner may be liberated at any time by order of
the officer who ordered the court that imposed the fine and penalty.
Historical: Laws 1907, 195, Art. 5,
Sec. 8.
CHAPTER 6.
MISCELLANEOUS.
in United States
Section
737. Enlistment
army.
President may order guard into
service.
Service in case of invasion or in-
surrection.
Same: Troops called to colors.
Same: Notice to men to appear.
Same: Punishment for refusal
to obey.
Records to be kept by adjutants
and sergeants.
738.
739.
740.
741.
742.
743.
Section
744. Muster rolls and returns.
745. Returns of military property.
746. Custodians of funds to give
bonds.
74.7. National Guard associations.
748. Distribution of copies of title.
749. State flag.
750. Loan of arms to Grand army
posts.
Enlistment in United States Army.
Sec. 737. When the State shall be called upon to furnish volun-
teers, the members of the National Guard shall be given preference
in enlistment, but no member of the National Guard shall be required
to enlist in the army of the United States in the event of war.
Historical: Laws 1907. 195, Art. 6,
Sec. 1.
President May Order Guard Into Service.
Sec. 738. The National Guard of this State may be ordered into
the service of the United States by the President of the United States,
for any purpose for which he is authorized to use the militia of the
State by the Constitution and statutes of the United States.
Historical: Laws 1907, 195, Art. 6,
Sec. 2.
Service in Case of Invasion or Insurrection.
Sec. 739. When an invasion is made or an insurrection occurs, or
is threatened, the Governor shall order the National Guard to repel
or suppress the same. When there is in any town, city or county,
a tumult, riot, mob or body of men, acting together by force with
attempt to commit a felony or to offer violence to persons or property
or by force and violence to break and resist the laws of the State,
or when such tumult, riot or mob is threatened, and the fact is made
to appear to the Governor, the sheriff of the county, or the mayor
of the city or town, the Governor may issue his orders to any com-
Ch. 6. MISCELLANEOUS 429
manding officer of any portion of the National Guard, directing him
to order his command to appear at a time and place designated, to
aid the civil authorities to suppress such violence and to support
the law.
Historical: Laws 1907, 195, Art. 6,
Sec. 3.
Same: Troops Called to Colors.
Sec. 740. The officer to whom the order or call is directed, shall
forthwith order the troops therein mentioned to parade at the time
and place appointed ; and if he neglects or refuses to obey, or if any
officer refuses or neglects to obey, any such order issued in pursuance
of any such call, he shall be cashiered, and be further punished by
a fine of not less than one hundred dollars, and not more than one
thousand dollars, or imprisonment not to exceed six months, or both,
at the discretion of the court martial; or a person who advises or
endeavors to persuade an officer or soldier to refuse or neglect to
appear at such place, or to obey such order, shall, on conviction
thereof by the District Court, be imprisoned not to exceed six months,
or fined not to exceed one thousand dollars, or both, at the discretion
of the court. All fines assessed under this section shall be paid to
the treasurer of the State for the benefit of the State military fund.
Historical: Laws 1907, 195, Art. 6,
Sec. 4.
Same: Notice to Men to Appear.
Sec. 741. When the commanding officer of a company, troop, or
battery orders out his command for such duty, he may order enlisted
men to notify the men in such organization to appear at the time
and place appointed. These men shall give notice of such time and
place of meeting to each man personally, or by leaving at his usual
place of abode a written or printed order, signed by the enlisted men
serving the same, which notice shall be sufficient warning.
Historical: Laws 1907, 195, Art. 6,
Sec. 5.
Same: Punisment for Refusal to Obey.
Sec. 742. Every enlisted man who refuses or neglects to serve
such notice, when duly ordered so to do, and every officer and en-
listed man who, having been served with notice as provided in the
preceding section, refuses or neglects to obey the same promptly,
shall be fined not less than five nor more than one hundred dollars,
at the discretion of the court martial. All fines assessed under this
section shall be paid to the treasurer of the proper county for the
benefit of the State military fund.
Historical: Laws 1907, 195, Art. 6,
Sec. 6.
Records to Be Kept by Adjutants and Sergeants.
Sec. 743. Adjutants of battalions and squadrons, and first ser-
geants of troops, batteries, companies, etc., shall attend to, and record
in books to be provided for that purpose, all returns made; and per-
form such other duties as may, from time to time, be required of
430 . STATE MILITIA Tit. 5
them by the commandant of the organization. In case of their ab-
sence suitable persons shall be required to perform their duties.
Historical: Laws 1907, 195, Art. 6,
Sec. 7.
Muster Rolls and Returns.
Sec. 744. The commanding officer of each company, troop, or
battery, shall annually, in March, furnish the adjutant general a
muster roll of his company, and shall, within ten days after each
encampment required by law, make a return to the battalion or squad-
ron commander showing the state of his company with the number
enrolled therein, and the condition of all their arms, uniforms, equip-
ments and ammunition. The commander of each regiment, squadron
or battery shall, within twenty days after each encampment, make to
the adjutant general a like report of his command.
Historical: Laws 1907, 195, Art. 6,
Sec. 8.
Returns of Military Property.
Sec. 745. Every officer, or other person, having the custody or
control of the military property of the State, shall, from time to time,
make a- return of the same in such departments as the regulations
may require.
Historical: Laws 1907, 195, Art. 6,
Sec. 9.
Custodian of Funds to Give Bonds.
Sec. 746. Every person having the custody of the funds of any
military organization, shall enter into bonds, in twice the amount
likely to be held in his hands at any time, but never in less amount
than one hundred dollars, with not less than two good and sufficient
sureties to be approved by the county clerk of the county in which
said sureties reside, payable to the State of Idaho for the use of
such organization, for the faithful and honest discharge of his duties,
and the careful keeping and disbursements of said funds.
Historical: Laws 1907, 195. Art. 6,
Sec. 10. . ' .
National Guard Associations.
Sec. 747. The officers of any regiment, or battalion or squadron
not part of their regiment, and members of any troop, battery, com-
pany, signal corps, hospital corps, or field music, may organize them-
selves into an association, of which the commanding officer shall be
president, and, by a vote of two-thirds of all their members, form
by-laws, rules and regulations not inconsistent with this title, and
which shall conform to the system prescribed in general regulations,
and be submitted to the commanding officer of the National Guard
for his approval, and when approved by him, such by-laws, rules
and regulations shall be binding upon all commissioned officers and
enlisted men therein, but they may be altered in the manner provided
for their adoption, from time to time, as may be found necessary.
Historical: Laws 1907, 195, Art. 6,
Sec. 11.
Ch. 6. MISCELLANEOUS. 431
Distribution of Copies of Title.
Sec. 748. The Governor shall, from time to time, cause such num-
bers of this title as may be deemed necessary to be printed, and the
same shall be distributed to the National Guard by the adjutant
general.
Historical: Laws 1907, 195, Art. 6,
Sec. 12.
State Flag.
Sec. 749. A State flag for the State of Idaho is hereby adopted,
the same to be as follows : The State flag of the State of Idaho shall
be blue, charged with the name of the State, in such colors and of
such size and dimensions as shall be prescribed by the adjutant
general of the State of Idaho. Said adjutant general shall have
general supervision over the form and construction of said flag.
Historical: Laws 1907, 304, Sees. 1,
2.
Loan of Arms to Grand Army Posts.
Sec. 750. The Governor of this State is hereby empowered to loan
to the Grand Army posts within the State, arms and equipments not
to exceed six stands to each post, upon said Grand Army posts re-
ceipting for the same; with a provision that they be returned on
demand and without expense to the State. In case any part of said
arms and equipments are lost by fire or otherwise, the value thereof,
as stipulated when the arms were drawn, together with the freight
thereon, shall be returned to the State Treasury.
Historical: Rev. St. 1887, Sec. 742.
Vol. 1 — 15
TITLE 6
PUBLIC INSTITUTIONS
Chapter
1. Insane asylums.
2. Soldiers' Home.
3. School for deaf, dumb and blind.
Industrial Training School.
Law libraries.
4.
5.
Chapter.
6. Historical Society.
7. Grand Army headquarters.
8. State fish hatchery.
9. Purchase of supplies for institu-
tions.
Note: For State Penitentiary, see Pen. Code Sees. 8460-8512.
CHAPTER 1.
INSANE ASYLUMS.
Article
1. Government of asylum.
2. Commitment to asylum.
Article
3. North Idaho Insane Asylum.
ARTICLE 1.
GOVERNMENT OF ASYLUM.
Section
751. Board of directors.
752. Appointment of board.
753. Same: Powers and duties.
754. Audit and payment of expenses.
755. Officers not to be interested in
contracts.
756. Compensation of directors.
757. Medical superintendent: Qualifi-
cations.
758. Same: Residence and general
duties.
759. Same: Powers and duties.
Section
760. Same: Estimate of expenses.
761. Same: Salary.
762: Same: Bond.
763: Salaries: When payable.
764. Approval of bonds.
765. Discharge of patients.
766. Insane convicts.
76 7. Sufferers from contagious
eases excluded.
768. Admission of non-residents.
769. Repayment of money on dis-
charge of patient.
dis-
Board of Directors.
Sec. 751. The Idaho Insane Asylum, located at Blackfoot, is under
the management and control of a board of directors, consisting of
three persons.
Historical: Rev. St. 1887, Sec. 750.
13 Ter. Ses. (1885) 62, Sec. 10.
(California Legislation: See Pol.
Code 1872, Sec. 2136; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Cross Reference: Directors to have
control and management of the asy-
lum, and to appoint a medical super-
intendent: Const Art. 10, Sec. 6.
Cited: (Dis. op.) Pyke v. Steunen-
berg (1897) 5 Ida. 614; 51 Pac. 614.
Appointment of Board.
Sec. 752. Said board of directors must be nominated, and, by and
with the advice and consent of the Senate, appointed by the Governor.
Their term of office is two years and until their successors are ap-
pointed and qualified. Before entering upon the duties of their office
Ch. 1. Art. 1. INSANE ASYLUMS — GOVERNMENT
433
by the Senate: Const. Art. 10, Sec. 6.
Cited: (Dis. op.) Pyke v. Steunen-
berg (1897) 5 Ida. 614; 51 Pac. 614.
they must each take and subscribe an oath to support the Constitution
of the United States and well and faithfully discharge their duties
according to law, and the oath provided for county officers. They
must elect one of their number president, and another secretary.
Historical: Rev. St. 1887, Sec. 751.
See 13 Ter. Ses. (1885) 62, Sec. 10.
Cross Reference: Governor to ap-
point directors subject to confirmation
Same: Powers and Duties.
Sec. 753. The powers and duties of the board of directors of the
Insane Asylum are as follows:
1. .To make by-laws, not inconsistent with the laws of this State,
for their own government and the government of the asylum ;
2. To hold stated meetings at the asylum for the transaction
of business quarterly, and they may provide in their by-laws for
calling special meetings when necessary;
3. To keep a record of their proceedings open at all times to the
inspection of any citizen;
4. To elect a medical superintendent, to hold his office during the
pleasure of the board;
5. To receive, take and hold property, both real and personal, in
trust for the State and for the use and benefit of the asylum;
6. To appoint all officers and employes of the asylum, prescribe
their duties, and remove them when in their judgment the good of
the public service requires;
7. To visit the asylum once in three months, and keep themselves
constantly advised of all items of labor and expense, and the condi-
tion of the buildings and the property of the asylum, and they shall
have power to make such improvements as, in their judgment, are
actually necessary for the care of the inmates. The board have dis-
cretionary power in case of absolute necessity to remove patients to
the nearest possible safe and appropriate place;
8. To cause the accounts of the asylum to be so kept and re-
ported as to show the quality, quantity, cost and vendor of every
article purchased;
9. To examine and audit the expenditures for salary of em-
ployes, and all other expenses incident to the conduct of the asylum,
and care and maintenance of the patients, and if approved by them,
to certify the same to the Auditor;
10. To make regulations and fix the terms for the admission
of insane persons who are not indigent or who are not residents of
the State. All receipts from such source must be paid into the State
Treasury ;
11. To make diligent inquiry into the departments of labor and
expenses, the condition of the asylum and its property;
12. To report to the Governor on the 15th day of September in
each year, a statement of the receipts and expenditures, the con-
dition of the asylum, the number of patients during the preceding
year under treatment, and of such other matters touching the duties
of the board as is advisable. To make a bi-ennial report to the Gov-
ernor substantially in the same manner as above, on or before the
434
PUBLIC INSTITUTIONS
Tit. 6
first day of December prior to each session of the Legislature. To
report to the State Auditor, which must be a certified copy of the
records of each meeting of the board.
California Legislation: Similar
through subd. 4: Pol. Code, 1872, Sec.
2137; as amended: Deering's Code, ib.;
repealed: Kerr's Code, ib.
Cited: (Dis. op.) Pyke v. Steunen-
berg (1897) 5 Ida. 614; 51 Pac. 614.
Historical: Rev. St. 1887, Sec. 752.
(See 13 Ter. Ses. (1885) 62, Sees. 12,
13.) Omitting the last clause of subd.
7, providing for improvements during
1887 and 1888, and requiring the bien-
nial report to be made on or before
the first day of December, instead of
30 days before the session of the Leg-
islature (subd. 12) to conform to Laws
1903, 149 (Codes, Sec. 279).
Audit and Payment of Expenses.
Sec. 754. All itemized bills of purchases and other expenditures
made, when examined by the board of directors and found correct,
must be certified by the president of the board then sitting, and the
same transmitted to the Auditor to be audited and allowed in the
same manner as other accounts against the State are audited and
allowed. The State Auditor must draw his warrant on the State
Treasurer for the amount so audited. The said Treasurer is hereby
authorized and required to pay the same out of any money in the
State Treasury appropriated therefor.
Historical: Rev. St. 1887, Sec. 753.
(See 13 Ter. Ses. (1885) 62, Sec. 19.)
Rewritten by omitting the provision
requiring the Auditor to audit and
allow the accounts, such duty being
devolved on the Board of Examiners
under Const. Art. 4, Sec. 18, and by
substituting the words "appropriated
therefor" in place of "not otherwise
Officers Not to Be Interested in Contracts.
Sec. 755. No director, superintendent or employe must be pecuni-
arily interested in any contract for supplies furnished for the asylum.
appropriated," to conform to Const.
Art. 7, Sec. 13.
California Legislation: See Pol.
Code 1872, Sec. 2138; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Cited: (Dis. op.) Pyke v. Steunen-
berg (1897) 5 Ida. 614; 51 Pac. 614.
Historical: Rev. St. 1887, Sec. 754.
(See 13 Ter. Ses. (1885) 62, Sec. 18.)
Last sentence of section. The first
part, relating to letting contracts for
supplies, is superseded by Laws 1905,
38 (Sees. 863-866 post.)
California Legislation: See Pol-
Code 1872, Sec. 2139; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Cross Reference: Contract for sup-
plies: Sees. 863-866.
Compensation of Directors.
Sec. 756. The directors must each be paid five dollars per day for
each day actually employed, which must include the time employed
in traveling to and from the asylum : Provided, That no director shall
receive more than one hundred dollars per annum for per diem
service, and in performing the necessary visitations required by this
chapter, and must be reimbursed for all the necessary expenditures
incurred in their official duties ; such accounts to be allowed and paid
as other accounts against the asylum are allowed and paid.
Historical: Rev. St. 1887, Sec. 755.
See 13 Ter. Ses. (1885) 62, Sec. 15.
The punctuation and paragraphing is
changed to express what seemed to be
the meaning of the section.
California Legislation: See Pol.
Code 1872, Sec. 2140; as amended:
Deering's Code, ib.; repealed: Kerr's
Code, ib.
Ch. 1. Art. 1.
INSANE ASYLUMS — GOVERNMENT
435
Medical Superintendent: Qualifications.
Sec. 757. The medical superintendent must be a graduate in medi-
cine and must have practiced his profession five years after the date
of his diploma.
Historical: Rev. St. 1887, Sec. 756.
See 13 Ter. Ses. (1885) 62, Sec. 13.
California Legislation: Same: Pol.
Code 1872, Sec. 2150; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Same: Residence and General Duties.
Sec. 758. He must reside at the asylum and give his entire time
and attention to promote the best interests of the patients. His duties
not specified in this chapter, must be prescribed by the board of
directors in their by-laws.
Historical: Rev. St. 1887, Sec. 757.
See Ter. Ses. (1885) 62, Sec. 13.
Same : Powers and Duties.
Sec. 759. He is the chief executive officer of the asylum, with
powers and duties as follows :
1. To control the patients, prescribe the treatment and prescribe
and enforce the sanitary regulations of the asylum ;
2. With the consent of the board of directors, to fix the number
and compensation of, and appoint, control and remove, the attendants
and assistants;
3. To prescribe and enforce the performance of the duties of the
attendants and assistants;
4. To ascertain and report to the board of directors the amount,
character and quality of provisions, fuel and clothing required for
the six months ending on the first of June and December in each
year;
5. With the consent of the board of directors to make any ex-
penditure necessary in the performance of his duties, except for pro-
visions, fuel and clothing;
6. To receive and pay to the State Treasurer all moneys found
upon insane persons;
7. To keep a daily record of his official acts in the mode pre-
scribed by the by-laws ;
8. To make up his annual accounts to the first of July in each
year, and as soon thereafter as possible to report a statement thereof,
and of the general condition of the asylum, to the board of directors.
Historical: Rev. St. 1887, Sec. 758.
See 13 Ter. Ses. (1885) 62, Sec. 18.
California Legislation: Similar: Pol.
Code 1872, Sec. 2152; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Same: Estimate of Expenses.
Sec. 760. He must estimate quarterly in advance, the probable
expenses of the asylum, and submit such estimate to the directors at
their stated meetings, for their consideration and approval.
Historical: Rev. St. 1887, Sec. 759. Code 1872, Sec. 2153; Deering's Code,
See 13 Ter. Ses. (1885) 62, Sec. 18. ib.; repealed: Kerr's Code, ib.
California Legislation: Same: Pol.
436
PUBLIC INSTITUTIONS
Tit. 6
Same : Salary.
Sec. 761. The salary of the medical superintendent must be fixed
by the board of directors.
Historical: Rev. St. 1887, Sec. 760.
See 13 Ter. Ses. (1885) 62, Sec. 13.
California Legislation : See Pol.
Code 1872, Sec. 2154; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Same : Bond.
Sec. 762. He must execute an official bond in the sum of five thou-
sand dollars, with two or more sufficient sureties, conditioned that he
will faithfully discharge his duties as such officer.
Historical: Rev. St. 1887, Sec. 761.
See 13 Ter. Ses. (1885) 62, Sec. 13.
California Legislation : See Pol.
Code 1872, See 2155; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Salaries: When Payable.
Sec. 763. The salaries and compensation fixed by the provisions of
this chapter must be paid quarterly.
Historical: Rev. St. 1887, Sec. 762.
See 13 Ter. Ses. (1885) 62, Sec. 14.
California Legislation: See Pol:
Code 1872, Sec. 2193; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Approval of Bonds.
Sec. 764. The official bonds required by the provisions of this
chapter must be approved by the board of directors, and filed in the
office of the Auditor.
Historical: Rev. St. 1887, Sec. 763.
See 13 Ter. Ses. (1885) 62, Sec. 13.
California Legislation: Similar: Pol.
Code 1872, Sec. 2194; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Discharge of Patients.
Sec. 765. Insane persons received in the asylum must upon re-
covery be discharged therefrom.
Code 1872. Sec. 2197; Deering's Code.
ib.; repealed: Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 764.
California Legislation: Same: Pol.
Insane Convicts.
Sec. 766. Insane convicts must be received into the insane asylum,
and returned to the State Prison again as provided in the Penal Code.
Historical: Rev. St. 18 87, Sec. 765.
See 13 Ter. Ses. (1885) 62, Sec. 32.
California Legislation: Same except
"section 1230 of" inserted after "in"
last line: Pol. Code 1872, Sec. 2198;
Deering's Code, ib.; repealed: Kerr's
Code, ib.
Cross Reference: Receipt and re-
turn of insane convicts: Sees. 8194-
8200.
Sufferers From Contagious Diseases Excluded.
Sec. 767. No person laboring under any contagious or infectious
disease must be admitted into the asylum as a patient.
Historical: Rev. St. 1887, Sec. 766.
See 13 Ter. Ses. (1885) 62, Sec. 20.
Admission of Non-Residents.
Sec. 768. No insane person non-resident of this State, must be
received into the asylum unless he became insane within this State,
and the indigent insane of this State must have the preference.
Ch. 1. Art. 2.
INSANE ASYLUMS — COMMITMENT
437
Historical: Rev. St. 18 87 Sec. 767.
See 13 Ter. Ses. (1885) 62, Sec. 21.
California Legislation : Same
through "state," line 3, rest omitted:
Pol. Code 1872, Sec. 2199; Deering's
Code, ib.; repealed; Kerr's Code, ib.
Repayment of Money on Discharge of Patient.
Sec. 769. If, at the time of the discharge of a person from the
asylum, or after the death and burial of any person therein confined,
there remains in the custody of the directors or superintendent any
moneys paid for the support or maintenance of such person, it must,
upon demand, be repaid.
Historical: Rev. St. 1887, Sec. 76 8.
California Legislation: Same ex-
cept "Treasurer" for "Superinten-
dent," line 3: Pol. Code 1872, Sec.
2200; Deering's Code, ib.; repealed
Kerr's Code, ib.
ARTICLE 2.
COMMITMENT TO ASYLUM.
Section
Section
779. Money found on insane person.
Cases of idiocy and delirium
tremens excluded.
Conveyance of patient to asy-
lum. .
Fee of physician.
Appointment lof guardian for
insane person.
780.
781.
782.
783.
770. Warrant of arrest.
771. Subpoenas for witnesses.
772. Same: For physician.
773. Examination of witnesses.
774. Same: Of physician.
775. Certificate of physician.
776. Form of certificate.
777. Order of commitment.
778. Duty of sheriff.
Note: Commitment of insane defendant in criminal action to asylum
Sec. 8197.
Warrant of Arrest.
Sec. 770. Whenever it appears! by affidavit to the satisfaction of
a magistrate of the county that any person within the county is so
far disordered in his mind as to endanger health, persons, or prop-
erty, he must issue and deliver to some peace officer for service a
warrant, directing that such person be arrested and taken before
any judge of a court of record within the county for examination.
Historical: Rev. St. 1887, Sec. 769.
See 11 Ter. Ses. (1881) 300.
California Legislation: Same: Pol.
Code 1872, Sec. 2210; Deering'c Code,
ib.; repealed: Kerr's Code, ib.
Subpoenas for Witnesses.
Sec. 771. When the person is taken before the judge, he must
issue subpoenas to two or more witnesses, best acquainted with such
insane person, to appear and testify before him at such examination.
Historical: Rev. St. 1887. Sec. 770.
California Legislation: Same: Pol.
Code 1872, Sec. 2211; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Same : For Physician.
Sec. 772. The judge must also issue subpoenas for at least one
graduate of medicine to appear and attend such examination.
Historical: Rev. St. 1887, Sec. 771.
California Legislation: Same ex-
cept "two" for "one," line 1: Pol. Code
1872, Sec. 2212; Deering's Code, ib.;
repealed: Kerr's Code ib.
438
PUBLIC INSTITUTIONS
Tit. 6
Examination of Witnesses.
Sec. 773. At the examination the persons subpoenaed must appear
and answer all questions pertinent to the matter under investigation.
Historical: Rev. St. 1887, Sec. 772.
California Legislation : Same: Pol.
Code 1872, Sec. 2213; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Same: Of Physician.
Sec. 774. The physician must hear such testimony, and must make
a personal examination of the alleged insane person.
Historical: Rev. St. 1887, Sec. 773.
California Legislation : Same: Pol.
Code 1872, Sec. 2214; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Cited: Corker v. Pence (1906) 12
Ida. 152; 85 Pac. 388.
Certificate of Physician.
Sec. 775. The physician, after hearing the testimony and making
the examination, must, if he believes such person to be dangerously
insane, make a certificate, under his hand, showing as near as
possible :
1. That such person is so far disordered in his mind as to en-
danger health, person, or property ;
2. The premonitory symptoms, apparent cause or class of in-
sanity, the duration and condition of the disease ;
3. The nativity, age, residence, occupation, and previous habits
of the person ;
4. The place from whence the person came, and the length of
his residence in this State.
Historical: Rev. St. 1887, Sec. 774.
California Legislation: Same ex-
cept ("physicians" for "physician";
"they believe" for "he belives";
"their hand" for "his hand," first par-
agraph: Pol. Code 1872, Sec. 2215;
Deering's Code, ib.; see Kerr's Code,
Sec. 2170.
Form of Certificate.
Sec. 776. The certificate must be made in the form prescribed by,
and, if they can be had, upon blanks furnished by, the medical super-
intendent of the asylum.
Historical: Rev. St. 1887, Sec. 775.
California Legislation: Same: Pol.
Code 1872, Sec. 2216; Deering's Code,
ib.; see Kerr's Code, Sec. 2170.
Order of Commitment.
Sec. 777. The judge, after such examination and certificate made,
if he believes the person so far disordered in his mind as to endanger
health, person, or property, must make an order that he be confined
in the Insane Asylum.
Historical: Rev. St. 1887, Sec. 776.
California Legislation : Same: Pol.
Code 1872, Sec. 2217; additional pro-
visions as amended: Deering's Code,
ib.; see Kerr's Code, Sec. 2171.
Duty of Sheriff.
Sec. 778. The insane person, together with the order of the judge
and certificate of the physician, must be delivered to the sheriff of
the county, and by him must be delivered to the agent appointed by
the medical superintendent for the conveyance of such insane person
to the asylum. Immediately upon receiving such insane person, to-
Ch. 1. Art. 2. INSANE ASYLUMS — COMMITMENT 439
gether with the order and certificate aforesaid, the sheriff must im-
mediately notify the medical superintendent of the asylum by tele-
graph, if there be telegraph communication accessible between the
place where such insane person is and the asylum; if not, then the
sheriff shall notify the medical superintendent of the asylum by letter,
to be sent not later than one day after the sheriff receives the order
and certificate aforesaid, of the facts; and at the time of delivering
the order and certificate to the sheriff, the examining physician, or
physicians, together with the judge issuing the order, shall also de-
liver to the sheriff a certificate showing whether, in their judgment,
one or more persons will be required to convey such insane person
to the asylum, and the sheriff shall inform the medical superintendent
of the asylum as to such facts at the time of giving the notice in this
section provided.
Historical: Rev. St. 1887, Sec. 777;
amended Laws 1895, 17, Sec. 1; re-
enacted Laws 1899, 114, Sec. 1.
Money Found on Insane Person.
Sec. 779 Any moneys found on the person of an insane person
at the time of arrest must be certified to by the judge and sent with
such person to the asylum, there to be delivered to the medical super-
intendent, who must deliver the same to the State Treasurer. If the
sum exceed one hundred dollars, the excess must be applied to the
payment of the expenses of such person while in the asylum; if the
sum is one hundred dollars or less, it must be kept and delivered to
the person when discharged, or applied to the payment of funeral
expenses if the person dies at the asylum.
Historical: Rev. St. 18 8 7. Sec. 778. Code 1872, 2219; Deering's Code,
California Legislation: Same: Pol. ' ib-! repealed: Kerr's Code, ib.
Cases of Idiocy and Delirium Tremens Excluded.
Sec. 780. No case of idiocy or imbecility, or simple feebleness of
mind, must be maintained at, nor must any case of delirium tremens
be admitted into, the asylum.
Historical: Rev. St. 1887, Sec. 779. I Code 1872, Sec. 2220; Deering's Code,
California Legislation: Same: Pol. ' ib- repealed: Kerr's Code, ib.
Conveyance of Patient to Asylum.
Sec. 781. Upon receipt of the notice from the sheriff provided for
in Section 778 of this chapter, the medical superintendent must at
once designate some person among the employees of the asylum as
an agent to transport such insane person to the asylum, and, if it
be deemed necessary, he shall designate also from said employees a
person to act as the assistant of such agent. Such agent (and assist-
ant if any be appointed) must at once proceed to the county where
such insane person is in custody, and demand and receive from the
sheriff such insane person, the order of the judge and the certificate
of the physician, the agent receipting to the sheriff therefor. The
agent must thereupon convey such insane person, together with such
order and certificate, to the asylum, and surrender the same to the
medical superintendent; and the latter shall at once notify the Gov-
440
PUBLIC INSTITUTIONS
Tit. 6
ernor that such insane person has been received at said asylum. The
actual and necessary expenses of the agent, his necessary assistant,
and of the insane person when transferred from the custody of the
sheriff to the asylum, must be allowed and paid as other claims
against the asylum ; but the compensation of the agent and necessary
assistant shall be only that allowed them while employed in the
asylum.
Historical: Rev. St. 1887, Sec. 780;
amended Laws 1895, 17, Sec. 2; re-
enacted Laws 1899, 114, Sec. 2.
Fee of Physician.
Sec. 782. The physician attending each examination of an insane
person is allowed five dollars, to be paid by the county treasurer of
the county where the examination was had, on the order of the board
of county commissioners.
Historical: Rev. St. 1887, Sec. 781.
California Legislation: Similar: Pol.
Code 1872, Sec. 2222; Deering's Code,
ib.; repealed: Kerr's Code, ib.
Appointment of Guardian for Insane Person.
Sec. 783. The judge must inquire into the ability of an insane
person committed by him to the asylum to pay for his transportation
to the asylum, and the expense of the examination, and bear the
actual charges and expenses for the time that such person may re-
main in the asylum. In case an insane person committed to the
asylum under the provisions of this chapter is possessed of real or
personal property sufficient to pay such charges and expenses, the
judge must appoint a guardian for such person, who is subject to
all the provisions of the general laws of this State in relation to
guardians, as far as the same are applicable; and When there is not
sufficient money in the hands of the guardian, the judge may order a
sale of property of such insane person, or as much thereof as may
be necessary, and from the proceeds of such sale the guardian must
pay said expenses and the board of directors the sum fixed upon
by them each month, quarterly in advance, for the maintenance of
such ward; and also out of the proceeds of such sale, or such other
funds as he may have belonging to his ward, pay for such clothing
as the medical superintendent may from time to time furnish to
such insane person ; and he must give a bond, with good and sufficient
sureties, payable to the board of directors and approved by the judge,
for the faithful performance of the duties required of him by this
section as long as the property of his insane ward is sufficient for the
purpose.
Historical: Rev. St. 1887, Sec. 782.
ARTICLE 3.
NORTH IDAHO INSANE ASYLUM.
Section
784. Establishment of asylum.
785. Fund created by land grant.
786. Board of directors.
787. Officers, records and proceed-
ings of board.
Section
788. Meetings of board.
7 89. Control of funds.
790. General management of asylum.
791. Persons to be committed.
Ch. 1. Art. 3. INSANE ASYLUMS — NORTH IDAHO ASYLUM
441
Xote: The provisions of the act from which this chapter is taken
(Laws 190 5, 196) relating- to the location and erection of the asylum, are
omitted as now obsolete. The provisions relating- to the issuance of bonds
are also omitted, but are preserved in force by Codes Sec. 17, subd. 57.
Establishment of Asylum.
Sec. 784. A State Insane Asylum, to be known as the Northern
Idaho Insane Asylum, is hereby established, at the town of Orofino,
in the County of Nez Perce.
Historical: Laws 1905, 196, Sec. 1.
Omitting the provisions creating the
commission, and providing for the
location of the asylum, and re-written
to conform to the actual establish-
ment and location of the asylum,
which has been consummated.
Fund Created by Land Grant.
Sec. 785. For the purpose of creating for this institution a per-
manent fund, the State Board of Land Commissioners is hereby di-
rected, and it is made their duty, to set aside forty thousand acres of
land granted to the State of Idaho by the act of Congress, entitled
"An Act to Provide for the Admission of the State of Idaho Into
the Union," approved July 3, 1890, "for other State, charitable, edu-
cational or penal and reformatory purposes," for the exclusive use
and benefit of the aforesaid Insane Asylum. Said lands to be held,
disposed of, and the proceeds thereof used and applied, for the benefit
of said institution, subject to the provisions of said admission act
and the Constitution of the State of Idaho, and, so far as may be
practicable, in conformity with the established procedure of holding,
disposing of and applying, the proceeds of lands granted to the com-
mon schools of the State of Idaho. The Board of Land Commission-
ers are directed to immediately set aside forty thousand acres of
said land, if selected, and if not selected to use the utmost dispatch
in selecting and setting aside the same. The State Board of Land
Commissioners is hereby directed to provide separate record books
in proper form to be known as "Northern Idaho Insane Asylum
Records," in which shall be kept all record of matters relating to
said land.
Historical: Laws 1905, 196, Sec. 3.
Board of Directors.
Sec. 786. For the purpose of managing the said Northern Idaho
Insane Asylum there is hereby created a board of directors. Said
board shall consist of three persons appointed by the Governor, by
and with the consent of the Senate, who shall hold office for a term
of three years, or until their legally appointed successors are qualified :
Provided, That the members of the first board shall be appointed for
one, two and three years, respectively. In case of vacancy in said
board during the recess of the Senate, the Governor shall nominate
some fit person to fill such vacancy until the next meeting of the
Senate. Before entering upon their official duties the directors shall
each take and subscribe to the official oath required by law : Provided,
further, That nothing herein contained shall affect the unexpired terms
of office of the present members of said board.
Historical: Laws 1905, 196, Sec. 12.
Omitting "erecting, equipping and"
before "managing" as now obsolete.
The second proviso is added to pre-
serve the present constitution of the
board.
442
PUBLIC INSTITUTIONS
Tit. 6
Officers, Records and Proceedings of Board.
Sec. 787. The said board of directors shall elect a president, who
shall be one of their number, and a secretary. The president shall
preside at meetings and sign all contracts. The State Treasurer
shall be ex-officio treasurer of said board of directors. The secretary
shall keep a full record of the proceedings of the board in a book pro-
vided for that purpose, an an itemized statement of all accounts
and of all expenditures authorized by said board, and shall perform
such other duties as shall pertain to the office and as shall be required
by the board. A majority of the board of directors shall constitute
a quorum for the transaction of business, but a smaller number may
adjourn from time to time. No member of said board of directors
shall participate in any proceedings in which he or she shall have
personal or pecuniary interests. Every vote and official act of said
board of directors shall be entered on record.
Historical: Laws 1905, 196, Sec. 13.
'Directors" inserted for "trustees" to
conform to the nomenclature of the
preceding section.
Meetings of Board.
Sec. 788. Said board of directors shall hold two meetings at said
asylum, annually, but special meetings may be called by the president
of the board, sending written notices of at least ten days to each
member. The actual and necessary personal expenses for mileage
and board incurred by the members of said board of directors in
carrying out the provisions of this article shall be paid on proper
certificates out of any funds belongong to said asylum in the hands
of the treasurer.
tual" for "natural" expenses, to cor-
rect what seemed to be a clerical
error.
Historical: Laws 1905, 196, Sec. 15.
"Trustees" changed to "directors" to
conform to preceding sections. "Ac-
Control of Funds.
Sec. 789. All funds appropriated for the use and benefit of said
asylum from every source, including the available interest arising
from investment of the proceeds of the sale of lands set apart as
hereinbefore provided for, shall be under the control and direction of
said board of directors, subject to the provisions herein contained.
The treasurer of the board shall pay out of such funds all orders or
drafts for money to be expended under the provisions of this article.
Such orders or drafts shall be drawn by the State Auditor upon
certificates of the secretary, countersigned by the president of the
board of directors, and shall be approved by the State Board of Ex-
aminers. No such certificates shall be given except on accounts
audited and allowed by said board of directors.
Historical: Laws 1905, 196, Sec. 16.
"Trustees" changed to "directors."
General Management of Asylum.
Sec. 790. The privilege, powers, duties and obligations of the
said board of directors herein named, and the mode of governing
said Northern Idaho Insane Asylum, shall be the same and identical
with the privileges, powers, duties, obligations and mode of procedure
as now fixed by law for the managing of the State Insane Asylum,
Ch. 2.
SOLDIERS' HOME.
443
now located at Blackfoot, Idaho, found in Sections 753 to 769, in-
clusive, of these Codes.
Historical: Laws 1905, 196, Sec. 17.
Omitting the opening clause relating
to the future completion of the asy-
lum, as now obsolete.
Persons to Be Committed.
Sec. 791. All persons from the Counties of Kootenai, Bonner, Sho-
shone, Latah, Nez Perce and Idaho, who are in the future regularly
tried upon the charge of insanity, and found guilty of said charge,
and all idiots, not otherwise provided for, whose freedom is con-
sidered a menace to the public safety, shall be committed to the
Northern Idaho Insane Asylum; and persons who have been here-
tofore committed from the six aforementioned counties and are now
confined in the State Insane Asylum at Blackfoot, shall, at the dis-
cretion of the board of directors of the two State asylums, and the
approval of the Governor, be removed from the asylum at Blackfoot
to the Northern Idaho Insane Asylum ; and under the same conditions,
any of the inmates of the asylum at Blackfoot, whether now or in
the future, may be removed to the Northern Idaho Insane Asylum ; and
if it is thought advisable by the two boards of directors, the Governor
concurring, any insane person or idiot may be committed directly to
the Northern Idaho Insane Asylum, from any of the counties of the
State of Idaho.
Historical: Laws 1905, 196, Sec. 18.
"Lewis" and "Clark" counties changed
to "Kootenai" and "Bonner" to con-
form to the existing political divisions
of Northern Idaho.
CHAPTER 2.
SOLDIERS' HOME.
Section
792. Establishment of home.
793. Lands set aside for support.
794. Board of trustees.
795. Commandant: Appointment,
duties and salary.
Section
796. Physician and matron.
797. Inspection of home.
798. Use of pension money for sup-
port.
799. Uniform of inmates. j
Establishment of Home.
Sec. 792. There shall be established in this State an institution
under the name of the Soldiers' Home, which institution shall be a
home for honorably discharged Union soldiers, sailors and marines
who served in the Union armies during the late War of the Rebellion,
or in Indian wars in which the Government of the United States
was involved; also for honorably discharged soldiers, sailors and
marines who served in the Spanish-American war and the Philippine
insurrection incident thereto ; also for members of the State National
Guard disabled while in the line of duty ; and veterans of the Mexican
War: Provided, That before a person is admitted to said Home he
shall have been a bona fide resident of this State for not less than two
years, and shall have registered and voted at one or more general
elections in the State of Idaho prior to making application for admis-
sion thereto.
Historical: Laws 1893, 91, Sec. 1;
amended Laws 1897, 7, Sec. 1; re-en-
acted Laws 1899, 190, Sec. 1; amend-
ed Laws 1905, 4, Sec. 1; amended
Laws 1905, 414, Sec. 1; amended Laws
1907 15, Sec. 1.
444
PUBLIC INSTITUTIONS
Tit. 6
Lands Set Aside for Support.
Sec. 793. Twenty-five thousand acres of land, granted to the State
under the provisions of the act of Congress, approved July 3d, 1890,
granting to the State of Idaho one hundred and fifty thousand acres
of land for charitable and other purposes, are hereby set apart, and
are reserved for the support and maintenance of the said Soldiers'
Home. Out of the first lands selected under said grant, and out of the
first proceeds arising from the sale of said lands, there shall be repaid
to the State, the sum of twenty-five thousand dollars, appropriated by
Section 2 of an act entitled "An act to establish a Soldiers' Home,"
approved March 2, 1893, together with interest thereon, at the rate
of five per cent per annum, from the date of appropriation until paid.
Historical: Laws 1899, 190, Sec. 3;
re-enacting- Laws 1893, 91, Sec. 2. The
appropriation referred to was made
by Section 2 of the original act from
which this chapter is taken. That
section is omitted, as are all appropri-
ation acts and parts of acts, because
Board of Trustees.
Sec. 794. The Governor, the Secretary of State and the Attorney
General shall be ex-officio members of, and shall constitute, a board
of trustees of the Soldiers' Home. The Governor shall be chairman of
said board, and the Secretary of State, the secretary thereof. The
general supervision and the government of the Soldiers' Home shall
be vested in said board of trustees, and a majority of said board shall
constitute a quorum to do business. Said board shall have power to
prescribe such rules and regulations as may be necessary, touching
all matters connected with said Home not inconsistent with law. The
board may receive donations of money and other valuables for the pur-
poses of the home.
to have included them would have
created new appropriations. All ex-
isting appropriations are saved by
Section 17 of these Codes.
Cited: Powell v. Spackman (1901)
7 Ida. 692; 65 Pac. 503.
Historical: Laws 1899, 190, Sec. 4;
re-enacting Laws 1897, 7, Sec. 2. The
concluding clause relating to dona-
tions to the home is taken from Sec-
tion 7 of the act, which relates, in its
other provisions, to the purchase of
a site and buildings, which have been
consummated leaving the section ob-
solete except as herein preserved.
Commandant: Appointment, Duties and Salary.
Sec. 795. The board of trustees shall appoint a commandant of
said Soldiers' Home, who shall hold office during the pleasure of the
board. The commandant shall have entire control and management
of the Home, under such rules and regulations as may be prescribed
by the board. He shall give a bond in favor of the State of Idaho in
the penal sum of four thousand dollars, conditioned on the faithful
performance of his duties, such bond to be approved by the Governor.
The commandant shall receive for his services such sum as may be
fixed by the board of trustees, not to exceed twelve hundred dollars
per year, and rations.
Historical: Laws 1897, 7, Sec. 3:
re-enacted Laws 1899, 190, Sec. 5;
amended Laws 1903, 219, Sec. 1.
Physician and Matron.
Sec. 796. The board of trustees shall appoint a physician for the
home who shall receive a salary to be fixed by the board, not exceed-
Ch. 3. DEAF, DUMB AND BLIND 445
ing fifty dollars per month, and who shall hold office during the pleas-
ure of the board, and the board of trustees shall appoint a matron for
the home who shall receive a salary to be fixed by the board, not ex-
ceeding forty dollars per month, and who shall hold office during the
pleasure of the board.
Historical: Laws 1897 7, Sec. 4;
re-enacted Laws 1899, 190, Sec. 6;
amended Laws 1903, 219, Sec. 2.
Inspection of Home.
Sec. 797. The said Soldiers' Home shall at all times be subject to
inspection by the board of managers of the national home for disa-
bled volunteer soldiers, under such regulations as said board may
adopt; and shall also be subject to inspection at any time by the Gov-
ernor or any officer of his staff designated by him for the purpose of
making such insepection.
Historical: Laws 1899, 190, Sec. 8;
re-enacting Laws 1893, 91, Sec. 8.
Use of Pension Money for Support.
Sec. 798. In making rules and regulations governing the admis-
sion, maintenance and discharge of the inmates of said Home, it shall
be lawful for said board of trustees to make it a condition for admis-
sion to said Home, that all soldiers admitted thereto, receiving a pen-
sion from the United States exceeding four dollars per month, shall
pay over said excess to the board of trustees, and said board of trus-
tees shall, in cases where such soldier has no wife or child living de-
pendent upon him for support, or in circumstances of dependence and
want, deposit said excess in the State Treasury to the credit of the
Soldiers' Home fund, to be used in defraying the expenses of main-
taining said institution, but if there be such wife or child so dependent
upon said soldier, then and in that case it shall be the duty of said
board to pay over such excess to such wife or child of such soldier,
taking duplicate receipts therefor, one of which receipts shall be de-
livered to said soldier, and the other filed with the records of the board.
Historical: Laws 1899, 190, Sec. 9;
re-enacting Laws 1897, 7, Sec. 5.
Uniform of Inmates.
Sec. 799. The inmates of said Home shall be clad in the uniform
of the Grand Army of the Republic, to be furnished by the State out
of funds appropriated for such purpose.
Historical: Laws 1899, 190, Sec. 10;
re-enacting Laws 1893, 91, Sec. 13.
CHAPTER 3.
SCHOOL FOR DEAF, DUMB AND BLIND.
Section
800. Board of Education may make
arrangements.
801. Examination of applicants.
802. Definition of deaf and blind.
Section
803. Census of deaf, dumb and
blind.
804. Same: Duty of district census
marshals.
446 PUBLIC INSTITUTIONS Tit. 6
Board of Education May Make Arrangements.
Sec. 800. The State Board of Education is hereby empowered and
authorized to make the necessary arrangements for the education
of the deaf, dumb and blind of this State, including the providing of
a suitable building therefor, and equipping the same so far as may
be necessary, including also the arranging for the conveyance of the
scholars to and from the school, at the expense of the State, and in-
cluding the hiring of a superintendent, instructors and employes, and
the fixing of their compensation, and such other matters as may be
necessary to carry into effect the provisions of this chapter : Provided,
however, That the State Board of Education may, if it becomes neces-
sary, enter into contract with one or more of the adjacent States or
Territories (having an institution for the education of the deaf, dumb
and blind) for the education of the deaf, dumb and blind of the State
of Idaho, upon the most economical terms possible: Provided, how-
ever. That if it should become necessary to make any such contract,
no more than three hundred dollars per year shall be paid for each
scholar's instruction and board, including board during vacation.
Historical: Laws 1907, 240, Sec. 1.
Examination of Applicants.
Sec. 801. The State Board of Education is authorized to provide
for the careful examination of all applicants for admission to the
school to be provided by the said board, and the expenses of the said
examinations, and all other expenses in connection with the education
of the deaf, dumb and blind, under the authority conferred by this
chapter, shall be paid out of the State Treasury, as provided by law.
Historical: Laws 1907, 240, Sec. 2.
Definition of Deaf and Blind.
Sec. 802. All children between the ages of six and twenty-one
years, who are too deaf or too blind to be educated in our public
schools, shall be deemed deaf and blind for the purposes of this
chapter.
Historical: Laws 1907, 240, Sec. 3.
Census of Deaf, Dumb and Blind.
Sec. 803. It shall be the duty of the Board of Education to ascer-
tain the number of deaf, dumb and blind persons in the State, as de-
fined by the preceding section, and, as soon as practicable thereafter,
to take the necessary steps for their education, as provided for in
this chapter.
Historical: Laws 1907, 240, Sec. 4.
Same: Duty of District Census Marshals.
Sec. 804. It is hereby made the duty of the census marshal of
each school district in the State of Idaho, when he shall enumerate
the children of school age in his district, to carefully ascertain what
children in that district are deaf or blind, as defined in Section
802, and he shall note the same, age and sex of such child or children,
also the name of parents or guardian or other person having the
legal or actual charge of such child or children, and shall report the
Ch. 4. Art. 1. INDUSTRIAL TRAINING SCHOOL — GOVERNMENT 447
same to the county superintendent of public instruction, and said
county superintendent of public instruction shall immediately report
the same to the State Superintendent of Public Instruction.
Historical: Laws 1907, 240, Sec. 5.
CHAPTER 4.
INDUSTRIAL TRAINING SCHOOL.
Article
1. Government of school.
Article
2. Commitment of delinquents.
Note: Sections 2 0 to 26, of the act from which this chapter is taken, re-
lating- to the issuance and sale of bonds for the improvement of the school,
is omitted from these Codes, but is preserved in force by Sec. 17, subd. 38.
ARTICLE 1.
GOVERNMENT OF SCHOOL.
ion
Report of superintendent.
Religious services.
State superintendent to pre-
scribe studies.
School constitutes an independ-
ent district.
Reports to governor.
School to be non-sectarian.
Land to be set aside for school.
Courses of study.
Establishment.
Sec. 805. A State Industrial Training School is hereby established
at the town of St. Anthony, in Fremont County, State of Idaho, to be
called the "Idaho Industrial Training School. " The purposes of such
school shall be the care, protection, training and education of delin-
quent, dependent and neglected children, and to provide for the care,
control and discharge of juvenile offenders.
Section
Secti
805.
Establishment.
815.
806.
Board of trustees.
816.
807.
Proceedings of board.
817.
808.
Officers of board.
809.
General powers of board.
818.
810.
Meetings of board.
819.
820.
821.
811.
Control of funds.
812.
Appointment and removal
superintendent.
of
813.
Appointment and qualifications
of teachers.
822.
814.
Trustees to prescribe regula-
tions and fix salaries.
Historical: Laws 1903, 12, Sec 1;
name changed to "The Idaho Indus-
trial Training School" Laws 1905, 227,
Sec. 1. Omitting the clause "to be
located at such place and in such
manner as hereinafter provided," and
inserting in lieu thereof, "at the town
of St. Anthony." The act created a
commission to locate the school "at
a particular place in Fremont County,"
and the commission fixed the location
at St. Anthony.
Board of Trustees.
Sec. 806. A board of trustees is hereby created to be known as
the board of trustees of the Idaho Industrial Training School, con-
sisting of four members. All of said members shall be appointed;
two shall be men and two shall be women. No more than two shall
belong to one political party, and no more than one shall be ap-
pointed from any one county, and two shall be interested in humani-
tarian work. Said board of trustees shall be appointed by the Gov-
ernor and confirmed by the Senate for the term of four years, and
until their successors are appointed and qualified: Provided, That
of the first board appointed, two shall hold office for two years and
448
PUBLIC INSTITUTIONS
Tit. 6
two for four years, and the Governor and State Superintendent of
Public Instruction shall be ex-officio members of the board of trus-
tees. It shall be the duty of the Governor to fill by appointment all
vacancies that may from any cause occur in the board of trustees:
Provided, That he shall appoint the new member from the
political party of the retiring member.
Before entering upon the discharge of the duties of their respec-
tive offices, each member shall take and subscribe an oath, or affirma-
tion, that he or she will support the Constitution of the United States
and the Constitution of the State of Idaho, and will faithfully dis-
charge the duties of said office, which oath or affirmation shall be
filed with the Secretary of State.
Historical: Laws 1903, 12, Sees. 2,
16. The phraseology is slightly
changed to conform to grammatical
rules. The provisions for filling va-
cancies is Sec. 16 of the original act.
Proceedings of Board.
Sec. 807. The said board of trustees shall conduct its proceedings
in such a manner as will best conduce to the proper dispatch of busi-
ness. A majority of the board of trustees shall constitute a quorum
for the transaction of business, but a smaller number may adjourn
from time to time. No member of said board of trustees shall par-
ticipate in any proceedings in which he or she has a personal or pe-
cuniary interest. Every vote and official act of said board of trustees
shall be entered on record.
Said board of trustees shall have an official seal, which shall be
judicially noticed. Said board of trustees may sue and be sued, and
may take, in the name of the State, and hold in trust for the school,
any and all money, real estate or personal property that may be be-
queathed to said school.
Historical: Laws 1903, 12, Sec. 3.
Officers of Board.
Sec. 808 At their first meeting and biennially thereafter, the said
board of trustees shall elect a president and secretary. The State
Treasurer shall be ex officio treasurer of said board of trustees. It
shall be the duty of the secretary of said board to keep an exact and
detailed account of the doings of said board and an itemized account
of all expenditures authorized by said board.
Historical: Laws 1903, 12, Sec. 4.
General Powers of Board.
Sec. 809. The said board of trustees are hereby authorized, and
it is made their duty, to take and at all times to have general super-
vision and control of all buildings and property appertaining to said
school, and to have general charge and control of all buildings to be
constructed. They shall have power to let contracts for the erection
of all buildings, and also the entire supervision of their construction.
All buildings for housing the pupils shall be on "cottage plan." For
the better grading of inmates, each cottage shall accommodate not
more than twenty-five persons.
Historical: Laws 1903, 12, Sec. 5.
Ch. 4. Art. 1. INDUSTRIAL TRAINING SCHOOL — GOVERNMENT 449
Meetings of Board.
Sec. 810. Said board of trustees shall hold two meetings at said
school, annually, but special meetings may be called by the president
of the board, by sending written notices of at least ten days to each
member. The actual and necessary personal expenses for mileage and
board incurred by the members of said board of trustees in carrying
out the provisions of this chapter, shall be paid, on proper certifi-
cates, out of any funds belonging to said school in the hands of the
treasurer.
Historical: Laws 1903, 12, Sec. 6.
Control of Funds.
Sec. 811. All funds appropriated for the use and benefit of said
school from every source, including the available interest arising
from investment of the proceeds of the sale of lands set apart as
hereinafter provided for, shall be under the control and direction
of said board of trustees, subject to the provisions herein contained.
The treasurer of the board of trustees shall pay out of such funds
all orders or drafts for money to be expended under provisions of
this chapter. Such orders or drafts shall be drawn by the State
Auditor upon certificates of the secretary, countersigned by the
president of the board of trustees, and shall be approved by the State
Board of Examiners. No such certificates shall be given except on
accounts audited and allowed by said board of trustees.
Historical: Laws 1902, 12, Sec. 7.
Appointment and Removal of Superintendent.
Sec. 812. The board of trustees shall appoint a superintendent,
who shall be especially fitted for the position, and shall be a person
experienced in such work as is intended to be carried on in this school.
He shall be retained as long as his work is bringing good results, ir-
respective of political affiliations. The superintendent shall, before
entering upon the duties of his office, give a good and sufficient bond,
to be approved by the board of trustees, conditioned for the faithful
discharge of his duties. The superintendent may be removed by the
board of trustees for neglect of duty, improper conduct, malfeasance
in office, incompetency, or whenever the interests of the school shall
be best subserved thereby. The board of trustees shall, on recom-
mendation of the superintendent, appoint an assistant superintendent,
who may be removed by the superintendent.
changed to conform to grammatical
rules.
Historical: Laws 1903, 12, Sec. 8.
and the first paragraph of Sec. 9. The
phraseology of Sec. 8 is slightly
Appointment and Qualifications of Teachers.
Sec. 813. All officers, teachers and employees shall be appointed
by the superintendent, by and with the advice and consent of the
board of trustees; and such officers, teachers and employees may be
removed by the superintendent whenever the interests of the school
will be best subserved thereby. All teachers, except specialists, shall
hold first-class certificates from the State Superintendent of Public
Instruction. Specialists shall hold diplomas from some accredited
school in their specialty.
450 PUBLIC INSTITUTIONS Tit. 6
Historical: Laws 1903. 12, last par-
agraph of Sec. 9 and Sec. 10.
Trustees to Prescribe Regulations and Fix Salaries.
Sec. 814. The superintendent shall conduct the said school under
rules and regulations prescribed by the board of trustees, and said
board of trustees shall fix the salaries of all officers and teachers, and
the wages of all employees.
Historical: Laws 1903, 12, Sec. 11.
Report of Superintendent.
Sec. 815. The superintendent shall, at the close of each month,
present to the board of trustees a written report, showing the gen-
eral condition of the school, the number of inmates in attendance,
the number of tickets of leave granted and such other information,
together with such suggestions and recommendations, as may be to
the best interests of the school. He shall have charge of all prop-
erty belonging to the school, and shall keep an account of all monthly
expenditures, and the receipts shall be certified to the president of
the board with the social condition of each inmate at the time of
committal.
Historical: Laws 1902, 12, Sec. 12.
Religious Services.
Sec. 816 The superintendent shall provide for the holding of re-
ligious services on the Sabbath day for the inmates of said school, but
no sectarian views shall control the services.
Historical: Laws 1903, 12, Sec. 13.
State Superintendent to Prescribe Studies.
Sec. 817. The State Superintendent of Public Instruction shall
prepare courses of study for all grades in the school.
Historical: Laws 1903, 12, Sec. 14.
School Constitutes an Independent District.
Sec. 818. The said school with all appurtenances thereto shall be,
and it is hereby declared to be, an independent school district, and
it shall not be taxed for other school purposes.
Historical: Laws 1903, 12, Sec. 15.
Reports to Governor.
Sec. 819.. The president and secretary of the board of trustees
shall, on the first day of January and July of each year, transmit to
the Governor of the State a full written report of the doings of said
board of trustees, the progress and condition of said school, together
with a full report of the expenditures and receipts for the previous
six months, setting forth each item in full with the date thereof, and
such recommendations as they deem proper for the good of the school.
They shall submit, on the first day of December of each biennial year,
a printed report of all proceedings for the last biennial period : Pro-
vided, Failure to file a printed report as required shall mean forfeiture
of bond.
CJl. 4. Art. 2. INDUSTRIAL TRAINING SCHOOL — COMMITMENT 451
Historical: Laws 1903, 12, Sec. 17.
Cross Reference: Reports of officers
and boards: Sec. 279.
School to Be Non-Sectarian.
Sec. 820. The board of trustees, in their regulations, and the su-
perintendent and assistants, shall exercise a watchful guardianship
over the morals of the pupils at all times during their attendance upon
the same, but no religious or sectarian test shall be applied in the
selection of teachers, and none shall be adopted in the school.
Historical: Laws 1903, 12, Sec. 18.
Land to Be Set Aside for School.
Sec. 821. The State Board of Land Commissioners are hereby di-
rected, and it is made their duty, to set aside forty thousand acres of
land granted to the State of Idaho by the act of Congress entitled
"An act to provide for the admission of the State of Idaho into the
Union," approved July 3rd, 1890, for other State charitable, educa-
tional or penal and reformatory purposes, for the exclusive use and
benefit of said school. Said lands shall be held and disposed of, and
the proceeds thereof used and applied, for the benefit of said school,
subject to the provisions of said admission act and the Constitu-
tion of the State of Idaho, and, so far as may be practicable, in
conformity with the established procedure of holding, disposing of
and applying the proceeds of lands granted to the common schools of
the State of Idaho. The State Board of Land Commissioners are
directed to set aside forty thousand acres of land, if selected, and if
not selected, to use the utmost dispatch in selecting and setting aside
the same. The State Board of Land Commissioners are hereby di-
rected to provide separate record books, in proper form, to be known
as "Idaho Industrial Training School Records, " in which shall be
kept all records of matters relating to said lands.
Historical: Laws 1903, 12, Sec. 19;
amended Laws 1903, 291, Sec. 1.
Cross Reference: Constitutional pro-
visions governing the sale of lands:
Art. 9, Sec. 8.
Courses of Study.
Sec. 822. All juveniles sent to the Idaho Industrial Training
School shall be taught the common school branches, as taught in the
common schools of Idaho, together with such industrial and manual
training in the boys' department, and domestic sciences in the girls'
department, that the boys and girls shall be enabled to earn a living
after being discharged therefrom.
Historical: Laws 1903, 12, Sec. 27.
ARTICLE 2.
COMMITMENT OF DELINQUENTS.
Section
823. Grounds for commitment.
824. Form of commitment.
825. Conveyance to school.
826. Proceedings in chambers
view by Supreme Court.
827. Term of commitment:
charge.
Re-
Dis-
Section
82 8. Commutation of Penitentiary to
Training School sentence.
829. Parole of inmates.
830. Arrest of fugitives.
831. Aiding escape of inmate.
832. Commitment pending trial.
452 PUBLIC INSTITUTIONS Tit. 6
Note: Commitment of juvenile delinquents by probate court: Sees. 8333,
8336b.
Grounds for Commitment.
Sec. 823. When any boy or girl of sane mind, between the ages of
eight and eighteen years, shall, in any court of record, or by any Judge
of the District Court of this State, be found guilty of any felony ex-
cept murder or manslaughter, the court or judge may, if in his
opinion the accused is a proper subject therefor, instead of entering
judgment, cause an order to be entered for such boy or girl to be sent
to the Idaho Industrial Training School, in pursuance of the provisions
of this chapter, and all acts amendatory thereof. A copy of such order,
under the seal of the court, accompanied by a certificate of health,
shall be sufficient warrant for carrying such boy or girl to such school,
and for his or her commitment to the custody of the superintendent
thereof. No boy or girl shall be committed to said school who is not
of sound intellect, free from cutaneous or other contagious disease,
or who is subject to epileptic or other fits, and he or she must possess
that degree of bodily health which would render him or her a fit
subject for the discipline of such school. And it shall be the duty of
the court or judge, committing such boy or girl to said school, to
cause him or her to be examined by a reputable licensed physician
who shall certify to the above facts, which certificate shall be for-
warded to said school with the commitment.
Historical: Laws 1903, 12, Sec. 28
and first paragraph of Sec. 31, amend-
ed Laws 1905, 432, Sees. 1, 4.
Form of Commitment.
Sec. 824. The commitment may, in general terms, be in the follow-
ing form:
In the District Court of the Judicial District of the State
of Idaho, in and for County.
State of Idaho,, .i County, ss.
Be it remembered that on the .... day of , 19 . . ,
, a minor of said county under the age of eighteen years,
was charged with the crime of , and upon trial was convicted
of said offense. And after an examination the court finds that said
, is a suitable person to be committed to the instruction
and discipline of the Idaho Industrial Training School.
And I further find that the said is a resident of said
County, and will be , years of age on the day
of , 19 That his father's name is , and that
his residence is and by occupation is That his
mother's name is ; that her residence is , and
by occupation is
I further find and hereby certify that said resided
with , in County, in the State of
Idaho, when arrested for said offense. The facts in relation to said
matter are as follows :
Ch. 4. Art. 2. industrial training school — commitment 453
That aside from his father and mother, the names of his next near
relatives and their residences are as follows:
Now, therefore, in view of the premises aforesaid, and the judg-
ment of conviction entered herein, it is hereby ordered that said
be, and he is hereby committed to the Idaho Industrial
Training School, located at St. Anthony, in the State of Idaho, until
he attains the age of twenty-one years, or until he is legally dis-
charged by the board of trustees of said school.
I therefore command you, , that you take such boy
(or girl) and deliver him (or her) without delay to the superintend-
ent of said school, or any other person in charge thereof.
Witness my hand this day of , 19 ... .
District Judge.
State of Idaho, County, ss.
I, clerk of the District Court of the Judicial
District of the State of Idaho; in and for . . . .>. . . .County, do hereby
certify that the Hon , whose signature is appended to
the foregoing order of commitment, was at the date thereof, and
now is, the Judge of the District Court in and for said
District.
In witness whereof I have hereunto set my hand and affixed the
seal of said court this .... day of , A. D. 19 . . . .
(Seal) Clerk, District Court.
Historical: Laws 1903, 12, Sec. 31;
amended Laws, 1905, 432, Sec. 4. Last
part of section.
Conveyance to School.
Sec. 825. The said court, or the judge thereof, shall appoint or
designate the sheriff of said county, or some other person, to take
such boy or girl, and deliver him or her without delay to the super-
intendent of said school, or other person in charge thereof at the
place where the same is located, and the issuing of such certificates,
for the purposes of this chapter, shall be conclusive evidence of his
or her residence and age. The expenses of conveying said boy or girl
to said institution shall be paid as in the case of convicts conveyed
to the Penitentiary of the State of Idaho.
Historical: Laws 1903, 12, Sec. 32;
amended Laws 1905, 432, Sec. 5.
Proceedings in Chambers : Review by Supreme Court.
Sec. 826. The Judge of any District Court in the State may, either
in chambers or in term time, proceed under the provisions of this
article: Provided, That any proceedings had before the Judge in
chambers in any county at a time when the District Court is not in
session, shall be entered and recorded in the minutes of said court
on the first day of the next ensuing term. Any and all proceedings
before the District Court, or Judge thereof, may be reviewed on writ
454 PUBLIC INSTITUTIONS Tit. 6
of error by the Supreme Court, in the manner provided by law for
reviewing criminal cases in said Supreme Court.
Historical: Laws 1903, 12, Sec. 33. nal cases in the Supreme Court: Sees.
Cross Reference: Review of crimi- ' 8040-8077.
Term of Commitment: Discharge.
Sec. 827. Each boy or girl committed to the Idaho Industrial
Training School shall remain there until he or she arrives at the age
of twenty-one years, unless paroled, or legally discharged: Provided,
That it shall be lawful for the board of trustees, upon the recom-
mendation of the superintendent of said school, to discharge any boy
or girl, an inmate thereof, who has arrived at the age of eighteen
years, if it be made to appear that while there as an inmate, he or
she deported himself or herself in such a manner as to make it reason-
ably probable that he or she has reformed, and is a proper person to
be discharged.
Historical: Laws 1903, 12, Sec. 34.
Commutation of Penitentiary to Training School Sentence.
Sec. 828. Whenever any boy or girl, under the age of eighteen
years, has been sentenced by any court of competent jurisdiction to
imprisonment in the State Penitentiary, it shall be lawful for the
State Board of Pardons, upon the application of such boy or girl,
his or her parents or guardian, to commute such punishment by sub-
stituting therefor commitment of such boy or girl to the Idaho In-
dustrial Training. School during the minority of such boy or girl,
unless sooner discharged by the board of trustees, under regulations
as herein provided. But should a boy or girl, after being sent to such
school, persist in a depraved course, or escape therefrom, it shall be
in the power of the Governor, by and with the approval of the Board
of Pardons, to revoke such commutation, and remand him or her to
the State Penitentiary to serve out his or her unexpired term, and
the time so spent by him or her at the said school, while a refugee
therefrom, shall not be considered as a part of his or her original
commitment.
Historical: Laws 1903, 12, Sec. 35.
Parole of Inmates.
Sec. 829. The board of trustees may, at any time, if a boy or girl
has been in the Idaho Industrial Training School for a period of one
year, discharge or release such boy or girl on trial or parole, but in
all cases where a boy or girl is released on trial or parole, he or she
must, at stated intervals, report his or her conduct to the superin-
tendent, and present certificates of good behavior, whereupon his or
her leave may be extended. It shall be the duty of the superintendent
to recall any boy or girl who might not be conducting himself or
herself properly, or any boy or girl who may not have a suitable home.
Historical: Laws 1903, 12, Sec. 36.
Arrest of Fugitives.
Sec. 830. Any fugitive from said institution may be arrested and
returned to said institution by any officer or citizen.
Ch. 5.
LAW LIBRARIES
455
Historical: Laws 1903, 12, Sec. 37.
Aiding Escape of Inmate.
Sec. 831. If any officer or employee of said school, or any other
person, shall contrive, procure, and connive at, or otherwise volun-
tarily suffer, the escape of any inmate of said school, every such
person, on conviction thereof, shall be punished by imprisonment in
the State Penitentiary for a period of not less than six months, nor
more than two years, and be fined in a sum not exceeding one thousand
dollars.
Historical: Laws 1903, 12, Sec. 38.
Commitment Pending Trial.
Sec. 832. In case any boy or girl is held to the District Court upon
a preliminary examination for a felony, by either a justice or probate
court, such justice or probate court, before commiting said boy or
girl to the jail of said county, in case an undertaking for the appear-
ance of said boy or girl to the District Court, shall not be given as
provided by law, shall certify said facts to the Judge of the District
Court of said district, who may make an order that said boy or girl
be committed to the Idaho Industrial Training School to await trial
for said offense, in lieu of committing said boy or girl to the jail of
said county.
Historical: Laws 1903, 12, Sec. 42;
amended Laws 1905, 432, Sec. 6.
CHAPTER 5.
LAW LIBRARIES.
Section
833. Control of State Library.
834. Appointment and duties of li-
brarian.
835. Disbursement of funds.
836. Bond of librarian.
837. Use and abuse of library.
Section
838. Location of library: Insurance.
839. Library fund.
840. Clerks to report names of new
attorneys.
8 41. Lewiston law library.
842. Same: Support of library.
Control of State Library.
Sec. 833. The Justices of the Supreme Court of this State shall
have the control and management of the State Library, and shall
make such rules and regulations respecting the same as they deem
best.
Historical: Laws 1899, 13 4, Sec. 1;
re-enacting Laws 1890-91, 197, Sec. 1.
Appointment and Duties of Librarian.
Sec. 834. They shall appoint a librarian, at a salary of nine hun-
dred dollars per year, and such librarian must keep the library open
every day, except Sundays and legal holidays, while the Supreme Court
and the Legislature, or either, may be in session, from nine o'clock a.
m. until nine o'clock p. m., and on all other days, except Sundays and
legal holidays, from nine o'clock a. m. until five o'clock p. m.
Historical: Laws 1890-91, 197, Sec.
2; amended Laws 1893, 79, Sec. 1;
amended Laws 1899, 134, Sec. 2;
amended Laws 1899, 376, Sec. 1.
456
PUBLIC INSTITUTIONS
Tit. 6
Cross Reference: Distribution of
Supreme Court Reports: Sec. 226.
Receipt to printer for reports: Sec
229.
Disbursement of Funds.
Sec. 835. The said Justices shall have the management of all funds
belonging to or appropriated for the use of the State Library, and
expend and disburse the same for the benefit thereof, as in their
judgment may be best; and upon demand of said Justices, or any two
of them, the State Auditor shall draw his warrants upon the State
Treasurer for such sum or sums as there may be in the Treasurer's
hands belonging to or appropriated for the use of said library.
Historical: Laws 1899, 13 4, Sec. 3;
re-enacting Laws 1890-91, 197, Sec. 3.
Bond of Librarian.
Sec. 836. The librarian of the State Library shall give a bond,
with sufficient sureties, to be approved by one or more of the Justices
of the Supreme Court, in the sum of two thousand dollars conditioned
for the faithful performance of his duties and the preservation of the
books in said library.
Historical: Laws 1899, 134, Sec. 4;
re-enacting Laws 1890-91, 197, Sec. 4.
Omitting the last half of the section
which authorized the librarian to sell
the Supreme Court reports in posses-
sion of the State, as superseded by
Laws 1903, 367, Sec. 5 (Codes, Sec.
2 26, which merely authorizes the li-
brarian to distribute such reports as
therein provided.
Use and Abuse of Library.
Sec. 837. Any person may have access to and may use the books
in said library, under such restrictions as the Justices of the Supreme
Court may prescribe. Any person who shall violate any rule estab-
lished for the management of said library may be denied the privileges
of said library. Any person who shall wantonly mutilate or destroy
any book or any article of furniture, or any pamphlet or paper be-
longing to said library, shall be deemed guilty of a misdemeanor,
and be punished accordingly. Any person who fails to return to the
library any book taken therefrom by him, within the time prescribed
by the rules of said library, shall be liable to the librarian in three
times its value, to be recovered in a civil action; and if such person
be an officer or employee of the State, the same shall be withheld from
his pay.
Historical: Laws 1899 134, Sec. 5;
re-enacting Laws 1890-91, 197, Sec. 5.
Location of Library: Insurance.
Sec. 838 The State Library shall be kept in the Capitol building,
and the Justices of the Supreme Court shall cause the same to be
fully insured against loss or destruction by fire.
Historical: Laws 1899, 134, Sec. 6;
re-enacting Laws 1890-91, 197, Sec. 6.
Library Fund.
Sec. 839. The state Library fund consists of all moneys paid to
the State Treasurer for the use of said fund by attorneys at law
Ch. 5.
LAW LIBRARIES
457
upon their admission to the practice, as required by the Code of Civil
Procedure, and any other moneys and fees required by law to be
paid into said fund, and the annual sum of one hundred and fifty
dollars, which is hereby appropriated annually out of the State
Treasury to said fund.
Historical: Rev. St. 1887, Sec. 80 7.
See 5 Ter. Ses. (1869) 96, Sec. 1.
California Legislation: See Pol.
Code 1872, Sec. 2300; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Fees received from
notaries applicable to fund: Sec. 233.
Clerks to Report Names of New Attorneys.
Sec. 840. The clerk of the Supreme Court and the several clerks
of the District Courts must annually report to the State Treasurer
the names of all attorneys admitted or licensed to practice in the
courts of which they are clerks respectively.
Historical: Rev. St. 1887, Sec. 809.
See 5 Ter. Ses. (1869) 96, Sec. 2.
Lewiston Law Library.
Sec. 841. A Supreme Court building and a Library for the State
of Idaho is hereby established and located in the City of Lewiston,
in the County of Nez Perce, for the use of the Supreme Court of the
State. The care, custody and keeping of said library shall be com-
mitted to the deputy clerk of the Supreme Court located at Lewiston,
Idaho, under rules and regulations to be prescribed by the Justices
of the Supreme Court from time to time.
relating to the erection of the Supreme
Court building, are omitted from these
Codes as now obsolete. The sections
providing for the issuance of bonds
are preserved by Sec. 17; Subd. 39.
Historical: Laws 1903, 42, Sees. 1,
10. Omitting such part of Sec. 10 as
looked to the future completion of
the building and library. The pro-
visions of the act from which this
and the following sections are taken,
Same: Support of Library.
Sec. 842. All fees hereafter received by the State of Idaho from
notaries public and attorneys at law residing in the Counties of Sho-
shone, Kootenai, Bonner, Latah, Nez Perce and Idaho, and counties
to be hereafter created therefrom, or from any part thereof, shall
be set apart and held by the State Treasurer to be expended for the
use and benefit of said library, under the orders of the Justices of
the Supreme Court. Duplicates of all laws, pamphlets and other
publications hereafter made by or under authority of the State of
Idaho, or any of its agencies, shall be sent to said library. At least
one copy of such publications heretofore made shall be furnished
said library: Provided, There be copies thereof in possession of the
State not heretofore appropriated. Henceforth the State of Idaho
shall make sufficiently liberal exchange with other States, Territories
and countries, of such publications to be made by or under its au-
thority, as may be necessary to secure copies of similar publications
of such States, Territories and countries, for the said library, as
well as for the State Library at Boise.
Historical: Laws 1903, 42, Sec. 11.
458
PUBLIC INSTITUTIONS
Tit. 6
CHAPTER 6.
HISTORICAL SOCIETY.
Section
843. Creation of society authorized.
Duties of society.
Acceptance of chapter.
Society to be trustee.
Delivery of property to Gover-
nor.
Appointment and powers of
trustees.
844.
845.
846.
847.
848.
Section
849. Duties of librarian.
850. Duties of trustees.
851. Salary and expenses of librarian.
852. Expenses of trustees.
853. Rules and regulations.
Note: The resolution of acceptance referred to in Section 845 of this
chapter has been passed, and the property of the society delivered to the
State as provided for in Section 847. Consequently much of this chapter
is obsolete in its present form. It was thought, however, that the relation
of the society to the State, and its legal status, would be best explained b3r
leaving the body of the chapter unchanged.
Creation of Society Authorized.
Sec. 843. The Historical Society of Idaho Pioneers, a corporation
organized and existing under and by virtue of the laws of the State
of Idaho, may become the Historical Society of the State of Idaho,
upon the conditions hereinafter specified in this chapter.
Historical: Laws 1907, 265, Sec. 1.
Duties of Society.
Sec. 844. It shall be the duty of said society :
1. To collect books, maps, charts, pictures, and other papers and
materials illustrative of the history of this State in particular, and
generally of the Northwest;
2. To procure from pioneers narratives of their exploits, perils
and adventures;
3. To procure facts and statements relative to the history, prog-
ress, and decay of the Indian tribes within the State ;
4. To collect and preserve fossils, specimens of ores and mineral
object curiosities connected with the history of the State, and all
such books, maps, writings, charts, or other material as will tend to
facilitate historical, scientific and antiquarian research;
5. To bind, catalogue, and carefully preserve all unbound books,
manuscripts, pamphlets, and especially newspaper files containing
legal notices, now in its possession or which it may hereafter re-
ceive ;
6. To biennially prepare for publication a report of its collec-
tions, and such other matters relating to the transactions of the society
as may be useful to the public;
7. To keep its rooms open at reasonable hours on business days,
for the reception of the citizens of this State and others who may
wish to visit the same.
Historical: Laws 1907, 265, Sec. 2.
Acceptance of Chapter.
Sec. 845. As a condition precedent to securing the benefits of this
chapter, it shall be necessary for said Historical Society of Idaho
Pioneers, by and through its duly elected, qualified and acting board
Ch. 6. HISTORICAL SOCIETY 459
of directors, to signify its acceptance of the benefits of this chapter,
by a resolution accepting the terms herein contained, and in addition
thereto, donating to the State of Idaho all its books, papers, relics,
and other property then owned by it.
Historical: Laws 1907, 265, Sec. 3.
Society to Be Trustee.
Sec. 846. From and after the adoption of said resolution of ac-
ceptance and donation provided for in the preceding section, and its
presentation, together with the property of the society, to the Gov-
ernor, as hereinafter provided, said society shall be the trustee of
the State of Idaho.
Historical: Laws 1907, 265, Sec. 4.
Delivery of Property to Governor.
Sec. 847. In the event the said corporation elects, by resolution,
to accept the terms of this chapter, it shall make such election known
by presenting a duly authenticated copy of said resolution to the
Governor of the State of Idaho, accompanying such resolution by a
delivery of all the books, papers, relics, and other property then
owned by said corporation.
Historical: Laws 1907, 265, Sec. 5.
Appointment and Powers of Trustees.
Sec. 848. Within ten days after the presentation of the resolution
and the delivery of property mentioned in the preceding section, it
shall be the duty of the Governor to appoint a board of three trustees,
who shall have exclusive control of the property acquired from said
corporation, managing and conserving the same for the use and
benefit of the State of Idaho, for the purposes in this chapter herein-
before recited, and who shall have authority under this chapter to
employ the services of a librarian.
Historical: Laws 1907, 265, Sec. 6.
Duties of Librarian.
Sec. 849. It shall be the duty of the librarian, by and under the
direction of the board of trustees, to do and perform, or to procure
to be done and performed, all the acts specified in Section 844.
Historical: Laws 1907, 265, Sec. 7.
Duties of Trustees.
Sec. 850. It shall be the duty of the trustees to faithfully expend
and apDly all money received by the State of Idaho, to the uses and
purposes directed by law, and they shall hold all its present and
future collections and property for the State, and shall not sell,
mortgage, transfer or dispose of in any manner, or remove from the
capitol, any article thereof, or any part of the same, without authority
of law or the consent of the Legislature : Provided, That this section
shall not be construed to prevent the sale or exchange of any dupli-
cates the society may have or obtain.
Historical: Laws 1907, 265, Sec. 8. I tees" to conform to the remainder of
"Commissioners" changed to "trus- the chapter.
460
PUBLIC INSTITUTIONS
Tit. 6
Salary and Expenses of Librarian.
Sec. 851. For such services the librarian shall be paid a salary of
one thousand dollars per annum, and shall receive actual and neces-
sary expenses incurred while performing the duties prescribed in this
chapter: Provided, The aggregate sum of such expenses shall not
exceed the sum of five hundred dollars in two years.
Historical: Laws 190 7, 2 6 5, Sec. 9.
Expenses of Trustees.
Sec. 852. For their services as trustees, the members of the board
of trustees shall receive their actual and necessary expenses incurred
in the discharge of their duties, including traveling and maintenance
expenses, while attending or going to and from meetings of the board :
Provided, That the aggregate sum of said expenses shall not exceed
the sum of two hundred and twenty-five dollars per annum for said
board.
Historical: Laws 1907, 265, Sec. 10.
Eules and Regulations.
Sec. 853. The said board of trustees shall adopt such rules and
regulations as may be necessary to discharge the duties of their said
trust.
Historical: Laws 1907, 265, Sec. 11.
CHAPTER 7.
GRAND ARMY HEADQUARTERS.
Section
854. Rooms to be set apart.
855. Title to property to vest in State.
Section
85 6. State to pay expenses.
Rooms to Be Set Apart.
Sec. 854. There shall be set apart a suitably furnished room or
rooms in the State House, or in some other public building in the
City of Boise, which room or rooms shall be under the charge of the
commander of the Grand Army of the Republic, Department of
Idaho, and of the assistant adjutant general of said department, and
their successors in office. Said room or rooms shall be used by said
officers for the purpose of headquarters ; for storing the supplies and
property of the department; for storing and exhibiting relics and
mementoes of the Civil War, and for arranging and preserving the
history of citizens of this State who served in the army, navy or
marine corps of the United States during the Civil War, and any other
literature which said department of the Grand Army of the Republic
may collect and desire to preserve as a part of the history of this
State. Such records and exhibits shall be accessible at all times,
under suitable rules and regulations, to members of the Grand Army
of the Republic, and others engaged in collecting historical informa-
tion, and to persons desirous of viewing said exhibits.
Historical: Laws 1907, 152, Sec. 1.
Title to Property to Vest in State.
Sec. 855. The books of record, papers, relics, mementoes and other
Ch. 8.
FISH HATCHERY
461
effects of whatever nature, belonging to the said Department of
Idaho of the Grand Army of the Republic, shall, whenever said de-
partment ceases to exist as a department organization, become the
property of the State.
Historical: Laws 1907, 152, Sec. 2.
State to Pay Expenses.
Sec. 856. The State hereby assumes the expenses of printing and
postage and traveling expenses incurred by the Department of Idaho
of the Grand Army of the Republic, in carrying out the objects and
purposes set forth in Section 854 of this chapter: Provided, That
said expenses shall not exceed the amount of three hundred dollars
in any one year; and also the expenses of maintaining and furnish-
ing the headquarters provided for in Section 854 of this chapter,
including the salary of the assistant adjutant general, who shall have
charge of such headquarters : Provided, That said expenses, includ-
ing said salary, shall not exceed the amount of six hundred dollars
in any one year.
Historical: Laws 190 7, 152, Sees. 3,
4. Re-written in combination.
CHAPTER 8.
STATE FISH HATCHERY.
Section
857. Warden to erect and maintain
hatchery.
858. Selection and purchase of site.
859. Warden to supervise fish and
game culture.
Section
860. Warden to report to Governor.
861. Examination and stocking1 of
streams.
862. Superintendent and assistants:
Appointment and salary.
Warden to Erect and Maintain Hatchery.
Sec. 857. The State Fish and Game Warden is hereby authorized
and directed, without further compensation than that provided by
law, to erect and maintain a fish hatchery in this State, for the
purpose of the artificial propagation and distribution of food and
commercial fishes, and for the purpose of raising and distributing
game birds and such game animals as can be reasonably raised on
the premises occupied by such hatchery.
Historical: Laws 1907, 299, Sec. 1.
The phrase "without further compen-
sation," etc., is transposed to conform
to grammatical construction.
Selection and Purchase of Site.
Sec. 858. The said hatchery shall be located in Blaine County,
Idaho, opposite the railroad siding known as Hay Spur, and on the
waters of Silver Creek, on the land purchased and selected for that
purpose by the Governor and State Fish and Game Warden ; and the
hatchery may be erected over and upon any waters in the State which
flow over, across or upon the land so selected for such hatchery.
Historical: Laws 1907, 2 99, Sec. 2.
Re-written to conform to the actual
location of the hatchery, which has
been accomplished. The provision
for the purchase of a dwelling house
for the superintendent is also omitted,
as such house has been provided.
462
PUBLIC INSTITUTIONS
Tit. 6
Warden to Supervise Fish and Game Culture.
Sec. 859. The State Fish and Game Warden shall have supervision
over all fish culture matters of a public nature, and shall receive and
provide for the proper care and distribution of such food fishes or
ova of the same, and such game birds and animals, as shall come into
the possession of the State. He may also obtain ova or fry from such
fish at such places and of such variety as he may deem most suitable
to the waters of this State, and have the same hatched at the State
hatchery ; and he shall distribute the same in a prudent and equitable
manner throughout the different waters of the State.
Historical: Laws 1907, 2 99, Sec. 3.
Warden to Report to Governor.
Sec. 860. The State Fish and Game Warden shall annually, before
the first day of December, make to the Governor a detailed report of
the transactions of the year, and set forth in said report any and all
information he may have obtained in regard to the varieties of fish
adapted to the waters of this State, or method of culture of the same,
the water to which they are adapted, the number of fish hatched and
where distributed and in what waters placed, together with any and
all information that may aid in promoting the culture of edible fish
in this State.
Historical: Laws 1907, 299, Sec. 4.
Cross Reference: Reports of Offi-
cers: Sec. 279.
Examination and Stocking of Streams.
Sec. 861. The State Fish and Game Warden may examine the
waters of the State that are not naturally stocked with fish, as to
their adaptability for fish, and stock the same, if suitable, with the
varieties of fish that are best adapted to the waters.
Historical: Laws 1907, 299, Sec. 5.
Superintendent and Assistants: Appointment and Salary.
Sec. 862. The State Fish and Game Warden shall appoint the
superintendent and such assistants as may be necessary. The salary
of the superintendent shall not exceed twelve hundred dollars per
annum, and that of the assistants shall not exceed seventy-five dollars
per month.
Historical: Laws 1907, 299, Sec. 7.
Omitting the concluding clause pre-
scribing the cost of the superintend-
ent's dwelling as obsolete, said dwell-
ing having been constructed.
CHAPTER 9.
PURCHASE OF SUPPLIES FOR INSTITUTIONS.
Section
863. Purchases and contracts to be
by advertisement.
8 6 4. Estimates of supplies: Adver-
tisements: Contracts.
Section
8 65. Submission of estimates to Gov-
ernor.
866. Application of chapter.
Purchases and Contracts to Be by Advertisement.
Sec. 863. All purchases and contracts for supplies for any of the
Ch. 9. PURCHASE OF SUPPLIES 463
public institutions of the State, where the public exigencies do not
require the immediate delivery of the articles, shall be by advertising
a sufficient time previously for proposals for supplying the same.
Historical: Laws 1905, 38, Sec. 1.
Estimates of Supplies: Advertisements: Contracts.
Sec. 864. At least one month previous to the first day of January,
April, July and October, respectively, the directors of the Idaho
Insane Asylum, and the trustees of the Idaho Industrial Training
School, shall each meet and determine the supplies that may be neces-
sary for their respective institutions for three months, except such
articles as may be perishable and cannot be kept. Said boards shall
designate clearly the quantity and quality of the articles required
for their respective institutions, and advertise, for ten days in some
daily newspaper published at the capital, having general circulation
in the State, also for two consecutive weeks in one or more news-
papers published in this section of the State where any of such in-
stitutions shall be located, before the first day of January, April,
July and October, respectively, for sealed proposals for furnishing
said articles for each institution, separately, to be delivered at the
institution within ten days after the first day of the months aforesaid :
Provided, That the board may permit the delivery of goods monthly,
if in their judgment it be deemed best. The bids which propose to
furnish supplies for said institutions at the lowest rate shall be ac-
cepted for such institution by the respective boards : Provided,
further, That no proposals shall be considered by said boards unless
the same be accompanied by a bond with such security as the said
boards shall respectively determine, with condition to furnish said
articles as proposed in said bid : Provided, further, That said boards
may let a contract or contracts for furnishing any of said supplies
to any of said institutions for any period not exceeding one year,
beginning April first, if, in their judgment, it would be for the best
interest of the State so to do.
Historical: Laws 1905, 38, Sec. 2.
Submission of Estimates to Governor.
Sec. 865. The said boards, and each of them, shall, before adver-
tising for bids for furnishing any such supplies, submit the list thereof
to the Governor, Secretary of State and Attorney General, who shall
act as a board for the purpose of passing upon and revising such lists,
with power to strike therefrom any article or articles not deemed
by them necessary for such institutions, and to change such lists, and
said lists shall be published as revised by said last named board.
Historical: Laws 1905, 38, Sec. 3.
Application of Chapter.
Sec. 866. This chapter shall not apply to the State Normal Schools,
State University or Academy of Idaho.
Historical: Laws 1905, 38, Sec. 4.
Vol. 1—16
TITLE 7
PUBLIC WAYS
Chapter
1. Floating timber.
2. Highways.
3. Toll roads.
4. Public ferries and toll bridges.
Chapter
5. Miscellaneous provisions relating
to toll roads, bridges and ferries.
6. Good road districts.
7. State Highway Commission.
CHAPTER 1.
FLOATING TIMBER.
Section
867. Definition of timber.
868. Reclamation by owner.
869. Sale by sheriff.
870. Application of proceeds.
Section
871. Same: When claim is rejected.
872. Construction of dams and
booms.
873. Booms and weirs are nuisances.
Definition of Timber.
Sec. 867. The word "timber" is used in this chapter to designate
all logs, boards, planks, lumber, railroad ties, poles, rails, posts, cord-
wood or beams, and whether in rafts or otherwise, but does not in-
clude the sort of wood commonly called driftwood.
Historical: Rev. St. 1887, Sec. 830.
California Legislation: Similar, but
'lumber" for "timber," line 1: Pol.
Code 1872, Sec. 2389; Deering's Code,
ib.; Kerr's Code, ib.
Reclamation by Owner.
Sec. 868. Whenever any timber drifts upon any island in any of
the waters of this State, or upon the bank of any such waters, the
owner of the timber may remove it on paying or tendering to the
owner or occupant of the land the amount of the damages which he
has sustained by reason thereof, and which may accrue in its removal ;
and if the parties cannot agree as to the amount of such damages,
either party may have the same appraised by two disinterested citi-
zens of the county, who may hear the proofs and determine the same
at the expense of the owner of the timber.
Historical: Rev. St. 1887, Sec. 831.
See 13 Ter. Ses. (1885) 177, Sec. 1.
California Legislation: Same except
"lumber" for "timber" throughout:
Pol. Code 1872, Sec. 2390; Deering's
Code, ib.; Kerr's Code, ib.
Sale by Sheriff.
Sec. 869. If the owner of such timber does not, within three
months from the time it was so drifted, take the same away, the
owner or occupant of the land must deliver a bill of his charges and
appraisement of damages, together with the timber, to the sheriff
of the county, and thereafter the sheriff must sell the same after
three days' notice in three public places of the precinct.
Ch. 1.
FLOATING TIMBER
465
Historical: Rev. St. 1887, Sec. 832.
California Legislation: Similar: Pol.
Code 1872, Sec. 2391; Deering's Code,
ib.; Kerr's Code, ib.
Application of Proceeds.
Sec. 870. When sold, the proceeds of the timber must be applied,
first, to the payment of the charges of the sale, and in liquidation of
the expenses and damages awarded to the person entitled thereto;
and the residue must be paid to the county treasurer, to be by him
paid over to the owner, or his representative or assigns, on the pro-
duction of satisfactory proof of ownership to the probate judge, and
on his order therefor made within one year after its receipt.
Historical: Rev. St. 1887, Sec. 833.
California Legislation: Same except
"county" for "probate" judge, and
"lumber" for "timber: Pol. Code 1872
Sec. 23 92; Superior Court system as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Same: When Claim Is Rejected.
Sec. 871. The rejection by the probate judge of any claimant's
right to such proceeds is conclusive, unless, within six months there-
after, he commences action therefor. In case no claim is made or
sustained to such proceeds, the same must, by the county treasurer,
be placed in the common school fund of the county.
Historical: Rev. St. 1887, Sec. 834.
California Legislation: Same except
"county" for "probate" judge: Pol.
Code 1872, Sec. 2393; similar as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Construction of Dams and Booms.
Sec. 872. No dam or boom must be hereafter constructed or per-
mitted on any creek or river, unless said dam or boom has connected
therewith a sluiceway, lock or fixture sufficient and so arranged as
to permit timber to pass around, through or over said dam or boom
without unreasonable delay or hindrance.
Historical: Rev. St. 1887, Sec. 835.
See 13 Ter. Ses. (1885) 177, Sec. 6.
Construction of Dam: This section
prohibits the construction of any dam
or boom, on any creek or river, "which
will unreasonably delay or hinder the
passage of floating timber down the
same. Potlatch Lbr. Co. v. Peterson
(1906) 12 Ida. 769; 68 Pac. 426.
Booms and Weirs Are Nuisances.
Sec. 873. Any boom or weir in or over any creek or river so con-
structed as to prevent the passage of logs or lumber, is a public
nuisance, which may be abated unless a suitable sluiceway, lock or
passage be made thereon, within thirty days after written notice
given by any person interested, and any person owning, holding or
occupying such boom or weir is liable to pay five dollars for every
day the same remains in or over said creek or river, after thirty
days' notice to remove the same, and is liable for any damages sus-
tained by individuals by reason of said boom or weir.
Historical: Rev. St. 1887, Sec. 836; past the boom of obstruction, is liable
13 Ter. Ses. (1885) 177, Sec. 7. to an action to abate the same as a
Obstructions Are Nuisances: One nuisance and for damages caused by
who constructs a boom or obstruction its maintenance. Powell v. The
across a navigable stream in such a Springston Lbr. Co. (1906) 12 Ida.
way as to prevent others driving logs 723; 88 Pac. 97.
466
PUBLIC WAYS
Tit. 7
CHAPTER 2.
HIGHWAYS.
Article
1. Enumeration of highways.
2. Rules and restrictions on use of
highways.
3. Powers of commissioners and
highway officers.
4. Highway taxes.
5. Highway labor and commutation.
Article
6. Laying out, altering and discon-
tinuing highways.
7. Erection and maintenance of
bridges.
8. Obstructions and injuries to high-
ways.
9. Leasing highways.
ARTICLE 1.
ENUMERATION OF HIGHWAYS.
Section
874. Highways defined.
875. Recorded and worked highways.
Section
876. Abandonment of highways.
877. Record of highway proceedings.
Highways Defined.
Sec. 874 Highways are roads, streets or alleys, and bridges, laid
out or erected by the public, or if laid out or erected by others, dedi-
cated or abandoned to the public.
Historical: Rev. St. 1887, Sec. 850.
California Legislation: Same: Pol.
Code, 1872, Sec. 2618; similar: Deer-
ing's Code, ib.; Kerr's Code, ib.
Unauthorized Dedication: A private
land owner has no power to dedicate
to the public any portion of the rail-
road's right of way. Palmer v. North-
ern Pac. Ry. Co. (1905) 11 Ida. 583;
83 Pac. 947.
Recorded and Worked Highways.
Sec. 875. Roads laid out and recorded as highways, by order of
the board of commissioners, and all roads used as such for a period
of five years, provided the latter shall have been worked and kept
up at the expense of the public, or located and recorded by order of
the board of commissioners, are highways. Whenever any corpora-
tion owning a toll bridge, or a turnpike, plank, or common wagon
road is dissolved, or discontinues the road or bridge, or has expired
by limitation, the bridge or road becomes a highway.
Historical: Rev. St. 1887, Sec. 851;
amended Laws 1893, 12, Sec. 1; re-
enacted Laws 1899, 168, Sec. 2.
Highways by Prescription: A high-
way by prescription exists by virtue of
user and not on the theory of a grant
or dedication. Thus it may be ac-
quired over open and uninclosed land
although the owner has no desire to
use the land over which the same
runs. Gross v. McNutt (1895) 4 Ida.
300; 38 Pac. 936.
Same — Necessity of Work: Under
this section, prior to the amendment
of 1893, roads used as such for a
period of five years were highways,
but subsequent to the amendment,
five years' use and work by the proper
authoritites is required to constitute a
public highway by prescription. Town
of Juliaetta v. Smith (1906) 12 Ida.
288; 85 Pac. 923. It is not necessary
that a highway be worked throughout
its entire length at public expense to
become a highway by prescription; it
need not be worked at places where
there is no necessity for working it.
Gross v. McNutt (1894) 4 Ida. 286;
38 Pac. 935. A road cannot be deemed
a public highway by user where it was
constructed and kept in repair by a
private land owner who maintained a
gate across the same. Palmer v.
Northern Pac. Ry. Co. (1905) 11 Ida.
583; 83 Pac. 947.
Abandonment of Highways.
Sec. 876. A road not worked or used for the period of five years
ceases to be a highway for any purpose whatever.
Ch. 2. Art. 2. highways — rules and restrictions
467
Historical: Rev. St. 1887, Sec. 852. Cited: Gross v. McNutt (1895) 4
California Legislation: Same: Pol. Ida- 30°J 38 Pac- 936-
Code 1872, Sec. 2620; see Deering's
Code, Sec. 2619; Kerr's Code, ib.
Record of Highway Proceedings.
Sec. 877. The clerk of the board of commissioners must keep a
book in which must be recorded separately all proceedings of the
board relative to each road district, including orders laying out,
altering and opening roads; and in a separate book a description
of each road district, its overseers, its roads, highways, contracts,
and all other matters pertaining thereto.
Historical: Rev. St. 18 87, Sec. 853.
California Legislation: Same except
'supervisors" for "commissoners,"
line 1: Pol. Code 1872, Sec. 2621; see
Deering's Code, Sec. 2622; Kerr's
Code, ib.
ARTICLE 2.
RULES AND RESTRICTIONS ON USE OF HIGHWAYS.
Section
878. Public acquires only an ease-
ment.
879. Construction of sidewalks.
Section.
880. Owners may plant trees.
881. Corporations may lay tracks and
water mains.
Public Acquires Only an Easement.
Sec. 878. By taking or accepting land for a highway, the public
acquires only the right of way and the incidents necessary to enjoying
and maintaining it. All trees within the highway, except only such
as are requisite to make or repair the road or bridges on the same
land, are for the use of the owner or occupant of the land.
Historical: Rev. St. 1887, Sec. 860.
California Legislation: Same except
the words "subject to the regulations
in this and the Civil Code provided"
added to first sentence: Pol. Code
1872, Sec. 2631; similar: Deering's
Code, ib.; Kerr's Code, ib.
Cross Reference: Abutting owner is
presumed to own to the center of the
way: Sec. 3091.
Construction of Sidewalks.
Sec. 879. Any owner or occupant of land may construct a side-
walk on the highway along the line of his land, subject, however, to
the authority conferred by law on the board of commissioners and
the overseers of highways ; and any person using such sidewalk with
horse or team without permission of the owner, is liable to such owner
or occupant in the sum of five dollars for each trespass, and for all
damages suffered thereby.
Historical: Rev. St. 1887, Sec. 861.
California Legislation: Same except
"supervisors" for "commissioners,"
line 3; Pol. Code 1872, Sec. 2632; simi-
lar: Deering's Code, ib.; Kerr's Code,
ib.
Owners May Plant Trees.
Sec. 880. Any owner or occupant of land adjoining a highway not
less than three rods wide, may plant trees on the side contiguous
to his land. They must be set in regular rows, at a distance of at
least six feet from each other and not more than six feet from the
boundary of the highway. If the highway is more than six rods
wide, the row must not be less than six nor more than twelve feet
from the boundary of the highway. Whoever injures any of them
468
PUBLIC WAYS
Tit. 7
is liable to the owner or to the occupant for the damage which is
thereby sustained.
Historical: Rev. St. 1887, Sec. 862.
California Legislation: Same: Pol.
Code 1872, Sec. 2633; similar: Deer-
ing's Code, ib.; similar as amended:
Kerr's Code, ib.
Corporations May Lay Tracks and Water Mains.
Sec. 881. Every gas, water, or railroad corporation has power to
lay conductors and tracks through the public ways and squares in
any city, village, or town when it is established, with the consent of
the municipal authorities thereof, and under such reasonable regula-
tions, and for such compensation, as the authorities and the law
prescribe.
Historical: Rev. St. 18 87, Sec. 863.
California Legislation: Same except
"and for such compensation," line 5,
omitted: Pol. Code 1872, Sec. 2634;
repealed: Deering's Code, ib.
ARTICLE 3.
■
POWERS OF COMMISSIONERS AND HIGHWAY OFFICERS.
Section
882. Duties of commissioners.
882a. Same: Additional Duties.
Creation and alteration of road
districts.
Election of road overseers.
Duties of road overseers.
Same: Collection of road poll
tax.
General road fund.
883.
884.
885.
886.
887.
Section
888. Contracts for repair of high-
ways.
889. Duties of contractors.
890. Failure to perform contract.
891. Allowance of contractor's claims.
892. Collection of poll tax in contract
districts.
893. Every city a road district.
Duties of Commissioners.
Sec. 882. The board of county commissioners, by proper ordi-
nances, must:
1. Divide the county into a suitable and convenient number of
road districts ;
2. Cause to be surveyed, viewed, laid out, recorded, opened and
worked, such highways as are necessary for public convenience, as
in this chapter provided:
3. Cause to be recorded as highways such roads as have become
such by use or abandonment to the public ;
4. Abolish or abandon such as are unnecessary ;
5. Contract, agree for, purchase or otherwise acquire, the right-
of-way over private property for the use of public highways, and
for that purpose institute, or require the county attorney to institute,
proceedings under the Code of Civil Procedure, and to pay therefor
from the district road fund of the particular district ;
6. Let out by contract the improvement of highways, and con-
struction and repair of bridges or other adjuncts to highways, when
the amount of work to be done by contract exceeds one hundred
dollars : Provided, That at least twenty-five per cent of the fund
collected in any road district must be expended within the district
in which such fund was collected;
7. Levy a property road tax to be paid into the county road fund ;
Ch. 2. Art. 3. highways — commissioners and officers
469
8. Cause to be erected and maintained on the highways they may
designate, guide posts properly inscribed;
9. Cause the road tax provided for in subdivision seventh col-
lected each year to be paid into the road fund and kept by the treas-
urer in a separate fund ;
10. Audit and draw warrants on the road fund of the county
required to pay for the right of way or improvement thereon;
11. Cause the overseers of the several road districts in their re-
spective counties to return to the assessor and collector of the county,
in the month of December in each year, a complete list of all persons
in their respective districts who are delinquent for road poll taxes
for that year, and cause the assessor and collector to charge the
amount of such delinquent taxes upon the delinquent tax roll as other
delinquent taxes are charged, and collect the same as other delinquent
per capita taxes are collected: Provided, That from the time any
delinquent road poll tax shall be so charged upon the delinquent tax
roll of the county, the same becomes a lien upon all the property of
the persons against whom charged, to the same extent that taxes
levied for general State and county purposes become a lien thereon
when delinquent.
Historical: Rev. St. 18 87; Sec. 870.
(See 13 Ter. Ses. (1885) 162, Sec. 17.)
Amended Laws 1890-91, 190, Sec. 1;
amended Laws 1893, 184, Sec. 1;
amended Laws 1895, 143. Sec. 1;
re-enacted Laws 1899, 127, Sec. 1;
amended Laws 1901, 82, Sec. 1.
California Legislation: Similar:
Deering's Pol. Code, Sec. 2643; as
amended: Kerr's Code, ib.
Levy of Road Tax: The county com-
missioners have the exclusive right to
levy a property road tax on property
in towns or villages, although such
towns and villages have the right un-
der Rev. St. Sec. 2238, to "levy
and collect taxes for general revenue
purposes. City of Genessee v. Latah
Co. (1894) 4 Ida. 141; 36 Pac. 701.
Same — Payment to Municipality :
Where a town or village is a separate
road district, twenty-five per cent of
the money realized on the property
road tax levied by the county com-
missioners on property in such town
or village must be turned over to said
town or village to be expended by the
town or village authorities, ib.
A municipality need not put in a
claim for the percentage of road tax
which should be paid to it, but such
percentage should be paid without
claim being made. Village of Moun-
tainhome v. Elmore Co. (1904) 9 Ida.
410; 75 Pac. 65.
Defective Highways — Liability:
County commissioners are not indi-
vidually liable for injuries sustained
by reason of defective highways.
Worden v. Witt (1895) 4 Ida. 404; 39
Pac. 1114.
Same: Additional Duties.
Sec. 882a. It shall be the duty of each of the county commissioners
of this State personally to visit and inspect all roads and highways
in the commissioner's district from which he was elected, on or
before the first Monday in February of each year, if practicable, or
as soon thereafter as conditions will permit, and also on the first
Monday in September of each year; and he shall give to the several
road district overseers in the county specific instructions as to the
work to be done therein, and shall ascertain if road contractors in
his district are complying or have complied with the contracts. Said
commissioners shall require the said overseers to keep and maintain
all the roads in their several districts in good repair, and shall ex-
ercise full and complete authority over all roads and overseers of
his district; they shall submit a report in detail at each quarterly
meeting of the board of county commissioners of the work done and
materials used in their several districts, and an approximate estimate
470 PUBLIC WAYS Tit. 7
of the money needed for improvements upon the roads and highways
therein for the ensuing quarter. Said commissioners shall meet in
special session on the second Monday of May and September of each
year, for the consideration of questions pertaining to the public roads
of their respective districts, and each member of said board of county
commissioners shall submit a report showing the conditions of the
public roads and highways in his district, and the work needed, with
an estimate of the cost to be incurred ; and the board of county com-
missioners shall, at said special meetings, make provision for the
necessary improvements on the public roads and highways of the
county, and may also act upon any matters affecting the public roads
and highways in their counties. Any county commissioner who shall
wilfully or negligently fail to perform any of the duties or require-
ments herein contained, shall be subject to a fine of not less than
fifty dollars nor more than two hundred dollars, to be recovered upon
his official bond by action brought by the prosecuting attorney of the
county wherein said commissioner resides.
Historical: Laws 1907, 523, Sees. 1
and 2.
Creation and Alteration of Road Districts.
Sec. 883. The road districts must be carefully and distinctly de-
fined and described; until such division is made the road districts of
the various counties must continue as they are at present denned.
Road districts may be altered, changed, created or modified by the
board of commissioners, as occasion requires.
Historical: Rev. St. 1887, Sec. 871. i California Legislation: Similar: Pol.
See 13 Ter. Ses. (1885) 162. Sec. 17. I Code 1872, Sec. 2648; repealed 1880.
Election of Road Overseers.
Sec. 884. The qualified electors of each road district in the several
counties of the State shall meet on the first Monday in December of
each year, at one o'clock p. m., and proceed to elect a road overseer.
Notice of such election, and of the place of holding the same, may be
given by any five of the qualified electors of the road district, by
posting notices at least ten days previous to the time of holding such
election, in at least three of the most public places in such road dis-
trict. The place of holding such election shall be as nearly as prac-
ticable in the center of such road district. Said election shall be
conducted in the same manner as school elections, and immediately
after the assemblage of such electors, they shall elect a judge and
clerk from their number, who shall serve as judge and clerk of such
election without compensation. The candidate receiving the highest
number of votes cast for such overseer at such election, shall be
declared duly elected, and shall be so certified to the clerk of the board
of county commissioners of the county, by the judge and clerk of
such election. The clerk of the board of county commissioners shall
prepare a certificate of election, in accordance with the returns so
made, and the person receiving such certificate shall, before entering
upon his duties as such road overseer, furnish a good and sufficient
bond in the sum of three hundred dollars, in favor of the county,
and approved by the board of county commissioners, and the said
overseer, when such bond is approved, shall further, before entering
Ch. 2. Art. 3. highways — commissioners and officers
471
upon his duties, take and subscribe to the usual oath of office. In
case of vacancy or of failure to elect such road overseer, \te board of
county commissioners shall, upon petition, appoint an overseer, who
shall serve for the unexpired term. But for cause of neglect of duty,
or for neglecting to care for tools or machinery belonging to the
district, or upon a petition from said district, the board of commis-
sioners may declare such office vacant, and the electors of said district
shall elect another overseer as provided for in this section.
Historical: Laws 1899, 306. Sees.
1-5; re-enacting Laws 1897, 78, Sees.
1-5.
Duties of Road Overseers.
Sec. 885. Road overseers, under the direction and supervision and
pursuant to orders of the board of commissioners, must:
1. Take charge of the public highways within their respective
districts ;
2. Keep them clear from obstructions and in good repair;
3. Cause banks to be graded, bridges and causeways to be made
where necessary, keep the same in good repair, and renew them when
destroyed ;
4. Give two days' notice to the inhabitants of his road district
liable to do work on roads, when, where, with what implements, and
under whose direction to work, and superintend the same ;
5. Collect, from each inhabitant notified to work and who fails
to work or prefers to pay it, the commutation fee ;
6. Make semi-annual reports of all labor performed in his dis-
trict to the board of commissioners, under oath;
7. Receive and present petitions for new roads, recommend or
disapprove the same, and assist in laying them out ;
8. Collect all road poll taxes in the mode provided for the collec-
tion of other poll taxes, and faithfully account for and pay over the
same;
9. Receive for his services, from money in the treasurer's hands
belonging to the road fund, the sum of not less than two dollars and
fifty cents, and not more than four dollars, for each day's service
performed by him, to be fixed by the board of commissioners, an-
nually, at their regular meeting in January, to be audited and ordered
paid by the board of commissioners.
Historical: Laws 1899, 12 7, Sec. 2;
re-enacting Laws 1890-91, 190, Sec. 2.
Omitting the words "appointing them"
after "commissioners" in the first
paragraph. Road overseers are now
elected as provided in the preceding
section.
California Legislation: Similar:
Deering's Pol. Code. Sec. 2642; as
amended office of "road commis-
sioner" substituted for "road over-
seer": Kerr's Code, ib.
Same : Collection of Road Poll Tax.
Sec. 886. Every road overseer is hereby authorized to demand
payment of road poll tax from every person liable therefor, and on
the refusal of such person to work or pay the same, he must collect
the tax by seizure and sale of any personal property owned by such
person. The sale may be made after five days' notice of time and
place of such seizure and sale.
472
PUBLIC WAYS
Tit. 7
Historical: Laws 1899, 392, Sec. 1. but does not repeal said Section 901
Additional Remedy: This section (Code Sec. 908). Kootenai Co. v. Hope
prescribes an additional remedy to Lbr. Co. (1907) 13 Ida. . . .; 89 Pac.
that prescribed by Rev. St. Sec. 901 1054.
for the recovery of road poll taxes,
General Road Fund.
Sec. 887. From the road tax collected from all sources the board
of commissioners may annually set apart a sum not exceeding twenty-
five per cent of the aggregate for general county road purposes, from
which they may direct such amounts to be paid as may be found
necessary for such general road purposes in which the inhabitants
of all the districts are more or less interested. The object of the
appropriation must be specified in each order made therefor.
Historical: Rev. St. 1887, Sec. 874.
California Legislation: Same except
"supervisors" for commissioners," line
2, and "fifteen" for twenty-five," line
2: Pol. Code 1872, Sec. 2653; see
Deering's Code, Sec. 2651; Kerr's
Code, ib.
Contracts for Eepair of Highways.
Sec. 888. The county commissioners shall, at least three weeks
prior to their regular meeting in January or July, or at such other
times as may become necessary, cause notice to be published in some
newspaper, published in the county, for sealed proposals to be re-
ceived by said board for keeping in repair and improving the public
roads and highways in all districts, set apart as contract road dis-
tricts; and each proposal, or bid, so submitted to the board, shall
be accompanied by a bond conditioned for the faithful performance
of the duties of the contract, which may be entered into by and
between the party making the proposal, or bid, and the board of
county commissioners, in a sum not less than double the amount of
the bid for improvement and keeping in repair the roads and
highways within the district proposed, the bond to be secured by two
or more sureties who shall justify in the same form and manner
as is required on bonds of county officers : Provided, That all bidders
shall be residents of the road districts which they contract for. At
the time stated in the notice, the board of county commissioners shall
open and examine the proposals, or bids, and award, to the lowest
or best bidder, the contract for not less than two nor more than
three years for the respective contract road districts: Provided,
further, That the board shall reserve the power to reject any and
all bids.
Historical: Laws 1893. 184, Sec. 2;
amended Laws 18 9 5, 22, Sec. 1; re-
enacted Laws 1899, 127, Sec. 3;
amended Laws 1907, 163, Sec. 1.
Cross Reference: Justification of
sureties on bonds of county officers:
Sec. 289.
Release of Contractor: A board of
county commissioners has neither ex-
press nor implied power to accept the
resignation of a bidder to whom they
have duly and regularly awarded a
road contract under this and the fol-
lowing sections; it is to the interest
of the county that such contracts be
enforced and against its interest to re-
lease the contractors from their obli-
gations. Corker v. Commissioners of
Elmore Co. (1904) 10 Ida. 255; 77
Pac. 633.
Duties of Contractors.
Sec. 889. Any person or persons contracting as provided in this
article, shall cause all roads and highways in their respective districts
to be kept clear of obstruction, and in good repair, banks to be graded,
Ch. 2. Art. 3. highways — commissioners and officers
473
bridges and crossings to be made where the same may be necessary
to keep the same in good repair, put in snow bridges when snow
roads are used during the winter months, whenever the same may
be required, and shall use reasonable diligence in keeping each road
passable.
Historical: Laws 1893, 184, Sec. 2;
re-enacted Laws 1899, 127, Sec. 16;
amended Laws 1907, 163, Sec. 2.
Cited: Corker v. Board of Commis-
sioners (1904) 10 Ida. 255; 77 Pac.
633.
Failure to Perform Contract.
Sec. 890. The board of county commissioners, or the commissioner
of any commissioner district, upon learning that any of the public
roads are not repaired and kept in good order by any one contracting
to do so in a contract road district, shall have power and shall cause
the same to be done by placing labor thereon ; and such expense shall
be retained from any amount that may be due him on his contract,
and should that be insufficient, or nothing be due thereon, the defi-
ciency or whole amount, as the case may be, shall be collected from
his bondsmen, as other liabilities : Provided, That each commissioner
shall act only within his commissioner district, except at the regular
meetings of the board of county commissioners.
Historical: Laws 1893, 184, Sec. 2;
re-enacted Laws 1899, 127, Sec. 16;
amended Laws 1907, 163, Sec. 2.
Cited: Corker v. Board of Commis-
sioners (1904) 10 Ida. 255; 77 Pac.
633.
Allowance of Contractors' Claims.
Sec. 891. The several amounts allowed to the contractors in the
several and respective contract road districts, shall be audited and
allowed as other claims against the county, by the board of county
commissioners at their regular meeting, and shall be paid quarterly.
Historical: Laws 18 93, 184, Sec. 2;
re-enacted Laws 1899, 127, Sec. 16;
amended Laws 1907, 163, Sec. 2.
Cited: Corker v. Board of Commis-
sioners (1904) 10 Ida. 255; 77 Pac.
633.
Collection of Poll Tax in Contract Districts.
Sec. 892. In all road districts set apart as contract road districts
the road poll tax therein shall be collected by the tax collector, and
be by him paid into the county treasury and applied to the county
road fund.
Historical: Laws 18 93, 184, Sec. 2;
re-enacted Laws 1899, 127, Sec. 16;
amended Laws 1907, 163, Sec. 2.
Cited: Corker v. Board of Commis-
sioners (1904) 10 Ida. 255; 77 Pac.
633.
Every City a Road District.
Sec. 893. Each incorporated city, town or village in this State
constitutes a separate road district under this title, and the city
council of each city, and the board of trustees of each town or village
as far as relates to their city, town or village, have the powers con-
ferred, and must perform the duties imposed, upon the board of
county commissioners of their respective counties by this chapter.
Each city council and board of trustees must appoint a road overseer,
who must, within such city, town or village, ha ye the powers con-
ferred, and perform the duties imposed by this chapter, upon road
overseers; and each city council or board of trustees may remove
474
PUBLIC WAYS
Tit. 7
the overseer, or may require a bond or settlement from him at any
time, and must fill any vacancy in such office; and regulate the
length, grade and size of bridges, causeways and culverts; may pro-
vide for the construction and maintenance of sewers, sidewalks and
street crossings, and the grade and construction and maintenance
of streets and alleys, and have all the powers as to streets and alleys
conferred by their respective charters or acts of incorporation, and
by this chapter.
Historical: Rev. St. 1887, Sec. 887
(see 13 Ter. Ses. (1885) 162, Sec. 43);
amended Laws 1895, 132, Sec. 1; re-
enacted Laws 1899, 270, Sec. 1.
Cited: City of Lewiston v. Booth
(1893) 3 Ida. 692, 34 Pac. 809; Carson
v. City of Genesee (1903) 9 Ida. 244,
74 Pac. 862; Village of Mountainhome
v. Elmore Co. (1904) 9 Ida. 410, 75
Pac. 65; Village of Sandpoint v. Doyle
(1905) 11 Ida. 642, 83 Pac. 598.
Liability for Defective Streets: Cities
and villages incorporated under the
general laws of the State are liable
for negligent discharge of the duty
imposed on them of keeping streets in
a reasonably safe condition for travel-
ers. Moreton v. Village of St.
Anthony (1904) 9 Ida. 532; 75 Pac.
262.
ARTICLE 4.
HIGHWAY TAXES.
Section
894. Road poll and per capita tax.
Overseers must make lists of in-
habitants.
Estimate of road tax and com-
mutation fee.
Road tax receipts.
Application of taxes.
Adding omitted names.
895.
896.
897.
898.
899.
Section
9 00. Levy of property road tax.
901. Levy of special road tax.
902. Copy of levy to be sent to road
overseers.
903. Notice to perform labor.
904. Performance of labor. Receipts.
905. Delinquency of tax: Fund.
906. Performance of excess labor.
Road Poll and Per Capita Tax.
Sec. 894. Every male inhabitant of a road district, over the age
of twenty-one, and under fifty years of age, must perform two days'
labor annually to be known as the road poll tax, upon the roads and
highways of the district, under the demand and direction of the road
overseer thereof, or pay to such overseer a commutation fee of four
dollars, or such smaller amount as may be fixed as the commutation
fee by the board of commissioners : Provided, That, whenever in the
judgment of the board of commissioners of any county it shall be
deemed expedient and advisable to work the roads of such county
by contracting for the maintenance and repair thereof, they may
levy a per capita road tax of not more than four dollars upon every
male inhabitant in such county over twenty-one and under fifty years
of age, to be known as a "road per capita tax," which shall be col-
lected by the tax collector of the county at the time, and in the
manner, provided for the collection of poll taxes, with like penalty
for delinquency in the payment thereof. All provisions of law relative
to the printing and delivery of such poll tax receipts to the tax col-
lector, and settlement thereof by the assessor with the auditor, and
also for the enforcement and collection thereof, shall apply equally
to such road per capita tax, except that the money collected there-
from shall be apportioned to the road fund of such county.
Historical: Rev. St. 1887, Sec. 880
(see 13 Ter. Ses. (1885) 162, Sec. 20);
amended Laws 1901, 297, Sec. 1.
California Legislation: Similar to
the proviso, rest omitted: Pol. Code
1872, Sec. 2657; repealed 1883.
Ch. 2. Art. 4.
HIGHWAYS — TAXES
475
Overseers Must Make Lists of Inhabitants.
Sec. 895. Each road overseer must, within twenty days after being
notified of his appointment and qualification, deliver to the clerk of
the board of commissioners a list of the inhabitants of his district
liable for the road poll tax therein. This list must be laid before the
board of commissioners at their first meeting held thereafter.
Historical: Rev. St. 1887, Sec. 881.
California Legislation: Same except
"supervisors" for "commissioners,"
and "or to the commissioner of high-
ways" inserted after "commissioners,"
line 3: Pol. Code 1872, Sec. 2658; re-
pealed 1880.
Estimate of Road Tax and Commutation Fee.
Sec. 896. The board of commissioners must each year, at the meet-
ing at which they are required to levy the property tax for county
purposes, estimate the probable amount of property tax for highway
purposes which may be necessary for the ensuing year over and above
the road poll tax, and must regulate and fix the amount of property
highway tax, and levy the same thereby; and at the same time, the
board of commissioners must fix the commutation fee for the road
poll tax at an amount not exceeding four dollars.
Historical: Rev. St. 1887, Sec. 882.
California Legislation: Same except
"supervisors" for "commissioners,"
and "prior to" for "at" the meeting,
line 1: Pol. Code 1872, Sec. 2659; see
Deering's Code, Sec. 2653; Kerr's
Code, ib.
Road Tax Receipts.
Sec. 897. At the time of fixing the commutation fee the board of
commissioners must provide proper blank road poll tax receipts, to
be signed by the clerk of the board, and must deliver to each road
overseer a number equal to the number of inhabitants of their re-
spective districts liable for road poll tax, take receipt therefor, and
charge the road officer receiving the same therewith ; but credit must
be given to each road overseer for all unsold blank road poll tax re-
ceipts returned to the clerk of the* board of commissioners.
Historical: Rev. St. 1887, Sec. 883.
California Legislation: Same except
'Supervisors" for "commissioners":
Pol. Code 1872, Sec. 2660; repealed
1883.
Application of Taxes.
Sec. 898. The road overseers must make out lists of the inhabi-
tants of the road districts liable for road poll tax, and require of
each the performance of the labor or the payment of the commutation
fee fixed by the board of commissioners, and apply such labor and
commutation money in the opening, maintenance and repair of the
highways and adjuncts in their respective road districts.
Historical: Rev. St. 1887, Sec. 884.
California Legislation: Similar: Pol.
Code 1872, Sec. 2661; repealed 1883.
Adding Omitted Names.
Sec. 899. The overseers must, from time to time, add to the lists
the names of persons liable for road poll tax who were omitted or
who have become inhabitants of their districts since the original list
476
PUBLIC WAYS
Tit. 7
was made, and enforce the road poll tax or collect the commutation
fee therefor, and apply the same as hereinbefore provided.
Historical: Rev. St. 1887, Sec. 885.
California Legislation : Same except
'the commissioner of highways and
road overseers" for "the overseers,'
line 1: Pol. Code 1872, Sec. 2662; re-
pealed 1883.
Levy of Property Road Tax.
Sec. 900. The annual property tax for road purposes must be
levied by the board of commissioners at their session when the tax
is by them levied for county purposes, and must not be less than
ten, or exceed sixty, cents on each one hundred dollars in value of
taxable property. This property road tax, when levied, must be
annually assessed and collected by the same officers and in the same
manner as other State and county taxes are levied, assessed and
collected, and turned over to the county treasurer, for the use of the
road fund.
Historical: Rev. St. 1887, Sec. 886;
amended Laws 1890-91, 190, Sec. 3;
re-enacted Laws 1899, 127, Sec. 4.
California Legislation: Similar ex-
cept as to limits of tax: Pol. Code
1872, Sec. 2663; repealed 1883. See
Deering's Code, Sec. 2654; Kerr's
Code, ib.
Cited: Canyon Co. v. Toole (190 2)
8 Ida. 501; 69 Pac. 320.
Levy of Road Tax: This section au-
thorizes county commissioners to levy
a road tax on property in towns and
villages. City of Genesee v. Latah
Co. (1894) 4 Ida. 141; 36 Pac. 701.
Levy of Special Road Tax.
Sec. 901. The board of county commissioners in each county of
the State may, at the first regular meeting thereof in January of
each year, by resolution entered at length upon the record of minutes
of the meeting, levy a special property road tax, not to exceed an
amount equal to ten mills on the dollar, on all taxable property in
the county, as is shown by the assessment books of the county for the
last preceding year (except such property as is within the corporate
limits of any incorporated city, town or village) , which tax shall be
payable either in money or in work and labor, as is hereinafter pro-
vided. And in the event it is deemed inadvisable by the board of county
commissioners of any county or counties in the State to levy a special
road tax upon all taxable property, as hereinbefore provided, and
Provided, further, that a majority of the resident tax payers of any
road district or districts in such county shall have, at the time of the
first regular meeting in January, petitioned said board of county
commissioners for the levy of a special road tax for their particular
road district or districts, then the said board of county commissioners
shall levy a special road tax in such amount as set forth in the
petition therefor, not, however, exceeding an amount equal to ten
mills on the dollar on all the taxable property in such road district
or districts, as shown by the assessment books of the county for the
last preceding year, and such tax shall be payable either in money
or in work and labor, as hereinafter provided. And from and after
such levy such tax shall become a lien upon all real property in the
same manner and to the same extent that taxes levied for State and
county purposes become a lien thereon; and at the same time and
place and in the same manner, the commissioners shall fix the com-
pensation to be allowed for each day's work or labor of eight hours
of a man or team and the use of tools.
Ch. 2. Art. 4.
HIGHWAYS — TAXES
477
Historical: Laws 1901, 78, Sec. 1;
amended Laws 1907, 572, Sec. 1.
Constitutionality: This act in pro-
viding for a special property road tax
on property otherwise taxed for gen-
eral road purposes, does not authorize
double taxation within the meaning of
Constitution, Art. 7, Sec. 5. Humbird
Lbr. Co. v. Kootenai Co. (1904) 10
Ida. 490; 79 Pac. 396.
Copy of Levy to Be Sent to Road Overseers.
Sec. 902. Upon the making of such levy, the auditor must, before
the first day of the next succeeding April, make under his seal, and
mail to the postoffice address of, or deliver in person to, each road
overseer in each district in the county, if the assessment covers the
entire county, and otherwise to the road overseers of such road dis-
trict or districts in which a levy for special road tax shall have been
made, a copy of such resolution or resolutions and a description of
all taxable property in his road district, together with the names of
the owners thereof, as the same appears on the assessment books of
the last preceding year; and also the amount of taxes due from each
person, firm, or corporation therein named; and he shall also make
and retain in his office copies thereof, showing the names of all per-
sons, firms and corporations owning property in the county subject
to the tax herein provided for, together with the amount due from
each. And at the time he makes the entries in the assessment book of
his county, under the provisions of Section 1707 of these Codes, he
shall enter therein, under appropriate heading, the amount of said
taxes opposite the name of the person to whom the property upon
which the same is assessed belongs, as is shown by said assessment
book.
repealed by Laws 1901, 233, but Sec-
tion 1707 of these Codes, taken from
the 1901 act, is the same in substance
as the section (1489) originally re-
ferred to in this section.
Historical: Laws 1901, 78, Sec. 2;
amended Laws 1907, 572, Sec. 1.
"Section 1707" inserted for "Section
1489 of the Revised Statutes as
amended" by Laws 1899, 254. The
amendatory act of 1899 was expressly
Notice to Perform Labor.
Sec. 903. After receiving such statement from the auditor, each
road overseer must, between the first days of the next succeeding
May and July, give notice to all persons, firms, or corporations, resid-
ing in and owning property within his road district, subject to the
tax herein provided for, that he or they may perform work or labor
upon the public highway in his district, in payment of said tax. Such
notice may be either oral or in writing, and must designate the place
where and the time when (which must not be less than five days from
the date thereof), such work and labor may be performed. And in
case of non-resident owners, he shall give such notice to the known
agents thereof, if any, or to any person, if any there be, in posses-
sion of the property of such non-resident: Provided, That at any
time between the said first days of May and July, any person, firm,
or corporation, not receiving such notice may offer to perform work
and labor upon the public highway in payment of any tax herein
provided for, and the road overseer must designate the place where
and the time when (which must not be more than five days from the
date of such offer) , the person so offering may perform such work and
labor: Provided, further, That any work done by any taxpayers
after the said first day of July, at the request of the road overseer of
478 PUBLIC WAYS Tit. 7
any district, or with his consent and before said taxes become de-
linquent, shall be applied in the payment of the taxes hereinbefore
provided for, according to the provisions of these sections.
Historical: Laws 1901, 78, Sec. 3.
Performance of Labor: Receipts.
Sec. 904. Every person, firm, or corporation owning any property
subject to the tax above provided for, may pay the same by perform-
ing, or causing to be performed, work and labor upon the public high-
ways in the road district where said property is situated, under the
direction and supervision of the road overseer of said district. The
road overseer shall keep an accurate account of all work and labor
so performed by or for any person, firm, or corporation owning prop-
erty in his district subject to the tax hereinbefore provided for, and
after the performance of any such work and labor, and before the
fifteenth day of the succeeding July, the road overseer of each dis-
trict shall make and sign, in duplicate, a receipt or receipts for the
amount of work done by or for any person, firm, or corporation ; and
shall deliver one to the person, firm, or corporation entitled thereto,
or to his or their agent, and shall transmit the other to the county
assessor, who shall, when the assessment book is delivered to him by
the auditor for the collection of taxes, credit thereon to the proper
person, firm, or corporation the amount of taxes paid, as is shown by
such receipt ; and the county treasurer shall receive said receipts from
the assessor and tax collector in payment of said special property
road tax; and the county auditor shall receive said receipts from the
county treasurer as a payment of the same : Provided, That the as-
sessor may, at any time before said taxes become delinquent, receive
from any person, firm, or corporation in payment thereof, a receipt
signed by the road overseer of the district wherein the property is
situated, for work and labor performed, equal to the amount of
taxes, which receipt he shall deliver to the county treasurer, and the
county treasurer to the county auditor, in payment of said taxes.
Historical: Laws 1901, 78, Sec. 4.
Delinquency of Tax: Fund.
• Sec 905. The taxes herein provided for shall become delinquent
at the same time and in the same manner as taxes levied for State and
county purposes become delinquent, and thereafter shall be payable
in money, and not otherwise, and all laws relating to the collection
of delinquent taxes shall be applicable to the taxes herein provided
for and to the collection thereof ; and such taxes herein provided for
as shall become delinquent, and as shall be paid in money, shall be
kept by the county treasurer in a separate fund for the use and benefit
of the road district wherein the property is situated, upon which the
same was levied ; and such moneys shall be used only for the purpose
of maintaining the public highways in the district wherein the same
were collected, and shall be paid out only upon warrants regularly
drawn thereon by the auditor, upon the order of the board of county
commissioners, for bills presented thereto by the road overseer of
such district; and after the same has been allowed as other bills or
claims against the county are allowed : Provided, That no warrant
Ch. 2. Art. 5. highways — labor and commutation 479
shall be ordered or drawn upon any such fund of any road district
in excess of the amount of money actually in the hands of the county
treasurer at the time that any bill shall be presented to the board of
county commissioners, nor shall any bill so presented be allowed by
the board of county commissioners unless there shall be sufficient
funds in the hands of the county treasurer to pay the same, nor shall
any liability against the county, or against any road district, be
created by the board of county commissioners, or otherwise, for any
work or labor performed pursuant to the provisions of these sections,
unless there shall be sufficient moneys in the hands of the county
treasurer to the credit of said road district to pay the same.
Historical: Laws 1901, 78, Sec. 5.
Performance of Excess Labor.
Sec. 906. If the owner of any property subject to the tax herein
provided for, shall, between the first days of May and September of
any year, perform, or cause to be performed, work and labor upon
the public highway, at the request of or with the consent of the
road overseer of the district, in excess of the amount of taxes levied
thereon, the road overseer shall make a receipt in duplicate for the
same and shall deliver one to such owner or his agent, and shall for-
ward the other to the county assessor ; and such work and labor shall
be deemed a payment upon any taxes thereafter levied upon the prop-
erty then owned by such person, and none other; and all county
officers shall receive such receipts as a payment thereof in the same
manner and to the same extent as is hereinbefore provided: Pro-
vided always, That such receipts so issued shall not be transferable
to any person or persons whomsoever.
Historical: Laws 1901, 78, Sec. 6.
ARTICLE 5.
HIGHWAY LABOR AND COMMUTATION.
Section
907. Not to be performed out of dis-
trict.
908. Employers liable for employees'
tax.
909. Day's work: Penalty for idle-
ness: Substitutes.
910. Delinquency.
Section
911. Acceptance of excuse no exemp-
tion.
912. Road overseers' reports.
913. Same: Special reports.
914. Settlements for money on hand.
915. Penalty for failure to report.
Not to Be Performed Out of District.
Sec. 907. Road overseers must not require an individual to work
out of the district in which he resides.
Historical: Rev. St. 1887, Sec. 900.
California L,ej>islation: Same: Pol.
Code 1872, Sec. 2680; repealed 1883.
Employers Liable for Employees' Tax.
Sec. 908. Corporations or other employers of residents in any
highway district, are responsible for the road poll tax assessed
against their employees, and a notice to the employer or managing
agent requiring the payment of the road poll tax of the employee,
charges such employer or corporation with such road poll tax.
480
PUBLIC WAYS
Tit. 7
Historical: Rev. St. 1887, Sec. 901.
California Legislation: Same: Pol.
Code 1872, Sec. 2681; see Deering's
Code, Sec. 2671; Kerr's Code, ib.
Not Repealed: This section is not
repealed by Laws 1899, p. 392 (Codes,
Sec. 886), which provides an addi-
tional remedy for the collection of
road poll taxes. Kootenai Co. v. Hope
Lumber Co. (1907) 13 Ida. — ; 89
Pac. 1054.
Liability of Employers: This section
makes corporations and other em-
ployers of persons subject to pay a
road poll tax, responsible for such
taxes upon a proper notice being given
to them, in case they then are or
afterwards become indebted to the
employee liable for the tax. Ib.
Same — Action: Under this section
the prosecuting attorney of a county
may bring an action in the name of
the county to recover from an em-
ployer the amount of an employee's
road poll tax when the employer has
been served with proper notice and is
indebted to the employee in an
amount equal to the tax. Ib.
Day's Work: Penalty for Idleness: Substitutes.
Sec. 909. Each person appearing must actually work eight hours
each day, to be credited to him by the overseer. For every hour un-
necessarily lost or idled away he must be charged two hours, to be
worked out on some other day under notice from the overseer. Any
person may work by an able bodied substitute.
Historical: Rev. St. 1887, Sec. 902.
See 13 Ter. Ses. (1885) 162, Sec 24.
California Legislation: Same: Pol.
Code 1872, Sec. 2682; repealed 1883.
Delinquency.
Sec. 910. Every person receiving due notice, who does not ap-
pear and labor or commute, is delinquent.
Historical: Rev. St. 1887, Sec. 903.
See 13 Ter. Ses. (1885) 162, Sec. 22.
California Legislation: Same: Pol.
Code 1872, Sec. 2683; repealed 1883.
Acceptance of Excuse No Exemption.
Sec. 911. The overseer's acceptance of an excuse for a neglect in
no case exempts the person excused from performing or commuting
the whole number of days' work for which he was assessed.
Historical: Rev. St. 1887, Sec. 904.
California Legislation: Same: Pol.
Code 1872, Sec. 2684; repealed 1883.
Road Overseers' Reports.
Sec. 912. Every overseer must make to the commissioners, semi-
annually, a written report, under oath, containing:
First. The names of all persons assessed to work in his district.
Second. The names of all who have actually worked, and the
number of days.
Third. The names of all who have commuted, and the amount
received from them.
Fourth. The names of all delinquents, and the amount collected
from them.
Fifth. A full return by items of the amount of labor performed
at each separate point, and the manner in which, and the time when,
the same was done.
Sixth. The number of road poll tax receipts sold, and those re-
turned unsold.
Seventh. An accurate account of every day he himself was em-
ployed, and the nature and items of the service rendered.
Historical: Laws 1899, 127, Sec. 5;
re-enacting Laws 1890-91, 190, Sec. 4.
Cross Reference: Overseers to re-
port on bridges: Sec. 942.
Ch. 2. Art. 6. HIGHWAYS — LAYING out, etc. 481
Same: Special Reports.
Sec. 913. The commissioners may require special reports from
road overseers when deemed proper.
Historical: Rev. St. 1887, Sec. 906.
California Legislation: Similar: Pol.
Code 1872, Sec. 2686; repealed 1880.
Settlements for Money on Hand.
Sec. 914. The road overseers must accompany their reports with
all moneys remaining in their hands at the date of the report. In
addition to the reports required of road overseers in Section 912, each
road overseer shall, on the first Monday of each month, report to the
auditor of his county all moneys that may have come into his hands
as such road overseer during the preceding month, stating therein,
particularly, the source from which the same was derived. Upon
receiving such report the auditor shall certify to the treasurer the
amount due from such road overseer and to what fund or funds the
same may belong. Within five days the road overseer making such
report shall pay over to the county treasurer the whole amount speci-
fied in his report for the preceding month. The treasurer shall then
make and file with the auditor a receipt for the amount paid, and the
auditor shall give to the road overseer a release for the amount and
charge the treasurer with the same.
Historical: Laws 1899, 127, Sec. 6; I "Section 912" inserted for "Article five
re-enacting Laws 1890-91, 190, Sec. 5. of this chapter."
Penalty for Failure to Report.
Sec. 915. A failure to make a report as required, or to pay over
according to law, or on the order of the commissioners, any moneys
in his hands, subjects to the overseer to a penalty of twenty-five dollars
to be recovered in an action on his bond, together with any balance
due from him ; suit therefor may be instituted by the prosecuting at-
torney under order of the board of commissioners.
Historical: Laws 1899, 127, Sec. 7; "Prosecuting- attorney" for "district
re-enacting Laws 1890-91, 190, Sec. 6. ' attorney."
ARTICLE 6.
LAYING OUT, ALTERING AND DISCONTINUING HIGHWAYS.
Section
916. Petition for road.
917. Contents of petition.
918. Bonds for costs.
919. Appointment of viewers.
920. Duties of viewers.
921. Report of viewers.
Restrictions on line of road.
923. Compensation of viewers.
924. Hearing on report.
925. Approval of report.
926. Condemnation of right of way.
927. Awards paid from road fund.
Petition for Road.
Sec. 916. Any ten inhabitants of a road district taxable therein
Section
928 Width of highways.
92 9. Establishment of private roads.
93 0. Record of title papers.
9 31. Railroads to make crossings.
932. Removal of fences.
933. Turning roads across private
lands.
93 4. Public roads established without
viewers.
935. Same: Bond for expense of
survey.
482
PUBLIC WAYS.
Tit. 7
for road purposes, may petition in writing the board of commis-
sioners to alter or discontinue any road or to lay out a new road
therein.
Historical: Rev. St. 1887, Sec. 920.
See 13 Ter. Ses. (1885) 162, Sec. 2.
California Legislation: Same except
"the commissioner of highways or the
board of supervisors" for "the board
of commissioners": Pol. Code 1872,
Sec. 2698; see Deering's Code, Sec.
2681; Kerr's Code, ib.
Cited: Canyon County v. Toole
(1904) 9 Ida. 561; 75 Pac. 609; Latah
Co. v. Hasfurther (1907) 12 Ida. 797;
88 Pac. 433.
Contents of Petition.
Sec. 917. The petition must set forth and describe particularly
the road to be abandoned, discontinued, altered, or constructed, and
the general route thereof, over what lands, and who the owners
thereof are, whether the owners consent thereto, and if not, the
probable cost of the right of way, the necessity for, and the advan-
tages of, the proposed change.
Historical: Rev. St. 1887, Sec. 921.
California Legislation: Same: Pol.
Code 1872, Sec. 2699; see Deering's
Code, Sec. 2682; Kerr's Code, ib.
Petition — Mode of Attack: A peti-
tion for laying out a public road must
substantially contain the substantive
facts required to be stated by the pro-
visions of this section, in order to give
the board jurisdiction of the subject
matter where the non-consenting land
owner fails to appear and contest the
laying out of the highway, but if the
non-consenting land owner appears
and raises no objection to the form
of the petition, and proceeds as though
it were sufficient, and introduces his
testimony and prays for damages, he
cannot collaterally attack the order of
the board on the ground of defects
in the petition, in condemnation pro-
ceedings by the county. Canyon Co.
v. Toole (1904) 9 Ida. 561; 75 Pac.
609.
Bond for Costs.
Sec. 918. The petitioners must accompany the petition with a
good and sufficient bond, to be approved by the commissioners, in
double the amount of the probable cost of the viewing and laying out
or altering of any road, conditioned that the bondsmen will pay all
the costs of viewing and surveying in case the prayer is not granted,
and the road finally not opened.
Historical: Rev. St. 1887, Sec. 922.
California Legislation: Same except
"supervisors" for "commissioners,"
line 2: Pol. Code 1872, Sec. 2700; see
Deering's Code, Sec. 2683; Kerr's
Code, ib.
Appointment of Viewers.
Sec. 919. Upon filing such petition and bond, the board of com-
missioners must appoint three viewers, one of whom must be a sur-
veyor, to view and survey any proposed alteration of an old or open-
ing of a new road, to be made in accordance with the description in
the petition, and submit to the board an estimate of the cost of the
change, alteration, or opening, including the purchase of the right
of way and their views of the necessity thereof.
Historical: Rev. St. 1887, Sec. 923.
See 13 Ter. Ses. (1885) 162, Sec. 4.
California Legislation: Same except
"supervisors" for "commissioners":
Pol. Code 1872, Sec. 2701; similar:
Deering's Code, Sec. 2684; Kerr's
Code, ib.
County Surveyor as Viewer: The
county commissioners need not ap-
point the county surveyor one of the
viewers, but in case they do so, the
county surveyor does not act in his
official capacity and must take the
oath prescribed by the following sec-
tion. Latah Co. v. Hasfurther (1907)
12 Ida. 797; 88 Pac. 433.
Ch. 2. Art. 6.
HIGHWAYS — LAYING OUT, ETC.
483
Duties of Viewers.
Sec. 920. The road viewers must be disinterested citizens of the
county, but not petitioners; they must be sworn to discharge their
duties faithfully; must view and lay out the proposed alteration or
new road over the most practicable route; notify the owners of the
land over which it passes of the proposed route; ascertain whether
the owners consent thereto, and the amount, if any, they claim or
demand for the right of way over the same; estimate the actual
damage to any land over which it passes, and the cost of any bridges
or grading necessary; the necessity for and public convenience to be
subserved by the road, and whether the opening thereof, or change
therein proposed should be had.
Historical: Rev. St. 1887, Sec. 92 4.
California Legislation: Same: Pol.
Code 1872, Sec. 2702; similar: Deer-
ing's Code, Sec. 2685; Kerr's Code, ib.
Failure to Take Oath: The failure
of a viewer to take the oath pre-
scribed by this section renders the
whole proceeding irregular and void-
able on an appeal to the district court
from an order of the board of com-
missioners opening the road. Latah
Co. v. Hasfurther (1907) 12 Ida. 797;
88 Pac. 433.
Report of Viewers.
Sec. 921. When the view and survey of the proposed alteration or
new road is completed, the viewers must report to the board of com-
missioners :
1. The course, termini, length, and cost of construction of the pro-
posed road ;
2. The estimate of damage to the owner of any land over which
it is proposed to run the road ;
3. The names of land owners who consent to give the right of
way and their written consent thereto;
4. The names of land owners who do not consent, and the
amount of damage claimed by each ;
5. Such other facts bearing upon the subject, of importance to
be known by the board of commissioners.
Historical: Rev. St. 1887, Sec. 925.
See 13 Ter. Ses. (1885) 162, Sees. 5
and 16.
California Legislation: Same except
Restrictions on Line of Road.
Sec. 922. No report of viewers must be approved by the board of
commissioners which, without the consent of the owner and occu-
pant, runs the road:
1. Through an orchard of four years' growth ;
2. Through a garden or yard four years cultivated;
3. Through buildings or fixtures, or erections for the purposes
of residence, trade, or manufacture;
4. Through inclosures necessary for the use or enjoyment of
buildings, fixtures or erections;
Unless the board of commissioners are satisfied, from personal
examination and observation, or from the sworn statement of at
least twelve respectable residents of the road district, that the open-
ing of such road through such premises is an absolute necessity, a
"supervisors" for "commissioners":
Pol. Code 1872, Sec. 2703; similar:
Deering's Code, Sec. 2686; Kerr's
Code, ib.
484
PUBLIC WAYS
Tit. 7
great public benefit, or a great convenience to a moiety of the in-
habitants of the district.
Historical: Rev. St. 1887, Sec. 926.
iCalifornia Legislation: Same except
"supervisors" for "commissioners"
throughout, and "or 5. Though in-
closed or improved lands" inserted
after subd. 4: Pol. Code 1872, Sec.
2704; repealed 1880.
Compensation of Viewers.
Sec. 923. The viewers must be paid three dollars each per day, for
their services, out of the road fund, and the surveyor, for services in
running out and mapping the road and making the plat and field
notes, which must be filed when required before he receives his com-
pensation, five dollars per day.
Historical: Laws 1899, 127, Sec. 8;
re-enacting Laws 1890-91, 190, Sec. 7.
Hearing on Report.
Sec. 924. The board of commissioners, on the coming in of the
report; must fix a day for hearing the same ; must notify the owners
of land, not consenting to give the right of way, of the hearing, by
having written notice served on them personally, or on the occupant,
or agent of the owner, or, if neither, by posting notice at the most
conspicuous place on the land, or left at the owners', agent's, or occu-
pant's residence, ten days prior to the day fixed for the hearing; and
must, on the day fixed, or to which it may be postponed or adjourned,
hear evidence and proof from all parties interested for and against
the proposed alteration or new road ; ascertain, and by order declare,
the amount of damage awarded to each non-consenting land owner,
and declare the report of the viewers to be approved or rejected. If
the report is rejected the road must not be altered or opened.
Historical: Rev. St. 1887, Sec. 92 8.
California Legislation: Same except
'supervisors" for "commissioners":
Pol. Code 1872, Sec. 2706; similar:
Deering's Code, Sec. 2688; Kerr's
Code, ib.
Approval of Report.
Sec. 925. If the board approve the report, and there are no non-
consenting land owners, the road must, by order, be declared a public
highway, and the road overseer ordered to open the same to the public.
If there are non-consenting land owners, the board must appropriate
from the road fund, and cause the road overseer to tender to such
non-consenting land owners, the award of damages made by the
board. If the awards are all accepted the road must be declared a
public highway and be opened as hereinbefore provided.
Historical: Laws 1899, 127, Sec. 9;
re-enacting Laws 1890-91, 190, Sec. 8.
Condemnation of Right of Way.
Sec. 926. If any award of damages is rejected by the land owners,
the board must, by order, direct proceedings to procure the right of
way to be instituted by the prosecuting attorney of the county, under
and as provided in the Code of Civil Procedure, against all non-ac-
cepting land owners, and when thereunder the right of way is pro-
cured, the road must be declared a public highway and opened as here-
inbefore provided.
Ch. 2. Art. 6.
HIGHWAYS — LAYING OUT, ETC.
485
proceedings are brought under this
section cannot attack the decision of
the board granting the petition on the
ground of the failure of the petition
for the road to set forth the facts re-
quired by Rev. St. Sec. 921 (Sec. 917).
Canyon Co. v. Toole (1904) 9 Ida.
561; 75 Pac. 609.
Historical: Rev. St. 1887, Sec. 930.
California Legislation: Similar: Pol.
Code 1872, Sec. 2708; see Deering's
Code, Sec. 2690; Kerr's Code, ib.
Cross Reference: Condemnation
proceedings: Sees. 5210-5229.
Defenses: A non-consenting land
owner against whom condemnation
Awards Paid From Road Fund.
Sec. 927. All awards by agreement, or ascertainment by the board
or by the proper court, must be paid out of the road fund on the order
of the board of commissioners.
Historical: Laws 1899, 12 7, Sec. 10;
re-enacting Laws 1890-91, 190, Sec. 9.
Width of Highways.
Sec. 928. All highways, except alleys and bridges, must be at least
fifty feet wide except those now existing of a less width.
Historical: Rev. St. 1887, Sec. 932.
See 13 Ter. Ses. (1885) 162, Sec. 10.
California Legislation: Same except
"except alleys and bridges" omitted:
Pol. Code, Sec. 2710; repealed 1883.
Establishment of Private Roads.
Sec. 929. Private or by-roads may be opened for the convenience
of one or more residents of any road district in the same manner as
public roads are opened, whenever the board of commissioners may for
like cause order the same to be viewed and opened, the person for
whose benefit the same is required paying the damages awarded to
land owners, and keeping the same in repair.
Historical: Rev. St. 1887, Sec. 933.
See 13 Ter. Ses. (1885) 162, Sec. 14.
California Legislation: Same except
"supervisors" for "commissioners":
Pol. Code 1872 Sec. 2711; see Deer-
ing's Code, Sec* 2 692; Kerr's Code, ib.
Constitutionality: This section is
not subject to the constitutional objec-
tion of attempting to take private
property for private use, as it au-
thorizes a private road, when opened,
to be used for any purpose to which
it is adapted by the general public
and by any individual thereof. Latah
County v. Peterson (1892) 3 Ida. 398;
29 Pac. 1089.
Opening Private Roads: By-roads
may be opened for the convenience of
one or more residents in any road
district in the same manner as public
roads, the person or persons for whose
benefit the road is opened paying the
damages awarded to land owners and
keeping the same in repair; one sig-
nature is sufficient to authorize the
county commissioners to take the
necessary steps to open a private or
by-roads, and it is not necessary to
have ten signers to the petition as in
the case of a public road provided for
by Rev. St. Sec. 920 (Sec. 916). Latah
Co. v. Hasfurther (1907) 12 Ida. 797;
88 Pac. 433.
Record of Title Papers.
Sec. 930. In all cases where consent to use the right of way for
a highway is voluntarily given, purchased, or condemned and paid
for, either an instrument in writing conveying the right of way and
incidents thereto, signed and acknowledged by the party making it,
or a certified copy of the decree of the court condemning the same,
must be made and filed and recorded in the office of the recorder of
the county, in which the land so conveyed or condemned must be
particularly described.
Historical: Rev. St. 1887, Sec. 934.
California Legislation: Same: Pol.
i
Code 1872, Sec. 2712: Deering's Code,
Sec. 2693; Kerr's Code, ib.
486
PUBLIC WAYS
Tit. 7
Railroad to Make Crossings.
Sec. 931. Whenever highways are laid out to cross railroads on
public lands, the owners or corporations using the same must, at
their own expense, so prepare their road that the public highway may
cross the same without danger or delay, and when the right of way
for a public highway is obtained through the judgment of any court,
over any railroad, no damage must be awarded for the simple right
to cross the same.
Historical: Rev. St. 1887, Sec. 935;
amended Laws 1899, 40 5, Sec. 1.
California Legislation: Pol. Code,
1872, Sec. 2713; similar. Deering's
Code, Sec. 2694; Kerr's Code, ib.
Construction: This section is pros-
pective in its operation and does not
apply to ditches and canals that have
been constructed across public high-
ways prior to the time the same went
into effect. Boise City v. Boise Rapid
Transit Co. (1899) 6 Ida. 779; 59 Pac.
716.
Removal of Fences.
Sec. 932. When the alteration of an old, or the opening of a
new, road makes it necessary to remove fences on land given, pur-
chased or condemned by order of a court for road or highway pur-
poses, notice to remove the fences must be given by the road over-
seer to the owner, his occupant, or agent, or by posting the same on
the fence, and if the same is not done within ten days thereafter, or
commenced and prosecuted as speedily as possible, the road overseer
may cause it to be carefully removed at the expense of the owner, and
recover of him the cost of such removal, and the fence material may
be sold to satisfy the judgment.
Historical: Rev. St. 1887, Sec. 936.
California Legislation: Same except
"commissioner of highways" inserted
after "road overseer," line 4, and be-
fore "road overseer," line 7: Pol. Code
1872, Sec. 2714; similar: Deering's
code, Sec. 2695; Kerr's Code, ib.
Turning Roads Across Private Lands.
Sec. 933. If any person through whose lands any public highway
is established, is desirous of turning such road through any other
part of his lands, such person may, by petition, apply to the county
commissioners, to permit him to turn such road through another
part of his lands, without materially increasing the distance to the
injury of the public; and on receipt of such petition, accompanied by
a sufficient bond to pay the cost and expense to be incurred thereby,
the commissioners may appoint three disinterested viewers and sur-
veyor, if they deem it necessary, who must view the ground over
which the road is proposed to be turned, and ascertain the distance
such road will be increased by the proposed alteration, and report in
writing, stating the several distances so found, together with their
opinion as to the utility of making such alterations ; and if the view-
ers report to the commissioners that the prayer of the petitioner is
reasonable, the commissioners, upon receiving satisfactory evidence
that the proposed new road has been opened a legal width, and in all
respects made equal to the old road for the convenience of travelers,
may declare such new road a public highway, and make record there-
of, and at the same time vacate so much of the old road as is em-
braced in the new; and the person petitioning for the alteration
must pay all costs and expense of the view and survey, if ordered:
Ch. 2. Art. 7. highways — bridges 487
Provided, When any person or persons wish to change the line or lo-
cation of any public highway, he or they shall cause notice of his or
their intention to apply to the board of county cimmissioners of the
county in which such road is situated at its next session, for per-
mission to change such road at his own expense; to be published in
the official newspaper published in such county (if there be one), if
not, then in the newspaper published nearest to the proposed change,
not less than three weeks before the first day of such session of the
said board, and shall also cause a copy of the notice to be posted at the
post office (if there be one), and at three other public places in the
precinct, at least twenty days before the said meeting of the board,
which notice must clearly show the proposed change or changes, and
when, where, and by whom the petition will be presented ; and at the
time and place designated in the notice he must present his petition,
which must conform to the notice. Any person or persons objecting
to such change may, within ten days thereafter, file a remonstrance
in writing against it: Provided, That any person aggrieved by the
action of the board may appeal to the District Court of the county
in the same manner and with like effect as in other cases of appeal
from the action of the board of county commissioners.
Historical: Rev. St. 1887, Sec. 937; i Cross Reference: Appeals from coun-
amended Laws 1907, 456, Sec. 1. ty commissioners: Sees. 1950-1953.
Public Roads Established Without Viewers.
Sec. 934. Public roads may be established without the appoint-
ment of viewers, provided the written consent of all the owners of
the land to be used for that purpose be first filed with the board of
county commissioners;- and if it is shown to the satisfaction of the
county board that the proposed road is of sufficient public importance
to be opened and worked by the public, they shall make an order es-
tablishing the same, from which time only, shall it be regarded as a
public road.
Historical: Laws 1899, 168, Sec 1;
re-enacting Laws 1893, 11, Sec. 1.
Same: Bond for Expense of Survey.
Sec. 935. If a survey for the establishment of the road named in
the preceding section is necessary, the board, before ordering such
survey, may require the party or parties asking for the establishment
of such highway to pay, or secure the payment by proper bond, of the
expenses of such survey.
Historical: Laws 1899, 168, Sec. 1;
re-enacting Laws 1893, 11, Sec. 1.
ARTICLE 7.
ERECTION AND MAINTENANCE OF BRIDGES.
Section
Secti
on
936. Construction
and repair of
939.
Petition
for repair of bridge.
bridges.
940.
Same:
For construction of
937. Special tax
for roads and
bridge.
bridges.
941.
Hearing
of petition.
938. Contracts for
construction and
942.
Reports
on bridges.
repair.
488
PUBLIC WAYS
Tit. 7
Construction and Repair of Bridges.
Sec. 936. Whenever it shall appear to be to the best interests of
the counties concerned to build or repair bridges over streams which
divide such counties, or on roads on county lines, it shall be lawful
for the commissioners of such adjoining counties to enter into a
joint contract for the purpose of building or repairing such bridge or
bridges. The one-half of the whole expense of building or repairing
shall be a legal claim against, and be paid by, each of said adjoining
counties. All public bridges not otherwise specially provided for are
maintained by the county at large in the same manner as highways,
and under the management and control of the road overseer and
board of commissioners. The expense of maintaining and repairing
the same is primarily payable out of the road fund in the hands of
the county treasurer, and from road poll taxes.
Historical: Rev. St. 1887, Sec. 945;
amended Laws 1903, 367, Sec. 1.
California Legislation: See Pol.
Code 1872, Sec. 2724: Deering's Code,
Sec. 2711; Kerr's Code, ib.
Special Tax for Roads and Bridges.
Sec. 937. Whenever it appears to the board of county commis-
sioners that the road fund is or would be unreasonably burdened by
the expense of constructing, or of maintaining and repairing, any
bridge or road, or when the expense of constructing, or of main-
taining and repairing, any bridge or road shall exceed five thousand
dollars, the said board may, in its discretion, cause a portion of such
cost or expense to be paid out of the current expense fund of the
county, and may levy a special tax not exceeding one-half of one per
cent on the taxable property of the county, annually, until the amount
appropriated in aid is raised and paid.
Historical: Rev. St. 1887, Sec. 946;
amended Laws 1899, 127, Sec. 12;
amended Laws 190 5, 67, Sec. 1.
California Legislation: See Pol.
Code 1872, Sec. 2725; Deering's Code,
Sec. 2712; as amended: Kerr's Code,
ib.
Cited: McNutt v. Lemhi Co. (1906)
12 Ida. 63; 84 Pac. 1054.
Contracts for Construction and Repair.
Sec. 938. No bridge, the cost .of the construction or repair of
which will exceed the sum of one hundred dollars, must be con-
structed or repaired except on order of the board of commissioners.
When ordered to be constructed or repaired, the contract therefor
must be let out to the lowest bidder, after reasonable notice given
by the board of commissioners, through the road overseer, by publi-
cation at least two weeks in a county newspaper; and if none, then
by three posted notices, one at the court house, one at the point to be
bridged, and one at some other neighboring public place; the bids to
be sealed, opened, and the contract awarded at the time specified in
the notice. The contract and bond to perform it must be entered into
to the approval of the board of commissioners.
Historical: Rev. St. 1887, Sec. 947.
California Legislation: Same except
"supervisors" for "commissioners"
throughout, and "commissioner of
highways or" inserted before "road
overseer," line 6: Pol. Code 1872, Sec.
2726; see Deering's Code, Sec. 2713;
Kerr's Code, ib.
Cited: Andrews v. Board of Com-
missioners of Ada Co. (1900) 7 Ida.
453; 63 Pac. 592.
Ch. 2. Art. 8. highways — obstructions and injuries
489
Petition for Repair of Bridge.
Sec. 939. If the road overseer of any road district, chargeable with
the repair of a bridge, fails to make the needed repairs after being
informed that the bridge is impassable or unsafe, and is requested to
make the same by two or more taxpayers of the district in which it
is situated, or the two districts which it unites, the taxpayers may
represent the facts to the board of commissioners, who, upon being
satisfied that the bridge is unsafe, must cause the same to be repaired
and must pay therefor from the road fund.
Historical: Laws 1899, 127, Sec. 13;
re-enacting- Laws 1890-91, 190, Sec. 12.
California Legislation: Similar: Pol.
Code 1872, Sec. 2728; as amended:
Deering's Code, Sec. 2715; Kerr's
Code, ib.
Same: For Construction of Bridge.
Sec. 940. When a bridge, the cost of which will exceed one hun-
dred dollars, is necessary, any five or more taxpayers of the road
districts interested therein may petition the board of commissioners
for the erection of such needed bridge. The board must thereupon
advertise such application, giving the location and other facts, for
two weeks in a newspaper printed in the county, if none, then by
posters — one at the proposed location, one at the court house, and
one at some other public place in the county, and notify the overseer
to attend at a certain time and place to hear the application.
Historical: Rev. St. 1887, Sec. 950.
California Legislation: Same except
"freeholders" for "tax payers," line 2;
"Supervisors" for "commissioners,"
line 3; "or commissioner of highways"
inserted after "overseer," next to last
line: Pol. Code 1872, Sec. 2729; re-
pealed 1883.
Hearing of Petition.
Sec. 941. On the day fixed to hear the application, proof of the no-
tice given being made satisfactory, the board must hear the petition,
examine witnesses, and determine whether or not a bridge is necessary
as petitioned for; if found to be so, the board must determine the
character of the bridge to be constructed, prepare plans and speci-
fications, invite bids, let the contract, and have the same erected,
and provide for the payment therefor as herein provided.
Historical: Rev. St. 1887, Sec. 951.
California Legislation: Same: Pol.
Code 1872, Sec. 2730; repealed 1883.
Reports on Bridges.
Sec. 942. The road overseers must, in their official reports, give
a full account of all bridges of which they have in whole or in part
the charge and maintenance, those constructed or repaired, and the
cost thereof, the amounts expended thereon, from what source de-
rived, and the present and prospective condition thereof.
Historical: Rev. St. 1887, Sec. 952.
California Legislation: Same except
"the commissioner of highways and
road overseers" for "the road over-
seers," line 1: Pol. Code 1872, Sec.
2731; repealed 1883.
ARTICLE 8.
OBSTRUCTIONS AND INJURIES TO HIGHWAYS.
Section
Section
943. Removal of encroachments
944 Same: Notice of remove.
490
PUBLIC WAYS
Tit. 7
Secti
on
Secti
on
945.
Same:
Penalty for neglect.
956.
Notices on bridges.
946.
Same:
Abatement by action.
957.
Injury to shade trees.
947.
Same:
Abatement by overseer.
958.
Disposition of penalties
and for-
948.
Gates.
feitures.
949.
Same:
Penalties.
959.
Local laws unaffected.
950.
951.
952.
953.
Injuries
Bridges
Repair
Injury
to highways.
and culverts,
by overseer,
to guide posts.
960.
961.
962.
Width of highways
streams.
Passageways for stock.
Damages to highways
stock.
across
by live-
954.
Removal of fallen trees.
963.
Bridges to be fortified
f or trac-
955.
Same.
tion engines.
Removal of Encroachments.
Sec. 943. If any highway duly laid out or erected is encroached
upon by fences, buildings, or otherwise, the road overseer of the
district may, orally or in writing, require the encroachment to be
removed from the highway.
Historical: Rev. St. 1887, Sec. 960.
California Legislation: Same except
"the commissioner of highways or
road overseer" for "road overseer,"
line 2: Pol. Code 1872, Sec. 2743;
Deering's Code, Sec. 2731; Kerr's
Code, ib.
Cited: Stuff lebeam v. Montgomery
(1891) 3 Ida. 20; 26 Pac. 125.
Same: Notice to Remove.
Sec. 944. Notice must be given to the occupant or owner of the
land, or person causing or owning the encroachment, or left at his
place of residence if he reside in the county ; if not, it must be posted
on the encroachment, specifying the breadth of the highway, the
place and extent of the encroachment, and requiring him to remove
the same within ten days.
Historical: Rev. St. 1887, Sec. 961.
California Legislation: Same: Pol.
Code 1872, Sec. 2744; similar; Deer-
ing's Code, Sec. 2732; Kerr's Code, ib.
Cited: Stuff lebeam v. Montgomery
(1891) 3 Ida. 20; 26 Pac. 125.
Same: Penalty for Neglect.
Sec. 945. If the encroachment is not removed, or commenced to
be removed and diligently prosecuted, prior to the expiration of the
ten days from the service of posting the notice, the one who caused
or owns or controls the encroachment forfeits ten dollars for each
day the same continues unmoved. If the encroachment is such as
to effectually obstruct and prevent the use of the road for vehicles,
the overseer must forthwith remove the same.
Cited: Stuff lebeam v. Montgomery
(1891) 3 Ida. 20; 26 Pac. 125.
Historical: Rev. St. 1887, Sec. 962.
California Legislation: Same: Pol.
Code 1872, Sec. 2745; similar; Deer-
ing's Code, Sec. 2733; Kerr's Code, ib.
Same: Abatement by Action.
Sec. 946. If the encroachment is denied, and the owner, occupant,
or person controlling the matter or thing charged with being an
encroachment, refuses either to remove or to permit the removal
thereof, the road overseer must commence in the proper court an
action to abate the same as a nuisance; and if he recovers judgment,
Ch. 2. Art. 8. HIGHWAYS — OBSTRUCTIONS and injuries
491
he may, in addition to having the same abated, recover ten dollars
for every day such niusance remained after notice, as also his costs
in such action.
Historical: Rev. St. 1887, Sec. 963.
California Legislation: Same except
"the commissioner of highways or
road overseer" for "the road over-
seer," line 4; Pol. Code 1872, Sec.
2746; Deering's Code, Sec. 2734;
Kerr's Code, ib.
Purpose of Section: This section,
with the three preceding ones, was
enacted for the purpose of removing
obstructions from highways, and to
prevent a multiplicity of suits; it pre-
cludes an action by an individual to
abate a public nuisance in the absence
of special damage. Stufflebeam v.
Montgomery (1891) 3 Ida. 20; 26 Pac.
125.
Same: Abatement by Overseer.
Sec. 947. If the encroachment is not denied, but is not removed
for five days after the notice is complete, the road overseer may
remove the same at the expense of the owner, occupant, or person
controlling the same, and recover his costs and expenses, as also
for each day the same remained after notice was complete the sum
of ten dollars, in an action for that purpose.
Historical: Rev. St. 1887, Sec. 964.
California Legislation: Same except
"the commissioner of highways or
road overseer" for "the road over-
seer," line 2: Pol. Code 1872, Sec.
2747; same: Deering's Code, Sec. 2735;
Kerr's Code, ib.
Gates.
Sec. 948. No gates must be allowed on any public highway duly
laid out, except on highways running through land subject to over-
flow to such extent as to remove the fences. When so allowed
they must be erected and maintained at the expense of the owner
or occupant at whose request or for whose benefit they were erected.
If such expense is not paid, the gate must be removed as an ob-
struction.
Historical: Rev. St. 1887, Sec. 965.
California Legislation: Same: Pol.
Code 1872, Sec. 2748; similar: Deer-
ing's Code, Sec. 2736; Kerr's Code, ib.
Same : Penalties.
Sec. 949. Any one who leaves open such gate, or wilfully and
unnecessarily rides over ground adjoining the road on which the
gate is erected, forfeits to the injured party treble damages.
Historical: Rev. St. 1887, Sec. 966.
California Legislation : Same: Pol.
Code 1872, Sec. 2749; see Deering's
Code, Sec. 2736; Kerr's Code, ib.
Injuries to Highways.
Sec. 950. Whoever obstructs or injuries any highway, or obstructs
or diverts any water course thereon, is liable to a penalty of five
dollars for each day such obstruction or injury remains, and must
be punished as provided in the Penal Code.
Historical: Rev. St. 1887, Sec. 967.
California Legislation: Same except
"as provided in Section 588 of the
Penal Code" for "as provided in the
Penal Code": Pol. Code 1872, Sec.
2750; see Deering's Code, Sec. 2737;
Kerr's Code, ib.
Cross Reference: Punishment for
obstruction or injury to highways:
Sec. 7138.
Bridges and Culverts.
Sec. 951. Any person desiring and intending to run water across
492
PUBLIC WAYS
Tit. 7
any public road, street or highway in this State, must first construct
a ditch of sufficient size to carry all such water, and must build a
good substantial bridge, with good easy grades on and of the same
over such ditch or ditches not less than sixteen feet wide, of good
hewn or sawed timber or lumber, not less than three inches thick,
laid on good substantial timbers, not less than six inches square;
said timbers shall not be laid more than three feet apart : Provided,
That when the quantity of water of any ditch is such that a box or
culvert will carry the same, said water may be conducted across
any road, street or highway by means of such box or culvert, which
must be adapted to the surface of the road, street or highway, and
be built of a length of not less than sixteen feet, and in a manner
so substantial as to bear and admit of uninterrupted travel: Pro-
vided, That when such bridge or box shall be constructed as above
required and reported to the road supervisor of the road district
where the same is located, it shall become county property and be
maintained as other county bridges : Provided, That the said bridge,
box, or culvert is accepted by the road overseer as being built
according to the above sections.
Historical: Rev. St. 1887, Sec. 968
(see 13 Ter. Ses. (1885) 162, Sec. 40);
amended Laws 1899, 405, Sec. 2.
Cited: City of Lewiston v. Booth
(1893) 3 Ida. 692; 34 Pac. 809.
Construction: This section is pros-
pective in its operation and loes not
apply to ditches and canals that have
been constructed across public high-
ways prior to the time the same went
into effect. Boise City v. Boise Rapid
Transit Co. (1899) 6 Ida. 779; 59 Pac.
716.
Same: Repair by Overseer.
Sec. 952. If any person owning or having ditches across any pub-
lic road, street, or highway, fails or neglects to build bridges or
culverts over the same as required by the last section, or to keep
the same, or their ditches, on any public road, street, or highway, in
good repair, it is the duty of the overseer of the district to build
or repair the same at the expense of such person, and the cost thereof
is a lien upon the land and premises of such ditch owner or owners,
and may be sued for and collected, by and in the name of such over-
seer, in any court of competent jurisdiction.
Historical: Rev. St. 1887, Sec. 96 9.
See 13 Ter. Ses. (1885) 162, Sec. 41.
California Legislation : No such pro-
vision in Pol. Code 1872; see Deering's
Code, Sec. 2737; Kerr's Code, ib.
Cited: City of Lewiston v. Booth,
(1893) 3 Ida. 692; 34 Pac. 809.
Injury to Guide Posts.
Sec. 953. Whoever removes or injures any guide post, or any
inscription on such, erected on any highway, is liable to a penalty of
ten dollars for every such offense, and punishable as provided in
the Penal Code.
Historical: Rev. St. 1887, Sec. 970.
See 13 Ter. Ses. (1885) 162, Sec. 28.
California Legislation: Similar: Pol.
Code 1872, Sec. 2751; Deering's Code,
Sec. 2738; Kerr's Code, ib.
Cross Reference: Punishment for
removal of guide posts: Sec. 7135.
Ch. 2. Art. 8. HIGHWAYS — OBSTRUCTIONS and injuries
493
Removal of Fallen Trees.
Sec. 954. Any person may notify the occupant or owner of any
land from which a tree or other obstruction has fallen upon any
highway, to remove such tree or obstruction forthwith. If it is not
so removed the owner or occupant is liable to a penalty of one dollar
for every day thereafter till it is removed, and the cost of removal.
Historical: Rev. St. 1887, Sec. 971.
California Legislation: Same: Pol.
Same.
Code 1872, Sec. 2752; similar: Deer-
ing's Code, Sec. 2739; Kerr's Code, ib.
Sec. 955. Whoever cuts down a tree so that it falls into any high-
way, must forthwith remove the same, and is liable to a penalty of
five dollars for every day the same remains in such highway.
Historical: Rev. St. 1887, Sec. 972.
California Legislation: Same: Pol.
Code 1872, Sec. 2753; same except
"ten" for "five," line 3; Deering's
Code, Sec. 2740; Kerr's Code, ib.
Notices on Bridges.
Sec. 956. The road overseers may put on bridges under their
charge notices that there is "Five dollars fine for riding or driving
on this bridge faster than a walk." Whoever thereafter rides or
drives faster than a walk on such bridge is liable to a fine of five
dollars for each offense.
road overseers" for "The road over-
seers": Pol. Code 1872, Sec. 2754;
similar: Deering's Code, Sec. 2741;
Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 973.
"A fine of" inserted before "five dol-
lars," in last line.
California Legislation: Same except
"The commissioner of highways and
Injury to Shade Trees.
Sec. 957. Whoever digs up, cuts down, or otherwise injures or
destroys any shade or ornamental tree planted and standing on any
highway, forfeits twenty-five dollars for each such tree.
Historical: Rev. St. 1887, Sec. 974.
See 13 Ter. Ses. (1885) 162, Sec. 36.
California Legislation: Same: Pol.
Code 1872, Sec. 2755; similar but for-
feiture is $100.00: Deering-'s Code, Sec.
2742; Kerr's Code, ib.
Disposition of Penalties and Forfeitures.
Sec. 958. All penalties or forfeitures given in this chapter, and
not otherwise provided for, must be recovered by the road overseers
of the respective road districts and be paid into the road fund.
Historical: Laws 1899, 127, 14; re-
enacting Laws 1890-91, 190, Sec. 13.
Omitting the last half of the section
which related to the disposition of
moneys in the district road funds, and
the payment of warrants then out-
Local Laws Unaffected.
Sec. 959. Nothing in this chapter affects the provisions of any
statute in relation to roads and highways now in force and made
applicable to one or more counties by name; but whenever such
statute is repealed, then the provisions of this chapter are applicable
to the county named in the statute repealed.
standing, at the time the act of which
the section was originally a part
should take effect. As the act has
been effective for over seventeen years,
the omitted portions are obsolete.
494
PUBLIC WAYS
Tit. 7
Historical: Rev. St. 18 87, Sec. 976.
This section is probably altogether ob-
solete, but in the absence of authentic
information or means of information,
it was thought best to preserve it.
California Legislation: Same: Pol.
Code 1872, Sec. 2757; repealed 1880.
Historical: Laws 1901, 185, Sec. 1.
The phraseology of the last sentence
is slightly changed to make the same
grammatical.
Bridges to Be Fortified for Traction Engines.
Sec. 963. It shall be unlawful for any person or persons to drive
any steam traction or portable engine over any bridge or culvert
on any public street or highway within this State, without using,
on such bridge or culvert, for the purpose of securing its safety,
Width of Highways Across Streams.
Sec. 960. All highways crossing or ending on any river, creek
or stream, must be open the same width down to, and across said
river, creek or stream, as they are before they reach said stream.
Historical: Rev. St. 1887, Sec. 977;
amended act 15th Ter. Ses. (Laws
1888-89) 37, Sec. 1.
Passage-Ways for Stock.
Sec. 961. The passage-ways for stock under any road must be
bridged with suitable plank not less than eighteen feet in length, and
it shall be lawful for the fences of either side to converge to the
bridge over said passage-way. The said passage-way must be kept
securely bridged by the person who owns the adjoining lands, and
must be kept in good repair by said owner. Said bridge shall not be
placed more than one foot above the level of the roadway. The
approaches to the bridge over said passage-way must also be kept
in good repair by said owner.
Historical: Rev. St. 1887, Sec. 978;
amended act 15th Ter. Ses. (Laws
1888-89) 37, Sec. 1.
Damages to Highways by Livestock.
Sec. 962. Any person or persons owning livestock or the em-
ployees, agent or agents of such owners of livestock, who shall drive,
range or graze the same along or across the public highways or
ditches, or who shall permit the same to range or graze along or
across the public highways or ditches of this State, and thereby ob-
struct, or partially obstruct, the same by rolling rocks, brush or
other debris therein, or destroy or injure any grades, ditches, bridges
or approaches to bridges therein, shall, immediately thereafter, re-
pair such highway or ditch, and the damage so done, at their own
expense. Any such person or persons, employes, agent or agents,
of such person or persons owning livestock, who shall wilfully refuse
or neglect to repair any and all damage so done to the highways or
ditches of this State, within five days thereafter, shall be deemed guilty
of a misdemeanor and, upon conviction thereof, shall be fined in a
sum not less than twenty-five dollars, and not more than three hun-
dred dollars or be imprisoned in the county jail for a period not
exceeding six months, or be punished by both such fine and im-
prisonment.
Ch. 2. Art. 9.
HIGHWAYS — LEASES
495
four stout pieces of plank, each of which shall be at least ten feet
in length, one foot in width, and two inches in thickness ; two of the
said pieces of plank to be always under the wheels of said steam
traction or portable engine while it shall be crossing said bridge
or culvert. The penalty for the violation of any of the provisions
of this section shall be a fine of not less than ten dollars nor more than
fifty dollars for each offense, or imprisonment in the county jail not less
than five nor more than ten days. In addition to said fine, any person
causing damage to any said bridge or culvert, shall be liable to the
county to which the said bridge or culvert shall belong, for all dam-
ages which may result from the crossing of such steam traction or
portable engine.
Historical: Laws 1905, 94, Sees. 1, 2.
ARTICLE 9.
LEASING HIGHWAYS.
Section
964. Commissioners may lease roads.
965. Order: Advertisement for bids.
966. Bids to be accompanied by
bonds.
967. Contract for lease.
968. Same: Qualifications of sure-
ties.
969. Condition of roads leased.
970. Toll gates.
971. Rates of toll: Evasion of pay-
ment: Excess charges.
Section
972. Leased road deemed a county
road.
973. Exemptions from toll.
974. Cancellation and forfeiture of
lease.
975. Persons and property liable to
toll.
976. Contents of order and bids.
977. Opening of bids.
978. Conditions of lease.
979. Liability to labor not discharged.
Commissioners May Lease Roads.
Sec. 964. Whenever a county road in any county in this State is
so located that there is little or no local labor along the line or in
the vicinity of said road, the board of county commissioners of the
county where such road or any portion of the same is, or may here-
after be located, is authorized to lease such road, or any portion of
the same, to any person or corporation, to open, improve and keep
the same in repair for a period not exceeding five years, with the
right in consideration thereof to collect and receive tolls for travel
thereon in the manner provided in this article.
Historical: Rev. St. 1887, Sec. 986.
12 Ter. Ses. (1883) 50 Sec. 1, amend-
ed 13 Ter. Ses. (1885) 161, Sec. 1.
Order: Advertisement for Bids.
Sec. 965. Whenever it becomes expedient to lease a public road,
or any specified section thereof, the county commissioners must make
an order to that effect, specifying therein the termini thereof, and
directing the clerk of the board of county commissioners to cause the
same to be published in some newspaper published in the county if
there be one, or if there be no newspaper published in the county,
then in a newspaper of general circulation therein, for a period not
less than four weeks, and in like manner to give notice therewith
that sealed bids will be received at such clerk's office until a par-
ticular hour of a certain day thereafter, and not more than ten
Vol. 1 — 17
496 PUBLIC WAYS Tit. 7
days after the expiration of the publication of such order and notice,
for the leasing of such road.
Historical: Rev. St. 1887, Sec. 987.
12 Ter. Ses. (1883) 50, Sec. 2.
Bids to Be Accompanied by Bonds.
Sec. 966. No bids must be considered unless accompanied by an
undertaking, executed by two or more sureties, in the sum of two
thousand dollars, to be void upon the condition that the bidder, if
the lease is awarded to him, will, within ten days thereafter, enter
into the contract for keeping the road, and give the undertaking to
secure the performance thereof, as hereinafter provided.
Historical: Rev. St. 1887, Sec. 988.
12 Ter. Ses. (1883) 50, Sec. 3.
Contract for Lease.
Sec. 967. The contract for the lease must be subscribed by the
lessee and approved by the county commissioners and filed with the
clerk of the board. At the time of filing the contract, the lessee
must give an undertaking to the county in a sum to be fixed by the
county commissioners, not less than two thousand and not more
than ten thousand dollars, with two or more sufficient sureties, to be
void upon the condition that the lessee will faithfully perform the
contract in relation to such road, and comply with the provisions of
this article.
Historical: Rev. St. 1887, Sec. 989.
Sec. 12 Ter. Ses. (1883) 50, Sec. 4.
Same: Qualifications of Sureties.
Sec. 968. The sureties in the undertaking mentioned in the last
section must have the qualifications otf bail upon arrest in civil
actions, and must justify in like manner before the county commis-
sioners or the clerk thereof.
Historical: Rev. St. 1887, Sec. 990.
12 Ter. Ses. (1883) 50, Sec. 5.
Cross Reference: Qualifications of
bail on arrest: Sec. 4256. Justification:
Sec. 4257.
Condition of Roads Leased.
Sec. 969. The road leased under this article must be cleared of
standing timber, and have a track for traveling of the width, and
be kept in the condition, and the streams or other waters on the
line thereof must be bridged, or ferries established thereon, and must
be made of such grade and of such materials, as the contract shall
specify.
Historical: Rev. St. 1887, Sec. 991.
12 Ter. Ses. (1883) 50, Sec. 6.
Toll Gates.
Sec. 970. No toll must be collected for travel on such roads except
at a gate, nor unless a sign board be posted at such gate in full
view of the travel on the road, with the rates of toll plainly printed
or painted thereon. The lease must specify the number of gates
that may be placed on the road, and the location thereof, and there-
after the number of such gates must not be increased ; but the county
Ch. 2. Art. 9. highways — leases 497
commissioners, upon the application of the lessee, may, at any time,
for good reasons, authorize the lessee to change the location of such
gates, or any of them.
Historical: Rev. St. 1887, Sec. 992.
12 Ter. Ses. (1883) 50, Sec. 7.
Rates of Toll: Evasion of Payment: Excess Charges.
Sec. 971. The rates of toll that the lessee may collect and receive
must be specified in the lease, and none other must be charged; and
any person who passes through a gate on such road without paying
the toll legally chargeable thereat, or when traveling on such road,
goes around such gate, with intent to avoid the payment of such toll,
is liable to the lessee for three times the amount of such toll; and
any lessee of such road, who, by himself, his agents or servants,
collects or receives of any persons illegal toll for traveling on such
road, is liable to such person for three times the amount of such toll.
Historical: Rev. St. 1887, Sec. 993.
12 Ter. Ses. (1883) 50, Sec. 8.
Leased Road Deemed a County Road.
Sec. 972. The road leased as provided in this article, is never-
theless to be deemed a county road, subject to the provisions of the
lease.
Historical: Rev. St. 1887, Sec. 994.
12 Ter. Ses. (1883) 50, Sec. 9.
Exemptions From Toll.
Sec. 973. No footman can be required to pay toll for traveling on
such road, nor any person while traveling from one portion of his
or his employer's farm to another, with or without any stock or
vehicle, or in going to or returning from church, a funeral or an
election.
Historical: Rev. St. 1887, Sec. 995.
12 Ter. Ses. (1883) 50, Sec. 10.
Cancellation and Forfeiture of Lease.
Sec. 974. The county commissioners have authority, upon the
application of the lessee, to cancel or modify the lease upon such
terms as may be equitable and just; and the proper prosecuting
attorney may maintain an action against the lessee in the name of
the county to have such lease declared forfeited, whenever the lessee
fails or neglects to comply with the provisions thereof, and of this
article.
Historical: Rev. St. 1887, Sec. 996.
12 Ter. Ses. (1883) 50, Sec. 11.
Persons and Property Liable to Toll.
Sec. 975. Tolls are chargeable by the lessee upon the following
items, or classes of persons, or property only :
1. Sheep and hogs;
2. Loose horses, mules, asses and cattle ;
3. Man and riding animals and pack animals loaded ;
4. Vehicles loaded or unloaded and drawn by one or more
animals.
498 public ways Tit. 7
Historical: Rev. St. 1887, Sec. 997.
12 Ter. Ses. (1883) 50, Sec. 12.
Contents of Order and Bids.
Sec. 976. The order of the commissioners must specify the num-
ber of gates to be placed on the road, the grade of the road, the
materials for the construction thereof, and the period for which the
same is to be let. The bid must specify the rates of toll which the
bidder is willing to accept for putting and maintaining the road in
the condition according to the specifications in the order.
Historical: Rev. St. 1887, Sec. 998.
12 Ter. Ses. (1883) 50, Sec. 13.
Opening of Bids.
Sec. 977. Upon opening the bids, the lease must be awarded to the
lowest bidder; but the county commissioners may, and it is their
duty to, reject any or all bids when there appears sufficient cause
therefor, and in such case they may subsequently re-advertise and
let the same.
Historical: Rev. St. 1887, Sec. 999.
12 Ter. Ses. (1883) 50, Sec. 14.
Conditions of Lease.
Sec. 978. The commissioners must insert in every contract with
a lessee of a road leased under this article, that the same must be
cleared of standing timber for thirty feet in width of said road, and
have a track in the center not less than sixteen feet wide, furnished
and kept in good traveling condition, except where the cutting on
said road is six feet or more deep on either side, where said track
need not be more than ten feet wide, with turnouts of sixteen feet
in width every quarter of a mile of such narrow track and of sufficient
length to enable the teams traveling said road to pass each other
conveniently, and that all streams and other waters on the line of
such road be safely and securely bridged; they may also insert
therein such condition for keeping the road open during the winter
season, as they may deem reasonable or expedient.
Historical: Rev. St. 18 8 7, Sec. 1000.
12 Ter. Ses. (1883) 50, Sec. 15.
Liability to Labor Not Discharged.
Sec. 979. The granting of any lease or leases under this article
must not release any person liable to road labor from the perform-
ance thereof on the county roads not leased, or otherwise discharging
the same in money in lieu of such labor.
Historical: Rev. St. 1887, Sec. 1001. I also 12 Ter. Ses. (1883) 54, Sees. 1, 2
12 Ter. Ses. (1883) 50, Sec. 16; see I and 13 Ter. Ses. (1885) 161, Sec. 1.
CHAPTER 3.
TOLL ROADS.
Article
1. Construction of toll roads.
2. Construction of toll roads for trac-
tion engines.
Article
3. Use of toll roads.
4. Inspection and repair.
Ch. 3. Art. 1.
TOLL ROADS — CONSTRUCTION
499
ARTICLE 1.
CONSTRUCTION OF TOLL ROADS.
Section
980. Application to construct road.
981. Hearing on application.
982. Order granting- application.
983. Appointment of commissioners.
984. Duties of commissioners.
985. Compensation of commission-
ers.
986. Branches and extensions.
987. Purchase and condemnation of
land.
988. Disposition of damages for
highways taken.
989. Construction without applica-
tion.
990. Orchards and gardens pro-
tected.
Section
991. Bridging streams.
992. Use of road of other company.
993. Regulations governing con-
struction.
994. Same: Relaying with broken
stone.
995. Same: Guide posts.
996. Completion and inspection.
997. Erection of toll gates.
998. Rates of toll: License fee.
999. Bond of applicant.
1000. Abandonment of road.
1001. County may purchase road.
1002. Appraisement and award.
Application to Construct Road.
Sec. 980. If all lands necessary for the roadbed and other purposes
are not otherwise acquired as hereinafter provided, the company
proposing to construct a toll road through any part of a county,
must publish a notice in some newspaper published therein, and if
none, then in the newspaper nearest thereto, once in each week for six
successive weeks, specifying the character of the road, the termini,
and each town, city, or village through which it is proposed to con-
struct it, and the time when the application hereinafter required
will be made. After such notice is complete, on the day specified
therein, application must be made to the board of commissioners
of the county for authority to take the necessary land and to con-
struct the road described in the notice.
Historical: Rev. St. 1887, Sec. 1020.
California Legislation: Same except
"supervisors" for "commissioners";
Pol. Code 1872, Sec. 2779; Deering's
Code, ib; Kerr's Code, ib.
Hearing on Application.
Sec. 981. On the hearing all residents of the county and others
interested may appear and be heard. The board may take testimony,
or authorize it to be taken by any officer of the county, and adjourn
the hearing from time to time.
Historical: Rev. St. 1887, Sec. 1021.
California Legislature: Same: Pol.
Code 1872, Sec. 2781; Deering's Code,
ib.; Kerr's Code, ib.
Order Granting Application.
Sec. 982. If it appears to the board of commissioners that the
public interests will be promoted thereby, a majority of all the mem-
bers thereof may grant the application, and by order authorize the
company to take the real property necessary, and appoint two road
commissioners to lay out the road, who are disinterested either in
the company or in any land sought to be taken or adjoining thereto.
A copy of this order must be recorded in the county recorder's office
before action under it is had.
500
PUBLIC WAYS
Tit. 7
Historical: Rev. St. 1887, Sec. 1022.
California Legislation: Same except
"supervisors" for "commissioners,"
line 1; "road" omitted before "com-
missioners," line 4; "clerk" for "re-
corder," next to last line: Pol. Code
1872, Sec. 2782; Deering's Code, ib.;
Kerr's Code, ib.
"road," line 1; "road" omitted before
"commissioners," line 3: Pol. Code
1872, Sec. 2783; Deering's Code, ib.;
Kerr's Code, ib.
Appointment of Commissioners.
Sec. 983. If the road extends into more than one county, the ap-
plication must specify their names, and the board of commissioners
of each of such counties must appoint road commissioners to act in
their respective counties with the commissioner and surveyor of the
company. The company must appoint one commissioner of like
qualifications as those appointed by the board of commissioners, and
furnish a surveyor to accompany and act with them.
Historical: Rev. St. 1887, Sec. 1023.
California Legislation: Same except
"board of supervisors" for "board of
commissioners," and "route" for
Duties of Commissioners.
Sec. 984. The road commissioners must take the oath of office,
and view and lay out the road as in their judgment will best promote
the public interest. They must hear all persons interested, and may
take testimony; they may determine the breadth of the way, not
exceeding one hundred feet, except where the company acquire a
greater breadth by grant. They must make, sign, and certify an
accurate survey and description of the route and of the land neces-
sary for the road, buildings, and gates in each county, and record
the same in the office of the county recorder thereof. When the
breadth of the road is not fixed by the road commissioners, it may
be fixed by the board of commissioners of the county.
Historical: Rev. St. 1887, Sec. 1024.
California Legislation: Similar: Pol.
Code 1872, Sec. 2784; Deering's Code,
ib.; Kerr's Code, ib.
Compensation of Commissioners.
Sec. 985. The company must pay to each road commissioner his
expenses and four dollars a day for his services ; cause their surveyor
to make the map of the proposed road, which, when approved and
certified by the road commissioners, must be filed with the report in
the office of the clerk of the board of county commissioners, and
recorded.
Historical: Rev. St. 1887, Sec. 1025.
California Legislation : Same except
"road" omitted before "commission-
ers," lines 1 and 4, and "supervisors"
for "commissioners": Pol. Code 1872,
Sec. 2785; Deering's Code, ib.; Kerr's
Code, ib.
Branches and Extensions.
Sec. 986. The directors of any such company may, with the
written consent of the holders of two-thirds of the stock, proceed
in the manner prescribed by the preceding six sections to construct
branches to their road, or to extend it or alter any part of its route
or branches.
Historical: Rev. St. 1887, Sec. 10 26.
California Legislation: Same except
'seven" for "six" sections, line 3: Pol.
Code 1872, Sec. 2786; Deering's Code,
ib.; Kerr's Code, ib.
Ch. 3. Art. 1. TOLL ROADS — CONSTRUCTION 501
Purchase and Condemnation of Land.
Sec. 987. Lands necessary for the purposes of the road or ap-
purtenances may be acquired by purchase or condemnation. Lands
within any highway may be granted by the board of commissioners
or city authorities on such terms and for such sums as may be agreed
upon.
Historical: Rev. St. 1887, Sec. 1027. | sioners," line 3: Pol. Code 1872, Sec.
California Legislation: Same except 2787; Deering's Code, ib.; Kerr's
"supervisors or town" for "commis- ' Code,, lb.
Dispositions of Damages for Highways Taken.
Sec. 988. When the road company desires the exclusive use of
lands forming part of the highway, and such use is granted by the
county commissioners, the damages received therefor are to be paid
to the road fund of the county in which the same is situated.
Historical: Laws 1899, 127, Sec. 15;
re-enacting Laws 1890-91, 190, Sec. 14.
Construction Without Application.
Sec. 989. When the company has obtained all the lands necessary
in any county, by purchase or agreement, the road may be con-
structed without making the application to the board of commis-
sioners hereinbefore provided for; but before proceeding to do so an
accurate survey of such part of the road must be made by a practical
surveyor, signed and sworn to by the president and secretary, and
recorded in the county recorder's office; and if the road extends into
another county, authority to construct the road there must first be
obtained.
Historical: Rev. St. 1887, Sec. 1029.
California Legislation: Same except
line 3; "clerk's" for "recorder's," line
7: Pol. Code 1872, Sec. 2789; Deering's
"supervisors" for "commissioners," Code, ib.; Kerr's Code, ib.
Orchards and Gardens Protected.
Sec. 990. No such road must be laid out through any orchard of
four years' growth, to the injury of the fruit trees, or any garden
of four years' cultivation, or any dwelling house or building con-
nected with a dwelling house or any yard or inclosure necessary
thereto, without the consent of the owner.
Historical: Rev. St. 1887, Sec. 1030. Code 1872, Sec. 2790; Deering's Code,
California Legislation: Same: Pol. ' ib- Kerr's Code, ib.
Bridging Streams.
Sec. 991. The road company may bridge any stream or river on
the route of their road, when not within the limits prescribed by
law for the erection and maintenance of any other bridge, and in
bridging streams used for rafting lumber, the bridge must be so
constructed as not to prevent or endanger the passage of any raft
forty feet in width.
Historical: Rev. St. 1887, Sec. 1031. i Code 1872, Sec. 2791; Deering's Code,
California Legislation: Same: Pol. ib- Kerr's Code, ib.
Use of Road of Other Company.
Sec. 992. No plank road company must construct its road on the
502
PUBLIC WAYS
Tit. 7
road of another company, except in case of crossings, without con-
sent of the latter.
Historical: Rev. St. 1887, Sec. 1032.
California Legislation: Same: Pol.
I Code 1872, Sec. 2792; Deering's Code,
ib.; Kerr's Code ib.
Regulations Governing Construction.
Sec. 993. Every such road must be laid out at least fifty feet wide.
The track of plank roads must be constructed eighteen feet wide,
of timber, plank or other hard material. The track of turnpikes
must be bedded with stone, gravel, or such other hard material found
on the line thereof, to the width of eighteen feet, and faced with
broken stone or gravel. The common wagon road must be graded
at least twelve feet in width, and so constructed with necessary turn-
outs as to permit vehicles to pass each other conveniently. All the
roads must be ditched on the sides when practicable, and have proper
and necessary sewerage, and be so constructed that vehicles may
pass on and off the track at all intersections of roads.
Historical: Rev. St. 1887, Sec. 1033.
California Legislation: Same: Pol.
Code 1872, Sec. 2793; Deering's Code,
ib.; Kerr's Code, ib.
Same : Relaying With Broken Stone.
Sec. 994. Every company that has once laid their road with plank
may relay it or any part of it with broken stone, gravel, or other
hard material whereby they keep a good, substantial road.
Historical: Rev. St. 1887, Sec. 103 4.
California Legislation: Same except
'shells" inserted after "gravel," line 2:
Pol. Code 1872, Sec. 2794; Deering's
Code, ib.; Kerr's Code, ib.
Same : Guide Posts.
Sec. 995. A guide post must be erected at every place where the
road is intersected by a public road, with an inscription showing
the name of the place to which such intersecting road leads, in the
direction to which the name on the guide post points.
Historical: Rev. St. 1887, Sec. 1035.
California Legislation: Same: Pol.
Code 1872, Sec. 2796; Deering's Code,
ib.; Kerr's Code, ib.
Completion and Inspection.
Sec. 996. When the road, or three consecutive miles thereof, is
completed, the road overseer, or other person thereto specially ap-
pointed by the board of commissioners of the county, must inspect
the road when requested, and if satisfied that the road conforms to
the requirements of the law, must certify to the facts, and file the
certificate in the office of the county recorder; for such service four
dollars per day must be paid by the company to the inspector or
overseer. When only three miles of any plank road are completed,
if it is not the entire road, tolls must not be collected thereon for
more than one year, unless the road or five consecutive miles are
completed within the year.
Historical: Rev. St. 1887, Sec. 1036.
California Legislation: Similar: Pol.
Code 1872, Sec. 2297; Deering's Code,
ib.; Kerr's Code, ib.
Ch. 3. Art. 1.
TOLL ROADS — CONSTRUCTION
503
Erection of Toll Gates.
Sec. 997. When the certificate of completion is filed, toll gates
may be erected and tolls collected. No toll gate, toll house, or other
building must be put up within ten rods of the front of any dwell-
ing house, barn or outhouse, without written consent of the owner
thereof.
Historical: Rev. St. 1887, Sec. 1037.
California Legislation: Same: Pol.
Code 1872, Sec. 2 798; Deering's Code,
ib.; Kerr's Code, ib.
Rates of Toll: License Fee.
Sec. 998. The board of county commissioners must fix and regu-
late the rates of toll for all franchises granted under the provisions
of this chapter within the limits of their respective counties, having
due regard to the cost of construction, magnitude of structure and
expenses incident thereto, and in keeping the same in good repair.
The board of commissioners must also tax such sum as may appear,
reasonable, not less than twenty-five dollars nor more than two hun-
dred dollars per annum, for each license granted; and the person
or parties to whom such license is granted, must pay to the county
treasurer the tax for one year in advance, taking his receipt therefor,
and upon the production of such receipt the clerk of the board of
commissioners must issue such license, with a statement of the rates
of toll as fixed, under seal of the board of commissioners.
Historical: Rev. St. 1887, Sec. 1038.
2 Ter. Ses. (1864) 440, Sec. 5.
Bond of Applicant.
Sec. 999. Every company applying for a license to keep a toll road
must, before the same is issued, enter into a bond with one or more
sureties, to be approved by the clerk of the board of commissioners
in any sum not less than one thousand nor more than ten thousand
dollars, conditioned that such company will keep said road in all
respects according to law; and if default at any time be made in
the condition of such bond, damages not exceeding the penalty may
be recovered by any person aggrieved, before any court having com-
petent jurisdiction.
Historical: Rev. St. 1887, Sec. 1039.
2 Ter. Ses. (1864) 440, Sec. 6; amend-
ed 11 Ter. Ses. (1881) 292, Sec. 1.
Abandonment of Road.
Sec. 1000. Whenever the holders of two-thirds of the stock con-
sent, the directors of any company may abandon the whole or any
part of their road at either or both ends, by written surrender thereof,
attested by their seal, and acknowledged by the president and secre-
tary as a deed or grant is acknowledged, and recorded in the re-
corder's office of each county, where the surrendered road lies;
thereafter the surrendered road belongs to the road districts in
which it lies, but the company may continue to take toll on any three
consecutive miles in length not so surrendered.
Historical: Rev. St. 1887, Sec. 1040. Code 1872, Sec. 2799; Deering's Code,
California Legislation: Same except ib-: Kerr's Code, ib.
"clerk's" for "recorder's," line 5: Pol.
504
PUBLIC WAYS
Tit. 7
County May Purchase Road.
Sec. 1001. At any time within five years from filing the certificate
of completion of any road constructed under the provisions of this
chapter, the county within which the road or any part thereof is
located, may purchase the same at a fair cash valuation, to be fixed
by seven commissioners, all disinterested persons, three to be ap-
pointed by the board of commissioners of the county, three by the
owner of the road, and the seventh by the probate judge, who must
estimate the fair cash value of the road and make report thereof
under oath to the board of commissioners. If within three months
after filing the report, the appraised value thereof is tendered on
behalf of the county to the owner of the road or his authorized man-
aging agent, the right of the owner to take tolls on the road is
terminated, and the road becomes the property of the county.
Historical: Rev. St. 1887, Sec. 1041.
California Legislature: Similar: Pol.
Code 1872, Sec. 2800; as amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Appraisement and Award.
Sec. 1002. A majority of the commissioners mentioned in the pre-
ceding section constitutes a quorum, and the concurrence of a ma-
jority in making the estimate and award is binding upon the road
owner if approved by the board of commissioners. The commission-
ers must make their report within thirty days after their appoint-
ment, and if approved the tender of the amount of the appraisement
and award must be made by the county treasurer. Whether the
owner conveys the road to the county or not, the report and tender
operate as a conveyance to the county of the road and all its incidents
and appurtenances.
Historical: Rev. St. 1887, Sec. 1042.
California Legislation: Same except
"supervisors" for "commissioners":
Pol. Code 1872, Sec. 2801; Deering's
Code, ib.; Kerr's Code, ib.
ARTICLE 2.
CONSTRUCTION OF TOLL ROADS FOR TRACTION ENGINES.
Section
1003. Application to construct.
1004. Hearing of application.
Section
1005. Statement of expense.
1006. Rules and regulations.
Application to Construct.
Sec. 1003. Any person, company or corporation proposing to con-
struct a road, or to improve any public road or part thereof, for
the purpose of using on such road traction engines for the transport-
ing of heavy freight, must publish a notice in some newspaper of
the county in which said proposed road or major portion thereof is
situated, for two consecutive weeks, specifying the location of such
road and the time and place, when and where application will be
made for the license to charge toll on such roads to any person, com-
pany or corporation using the same for the purpose above set forth.
After notice is given, application must be made in writing to the
board of county commissioners of the county in which said road or
major portion thereof is located, describing the location of said road,
Ch. 3. Art. 3.
TOLL ROADS — USE
505
and the general character of the proposed construction or improve-
ment.
Historical: Laws 1907, 306, Sec. 1.
Hearing of Application.
Sec. 1004. At the hearing of such application, proof of giving
notice as required in the preceding section must be made, and the
board of commissioners may then grant such application.
Historical: Laws 1907, 306, Sec. 2.
Statement of Expense.
Sec. 1005. Any person, company or corporation constructing or
improving roads under the provisions of this article, shall furnish
to the board of county commissioners a sworn statement of the items
of expense incurred in such work.
Historical: Laws 1907, 30 6, Sec. 3.
Rules and Regulations.
Sec. 1006. The board of commissioners shall make all needful
rules and regulations for the control of such roads, prescribing what
rates of toll shall be charged thereon, and fixing penalties for the
violation of regulations: Provided, That nothing in this article con-
tained shall be construed to empower the granting of a license to
charge toll for any purpose except as herein specifically set forth;
and, Further Provided, That no license to collect toll on such road
shall be granted for a longer period than seven years.
Historical: Laws 1907, 306, Sec. 4.
ARTICLE 3.
USE OF TOLL ROAI>S.
Section
1007. Exemptions from toll.
Exemptions From Toll.
Sec. 1007. The following persons, and none other, are exempt
from payment of toll on wagon, turnpike, or plank roads :
1. Persons going to or from any funeral, and all funeral pro-
cessions ;
2. Troops in actual service of the State, or of the United States ;
3. Persons going to or from the court house in obedience to a
subpoena in a criminal action.
4. Persons living within a mile of any gate by the most usually
traveled road may pass it at one-half toll, when not engaged in the
transportation of others, or the property of others ;
5. Farmers living on their farms within one mile of any gate
by the most usually traveled road may pass free when going to or
from their work on such farms ;
6. School children attending school within three miles of their
parents' or boarding houses.
Historical: Rev. St. 1887, Sec. 1050.
California Legislation: Same except
and persons going to or from a mili-
tia training which by law they are re-
quired to attend" added to Subd. 2:
Pol. Code 1872, Sec. 2814; similar as
amended: Deering's Code, ib.; Kerr's
Code, lb.
506
PUBLIC WAYS
Tit. 7
ARTICLE 4.
INSPECTION AND REPAIR.
Section
1008. Complaint to road overseer.
1009. Gates ordered opened.
1010. Defects in road: Notice to
company.
Section
1011. Prosecution of company.
1012. Fees of overseer.
Complaint to Road Overseer.
Sec. 1008. Every road overseer of the district to whom complaint
in writing is made that any part of a wagon, turnpike, or plank toll
road in his county or district, or any part of such road the gate
nearest to which is in his county or district, is out of repair, must
examine it without delay and give notice of the defect, particularly
describing the same, to the person attending the gate nearest thereto ;
if the necessary repair is not made or defect remedied within three
days after such notice is given, the road overseer may order such
gate to be thrown open.
Historical: Rev. St. 1887, Sec. 1055.
California Legislation: Same except
'commissioner of highways or" in-
serted before "road overseer": Pol.
Code 1872, Sec. 2827; Deering's Code,
ib.; Kerr's Code, ib.
Gates Ordered Open.
Sec. 1009. A gate so ordered to be thrown open must not be shut
nor any toll collected thereat until the road overseer ordering it
shut grants a certificate that the road is in sufficient repair, and that
the gate ought to be closed. The company and their gate keeper or
other employee, violating or permitting the violation of this section,
or the order made under the preceding section, are each liable in a
penalty of twenty-five dollars for each offense, to be recovered by the
party aggrieved.
Historical: Rev. St. 1887, Sec. 10 56.
California Legislation: Same except
"commissioner of highways or" insert-
ed before "road overseer": Pol. Code
1872, Sec. 2828; Deering's Code, ib.;
Kerr's Code, ib.
Defects in Road: Notice to Company.
Sec. 1010. Every road overseer who discovers a defect in any toll
road in his county or district, or a gate placed in a situation contrary
to law, must give written notice thereof to one or more of the di-
rectors or managing agents of the company, requiring the defective
road to be repaired or the gate to be removed within a specified
time; and may order that in the meantime such gates as he specifies
be thrown open.
Historical: Rev. St. 1887, Sec. 1057.
California Legislation: Same except
"commissioner of highways or" insert-
ed before "road overseer": Pol. Code
1872, Sec. 2829; Deering's Code, ib.;
Kerr's Code, ib.
Prosecution of Company.
Sec. 1011. If the notice and requirements are not obeyed, the road
overseer must make immediate complaint to the prosecuting attorney
of the county, who must prosecute the company therefor in the name
of the State for so suffering the road to be out of repair, or of having
placed any gate in a situation contrary to the law; and if convicted
Ch. 4. Art. 1. FERRIES AND BRIDGES — IN GENERAL
507
thereof, the company must be fined not exceeding two hundred and
fifty dollars.
Historical: Rev. St. 1887, Sec. 1058.
California Legislation: Same except
"the commissioner of highways or
road overseer" for "the road over-
seer," line 1, and "people" for "state,"
line 4: Pol. Code 1872, Sec. 2830;
Deering's Code, ib.; Kerr's Code, ib.
Fees of Overseer.
Sec. 1012. The road overseer complaining to the prosecuting at-
torney, or who makes inspection and discovers defects in the road,
is entitled to three dollars for each day's services in inspecting the
road or necessarily expended in prosecuting the action therefor, to
be paid in case of conviction, as costs. When no action is had, but
repairs are made, or gate removed, on the inspection and require-
ment of the road overseer, the toll gatherer nearest the road so out
of repair, or the gate to be moved, must pay the fees hereinbefore
specified out of the tolls collected; if he refuse to pay the same, the
same may be recovered by action with costs.
Historical: Rev. St. 1887, Sec. 1059.
California Legislation: Same except
"commissioner of highways or"
in-
serted before "road overseer": Pol.
Code 1872, Sec. 2831; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 4.
PUBLIC FERRIES AND TOLL BRIDGES.
Article
1. General provisions.
2. Toll bridges.
Article
3. Toll ferries.
ARTICLE 1.
GENERAL PROVISIONS.
Sectio
n
Section
1013.
1014.
1015.
Application to construct.
Proof of notice.
Grant of authority.
1021.
1022.
1016.
Regulation of license tax and
tolls.
1023.
1017.
1018.
Report of keeper.
Ascertainment of license and
toll rate.
1024.
1025.
1019.
1020.
Same: Fixing rate.
Conditions of bond.
1026.
1027.
Bridges and ferries connecting
counties.
Disqualification of county com-
missioners.
Distance between bridges and
ferries.
Condemnation of land.
Posting rates of tolls.
Disposal of license money
Care of banks.
Application to Construct.
Sec. 1013. When authority to construct a toll bridge or to erect
and keep a ferry over waters dividing two counties is desired, ap-
plication must be made to the board of commissioners of that county
situated on the right bank descending such river, creek, or slough.
Historical: Rev. St. 18 87, Sec. 1070.
See 3 Ter. Ses. (1866) 180, Sec. 1.
California Legislation: Same except
"supervisors" for "commissioners,"
line 3; "left" for "right," line 4; "bay,
river, creek, slough, or arm of the
sea" for "river, creek or slough," line
4: Pol. Code 1872, Sec. 2843; Deering's
Code, ib.; Kerr's Code, ib.
Cross Reference: Corporations not
to take tolls until authority is granted
by the county commissioners: Sec.
2830.
508
PUBLIC WAYS
Tit. 7
Proof of Notice.
Sec. 1014. The board of commissioners must not grant authority
to construct or erect a toll bridge or ferry until the notice of such
intended application has been given as respectively required in Arti-
cles 2 and 3 of this chapter.
Historical: Rev. St. 188 7, Sec. 1071.
California Legislation: Same except
'supervisors" for "commissioners,"
line 1: Pol. Code 1872, Sec. 2844;
Deering-'s Code, ib.; Kerr's Code, ib.
Grant of Authority.
Sec. 1015. The board of commissioners granting authority to con-
struct a toll bridge or to keep a public ferry, must at the same time :
1. Fix the amount of a penal bond to be given by the person or
corporation owning or taking tolls on the bridge or ferry for the
benefit of the county and all persons crossing or desiring to cross
the same, and provide for the annual renewal thereof;
2. Fix the amount of license tax to be paid by the person or
corporation for taking tolls thereon, not less than three nor over one
hundred dollars per month, payable annually ;
3. Fix the rate of tolls which may be collected for crossing the
bridge or ferry, which must not raise annually an income exceeding
fifteen per cent on the actual cost of the construction or erection
and maintenance of the bridge or ferry for the first year, nor on
the fair cash value together with the repairs and maintenance thereof
for any succeeding year;
4. Make all necessary orders relative to the construction, erec-
tion, and business of licensed toll bridges or ferries which they have
by law the power to make.
The board of commissioners may, at any time they see fit, au-
thorize fords across any water within any distance of any licensed
toll bridge or ferry.
Historical: Rev. St. 1887, Sec. 1072.
California Legislation: Same except
"supervisors" for "commissioners,"
and "and maintain" inserted after "au-
thorize," last paragraph: Pol. Code
1872, Sec. 28 45; Deering's Code, ib.;
Kerr's Code, ib.
Regulation of License Tax and Tolls.
Sec. 1016. The license tax and rate of toll fixed as provided in
the preceding section may be increased or diminished, at any time,
when it is shown to the satisfaction of the board of commissioners
that the receipts from tolls any one year is disproportionate to the
cost of construction or erection, or the fair cash value thereof, to-
gether with the cost of all necessary repairs and maintenance of
the bridge or ferry. The license tax fixed by the board of commis-
sioners must not exceed ten per cent of the tolls annually collected.
Historical: Rev. St. 1887, Sec. 1073.
California Legislation: Similar: Pol.
Code 1872, Sec. 2846; Deering-'s Code,
ib.; Kerr's Code, ib.
Report of Keeper.
Sec. 1017. Every owner or keeper of a toll bridge or ferry must
report annually to the board of commissioners from which his license
is obtained, under oath, the following facts:
Ch. 4. Art. 1. FERRIES AND BRIDGES — IN GENERAL
509
1. The actual cost of the construction or erection, and equipment
of the toll bridge or ferry;
2. The repairs made during the preceding year, and the actual
cost thereof;
3. The expense of labor and hire of agents, and other costs
necessarily incurred in and about the conduct of their business;
4. The amount of tolls collected ; and,
5. The estimated actual cash value of the bridge or ferry, ex-
clusive of the franchise.
Historical: Rev. St. 1887, Sec. 10 74.
California Legislation : Same except
'supervisors'
for "commissioners.
line 2: Pol. Code 1872, Sec. 2847;
Deering's Code, ib.; Kerr's Code, ib.
Ascertainment of License and Toll Eate.
Sec. 1018. Whenever the board of commissioners are about to fix
the license tax and rate of tolls on a bridge or ferry they must make
inquiry into the present actual cash value and the cost of all necessary
repairs and maintenance thereof, and for that purpose may examine,
under oath, the owner or keeper of the same, and other witnesses,
and the assessed value of the bridge or ferry on the assessment roll
of the county.
Historical: Rev. St. 1887, Sec. 1075.
California Legislation: Same except
'supervisors" for "commissioners,"
line 1, but with additional provisions:
Pol. Code 1872, Sec. 2848; Deering's
Code, ib.; Kerr's Code, ib.
Same: Fixing Rate.
Sec. 1019. When the cost of construction or erection and equip-
ment of the bridge or ferry, or the fair cash value thereof, together
with the cost of needed repairs and the conduct and maintenance
of the same, is ascertained and fixed for the preceding year, the
board must, on such ascertained amount, fix the annual license tax,
rate of tolls, and the amount of the penal bond, and direct a license
to be issued by the clerk.
Code 1872, Sec. 2849; Deering's Code,
ib.; Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 1076.
California Legislation: Same: Pol.
Conditions of Bond.
Sec. 1020. The bond required of the owner or keeper of the toll
bridge or ferry, must be in the sum fixed by the board of commis-
sioners, between one thousand and ten thousand dollars, with one or
more sureties, and conditioned that the toll bridge or ferry will be
kept in good repair and condition, and that the keeper will faithfully
comply with the laws of the State and all legal orders of the board
of commissioners regulating the same, and pay all damages recovered
against him by any person injured or damaged by reason of delay
at, or defect in, such bridge or ferry, or in any manner resulting
from a non-compliance with the laws or lawful orders regulating the
same. The bond must be approved by the board and filed with the
clerk of the board of commissioners.
Historical: Rev. St. 1887, Sec. 1077.
California Legislation : Same except
"supervisors" for "commissioners"
throughout; "between one thousand
and ten thousand dollars," line 3,
omitted, and "president" for "board,"
next to last line: Pol. Code 1872, Sec.
285 0; Deering's Code, ib.; Kerr's
Code, ib.
510
PUBLIC WAYS
Tit. 7
Bridges and Ferries Connecting Counties.
Sec. 1021. The license tax of a ferry or bridge connecting two
counties must be paid to the treasurer of the county granting it,
and the license issued by the auditor thereof; but the treasurer of
such county must pay to the treasury of the county in which the
other end or landing of the bridge or ferry is located, one-half the
sum so received annually, or the auditor may issue the license on
filing with him receipts for their respective halves of the tax taken
from the treasurer of each of the two counties.
Historical: Rev. St. 1887, Sec. 1078.
California Legislation : Same: Pol.
Code 1872, Sec. 2851; Deering's Code,
ib.; Kerr's Code, ib.
Disqualification of County Commissioner.
Sec. 1022. When a commissioner is interested in an application
to erect, construct, or take tolls, or alter tolls on a bridge or ferry,
the probate judge of the county must act in his stead.
Historical: Rev. St. 1887, Sec. 1079.
California Legislation: Same except
"supervisor" for "commissioner," line
1, and "county" for "probate," line 3:
Pol. Code 1872, Sec. 2852; similar as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Distance Between Bridges and Ferries.
Sec. 1023. No toll bridge or ferry must be established within one
mile immediately above or below a regularly established ferry or
toll bridge, unless the situation of a town or village, the crossing of
a public highway, or the intersection of some creek or ravine renders
it necessary for public convenience. In addition to the public notice
hereafter required, notice of intention to apply for authority to
erect a toll bridge or ferry, as in this section provided, must be
served upon the proprietor of the ferry or toll bridge already estab-
lished at least ten days prior thereto, giving the time and place and
grounds of such application.
Historical: Rev. St. 1887, Sec. 1080.
California Legislation : Same: Pol.
Code 1872, Sec. 2853; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Evans v. Kroutinger (1903)
9 Ida. 153; 72 Pac. 882.
Condemnation of Land.
Sec. 1024. When there are lands necessary for the construction,
erection or use of such bridge or ferry which cannot be procured
by agreement between the owner or corporation and the land owner,
the right of way and all other lands necessary for the use and con-
struction or erection thereof may be acquired by condemnation.
Historical: Rev. St. 18 87, Sec. 1081.
California Legislation : Same: Pol.
Code 1872, Sec. 2855; Deering's Code,
ib.; Kerr's Code, ib.
Posting Rates of Tolls.
Sec. 1025. Every licensed toll bridge or ferry must have the rates
of toll, as fixed by the board of commissioners, printed or written,
posted up in some conspicuous place on or near the bridge or ferry.
Historical: Rev. St. 1887, Sec. 10 82.
See 2 Ter. Ses. (1864) 440, Sec. 8.
California Legislation: Same except
"supervisors" for "commissioners,"
line 2: Pol. Code 1872, Sec. 2856;
Deering's Code, ib.; Kerr's Code, ib.
Ch. 4. Art. 2. ferries and bridges — toll bridges
511
Disposal of License Money.
Sec. 1026. The proceeds of the license tax on ferries and toll
bridges must be paid into the county treasury for the use of roads
and highways, or may be used by the board of commissioners at
any time in the purchase of toll roads and toll bridges.
Historical: Rev. St. 18 8 7, Sec. 1083.
California Legislation : Same except
'Supervisors" for "commissioners,"
line 3: Pol. Code 1872, Sec. 2857;
Deering's Code, ib.; Kerr's Code, ib.
Care of Banks.
Sec. 1027. All ferry and toll bridge keepers must keep the banks
of the streams or waters at the landings of their ferries and bridges
graded and in good order for the passage of vehicles. For every
day compliance herewith is neglected twenty-five dollars is forfeited,
to be collected for the use of the road fund of the county.
Historical: Rev. St. 18 87, Sec. 1084.
California Legislation: Same: Pol.
Code 1872, Sec. 285 8; Deering's Code,
ib.; Kerr's Code, ib.
ARTICLE 2.
TOLL BRIDGES.
Section
1028.
1029.
1030.
1031.
1032.
Application to construct.
Hearing of application.
Order granting- application.
Same: Additional requirements.
Use of highways.
Section
1033. Completion of bridge.
1034. Exemptions from tolls.
1035. Penalty for avoiding tolls.
1036. County may purchase bridge.
Application to Construct.
Sec. 1028. Every applicant for authority to construct a toll bridge
must publish a notice in at least one newspaper in each county in
which the bridge or any part of it is to be, or if no paper is published
therein, in an adjoining county, once in each week for six successive
weeks, specifying the location, the length and breadth of the bridge,
and the time at which the application hereinafter required will be
made. After notice is given, application must be made to the board
of commissioners of the proper county, at any meeting specified in
the notice, for authority to construct it.
Historical: Rev. St. 1887, Sec. 1090.
California Legislation: Same except
"supervisor" for "commissioners";
Pol. Code 1872, Sec. 2870; Deering's
Code, ib.; Kerr's Code. ib.
Hearing of Application.
Sec. 1029. On the hearing, any person may appear and be heard.
The board may take testimony or authorize it to be taken by any
judicial officer of the county; and it may adjourn the hearing from
time to time. A copy of the articles of incorporation, certified by
the Secretary of State or by the clerk where they are filed, must be
attached to and filed with the application, if made by a corporation.
Historical: Rev. St. 1887, Sec. 1091.
California Legislation: Same: Pol.
Code 1872, Sec. 2871; Deering's Code,
ib.; Kerr's Code, ib.
Order Granting Application.
Sec. 1030. If the board are of the opinion that the public interests
512
PUBLIC WAYS
Tit. 7
will be promoted thereby, it may, by the assent of a majority of
all the members of the board, grant the application by an order
entered in its minutes, and particularly describing the bridge. The
applicant must cause a certified copy of the order, with a copy of the
application, to be recorded in the office of the recorder of the county,
before proceeding under it.
Historical: Rev. St. 1887, Sec. 10 92.
California Legislation: Same except
'clerk" for "recorder," line 6: Pol.
Code 1872, Sec. 2872; additional pro-
vision as amended: Deering's Code,
ib.; Kerr's Code, ib.
Same: Additional Requirements.
Sec. 1031. The board of commissioners may, at the time of grant-
ing authority to construct a toll bridge, by order, require the bridge
to be constructed within a certain time, to be of a certain width,
character, or description, and to be constructed of certain materials,
which order must be complied with by the owner or corporation
constructing the same before license to take tolls is issued.
Historical: Rev. St. 1887, Sec. 1093.
California Legislation: Same except
'supervisors" for "commissioners,"
line 1: Pol. Code 1872, Sec. 2873;
Deering's Code, ib.; Kerr's Code, ib.
Use of Highways.
Sec. 1032. The corporation or bridge owner may use, in such
manner as prescribed by the board, so much of any public road on
either side of the stream or waters as may be necessary for con-
structing and maintaining the bridge and toll houses.
Historical: Rev. St. 1887, Sec. 1094.
California Legislation: Same: Pol.
Code 1872, Sec. 2874; Deering's Code,
ib.; Kerr's Code, ib.
Completion of Bridge.
Sec. 1033. Every bridge erected under these provisions must have
good and substantial railings or sidings, at least four and a half feet
high. When a bridge is completed, and a certificate that it is so,
and is safe and convenient for the public use, is signed by the chair-
man of the board of commissioners, and filed in the county recorder's
office, in the county or counties in which it is located, the owner may
erect a toll gate at such bridge, and require such tolls as the boards
of commissioners of the county or counties from time to time pre-
scribe. A license therefor must be issued by the auditor of the
county on giving the necessary bond and paying the license tax fixed
therefor.
Historical: Rev. St. 1887, Sec. 1095.
California Legislation: Same except
"the commissioner of highways or
president of the board of supervisors"
fo" "the chairman of the board of
commissioners," line 5; "clerk's" for
"recorder's," line 5, and "supervisors"
for "commissioners," line 8: Pol. Code
1872, Sec. 2878; Deering's Code, ib.;
Kerr's Code, ib.
Exemptions From Tolls.
Sec. 1034. Any person going to or from a funeral, school, per-
forming highway labor, or court which by law he is required to
attend as a witness in a criminal case, is exempt from the payment
of tolls.
Ch. 4. Art. 3. ferries and bridges — toll ferries
513
Historical: Rev. St. 1887, Sec. 1096.
California Legislation: Same except
"or attending a military parade" in-
serted after "labor," line 2: Pol. Code
1872, Sec. 2879; Deering's Code, ib.;
Kerr's Code, ib.
Penalty for Avoiding Tolls.
Sec. 1035. Any person liable to pay toll, forcibly or fraudulently
passing the gate of a toll bridge without paying the toll, is liable
to a penalty of ten dollars in addition to the damages caused, to be
recovered by the owner.
Historical: Rev. St. 1887, Sec. 1097.
California Legislation: Same: Pol.
Code 1872, Sec. 2880; Deering's Code,
ib.; Kerr's Code, ib.
County May Purchase Bridge.
Sec. 1036. Within the same time, in like manner, and to the same
effect as toll roads are purchased under the provisions of the last
chapter, the county or counties, jointly acting, in which the same
is situated, may purchase a toll bridge constructed under the pro-
visions of this chapter.
Historical: Rev. St. 1887, Sec. 1098.
California Legislation: Same except
"Sections 2802 and 2803" for "the last
chapter," line 2: Pol. Code 1872, Sec.
2881; Deering's Code, ib.; Kerr's Code,
ib.
Cross Reference: Purchase of toll
roads: Sees. 1001-1002.
ARTICLE 2.
TOLL FERRIES.
Section
1037. Application to construct.
1038. Hearing and order.
Section
1039. Regulation of ferries.
10 40. Disposal of penalties.
Application to Construct.
Sec. 1037. Every applicant for authority to erect and take tolls
on a public ferry, must publish a notice in at least one newspaper
in each county in which the ferry is or touches, or if there is no
newspaper published therein, then in one published in an adjoining
county, for four successive weeks, specifying the location and the
time and place, when and where the application will be made. After
notice is given, application must be made in writing, under oath, to
the board of commissioners of the proper county, the landings of
the proposed ferry must be described, and the names of the owners
thereof given, if known; and, if the applicant is not the owner of
the land, that notice of the application has been served on the owner
thereof at least ten days prior to the application.
Historical: Rev. St. 1887, Sec. 110 5.
California Legislation: Same except
"and by posting three notices in three
public places in the township" inserted
after "county," line 5, and "super-
visors" for "commissioners," line 8:
Pol. Code 1872, Sec. 2892; Deering's
Code, ib.; Kerr's Code, ib.
Hearing and Order.
Sec. 1038. At the hearing, proof of giving the notice as required
by the preceding section, must be made, and any person may appear
and contest the application. If the board finds that the ferry is
either a public necessity or convenience, and that the applicant is a
suitable person, authority to erect and take tolls on the ferry may
be granted to him.
514
PUBLIC WAYS
Tit. 7
Historical: Rev. St. 1887, Sec. 1106.
California Legislation: Similar: Pol.
Code 1872, See. 2893; Deering's Code,
ib.; Kerr's Code, ib.
Regulation of Ferries.
Sec. 1039. The board of commissioners may make all needful rules
and regulations for the government of ferries and ferry keepers,
prescribing :
1. How many boats must be kept, their character, and how
propelled ;
2. The number of hands, boatmen or ferrymen to be employed,
and rules for their government ;
3. How many trips to be made daily;
4. When and under what circumstances to make trips in the
night time;
5. Who must be ferried free of toll ;
6. In what cases of danger or peril not to cross;
7. Penalties for violation of regulations ;
8. In case of steamboats, the rate of speed;
9. The method of and preference in loading and crossing; and,
10. How and by whom action must be brought to recover
penalties.
Historical: Rev. St. 1887, Sec. 1107.
California Legislation: Same except
'supervisors" for "commissioners,"
line 1: Pol. Code 1872, Sec. 2894;
Deering's Code, ib.; Kerr's Code, ib.
Disposal of Penalties.
Sec. 1040. Penalties recovered under this article must be paid to
the county treasury for the use of the general road fund of the
county.
Historical: Rev. St. 188 7, Sec. 1108.
California Legislation: Same: Pol.
Code 1872, Sec. 2895; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 5.
MISCELLANEOUS PROVISIONS RELATING TO TOLL ROADS, BRIDGES
AND FERRIES.
Section
1046. Revocation of license.
1047. Exclusiveness of right.
1048. Liability for damages: Lien
for tolls.
Section
1041. Franchises deemed real prop-
erty.
1042. Liability to execution.
1043. Same: Attachment.
104 4. Same: Purchaser to give bond.
1045. Keeping without license: Pen-
alty.
Franchises Deemed Real Property.
Sec. 1041. For all purposes connected with the collection of debts,
dues or demands, or the enforcement of obligations, a franchise for
the building of bridges, the construction of roads or the maintenance
of ferries, is deemed real property, and controlled by the rules gov-
erning the same.
Historical: Rev. St. 1887, Sec. 1120.
4 Ter. Ses. (1867) 64, Sec. 1.
Ch. 5.
MISCELLANEOUS PROVISIONS
515
Liability to Execution.
Sec. 1042. All rights or franchises to build, construct, or maintain
roads, ferries or bridges, and charge toll thereon, or receive any
compensation from the public for the use of the same, are subject,
in like manner as real property, to the payment or satisfaction of
any judgment rendered in a suit to enforce the collection or satisfac-
tion of any debt, due, demand or obligation heretofore contracted,
or which may hereafter be contracted.
Historical: Rev. St. 1887, Sec. 1121.
See 4 Ter. Ses. (1867) 64, Sec. 2.
Same : Attachment.
Sec. 1043. All right, title or interest, claim, property or demand,
in and to such franchise, road, bridge or ferry, may be attached
in the same manner in which real property may be attached, in any
suit against any person to whom said described franchises have been
granted or conveyed, and the right, title and interest, property, claim
and demand of said person, may be levied upon and sold under
execution, to satisfy any such judgment or decree, in the manner
in which real property is levied upon and sold under execution, and
subject to the same rules of redemption.
Historical: Rev. St. 1887, Sec. 1122.
4 Ter. Ses. (1867) 64, Sec. 3.
Same: Purchaser to Give Bond.
Sec. 1044. In all cases where the person to whom any such right
or franchise was originally granted, was required to execute any
bond or undertaking for the performance of any act or acts connected
with said franchise, the party or parties purchasing at sheriff's sale
must, before the confirmation of said sale by the proper court, execute
a similar bond or undertaking, to be approved and filed in like manner
as the original.
Historical: Rev. St. 1887, Sec. 1123.
4 Ter. Ses. (1867) 64, Sec. 4.
Assignability: Under this section,
together with Revised Statutes, Sec-
tions 1125 and 1126, a ferry franchise
is the subject of voluntary assign-
ment. Evans v. Kroutinger (1903) 9
Ida. 153; 72 Pac. 882.
Keeping Without License : Penalty.
Sec. 1045. Any and all persons who keep, or attempt to keep, any
toll road, bridge or ferry, and receive toll or pay therefor, without
first obtaining a license for the same, must pay a fine of not less
than fifty dollars for each offense, for the benefit of the common
school fund, and for which complaint may be made by any aggrieved
party, before any justice of the peace having jurisdiction.
Historical: Rev. St. 1887, Sec. 1128.
2 Ter. Ses. (1864) 440, Sec. 10.
Effect of License: A license to con-
duct a ferry protects the licensee from
liability to fine under this section even
though he has no franchise. Evans v.
Kroutinger (1903) 9 Ida. 153; 72 Pac.
882.
Revocation of License.
Sec. 1046. If any person licensed to keep a toll road, bridge, or
ferry, fails to pay the taxes assessed thereon when due, or does not
516
PUBLIC WAYS
Tit. 7
provide or keep the same in good and complete repair, necessary for
the safe travel and conveyance of persons and property, or abandons
the same for the space of sixty days, the board of commissioners of
the proper county, on complaint being made in writing, must sum-
mon the person licensed to keep such road, trail, bridge, or ferry, to
show cause why such license should not be revoked, and the board
must decide thereon according to the testimony adduced, which de-
cision is subject to appeal as in other cases, to the District Court.
Historical: Rev. St. 188 7, Sec. 1129.
See 2 Ter. Ses. (1864) 440, Sec. 13.
Cross Reference: Appeals to Dis-
trict Court: Sees. 1950-1953.
Exclusiveness of Right.
Sec. 1047. The right to construct and keep a toll road, bridge or
ferry granted by the board of commissioners under the provisions of
this title, may be made exclusive for one mile on each side of the line
of the road, or of the landing of the bridge or ferry.
Historical: Rev. St. 1887, Sec. 1130.
See 3 Ter. Ses. (1866) 179, Sec. 2.
Cited: Evans v. Kroutinger (1903)
9 Ida. 153; 72 Pac. 882.
Liability for Damages: Lien for Tolls.
Sec. 1048. Any damages sustained by any person or persons in
crossing any toll bridge or ferry, or in traveling upon any toll trail
or toll road, upon which toll gates are established or tolls collected,
caused by the neglect of the owners thereof, either by an unskillful
management or failure to keep such bridge, ferry, toll road or toll
train in good repair for the accommodation of the traveling public,
are a lien upon said bridge, ferry, or toll road, to be enforced by
action; and the tolls allowed by law to be collected upon any toll
road, ferry or bridge, are a lien upon any property passing over the
same, to be collected as other liens; but no damages shall accrue at
any time when tolls are not charged.
Historical: Rev. St. 1887, Sec. 1131.
3 Ter. Ses. (1866) 181, Sec. 1.
CHAPTER 6.
GOOD ROAD DISTRICTS.
Section
1056. Tax levy.
1057. Compensation of members of
board.
1058. Limitations on boundaries:
Effect of organization.
105 9. Contracts for construction of
roads.
1060. Bond of contractor.
Section
1049. Constitution of district.
1050. Petition for organization:
Hearing.
1051. Appeal.
1052. District election: Good road
commissioners.
1053. Oath, bond and organization of
board of commissioners.
1054. Issuance of bonds.
1055. Account of road district
moneys.
Constitution of District.
Sec. 1049. Any portion of a county desiring to be created or set off
as a special good road district for the purpose of improving any or
all of the public roads therein, within the provisions of this chapter,
which contains twenty-five or more resident taxpayers, may be organ-
Ch. 6. GOOD ROAD DISTRICTS 517
ized into a special good road district for such purpose, and when so
organized, such district and the board of good road commissioners
hereinafter provided for, shall have and possess the powers of a body
corporate to issue bonds for the building and repairing of any or all
of the public roads within its district. Such road district, when duly
organized according to the provisions of this chapter, shall be known
as "Good Road District No , of the County of , State of
Idaho," and shall have the right to sue and be sued by and in the name
of its board of commissioners hereinafter provided for, and shall con-
tinue in existence until such time as said roads have been improved
and the bonds issued therefor have been paid off in full, and shall
adopt and use a seal. The commissioners hereinafter provided for,
and their successors in office, shall, from the time of the organization
of such road district, have the power, and it shall be their duty, to
manage and conduct the business affairs of the district, pertaining to
said roads, make and execute all necessary contracts, employ and ap-
point such officers and employees as may be required, and to prescribe
the duties of such officers and employees, and to perform such other
acts as are hereinafter provided or that may hereafter be provided
by law.
Historical: Laws 1905, 2 37, Sec. 1.
Petition for Organization: Hearing.
Sec. 1050. For the purpose of the formation of such road listrict,
a petition shall be presented to the board of county commissioners
of the county in which said proposed district is located, which peti-
tion shall set forth the object of the creation of such district, desig-
nating the boundaries thereof, and set forth therein the assessed
values of all the assessable property embraced within said district,
and shall be signed by a majority of all the freeholders residing with-
in said proposed district; and shall contain a brief description of the
proposed building, repairing or other improvement proposed for said
road or roads ; the route over which the same is to be constructed, also
the kind of material proposed to be used for the construction or repair
of said road or roads. Such petition shall be presented at a regular
meeting of the board of county commissioners of said county, and
shall be published for at least two successive issues of some weekly
newspaper printed and published in said county, together with a
notice stating the time of the meeting, at which the petition shall be
presented. Copies of such petition and notice shall be posted in
at least three places in such proposed district, at least two weeks
before such petition is to be presented to the county commissioners.
When such petition is presented for a hearing, the board of county
commissioners shall hear the same, or may adjourn such hearing from
time to time, not exceeding thirty days in all, and any person or cor-
poration may apply before said board if county commissioners and
make objection to the establishment of said district or the proposed
boundary lines thereof, and upon a final hearing said board of county
commissioners shall make such change in the proposed boundaries
as they may deem to be proper, and shall establish and define such
boundaries, and shall ascertain and determine the number of acres
of land contained within the boundaries of such proposed road dis-
518 PUBLIC WAYS Tit. 7
trict; also the number of freeholders residing within the boundaries
of said proposel district: Provided, That no change shall be made
by the said board of county commissioners in said boundary lines
so as to include any territory outside of the boundaries described
in said petition: Provided, further, That any person or persons
owning lands within the proposed boundaries, and who did not sign
said petition, or any person, persons or corporation owning lands
not included within the proposed boundaries, may file a petition
with the board of county commissioners asking that the proposed
boundaries be extended so as to include other lands described therein,
setting forth in said petition the reason therefor, and if it shall appear
to the board of county commissioners that said territory should be
included within the boundaries of such road district, they may extend
such boundaries so as to include such territory: Provided, however,
That no person, persons or corporation, not owning lands inclosed
Within said proposed boundaries, shall have the right to file such
petition unless asking therein to have their own lands included within
the proposed boundaries.
Historical: Laws 1905, 2 3 7, Sec. 2.
Appeal.
Sec. 1051. Any person within the boundaries of any good road
district who may feel aggrieved or injured by the decision of the
board of county commissioners, may appeal therefrom to the District
Court of said county, in the usual and statutory manner in which
such appeals are taken.
Historical: Laws 1905, 237, Sec. 3. county commissioners: Sees. 1950-
Cross Reference: Appeal from 1953.
District Election: Good Road Commissioners.
Sec. 1052. Upon the entry of the findings of the final hearing of
said petition as set forth in Section 1050, said board of county com-
missioners of said county, if they find said proposed good road dis-
trict will be conducive to the public welfare and convenience of all
the people residing within the boundaries of said good road district
shall give notice of an election to be held in said proposed road district
for the purpose of determining whether the same shall be organized
under the provisions of this chapter as a good road district of the
State of Idaho ; and for the further purpose of choosing at such elec-
tion three commissioners, residents of said district, who shall be
known and designated as "Good Road Commissioners for Road Dis-
trict No ," proposed to be organized, which three commissioners
shall, upon their election, be the road district authorities of said road
district; and such notice shall state the time and place where such
election shall be held, and that the polls shall be open from twelve
o'clock noon till five o'clock p. m. Such notice shall also describe
the boundaries as established by the board of county commissioners
on its final hearing of said petition, and shall state the name and
number of such proposed good road district; and approximately the
number of acres of land in said district to be benefited by such im-
provement; and shall also state the nature of the proposed improve-
ment, whether it shall be turnpike, macadam or wood, or all or any
Ch. 6
GOOD ROAD DISTRICTS
519
two of them. Such notice shall be published for at least two weeks
prior to such election, in a weekly newspaper, printed and published
within the county in wrhich such district is located, and copies of
such notice shall be posted in at least three places in said proposed
district at least two weeks before the date of such election.
Only resident freeholders residing within the boundaries of such
good road district shall be allowed to vote at any good road election.
Should a majority of the votes cast at such election be in favor of
the formation of said good road district, the same shall be considered
as formed. In that case the three persons having received the highest
number of votes for the office of good road commissioner of said
district shall be declared elected to such office. Such commissioners
so elected shall hold office for one year from the second Tuesday in
December next following the date of said election, or until their
successors are elected and qualified. Thereafter said commissioners
shall hold office for the term of two years, and shall be elected bi-
enially at an election to be held on the second Tuesday in December.
The said elections, notices thereof and the manner of conducting the
same, shall be in all respects like those now required for the election
of school directors in independent school districts.
Historical: Laws 1905, 23 7, Sec. 4.
"Section 105 0" inserted in line 2 for
"the last preceding section." The
provision for findings is in Section
1050 and not in the "last preceding
section," which relates only to appeals.
The clause "only resident free holders
* * * shall be allowed to vote," etc.,
is transposed to what seemed a more
appropriate phrase.
Cross Reference: Election of school
directors in independent school dis-
tricts: Sec. 65 4.
Oath, Bond and Organization of Board of Commissioners.
Sec. 1053. The board of good road commissioners shall, within ten
days after their election, take and subscribe to an oath that they will
support the constitution of the State of Idaho and the laws thereof,
and that they will discharge the duties of their office to the best of
their ability. The said commissioners shall each give a bond with not
less than two sureties, in the sum of five hundred dollars, for the
faithful performance of their duties ; the said board of commissioners
shall meet within ten days after their election and organize, by elect-
ing one of their number as chairman, one as secretary, and one as
treasurer. Any vacancy occurring in the board of good road com-
missioners shall be filled by appointment by the remaining members
of the board.
Historical: Laws 1905, 237, first
part of Section 5 and Section 10. The
provision for filling vacancies is Sec-
tion 10.
Issuance of Bonds.
Sec. 1054. Said board of good road commissioners shall have au-
thority, by and with the consent of a two-thirds majority of the
qualified electors of their respective districts, voting at any election
held for the purpose of issuing bonds, to issue bonds not exceeding
twenty-five per cent of the assessed value of the real property within
such good road district. The proceeds from the sale of such bonds
shall be used exclusively for the purpose of the building or improve-
ment of the roads, and for the purchase of material, land, and ma-
chinery necessary for such improvements within their respective
520 PUBLIC WAYS Tit. 7
districts. Such bonds issued by said commissioners shall not be sold
at a less price than their face value, and shall bear interest at not
to exceed six per cent per annum, which interest shall be due and
payable on the first day of February of each year. No bonds shall
be sold for a longer period than twenty years and may be redeemed
in ten years from the date of issue.
The proceeds arising from the sale of said bonds shall be paid to
the county treasurer of the county in which such good road district
is situated; and any and all moneys belonging to said district shall
by him be paid out only upon orders issued by the board of com-
missioners of any good road district as provided by this chapter.
At any election held within any road district organized under the
provisions of this chapter for the purpose of authorizing the com-
missioners to issue bonds, the form of ballots shall be written or
printed with the words "Bonds yes," "Bonds no". The person voting
shall strike out the words "Bonds yes" or "Bonds no", as the case
may be, and the words not stricken out shall indicate the wish of the
voter. The returns of any election held within any good road district
must be duly certified to by the judges and clerk of such election,
and by them sealed and by the clerk of such election board delivered
to the county auditor of the county in which such road district is
situated, and the county auditor shall file such election return in his
office as a permanent record.
Whenever, under the provisions of this chapter, the board of good
road commissioners shall be authorized to issue bonds, said bonds
shall have interest coupons attached, and shall be numbered consecu-
tively, commencing with number one. The coupons shall bear the
same number as the bonds bear to which the coupons are attached.
Said bonds shall be for sums of not less than one hundred dollars
nor more than five hundred dollars each. Whenever payment of in-
terest on said bonds shall be made, the coupons corresponding to such
payment shall be detached and given as a receipt therefor.
All bonds with their coupons attached, issued by any road district
provided for in this chapter, shall be signed by the chairman and
secretary of the board of commissioners of the district issuing said
bonds, and the official seal of the district shall be affixed by the secre-
tary of said board to all bonds issued by his district.
Historical: Laws 1905, 237, last
part of section 5, Section 6, last half
Section 9.
Account of Road District Moneys.
Sec. 1055. It shall be the duty of the county treasurer of the county
in which any good road district is created, to keep a separate account
of all moneys belonging to any and all of the good road districts, within
his county; he shall keep a record and the number of all bonds issued
by the good road district of the county ; he also shall keep an accurate
account of all moneys received and paid out by him.
Historical: Laws 1905, 237, Sec. 7.
Tax Levy.
Sec. 1056. It shall be the duty of the board of good road commis-
sioners to provide for a tax levy each year, within their respective
Ch. 6. GOOD ROAD DISTRICTS 521
districts, upon all the assessable property within their respective dis-
tricts, sufficient to pay the interest on bonds outstanding against such
district, also to pay any other indebtedness incurred during the year
in which such levy is made; and also to provide for a permanent
sinking fund of not less than five per cent of the bonded indebtedness
of their district. They shall, on or before the first day of September
of each year, make an estimate of the amount of money necessary
to be collected, together with the amount of the assessable property
within their district, together with the names of the owners thereof,
and shall deliver said list to the county auditor of their respective
counties. The county auditor shall apportion such assessment to
each property owner within said district according to the values as
returned by the county assessor of the county in which such district
is located, and all taxes so levied shall become a valid lien against
such property, and shall be collected by the county assessor as other
taxes are collected.
Historical: Laws 1905, 237, Sec. 8,
and first half of Section 9.
Compensation of Members of Board.
Sec. 1057. The board of good road commissioners herein men-
tioned shall receive, as compensation for their services, not to exceed
the sum of two and one-half dollars each per day for the time actually
employed in the performance of their several duties. Said amounts
shall be paid from the good road district funds, upon the presentation
of itemized vouchers, subscribed and sworn to in the same manner
as bills against the county.
Historical: Laws 1905, 237, Sec. 11.
i Limitation on Boundaries: Effect of Organization.
Sec. 1058. No portion of any good road district shall include
within its boundaries any portion of any road included within any
incorporated city or town. Nor shall it include a portion of two
counties.
When any such good road district is organized under the pro-
visions of this. chapter, it shall supersede all other road districts or
parts of districts within the limits of such good road district, and
the good road commissioners shall have the power to levy and apply
all road taxes collected within their respective districts.
It shall be the duty of the board of county commissioners to ap-
portion to such good road districts all road and poll taxes collected
or levied within their districts.
Historical: Laws 1905, 237, Sec. 12.
Contracts for Construction of Roads.
Sec. 1059. When the board of good road commissioners shall direct
improvement of any roads within their district, whether turnpike,
macadam or wood, or any two of the above mentioned, they shall
make and enter into a contract for the improvement or construction
of such road or roads, either for the entire work in one contract, or
parts thereof in separate and specified sections, as to them may seem
best: Provided, That no work shall be done under any such contract
522
PUBLIC WAYS
Tit. 7
until a certified copy thereof shall have been filed with the secretary
of the board of good road commissioners. All such contracts shall
be made by the board of good road commissioners in the name of
their road district upon such terms of payment as shall be fixed by
them, and shall be made with the lowest and best bidder, on sealed
proposals, after notice thereof has been published for not less than
three weeks in at least one newspaper published within the county,
and in the town nearest to such road district; they shall also post
copies of such notice in at least three conspicuous places in the good
road district in which such work is to be performed, which notice
shall contain a description of the kind and amount of work to be done,
and the kind of material to be used.
Historical: Laws 1905, 237, Sec. 13.
Bond of Contractor.
Sec. 1060. Each contractor shall be required to give a bond to the
district, with sureties to be approved by the commissioners of the
road district by which such contract is let, for the faithful perform-
ance of the contract, and the commissioners shall have power to in-
stitute suit in the name of the district to enforce all such contracts.
The commissioners shall not pay more than seventy-five per cent of
the contract price on any contract until such time as the contract has
been completed and by them accepted.
Historical: Laws 1905, 237, Sec. 14.
CHAPTER 7.
STATE HIGHWAY COMMISSION.
Section
Section
1061.
Constitution of commission.
1071.
Award of contract.
1062.
Duties of commission.
1072.
Same: Bond of contractor.
1063.
Officers.
1073.
Same: Specifications.
1064.
1065.
1066.
Report of commission.
Presentment and allowance of
claims.
Notice to county commissioners
to repair roads.
1074.
1075.
1076.
Same: Cancellation, modifica-
tion and forfeiture.
Proceeding's on abandonment
or forfeiture.
Toll: Where collected.
1067.
Same: Affidavit of complaint.
1077.
Rates of toll: Avoidance of
1068.
Failure to repair: Establish-
ment of toll road.
1078.
payment.
Persons and property subject
1069.
Same: v^rder for establish-
ment: Bids.
1079.
to toll. '
Same: Exemptions.
1070.
Undertaking to accompany bid.
Constitution of Commission.
Sec. 1061. The Governor, State Engineer and State Mining In-
spector are hereby constituted a Board of State Highway Commis-
sioners, which shall be known as the "State Highway Commission."
Historical: Laws 1907, 466, Sec. 1.
Duties of Commission.
Sec. 1062. The State Highway Commission shall have control and
supervision, as provided herein, of such roads, bridges and trails as
have been constructed in whole or in part at the expense of the State
Ch. 7.
STATE HIGHWAY COMMISSION
523
though direct appropriation therefor, in order that the same may be
kept in proper repair, and not suffered through neglect to fall into
a condition in which they may be unsafe for travel, or in any way
unavailable for use as public highways. The word "roads", wherever
used in this chapter, shall be construed as including also all such
bridges and trails.
Historical: Laws 1907, 466, Sec. 2.
Cross Reference: Acts providing for
the construction )r roads by the State
are found in the table of special laws
affixed to Section 17 of these Code:?.
Officers.
Sec. 1063. The Governor shall be ex-officio chairman of the com-
mission, and the commission at its first meeting shall elect one of its
members as secretary, who shall keep minutes of all the meetings and
transactions of the commission, and an accurate account of its dis-
bursements, and have the custody of its records and files. The Treas-
urer of the State of Idaho shall be the treasurer of the commission,
and liable upon his official bond for the faithful performance of his
duties as such treasurer. The members of the commission shall serve
without compensation as such members, but shall be allowed their
actual and necessary expenses incurred in performing their official
duties as such commissioners.
Historical: Laws 1907, 466, Sec. 3.
Report of Commission.
Sec. 1064. The commission shall make an itemized report and
statement on the first days of June and January of each year to the
State Auditor, of all their disbursements, contracts and transactions.
Said commission may make such rules and regulations for the trans-
action of its business as it may deem expedient, subject to the pro-
visions of this chapter.
Historical: Laws 1907, 466, Sec. 1.
Presentment and Allowance of Claims.
Sec. 1065. All claims against the commission requiring the pay-
ment of money shall be itemized and verified under oath, whereupon
they shall be audited by the commission, and if allowed or any part
thereof, shall be certified up to the State Auditor by the chairman
and secretary of the commission, which shall authorize the Auditor
to draw his warrant therefor, on the claim being approved by the
Board of Examiners: Provided, That before any claim shall be so
certified it must have been authorized by a vote of a majority of the
commission at a regular meeting thereof.
Historical: Laws 1907, 466, Sec. 5.
Ta<: phrase "on the claim being ap-
proved by the Board of Examiners"
Notice to County Commissioners to Repair Roads.
Sec. 1066. Whenever a showing shall be made, as herein provided,
that any road or trail or portion thereof, subject to the provisions
of this chapter, is in actual and serious need of repair, the commis-
sion shall cause the same to be inspected by some competent person,
who shall report thereon to the commission in writing. The secretary
is inserted to make the section con-
form to Const. Art. 4, Sec. 18.
524 PUBLIC WAYS Tit. 7
of the commission shall thereupon, by registered letter, notify the
board of county commissioners in the county or counties where such
repairs are needed, specifying the place or places on said road where
such repairs are required, and the nature of the work necessary to
put the same in proper condition. Such notice shall state that if such
county does not make such repairs, or cause them to be made, at the
expiration of a certain time, the commission will proceed in relation
thereto under the provisions of this chapter. Such notice shall be
for not less than thirty days, and the time therein granted may t)e
extended, on account of inclemency of the weather or any other good
cause, at the discretion of the commission. At the expiration of the
time stated in such notice or extension thereof, the commission shall
ascertain by the written report of some competent person, verified
under oath, as to whether such repairs have been properly made,
and if it appears to the commission that such repairs have not been
made, or that they have been improperly or insufficiently made, said
commission shall thereupon have power to proceed under the pro-
visions of this chapter.
Historical: Laws 1907, 466, Sec. 6.
Same : Affidavit of Complaint.
Sec. 1067. The showing required by the preceding section shall
be in the form of an affidavit by not less than three credible persons,
which must state in detail the place or places where such repairs
are needed, the actual condition of such road at such place or places,
the nature of the work required to put the same in proper condition,
and that such statement is made after personal inspection by each
affiant.
Historical: Laws 190 7, 466, Sec. 7.
Failure to Repair : Establishment of Toll Eoad.
Sec. 1068. If, after the showing made, proceedings taken and no-
tice given as herein provided, any county shall neglect, fail or refuse
to repair such road or roads, or any portion thereof and put the same
in proper condition for use as public highways, the commission may
thereupon make an order, reciting the facts and stating that it be-
comes expedient to lease such road or portion thereof for a toll road,
in order that the same may be properly maintained. Such order
shall specify the location and termini of such road or portion thereof,
and shall direct the secretary of the commission to cause such order
to be published in some newspaper of general circulation in the
county in which such road or portion thereof is located, for a period
of not less than four weeks, and in like manner to give notice there-
with, that sealed bids will be received by the secretary at a certain
place until a particular hour of a certain day thereafter, and not
more than ten days after the expiration of the publication of such
order and notice for the leasing of such road or portion thereof.
Historical: Laws 1907, 466, Sec. 8.
Same: Order for Establishment: Bids.
Sec. 1069. The order of the commission must specify the number
of gates to be placed on the road, and the period for which said road
Ch. 7. STATE HIGHWAY COMMISSION 525
or portion thereof is to be let, which shall not exceed five years. The
bid must specify the rates of toll, according to the classification
herein, which the bidder is willing to accept as full compensation for
putting and maintaining the road in the condition specified in the
order.
Historical: Laws 1907, 466, Sec. 9.
Undertaking to Accompany Bid.
Sec. 1070. No bid shall be considered unless accompanied by an
undertaking, executed by two or more sureties, in the sum of two
thousand dollars, to be void upon the condition that the bidder, if the
lease is awarded to him, will, within ten days thereafter, enter into
the contract for keeping such road, and give the bond to secure the
performance thereof as herein provided.
Historical: Laws 1907, 466, Sec. 10.
Award of Contract.
Sec. 1071. Upon opening the bids, the lease shall be awarded to
the lowest and best bidder, but the commission may reject any and all
bids when there appears sufficient cause therefor, and in such case they
may again advertise for bids, as herein provided.
Historical: Laws 1907, 466, Sec. 11.
Same: Bond of Contractor.
Sec. 1072. The contract for the lease must be subscribed by the
lessee, approved by the commission, and filed with the secretary
thereof. At the time of filing such contract the commission shall
require a proper and adequate bond or undertaking from the lessee,
with two or more sufficient sureties to be void upon the condition
that the lessee will faithfully perform his contract in relation to
such road, and comply with the provisions of this chapter.
Historical: Laws 1907, 466, Sec. 12.
Same : Specifications.
Sec. 1073. Such contract of lease must specify that such road shall
be kept clear of timber or other obstructions to travel, that it shall
be maintained in good order with a track of a certain width, that
the streams or other waters on the line thereof shall be kept properly
bridged or ferries established thereon, if necessary. If turnouts are
to be maintained, grades established, materials supplied, bridges built
or other construction work done, the contract shall specify the same
in detail, and in general such contract shall require that the lessee
maintain such road at all times in reasonably good condition for
ordinary usage as a public highway.
Historical: Laws 1907, 466, Sec. 13.
Same: Cancellation, Modification and Forfeiture.
Sec. 1074. The commission shall have authority, upon the applica-
tion of the lessee, to cancel or modify the lease upon such terms as
may be equitable and just, and whenever the lessee fails, neglects or
refuses to comply with the provisions of his lease or of this chapter,
the commission may request the Attorney General of the State to
526 PUBLIC WAYS Tit. 7
bring action in the proper court in the name of the State to have
such lease declared forfeited, or it may request the county attorney
of any county through which such road passes to bring such action
in the District Court for that county, and when so requested in writ-
ing it shall be the duty of the Attorney General or the county attor-
ney, as the case may be, to bring such action forthwith.
Historical: Laws 1907, 466, Sec. 14.
Proceedings on Abandonment or Forfeiture.
Sec. 1075. When any such lease is abandoned or declared forfeited,
the commission may again notify the county or counties in which
such road or portion thereof is located to maintain the same, as here-
inbefore provided, or it may at once advertise for bids to lease such
road again, at its discretion.
Historical: Laws 1907, 466, Sec. 15.
Toll: Where Collected.
Sec. 1076. No toll shall be collected for travel on such road except
at a gate, nor unless a sign board be posted at such gate in full view
of the travel on the road, with the rates of toll plainly printed or
painted thereon. The lease must specify the number of gates that
may be placed on the road, and the location thereof, and thereafter
the number of such gates must not be increased under such lease, but
the commission, upon the application of the lessee, may at any time,
for good reasons shown, authorize the lessee to change the location
of such gates or any of them. No toll gate, toll house or other building
must be put up within ten rods of the front of any dwelling house,
barn or outhouse, without written consent of the owner thereof.
Historical: Laws 1907, 466, Sec. 16.
Rates of Toll: Avoidance of Payment.
Sec. 1077. The rates of toll that the lessee may collect and receive
must be specified in the lease, and none other must be charged; and
any person who passes through a gate on such road without paying
the toll legally chargeable thereat, or when traveling on such road
shall be liable to the lessee for three times the amount of such toll;
and any lessee of such road, who, by himself or his agents or servants,
collects or receives of any person illegal toll for traveling on such
road, shall be liable to such person for three times the amount of
such toll.
Historical: Laws 1907, 466, Sec. 17.
Persons and Property Subject to Toll.
Sec. 1078. Tolls shall be chargeable by the lessee upon the follow-
ing items, or classes of persons or property, only:
1. Sheep and hogs ;
2. Loose horses, mules, asses and cattle;
3. Man and riding animals and pack animals loaded ;
4. Vehicles loaded or unloaded and drawn by one or more
animals ;
5. Automobiles and bicycles.
Historical: Laws 1907, 466, Sec. 18.
Ch. 7. STATE HIGHWAY COMMISSION 527
Same : Exemptions.
Sec. 1079. The following persons, and none other, shall be exempt
from paying toll on such roads :
1. Persons going to or from any funeral, and all funeral pro-
cessions ;
2. Troops in actual service of the State, or of the United States.
3. Persons going to or from the court house of any county in
obedience to a subpoena in a criminal action;
4. Persons living within a mile of any gate by the most usually
traveled road may pass it at one-half toll, when not engaged in the
transportation of others or the property of others ;
5. Farmers living on their farms within one mile of any gate
by the most usually traveled road may pass free when going to or
from their work on such farms ;
6. School children attending school within three miles of their
places of residence.
Historical: Laws 1907, 466, Sec. 19.
Vol. l—i
TITLE 8
POLICE OF THE STATE
Chapter
1. State board of health.
2. County board of health.
Preservation of Public Health.
Chapter
10.
11.
15.
17
18.
19.
20.
24.
25.
26.
30.
31.
3. Dairy, food and oil inspection.
Inspection and suppression of
diseases among livestock .
Two mile limit law.
Dogs killing- sheep or goats.
The Livestock Industry. '
7. Liabilities of stock ranchers.
8. Marks and brands.
9. Leases of livestock.
Inclosures, Trespass of Animals and Estrays.
13. Estrays.
of reservoirs and
14. Herd districts.
Fences.
Inclosures
dumps.
Animals running at large and
trespassing.
The Horticultural and Bee Industries.
Horticultural inspection. | 16. Bee inspection.
The Regulation of Professions.
The practice of medicine.
The practice of dentistry.
The practice of osteopathy.
The practice of optometry.
21. The practice of pharmacy.
22. Licensed surveyors.
23. Abstractors of titles.
Bureau of immigration, labor and
statistics.
Labor commission and arbitra-
tion.
Employment bureaus.
Protection and Regulation of Labor.
27. Protection of mechanics.
28. Union labor and employment of
29.
aliens.
Day's work and child labor.
The printing trade.
Warehousemen.
Particular Industries.
32. Inspection of lumber.
33. The liquor traffic.
Licensed Occupations.
| 34. Peddlers.
Miscellaneous Provisions.
35. Money of account and interest.
36. Weights and measures.
37. Unclaimed property.
38. Fire escapes on buildings.
39. Hunting on inclosed lands.
4 0. Explosives.
Ch. 1. Art. 1. STATE BOARD — CONSTITUTION AND DUTIES
529
CHAPTER 1.
STATE BOARD OF HEALTH.
Article
1. Constitution and duties of State
Board of Health.
2. Compilation of vital statistics.
Article
3. Prevention and suppression of dis-
ease.
ARTICLE 1.
CONSTITUTION AND DUTIES OF THE STATE BOARD OF HEALTH.
Section
1080. Establishment of board.
1081. Meetings and procedure.
1082. Secretary: Election and quali-
fications.
;083. Same: Term of office and
duties.
Section
I ii 84 Salary and expenses of secre-
tary and board.
1085. Powers and duties of board.
1086. Rules to prevent disease: Pen-
alty for infraction.
Establishment of Board.
Sec. 1080. A board is hereby established which shall be known
under the name and style of the Idaho State Board of Health ; it shall
consist of five members as follows: Two members who shall be ex-
perienced and legally licensed physicians of different parts of the
State to be appointed by the Governor, and a secretary, as provided
in Section 1082. These three, together with the Attorney General
of the State and the State Engineer, who shall be ex-officio members,
shall constitute the State Board of Health. The persons so ap-
pointed shall hold office for four years: Provided, That those first
appointed shall be so classed by the Governor that the term of one
shall expire on the second Monday of January in every second year;
thereafter the Governor shall biennially appoint one member in the
place of the one whose term shall so expire, who shall hold office for
four years, and all vacancies occurring otherwise shall be filled by the
Governor: Provided, further, That the members of said board, as
at present constituted, shall continue to hold office until the expira-
tion of their respective terms.
Historical: Laws 1907, 182, Sec. 1.
The second proviso is added to pre-
serve the present constitution of the
board.
Meetings and Proceedure.
Sec. 1081. The board shall meet annually at Boise on the first
Tuesday of October, and at such other times and places as they may
deem expedient. A majority shall constitute a quorum for the trans-
action of business. They shall choose annually one of their members
to be their president and may adopt rules and by-laws subject to the
provisions of this chapter. They shall have authority to send their
secretary or a committee of the board to any part of the State, when
deemed necessary to investigate the cause of any epidemic or any
special or unusual disease or mortality.
Historical: Laws 1907, 182, Sec. 2.
Secretary : Election and Qualification.
Sec. 1082. At their first meeting, or as soon as a competent and
530 POLICE— PUBLIC HEALTH Tit. 8
suitable person can be secured, the board shall elect a secretary, who
shall be a physician of experience and legally licensed to practice
medicine and surgery in this State, and who shall, by virtue of such
election, become a member of the board and its executive officer.
The board may elect one of their own members secretary, in which
case the Governor shall appoint another member to complete the full
number of the board.
Historical: Laws 1907, 182, Sec. 3.
Same: Term of Office and Duties.
Sec. 1083. The secretary shall hold his office so long as he shall
faithfully discharge the duties thereof, but may be removed for just
cause at a regular meeting of the board, a majority of the members
voting therefor. He shall keep his office at Boise and shall perform
the duties prescribed by this chapter or required by the board. He
shall keep a record of the transactions of the board, shall have the
custody of all the books, papers, documents and other property be-
longing to the board which may be depositel in his office; shall, so
far as practicable, communicate with other boards of health within
this State; shall keep and file all reports received from such local
boards of health and all correspondence of the office pertaining to
the business of the board. He shall prepare blank forms of returns
and such instructions as may be necessary, and forward them to the
clerks of the several local boards of health and county recorders
throughout the State. He shall collect information concerning vital
statistics, knowledge respecting diseases, and all useful information
on the subject of hygiene, and through an annual report and other-
wise as the board may direct shall disseminate such information
among the people.
Historical: Laws 1907, 182, Sec. 4.
Salary and Expenses of Secretary and Board.
Sec. 1084. The secretary shall receive an annual salary which shall
be fixed by the State Board of Health, and which in no case shall
exceed eighteen hundred dollars, which shall be paid him in the same
manner that the salaries of other State officers are paid. The ex-
pense account of the secretary's office, other than his salary, shall
be certified to the State Board of Examiners by the president of the
State Board of Health, and shall thereupon be audited and paid as
other claims against the State. The board shall annually certify the
amount of the expense account of the secretary's office, other than
his salary, and on presentation of said certificate, the State Auditor
shall draw his warrant on the State Treasurer for the amount. The
other members of the board, except the Attorney General and the
State Engineer, shall receive a per diem compensation of not to exceed
ten dollars for their services ; and they and all other members of the
board shall be allowed their actual traveling expenses and other neces-
sary expenses while employed on the business of the board, to be cer-
tified and paid in like manner as the expense account of the secre-
tary's office.
Historical: Laws 1907, 182, Sec. 5.
Ch. 1. Art. 1. STATE BOARD — CONSTITUTION AND DUTIES 531
Powers and Duties of Board.
Sec. 1085. The State Board of Health shall have a general super-
vision of all matters relating to the preservation of the life and health
of the people of the State. They shall especially study the vital statis-
tics of the State, and endeavor to make profitable and intelligent use
of the collected records of sickness and mortality among the people ;
they shall carefully study the influence of the climate upon diseases
and health in different localities in the State, for the benefit of the
citizens thereof, as well as for the information of that large class
of people who contemplate making this State their temporary or
permanent home; they shall make sanitary investigations and in-
quiries respecting the causes of disease, and especially epidemics;
the causes of mortality and the effects of localities, employments,
conditions, ingesta, habits and circumstances on the health of the
people. They shall, when required or when they deem it best, advise
officers of the government or other State boards in regard to the
location, drainage, water supply, disposal of excreta, heating and
ventilation of any public institution or building, and they shall, either
as a whole board or through a committee of the board or other persons
appointed by them for that purpose, visit and report on the sanitary
condition of all State institutions as often as conditions may require,
but the State Hospital for the Insane, the Penitentiary and the
Soldiers' Home, shall be visited and reported on at least once a year,
said report to become a part of the records of the State Board of
Health, and a copy of said report shall be filed in the office of the
Governor and of the Secretary of State, and also mailed to each
member of the several boards controlling the management, and the
officers in charge of these institutions.
Historical: Laws 1907, 182, Sec. 6.
Cross Reference: Reports of officers
and boards: Sec. 279. >
Rules to Prevent Disease : Penalty for Infraction.
Sec. 1086. Whenever the State Board of Health shall have cause
to believe that there is any danger of cholera, small-pox or other
contagious or infectious disease invading this State or country, it
shall be the duty of said board to take such action, and adopt and
enforce such rules and regulations, as may be necessary to prevent
the introduction of such infectious or contagious disease within this
State, and any person or persons or corporations refusing or neglect-
ing to obey such rules and regulations shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be fined not less
than fifty nor more than three hundred dollars, or imprisoned in the
county jail for not less than thirty nor more than ninety days, or be
punished by both such fine and imprisonment, in the discretion of
the court, for every such offense. And it shall be the duty of all
police officers, sheriffs and constables to enforce such regulations,
subject to the authority of the State health officers. Whenever neces-
sary, the State Board of Health may call public conferences of local
health officers, or may, by a vote of a majority of its members, send
a delegate to any conference of local State or national health officers.
532
POLICE — PUBLIC HEALTH
Tit. 8
Historical: Laws 1907, 182, Sec 7.
"Be punished by" nisei ted to com-
plete the sense.
ARTICLE 2.
COMPILATION OF AITAL STATISTICS.
Section
1087. Reports to board.
Registers of marriages, births
and deaths.
Same: Certified copy to be
filed.
Record of registers.
Same: Abstracts to be certified
to secretary.
1088.
1089.
1090.
1091.
Section
1092. Fees of recorder.
1093. Failure to perform duties:
Punishment.
10 94. Secretarv is registrar of vital
statistics.
Reports to Board.
Sec. 1087. In order to afford the State Board of Health better
advantages for obtaining knowledge important to be incorporated
With that collected through special investigations and from other
sources, it shall be the duty of all officers of the State, the physicians
of all mining or other incorporated companies, the superintendent
or other person in charge of any public, private or parochial hospital,
and the president or agent of any company chartered, organized or
transacting business under the laws of this State, so far as practicable,
to furnish to the State Board of Health any information bearing upon
the public health which may be requested by said board, for the pur-
pose of enabling it better to perform the duties of collecting and
distributing useful knowledge on this subject.
Historical: Laws 1907, 182, Sec. 8.
"The State Board of Health" inserted
for "this board" in line 1.
Registers of Marriages, Births and Deaths.
Sec. 1088. All persons who perform the marriage ceremony must
keep a register of the time and place of each marriage so celebrated,
the residence, the names in full, the place of birth, the age of each
party, and whether either party has ever been before married, and
if so whether divorced. All physicians and professional midwiyes
must keep a register of the date and place of each birth at which
they assist professionally, the name in full, sex, race, color, and the
number of the child, whether living or still-born, and the names,
color, occupation, birthplace, age and residence of parents, the maiden
name of the mother and whether the child was born in or out of
wedlock. Physicians who attend diseased persons in their last sick-
ness, clergymen who officiate at funerals, coroners who hold inquests,
sextons and undertakers who bury deceased persons, must each keep
a register of the date and place of each death, the name, age, sex,
color, conjugal condition, birthplace, cause of death, immediate and
contributory, duration of illness, anl the names, residences and color
of parents.
Historical: Laws 1907, 182, Sees. 9,
10, 11.
Same: Certified Copy to Be Filed.
Sec. 1089. All persons registering marriages, births or deaths,
Ch. 1. Art. 2. STATE BOARD — VITAL STATISTICS 533
must quarterly file with the county recorder a certified copy of their
register: Provided,.. That, if at a birth, no physician or midwife
attend, then it shall become the duty of the father of the child, house-
holder or owner of the premises, or the head of the hospital or in-
stitution in which the birth occurred, in the order named, to make
anl file the certificate, within thirty days after the birth.
Historical: Laws 1907, 182, Sec. 12.
Becord of Registers.
Sec. 1090. The county recorder must provide and keep separate
registers to be known as the "Register of Marriages," the "Register
of Births," and the "Register of Deaths/' in which the marriages,
births and deaths certified to him must be entered and numbered in
the order in which they are reported to him; and must be properly
indexed. There must be stated in each register, in separate columns,
properly headed, the various facts contained in the certificates, and
the name and professional, official or clerical position of the person
making the report. The recorder must carefully examine such report,
and register the same marriage, birth or death but once, although
it may be reported by different persons.
Historical: Laws 1907, 182, Sec. 13.
Same: Abstracts to Be Certified to Secretary.
Sec. 1091. The county recorder must, every three months, trans-
mit to the secretary of the State Board of Health, at Boise, Idaho,
a certified abstract of the registers of marriages, births and deaths,
prepared in the manner prescribed in the instructions of the secretary,
and upon blanks to be furnished by him for that purpose.
Historical: Laws 1907, 182, Sec. 14.
Fees of Recorder.
Sec. 1092. The county recorders shall perform the duties required
of them by this chapter without compensation other than their salary :
Provided, That for a certified copy of the record of a marriage, birth
or death, they shall receive a fee of one dollar, to be paid by the
person to whom such copy is furnished, and reported by them as in
the case of other fees.
Historical: Laws 1907, 182, Sec. 15.
Failure to Perform Duties: Punishment.
Sec. 1093. Any person on whom a duty is imposed by the five pre-
ceding sections, who fails, neglects or refuses to perform the same
as herein required, shall be deemed guilty of a misdemeanor and on
conviction thereof shall be fined not exceeding fifty dollars, or be
imprisoned in the county jail not exceeding ninety days, or be punished
by both such fine and imprisonment.
Historical: Laws 1907, 182, Sec. 16.
"Be punished by" inserted to complete
the sense.
Secretary Is Registrar of Vital Statistics.
Sec. 1094. The Secretary of the State Board of Health shall be
534
POLICE — PUBLIC HEALTH
Tit. 8
the State registrar of vital statistics of Idaho. He shall, under the
direction of the State Board of Health, prepare the necessary methods,
books and forms for the accurate registration of marriages, births
and deaths, as provided in Sections 1088, 1089 and 1091, and must
have printed as many copies as the said secretary shall deem neces-
sary, and shall forward the same, from time to time, in such numbers
as shall be deemed necessary by the said secretary, to the county
recorders of the several counties, who must carefully keep and dis-
tribute the same to the persons in the county who are required to
keep the registers and make the reports provided in this chapter.
Historical: Laws 1907, 182, Sec. 17.
ARTICLE 3.
PREVENTION AND SUPPRESSION OF DISEASE.
Section
1095. Local boards of health.
1096. Meetings and powers of boards.
1097. Suppression of nuisances.
1098. Duties of health officers.
1099. Physicians to report certain
diseases.
110 0. Quarantine of infected houses.
1101. Exposing infected persons or
1102.
articles.
Disinfection of houses.
Section
1103. Disinfection of clothing and
bedding.
Exclusion of exposed persons
from schools.
Hospital for infectious diseases.
Cremation and burial of bodies.
Quarantine of cities and
counties.
Report of sore eyes in infants.
Crimes
1104.
1105.
1106.
1107.
1108.
Notes: Prevention of infectious disease in schools: Sees. 663-666.
against public health and safety, in general: Sees. 6908-6935.
Local Boards of Health.
Sec. 1095. The board of county commissioners, together with the
county physician, shall constitute the county board of health. The
physician of said county board shall be the secretary and executive
officer of the board. The county board of health shall be empowered
to make its own local rules and regulations not inconsistent with
the laws, rules and regulations of the State Board of Health. Any
locality in which there is urgent need of a local board may organize
such local board of health by selecting at least one physician, who
shall be the executive officer of such local board, and two other persons
who may or may not be physicians. Such local board of health shall
act under authority and direction of the State Board of Health. This
section shall not conflict with Chapter 2 of this title.
force, they are reproduced in the next
chapter without regard to any conflict
which may exist between them and
this and the following sections of this
chapter.
Historical: Laws 1907, 182, Sec. 19.
"Chapter 2 of this title" substituted
for "Sections 1150 to 1154, inclusive,
of the Revised Statutes of Idaho of
1887." In view of the fact that those
sections are expressly continued in
Meetings and Powers of Boards.
Sec. 1096. The local board of health of each county and munici-
pality shall meet quarterly in the months of January, April, July
and October, and as much oftener as they may deem necessary, and
may adopt all needful rules and regulations for the government of
their respective bodies, subject to the provisions of this chapter. They
shall establish the salaries of their respective health officers, and
Ch. 1. Art. 3. STATE BOARD — PREVENTION OF DISEASE 535
shall regulate all fees and charges in connection with their own regu-
lations; they shall act in conjunction with the State Board of Health
and report quarterly to said board such facts in reference to the sani-
tary condition of their respective counties or municipalities as they
may deem important or necessary, or as required by the State Board
of Health : Provided, That if there is a regular salaried county phy-
sician, it shall be his duty to attend to all quarantined patients who
are unable to pay, without extra charge, and in no case shall the
fees allowed to physicians for their services as local health officers
exceed the regular fees of physicians for similar services, and no
extra charge shall be made nor allowed in any case for admitting
any patient or releasing him from quarantine.
Historical: Laws 1907, 182, Sec. 20.
Suppression of Nuisances.
Sec. 1097. Such local board of health shall take cognizance of all
unhealthy nuisances within the limits of their sanitary jurisdiction;
and every person or corporation refusing or neglecting, after due
notice, to comply with the requirements of said board in this respect
shall be liable to a penalty of not exceeding fifty dollars or imprison-
ment in the county jail for not more than sixty days, or to both such
fine and imprisonment. All questions arising between local boards
as to jurisdiction or their relative duty in the abatement of any par-
ticular nuisance shall be referred to the State Board of Health for
i settlement.
i Historical: Laws 1907, 182, Sec. 21.
: Duties of Health Officers.
Sec. 1098. It shall be the duty of every county and municipal
health officer, immediately after his appointment, to transmit to the
secretary of the State Board of Health his full name and post office
address. He shall keep accurate record of the proceedings of the
local board of which he is the secretary, as well as his own official
acts, and furnish a report thereof quarterly to the secretary of the
State Board of Health, together with such other information in regard
to the sanitary condition of his jurisdiction as he may deem interest-
ing or valuable for publication in the annual report of the State Board
of Health. He shall receive for his services such reasonable com-
pensation as his board may allow, to be paid out of the county or
municipal treasury, and for every failure or neglect of said health
officer to perform any of the duties prescribed in this chapter, he
shall be guilty of a misdemeanor.
Historical: Laws 1907, 182, Sec. 2 2.
Physicians to Report Certain Diseases.
Sec. 1099. Every physician or other person called to attend any
person who is suffering from small-pox, cholera, plague, yellow fever,
typhus fever, diphtheria, membranous croup, scarlet fever or typhoid
fever, or any other disease dangerous to the public health or required
by the State Board of Health to be reported, shall report the same to
the health officers within whose jurisdiction such person is found,
giving in such report the name, age, sex and color of the patient, and
536 POLICE — PUBLIC HEALTH Tit. 8
the house or place in which such person may be found; and in the
case of small-pox, cholera, plague, yellow fever, typhoid fever, diph-
theria, membranous croup, or scarlet fever, the attending physician
shall at once declare a temporary quarantine, and shall prohibit en-
trance to or exit from such house; such temporary quarantine to
remain in effect only until such time as the proper health officer can
be notified and can act in the matter. In like manner it shall be
the duty of the head of the family, and of the owner or agent of the
owner of the building in which a person resides who has any of the
diseases herein named or provided against, or in which are the re-
mains of a person having died of any such disease, immediately after
becoming aware of the fact, to give notice thereof to the health officer.
When complaint is made or a reasonable belief exists that an infectious
or contagious disease prevails in any house or any other locality which
has not been reported as hereinbefore required, the board shall cause
such house or locality to be inspected by its health officer, and on
discovery that such infectious or contagious disease prevails in any
house or any other locality which has not been reported as herein-
before required, the board shall cause such house or locality to be
inspected by its health officer, and on discovering that such infectious
or contagious disease exists, the board may, as it deems best, send
such person to a quarantine hospital or other place provided for such
persons, or may restrain them or other persons exposed within said
house from intercourse with other persons, and prohibit ingress and
egress to or from such premises.
Historical: Laws 1907, 182, Sec. 23. I is transposed to make the second sen-
The phrase "of the head of the family" I tence clearer.
Quarantine of Infected Houses.
Sec. 1100. It shall be the duty of the local board of health, when
a case of small-pox, cholera, plague, yellow fever, typhus fever, diph-
theria, membranous croup, scarlet fever or any other dangerous,
contagious or infectious disease is reported within its jurisdiction,
to at once cause to be placed, in a conspicuous position on the house
wherein any of the aforesaid diseases occur, a quarantine card having
printed on it in large letters the name of the disease within, and to
prohibit entrance to or exit from such house without written per
mission from the board of health. No person quarantined by a board
of health on account of having a contagious disease, or for having
been exposed thereto, shall leave such quarantined house or place
without the written permission of the board of health. Every phy-
sician attending a person affected with any of the aforementioned
diseases, shall use such precautionary measures to prevent the spread
of the disease as may be required by the board of health. No person
shall remove, mar, deface or destroy such quarantine card, which
shall remain in place until after the patient has been removed from
such house, or has recovered and is no longer capable of communicat-
ing the disease, and the said house and the contents thereof have
been properly purified and disinfected under the directions of the
board of health; and where other inmates of said house have been
exposed to, and are liable to become ill of, any of said diseases, for a
period thereafter, counting from the completing of disinfection, as fol-
Ch. 1. Art. 3. STATE BOARD — PREVENTION OF DISEASE 537
lows, to-wit, in diphtheria and membranous croup, fourteen days;
in small-pox, seventeen days; in scarlet fever, ten days; in cholera
or yellow fever, seven days; in typhus fever, twenty-one days. In
cases of measles, chicken-pox and whooping cough, or either of them,
the board of health may require the same report of cases, and may
enforce the same quarantine and other preventive measures, as are
provided for in this chapter in case of scarlet fever. The board of
health may employ as many persons as it deems necessary to execute
its orders and properly guard any house or place containing any
person or persons affected with any of the diseases named herein,
or who have been exposed thereto, and such persons shall be sworn
in as quarantine guards, shall have police powers, and may use all
necessary means to enforce the provisions of this chapter for the
prevention of contagious or infectious diseases, or the orders of any
local board of health made in pursuance thereof.
Historical: Laws 1907, 182, Sec. 24.
Exposing Infected Persons or Articles.
Sec. 1101. Any person who, while suffering from small-pox,
cholera, plague, yellow fever, diphtheria, membranous croup or
scarlet fever, wilfully or unlawfully exposes himself in any street,
shop, inn, theatre or other public place or public conveyance, or
being in charge of any person so suffering, so exposes such sufferer,
or gives, lends, sells, transmits or exposes, without previous disin-
fection under the direction of the board of health, any bedding, cloth-
ing, rags or other things which have been exposed to infection from
any such diseases, or who knowingly lets for hire any house, room
or part of the house in which any person has been suffering from
any such disease, prior to such house, room or part of the house
having been disinfected by the board of health or under its direction,
shall be liable to a penalty of not exceeding three hundred dollars,
or to imprisonment not exceeding three months, or to both, in the
discretion of the court.
Historical: Laws 1907, 182, Sec. 25.
Disinfection of Houses.
Sec. 1102. When the health authorities of any county or munici-
pality is of opinion, on the certificate of a qualified medical practi-
tioner, that the cleansing and disinfection of any house or part
thereof, and of any articles therein likely to retain infection, would
tend to prevent or check infectious diseases, it shall be the duty of
such authority to give notice in writing to the owner or occupant
of such house or part thereof, requiring him or her to cleanse and
disinfect such house, or part thereof, and articles, within a time
specified in such notice; and if the person to whom such notice is so
given fails to comply therewith, he or she shall be guilty of a mis-
demeanor, and shall be fined not less than five dollars, and the health
authority shall cause such house, or part thereof, and articles, to be
cleansed and disinfected, and may recover the expenses incurred
from the owner or occupant in default as other fines and forfeitures
are recoverable: Provided, That where the owner or occupant of
any such house or part thereof is, from poverty or otherwise, unable,
538 POLICE — PUBLIC HEALTH Tit. 8
in the opinion of such health authority, effectually to carry out the
requirements of this section, such authority may, without enforcing
such requirements on such owner or occupant, cleanse and disinfect
such house or part thereof, and articles, and the municipality or county
in which said house is situated shall defray the expenses thereof.
Historical: Laws 190 7, 182, Sec. 2 6.
Disinfection of Clothing and Bedding.
Sec. 1103. Any local health authority may direct the disinfection
or destruction of any bedding, clothing or other articles which have
been exposed to infection from any dangerous infectious disorder:
Provided, That when any person sustains any damages by reason of
the exercise of any of the provisions of this section in relation to
any matter as to which he is not himself in default, reasonable com-
pensation shall be made by the municipal or county authorities to such
person.
Historical: Laws 1907, 182, Sec. 27.
Exclusion of Exposed Persons From Schools.
Sec. 1104. No person residing in or occupying any house in which
there is a person suffering from small-pox, cholera, plague, typhus
fever, diphtheria, membranous croup, chicken pox, measles, mumps,
whooping cough, or scarlet fever, shall be permitted to attend any
public, private or parochial school or college, or Sunday school, or
any other public gathering, until the quarantine provided for in such
diseases in Section 1100 has been removed by the board of health.
All school principals, Sunday school superintendents or other persons
in charge of such schools, are hereby required to exclude any and
all such persons until such time as they may present a written permit
of the local board of health to attend or re-enter such schools.
Historical: Laws 1907, 182, Sec. 28.
Hospital for Infections Diseases.
Sec. 1105. The municipal or county authorities may, when neces-
sary, provide a hospital for infectious diseases for the use of the
inhabitants of their respective municipality or county, or two or more
local authorities may combine in providing a common hospital for
contagious diseases or a place of detention for persons having
contagious diseases. Any expense incurred by the authorities of
any municipality or county in maintaining in a hospital, or in a tem-
porary place for the reception of the sick, a patient who is not a
pauper, shall be deemed to be a debt due from such patient to the
authorities aforesaid, and may be recovered from him at any time
within twelve months after the discharge from such hospital or place
of reception, or from his estate in the event of his death.
Historical: Laws 1907, 182, Sees. 29
and 30.
Cremation and Burial of Bodies.
Sec. 1106. The bodies of persons who have died of small-pox,
cholera, plague, yellow fever, typhus fever, diphtheria, membranous
croup, scarlet fever or other dangerous, contagious or infectious dis-
ease, shall be buried or cremated within twenty-four hours after
Ch. 2.
COUNTY BOARD OF HEALTH
539
death, unless written permission to the contrary is granted by the
board of health, and no public or church funeral shall be held in
connection with the burial of a person who has died of any of the
above named diseases, and the body of any such person shall not be
taken into any church, chapel or other public place, and only the
adult members of the family and such other persons as are actually
necessary, shall be present at the burial or cremation of the body.
Historical: Laws 1907, 182, Sec. 31.
"Unless written permission to the con-
trary is granted by the board of
health" inserted for "except by written
permission of the board of health."
The latter phrase is obscure and it is
thought that the substitution explains,
without changing, the expressed in-
tent of the section.
Quarantine of Cities and Counties.
Sec. 1107. Whenever small-pox, cholera, plague, yellow fever,
typhus fever, diphtheria, membranous croup, scarlet fever or other
dangerous, contagious or infectious diseases, show a tendency to be-
come epidemic, and the local health authorities neglect or refuse to
properly isolate and quarantine such diseases, the State Board of
Health, or its executive officers, may quarantine any city or county
or part thereof in which any of these diseases may show a tendency
to become epidemic, and the expense of such quarantine shall be
charged against and paid by the county so quarantined, except in a
case where a city or a part thereof is quarantined, when said expense
shall be paid by such city. And in all such cases the local health
authorities may cause all public schools, churches and theatres to be
closed, and all meetings or public assemblies to be prohibited, during
the prevalence of such epidemic.
Historical: Laws 1907, 182, Sec. 32.
Report of Sore Eyes in Infants.
Sec. 1108. Should one or both eyes of an infant become inflamed
or swollen or reddened, or should any pus or secretion form in the
eyes or upon the edge of the lid, at any time within two weeks after
birth, it shall be the duty of any midwife, nurse or other person
having charge of such infant, to report, within six hours after dis-
covery of such inflammation, redness or formation of pus or secretion,
to the local health officers, or to some legally qualified practitioner of
medicine in the district in which such case shall occur, the fact that
such inflammation, swelling or redness or accumulation in the eye
exists. Any failure to comply with the provisions of this section
shall be punished by a fine of not to exceed one hundred dollars, or
imprisonment not to exceed ninety days, or by both fine and im-
prisonment in the discretion of the court.
Historical: Laws 1907, 182, Sec. 33.
CHAPTER 2.
COUNTY BOARD OF HEALTH.
Section
llf,r*. Constitution of board.
1110. Rules to prevent spread of dis-
ease.
1111. Quarantine of infected prem-
ises.
Section
1112. Same: Infected districts.
1113. Expenses: How paid.
540
POLICE — PUBLIC HEALTH
Tit. 8
Note: This chapter should be read in connection with the last article of
the preceding chapter, by which additional duties are imposed on county
boards of health, and by which this chapter is expressly continued in force.
See note to Section 1095.
Constitution of Board.
Sec. 1109. The board of county commissioners of each county
must, biennially at their regular meeting in January, appoint one
intelligent person residing in the county, who must be an experienced
and skillful physician, and the person so appointed, who shall be
known as the county physician, together with such board of county
commissioners, shall constitute a county board of health for the term
of two years, or until their successors be appointed and qualified. Any
vacancy in such board of health caused by death or resignation of such
county physician (who is the executive officer of such board) or by
his refusal to act as a member thereof, must be filled by appointment
by the commissioners. If any county has a physician employed to
care for the indigent sick of such county, such physician must be one
appointed by the board of commissioners, as a member of the board of
health, and every practicing physician in said county is hereby de-
clared to be an advisory member of said board of health.
Historical: Rev. St. 1887, Sec. 1150;
amended Laws 1903, 364, Sec. 1.
Organization of the Board: The or-
ganization of the county board of
health is completed by the appoint-
ment of a physician to act with the
commissioners on such board. Corker
v Pence (1906) 12 Ida. 152; 85 Pac.
388.
Employment of Physician: The in-
dividual action of the chairman of the
board of county commissioners in em-
ploying a physician to look after
small-pox patients does not create a
charge against the county. Castle v.
Bannock Co. (1901) 8 Ida. 124; 67
Pac. 35.
Rules to Prevent Spread of Diseases.
Sec. 1110. Said county board of health must make and establish
for their county, or any district or place therein, such sanitary rules
and regulations as they may deem necessary and proper to prevent
the outbreak and spread of dangerous, contagious and infectious
diseases.
Historical: Rev. St. 1887, Sec. 1151;
amended Laws 1903, 364, Sec. 1.
Cited: Castle v. Bannock Co. (1901)
8 Ida. 124; 67 Pac. 35.
Duration of Rules: The board of
health is a continuing body and its
rules and regulations continue until
supplanted by new ones, notwithstand-
ing a change in the personnel of the
board. Corker v. Pence (1906) 12 Ida.
152; 85 Pac. 388.
Quarantine of Infected Premises.
Sec. 1111. It is the duty of every practicing physician to report
promptly to the county physician of the county in whichhe resides,
all or any dangerous disease of an infectious or contagious nature
under treatment by him, and he is also hereby empowered and re-
quired to at once establish a strict quarantine against such person or
premises by such means as shall seem to him to be sufficient, sub-
ject to revision by the county board of health, and said board must
at once take the necessary precautions to prevent the spread of such
dangerous or infectious disease. Any person violating the pro-
visions of this chapter, or the regulations of said attending physi-
cian, or of the county board of health, is guilty of a misdemeanor.
Ch. 3. Art. 1.
DAIRY, FOOD AND OIL — COMMISSIONERS
541
Historical: Rev. St. 1887, Sec. 1152;
amended Laws 1903, 364, Sec. 1.
Cited: Castle v. Bannock Co. (1901)
8 Ida. 124; 67 Pac. 35.
Same: Infected Districts.
Sec. 1112. The board of health of any county may declare quar-
antine therein or in any particular district or place therein, against
the introduction of dangerous, contagious or infectious disease pre-
vailing in any State, county or place, and of any or all persons and
things liable to spread such dangerous, contagious and infectious
disease. The said county board has authority and power to enforce
such quarantine until the same is raised by themselves, and may
confine such afflicted person or persons liable to spread such danger-
ous, contagious or infectious disease to the house or premises in which
he or she resides, or, if deemed advisable, to a place to be provided
by them for that purpose.
Historical: Rev. St. 1887, Sec. 1153;
amended Laws 1903, 364, Sec. 1.
Cited: Castle v. Bannock Co. (1901)
8 Ida. 124; 67 Pac. 35.
Expenses : How Paid.
Sec. 1113. All necessary expense incurred by the said county board
of health in enforcing the provisions of this chapter must be paid
for out of the general treasury from the current expense fund of
the county, as other bills chargeable against said current expense
fund are audited and paid.
Historical: Rev. St. 1887, Sec. 1154;
amended Laws 1903, 264, Sec. 1.
Cited: Castle v. Bannock Co. (1901)
8 Ida. 124; 67 Pac. 35.
CHAPTER 3.
DAIRY, FOOD AND OIL INSPECTION.
Article
1. Board of dairy food and oil com-
missioners.
Article
2. Standards of food and oil.
3. Miscellaneous provisions.
Note: This chapter contains some sections, similar in modified form, to
sections of the Washington and Oregon laws. See. Bal. An. Code, Wash.
(Sup.) Sees. 2848, et seq. Laws Oregon, 1905, 348. A prior act on the
subject covered by this chapter is found in Laws 1903, 95.
ARTICLE 1.
BOARD OF DAIRY, FOOD AND OIL COMMISSIONERS
Section
Section
1114. Constitution of board.
1115. Compensation and expenses.
1116. Biennial report.
1117. Auditing expenses.
111^. Lorticultural inspector to be
commissioner.
1119.
1120.
1121.
1122.
1123.
Duties of commissioner.
Salary of commissioner.
Duty of attorney general and
prosecuting attorneys.
State chemist.
Board may issue bulletins.
Constitution of Said Board.
Sec. 1114. The Secretary of State, the professor of agriculture
and superintendent of institutes, and one other person appointed by
the Governor of the State, shall hereby constitute a State Board of
Dairy, Food and Oil Commissioners, who, in conjunction with the
State Board of Horticultural Inspection, shall carry out the provisions
542 POLICE — PUBLIC HEALTH Tit. 8
of this chapter, and shall have an equal voice with the State Board of
Horticultural Inspection in selecting the Commissioner and secretary.
Historical: Laws 1905, 54, Sec. 1.
Compensation and Expenses.
Sec. 1115. The State Board of Dairy, Food and Oil Commissioners
shall receive no compensation for their services as such board, but
shall be allowed necessary traveling expenses, and the Commissioner
and secretary shall be allowed traveling, printing and other expenses
not exceeding $1,200 annually. All accounts for expenditures in-
curred or made pursuant to the provisions of this chapter, shall be
approved and certified by the said State Board of Dairy, Food and Oil
Commissioners before presentation to the State Auditor.
Historical: Laws 1905, 54, Sec. 2.
Biennial Report.
Sec. 1116. The State Board of Dairy, Food and Oil Commissioners
shall biennially, on December 1st, report to the Governor of this
State a full account of their official actions under this chapter; also
the operations and results of this or any other laws pertaining to
the dairy industry, foods, drink and illuminating oils in the State;
a full account of all expenses and disbursements of the board; as
full and complete statistics as it is in their power to collect pertain-
ing to the manufacture, import and export of the dairy products
within the State for the biennial term, and shall make suggestions
as to the need of further legislation on this subject.
Historical: Laws 1905, 54, Sec. 3.
iCross Reference: Reports of officers
and boards: Sec. 279.
Auditing Expenses.
Sec. 1117. All expenses incurred under the provisions of this chap-
ter shall be audited as required by law upon bills being presented,
properly certified by the Board of Dairy Food and Oil Commissioners,
and the State Auditor shall, from time to time, draw warrants upon
the State Treasurer for the amounts thus audited.
Historical: Laws 1905, 54, Sec. 4.
Horticultural Inspector to Be Commissioner.
Sec. 1118. The State Horticultural Inspector shall also be the Dairy,
Food and Oil Commissioner.
Historical: Laws 1905, 54, Sec. 5. i ex-officio inspector and sealer of
Cross Reference: Commissioner is weights and measures: Sec. 1541.
Duties of Commissioner.
Sec. 1119. It shall be the duty of the Dairy, Food and Oil Commis-
sioner to enforce all laws that now exist or that may be hereafter
enacted in this State regarding the protection, manufacture or sale of
dairy products, foods, drink, and illuminating oils, and to inspect any
article of milk, butter, cheese, foods, drink, illuminating oils, or imi-
tations thereof, made or offered for sale within the State, which he
may suspect or have reason to believe to be impure, unhealthful, adul-
Ch. 3. Art. 2. dairy, food and oil — standards 543
terated, misbranded or counterfeit, or not complying with this chapter ;
and to prosecute or cause to be prosecuted any person or persons, firm
or firms, corporation or corporations, engaged in the manufacture or
sale of any adulterated, misbranded or counterfeit dairy products,
food, drink or illuminating oil, contrary to law.
Historical: Laws 1905, 54, Sec. 6.
Salary of Commissioner.
Sec. 1120. The Dairy, Food and Oil Commissioner and Horticultural
Inspector shall receive a salary of eighteen hundred dollars per an-
num, one-half of which shall be paid from the funds provided under
this chapter and one-half from the funds provided for horticultural
inspection, and the secretary of the Board of Dairy, Food and Oil
Commissioners shall be the secretary of the State Board of Horticul-
tural Inspection and his salary shall not exceed seven hundred dollars
per annum, one-half of which shall be paid from the funds provided
under this chapter and one-half from the funds provided for horticul-
tural inspection.
Historical: Laws 1905, 5 4, Sec. 7.
Duty of Attorney General and Prosecuting Attorneys.
Sec. 1121. It shall be the duty of the Attorney General or the pros-
ecuting attorney in any county of the State, when called upon by the
Dairy, Food and Oil Commissioner, to render any legal assistance in
their power to execute the laws, and to prosecute cases arising under
the provisions of this chapter.
Historical: Laws 1905, 54, Sec. 8.
State Chemist.
Sec. 1122. The State Board of Dairy, Food and Oil Commissioners
shall have power to appoint a State Chemist, who shall receive a salary
of two thousand dollars per annum, which shall be paid from any
funds in the Treasury of the State of Idaho, not otherwise appropri-
ated, and who shall hold office at the will of the board.
Historical: Laws 1905, 54, Sec. 30;
amended Laws 1907, 337, Sec. 1.
Board May Issue Bulletins.
Sec. 1123. The State Board of Dairy, Food and Oil Commissioners
shall have authority to issue bulletins as often as deemed necessary,
showing a list of analyses made by the State Chemist or other chemist ;
also any other information they may have in regard to the subject
of this chapter.
Historical: Laws 1905, 54, Sec. 31.
ARTICLE 2.
STANDARDS OF FOOD AND OIL.
Section
1124. Sales of impure milk and
cream.
1125. Test of impure milk.
1126. Skimmed milk must be
marked.
Section
1127. Test of cream cheese.
1128. Sale of cheese containing- for-
eign substances unlawful.
1129. Sale of imitation butter pro-
hibited.
544
POLICE — PUBLIC HEALTH
Tit. 8
Section
1138. Vinegar barrels to be marked.
1139. Certain substances prohibited
in vinegar.
1140.. Fire test required of oil, etc.
1141. Sale of alulterated or mis-
branded products prohibited.
Food defined.
1142.
1143.
1144.
1145.
Adulteration defined.
Misbranding denned.
Board may establish standards.
Section
1130. Sales of process butter.
1131. Percentage of fat for butter.
1132. Weight of butter.
1133. Stencil brand for cheese and
butter.
113 4. Baking powders: Ingredients
to be indicated.
1135. Sale of drugged liquor pro-
hibited.
1136. Cider vinegar: Percentage of
solids and acids.
1137. Same: Other vinegars.
Sales of Impure Milk and Cream.
Sec. 1124. It shall be unlawful for any person to sell or offer for
sale or furnish or deliver to any creamery, cheese factory, corpora-
tion, person or persons whatsoever, as pure, wholesome and un-
skimmed, any impure or unwholesome or skimmed milk. No person,
persons or corporation shall sell or offer for sale any cream taken
from impure or diseased milk, or any cream that contains less than
eighteen per centum of pure butter fat.
16.
Historical: Laws 1905, 54, Sees. 9,
Test of Impure Milk.
Sec. 1125. In all prosecutions or other proceedings under this or
any other law of the State relating to the sale or furnishing of milk,
if it shall be proven that the milk sold or offered for sale, or furnished
or delivered, or had in possession with intent to sell or offer for sale,
or to furnish or deliver, as aforesaid, as pure, wholesome or un-
skimmed milk, contains less than three per centum of pure butter
fat, or less than eight per centum of milk solids other than fat, when
subjected to chemical analysis or other satisfactory tests, or that it,
or any part of it, was drawn from cows within fifteen days before,
or four days after, parturition, or from cows having any disease or
ulcers or other running sores, then and in either case the said milk
shall be held and adjudged to be unmerchantable, adulterated, impure
or unwholesome, as the case may be. Also, if it shall appear that
the cows kept for the production of milk or cream, for market or
sale or exchange, or for manufacturing their milk into articles of
food, are kept in a crowded, unsanitary or unhealthy condition, or in
unsanitary stables or enclosures, or are being fed on distillery waste
or other substances in a state of purification or rottenness, or upon
any substance of an unhealthful nature, the milk or cream from
the same is hereby declared impure and unwholesome. Any milk or
cream that has been exposed to or contaminated by emanation, dis-
charges or exhalation from persons or animals, or has been subject
to unclean or unsanitary conditions, or to which has been added any
borax, boracic acid, salicic acid, or any other substance which pre-
vents or tends to prevent the normal bacterial action of milk or
cream, is hereby declared to be impure and unwholesome.
i
Historical: Laws 1905, 54, Sec. 10.
Ch. 3. Art. 2. dairy, food and oil — standards 545
Skimmed Milk Must Be Marked.
Sec. 1126. No person, persons or corporation shall sell or expose
for sale, in any store or place of business or in any wagon or other
vehicle used in the transportation or sale of milk, milk from which
cream has been removed, or milk commonly called "skimmed milk",
without first marking the can or package containing said milk with
the words "skimmed milk" in large plain black letters, each letter
being at least one inch high and one-half inch wide, said words to
be on the side not below the middle of said can or package, where
they can be easily seen.
Historical: Laws 1905, 5 4, Sec. 17.
Test of Cream Cheese.
Sec. 1127. Cream cheese under this chapter shall contain not less
than thirty per centum of pure butter fat and shall have been manu-
factured from pure and wholesome milk, from which no portion of
the butter fat shall have been removed by skimming or by other
process, and in the manufacture of which neither butter nor any
substance for butter, or any animal or vegetable fats or oils, have
been used, or any fat which has been extracted from milk in any
form and returned for the purpose of filling said cheese. All cheese
containing less than thirty per centum of pure butter fat shall be
marked "skimmed cheese" in full face capital letters not less than one
inch high with such ink as is not easily removed by moisture. The
manufacture or sale of any cheese containing less than fifteen per
centum of pure butter fat, or so-called "filled cheese" is hereby pro-
hibited: Provided, That nothing in this section shall be construed
to apply to Edam, Brickstein, Pineapple, Limburger or Swiss cheese,
or hand-made cheese, or any other fancy cheese : Provided, further,
That cheese not made in this State, but which shall be sold or offered
for sale in this State, shall be so stamped as to indicate its true
character: and Provided, further, That no cheese shall be stamped
"full cream" which does not in every particular comply with the
requirements of "full cream" cheese, as hereinbefore set forth.
Historical: Laws 1905, 5 4, Sec. 11.
Sale of Cheese Containing Foreign Substances Unlawful.
Sec. 1128. It shall be unlawful for any person to sell or offer for
sale or exchange, or have in his possession for sale, any cheese con-
taining any substance except salt, rennet and harmless vegetable
coloring matter, other than that produced from pure milk or cream,
or both, or from pure skimmed or pure half-skimmed milk.
Historical: Laws 1905, 54, Sec. 14.
Sale of Imitation Butter Prohibited.
Sec. 1129. No person, by himself, his agents, or his servants, shall
render or manufacture, sell, offer for sale, expose for sale, or have
in his or their possession with intent to sell or serve to patrons, guests,
boarders, or inmates of any hotel, eating house, restaurant, public
conveyance or boarding house or public or private hospital, asylum,
school or eleemosynary or penal institution, any article, product, or
compound made wholly or partly out of any fat, or oil, or oleaginous
546 POLICE — PUBLIC HEALTH Tit. 8
substance or compound thereof, not produced directly and wholly
at the time of manufacture from unadulterated milk or cream from
the same, with or without harmless vegetable coloring matter, which
shall be in imitation of yellow butter produced from pure, unadul-
terated milk or cream from the same: Provided, That nothing in
this chapter shall be construed to prohibit the manufacture and sale
of oleomargarine in a separate and distinct form, and in such manner
as will advise the consumer of its real character, free from coloration
or ingredient which causes it to resemble butter, or the use of the
same by patrons, guests, boarders, or inmates of any hotel, eating
house, restaurant, public conveyance, or boarding house, when signs
are displayed in a conspicuous place that may be easily read from
any part of the room.
Historical: Laws 1905, 54, Sec. 13. , ulent sale of imitation butter: Sec.
Cross Reference: Penalty for fraud- 6917.
Sales of Process Butter.
Sec. 1130. No person, firm or corporation shall manufacture, sell
or offer for sale or have in his- possession with the intent to sell,
butter known as "process butter" unless the package in which the
butter is sold has marked on the side of it the words "renovated
butter" in capital letters one inch high and one-half inch wide, with
ink which is not easily removed : Provided, That it shall be unlawful
for any retailer to sell said butter unless a card is displayed on the
package from which he is selling butter, with the following words
printed thereon, so that it may be easily read by the purchaser, to-wit :
"renovated butter"; or if it is sold in packages on which a wrapper
is used, the words "renovated butter" shall be plainly printed on
each and every wrapper: Provided, further, That. all process butter
shipped from other States shall be subject to the same regulations
as are provided in this section.
Historical: Laws 1905, 5 4, Sec. 15.
Percentage of Fat for Butter.
Sec. 1131. All dairy or creamery butter shall contain not less than
eighty-two and five-tenths per centum butter fat.
Historical: Laws 1905, 5 4, Sec. 19.
Weight of Butter.
Sec. 1132. Each package of butter offered or exposed for sale shall
have stamped upon the wrapper or package, the actual number of
ounces contained in said package. Each square or roll of butter kept,
exposed or offered for sale in the State of Idaho, which is represented
to contain one pound in weight, shall contain full sixteen ounces;
and each square or roll of butter kept or offered for sale in the State
of Idaho, which shall be represented to contain two pounds in weight,
shall contain full thirty-two ounces.
Historical: Laws 1905, 54, Sec. 20.
Stencil Brand for Cheese and Butter.
Sec. 1133. The Dairy, Food and Oil Commissioner is hereby au-
thorized and directed to procure and issue to the butter and cheese
Ch. 3. Art. 2. dairy, food and oil — standards 547
manufacturers of the State, and under any regulations as to the
custody and use thereof as he may prescribe, at the expense of the
party requiring the same not exceeding one dollar, a uniform stencil
brand, bearing the name of the manufacturer and place where manu-
factured, and the words "Idaho State Full Cream Cheese," or "Idaho
State Creamery Butter," or "Idaho State Dairy Butter." Every
brand issued shall be used on the outside of each cheese and package
containing the same, and shall be used on the wrapper of each pack-
age of butter, and also on the outside of every package used by him,
and shall contain a different number for each separate manufactory.
The Commissioner shall keep a book in which shall be registered
the name, location and number of each manufacturer using the said
brand. It shall be unlawful to use or permit such brand to be used
on any other than Idaho full cream cheese, or Idaho creamery butter,
or Idaho dairy butter, or packages containing the same, unless such
cheese or butter has been manufactured within the State of Idaho
from pure milk or cream by the person, persons or firm using said
brand: Provided, That all butter known as "tub butter," that has
been packed or stored in tubs or firkins, which is pressed or printed
into what is known as bricks, pats or rolls, shall have in addition the
words "tub butter" in one-half inch Roman letters stamped or pressed
upon it, or, if wrapped, the wrapper shall be marked in such manner.
All butter sold or offered for sale within the State shall have the
name of the manufacturer and place of manufacture stamped upon
the label.
Historical: Laws 1905, 54, Sec. 18.
Baking Powders : Ingredients to Be Indicated.
Sec. 1134. Every person making, manufacturing or selling, or
offering or exposing for sale, any baking powders, or any mixture
or compound intended for use as a baking powder, shall securely
affix, or cause to be securely affixed, to every box, can, or package
containing such baking powder or like mixture or compound, on a
white or light colored label, upon the outside and face of which is
distinctly printed with black ink, in legible type no smaller than
"brevier heavy Gothic caps," the name and residence of the manu-
facturer and the words "This baking powder is composed of the
following ingredients and none other"; and immediately after said
words shall be printed, in the English language, upon said white
or light colored label, in the color, style and manner above specified,
the true and correct name of each and all ingredients contained in
or constituting a component part of such baking powder, or mixture
or compound intended for use as a baking powder, using the names
by which each ingredient is commonly known in trade.
Historical: Laws 190 5, 5 4, Sec. 23.
Sale of Drugged Liquor Prohibited.
Sec. 1135. No person shall, within this State, by himself, his
servant or agent, or as agent of any other person or corporation,
manufacture, brew, distill, have or offer for sale, or sell any spirituous
or fermented or malt liquors containing any drug, substance or in-
gredient not a normal constituent in spirituous, fermented or malt
548 POLICE — PUBLIC HEALTH Tit. 8
liquors, or which may be deleterious or detrimental to health when
such liquors are used as a beverage. The following drugs, substances
or ingredients shall be deemed to be not normal in spirituous, fer-
mented or malt liquors, and shall be deemed to be deleterious or
detrimental to health when contained in such liquors, to-wit : Cocculus
indicus, chloride of sodium, copperas, opium, cayenne pepper, picric
acide, Indian hemp, strychnine, arsenic, tobacco, darnel seed, extract
of logwood, salts of zinc, copper or lead, alum, methyl alcohol and
its derivitives, amyl alcohol, and any extract or compound of any
of the above drugs, substances or ingredients.
Historical: Laws 1905, 5 4, Sec. 24. the section was obscure, but the in-
"Or as agent" inserted before "of any I terpolation supplies what was prob-
other person," etc. The meaning- of ' ably intended.
Cider Vinegar : Percentage of Solids and Acids.
Sec. 1136. No person, persons, firm, corporation or corporations
shall manufacture, sell or offer for sale as apple cider vinegar, any
vinegar not made exclusively from pure apple juice; nor any other
fruit vinegar not made exclusively from fruit juices. Apple cider
vinegar or fruit vinegar shall contain at least one and three-fourths
per centum of cider vinegar solids, upon full evaporation over boiling
water, and shall contain at least four per centum by weight of acetic
acid.
Historical: Laws 1905, 54, Sec. 25.
Same: Other Vinegars.
Sec. 1137. All vinegars shall be made wholly from the substance
or substances from which they purport to be, or are represented to
be made, and shall contain not less than four per centum by weight
of acetic acid.
Historical: Laws 1905, 54, Sec. 26.
Vinegar Barrels to Be Marked.
Sec. 1138. Each barrel, cask or keg containing vinegar sold, offered
or exposed for sale, in this State, shall be plainly branded or stenciled
with bold-faced black letters and figures, at least one inch in length,
on the head of said barrel, cask or keg, giving the name of the kind
of vinegar contained therein, the name of the substance or substances
from which it is made, and the name and location of the manufacturer
manufacturing the same.
Historical: Laws 1905, 54, Sec. 27.
Certain Substances Prohibited in Vinegar.
Sec. 1139. Every person who manufactures for sale, offers or ex-
poses for sale, or sells, any vinegar containing any preparation of
lead, copper, sulphuric acid, or other mineral acids, or any acid made
from the distillation of wood, or any ingredient injurious to health,
shall be deemed guilty of a misdemeanor.
Historical: Laws 1905, 54, Sec. 28.
i
Fire Test Required of Oil, Etc.
Sec. 1140. No person, persons, firm, corporation or corporations,
shall hereafter import or bring into the State, either personally or
Ch. 3. Art. 2. dairy, food and oil — standards 549
by any clerk, servant or agent, or shall sell, offer for sale, or have
in possession for sale, any illuminating oil adulterated in any manner,
other than benzole, benzine, gasoline, naphtha and distillates, which
on the application of a well lighted taper or similar flame will take
fire and burn at a temperature below that of one hundred and twenty
degrees of Fahrenheit's thermometer. The instrument in which the
degrees of fire test shall be made shall be the G. Tagliabue oil pyro-
meter or some other instrument equally accurate. It is hereby de-
clared to be the true intent and meaning of this chapter that the
terms oil, illuminating oils, oils used for illuminating purposes, and
all similar words, terms and expressions used herein, shall be held
to mean any mineral or petroleum oil, or any fluid or substance which
is the product of such oil or petroleum, or in which such oil or fluid
or substance obtained shall be a constituent part by whatsoever name
or title such oil, fluid, or other substance may be known or called.
Benzole, benzine, gasoline, naphtha, and distillates, must be sold under
their true names and grades, respectively, and such names and grades
must be impressed or otherwise plainly marked upon the barrel, can
or vessel in which the same is sold, offered, or exposed for sale, re-
spectively, or upon a label conspicuously and securely fastened
thereto; and every barrel, can or vessel of kerosene or coal oil that
is offered or exposed for sale, shall be in like manner plainly marked
or labeled with the words "kerosene" or "coal oil," and with the
degree, Fahrenheit, of fire test below which the same will not burn.
Historical: Laws 190 5, 54, Sec. 32.
Sale of Adulterated or Misbranded Products Prohibited.
Sec. 1141. No person or persons, firm or corporation, shall within
this State, manufacture for sale, have in his or their possession with
intent to sell, offer or expose for sale, or sell, any article of food, drink
or illuminating oil, which is adulterated or misbranded within the
meaning of this chapter.
Historical: Laws 1905, 5 4, Sec. 33.
Food Denned.
Sec. 1142. The term "food" as used herein, shall include all articles
used for food, drink, confectionery, or condiment by man, whether
simple, mixed, or compound, and all substances and ingredients used
in preparation of the same.
Historical: Laws 1905, 5 4, Sec. 34.
Adulteration Defined.
Sec. 1143. For the purposes of this chapter an article shall be
deemed to be adulterated:
In the case of confectionery: If it contain terra alba, barytes,
talc, chrome yellow, or other mineral substances, or poisonous colors
or flavors, or other ingredients deleterious or detrimental to health.
In the case of food: 1. If any substance or substances has or
have been mixed and packed with it so as to reduce or lower or
injuriously affect its quality or strength;
2. If any substance or substances has or have been substituted
wholly or in part for the article ;
550 POLICE— PUBLIC HEALTH Tit. 8
3. If any valuable constituent of the* article has been wholly or
in part abstracted;
4. If it contains any added poisonous or other ingredient which
may render such article injurious to the health of the person con-
suming it;
5. If it consists in whole or in part of filthy, decomposed, or
putrid animal or vegetable substance, or any portion of an animal
unfit for food, whether manufactured or not, or if it is the product
of a diseased animal, or one that has died otherwise than by slaughter;
6. If it does not conform to the standard of strength and purity
authorized by this chapter.
Historical: Laws 1905, 54, Sec. 35. terating food, drugs and liquors: Sec.
Cross Reference: Penalty for adul- 6918.
Misbranding Defined.
Sec. 1144. For the purpose of this chapter an article of food shall
be deemed to be misbranded ;
1. If it be offered for sale under the distinctive name of another
article: Provided, That the term "distinctive name" shall not be
construed as applying to any article sold or offered for sale under
a name that has come into general use to indicate the class or kind
of the article, if the name be accompanied on the same label or brand
with a statement of the place where said article has been manufac-
tured or produced;
2. If it be mixed, colored, powdered, or stained in a manner
whereby damage is concealed, so that such product, when sold or
offered for sale, shall deceive or tend to deceive the purchaser;
3. If it be labeled or branded so as to deceive or mislead the
purchaser, or purport to be a foreign product when not so, or is an
imitation, either in package or label, of another substance of a previ-
ously established name, or which has been trade-marked or patented ;
4. If the package containing it or its label shall bear any state-
ment, design or device regarding the ingredients or the substances
contained therein, which statement, design, or device shall be false
or misleading in any particular, or if the same is falsely branded as
to the State, Territory or place in which it is manufactured or pro-
duced.
Provided, however, That an article of food which does not contain
any added poisonous or deleterious ingredients shall not be deemed
to be adulterated or misbranded in the following cases :
1. In the case of mixtures or compounds which may be now or
from time to time hereafter known as articles of food, or ingredients
of articles of food, under their own distinctive names, and not in-
cluded in definition first of misbranded articles of food in this section ;
2. In the case of articles distinctly and conspicuously labeled,
so as to plainly indicate that they are mixtures, compounds, com-
binations, imitations, or blends: Provided, That the same shall be
distinctly and conspicuously labeled so as to show the character and
constituents thereof: And Provided, further, That nothing in this
chapter shall be construed as requiring or compelling proprietors or
manufacturers of proprietary foods which contain no unwholesome
added ingredients to disclose their trade formulas, except in so far
Ch. 3. Art. 3. DAIRY, food and oil — MISCELLANEOUS
551
as the provisions of this chapter may require to secure freedom from
adulteration or imitation: Provided, further, That no dealer shall
be convicted under the provisions of this chapter when he can estab-
lish a guaranty signed by the wholesaler, jobber, manufacturer or
other party from whom he purchases such articles to the effect that
the same is not adulterated or misbranded within the meaning of
this chapter, designating it: And provided, further, That said
guarantor or guarantors reside in the State of Idaho. Said guaranty
to afford protection shall contain the name and address of the party
or parties making the sale of such article to such dealer, and said
party or parties shall be amenable to the prosecutions, fines, and
other penalties which would attach, in due course, to the dealer under
the provisions of this chapter.
Historical: Laws 1905, 54, Sec. 36.
Cross Reference: Penalty for false
labeling of drugs: Sec. 6916.
Board May Establish Standards.
Sec. 1145. The State Board of Dairy, Food and Oil Commissioners
shall have authority from time to time to establish standards of
strength and purity not designated in this chapter, said standards
to be in harmony with the standards authorized by the United States
Department of Agriculture, or by the United States Pharmacopoeia,
as the case may be.
Historical: Laws 1905, 54, Sec. 29.
ARTICLE 3.
MISCELLANEOUS PROVISIONS.
Section
1146. Reports by dairies, creameries
and cheese factories.
Clerks to aid Commissioner.
Samples for analysis to be fur-
nished.
Violations of chapter: Penal-
ties.
1147.
1148.
1149.
Section
115 0. Possession evidence of guilt.
1151. Certificate of chemist prima
facie evidence.
1152. Subpoena for State Chemist.
Reports by Dairies, Creameries and Cheese Factories.
Sec. 1146. The Dairy, Food and Oil Commissioner shall furnish
blanks to all proprietors or managers of creameries, cheese factories
or milk dairies that ship milk, and all vendors and peddlers of milk
and dairy goods handled, and all owners or managers of such cream-
eries and cheese factories, and all milk dairies and all milk vendors,
or milk peddlers, shall fill out the blanks, giving a full and accurate
report of the business done during the year, and send them to the
Dairy, Food and Oil Commissioner before the first day of November
of each year. Every person or corporation who shall engage in the
business of purchasing or dealing in milk shall attach in a per-
manent manner to each can furnished by him or the producer, a
tag containing in plain figures a correct statement of the capacity
thereof.
Any neglect or failure or false statement on the part of the
proprietor or manager of such creamery, cheese factory, dairy, or
milk vendor or milk peddler, shall be considered a misdemeanor, and
552 POLICE — PUBLIC HEALTH Tit. 8
upon conviction thereof the person guilty shall be punished as pro-
vided in Section 1149: Provided, That any information thus fur-
nished shall be published only in such form as to show totals and
averages, and not the details of the business of any individual or
concern.
Historical: Laws 1905, 5 4, Sec. 12. I "shall be punished" to complete the
"The person guilty" inserted before I sense.
Clerks to Aid Commissioner.
Sec. 1147. All clerks, bookkeepers, express agents, railroad of-
ficials, employee or employees of common carriers shall render to the
Dairy, Food and Oil Commissioner, and his deputies, all the assistance
in their power in tracing, finding or discovering the presence of any
article named in this chapter. Any refusal or neglect on the part
of such clerks, bookkeepers, express agents, railroad officials, employee
or employees of common carriers to render such friendly aid, shall be
a misdemeanor.
Historical: Laws 1905, 54, Sec. 21.
Samples for Analysis to Be Furnished.
Sec. 1148. Every person, company, or corporation who manufac-
tures, produces, sells or exposes for sale, in the State of Idaho, any
article of food, drink or illuminating oil, shall furnish, within busi-
ness hours and upon tender and full payment of the selling price,
a sample of such article of food, to any person who shall apply for
such sample to such manufacturer, producer, or person, company,
or corporation selling or exposing for sale as aforesaid, such article
of food, drink or illuminating oil, in sufficient quantity for an analysis
of any such article or articles in his possession.
Historical: Laws 1905, 54, Sec. 37. i "who shall apply" are transposed to
The words "for such sample" after make the section clearer.
Violations of Chapter: Penalties.
Sec. 1149. Any person, manufacturer, producer, or dealer who re-
fuses to comply, upon demand, with the requirements of the pre-
ceding section, or who shall obstruct the Dairy, Food and Oil Com-
missioner in the performance of his duties under this chapter, or
whoever violates any of the provisions of this chapter, shall be guilty
of a misdemeanor, and upon conviction, shall be fined not exceeding
one hundred dollars, nor less than twenty-five dollars, or imprisoned
not exceeding ninety nor less than thirty days, or both. Any person
found guilty of manufacturing or offering for sale, or selling, any
adulterated, impure, or misbranded article of food, drink or illuminat-
ing oil, in violation of the provisions of this chapter shall be adjudged
to pay, in addition to the penalties hereinbefore provided for, all
the necessary costs and expenses incurred in inspecting and analyzing
such adulterated or misbranded articles, which said person may have
been found guilty of manufacturing, selling or offering for sale. And
in addition thereto, such adulterated, impure, or misbranded article
or articles, shall be confiscated, and upon the order of any court of
competent jurisdiction, the Commissioner shall destroy the same:
Provided, That in case the legal disability which exists against such
article, or articles, is one which can be removed by proper labeling,
Ch. 4.
INSPECTION AND SUPPRESSION OF DISEASE
553
the Commissioner shall sell the same and pay the proceeds into
the State Treasury, where they shall be placed to the credit of the
dairy, food and oil fund.
Historical: Laws 1905, 54, Sec. 38.
Possession Evidence of Guilt.
Sec. 1150. Possession by any person or firm of an article or sub-
stance the sale of which is prohibited by this chapter, shall be con-
sidered prima facie evidence that the same is kept by such person
or firm in violation of the provisions of this chapter, and the Com-
missioner shall be authorized to seize upon and take possession of
such article or substance, and upon the order of any court of com-
petent jurisdiction, he shall dispose of the same as provided in the
preceding section.
Historical: Laws 1905, 54, Sec. 39.
Certificate of Chemist Prima Facie Evidence.
See. 1151. In all prosecutions arising under this chapter, the cer-
tificate of the chemist making the analysis or testing, when duly
sworn to by such analyst, shall be prima facie evidence of the fact
or facts therein certified.
Historical: Laws 1905, 54, Sec. 22.
Subpoena for State Chemist.
Sec. 1152. In any prosecution under this chapter, whenever the
Dairy, Food and Oil Commissioner shall certify that the presence of
the State Chemist is necessary as a witness in the trial of the cause,
the judge of the court, or the probate judge of the county wherein
such trial shall be held, shall issue a subpoena for his attendance
at the trial ; and it shall . be the duty of the State Chemist to obey
said subpoena, and all his actual and necessary expenses shall be paid
by the county wherein said trial was held in the same manner that
county officers are paid, and in case of conviction, shall be charged
to the defendant as part of the costs of the prosecution.
Historical: Laws 1905, 54, Sec. 40.
THE LIVESTOCK INDUSTRY
CHAPTER 4.
INSPECTION AND SUPPRESSION OF DISEASES AMONG LIVESTOCK.
Article
1. The Livestock Sanitary Board.
2. State Veterinary Surgeon and
livestock inspectors.
3. Treatment of diseased animals.
4. Restrictions on the importation
of livestock.
5. Inspection of sheep.
Article
6. Extermination of predatory ani-
mals.
7. General provisions relating- to the
inspection of animals.
8. Regulations governing diseased
animals.
Note: The subject matter of this chapter has been a fruitful source
of legislation, which, until the enactment of the 1905 law herein con-
tained, was confined to the inspection and sanitary regulation of sheep.
Rev. St. 1887, Sees. 1213-1222, authorized the appointment of sheep com-
554
POLICE — LIVESTOCK
Tit. 8
missioners in each county, who were intrusted with the duty- of inspecting
bands of sheep therein. These sections were superseded by Laws 1893, 79,
which, however, perpetuated the same system with additional provisions.
The latter act was in turn repealed by Laws 1895, 124, which inaugurated
the present system of State inspection, providing for the appointment of
a State Inspector and deputies. The act of 1895 was re-enacted, with the
exception of certain sections which had been held unconstitutional, by
Laws 1899, 184, but was repealed by Laws 1899, 352. An act of 1901
(Laws 1901, 142) repealed this latter act of 1899. Some sections of the
1901 law are still in force as will appear from the historical notes under
various sections of this chapter. The act of 1905 (Laws 1905, 39) which,
as said above, forms the basis of this chapter, for the first time applied
the inspection and quarantine regulations to cattle and other animals,
and repealed such sections of the 1901 sheep law as created the office of
sheep inspector and deputy inspectors, leaving the other sections in force
in so far as they were not inconsistent or in conflict with the 1905 law,
and imposing the duties of sheep inspector and deputy sheep inspectors
on the Veterinary Surgeon and his assistant, and the livestock inspectors
created by the 1905 law. This engraftment of one law upon another
has made the compilation of this chapter the most difficult of any in the
Codes, and the result is, to the Commissioner, the least satisfactory. It
is believed, however, that the material substance of the 1901 law is pre-
served in this chapter, omitting those sections which are repeated ver-
batim, or the subject matter of which is completely covered, by the
1905 law.
The article on predatory animals was tacked to the 1905 law in 1907,
and Article 8, concerning diseased animals, is an independent act of 1903.
The references are given in the historical notes.
ARTICLE 1.
THE LIVESTOCK SANITARY BOARD.
Section
1153. Constitution of Board.
1154. Compensation and general
duties.
1155. Allowance of bills.
Section
1156. Sanitary Board may prescribe
rules.
1157. Annual report.
Constitution of Board.
Sec. 1153. The Governor is authorized to appoint a State Live-
stock Sanitary Board consisting of seven members, one from each
judicial district of the State; three members from the cattle interests;
three members from the sheep interests, and one member from the
horse interests in this State. The members of said board, before
entering upon their duties, shall take the oath of office and file the
same with the Secretary of State. All members shall be appointed
for a term of two years, four being appointed in each odd numbered
year, and three in each even numbered year: Provided, That the
present members of said board shall continue to hold office for the
remainder of their respective unexpired terms. The board shall
select one of their number president and shall appoint a secretary
for the board.
Historical: Laws 190 5, 39, Sec. 1.
Omitting the provision for the ap-
pointment of the first board, and re-
written to preserve the constitution
of the present board.
Constitutionality: The act which
commences with this section is con-
slitutional. Noble v. Bragaw (1906)
12 Ida. 265; 85 Pac. 903.
Compensation and General Duties.
Sec. 1154. The members of said Sanitary Board shall receive no
compensation for their services, but must be allowed their actual
hotel and traveling expenses incurred by them while engaged in the
performance of their duties, to be paid out of the fund hereinafter
created to be known as the livestock sanitary fund. The secretary
Ch. 4. Art. 2. inspection, etc. — livestock inspectors
555
shall be paid a salary of six hundred dollars per annum, payable
monthly, out of said fund.
It is hereby made the duty of said board to exercise a general
supervision over, and so far as may be, to protect the livestock in-
terests of the State from losses from theft and disease, and to devise
and recommend from time to time such legislation as in their judg-
ment will foster and promote this industry.
Historical: Laws 1905, 39, Sec. 2.
Allowance of Bills.
Sec. 1155. All bills for expenses incurred under the provisions
of this chapter shall be certified by the Sanitary Board to the State
Board of Examiners, and when allowed by them shall be paid by
warrants drawn on the livestock sanitary fund in the State Treasury.
Historical: Laws 1905, 39, Sec. 3.
Sanitary Board May Prescribe Rules.
Sec. 1156. The Livestock Sanitary Board, with the State Veterin-
ary Surgeon, is hereby empowered to make all needful rules and
regulations for the proper enforcement of this chapter.
Historical: Laws 1905, 39, Sec. 34.
Annual Report.
Sec. 1157. The board shall make an annual report, in writing, to
the Governor, on or before the first day of December of each year,
and must state therein the transactions of the board for the previous
year.
Historical: Laws 1905, 3 9, Sec. 4.
Cross Reference: Reports of of-
ficers and boards: Sec. 279.
ARTICLE 2.
STATE VETERINARY SURGEON AND LIVESTOCK INSPECTORS.
Section
1158. Veterinary Surgeon: Appoint-
ment and qualifications.
Duties of Veterinary Surgeon.
Same: Quarantine of infected
premises.
Same: Slaughter of diseased
animals.
Same: Compensation need not
be made: Destruction of car-
casses.
Report by Veterinary Surgeon.
Appointment of assistants.
Livestock inspectors: Ap-
pointment.
Same: Examination.
1159.
1160.
1161.
1162.
1163.
1164.
1165.
1166.
Section
1167. Duties of livestock inspectors.
1168. Same: Quarantine of diseased
animals.
1169. Supervision by State Veter-
inary Surgeon.
1170. Inspectors to keep record.
1171. Report of inspectors.
1172. Official misconduct: Penalty.
1173. Power to administer oaths:
Perjury.
1174. Inspectors may make arrests:
Conduct of prosecutions.
1175. Duplicate receipts for money
received.
Veterinary Surgeon: Appointment and Qualifications.
Sec. 1158. The Governor is authorized to appoint a State Veterin-
ary Surgeon, who shall hold his office for a term of two years, unless
sooner removed for incompetency or neglect of duty. Said appointee
shall be a graduate of some recognized college of veterinary surgery
556
POLICE — LIVESTOCK
Tit. 8
of good standing and repute. Said Veterinary Surgeon shall receive
an annual salary of eighteen hundred dollars, to be paid monthly
as the salaries of other State officers are paid. He must, before en-
tering upon the duties of his office, take the official oath and execute
a bond in the sum of five thousand dollars, to be approved by the
Governor and filed with the Secretary of State. Said Veterinary
Surgeon shall be allowed his actual and necessary traveling expenses,
to be audited by the State Board of Examiners, in an amount not
exceeding in the aggregate, one thousand dollars per annum, to be
paid out of the livestock sanitary fund.
Historical: Laws 1905, 39, Sec. 5.
"The livestock sanitary" inserted for
"said" fund in the last line. There
can be no doubt that that was the
fund intended.
Duties of Veterinary Surgeon.
Sec. 1159. It shall be the duty of the State Veterinary Surgeon
to investigate all cases of contagious and infectious diseases among
horses, cattle, sheep, goats, mules, asses and swine in the State,
which may come to his knowledge, and to make official visits of in-
spection to any locality where such diseases exist, or where he has
information or reason to believe such diseases do exist ; also, to inspect
or cause to be inspected all such animals as may be brought into
this State in any manner, or by whatsoever means, from any other
State, Territory or foreign country, and particularly from any locality
included or defined in any proclamation issued by the Governor,
establishing a quarantine of any of the classes of animals enumerated
herein. The said Veterinary Surgeon shall have the same power
within the entire State as the livestock inspectors appointed by him
have in their respective districts, and where the services of the
Veterinary Surgeon are demanded in a county or district other than
that in which he resides, to settle differences between sheepmen
and any livestock inspector, it shall be the duty of the said Veterinary
Surgeon to go and adjust such differences, and the said party or
parties demanding such services shall pay the actual traveling ex-
penses of said Veterinary Surgeon.
Said Veterinary Surgeon shall devote his entire time to the work
of his office, to the exclusion of private business, and he may be
removed by the Governor for inattention to duty or incompetency.
Historical: Laws 1905, 39, Sec. 6,
combined with the second paragraph
of Laws 1901, 142, Sec. 2, in which
the words "State Sheep Inspector"
are changed to "Veterinary Surgeon"
and "deputies" to "live stock in-
spectors" as provided in the act
of 1905.
Same: Quarantine of Infected Premises.
Sec. 1160. In all cases of contagious or infectious diseases among
any animals mentioned in this chapter, the Veterinary Surgeon has
authority to order a quarantine of the infected premises, and in case
such disease becomes epidemic in any locality in this State, he must
immediately notify the Governor, who must thereupon issue a proc-
lamation forbidding any animal of the kind among which such epi-
demic exists being transferred from said locality, which locality shall
be defined in said proclamation, without a certificate from the Vet-
erinary Surgeon snowing such animal to be in good health. The
expenses of holding, feeding and taking care of all animals quaran-
Ch. 4. Art. 2. INSPECTION, ETC. — LIVESTOCK INSPECTORS 557
tined under the provisions of this chapter must be paid by the owner,
agent or person in charge of such animals.
Historical: Laws 1905, 39, Sec. 7.
Same : Slaughter of Diseased Animals.
Sec. 1161. In case of any epidemic of disease where premises have
been previously quarantined, the Veterinary Surgeon is authorized
and empowered, when in his judgment necessary, to cause the slaugh-
ter of any and all such diseased animals upon said premises, and to
continue in quarantine all such animals as have been exposed to con-
tagion or infection. The order to slaughter such animals must be
in writing and in duplicate, and there must be a separate order and
duplicate for each owner of the animals so condemned and slaugh-
tered. The original of such order shall be filed by the Veterinary
Surgeon with the auditor of the county, and the duplicate given to
the owner.
Historical: Laws 1905, 39, Sec. 8.
Same: Compensation Need Not Be Made: Destruction of Carcasses.
Sec. 1162. Any of the animals of the classes hereinbefore enumer-
ated which shall be or become infected with any incurable disease,
shall possess no property value and may be condemned and destroyed
without compensation to the owner, and it is the duty of the Veteri-
nary Surgeon, or his assistant, or the livestock inspector, to superin-
tend the slaughtering of such animals as may be condemned, and
the destruction of the carcasses, which latter shall be burned to ashes
or buried in the earth to a depth of not less than six feet, and be
covered with lime or coal oil.
Historical: Laws 1905, 39, Sec. 9.
Report by Veterinary Surgeon.
Sec. 1163. The Veterinary Surgeon must make an annual report,
on or before the fifteenth day of November, to the State Sanitary
Board, of all matters connected with his work for the previous year,
and the board must make the same a part of their annual report
to the Governor. They must also transmit to the several boards
of county commissioners such parts of the report as they consider
necessary and of general interest to the breeders of livestock.
Historical: Laws 1905, 3 9, Sec. 10.
Appointment of Assistants.
Sec. 1164. The State Veterinary Surgeon may appoint assistant
veterinary surgeons, not exceeding two in number, to act in case
of emergency, who shall receive compensation for actual time en-
gaged, not to exceed five dollars per day and actual and necessary
hotel and traveling expenses, to be paid out of the livestock sanitary
fund. They shall take the oath of office and give bond in the sum
of two thousand dollars, to be approved by the president of the State
Sanitary Board and filed with the Secretary of State.
Historical: Laws 1905, 39, Sec. 13.
558 POLICE— LIVESTOCK Tit. R
Livestock Inspectors: Appointment.
Sec. 1165. The Sanitary Board shall divide the State into as many
districts as may be deemed necessary and the State Veterinary Sur-
geon shall appoint one or more livestock inspectors for each district.
Such livestock inspectors shall receive compensation to be fixed by
the State Sanitary Board not to exceed five dollars per day, to be
paid monthly out of the livestock sanitary fund. Such inspectors
shall take the oath of office and shall give bond in the sum of two
thousand dollars, to be approved and filed as provided in the last
section. Such assistant veterinary surgeons, and such inspectors
shall hold office during satisfactory service, but shall be removable
by the State Veterinary Surgeon for cause.
Historical: Laws 190 5, 39, Sec. 14.
Same : Examination.
Sec. 1166. The State livestock inspectors shall be appointed after
an examination to be conducted in the following manner : The
State Veterinary Surgeon shall furnish to the members of the Sani-
tary Board for each judicial district a list of questions to be submitted
to the candidates for positions as livestock inspectors. Such member
of the board shall, after publication in some newspaper published in
each county in his district for a period of two weeks designating a
time and place for such examination, examine such applicant upon
said questions, and take his answers in writing and forward both
questions and answers to the State Veterinary Surgeon, who shall
thereafter appoint, as inspectors for said district, those persons whom
he shall deem, from such examination, best qualified for said office.
Historical: Laws 1905, 39, Sec. 15.
Duties of Livestock Inspectors.
Sec. 1167. The livestock inspector must inspect all livestock in
his district and in case he finds the same are free from disease, but
not otherwise, he shall issue a certificate stating such fact; but if he
finds such livestock are diseased, or have been herded upon the range
or in corrals which have, within the thirty days previous, been used
or occupied by any diseased or infected livestock, he shall forthwith
quarantine the same and notify the State Veterinary Surgeon. Such
inspector or the Veterinary Surgeon or his assistant, shall personally
supervise the dipping of all animals herein enumerated within their
respective districts, and shall fix a day for each and every dipping, and
are hereby authorized to determine and decide the proportions of
material and the component parts of the mixture used in such dip.
Historical: Laws 1905, 39, Sec. 16.
Same : Quarantine of Diseased Animals.
Sec. 1168. Upon receipt by the Veterinary Surgeon, assistant sur-
geon or inspector, of information in writing that animals of the
classes mentioned in this chapter are diseased, the said Veterinary
Surgeon, assistant surgeon or inspector, shall immediately cause such
diseased animals and all animals running with them, or in the same
band or herd, to be quarantined and held within a certain boundary
to be defined by him, until such disease has been eradicated.
Ch. 4. Art. 2. INSPECTION, ETC. — LIVESTOCK INSPECTORS 559
Historical: Laws 1905, 39, Sec. 17.
Supervision by State Veterinary Surgeon.
Sec. 1169. The assistant veterinary surgeons, and the livestock
inspectors shall be under direct control of the State Veterinary Sur-
geon, and answerable to him for any neglect of duty enjoined upon
them by this chapter.
Historical: Laws 1905, 3 9, Sec. 25.
Inspectors to Keep Record.
Sec. 1170. Every inspector appointed under the provisions of this
chapter must keep a book to be known as the inspection record, in
which he must enter and record all his official acts as such inspector.
Such record must particularly show the names of the owner of every
animal, band or flock so inspected and the number in such band,
herd or flock; the result of such inspection, the names of persons
to whom certificates have been granted and when, the brands upon
said livestock and all orders and directions made by him in relation
to matters herein designated.
Historical: Laws 1905, 39, Sec. 26.
Report of Inspectors.
Sec. 1171. Every inspector must, on or before the first day of
November of each year, report to the State Veterinary Surgeon, in
writing, showing from his inspection records the matters therein
contained since his last report, and the Veterinary Surgeon must
embody such of said information as he shall deem of importance in
his report to the Livestock Sanitary Board.
Historical: Laws 1905, 39, Sec. 27.
"Livestock Sanitary Board" inserted
for "Governor" at the end of the
• ction. The Veterinary Surgeon re-
ports to the Sanitary Board (Sec.
1163), and the board reports to the
Governor (Sec. 1157).
Official Misconduct: Penalty.
Sec. 1172. Any officer appointed under the provisions of this
article, who, by virtue of the power conferred upon him by such
appointment, oppresses, wrongs or injures any person, is guilty of
a misdemeanor, and, upon conviction thereof, shall be punished by
a fine of not less than one hundred dollars, nor more than one thousand
dollars.
Historical: Laws 1905, 39, Sec. 28.
Power to Administer Oaths: Perjury.
Sec. 1173. The State Veterinary Surgeon and his assistants, and
the livestock inspectors appointed under this article, shall have
the power to administer oaths so far as the same may be necessary
in the proper performance of their duties, and any person who shall,
contrary to said oath, state as true any material thing which he
knows to be false, is guilty of perjury.
geon" and "deputies" to "assistants"
and "livestock inspectors," to con-
form to Laws 1905, 39.
Historical: Laws 1901, 142, Sec. 7.
The words "State sheep inspector"
changed to "State Veterinary Sur-
Inspectors May Make Arrests: Conduct of Prosecutions.
Sec. 1174. The assistant veterinary surgeons and all livestock in-
Vol. 1—19
560
POLICE— LIVESTOCK
Tit. 8
spectors are hereby given the power, and it is made their duty, to arrest
and bring before a justice of the peace, or other court having juris-
diction of the same, all persons found violating any of the provisions
of this chapter, where a complaint shall be filed by such livestock
inspector, either upon his own knowledge or upon the information
of such violation; whereupon a hearing shall be had as in other like
criminal cases; and such livestock inspectors are hereby vested with
the same authority to arrest and to require aid, in the execution of
their said office, as sheriffs and their deputies of the several counties
of the State : Provided, That the provisions of this chapter, requiring
the livestock inspector to prosecute for a violation of the provisions
hereof, shall not be construed so as to prevent such prosecution from
being commenced and prosecuted by other persons as criminal actions
are commenced and prosecuted in other cases.
The assistant veterinary surgeons and livestock inspectors, as
full compensation for their services in prosecutions under this chap-
ter, shall be allowed five dollars per day, and the same shall be assessed
as costs in the case against the defendant.
Historical: Laws 1901, 142, Sec. 27.
The words "deputy sheep inspector"
changed to "assistant veterinary sur-
geons" and "livestock inspectors,"
to conform to Laws 1905, 39.
Duplicate Receipts for Money Received.
Sec. 1175. Whenever the Veterinary Surgeon, any assistant sur-
geon of any inspector shall be paid or shall receive any moneys
provided to be paid under this chapter, he shall make out a receipt
therefor in duplicate, giving one receipt to the party making such
payment and forwarding the other, within five days thereafter, to
the State Auditor to be filed and preserved in his office, and shall
within the same time, forward all such sums to the State Treasurer,
taking his receipt therefor in duplicate, preserving one such with
the records of his office, and forwarding the other to the State Auditor
within five days after the receipt thereof from the State Treasurer.
All money so received shall be placed in the livestock sanitary fund.
Any officer failing to comply with the provisions of this section shall
be deemed guilty of embezzling such sum, and shall be punished as
is by law provided for such offense, and shall forthwith be removed
from office.
Historical: Laws 1905, 39, Sec. 37.
ARTICLE 3.
TREATMENT OF DISEASED ANIMALS.
Section
1176. Scab among animals: Dip-
ping: Quarantine.
1177. Refusal to dip animals:
Treatment by inspector.
1178. Expense of dipping a lien:
Enforcement.
1179. Quarantine of lambing sheep.
1180. Same: To be hand dressed or
spotted.
Section
1181. Failure to dip sheep: Punish-
ment.
1182. Veterinary Surgeon may re-
quire all sheep to be dipped.
1183. Disease on the range: Quar-
antine of horses and cattle.
Scab Among Animals: Dipping: Quarantine.
Sec. 1176. Whenever, upon the examination of any of the classes
Ch. 4. Art. 3. INSPECTION, ETC. — TREATMENT OF DISEASES
561
of animals enumerated in this chapter, kept or herded in any county
of this State, the State Veterinary Surgeon, or his assistants or any
inspector, shall find such animals or any portion of them affected
or infected with the scab, or scabbies, or any other infectious or
contagious disease, the entire band or herd shall be considered as
infected and treated as such, and such Veterinary Surgeon, assistant
or inspector, as the case may be, shall immediately quarantine the
same and forthwith notify the owner or persons in charge of said
animals, in writing, of such quarantine; and the officer taking said
animals in charge may cause the same to be dipped, twice if necessary,
and, during such period, keep such animals free from contact with
other animals not affected by such means as he shall specify.
Provided, That in the case of any animals, which on account of their
condition, or by reason of inclemency of the weather, shall be, in
the opinion of the State Veterinary Surgeon, his assistant or deputy,
unfit or unsafe to dip; then such officer may authorize such owner
or controller to place such animals in a corral, field or feed yard,
where such animals shall be kept free from contact with other ani-
mals until such time as they are in a condition to dip. Such owner
or controller shall be responsible for any or all damages which shall
be sustained by any person by reason of such animals coming in
contact with healthy animals. Any person or persons so allowed
to keep such animals in such corral, field or feed yard, who shall
wilfully or knowingly take or permit to be taken any such animals
from such corral, field or feed yard, except as the same shall, by the
inspector, be directed or permitted to be taken to the dip works, shall
upon conviction thereof, be punished by a fine of not less than one hun-
dred dollars, nor more than two thousand dollars, or by imprisonment
not to exceed six months, or by both such fine and imprisonment.
Historical: Laws 1905, 39, Sec. 22.
Refusal to Dip Animals: Treatment by Inspector.
Sec. 1177. Should any owner or person in charge of any animal
or animals found to be infected with disease, upon examination by
the Veterinary Surgeon, assistant surgeon or inspector, fail or refuse
to dip the same, or do so in an improper manner, it shall be the duty
of such officer to seize said animals and to dip the same, and when
the same shall have been dipped, he shall notify the owner or person
in charge of such animals of the amount of costs, charges and ex-
penses due for the same. If such person in charge shall neglect or
refuse for a period of ten days after receiving said notice to pay the
same, together with all further costs, charges and expenses of holding
said animals, it shall be the duty of said inspector to sell, in the
manner provided in this chapter, so many of said animals as shall
be necessary to pay the same, and all costs and expenses of said sale.
Cross Reference:
Sec. 1186.
Sales of animals:
Historical: Laws 1905, 39, Sec. 23.
Provided in this chapter" substitut-
for "hereinbefore in this act pro-
d" in view of altered arrange-
it of sections.
Expense of Dipping a Lien : Enforcement.
Sec. 1178. All expenses incurred incident to the dipping and plac-
562
POLICE — LIVESTOCK
Tit. 8
ing in quarantine of any of the animals enumerated in this chapter,
including a compensation of five dollars per day for every day or part
of day in which the Veterinary Surgeon or his assistant or inspector
may be engaged in dipping any of said animals, shall be borne by the
owner of such animals, and such expense shall be, and is hereby
made, a first lien upon said animals, and if the same is not paid
within ten days after notice to such owner, his agent, or the person
in charge, the said officer shall sell, at public auction, in the manner
provided for sales under executions out of the District Court, so
many of said animals as shall be necessary to realize sufficient money
to pay such expenses, together with the costs and charges of the sale.
Historical: Laws 1905, 39, Sec. 24.
The phrase "shall be borne by the
owner of such animals" is transposed
for grammatical reasons. "For sales"
is inserted before "under executions
out of the District Court."
Cross Reference: Sales under ex-
ecution: Sees. 4481-4489.
Quarantine of Lambing Sheep.
Sec. 1179. When any sheep are, on account of lambing, in the
opinion of the State Veterinary Surgeon, his assistant or deputy,
unfit or unsafe to dip, such officer may authorize the owner or con-
troller thereof to place such sheep in a corral, field or feed yard, where
such animals shall be kept free from contact with other animals
until such time as they are in a condition to dip. Such owner or
controller shall be responsible for any or all damages which shall
be sustained by any person by reason of such animals coming in
contact with healthy animals.
Historical: Laws 1905, 39, part of
Sec. 2 2. The section is contained in
full in Sec. 1176 ante. The part of
the section contained above, is here
repeated in a slightly modified form
applicable only to lambing sheep, in
lieu of Laws 1901, 142, Sec. 12, which
is superseded by this part of the sec-
tion, in order to give a setting to the
following section, taken from the
1901 law, which is not inconsistent
with any provision of the 190 5 law.
This section is really a composite of
Laws 1901, 142, Sec. 12, and Sec. 22
of the 1905 law. The 1901 law left
the dipping of lambing sheep to the
discretion of the owner, while the
1905 law entrusted the determination
of that question to the Veterinary
Surgeon and inspectors. To have
omitted, in this place, a section cor-
responding to Sec. 12 of the 1901
law, would have rendered the follow-
ing section unintelligible, and would
not have fairly preserved so much
of the 1901 law as is left in force.
Same: To Be Hand Dressed or Spotted.
Sec. 1180. It shall also be the duty of the assistant veterinary
surgeon or livestock inspector to require the owner, owners or con-
trollers of sheep, while held in quarantine during the period men-
tioned in the preceding section, to spot or hand dress all sheep in their
band or bands that show any scab, or any contagious or infectious
disease, with some reliable medicine, and such assistant veterinary
surgeon or livestock inspector shall have the power to enforce such
hand dressing or spotting during the period above referred to, the
same as they have power to enforce dipping at any other period of
the year, as provided in this chapter.
Historical: Laws 1901, 142, Sec. 13.
The words "deputy sheep inspector"
changed to "assistant veterinary sur-
geon" or "livestock inspector," to
conform to Laws 1905, 39.
Failure to Dip Sheep: Punishment.
Sec. 1181. The owner or owners or controller of any sheep or the
Ch. 4. Art. 3. inspection, etc. — treatment of diseases 563
assistant veterinary surgeon or livestock inspector, or persons ap-
pointed by either of them, who shall fail to dip said sheep as required
by the provisions of this chapter, shall be guilty of a misdemeanor,
and upon conviction thereof shall be punished by a fine of not less
than three hundred dollars, nor more than five hundred dollars, or
by imprisonment in the county jail for a period of not less than two
months nor more than six months, or by both such fine and imprison-
ment.
geon or livestock inspector," to con-
form to Laws 1905, 39.
Historical: Laws 1901, 142, Sec. 11.
The words "deputy inspector"
changed to "assistant veterinary sur-
Veterinary Surgeon May Require All Sheep to Be Dipped.
Sec. 1182. With the object of eradicating scab and any other con-
tagious or infectious disease among sheep, the State Veterinary Sur-
geon is empowered to require all sheep to be dipped once during each
year, whether the same are diseased or not, and in case of diseased
animals, as often as, in his judgment, such dipping may be required.
Historical: Laws 1905, 39, Sec. 38.
Disease on the Range: Quarantine of Horses and Cattle.
Sec. 1183. If any infectious disease is prevalent on any range, the
State Veterinary Surgeon is hereby empowered to declare a quaran-
tine for all horses or cattle or both exposed to such epidemic within
a certain area or distance or country to be defined by him, and to
require the owners or persons in charge of any horses or cattle or
both running on the range within said area, district or country, so
defined, to assemble all range horses or cattle, or both, so owned or
held in charge by them, at a designated point or place in said district
or country, on a date or dates to be specified, for the purpose of dip-
ping the same, and it is hereby made the duty of all such persons to
drive, or procure to be driven, all range horses or cattle, or both, as
required, owned by them or under their control, to the designated
point or place and at the time mentioned, and there to dip the same.
Notice of the time and place where said animals will be dipped shall
be given by the State Veterinary Surgeon by publication in one or
more newspapers published within the area, district or country spec-
ified, which notice shall specify the time and place where such dip-
ping shall be had. Said notice shall be published for a period of
thirty days before the date set. The cost of such dipping shall be
fixed by the State Veterinary Surgeon, and shall be a first lien upon
all live stock so dipped. The amount thereof, provided the same
shall not be paid, shall be collected by a sale of so many of said live
stock as shall be necessary, such sale to be conducted as provided in
this chapter. All range horses or cattle within the area, district or
country aforesaid which shall not be brought to the appointed place
at the appointed time, as required, to be dipped, shall be gathered
under the direction of the State Veterinary Surgeon, and shall be
Sipped, and the expense of such dipping, if the same be not paid, shall
he a lien upon said animals to be collected as in this chapter pro-
vided. Any such animals running on the range which cannot be
gathered may be killed on the order and under the direction of the
564
POLICE — LIVESTOCK
Tit. 8
State Veterinary Surgeon. If any of the persons mentioned in this
section shall fail to do as required herein he shall be guilty of a mis-
demeanor and upon conviction, shall be fined in any sum not to
exceed one thousand dollars: Provided, Any person, persons, or
company desirous of dipping the horses or cattle owned or controlled
by them, may do so by providing the proper appliances and notifying
the State Veterinary Surgeon or an assistant or the inspector of the
district that, on a certain date, a certain party or parties will, at a
certain place, dip such horses or cattle or both, and the State Veter-
inary Surgeon or his assistants or an inspector shall attend at such
time and place, and take charge of the arrangements for such dipping
with like powers as is provided in this chapter. The expenses of
such Veterinary Surgeon or assistant surgeon or inspector in going
to and returning from the place where such dipping takes place, in-
cluding five dollars per day to said officer, shall be paid by the parties
requiring his services as herein in this section provided.
Historical: Laws 1905, 39, Sec. 35.
The phrase "as provided in this
chapter" is substituted for "as here-
inbefore in this act provided" in view
of the altered arrangement of sec-
tions.
,Cross Reference: Sales of ani-
mals: Sec. 1186.
ARTICLE 4.
RESTRICTIONS ON THE IMPORTATION OF LIVESTOCK.
Section
1184. Prohibiting
1185.
importation of
animals from infected locali-
ties.
Importation of sheep: Notice
to livestock inspector.
Section
118C. Unlawful importation of ani-
mals: Seizure by inspector.
1187. Importation of diseased ani-
mals: Action for penalty.
Prohibiting Importation of Animals from Infected Localities.
Sec. 1184. Whenever the Governor of the State has reason to
believe that scab or other contagious or infectious diseases of sheep,
or any infectious or contagious diseases of any other of the classes
of animals enumerated in this chapter, has become epidemic in a
certain locality or localities of any other State or Territory, or that
conditions exist that render such animals or any of them likely to
convey disease, or whenever the State Veterinary Surgeon shall cer-
tify in writing to the Governor that conditions exist in certain local-
ities in any other State or Territory that render any of the live stock
coming therefrom likely to convey disease, the Governor shall forth-
with, by proclamation, designate and schedule such locality or locali-
ties, and prohibit the importation from it or them of any of said
animals into this State, except under such restrictions as he may
deem proper. Any person, persons or corporations who, after pub-
lication of such proclamation, has or receives in charge any such
animals from any of the prohibited districts, and transports, conveys
or drives the same to and within the limits of any of the counties of
this State, is punishable by a fine not exceeding five thousand dollars,
nor less than two thousand dollars, and is liable for all damages that
may be sustained by any person by reason of the importation or
transportation of such prohibited animals : Provided, however, That
nothing therein contained shall prohibit the transportation of any of
said animals from such district through the State by railroad trains,
Ch. 4. Art. 4.
INSPECTION, ETC. — IMPORTATION
565
under such restrictions and regulations as may be prescribed by law,
or by the Governor or State Veterinary Surgeon, or either of them.
antined district is an offense, and
prosecution therefor may be instituted
in any county where the sheep are
found. lb.
Equitable Relief: A bill by sheep
owners, alleging1 that defendant, act-
ing under a proclamation issued by
the Governor prohibiting the im-
portation of any sheep from an ad-
joining State for the period of forty
days, prevented complainants from
driving their sheep across the line
into Idaho for pasturage on their own
and the public lands within the State,
and for shipment to market, states a
cause of action for equitable relief
by injunction, where it is also alleged
that such sheep are free from disease
and have been so found by the United
States inspectors; that there was no
infectious disease epidemic on the
range where they were or had been;
and that the reasons stated in the
proclamation were false and ground-
less, and were based on statements
made by defendants and others for
the purpose of excluding sheep of
other owners, and securing a mo-
nopoly of the grazing on the public
lands within the State, and where
it is further shown that the exclusion
would work irreparable injury on the
complainants. Smith v. Lowe (1903)
121 Fed. 753.
Historical: Laws 1905, 39, Sec. 18.
Constitutionality: The act of which
this section is a subsequent re-enact-
ment (Laws 1899, p. 452) was held
not to be in contravention of Sec. 8,
Art. 1, nor Sec. 2, Art. 4 of the Con-
stitution of the United States. State
v. Rasmussen (1900) 7 Ida. 1; 59
Pac. 933.
This provision does not delegate to
the Governor legislative power, but
simply requires him to act when he
ascertains that certain conditions ex-
ist lb.
Prosecution — Intent Necessary: No
evil or criminal intent need be alleged
or proven in a prosecution for driv-
ing sheep into the State in violation
of a proclamation of the Governor
made under this section. State v.
Keller (±902) 8 Ida. 699; 70 Pac.
1051.
Same — Liability to Communicate
Disease: The fact that sheep have
been in an infected district against
which a quarantine has been de-
clared, and the fact that such sheep
were driven direct from such district
into this State, is sufficient to estab-
lish a capability and liability to com-
municate disease. State v. Rasmus-
sen (1900) 7 Ida. 1; 59 Pac. 933.
Same — Venue: Bringing sheep into
any county of the State from a quar-
Importation of Sheep : Notice to Live Stock Inspector.
Sec. 1185. Any person, persons, company, corporation or associa-
tion, or any agent or employee of any person, persons, company, cor-
poration or association, who shall drive or herd, or cause to be driven
or herded, or shall bring or cause to be brought, into the State of
Idaho from any other State, any sheep, shall immediately, upon cross-
ing the State line of Idaho, notify the livestock inspector of the
county or district where said sheep crossed the State line, and before
he shall proceed further than two miles from said State line into the
State of Idaho he shall make an application in writing to such live-
stock inspector for the inspection of said sheep. Said application
must be served on the inspector of that county or district in person or
be left at his place of residence or sent by registered letter. Said
notice must state the time and place said sheep crossed the State line,
and the locality from whence they came, and must give the name and
residence of the owners thereof and of the party in control of the
same, also the number and brands of said sheep. Any inspector on
receiving such notice shall at once proceed to inspect the sheep as
set forth in the application, and if, upon the inspection, said inspector
shall find that said sheep or any of them are affected with scab or
other contagious or infectious disease, or have been exposed thereto
within thirty days previous and have not been dipped, he shall, if he
deem it necessary or desirable so to do, to prevent or avoid infection
therefrom, cause said sheep to be quarantined at some place not more
than two miles from the State line where said sheep entered the
566 POLICE — LIVESTOCK Tit. 8
State of Idaho, for a period of not more than thirty days, and, if
deemed necessary by him, said inspector shall cause said sheep to be
dipped not to exceed twice at the option of said inspector before they
shall be released from such quarantine. Any person, persons, com-
pany, corporation or association, or his or their agent or employee,
who shall ship by railroad into this State from any other State, any
sheep, shall, immediately upon unloading the same at any point or
place within this State, notify personally the inspector of the dis-
trict within which said sheep shall be unloaded, and thereupon said
inspector shall forthwith proceed to inspect said sheep and to quar-
antine and dip the same if, in his judgment, the same shall be nec-
essary: Provided, The owners of any animals ridden under the
saddle or driven in harness or under yoke into this State, or any per-
son coming into this State with his own team or teams, is not re-
quired to notify the Veterinary Surgeon to await the inspection of the
animals, but shall be liable for all loss or damages suffered by any
person or persons by reason of any contagious or infectious disease
brought into this State by his animals.
Any person violating the provisions of this section shall be guilty
of a misdemeanor and shall, upon conviction thereof, be fined in a
sum of not less than one hundred dollars nor more than five thousand
dollars. Such fine shall be a lien upon such animals and may be en-
forced by proper proceedings in any court of competent jurisdiction.
Historical: Laws 1905, 39, Sec. 19.
Unlawful Importation of Animals: Seizure by Inspector.
Sec. 1186. When any of the animals enumerated in this chapter are
brought into the State in violation of this chapter, it shall be the duty
of the inspector of the district wherein said animals may be, imme-
diately to seize the same and hold them, and file a complaint in
a court of competent jurisdiction charging the owner or person in
charge of said animals with the violation hereof, and upon conviction
of the defendant in said action, the said inspector shall, unless all
fines, costs and charges be immediately paid, sell, in the same manner
as sales of personal property are made on execution out of the District
Court, so many of said animals as shall be necessary to pay the costs
and charges of making such sale, including the compensation due the
inspector, together with the fine imposed in said action, and a certi-
fied copy of the judgment in such action shall be his sufficient war-
rant for doing the same.
Historical: Laws 1905, 39, Sec. 20.
.Cross Reference: Sales on execu-
tion: Sees. 4481-4489.
Importation of Diseased Animals: Action for Penalty.
Sec. 1187. Any person, persons, company, corporation, or asso-
ciation, which shall drive or cause to be driven, bring or cause to be
brought, into this State from any other State any animals enumer-
ated in this chapter, infected with scab or any contagious or infectious
disease, shall be guilty of a misdemeanor, and, upon conviction there-
of, shall be punished by a fine of not less than one hundred dollars,
nor more than five thousand dollars, and in case the offending party
is a company, corporation or association, it is hereby made the duty
Ch. 4. Art. 5.
INSPECTION, ETC. — SHEEP
567
of the prosecuting attorney of the county in which said judgment of
conviction shall be had, to forthwith bring suit, to collect from said
offending company, corporation or association, the amount of the
penalty thus imposed, and he may cause attachment against the prop-
erty of said company, corporation, or association, to issue and to be
levied upon any property belonging to the defendant in said action,
as security for any judgment which may be obtained therein.
Historical: Laws 1905, 39, Sec. 21.
ARTICLE 5.
INSPECTION OF SHEEP.
Section
1188. Semi-annual and other inspec-
tions.
1189. Creation of inspection lines.
1190. Crossing lines without certifi-
cate.
1191. Travel of diseased sheep.
1192. Inspector must first examine
sheep.
Section
1193. Driving sheep into another's
corral.
1194. Stray sheep.
1195. Transportation of sheep; Cer-
tificate.
1196. Liability for violating chapter:
Sheep herders to give informa-
tion.
Semi-Annual and Other Inspections.
Sec. 1188. It shall be the duty of at least one assistant veterinary
surgeon or livestock inspector in each county or district, to be desig-
nated by the State Veterinary Surgeon, to personally examine all
sheep and bands of sheep in his county or district between the first
day of March and the first day of June of each year, and again be-
tween the first day of September and the first day of November of
each year; and the State Veterinary Surgeon may, at any time he
deems necessary, order an inspection in any county or district; and
to the owners and persons in charge of herds found to be clean, the
assistant veterinary surgeon or livestick inspector shall issue a
certificate stating such fact, which certificate shall permit such herds
to pass into and through any and all counties in this State so long as
they shall remain clean and free from disease; such assistant veteri-
nary surgeon or livestock inspector is required to examine any band
or bands of sheep at any time that he may be called upon to do so at
the request of one or more sheep growers, in writing, stating that
such sheep are affected or infected with some infectious or contagious
disease, and that there is imminent and immediate danger of the
spread of such disease: Provided, That if, upon examination, such
sheep are found to be clean, the person or persons making such com-
plaint shall pay the expenses of such examination, which may be re-
covered in a civil action therefor, but, in case such inspector, upon
making such examination, finds said sheep diseased, he shall forth-
with issue his order quarantining said sheep, and they shall be dealt
with as provided in Section 1176.
Historical: Laws 1901, 142, Sec. 8.
words "deputy inspector" and
"deputy" changed to "assistant vet-
erinary surgeon or livestock in-
tor," and the words "State Sheep
ector" changed to "State Veter-
inary Surgeon," to conform to Laws
1905, 39. The section of the 1901
law referred to in the last line was
superseded by Sec. 22 of the 1905
law, which is Sec. 1176 of these
Codes.
Creation of Inspection Lines.
Sec. 1189. It shall be the further duty of the State Veterinary
568 POLICE — LIVESTOCK Tit. 8
Surgeon, with the assistance of the assistant veterinary surgeon and
the livestock inspectors appointed by him in the several districts, to
create what shall be known as "inspection lines," in each county or
district where it shall be deemed necessary, between the summer
and winter ranges. He shall cause a notice containing a careful de-
scription of said inspection lines in each district to be published for
three weeks in some newspaper published in said district, and upon
the last publication thereof due notice of the location of such inspec-
tion lines shall be deemed to have been given. The expense of such
publication shall be a charge against the county where such notice
is given, payable as other charges : Provided, That this section shall
not be so construed as to prohibit other stock crossing said inspection
lines, and occupying the range inclosed by said lines.
Historical: Laws 1901, 142, Sec. 5.
The words "State Sheep Inspector"
changed to "State Veterinary Sur-
geon"; and the words "deputy" and
"deputy sheep inspector" changed to
"assistant veterinary surgeons and
the livestock inspectors," to conform
to Laws 1905, 39.
Crossing Lines Without Certificate.
Sec. 1190. It shall be unlawful for any person, persons, company
or corporation, owning, controlling or managing any band or herd
of sheep, to drive or herd, or cause to be driven or herded, across such
line going to or returning from the summer range without first having
his or their sheep inspected, and obtaining the Veterinary Surgeon's
certificate, showing such sheep to be sound and free from scap.
Any person, persons, company or corporation violating this sec-
tion shall be guilty of a misdemeanor, and shall be, upon conviction,
punished by fine of two hundred and fifty dollars, and such fine shall
constitute a first lien upon said sheep so driven or herded, and shall
be collected as provided for in Section 1177.
Historical: Laws 1901, 142, Sec. 6.
Words "Sheep Inspector" changed to
"Veterinary Surgeon," to conform to
Laws 1905, 39. The section referred
to in the last line is Sec. 14 of the
1901 law, which was superseded by
Sec. 23 of the 190 5 law, which is
Sec. 1177 of these Codes.
Travel of Diseased Sheep.
Sec. 1191. Any person, persons, company or corporation, or as-
sociation within the State desiring to move his or their sheep, which
are not sound or are infected with scab or other infectious or conta-
gious disease, shall first obtain from, the assistant veterinary surgeon
or livestock inspector a traveling permit. Such permit shall only be
granted for the purpose of removing said shetp to the nearest suita-
ble point where there are available dipping works, or where they can
be constructed, at which place said sheep shall be dipped. Such sheep
shall travel to said point over a route designated by the livestock in-
spector. The person or persons moving said sheep shall first notify
all parties herding sheep along or over said route that the infected
sheep have to travel, of the time they will pass over said route. Any
person, persons, companjr, corporation, or association injured or
damaged by reason of the moving of said sheep shall be entitled to
recover from the person, persons, company, corporation or associa-
tion moving the same, in a civil action, the amount of damage direct
and consequental : Provided, however, No party shall be entitled
to recover damages who voluntarily herds or causes to be herded any
Ch. 4. Art. 5.
INSPECTION, ETC. — SHEEP
569
sheep on quarantined ground. Said sheep so voluntarily herded shall
be considered as scabby without inspection, and shall be treated as
provided in Section 1176.
Any person or persons violating any of the provisions of this
section shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be punished by a fine of not less than five hundred dol-
lars nor more than one thousand dollars, or by imprisonment in the
county jail for not less than two months nor more than six months,
or by both such fine and imprisonment.
Historical: Laws 1901, 142, Sec. 19.
The words "deputy sheep inspector'"
changed to "assistant veterinary sur-
geon or livestock inspector" to con-
form to Laws 1905, 39. The section
referred to near the end of this sec-
tion is Sec. 9 of the 1901 law,
which was superseded by Sec. 22
of the 1905 law, and is found in Sec.
1176 of these Codes.
geon or livestock inspector," to con-
form to Laws 1905, 39.
Inspector Must First Examine Sheep.
Sec. 1192. Any assistant veterinary surgeon or livestock inspec-
tor granting a permit allowing sheep to travel, without at the time
having first examined the sheep, shall be guilty of a misdemeanor, and
upon conviction thereof, shall be punished by a fine of not less than
three hundred dollars and not more than five hundred dollars.
Historical: Laws 1901, 142, Sec. 20.
The words "deputy sheep inspector"
changed to "assistant veterinary sur-
Driving Sheep Into Another's Corral.
Sec. 1193. It shall be unlawful for any person, persons, company
corporation or association to drive or cause to be driven any sheep
into any sheep corral, the property of another, without first having
obtained the written consent of the owner or person having control
or custody of such sheep corral. Any person, persons, company, cor-
poration, or association violating any of the provisions of this sec-
tion shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be punished by a fine of not less than two hundred dollars nor
more than five hundred dollars, or imprisonment in the county jail
for not less than six months nor more than one year, or by both such
fine and imprisonment.
Historical: Laws 1901, 142, Sec. 22.
"The written consent" inserted in
place of "in writing, the consent."
Stray Sheep.
Sec. 1194. If any person, persons, company or corporation in
driving or herding any sheep should get into his or their herd any
stray sheep, he or they must, within five days after discovering the
fact, notify the owner thereof; and if the owner is unknown, he or
they shall forthwith notify an assistant veterinary surgeon or the
livestock inspector of such county, giving the number of such sheep
and the brands of each.
Any person, persons, company, corporation or association violat-
ing the provisions of this section shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than one hundred
dollars nor more than three hundred dollars.
Historical: Laws 1901, 142, Sec. 26. geon or livestock inspector," to con-
The words "deputy sheep inspector" I form to Laws 1905, 39.
changed to "assistant veterinary sur- '
570
POLiCE — LIVESTOCK
Tit. 8
Transportation of Sheep: Certificate.
Sec. 1195. It shall be unlawful for any person, persons, company,
corporation, or association, owning, controlling or managing a ferry
boat, toll bridge, car, steamboat or other things used for transporta-
tion in the State of Idaho, to allow any sheep destined to points within
the State to be loaded thereon, unless the party in charge of said
sheep shall first produce a certificate from an assistant veterinary sur-
geon or livestock inspector, appointed under this chapter, that said
sheep are free from scab, scabbies, and other infectious or contagious
disease: Provided, That this shall in no case apply to sheep being
shipped out of the State. Any violation of this section shall be
deemed a misdemeanor and punishable by a fine of not less than five
hundred dollars nor more than one thousand dollars.
Historical: Laws 1901, 142, Sec. 25.
The words "deputy sheep inspector"
changed to "assistant veterinary sur-
geon or livestock inspector," to con-
form to Laws 1905, 39.
Liability for Violating Chapter: Sheep Herders to Give Information.
Sec. 1196. In any action or proceeding, civil or criminal, arising
under this chapter, all persons having any interest in sheep or con-
trolling the same, and concerning which said action or proceeding is
had, shall be deemed the owners of said sheep, and shall be liable,
jointly and severally, for such violation. Any herder or shepherd
or other person in charge of sheep may be sworn to give any assist-
ant veterinary surgeon or livestock inspector any and all information
as to the condition of the sheep in his charge, to the best of his
knowledge, on being requested so to do by such assistant veterinary
surgeon or livestock inspector, and upon refusing to do so, shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be pun-
ished by a fine of not less than one hundred dollars nor more than
three hundred dollars or by imprisonment in the county jail for not
less than two months nor more than six months, or by both such fine
and imprisonment.
Historical: Laws 1901, 142, Sec. 23.
The words "deputy sheep inspector"
and "deputy" changed to "assistant
veterinary surgeon or livestock in-
spector", to conform to Laws 1905, 39.
Actions — Scienter Unnecessary: In
a civil action for damages resulting
from the negligence of the owner of
sheep in permitting his herd, which
was afflicted with scab, to become
mingled with the herd of another,
and communicating the disease to
such herd, it need not be alleged or
proven that the defendant knew of
the existence of scab among his sheep.
North & Douglas v. Woodland (1906)
12 Ida. 51; 85 Pac. 215.
ARTICLE 6.
EXTERMINATION OF PREDATORY ANIMALS.
Section
1197. Sanitary Board to supervise
operations.
1198. Employment and duties of
hunters.
1199. Same: Precautions against in-
jury.
1200. Account and proof of de-
stroyed animals.
Section
1201. Special tax to defray expenses.
1202. Bills: How drawn and al-
lowed.
1203. Provisions made applicable to
this article.
1204. Disposal of moneys received.
Sanitary Board to Supervise Operations.
Sec. 1197. It is hereby made the duty of the Sanitary Board to
Ch. 4. Art. 6. inspection, etc. — predatory animals 571
exercise a general supervision over the subject of the killing and de-
struction of wolves, coyotes, wild cats and such other wild animals
as are in the habit of preying upon and destroying sheep, calves, colts,
pigs, poultry and other domestic animals and fowls and wild game,
and to devise and put into operation such methods and means as will
best secure and attain the object of exterminating such wild, destruc-
tive and pestiferous animals, and to this end they are hereby author-
ized and empowered to employ one or more experienced, competent
and skillful hunters and trappers, as they may deem necessary, in
each or any inspection district of the State ; whose duty it shall be to
work constantly and diligently with guns, traps, poison and any and
every practicable means and methods, to procure and bring about the
destruction of as many of such predatory animals as possible.
Historical: Laws 1907, 452, Sec: 1;
amending, by adding Sec. 41, Laws
1905, 39.
Employment and Duties of Hunters.
Se^ 1198. The hunters employed in accordance with the preceding
section shall each receive such compensation as may be agreed upon
beforehand, not exceeding three dollars and fifty cents per day, and
their employment shall always be liable to be discontinued at any
time, at the pleasure of the board, and it shall be the duty of each
and all of them, at all times, to work at such localities and along such
plans of operation as the board may, from time to time, direct, and
the board is hereby empowered and authorized to purchase old or un-
dersized and cheap horses and other animals to be killed and used as
bait for the purpose of poisoning the pestiferous animals hereinbe-
fore mentioned, as well as all necessary poisons to be used in connec-
tion therewith, and also such traps and ammunition as shall be nec-
essary or useful for the purposes aforesaid: Provided, That the
said trappers and hunters must use their own guns; and Provided,
further, That the board shall never expend a greater sum of money
in any one year than thirty-five thousand dollars, and whenever that
amount has been expended in the year, then and thereafter any and
all further expenditures for the purposes of this article shall termi-
nate and cease.
Historical: Laws 1907, 452, Sec. 1;
nmonding, by adding Sec. 42, Laws
1905, 3U
Same: Precautions Against Injury.
Sec. 1199. It shall be the duty of the hunters and trappers afore-
said to exercise great care in putting out poison and to take every
reasonable precaution to prevent it from being taken by dogs or
other domestic animals, and to bury or destroy by burning all poi-
soned carcasses that have lain so long that they have ceased to be
useful, or where they are so situated as to be easily accessible and
dangerous to the dogs of those occupying the range during the grazing
season, and when poison is put out on the range during said season
they shall post four or more written notices in conspicuous places
whenever practicable, on four sides, and within about one-fourth of
a mile thereof, warning all persons of the same, and they shall not
put out any poison within one mile of any inhabited dwelling house
572 POLICE — LIVESTOCK Tit. 8
without first notifying the occupant thereof of their intention so to
do, nor within one-fourth of a mile of any such dwelling without the
consent of such occupant, nor shall they put out poison within one-
quarter of a mile of any public highway at any time, and any hunter
or trapper, or other person employed by the State Sanitary Board,
violating any of the provisions of this section shall be deemed guilty
of a misdemeanor.
Historical: Laws 1907, 452, Sec. 1;
amending, by adding Sec. 43, Laws
1905, 39.
Account and Proof of Destroyed Animals.
Sec. 1200. Each and every hunter or trapper shall keep an accu-
rate account of all animals destroyed by him, and furnish such proof
thereof as may be required by the board, or by any rule or regulation
thereof, and report the same at least once a month or oftener, if re-
quired, and shall also skin and preserve and dispose of, under the di-
rection of the board, all hides and furs of value, the proceeds of which
shall be accounted for and paid to the State Treasurer as provided in
Section 1204.
Historical: Laws 1907, 452, Sec. l;
amending, by adding Sec. 44, Laws
1905, 39.
Special Tax to Defray Expenses.
Sec. 1201. For the purpose of defraying the expenses necessarily
to be incurred under this article, the board of county commissioners
of the several counties in this State, at the time of the annual levy of
taxes, shall levy a special tax of one-half mill on the dollar of the
assessed valuation of all horses, cattle, goats, mules, asses and swine,
and four mills on the dollar of the assessed valuation of all sheep, with-
in their respective counties, which shall be collected and remitted to
the State Treasurer in the same time and manner as other taxes, and
kept in a separate fund to be known as "The Predatory Animal
Fund", and paid out only as hereinafter provided.
Historical: Laws 1907, 452, Sec. 1;
amending, by adding Sec. 45, Laws
1905, 39.
Bills: How Drawn and Allowed.
Sec. 1202. All bills for expenses named under the provisions of
this article shall be certified by the Sanitary Board to the Board of
Examiners, and when allowed by them shall be paid by warrants
drawn on the "Predatory Animal Fund" in the State Treasury : Pro-
vided, The said Sanitary Board shall not certify nor. allow any
claims in excess of thirty-five thousand dollars incurred in any one
year, and the State Auditor is prohibited from drawing any warrants
against said "Predatory Animal Fund" in excess of thirty-five thou-
sand dollars for expenses incurred in any one year.
Historical: Laws 1907, 45 2, Sec. 1;
amending, by adding Sec. 46, Laws
1905, 39. "To the Board inserted
before "of Examiners" to complete
the sense.
Provisions Made Applicable to This Article.
Sec. 1203. The provisions of Sections 1156 and 1157 of this chap-
Ch. 4. Art. 7. inspection, etc.— general provisions
573
ter are hereby made especially applicable to proceedings under this
article, and in all other respects, this article shall be construed in
harmony with the other provisions of this chapter, so far as the same
can consistently be done.
which it is amendatory and supple-
mental." The act referred to is the
one contained in this chapter.
Historical: Laws 1907, 452, Sec. 1;
amending, by adding Sec. 47, Laws
1905, 39. "The other provisions of
this chapter" inserted for "the act of
Disposal of Moneys Received.
Sec. 1204. Any and all sums of money whatsoever, that may or
shall be received by the State Sanitary Board, under or by virtue of
any provision of this article, or for the purpose of carrying out the
same, shall, within five days thereafter, be forwarded or paid to the
State Treasurer, who shall receipt for the same in duplicate; one to
be given to the board and the other to the State Auditor, and the
same when received shall be credited to the predatory animal fund.
Historical: Laws 190 7, 452, Sec. 1;
amending, by adding Sec. 48, Laws
1905, 39.
ARTICLE 7.
GENERAL PROVISIONS RELATING TO THE INSPECTION OF ANIMALSM*
Section
Livestock sanitary fund: Spe-
cial tax.
1206. Co-operation of United States
Bureau of Animal Industry.
1,207. Xo sanitary inspection neces-
sary when.
1208. Permission to operate- shear-
ing corral.
Section
1209. Exposure of healthy animals
to disease: Liability.
1210. Concealment of contagious
diseases among animals.
1211. Sale of diseased or exposed
animals.
1212. Disposal of diseased carcasses.
Livestock Sanitary Fund: Special Tax.
Sec. 1205. The boards of county commissioners of the several
counties of this State, at the time of the annual levy of taxes, must
levy a special tax of three-fourths of one mill on the dollar of the
assessed valuation of all horses, cattle, goats, mules, asses and swine ;
and three mills on the dollar of the assessed valuation of all sheep
within their respective counties. Such tax shall be collected in the
same manner and at the same time as other taxes, and paid over to
the State Treasurer at the same time that other taxes are remitted, to
be placed in, and to constitute a fund to be known as, the livestock
sanitary fund, to be used in the payment of the salaries and expenses
of the officers provided for in this chapter, except the salary of the
State Veterinary Surgeon, which shall be paid as hereinbefore pro-
vided.
Historical: Laws 1905, 39, Sec. 29.
Cross Reference: Salary of Veter-
inary Surgeon payable as salaries of
other State officers: Sec. 1158.
Co-operation of United States Bureau of Animal Industry.
Sec. 1206- The Governor shall, through the Secretary of Agri-
culture at Washington, ask the co-operation of the United States Bu-
reau of Animal Industry in controlling and eradicating contagious and
infectious diseases in animals enumerated in this chapter, and when
said bureau, through its duly authorized representatives, agents or
574 POLICE — LIVESTOCK Tit. 8
employees, shall be thus engaged, they shall possess the same power
and authority in this State as the State Veterinary Surgeon and his
assistants under and by virtue of this chapter.
Historical: Laws 1905, 39, Sec. 30.
No Sanitary Inspection Necessary When.
Sec. 1207. No sanitary inspection shall be necessary, and no fee
shall be collected from the owners of any livestock to which a clean
bill of health has been previously granted by such authorities of the
United States Within ten days before the day that such livestock en-
tered this State, provided the said livestock has not been exposed to
contagion since the date of such inspection: Provided, That imme-
diately after crossing the State line into this State, such owner, his
agent, or person in charge of such livestock, shall, in person, or by
registered letter addressed to the livestock inspector of said district,
notify such inspector as provided in Section 1185, and that he or they
hold a clean bill of health the day that such livestock entered this
State.
Historical: Laws 1905, 39, Sec. 31.
Permission to Operate Shearing Corral.
Sec. 1208. No person, persons, corporation or company shall main-
tain or operate a public shearing corral, without permission having
first been obtained from the State Veterinary Surgeon, and the sani-
tary arrangements at said corral shall be under the control of that
officer. For a failure to comply with the regulations of the State
Veterinary Surgeon in relation thereto such license may be revoked
by said officer. Any person or corporation operating such a corral
without a license shall be subject to a penalty of five hundred dollars,
to be recovered in a civil action to be instituted by the prosecuting
attorney on behalf of the county, and each day that said corral shall
be maintained or operated without a license shall constitute a sepa-
rate offense.
Historical: Laws 1905, 39, Sec. 32.
Exposure of Healthy Animals to Disease: Liability.
Sec. 1209. When any of the animals enumerated in this chapter
which shall be suffering from scab or any other contagious or infec-
tious disease shall be or become, through the fault or negligence, or
with the previous knowledge of the owner thereof or the person in
charge, mingled with healthy animals belonging to another, the owner
of said diseased animals shall be liable in an action for all damages
sustained by the owner of such healthy animals.
Historical: Laws 190 5, 39,. Sec. 36.
Concealment of Contagions Diseases Among Animals.
Sec. 1210. It is the duty of any person who knowingly has upon
his premises, or upon the public domain, any case of contagious or
infectious disease among such animals, to immediately report the
same to the Veterinary Surgeon or livestock inspector, and the failure
to do so, or an attempt to conceal the existence of such disease, or to
Ch. 4. Art. 8. INSPECTION, ETC. — DISEASED ANIMALS 575
wilfully or maliciously obstruct or resist the Veterinary Surgeon, as-
sistant surgeons or inspectors, in the discharge of their duties, shall
constitute a misdemeanor, punishable by a fine of not less than one
hundred dollars, nor more than two thousand dollars.
Historical: Laws 1905, 39, Sec. 11.
Sale of Diseased or Exposed Animals.
Sec. 1211. The following regulations must be observed in all cases
of disease mentioned in this chapter : It shall be unlawful to sell, give
away, or in any manner part with, to another, any animal affected
with a contagious or infectious disease, or any animal which has, or
which the owner, or his agent or employee, or the party in possession
thereof, has reason to believe has, within thirty days next preceding
such transfer, been exposed to any infectious or contagious disease,
without first notifying the proposed purchaser or purchasers of said
animal that is so affected or has been so exposed. It shall, likewise,
be unlawful to sell, give away, or in any manner part with any of
the meat of such animal, for use as food, or to sell, give away or part
with, for use as food, any of the milk from any such animal, or to re-
move all or any part of the skin therefrom. A violation of the pro-
visions of this section shall constitute a misdemeanor, and shall sub-
ject the party offending, upon conviction, to pay a fine of not less
than two hundred dollars nor more than one thousand dollars.
Historical: Laws 1905, 3 9, Sec. 12.
Disposal of Diseased Carcasses.
Sec. 1212. It shall be the duty of any person or persons, company
or corporation, owning any hog, cattle, horse, or other domestic ani-
mal, which dies from any infectious or contagious disease, to cremate,
or cause to be cremated, bury or cause to be buried, at a depth of not
less than three feet, the carcass of said dead animal, within twelve
hours after the owner of said animal has knowledge of the death
thereof. Any person or persons, company or corporation, violating
any of the provisions of this section, shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be fined in any sum
not less than twenty-five dollars, nor more than three hundred dol-
lars; and every twelve hours after the owner of said animal has
knowledge of the death thereof, shall be declared a distinct and sepa-
rate offense.
It shall be the duty of the road overseer to remove any dead ani-
mal from the public highways whose owners are unknown, and dis-
pose of the same in the manner provided by this section.
Historical: Laws 1901, 24, Sees.
1, 2.
ARTICLE 8.
REGULATIONS GOVERNING DISEASED ANIMALS.
Section Section
1-1.3. Driving diseased animals into 1215. Impounding- diseased animals.
State.
1214. Diseased animals running- at
large.
1216. Liability for damages.
576 POLICE — LIVESTOCK Tit. 8
Driving Diseased Animals Into State.
Sec. 1213. It shall not be lawful for the owner of any domestic
animal or animals, or any person having them in charge, knowingly
to import or drive into the State any animal or animals having any
contagious or infectious disease; and any person so offending shall
be deemed guilty of a misdemeanor, and shall be punished by a fine
in any sum not less than ten dollars nor more than one hundred
dollars, and be imprisoned in the county jail not more than three
months, or both, in the discretion of the court.
Historical: Laws 1903, 201, Sec. 1.
Diseased Animals Running at Large.
Sec. 1214. Any person being the owner of any domestic animal or
animals, or having the same in charge, who shall suffer any such do-
mestic animal or animals having any contagious or infectious disease,
knowing the same to be so diseased, to run at large upon any range,
common, or highway, or who shall let the same approach within ten
rods of any highway, or shall sell or dispose of any domestic animal
or animals, knowing the same to be so diseased, without fully disclos-
ing the fact to the purchaser, shall be deemed guilty of a misdemeanor,
and shall be punished by a fine in any sum not exceeding five hundred
dollars, and imprisoned in the county jail not less than six months.
Historical: Laws 190 3, 201, Sec. 2.
Impounding Diseased Animals.
Sec. 1215. Any justice of the peace, upon proof before him that
any animal or animals are going at large or driven in or through his
county in violation of the preceding sections, shall order a constable
or sheriff to impound them, and the owner thereof shall be held liable
for all costs and damages. In case the owner is not known, said jus-
tice of the peace shall thereupon summon three disinterested citizens,
who shall be stockowners of the neighborhood, to examine said ani-
mal or animals ; said examiners, before entering upon the discharge of
their duties, shall be sworn to make a true and faithful report without
prejudice or favor. They shall, after making examination, return
certified copies of the nature of the diseased animal or animals, to-
gether with an accurate description of each animal or animals, giving
all brands, ear-marks, wattles, age, sex and class, to the justice of the
peace by whom they were summoned, who shall,, after entering the
same upon his records, have published in some newspaper in the
county for one week a notice where said animal or animals are im-
pounded. If the owner does not claim said animal or animals, and
pay all costs and damages within ten days after impounding, said jus-
tice of the peace shall order the constable or sheriff, to slaughter such
animal or animals and destroy the carcass by burning to ashes.
When any diseased animal or animals are impounded by the con-
stable or sheriff, the fees shall not be more than twenty-five cents per
head for the first ten head, and ten cents per head for all additional an-
imals impounded, the feeding and watering of such animal or animals
shall be ordered by the constable or sheriff, and shall not exceed fifteen
cents per day for each animal. All charges for impounding, exam-
ining, feeding, slaughtering and burning shall be paid by the county
Ch. 5.
TWO MILE LIMIT LAW
577
in which said animal or animals were impounded, out of the general
county fund.
Historical: Laws 1903, 201, Sec. 4.
Liability for Damages.
Sec. 1216. Nothing in this article shall be so construed as to pre-
vent the recovery of damages in a civil action against any person or
persons who shall sell, trade, or import, or drive into this State, such
diseased animal or animals, or who shall allow such domestic animal
or animals to run at large, or to approach nearer than within ten rods
of any highway, and any person violating any of the provisions of
this article, in addition to the penalties herein provided, shall be
liable for all damages that may accrue to the party damaged by rea-
son of said diseased animal or animals imparting disease.
Historical: Laws 1903, 201, Sees.
3, 5.
CHAPTER 5.
THE TWO MILE LIMIT LAW.
Section
1217. Herding within two-mile limit
prohibited.
Section
1218. Same: Penalty.
1219. Sheep treated as estrays.
Herding Within Two Mile Limit Prohibited.
Sec. 1217. It is not lawful for any /person owning or having
charge of sheep to herd the same, or permit them to be herded, on
the land or possessory claims of other persons, or to herd the same
or permit them to graze within two miles of the dwelling house of
the owner or owners of such possessory claim.
Historical: Rev. St. 1887, Sec. 1210.
See 9 Ter. Ses. (1875) 110, Sec. 1.
Cited: Carter v. Wann (1899) 6 Ida.
556; 5 7 Pac. 314. Walling v. Brown
(1903) 9 Ida. 184; 72 Pac. 960. Wall-
ing v. Brown (1904) 9 Ida. 740; 76
Pac. 318. Swanson v. Groat (1906)
12 Ida. 148; 85 Pac. 384.
Constitutionality: The regulations
imposed by this section and the sub-
sequent sections are a valid exercise
of the police power of the State and
not unconstitutional. (Stockslager, J.,
dissents.) Sifers v. Johnson (1901) 7
Ida. 798; 65 Pac. 709. Sweet v. Bal-
lentyne (1902) 8 Ida. 431; 69 Pac. 995.
Spencer v. Morgan (1905) 10 Ida. 542;
79 Pac. 459. Walker v. Bacon (1905)
H Ida. 127; 81 Pac. 155. Bacon v.
Walker (1907) 27 Sup. Ct. Rep. 289.
Who Protected: This section pro-
tects any settler on land from the en-
croachments of sheep, whether such
settler has title to the land or whether
he holds it simply by naked posses-
sion. Sifers v. Johnson (1901) 7 Ida.
798; 65 Pac. 709. One who is the
absolute owner in fee simple of the
lands upon which his dwelling is situ-
ated is within the protection of this
section. Risse v. Collins (1906) 12
Ida. 689; 87 Pac. 1006.
Sheep in Transit: This section does
not prohibit the driving of sheep from
one place to another, although such
sheep pass within two miles of the
dwelling house of a settler, nor is the
occasional eating of grass by the sheep
as they go, or while they stop for
needed rest, "grazing" within the
meaning of this statute. Phipps v.
Grover (1904) 9 Ida. 415; 75 Pac. 64.
Same : Penalty.
Sec. 1218. The owner or the agents of such owner of sheep vio-
lating the provisions of the last section, on complaint of the party
or parties injured before any justice of the peace for the precinct
where either of the interested parties may reside, is liable to the party
578
POLICE — LIVESTOCK
Tit. 8
injured for all damages sustained; and if the trespass be repeated,
is liable to the party injured for the second and every subsequent
offense in double the amount of damages sustained.
Historical: Rev. St. 1887, Sec. 1211.
See 9 Ter. Ses. (1875) 110, Sec. 2.
Cited: Carter v. Wann (1899) 6
Ida. 556; 57 Pac. 314. Sifers v. John-
son (1901) 7 Ida. 798; 65 Pac. 709.
Walling v. Brown (1903) 9 Ida. 184;
72 Pac. 960. Phipps v. Grover (1904)
9 Ida. 415; 75 Pac. 64. Walling v.
Brown (1904) 9 Ida. 740; 76 Pac. 318.
Spencer v. Morgan (1905) 10 Ida. 542;
79 Pac. 459. Walker v. Bacon (1905)
11 Ida. 127; 81 Pac. 155. Swanson v.
Groat (1906) 12 Ida. 148; 85 Pac. 384.
Bacon v. Walker (1907) 27 Sup. Ct.
Rep. 289.
Jurisdiction of Actions: District
Courts have concurrent original juris-
diction with justices' courts in actions
under this section. Risse v. Collins
(1906) 12 Ida. 689; 87 Pac. 1006.
Measure of Damages: The owner or
herder of sheep who violates this sec-
tion is only liable for the damages
which are caused in the commission
of the trespass, and in estimating
such damages the number of livestock
which the settler has, depending on
the pasturage upon the land, must be
taken into consideration. Sweet v.
Balientyne (1902) 8 Ida. 431; 69 Pac.
995.
The damages incurred by a violation
of this section are measured by an
entirely different standard, and are
made up of different elements, and
rest on a different theory from dam-
ages sustained by reason of sheep
herding and grazing on the lands of
the plaintiff. In the latter case, where
a destruction of crops is claimed, the
measure of damages is the value of
the crops at the time of their destruc-
tion. Risse v. Collins (1906) 12 Ida.
689; 87 Pac. 1006.
Sheep Treated as Estrays.
Sec. 1219. When the owner or the agent of such owner of sheep
found trespassing upon the land or possessory claims of another, or
within two miles of the dwelling house of the clamant or occupant of
such possessory claim, is unknown to the party injured by such tres-
pass, all sheep so trespassing may be treated as estrays.
Historical: Rev. St. 1887, Sec. 1212.
See 9 Ter. Ses. (1875) 110, Sec. 3.
Cited: Carter v. Wann (1899) 6 Ida.
556; 57 Pac. 314. Sifers v. Johnson
(1901) 7 Ida. 798; 65 Pac. 709.
CHAPTER 6.
DOGS KILLING SHEEP OR GOATS.
Section
1220. Liability for sheep killed by
dogs.
Liability for Sheep Killed by Dogs.
Sec. 1220. The owner, possessor, or harborer of any dog or animal
that kills, worries, or wounds any sheep, angora or cashmere goats, is
liable to the owner of the same for the damages and costs of suit, to
be recovered before any court of competent jurisdiction :
1. In the prosecution of actions under the provisions of this sec-
tion it is not necessary for the plaintiff to show that the owner, pos-
sessor, or harborer of such dog or other animal had knowledge of the
fact that such dog or other animal would kill or wound sheep or goats ;
2. Any person, on finding any dog, not on the premises of its
owner or possessor, worrying, wounding, or killing any sheep, angora
or cashmere goats, may, at the time of so finding said dog, kill the
same, and the owner thereof can sustain no action for damages
against any person so killing such dog.
Historical: Rev. St. 1887, Sec. 12 05.
See 4 Ter. Ses. (1867) 104, Sec. 4.
Chs. 7, 8.
STOCK RANCHERS — MARKS AND BRANDS
579
CHAPTER 7.
LIABILITIES OF STOCK RANCHERS.
Section
1223. Forfeiture of fees.
Section
1221. Stock rancher defined.
1222. Duties and liability.
Stock Rancher Defined.
Sec. 1221. Every person who, for a consideration, takes horses or
other stock to keep and take care of by the day, week, month or year,
is deemed a stock rancher.
Historical: Rev. St. 1887, Sec. 1230.
7 Ter. Ses. (1872) 58, Sec. 1.
Duties and Liability.
Sec. 1222. It is the duty of every stock rancher to use due dili-
gence to prevent the death or loss of, or injury to, any animal in his
charge as such rancher; and in case of death, loss or injury to such
animal while in possession of a stock rancher, the owner thereof may
recover, before any court of competent jurisdiction, the full amount
of damages sustained, if it appears that such loss, death or injury
was in consequence of the failure of the stock rancher to use due and
reasonable diligence.
Historical: Rev. St. 1887, Sec. 1231.
7 Ter. Ses. (1872) 58, Sec. 2.
Forfeiture of Fees.
Sec. 1223. Any stock rancher using any animal placed in his
charge, by riding or working the same in any manner whatever, un-
less there is an express contract between himself and the owner
thereof, allowing such animal to be used, forfeits all claims or de-
mands for ranch fees on such animal ; and he is liable for any damages
or injury to such animal by reason of such use.
Historical: Rev. St. 1887, Sec. 1232.
See 7 Ter. Ses. (1872) 58, Sec. 3.
CHAPTER 8.
MARKS AND BRANDS.
Article
1. Stockgrowers' brands.
2. Stockdrovers' brands.
3. Inspection of brands before ship-
ment of livestock.
ARTICLE 1.
STOCK GROWERS' BRANDS.
Article
4. Record of brands on slaughtered
cattle.
Auctioneers' registers.
Section
1224. Definitions.
1225. Stock growers must use brands.
1226. Sheep owners to use brands.
7. Recorder of brands.
1228. Brands to be recorded.
1229. Manner of recording brands.
1230. Recording certified copy with
county recorder
1231. Sales and transfers of brands.
Section.
1232. Conflicting brands.
1233. Brand book.
1234. Brand as evidence of owner-
ship.
1235. Sheep owner to notify owner
of strange sheep.
1236. Sale of branded animals.
1237. Partnership brands.
1238. Mutilating and counterfeiting
brands.
580
POLICE — LIVESTOCK
Tit. 8
Definitions.
Sec. 1224. Every person, association or corporation who owns
any cattle, horses, mules, asses or sheep in this State, and is engaged
in the business of breeding, growing or raising the same for profit or
otherwise, is deemed a stock grower, and all cattle, horses, mules,
asses and sheep are deemed livestock.
Historical: Laws 1905, 352, Sec. 1.
Stock Growers Must Use Brands.
Sec. 1225. Every stock grower in this State must use one, and only
one, brand for cattle, one, and only one, brand for horses, mules and
asses, which brand must be placed in a conspicuous place on the ani-
mal, and which must be designated in the application for the record-
ing of the brand.
Historical: Laws 1905, 352, Sec. 2.
Sheep Owners to Use Brands.
Sec. 1226. Every sheep owner, who is a stock grower within the
meaning of this article, must use one, and only one, brand for sheep
which he shall record as herein provided. In addition to his recorded
brand he may, for the purpose of distinguishing the sheep of one of
his bands from the sheep of the other, use any one or more of the
digits, except the digits 1 and 0, which herd brand shall not be re-
corded. Neither of the digits shall be used on sheep except as pro-
vided in this section.
Historical: Laws 1905, 352, Sec. 3.
Recorder of Brands.
Sec. 1227. The State Auditor is ex-officio State Recorder of Brands.
Historical: Laws 1905, 352, Sec. 4.
Brands to Be Recorded.
Sec. 1228. All brands shall be recorded with the State Recorder.
No evidence of ownership of stock by brands or for the purpose of
identification shall be permitted in any court of this State unless the
brand shall have been recorded as provided in this article. All re-
corded sheep brands which were not recorded with the State Recorder
on or before the first day of June, 1905, and all recorded brands of
other livestock, which were not recorded with the State Recorder on
or before the first day of October, 1905, shall be null and void.
Historical: Laws 190 5, 352, Sec. 5.
and parts of Sees. 6 and 7, which re-
quired all brands to be recorded with-
in the time stated in the last sentence
of this section, prescribed the manner
of recording the same, the order of
procedure in recording, and declared
brands not recorded within the pre-
scribed time to be void. As these sec-
tions relate only to acts which now
are, or which should have been, com-
pleted, they are omitted from these
Codes, except as their present effect
is preserved in the last sentence of
this section.
Parol Evidence Inadmissible: Parol
evidence is inadmissible to prove own-
ership of a stock brand. State v. Dunn
(1907) 13 Ida. — ; 88 Pac. 235.
Manner of Recording Brands.
Sec. 1229. Any stock grower whose brand is not recorded, de-
siring to use any brand on any stock, shall make and sign a certifi-
Ch. 8. Art. 1. MARKS AND BRANDS — STOCK GROWERS
581
cate setting forth a fac-simile and description of the brand which he
desires to use, and shall file the same with the State Recorder, who
shall record the same in a book kept by him for that purpose, and
from and after the filing of such certificate the stock grower filing the
same shall have the exclusive right to use such brand within the State.
Such stock grower upon filing such brand shall pay to the State Re-
corder for recording the same a fee of one dollar: Provided, That
the State Recorder shall not file or record such brand if the same has
already been filed or recorded by him in favor of some other stock
grower.
Historical: Laws 1905, 352, Sec. 8.
Omitting the last sentence, which pro-
vided that brands to be used on sheep
should not be recorded until after
June 1, 1905, and other stock brands
should not be recorded until after
October 1, 1905, and which is now
obsolete. ''Who shall record" is in-
serted in lieu of "which marks shall
record."
Cited: (Dis. op.) State v. Dunn
(1907) 13 Ida. — ; 88 Pac. 235.
Recording Certified Copy With County Recorder.
Sec. 1230. Upon the recording of any such brand with the State
Recorder as herein provided, the owner thereof may procure from
the State Recorder a certified copy of the record of such brand, paying
therefor the sum of fifty cents, and may cause the same to be recorded
in the office of the county recorder of the county or counties in which
such owner purposes to range his stock upon which the brand is used
or to be used. It shall be unlawful for any recorder of any county of
this State to record any brand, unless the same is accompanied with
a certificate from the State Recorder to the effect that the same has
been recorded in the State brand book.
Historical: Laws 1905, 352, Sees. 9,
10. Omitting "after the passage of
this act," in Section 10.
Sales and Transfers of Brands.
Sec. 1231. Any brand recorded in accordance with the require-
ments of this article, shall be the property of the stock grower in
whose name the same shall be recorded, and shall be subject to sale,
assignment, transfer, devise, and descent, the same as personal prop-
erty. Instruments of writing evidencing any such sale, assignment
or transfer, may be acknowledged as deeds to real estate are now
required to be, and may be recorded in the office of the county re-
corder where such brand is recorded, in a book to be by said officers
respectively kept for that purpose, which shall be properly indexed.
The recording of such instruments in each of said offices shall have
the same force and effect, as to third parties, as the recording of in-
struments affecting real estate, and the acknowledgment of the same
shall have the same force and effect as the acknowledgment of deeds
to real estate, and certified copies of the record of any such instru-
ment, duly acknowledged, may be introduced in evidence the same as
is now provided for certified copies of instruments affecting real
estate.
Historical: Laws 1905, 352, Sec. 11.
Conflicting Brands.
Sec. 1232. In deciding as to conflict of brands, the State Recorder
582 POLICE — LIVESTOCK Tit. 8.
shall reject any brand being the same as one previously recorded in
the same place on the animal; he shall also reject all brands known
as solid brands and the window sash brand. A variation in the size of
the letter, number or figure shall not constitute a new brand and shall
be rejected. A combination of letters, numbers or figures may be
permitted though the same letters, numbers or figures may have been
recorded singly or together, if, in the judgment of the State Recorder,
said combination is so different from any previous record as to con-
stitute a new brand with no danger of infringement. Said recorder
shall have the right to reject any brand that may in his judgment en-
danger infringement of the previously recorded brand.
Historical: Laws 1905, 352, Sec. 12.
Brand Book.
Sec. 1233. It shall be the duty of the State Recorder to publish a
brand book in which shall be given a fac-simile or copy of all brands
recorded in his office up to that time, together with the owner's name
and the county and city wherein he resides; such names and brands
shall be arranged in the most convenient form for reference; such
book shall be bound in a good substantial manner that additional
leaves may be added thereafter. One copy of such book shall be for-
warded to the county recorder of each county, in whose office it shall
be kept open for the inspection of all persons interested, and one to
each livestock inspector within the State. It shall be the duty of
the State Recorder, quarterly after the publication of a brand book,
to furnish each county recorder and each inspector with a list of the
brands and marks recorded in his office during the preceding three
months, which list shall be printed in uniform style with the pages
of such brand book, and shall be pasted in and become a part of such
brand book when received by the county recorder and inspector of the
respective counties. The State Recorder is authorized to publish, if
he deem best to do so, a limited number of such brand books in addi-
tion to the number required by the provisions of this section, and
to sell the same for such price as he may consider reasonable and
proper, which price shall not be less than the actual cost of the same.
The proceeds of the sale he shall turn over to the State Treasurer.
Historical: Laws 1905, 352, Sec. 13.
Omitting "on or before December first,
190 5", from the first line.
Brand as Evidence of Ownership.
Sec. 1234. In all suits at law or in equity, or in any criminal pro-
ceedings when the title or right of possession is involved, the brand
of any animal shall be prima facie evidence that the animal belongs to
the owner or owners of the brand, and that such owner is entitled to
the possession of the said animal at the time of the action : Provided,
That such brand has been duly recorded as provided by law. Proof
of the right of any person to use such brand shall be made by a copy
of the record of the same, certified to by the State Recorder in accord-
ance with the provisions of this article, or the original certificate is-
sued to him by the State Recorder. Parol evidence shall be inadmis-
sible to prove the ownership of a brand.
Ch. 8. Art. 1. MARKS AND BRANDS — STOCK GROWERS
583
the original certificate of a stock
brand issued by the State Recorder,
or a certified copy of the record there-
of, constitutes prima facie evidence of
the ownership of the brand and of
right of possession of the animals on
which the same is found; parol evi-
dence is inadmissible to prove owner-
ship of such brand, and ownership of
an animal the brand on which is un-
recorded must be proved the same as
if the animal was unbranded. lb.
Historical: Laws 1905, 352, Sec. 14.
Application: The rule of evidence
prescribed by this section applies to a
case tried after the law went into
effect, although the prior owner of
the animal in controversy in such case,
and of a brand found thereon, had
parted to the title of such animal
prior to the time when he was re-
quired by this act to record his brand.
(Sullivan J., dissents.) State v. Dunn
(1907) 13 Ida. — ; 88 Pac. 235.
Construction: The production of
Sheep Owner to Notify Owner of Strange Sheep.
Sec. 1235. Every sheep owner who is a stock grower within the
meaning of this article, who may at any time have sheep in his herd
or herds, not his own, shall, within ten days, notify the owner of such
sheep, if he is known, by registered letter addressed to him at his last
known place of residence, describing said sheep by their marks and
brands, and stating where said owner may find such herd, and when
and where he can cut them out, and in case such owner is unknown,
then said stock grower must, within ten days from the time of dis-
covering said sheep in his herd or herds, send by registered letter to
the county recorder of the county in which said herd at the time may
be, a notice describing said sheep by marks and brands and number, as
near as can be ascertained, and stating when and where the owner can
find said herd, and when and where they can be cut out, together
with the sum of one dollar for such recorder's services in sending no-
tices to owner ; and such recorder shall send a copy of such notice, by
registered letter, to the stock grower who may be the owner of the
recorded brand described in the notice, if such brand has been re-
corded. The stock grower giving such notice shall receive one dollar
each for such notices sent, and repayment of one dollar paid to the
recorder, and shall receive the sum of ten cents per head per month,
or any part of the same, from the time of sending said notice, to be
recovered from the owner of said estray sheep, for which said stock
grower shall have a lien, and shall not be required to deliver said
sheep to the owner until such sums shall be paid. No sheep owner
shall shear or cause to be sheared any sheep not his own without the
consent of the owner.
Historical: Laws 1905, 352, Sec. 15.
Sale of Branded Animals.
Sec. 1236. The owners of horses, mules, asses or cattle running
at large upon any range in this State, may dispose of such animals
by range delivery, while on the range and ungathered, by the sale and
delivery of the recorded brands of such animals, but in every such case
the purchaser, in order to record title to such animals, must have his
conveyance or written transfer of such animals described by brand
duly acknowledged by the vendor, and recorded in the office of the
county recorder of the county in which the animals range, in a book
kept for that purpose, and such sale or transfer shall be noted on the
record of original brands in the office of the State Recorder.
Historical: Laws 1905, 352, Sec. 16.
584
POLICE — LIVESTOCK
Tit. 8
Partnership Brands.
Sec. 1237. Partners in stock growing may adopt and use partner-
ship brands or marks, in which case they must select, record and use
the same in the manner provided for the individual stock growers, or
they may adopt and use the individual brand or mark of any indi-
vidual member of the partnership, duly selected and recorded as pro-
vided in this article.
Historical: Rev. St. 1887, Sec. 1177.
11 Ter. Ses. (1881) 295, Sec. 9.
Mutilating and Counterfeiting Brands.
Sec. 1238. No stock grower or other person in this State must
change, conceal, deface, disfigure, or obliterate any brand or mark
previously branded, impressed or marked on any head of livestock, or
put his own, or any other brand upon or over any part of any brand
previously branded upon any head of livestock, and no person must
mark or use any counterfeit of any brand or mark provided for in
this chapter. Any person violating any of the provisions of this sec-
tion is guilty of a misdemeanor.
Historical: Rev. St. 1887, Sec. 1178.
(See 11 Ter. Ses. (1881) 295, Sec. 10.)
The penal sentence is taken from Sec-
tion 1185, which declares persons vio-
lating any of the provisions of the
chapter of which this section was a
part, guilty of a misdemeanor.
Cross Reference: Penalty for con-
cealing or disfiguring marks and
brands: Sec. 6879.
ARTICLE 2.
STOCK DROVERS' BRANDS.
Section
1239. Stockdrover denned.
Road brand.
Penalty for driving cattle from
range.
Same: Liability to civil action.
1240.
1241.
1242.
Section
12 43. Prevention of trespass of cattle.
12 44. Stock inspectors: Duties and
compensation.
1245. Penalty for violations.
Stock Drover Defined.
Sec. 1239. Every person, whether owner or employee, who drives
or brings, or assists in driving or bringing, cattle, horses, mules,
asses, sheep or hogs through or into this State, is deemed a stocK
drover.
Historical: Rev. St. 188 7, Sec. 1170.
(11 JTer. iSes. 1881) 295, Sec. 1.)
First sentence of section, the remain-
der is repealed by Laws 1905, 352, em-
braced in the preceding article.
Road Brand.
Sec. 1240. It is the duty of every stock drover to select and use a
a road brand for all live stock driven or moved through or into this
State by him or by his assistance or direction, which road brand
must be plainly and distinctly branded on some conspicuous part of
each animal ; and it is the duty of every such stock drover or his as-
sistants, each day to carefully search through and examine his herd
or drove after driving or moving them over any portion of this State,
and separate from and drive and keep away from his herd or drove
all livestock not belonging thereto, and not branded with his road
Ch. 8. Art. 2. marks and brands — stock drovers 585
brand: Provided, That any drover may drive the stock of other
drovers with different brands; but he must have written authority
from the owner to drive said stock.
Historical: Rev. St. 1887, Sec. 1180.
See 11 Ter. Ses. (1881) 295, Sec. 12.
Penalty for Driving Cattle From Range.
Sec. 1241. Any person, not being the owner or entitled to the
possession of any head of livestock, who is found knowingly and
wilfully driving, riding or leading, or assisting to drive, ride or lead,
the same away from its usual range, unless he corrals the same at
the first corral nearest to such range, is guilty of a misdemeanor.
And proof that such person was found driving, riding or leading
such livestock from its usual range, as aforesaid, is evidence sufficient
to warrant a conviction, unless the evidence produced on the trial
shows that the accused acted in good faith and with an innocent
purpose: Provided, That any stock grower or his employees may
drive any stock that he finds herding with any stock belonging to
him or under his control on the range to the nearest suitable corral
that can be obtained, and there separate it from the stock of said
stock grower, and such stock must be by him driven or caused to be
driven back to or near the range from which such stock was driven.
Historical: Rev. St. 1887, Sec. 1181. i Cross Reference: Driving cattle
11 Ter. Ses. (1881) 295, Sec. 13. from range a misdemeanor: Sec. 6880.
Same : Liability to Civil Action.
Sec. 1242. Any stock drover or other person engaged in driving
or moving any herd or drove of livestock through this State, who,
without the owners consent, drives or moves, or assists in driving
or moving, any herd of livestock, the property of another person,
away from its usual or accustomed range in this State, is guilty of
a misdemeanor; and is also liable for damages in a civil action in
any court of competent jurisdiction in this State by the party injured,
for double the value of each head of livestock so as aforesaid driven
or moved away, together with costs of suit; and the party injured
may, at the commencement of such civil action, or during the pend-
ency thereof, have such herd or drove of livestock, or such number
of livestock thereof as are sufficient, attached, seized and held as
security for all damages and costs that may be recovered in such
action.
Historical: Rev. St. 1887, Sec. 1182. I Cross Reference: Driving stock
11 Ter. Ses. (1881) 295, Sec. 14. I from range a misdemeanor: Sec. 6881.
Prevention of Trespass of Cattle.
Sec. 1243. Any person owning or having charge of any herd or
drove of livestock, who drives or moves the same into or through
any county in this State, in which the owner thereof is not a resident
or land owner, and where the land is owned or is occupied and im-
proved, must prevent such herd or drove from mixing with the
livestock belonging in said county, and must also prevent such herd
or drove from trespassing on land in the possession of any actual
settler, and used by him for grazing purposes, or for the growing
of grain, hay or other crops, or injuring any ditches owned or used
586
POLICE — LIVESTOCK
Tit. 8
by such settler. If any owner or person in charge of any such herd
or drove of livestock wilfully or negligently injures any resident of
this State by driving or moving such herd or drove of livestock from
any public highway, and herding or grazing the same on land occupied
and improved by any settler in possession of the same, he is guilty
of a misdemeanor; and is also liable in a civil action to the party
injured for the damages by him sustained.
Historical: Rev. St. 1887, Sec. 1183.
11 Ter. Ses. (1881) 295, Sec. 15.
Cross Reference: Driving stock
from public highway and herding the
same on occupied land a misde-
meanor: Sec. 6882.
Stock Inspectors : Duties and Compensation.
Sec. 1244. The county commissioners of any county in this State
must, upon petition of five of the resident stock owners of said county,
appoint one or more inspectors ; said inspectors must be experienced
stock men, and duly sworn to faithfully perform the duties and re-
quirements of this article, whose duty it is to discover and detect
any violation of this article, or of any law of this State relating to
livestock. Said inspector or inspectors have full power to cut out and
separate from any herd or drove of livestock, all range stock of every
description not belonging to such herd or drove, and to detain the
herd or drove for that purpose, and have full power, without a
warrant, to arrest any person or persons violating any of the provi-
sions of this article, and take them before any court having jurisdic-
tion of the offense. They may receive such compensation for their ser-
vices as are allowed by the board of county commissioners of such
county, to be paid out of the county treasury. Any board of county
commissioners in this State may offer and provide for the payment of
suitable rewards for the detection of any violation of this article.
Historical: Rev. St. 1887, Sec. 118 4.
11 Ter. Ses. (1881) 295, Sec. 16.
Penalty for Violations.
Sec. 1245. Any person violating any of the provisions of this arti-
cle is guilty of a misdemeanor.
Historical: Rev. St. 1887, Sec. 1185.
See 11 Ter. Ses. (1881) 295, Sec. 17.
Cross Reference: Offenses in gen-
eral: Sees. 6879-6883.
ARTICLE 3.
INSPECTION OF BRANDS BEFORE SHIPMENT OF LIVESTOCK.
Section
1246.
1247.
1248.
1249.
1250.
Constable to inspect brands be-
fore shipment.
Certificate of constable.
Fees of constable.
Driving animals from State:
Inspection of brands.
Justice of the peace to perform
duties of constable.
Section
12 51. Unlawful to drive animals
from accustomed ranges.
1252. Brand book open to public.
1253. Unlawful to ship animals with-
out owner's authorization.
1254. Penalty for failure of officers
to perform duty.
Constable to Inspect Brands Before Shipment.
Sec. 1246. Every owner or shipper of cattle, horses, mules or
asses, desiring to ship the same from this State, shall before doing
so give notice to the constable of the precinct in which the same are
Ch. 8. Art. 3. MARKS AND BRANDS — INSPECTION 587
to be loaded, stating the time when, and the point where he expects
to load the same, and said constable shall thereupon go to the ship-
ping point and examine carefully the said animals for brands and
marks, and shall make an accurate record of the name of the shipper,
name and residence of consignee, marks and brands found on said
animals, and number and kind and sex of animals, in a book to be
kept for that purpose, and if any of said animals are found to be
branded with a brand not owned by the said shipper, he shall be
required to produce a bill of sale of said animals, from the owner
of the recorded brand, or give other evidence of his ownership satis-
factory to said constable, before he shall be permitted to ship the
same. In case there are any animals in said shipment branded by
any other brand than that owned by the shipper, said officer shall
thereupon notify the owner of the recorded brand, describing said
animals, and the name and residence of the proposed shipper.
Historical: Laws 1905, 369, Sec. 1.
Certificate of Constable.
Sec. 1247. In case the constable finds, after a careful examination,
that the said animals are owned by the shipper, or that he is author-
ized to ship the same, he shall issue a certificate stating the number
of animals to be shipped, and give a duplicate thereof to the railroad
company. It shall be unlawful for any common carrier to transport
the said animals or any of them out of the State without receiving
said certificate, and any common carrier who violates the provisions
of this section shall be deemed guilty of a misdemeanor, and on
conviction thereof shall be fined in any sum not less than five hundred
dollars nor more than five thousand dollars, and shall be responsible
in damages to any person injured, in treble the damages, costs and
attorneys' fees.
Historical: Laws 19 05, 369, Sec. 2.
Fees of Constable.
Sec. 1248. The constable shall receive from said shipper for such
inspection the sum of one dollar per car for each car so inspected,
but not exceeding five dollars from any one shipper, for any one
shipment.
Historical 1905, 369, Sec. 3.
Driving Animals From State: Inspection of Brands.
Sec. 1249. Any one desiring to remove or drive any horses, mules
or cattle from the boundaries of this State bj7" any means other than
by rail, shall, before doing so, apply to the constable within the pre-
cinct bordering on such State to which said animals are to be driven,
to inspect the same for brands and marks, and on such application
(or without said application if said constable have knowledge of such
removal) the constable of said precinct shall immediately inspect
said animals for brands and marks, and keep an accurate record of
the same with name and residence of owner or shipper, and name,
sex and kind of animals. For said inspection he shall receive the
sum of five dollars per day and mileage at the rate of ten cents per
mile, from the owner or shipper. If said constable find that the
588
POLICE — LIVESTOCK
Tit. 8
animals have brands that are not owned by the person claiming
the same, then such person shall be required to produce a bill of
sale or other satisfactory evidence of ownership. Upon such proof
he shall give the person a certificate stating the number and kind
of animals and their marks and brands, and thereupon the said
person shall be permitted to drive said animals from this State. But
otherwise he shall not be so permitted, and in case said person shall,
without said certificate, drive the same from this State, he shall be
deemed guilty of a misdemeanor, and upon conviction thereof shall
be fined in any sum not exceeding three hundred dollars, or be
imprisoned in the county jail not exceeding six months, or be punished
by both such fine and imprisonment.
Historical: Laws 1905, 369, Sec. 4.
"Or" inserted for "and" "be imprison-
ed," etc. The concluding- line indi-
cates that an alternative punishment
was intended. "Be punished" inserted
in the last line to complete the sense.
Justice of the Peace to Perform Duties of Constable.
Sec. 1250. If no constable can be found in the precinct, then the
justice of the peace shall perform all the duties of the constable, and
his acts shall have the same force and effect as if said constable had
performed them.
Historical: Laws 1905, 369, Sec. 5.
Unlawful to Drive Animals From Accustomed Ranges.
Sec. 1251. It shall be unlawful for any person to drive or cause
to be driven any cattle, mules, horses or asses from their accustomed
ranges without consent of the owner, and any person violating the
provisions of this section shall be guilty of a misdemeanor.
Historical: Laws 1905, 369, Sec. 6.
Brand Book Open to Public.
Sec. 1252. The brand book kept by said constable or justice of the
peace, as the case may be, shall open to the inspection of the public,
and shall be prima facie evidence of the facts recited therein, in any of
the courts of this State.
Historical: Laws 1905, 369, Sec. 7.
Unlawful to Ship Animals Without Owner's Authorization.
Sec. 1253. Any person who knowingly offers for shipment any
animals herein enumerated, not his own, or without the authority
of the owner, shall be deemed guilty of a misdemeanor.
Historical: Laws 1905, 369, Sec. 8.
Penalty for Failure of Officers to Perform Duty.
Sec. 1254. If the constable or justice of the peace shall wilfully
or negligently fail to perform any of the duties herein devolved upon
him, he shall be deemed guilty of a misdemeanor and on conviction
thereof shall be fined in any sum not exceeding three hundred dollars,
or imprisoned in the county jail not exceeding six months, or be
punished by both such fine and imprisonment.
Historical: Laws 1905, 369, Sec. 9.
"Be punished" inserted before "by
both," etc., to complete the sense.
Ch. 8. Arts. 4, 5. slaughtered cattle — auctioneers' registers 589
ARTICLE 4.
RECORD OF BRANDS ON SLAUGHTERED CATTLE.
Section
1255. Record of slaughtered cattle.
1256. Preservation of hide.
Section
125 7. Penalty for violations.
Eecord of Slaughtered Cattle.
Sec. 1255. Any persons engaged in the business of slaughtering
cattle, must keep at their place of business a book in which they must
enter daily the number and class of cattle slaughtered, the name of
the person or persons from whom said cattle were purchased, and
the marks and brands of such cattle. Said book must be kept ready
at all times for the inspection of any person who may desire to ex-
amine the same.
Historical: Rev. St. 1887, Sec. 1195.
9 Ter. Ses. (1877) 36, Sec. 1.
Preservation of Hide.
Sec. 1256. Any person not regularly engaged in the business of
slaughtering cattle, who at any time slaughters any cattle, must
retain in his possession the hide taken off said cattle with the ears
attached thereto without any alteration of the marks on the same,
or any disfiguration of the brand, for the period of thirty days, and
any owner of cattle may, within the period of time herein mentioned,
demand an exhibition of the hide or hides of any cattle so killed or
slaughtered by the person so killing the same, or by any other person
for whose use and benefit such animal or animals were killed, and
upon such demand being made he must produce said hide or hides
for inspection.
Historical: Rev. St. 1887, Sec. 1196.
9 Ter. Ses. (1877) 36, Sec. 2.
California Legislation: See Pol.
Code 1872, Sec. 3185; Deering's Code,
ib.; Kerr's Code, ib.
Penalty for Violations.
Sec. 1257. Any person violating any of the provisions of this arti-
cle, or who may destroy the hide of any cattle slaughtered within
thirty days from the slaughtering thereof, is guilty of a misdemeanor.
Historical: Rev. St. 1887, Sec. 1197.
See 9 Ter. Ses. (1877) 36, Sec. 3.
Cross Reference: Similar provision:
Sec. 6884.
ARTICLE 5.
AUCTIONEERS' REGISTERS.
Section
1258. Auctioneer to keep register.
1259. Record of animals sold.
1260. Inspection of register.
Section
1261. Register deposited with re-
1262.
corder.
Penalty for non-compliance.
Auctioneers to Keep Register.
Sec. 1258. Every person who is licensed, under the laws of this
State, to sell livestock or other goods and wares, must keep in his
office a book for the purpose of registering a description of each
animal that he may sell, to be called the Auctioneer's Register Book
of stock sold.
590 POLICE — LIVESTOCK Tit. 8
Historical: Rev. St. 1887, Sec. 1275.
13 Ter. Ses. (1885) 32, Sec. 1.
Record of Animals Sold.
Sec. 1259. Every auctioneer before selling any animal, must take
down in ink, on the register book provided for in the preceding sec-
tion, a correct description of each animal he is about to sell, the color,
age, mark and brand as near as practicable; also the date and name
and residence of the owner of said animal, and, when sold, add to
said description the name and residence of the purchaser.
Historical: Rev. St. 1887, Sec. 12 76.
13 Ter. Ses. (1885) 32, Sec. 2.
Inspection of Register.
Sec. 1260. Every auctioneer's register book of stock sales must,
upon application by any county or State officer, or any stock
grower of the county, be open for his inspection.
Historical: Rev. St. 1887, Sec. 1277.
See 13 Ter. Ses. (1885) 32, Sec. 3.
Register Deposited With Recorder.
Sec. 1261. Any Auctioneer who discontinues the business of selling
livestock or removes from the county, must deliver to the recorder
of said county all of his register books of livestock sold. The re-
corder must keep said register in his office for the inspection of any
citizen of the county or State.
Historical: Rev. St. 1887, Sec. 1278.
13 Ter. Ses. (1885) 32, Sec. 5.
Penalty for Non-Compliance.
Sec. 1262. Any auctioneer failing to comply with the provisions
of this article is guilty of a misdemeanor.
Historical: Rev. St. 1887, Sec. 1279. i Cross Reference: Similar provision:
See 13 Ter. Ses. (1885) 32, Sec. 6. Sec. 6887.
CHAPTER 9.
LEASES OF LIVESTOCK.
Section
1263. Leases to be in writing- and re-
corded.
Leases to Be in Writing and Recorded.
Sec. 1263. All leases of more than ten head of live stock must be
in writing and must be acknowledged in like manner as grants of
real property, and filed of record in the same county recorder's office
or offices, and within the same time and manner, and for the same
fee, as are chattel mortgages; and the failure to comply with the
provisions of this section renders the interest of the lessor in the
property subject and subsequent to the claims of creditors of the
lessee, and of subsequent purchasers and incumbrances of the
property in good faith and for value.
Historical: Laws 1907, 481, Sec. 1.
Ch. 10.
FENCES
591
INCLOSURES, TRESPASS OF ANIMALS AND ESTRAYS.
CHAPTER 10.
FENCES.
Section
1264. Lawful fences in general.
1265. Lawful fences described.
1266. Erection of partition fences.
1267. Care of fences by adjoining
owners.
1268. Use of division fence in mak-
ing inclosure.
1269. Disagreement between owners:
Viewers.
Section
1270. Prohibition against removal.
12 71. Removal of fence built by mis-
take.
1272. Same: Restrictions on occu-
pant.
12 73. Same: Survey of line.
12 74. Removal of partition fence.
1275. Establishment 'of gates.
Lawful Fences in General..
Sec. 1264. A lawful fence, except as hereinafter provided, must
be not less than four and a half feet high, and the bottom board,
rail, poll or wire must not be more than twenty inches above the
ground, and the space between the top and bottom board, rail, pole
or wire must be well divided.
Historical: Rev. St. 1887, Sec. 1300.
Lawful Fences Described.
Sec. 1265. Lawful fences are described as follows:
1. If made of stone, four feet high, two feet base, and one foot
thick on top.
2. If it be a worm fence, the rails must be well laid and at least
four feet high.
3. If made of posts, with boards, rails or poles, the posts must
be well set in the ground and not more than eight feet apart, with
not less than three six-inch boards, or rails, or poles not less than
two and one-half inches in diameter at the small end; if four poles
are used, they must not be less than two inches in diameter at the
small end. The top board, rail, or pole must not be less than four
feet from the ground, the spaces well divided, and the boards, rails
or poles securely fastened to the posts; if poles not less than three
inches in diameter at the small end are used, the posts may be set
twelve feet apart.
4. If wire be used in the construction of fences, the posts must
not be more than twenty-four feet apart, set substantially in the
-round, and three substantial stays must be placed at equal distances
between the posts, and all wires must be securely fastened to each
post and stay with not less than three barbed wires, or four coiled
spring wires of not less than No. 9 gauge. The bottom wire shall
be not more than twenty-one inches from the ground, and the other
wires a proper distance apart. The wires must be well stretched
and the fence not less than forty-seven inches high. If all woven
wire fencing is used, the top and bottom wire must not be less than
No. 9 gauge, or two No. 13 gauge wire twisted together, with in-
termediate bars not less than twelve inches apart and of not less
than No. 14 gauge wire, and the stay wires not more than twelve
inches apart, and the top wire not less than forty-seven inches from
Vol. 1 — 20
592 POLICE — INCLOSURES AND TRESPASSES Tit. 8
the ground. If woven wire less in height is used, it must be
brought to the height of forty-seven inches by additional barbed
wires, or coiled spring wire of not less than No. 9 gauge, and not
more than twelve inches between the wires: Provided, That if
barbed wire only is used, and the posts are not more than sixteen
feet apart, no stays need be used.
5. If made in whole or in part of brush, ditch pickets, hedge,
or any other materials, the fence, to be lawful must be equal in
strength and capacity to turn stock, to the fence above described.
6. All fences in good repair, of suitable material, and of every
description, and all creeks, brooks, rivers, sloughs, ponds, bluffs, hills
or mountains, that present a suitable obstruction to stock are deemed
lawful fences.
Historical: Rev. St. 1887, Sec. 1301;
amended Laws 1901, 207, Sec. 1;
amended Laws 190 7, 132, Sec. 1.
Erection of Partition Fences.
Sec. 1266. When two or more persons own land adjoining which
is inclosed by one fence, and it becomes necessary for the protection
of the rights and interests of one party that a partition fence be
made between them, the other or others, when notified, must proceed
to erect, or cause to be erected, one-half of such partition fence ; said
fence to be erected on, or as near as practicable to, the line of said
land. And if, after notice given in writing, either party fails to
erect and complete, within six months time thereafter, one-half of
such fence, the party giving the notice may proceed to erect the entire
partition fence and collect by law one-half of the costs of such fence
from the other party, and he has a lien upon the land thus partitioned.
Historical: Rev. St. 1887, Sec. 1302.
See 13 Ter. Ses. (1885) 118, Sec. 1.
Care of Fences by Adjoining Owners.
Sec. 1267. Each adjoining land owner, unless both otherwise
agree, or unless other arrangements have heretofore been made,
must construct and keep in repair that half of the line fence between
their respective tracts of land which is to his left when he is standing
on his own land facing the other; unless the owner of one of said
tracts choose to allow his land to be uninclosed : Provided, That one
party may, for his own convenience, strengthen, or render hog-tight,
the whole or any part of said fence by stretching one or more addi-
tional wires thereon or otherwise; in which event the other shall
not be liable for his proportion of the additional cost; but, Provided,
further, If one of the parties shall render such fence hog-tight and
the other shall at any time use his field for the pasture of hogs, sheep
or goats, without a herder, such other shall become liable as a joint
user or owner, and shall, upon demand of the party building the
hog-tight fence, pay his just proportion thereof. In case viewers
are appointed, as provided in Section 1269, the report of such viewer-
must be in conformity with this section.
Historical: Rev. St. 18 87, Sec. 1303.
(See 13 Ter. Ses. (1885) 118, Sec. 1);
amended Laws 1907, 133, Sec. 2.
Ch. 10. FENCES 593
Use of Division Fence in Making Inclosure.
Sec. 1268. When one of such adjoining proprietors has allowed
his land to lie uninclosed, and afterwards incloses it, he owes and
is indebted to such adjoining owner one-half the value of any division
fence owned by the other, used by him in forming such inclosure;
and each must thereafter keep one-half of such fence in repair.
Historical: Rev. St. 1887, Sec. 1304.
13 Ter. Ses. (1885) 118, Sec. 1.
Disagreement Between Owners: Viewers.
Sec. 1269. If adjoining proprietors cannot agree as to the pro-
portion or the particular part of a division fence to be made, main-
tained or kept in repair by each respectively, either party may apply,
on five days' notice, to a justice of the peace of the township, if there
be one, if not, to the probate judge, for the appointment of three
viewers who may examine witnesses on oath, and view the premises
and must determine:
1. If the fence is owned by one proprietor, how much the other
must pay as his proportion of the value ;
2. If the fence or the whole thereof is not built, which part
thereof must afterwards be built and kept in repair by each.
The determination of the viewers must be reduced to writing
and signed by them, and filed in the office of the county recorder,
and such determination is conclusive upon the parties. If any part
of such determination consists in fixing the value of a fence for
which one party is to pay the other a proportion also fixed, such
proportion must be paid within thirty days after notice of such de-
termination, and if not so paid, may be recovered by action in any
court of competent jurisdiction. The viewers are entitled to a fee
of three dollars each, one-half to be paid by each proprietor.
Historical: Rev. St. 1887, Sec. 1305.
See 13 Ter. Ses. (1885) 118, Sec. 1.
Prohibition Against Removal.
Sec. 1270 When one party ceases to improve his land, or open
his inclosure. he must not take away any part of the partition fence
belonging to him and adjoining the next inclosure, if the owner or
occupant of such adjoining inclosure will, within two months after
the same is ascertained, pay therefor such sum as is agreed upon
by the parties, or, if failing to agree, then such sum as may be
adjudged by viewers as provided in the last section ; nor must such
partition fence be removed when by so doing it will expose to de-
duction any crops in such inclosures.
Historical: Rev. St. 1887, Sec. 1306.
13 Ter. Ses. (1885) 118, Sec. 4.
Removal of Fence Built by Mistake.
Sec. 1271. When any person has built by mistake and in good
faith, a fence on the land of another, such person or his successor
in interest may, within one year from the time of discovering such
fence, doing no unnecessary damage thereby.
594 POLICE — INCLOSURES AND TRESPASSES Tit. 8
Historical: Rev. St. 1887, Sec. 1307.
13 Ter. Ses. (1885) 118, Sec. 5.
Same: Restrictions on Occupant.
Sec. 1272. The occupant or owner of land whereon a fence has
been built by mistake, must not throw down or in any manner disturb
such fence during the period which the person who built it is author-
ized by the last section to remove it, when by so doing he will expose
any crop to destruction.
Historical: Rev. St. 1887, Sec. 1308.
See 13 Ter. Ses. (1885) 118, Sec. 6.
Same: Survey of Line.
Sec. 1273. The person building such fence, or the occupant or
owner of the land whereon the same is built, may, upon notice to
the other party, whenever doubts arise about the location of such
fence, require the surveyor of the county to run the division line
between their respective lands, and the line so run is sufficient notice
to the party making the mistake, so as to require him to remove
such fence within one year thereafter.
Historical: Rev. St. 1887, Sec. 1309.
13 Ter. Ses. (1885) 118, Sec. 7.
Removal of Partition Fence.
Sec. 1274. In all cases where the inclosures of two or more per-
sons are divided by a partition fence of any kind, and either of the
parties thinks proper to vacate his part of such inclosure, or to make
a lane of passage between such adjoining inclosures, such person is
at liberty to remove his share or part of such partition fence, on
giving six months' notice in writing of such intention to the party
owning or occupying the adjoining inclosure, or to his agent, if such
party is not a resident of the county.
Historical: Rev. St. 1887, Sec. 1310.
13 Ter. Ses. (1885) 118, Sec. 8.
Establishment of Gates.
Sec. 1275. In all cases where a partition fence exists between
parties, and a gate is established for passage through their lands,
any other person may pass through such gate free, doing no un-
necessary damage, and if such person leave any such gate open,
or does other damage to the premises, he is liable to the party
aggrieved in double damages.
Historical: Rev. St. 18 87, Sec. 1311.
13 Ter. Ses. (1885) 118, Sec. 9.
CHAPTER 11.
INCLOSURES OF RESERVOIRS AND DUMPS.
Section
1276. Reservoirs and dumps to be
inclosed.
Section
1277. Liability for failure to inclose
Reservoirs and Dumps to Be Inclosed.
Sec. 1276. The owner or operator of any quartz mill must inclose
with a good and substantial fence, sufficient to turn stock, all reser-
Ch. 12, Art. 1.
HOG TRESPASS
595
voirs and dumps or other material, known to contain that which is
injurious to the health of stock.
Historical: Rev. St. 1887, Sec. 1335.
See 7 Ter. Ses. (1873) 61, Sec. 1.
Liability for Failure to Inclose.
Sec. 1277. Every person who fails to comply with the provisions
of the last section is liable to the owner of any stock injured by drink-
ing the water or acids that flow from such mill, in twice the damage
sustained.
Historical: Rev. St. 1887, Sec. 1336.
See 7 Ter. Ses. (1873) 61, Sec. 2.
CHAPTER 12.
ANIMALS RUNNING AT LARGE AND TRESPASSING.
Article
1. Hog trespass.
2. Stallions running at large.
Article
3. Animals running at large in towns.
«4. Trespass of animals.
ARTICLE 1.
HOG TRESPASS.
Section
1278. Hogs need not be fenced
against.
1279. Taking up trespassing hogs.
1280. Notice of taking up.
Section
1281. Arbitration of damages.
1282. Failure of owner to appear.
1283. Hogs running at large within
towns.
Hogs Need Not Be Fenced Against.
Sec. 1278. The owner or occupant of premises is not required to
fence against hogs.
Historical: Rev. St. 18 87, Sec. 1340.
Constitutionality: The regulations
provided for in this and the following
sections are a valid exercise of the
police power of the State and con-
stitutional. Sifers v. Johnson (1901)
7 Ida. 798; 65 Pac. 709.
Taking Up Trespassing Hogs.
Sec. 1279. If any hog is found trespassing, the occupant or pro-
prietor of the premises may take up and safely keep, at the expense
of the owner thereof, such hog, and hold the same until the payment
of the expense and damages by the owner, and shall be allowed fifty
cents per head additional for each animal so taken up.
Historical: Rev. St. 18 8 7, Sec. 1341
(see 11 Ter. Ses. (1881) 434, Sec. 1);
amended act 15 Ter. Ses. (Laws
1888-89) 42, Sec. 1.
Cited: Sifers v. Johnson (1901) 7
Ida. 798; 65 Pac. 709.
Notice of Taking Up.
Sec. 1280. Any person taking up a hog under this article, must
immediately thereafter write out three notices in a plain, legible
hand, giving a correct description thereof with the marks and brands,
if any, on said hog, and the time and place of taking up, and at once
post up said notices in a good and substantial manner in three con-
spicuous places in the precinct in which said hog was taken up.
596
POLICE— INCLOSURES AND TRESPASSES
Tit. 8
Historical: Rev. St. 1887, Sec. 1342.
See 11 Ter. Ses. (1881) 434, Sec. 2.
Cited: Sifers v. Johnson (1901) 7
Ida. 798; 65 Pac. 709.
Arbitration of Damages.
Sec. 1281. If the owner and taker-up of such hog cannot agree
as to the amount of damage, they must each select a disinterested
person, residing in the precinct where such trespass has been com-
mitted, who must, after first hearing all the facts in the case from
both parties interested, fix the amount of damages, if any, to be
paid, and the same are a lien upon said hog and other personal prop-
erty of the owner, not exempt by law, and if said amount is not paid
within five days, together with costs of keeping said hog, the taker-up
must notify the constable of the precinct whose duty it is to levy
upon the hog and a sufficient amount of other personal property of
the owner not exempt by law, as shall pay all damages and costs,
and shall sell at public auction on the premises where the said hog
was taken up, after first giving five days' notice of such sale, in the
manner prescribed in the last section, and must be applied, first,
to the payment of the constable's fees, which are the same as on
execution ; second, the payment of the award, and subsequent charges
for keeping, to the taker-up of such hog, and the remainder, if any,
must be paid to the owner of such hog : Provided, That either party
feeling aggrieved by the award may appeal to any justices' or probate
court within the county, within five days after said award, and the
party so appealing must file a good and sufficient bond for the pay-
ment of all costs and expenses arising from said appeal.
Historical: Rev. St. 1887, Sec. 1343;
(See 11 Ter. Ses. (1881) 434, Sec. 3);
amended act 15th Ter. Ses. (Laws
1888-89) 42.
Cited: Sifers v. Johnson (1901) 7
Ida. 798; 65 Pac. 709.
Failure of Owner to Appear.
Sec. 1282. If the owner or person entitled to the possession of
such hog does not appear and substantiate his title thereto, and pay
the charges thereon within thirty days after the notice has been
given, as above provided, the absolute ownership of such hog shall
be vested in the person taking up such hog : Provided, He shall keep
a copy of the notices posted, as prescribed by this article, which shall
have indorsed thereon the date and manner of posting and the places
where posted, which shall have the same force and effect as a bill
of sale of such hog.
Historical: Rev. St. 1887, Sec. 13 44
(see 11 Ter. Ses. (1881) 434, Sec. 4);
amended act 15th Ter. Ses. (Laws
1888-89) 42.
Cited: Sifers v. Johnson (1901) 7
Ida. 798; 65 Pac. 709.
Hogs Running at Large Within Towns.
Sec. 1283. It shall be the duty of any constable or peace officer
in any platted and recorded town, upon the complaint of any citizen
thereof, to take up and impound all hogs found running at large
within the limits of said town. He shall keep and dispose of all hogs
so taken up in the manner prescribed by this article.
Historical: Rev. St. 1887, Sec. 1345;
amended act 15th Ter. Ses. (Laws
1888-89) 42.
Ch. 12. Art. 2.
STALLIONS RUNNING AT LARGE
597
ARTICLE 2.
STALLIONS RUNNING AT LARGE.
Section
1286. Stallion may be taken up.
1287. Same: Notice and sale.
Section
1284. Prohibition against stallions
running at large.
1285. Penalty for violation.
Prohibition Against Stallions Running at Large.
Sec. 1284. The owner of any stallion over the age of eighteen
months must not allow the same to run at large, unless it is of the
market cash value of two hundred and fifty dollars, or more, and
is at such value assessed.
Historical: Rev. St. 1887, Sec. 12 40
(see 5 Ter. Ses. (1869) 127, Sec. 1.);
amended Laws 1899, 26, Sec. 1; re-
enacting Laws 1890-91, 48, Sec. 1.
Death of Stallion — Liability: The
fact that a stallion has escaped from
the inclosed pasture of its owner does
not preclude the owner from recover-
ing damages for the death of the stal-
lion caused by its getting on the track
of a railroad at a place where the
railroad has unlawfully failed to fence.
Patrie v. Oregon Short Line Ry.
(1899) 6 Ida. 448; 56 Pac. 82.
Penalty for Violation.
Sec. 1285. If any stallion of less than two hundred and fifty dol-
lars market cash and assessed value, ridgling, or any unaltered male
mule or jackass over the age of eighteen months be found running
at large, the owner must be fined for the first offense twenty dollars,
and for each subsequent offense not more than one hundred dollars
nor less than forty dollars, to be recovered before a justice of the
peace in the name of any person who will prosecute the same, one-
half to his own use and the other half to the use of the county school
fund.
Historical: Rev. St. 1887, Sec. 1241
(see 5 Ter. Ses. (1869) 127, Sec. 2);
amended Laws 1899, 26, Sec. 2; re-
enacting Laws 1890-91, 48, Sec. 2.
Stallion May Be Taken Up.
Sec. 1286. Any person may take up and safely keep any such
stallion, mule, ridgling or jackass found running at large or in his
inclosures; and, when so found, must give the owner thereof five
days' notice that such animal is in his possession; and if, at the ex-
piration of the aforesaid time, the owner neglects to remove such
animal and pay all reasonable charges for keeping the same, then
the taker-up must notify the sheriff or any constable, whose duty
it is to sell such animal at public auction, on the premises where
taken up, after first giving five days' notice of such sale; and the
proceeds of such sale must be applied, first, to the fees of the officer
making such sale, which are the same as on execution; second, to
the payment of the charges of the taker-up of such animal : and the
remainder, if there be any, must be paid to the owner of such animal.
Historical: Rev. St. 1887, Sec. 12 42
(see 5 Ter. Ses. (1869) 12 7, Sec. 3;
amended Laws 1899, 26, Sec. 3;
re-enacting Laws 1890-91, 48, Sec. 3.
"Fees of the" inserted before "officer
making such sale," to complete the
sense.
Same1 Notice and Sale.
Sec. 1287. If the owner or claimant of any stallion, ridgling, un-
altered male mule or jackass be unknown, the taker-up must give
ten days' notice, with the description of the animal or animals, its
598
POLICE — INCLOSURES AND TRESPASSES
Tit. 8
marks or brands, by posting up at least three written or printed
notices in at least three conspicuous places in the county, calling
upon the owner to claim the property; and if, at the expiration of
the ten days, the owner neglects to remove such animal or animals
and pay all costs, then the taker-up shall call on the sheriff or any
constable of the county to sell such animal or animals; and after
deducting the fees of the officer making such sale and the reasonable
charges of the taker-up, the balance, if any there be, shall be paid
into the county treasury, to be applied to the county school fund.
Historical: Rev. St. 1887, Sec. 1243
(see 5 Ter. Ses. (1869) 127, Sec. 4);
amended Laws 1899, 26, Sec. 4;
re-enacting Laws 1890-91, 48, Sec. 4.
ARTICLE 3.
ANIMALS RUNNING AT LARGE IN TOWNS.
Section
1288. Unlawful to
towns.
range stock in
Section
1289. Same: Penalty.
12 90. Duties of officers.
Unlawful to Range Stock in Towns.
Sec. 1288. It shall be unlawful for any person or persons owning
livestock, or the agent or employee of such person or persons, to
allow any cattle, horses, sheep or hogs to range or graze within the
platted limits of any incorporated town or village of more than five
hundred inhabitants, between the first day of September and the
first day of April, without a herder.
Historical: Laws 1901, 158, Sec. 1.
Same : Penalty.
Sec. 1289. Any person or persons, or the agent or employee of
such person or persons, violating the provisions of the last section,
shall be deemed guilty of a misdemeanor, and upon conviction thereof,
shall be fined in a sum of not less than five nor more than twenty-five
dollars.
Historical: Laws 1901, 158, Sec. 2.
Duties of Officers.
Sec. 1290. It is hereby made the duty of any sheriff, deputy sheriff,
or constable, to complain against and prosecute any person or persons
violating the above sections.
Historical: Laws 1901, 158, Sec. 3.
ARTICLE 4.
TRESPASS OF ANIMALS.
Section
1291. Liens on trespassing stock.
1292. Same: Recovery of damages.
1293. Animal may be taken up.
1294. Proceedings for assessment of
damages.
1295. Same: Compensation of view-
ers.
Section
12 96. Execution and sale.
1297. Same: Disposition of surplus
money.
1298. Appeals: Proceedings in Dis-
trict Court.
Liens on Trespassing Stock.
Sec. 1291. Any person having any inclosure in conformity with
Ch. 12. Art. 4.
TRESPASS OF ANIMALS
599
the provisions of Chapter 10 of this title is deemed to possess a
lawful inclosure, and if any horses, mules, jacks, jennies, cattle, hogs
or sheep break into such inclosure, the party injured has a lien upon
such animals until he is recompensed for all damages committed by
said animals: Provided, That persons owning or occupying any
lands which are inclosed by any water course or natural embank-
ment, or hill, or any cliff or rocks, may have the same examined by
viewers as is provided in this chapter, and if such appraisers report
the same a sufficient inclosure, it must be deemed a lawful inclosure.
Historical: Rev. St. 1887, Sec. 1320.
See 4 Ter. Ses. (1867) 80, Sec. 9.
Omitting the words "attorney or"
before "party injured." The act of the
4th session gave a lien to "the owner,
his agent, attorney or lessee, or other
party injured," but such an interpo-
lation is unwarranted in this section
and the word "attorney," standing by
itself, is meaningless.
Sheep and Swine: A land owner is
not required to fence against sheep
and swine. Spencer v. Morgan (1905)
10 Ida. 542; 79 Pac. 459.
Same: Recovery of Damages.
Sec. 1292. If any animal before mentioned breaks into any in-
closure or through any fence conforming to the requirements of
Chapter 10, the owner of such animal must, for such trespass, pay
to the party injured the full amount of damage he has sustained by
reason of such trespass, to be recovered with costs in any court
having jurisdiction.
Historical: Rev. St. 1887, Sec. 1321.
See 4 Ter. Ses. (1867) 80, Sec. 10.
Animal May Be Taken Up.
Sec. 1293. The party injured may take up any animal breaking
into such inclosure, and keep the same at the expense of the owner,
and the said taker-up has a lien upon such animal for damges, costs
and expenses; but the owner may at any time pay charges, costs
and expenses and take such animal.
Historical: Rev. St. 1887, Sec. 1322.
4 Ter. Ses. (1867) 80, Sec. 11.
Proceedings for Assessment of Damages.
Sec. 1294. Upon complaint of the party injured, to any justice of
the peace in the county in which such trespass is alleged to have been
committed, said justice must issue a summons, as in civil actions
against the owner of said property as defendant; if not known he
may be designated in said summons by a fictitious name; upon the
return of said summons, if personally served, proceedings must be
had as in civil actions; if the summons be not personally served in
consequence of such defendant not being found in the county, then
the said justice must forthwith issue an order requiring three disinter-
ested freeholders of the precinct named therein not related to the par-
ties, to forthwith view the fence where the trespass is alleged to have
been committed, and to appear at the time mentioned in said order,
before said justice and give evidence thereof; and upon such hearing,
if said justice finds that said fence was lawful and sufficient, he must
proceed to assess the damages accruing in consequence of said tres-
pass, and render judgment therefor, together with costs, as in other
actions; such judgment only binds said property.
600
POLICE — INCLOSURES AND TRESPASSES
Tit. 8
Historical: Rev. St. 1887, Sec. 1323.
See 4 Ter. Ses. (1867), 80, Sec. 12.
Same: Compensation of Viewers.
Sec. 1295. The viewers appointed are entitled each to the sum of
three dollars for their services, and fifty cents each for every mile
necessarily traveled by them, which must be taxed as costs in said
proceedings.
Historical: Rev. St. 188 7, Sec. 132 4.
4 Ter. Ses. (1867) 80, Sec. 13.
Execution and Sale.
Sec. 1296. Upon the judgment, the justice must issue execution
particularly describing said property, and directing a sale thereof
for the satisfaction of said judgment and costs; and the officer to
whom the same is delivered for service, must thereupon post notices
in three conspicuous and public places in said precinct, Which notices
must contain a particular description of said property, and specify
a time and place of sale thereof, as in notice of sale on execution.
The justice, constable or sheriff may receive the same fees as for
like services in a civil action. At any time before said sale the owner
may redeem said property from said lien, upon paying the costs and
judgment, when rendered, or amount of said claim and costs.
Historical: Rev. St. 18 87, Sec. 1325.
4 Ter. Ses. (1867) 80, Sec. 14.
Same : Disposition of Surplus Money.
Sec. 1297. Upon the sale of any property as provided in this chap-
ter, and after the payment of all damages, expenses and costs, the
overplus, if any there be, must be paid over to the justice, and if
not demanded by the owner of said property within ninety days
from the date of said sale, seventy-five per cent thereof must be
paid by said justice into the county treasury for the benefit of the
common school fund, and twenty-five per cent, the balance thereof,
to the person taking and impounding said animal as compensation
for his services.
Historical: Rev. St. 1887, Sec. 1326.
4 Ter. Ses. (1867) 80, Sec. 16.
Appeals: Proceedings in District Court.
Sec. 1298. Nothing in this chapter contained prevents appeals as
in civil cases. If in any case the amount of such damages equals or
exceeds three hundred dollars, proceedings to sell said property may
be had in the District Court.
Historical: Rev. St. 1887, Sec. 1327.
See 4 Ter. Ses. (1867) 80, Sec. 17.
Cross Reference: Appeals to Dis-
trict Court: Sees. 4838-4844.
CHAPTER 13.
ESTRAYS.
Section
12 99. Taking up estrays.
1300. Owner to recover proceeds.
Section
1301. Neglect, of constable.
Ch. 13. ESTRAYS 601
Note: The estray law has been amended by practically every session
of the Legislature for the last ten years. The subject was treated in. Title
9 of the Political Code of the Revised Statutes, which was amended by
Laws 1897, 76; Laws 1899, 305; ib. 397; Laws 1901, 88; Laws 1903, 212.
The act of 1905, contained in this chapter, was evidently intended to cover
the whole subject and to supersede all prior legislation. The first section
of this law was amended by Laws 1907, 551.
Taking Up Estrays.
Sec. 1299. Any animal or animals running at large in this State
without sufficient food or shelter at any time between the first day
of November and the first day of the following March, and any bull
old enough for service found running at large between the first day
of November and the first day of June, and any animal that breaks
or jumps more than once into any field or other inclosure surrounded
by a lawful fence, may be taken up by any resident of this State,
who shall immediately notify the constable of the precinct in which
such animal or animals may be found, who shall proceed in the fol-
lowing manner :
(a) If the owner is known, he shall, within five days, notify
such owner in writing, describing the animal or animals and where
he may obtain the same.
(b) If the owner is unknown, then he shall at once send by
registered mail to the county recorder a written notice describing
the animal or animals so taken by marks, brands, age, sex, kind and
color, and where the animal or animals are held, and shall search
diligently on said animals for marks and brands.
(c) If the brands on said animal or animals are recorded, then
such recorder shall immediately send by registered mail to the re-
corded owner, to the post office address as stated in the brand book,
a copy of such notice, and shall notify the constable in the same
manner of the name and address of such owner; and if the name of
the owner of the brand cannot be found in the brand book or record,
then such recorder shall immediately, by registered letter, notify
said constable that the brand is not recorded.
(d) If the constable receives notice from the said county re-
corder that the brand described as being on said animal or animals
is recorded, and the owner of the recorded brand has been notified,
he shall wait ten days after receiving said notice before advertising
the sale thereof as herein provided.
(e) If, however, said constable receives notice that the brand
described be not recorded, he shall at once advertise the said animal
or animals for sale in a paper published in said county, and if no
paper is published in said county, then in a paper having general
circulation therein, by notice, describing said animal or animals by
giving their marks and brands, age as near as may be ascertained,
sex, and color, and when and where the same will be sold, which
notice must be published once a week for four successive weeks, and
the sale must not be less than forty days from receiving said notice
from the county recorder, and must be made in some public place
in the precinct where the damage was done.
'(f) If the owner of the recorded brand does not appear and
claim the animal or animals within ten days after the constable re-
ceives notice from the county recorder, then said constable shall
602 POLICE — INCLOSURES AND TRESPASSES Tit. 8
proceed to advertise and sell said animal or animals the same as if
the brand on said animal or animals was unrecorded.
(g) If any person appears before the constable and claims said
animal or animals before such sale, then if such person appears to
be the recorded owner of the brand of such animal or animals, such
constable shall deliver such animal or animals to the owner on his
paying all costs of caring for, sending and preparing notices, and
advertising the same as hereinafter provided.
'(h) If, however, such person is not the recorded owner of such
brand, then such person must make affidavit that he is the owner,
and state and give all particulars of ownership ; and if the constable
is satisfied that such person is the owner, the constable may turn
over to him on his paying the damages assessed against said animal or
animals and all costs of caring for, sending and preparing notices
and advertising as hereinafter provided.
(i) If no person appears and claims said animal or animals on
or before the day advertised for the sale, then such constable shall
proceed to sell the same to the highest bidder for cash, and give a
bill of sale to the purchaser or purchasers, and shall cause the same
to be branded with the estray brand, which shall be (E) on the
left side of the neck, and the purchaser shall thereupon become the
owner of said animal or animals.
(j) Out of the moneys received for such sale, he shall first pay
the cost of advertising, sending and preparing notices, advertising
the same and selling such animal or animals, and if any moneys are
remaining, he shall turn the same over to the treasurer of the school
district where said animal or animals was or were taken up for the
benefit of the school of said district.
(k) For the feeding and caring of such animal or animals, the
constable shall receive the sum of ten cents per head per day; for
writing and sending notices to the county recorder, he shall receive
fifty cents; for selling the said animal or animals, he shall receive
one dollar for the first head sold and fifty cents per head for each
additional animal. The recorder shall receive fifty cents for each
notice sent; the publishers shall receive legal rates for advertising
each animal.
Historical: Laws 1905, 366, Sec. 1;
amended Laws 1907, 551, Sec. 1.
Owner to Kecover Proceeds.
Sec. 1300. At any time within six months after receiving said
moneys by the treasurer of said school district, any person claiming
to be the owner of the animal or animals sold, may recover said
money from the treasurer upon producing proof that the said animal
or animals sold was or were his property, before the constable who
made the sale of the same, or his successor in office, to his satisfac-
tion, which proof must be reduced to writing and must be made
under oath, and for such purpose said constable is empowered to
administer oaths to the claimant or his witnesses. Upon making
such proof, the constable shall give such claimant an order on the
treasurer, who shall retain such order until the six months have
expired, and if such claimant is the only person claiming the same,
Ch. 14.
HERD DISTRICTS
603
said treasurer shall turn over such moneys to him, but if there be
more than one claimant of said moneys, then such contestant claim-
ants must bring their action within three months to determine who
was the owner of the animal or animals sold, in the justice's court
having jurisdiction, and the claimant receiving judgment in his favor
shall be entitled to said moneys, and in case the ownership of said
property be not proved as provided in this section within said time,
then the moneys so turned over to said treasurer shall be forfeited
to said school district for the benefit of the schools of said district,
and the owner shall be forever barred from recovering the same.
Historical: Laws 1905, 366, Sec. 2.
Neglect of Constable.
Sec. 1301. Any constable wilfully or negligently failing to comply
with any of the provisions of this chapter, shall be liable to any person
injured for all damages he may sustain by reason of such failure.
Historical: Laws 1905, 366, Sec. 3.
CHAPTER 14.
HERD DISTRICTS.
Violation of commissioners' or-
der a misdemeanor.
Same: Liability for damages.
Trespassing animals may be
taken up.
Xote: Certain sections of this chapter follow closely the Kansas law:
See Kan. Gen. St. 1901, Sees. 7466 et seq.
Commissioners May Create Herd Districts.
Sec. 1302. The board of county commissioners of each county in
the State shall have power to create "herd districts" within such
county, as hereinafter provided ; and when such district is so created,
the provisions of this chapter shall apply and be enforcible therein.
Historical: Laws 1907, 126, Sec. 1.
Notice of Hearing Petition.
Sec. 1303. A majority of the qualified electors of any district,
which district may include one or more voting precincts or parts of
one or more voting precincts, may petition the board of county com-
missioners in writing to create such district a "herd district." Such
petition shall describe the boundaries of the said proposed herd dis-
trict, and shall designate what animals of the species of horses, mules,
asses, cattle, swine, sheep and goats it is desired to prohibit from
running at large in such district; and may designate the period of
the year during which it is desired to prohibit such animals from
running at large.
Historical: Laws 1907, 126, Sec. 2.
Notice of Hearing Petition.
Sec. 1304. It shall be the duty of the board of county commission-
Section
Secti<
1302.
Commissioners may create herd
districts.
1307.
1303.
Petition to establish district.
1308.
1304.
Notice of hearing petition.
1309.
1305.
Order creating district.
1306.
Limitation on powers of com-
missioners.
604 POLICE — INCLOSURES AND TRESPASSES Tit. 8
ers, after such petition has been filed, to set a date for hearing said
petition, notice of which hearing shall be given by posting notices
thereof in three conspicuous places in the proposed herd district, and
by publication for two weeks previous to said hearing in a newspaper
published in the county nearest the proposed herd district.
Historical: Laws 1907, 126, Sec. 3.
Order Creating District.
Sec. 1305. At such hearing, if satisfied that a majority of the
electors of said proposed herd district are in favor of the enforce-
ment of the herd law therein, and that it would be beneficial to said
district, the board of commissioners shall make an order creating
such herd district, in accordance with the prayer of the petition, or
with such modifications as it may choose to make. Such order shall
specify a certain time at which it shall take effect, which time shall
be at least thirty days after the making of said order ; and said order
shall continue in force, according to the terms thereof, until the same
shall be vacated or modified by the board of commissioners, upon
the petition of a majority of the electors of said district.
Historical: Laws 1907, 126, Sec. 4.
Limitation on Powers of Commissioners.
Sec. 1306. The provisions of Sections 1302 and 1305 shall not be
construed to confer upon the board of county commissioners any
jurisdiction over animals otherwise prohibited from running at large
under existing laws.
Historical: Laws 1907, 126, Sec. 5.
Violation of Commissioners' Order a Misdemeanor.
Sec. 1307. Any person who shall, in violation of any order made
pursuant to the provisions of Section 1305, permit or allow any of
the animals designated in such order, owned by him or under his
control, to run at large in such herd district, shall be deemed guilty
of a misdemeanor. The pendency of any such action shall not pre-
vent nor prejudice the bringing of another action against the same
party for a violation of such order committed after the commence-
ment of such pending action.
Historical: Laws 1907, 126, Sec. 6.
Same: Liability for Damages.
Sec. 1308. The owner of animals permitted or allowed to run at
large in violation of any order made in accordance with the provisions
of Section 1305, shall be liable to any person who shall suffer damage
from the depredations or trespasses of such animals, without regard
to the condition of his fence ; and the person so damaged shall have
a lien upon said animals for the amount of damage done, and the
cost of the proceedings to recover the same, and may take the same
into custody until all such damages are paid: Provided, That the
person so taking said animals into custody shall not have the right
to retain the same for more than five days without commencing an
action against the owner thereof for such damages. Said damages
may be recovered by a civil action before any court of competent
Ch. 15. Art. 1.
HORTICULTURE — STATE BOARD
605
jurisdiction, and no such action shall be defeated or affected by reason
of any criminal action commenced or prosecuted against the same
party under the provisions of the preceding section.
Historical: Laws 1907, 126, Sec. 7.
Trespassing Animals May Be Taken Up.
Sec. 1309. Any person may take into custody any of the animals
specified in the said order of the board of commissioners that may
be about to commit a trespass upon the premises owned, occupied
or in charge of such person, and retain the same until all reasonable
charges for keeping said animals are paid: Provided, That it shall
be the duty of the person so taking said animals into custody to
notify the owner or person in charge of the same within five days
thereafter, and if the owner or person in charge of them shall not
be known to the person so taking said animals into custody, and cannot
be found after diligent search and inquiry, he may proceed in the
manner provided for the taking up and disposal of estrays.
Historical: Laws 1907, 126, Sec. 8.
THE HORTICULTURAL AND BEE INDUSTRIES.
CHAPTER 15.
HORTICULTURAL INSPECTION.
Article
1. The State Board of Horticultural
Inspection and its officers.
Article
2. Regulations relating to fruit.
Note: A horticultural law was first enacted in 1891 (Laws 1890-91, 182).
This act provided for the appointment of a horticultural commissioner in
each county on application being made therefor. It was superseded
by Laws 1905, 77, providing for the appointment of a State Horticultural
Inspector, which in turn was repealed by Laws 1897, 109, which first cre-
ated a Board of Horticultural Inspection, and the provisions of which were
substantially the same as those of the present law, except that there was
no general State Inspector, but merely district inspectors. This latter act
was re-enacted by Laws 1899, 122, and was superseded in 1903 by the act
contained in this chapter.
ARTICLE 1.
TIIF STATE BOARD OF HORTICULTURAL
OFFICERS.
INSPECTION
AND ITS
Section
1310. Constitution of State Board.
1311. Meetings and election of offi-
cers.
1312. Appointment of Inspector and
deputies.
1313. Compensation of deputy in-
spectors.
Section
1314. Bond of Inspector and deputies.
1315. Duties.
1316. Same: Authority to enforce
quarantine.
1317. Reports.
Constitution of State Board.
Sec. 1310. The State Board of Horticultural Inspection consists
of five members, as follows : The director of the experiment station
and the professor of zoology of the University of Idaho shall be ex-
officio members of said board, and the other three members shall be
606
POLICE — HORTICULTURE AND BEES
Tit. 8
appointed by the Governor of the State, and shall hold office for a
term of three years, or until their successors are appointed and quali-
fied: Provided, That the present members of the board shall hold
office for the remainder of their respective terms in the same manner
as if these Codes had not been passed, one member retiring and a
new member being appointed each year. Before entering upon the
duties of his office each member of the board shall take and subscribe
the official oath prescribed for State officers, which oath shall be
filed in the office of the Secretary of State. The members of the
board shall serve without compensation, but shall receive actual
expenses incurred in attending meetings of the board.
Historical: Laws 1903, 347, Sees. 1
(amended Laws 1907, 448, Sec. 1),
2 and 16, re-written in combination.
The phraseology of Section 1 has been
changed so as to omit the provision
for the appointment of the first board,
and to preserve the present constitu-
tion of the board.
Meetings and Election of Officers.
Sec. 1311. The State Board of Horticultural Inspection shall elect
its president and secretary annually from its members on the first
Monday in April of each year, and each of said officers shall hold
his said office at the pleasure of the board. The secretary shall per-
form such duties as may be prescribed by the board, and shall receive
such compensation as the board may establish, not exceeding seven
hundred dollars per annum, payable as provided in Section 1120.
Said board shall meet annually at such time and at such places as
it may determine.
Historical: Laws 1907, 448, Sec. 1,
adding Section 21 to Laws 1903, 347,
combined with Section 3 of the 1903
Law. Omitting the provision for the
first election of officers. The pro-
vision fixing the secretary's salary at
$700 "payable as provided in Section
1120," is taken from Laws 1905, 54,
Sec. 7 (Code Sec. 1120), which makes
the secretary an officer of both the
Dairy, Food and Oil Board and the
Horticultural Board, and requires his
salary to be paid one-half from the
horticultural funds and one-half from
the dairy, food and oil funds. This
section as it appeared in the 1903 law
fixed the secretary's salary at not to
exceed $350.
Appointment of Inspector and Deputies.
Sec. 1312. The board shall appoint a State Horticultural Inspector,
Whose jurisdiction shall extend throughout the State, who shall re-
ceive a salary of eighteen hundred dollars per annum, payable as
provided in Section 1120. They shall also divide the State into not
more than ten districts, and the State Horticultural Inspector shall
appoint, subject to the confirmation of the board, a deputy State
horticultural inspector for each district so established, if necessary.
The persons so appointed shall be especially qualified for their posi-
tions by reason of a practical knowledge of horticulture and the
pests incident thereto. Their jurisdiction shall be limited to their
respective districts. Said inspectors shall hold their office during
the pleasure of said board. Said board shall make an estimate of
the amount of money available for each district for each year, and
no inspector shall incur any expense in the discharge of his duties
in excess of said estimate furnished herein by said board. The
aggregate sum of all the estimates furnished to the various inspectors
for any one year must in no case exceed the amount available for
carrying out this chapter for such year.
Ch. 15. Art. 1.
HORTICULTURE — STATE BOARD
607
Historical: Laws 190 3, 347, Sec. 4.
"Who shall receive a salary of eigh-
teen hundred dollars per annum, pay-
able as provided in Section 1120," in-
serted for "and shall fix his salary at
not less than nine hundred dollars per
annum," to conform to Laws 1905, 54,
Sec. 7. (See Codes, Sec. 1120).,
Cross Reference: Inspector is Dairy,
Food and Oil Commissioner: Sec. 1118.
Compensation of Deputy Inspectors.
Sec. 1313. Each inspector so appointed shall receive as compensa-
tion for his services as such inspector the sum of five dollars per
day for each day actually and necessarily employed in the discharge
of his duties as prescribed in this chapter. Such compensation shall
be paid out of the general fund of the State upon warrants duly
drawn by the State Auditor, only after the bills presented for such
services shall have been audited and approved by the secretary and
a majority of said board, and audited as other bills against the State
of Idaho.
Historical: Laws 1903. 347, Sec. 5.
Bond of Inspector and Deputies.
Sec. 1314. Before entering upon the discharge of his duties the
State Horticultural Inspector shall be required to give bond in the
sum of five thousand dollars for the faithful discharge of his duties ;
and before entering upon the discharge of their duties the several
district horticultural inspectors shall be required to give bond in the
sum of one thousand dollars for the faithful discharge and perform-
ance of their duties; said bonds to be approved by the State Board
of Horticultural Inspection, and filed with the secretary of said board.
Historical: Laws 1907, 448, Sec. 1;
amending, by inserting Sec. 25, Laws
1903, 347.
Duties.
Sec. 1315. It shall be the duty of said inspectors, or the State In-
spector, either on their own motion or upon the complaint of inter-
ested parties, to enter and make, or cause to be made, inspection of
any field, rights of way of any irrigation canals or railways, public
highways, fields, orchards, nurseries, fruit packing houses, store
rooms, salesrooms, depots, or other places where fruits are grown or
stored, and of fruits, trees, plants, vines, shrubs or other articles with-
in the State supposed to be, or liable to be, infested with pests, or with
their eggs, or larvae, or infested with any contagious disease injurious
to fruits, plants, trees, shrubs or vines, as hereinafter provided. If
upon any inspection there be found any disease or pests, eggs or larvae,
of any pests injurious to fruits, plants, trees, shrubs, or vines, the
inspector shall notify the owner or owners, or the person or persons
in charge or in possession of said places, fields, orchards, nurseries,
trees, plants, shrubs, vines, fruits or other articles, as aforesaid. The
inspector shall require such person or persons to eradicate or destroy
said injurious pests or insects or their eggs or larvae, within a reason-
able time to be specified. Said notice shall be served in person or in
writing on said person or persons, or either of them, owning or
having in charge such infested places, rights of way, fields, orchards,
nurseries, trees, shrubs, vines, plants, fruits, or other articles as vis-
ited by the inspector, or it may be served in the same manner as the
608 POLICE — HORTICULTURE AND BEES Tit. 8
summons in a civil action. If the owner or owners, or the person or
persons in charge or in possession, of any highways, rights of way of
canals or railways, fields, orchards, or nurseries or trees or plants or
other articles infested with any insect or their eggs or larvae, or with
any disease injurious to any trees, fruits, vines, shrubs, plants, or any
other articles infested, after having been notified as above to eradi-
cate and destroy the same, shall fail, neglect, or refuse so to do, then
any and all such places, public highways, rights of way, fields, orchards,
nurseries, trees, plants, vines, fruit or other articles thus infested are
adjudged and declared to be a public nuisance, and shall be pro-
ceeded against as such, and whenever any such nuisance shall exist at
any place in the State or on the property of any non-resident, or on
any highway, rights of way, or field as aforesaid, or on any property
the owner or owners of which cannot be found within the State, or on
any property where notice has been served as aforesaid, and where
the owner. or those in possession shall refuse or neglect to abate such
nuisance within the time specified, it shall be the duty of the district
inspector within the county wherein the nuisance is to be abated, or
State Inspector, or either of them, and he is hereby empowered, to
cause said nuisance to be abated at once by eradicating or destroy-
ing all said pests or their eggs or larvae, or by disinfecting or destroy-
ing all fruits, trees, vines, plants, shrubs, pits, scions or other articles
upon which said fungus diseases or pests or their eggs or larvse may
be found. The expense of such proceedings shall be paid out of the
general fund of the State in the same manner as above set forth for
paying said inspectors. All sums so paid shall be collected from the
parties owning said real estate on which said nuisance was situated,
by civil suit in the name of the board herein created, and it shall be
the duty of the county attorney of the county in which said real estate
is situated to bring said suit, and said sum when collected shall be paid
into the State Treasury.
Historical: Laws 1903, 347, Sec. 6.
Same: Authority to Enforce Quarantine.
Sec. 1316. The inspectors are hereby vested with all the necessary
authority to enforce quarantine against any infected fields, lots, rights
of way, orchards, nurseries, trees, plants, buds, scions, or any other
place or articles within the State, when the same may be liable to
spread contagious diseases injurious to fruits or trees, or fruit crops
of any kind, and to provide necessary rules and regulations to govern
the same.
Historical: Laws 1903, 34 7, Sec. 7.
Reports.
Sec. 1317. Each inspector shall make a detailed report of all his
official acts, to the secretary of said board on the first day of every
month, which report shall be made under oath and shall include a
statement of the number of days actually and necessarily employed
and miles traveled as such inspector during said month, and a de-
tailed statement of the amount due him or to other persons, for ser-
vices or expenses incurred in carrying out the provisions of this chap-
ter. The secretary of said board shall audit all such bills, and shall
submit them by mail to each member of said board for approval and
Ch. 15. Art. 2.
HORTICULTURE — REGULATIONS
609
signature. If approved by a majority of said board, said bills shall be
transmitted to the State Auditor, and they shall be audited and paid
as other claims against the State.
Historical: Laws 1903, 347, Sec. 15.
ARTICLE 2.
REGULATIONS RELATING TO FRUIT.
Section
1318. Application and license to im-
port trees.
1319. Imported trees to be fumigated
before sale.
1320. Violation of sections a misde-
meanor.
1321. Certain trees to be destroyed.
1322. Sale of diseased trees pro-
hibited.
1323. Trees to be marked before
shipment.
Section
1324. Non-compliance with law a
misdemeanor.
1325. Sale of infected fruit pro-
hibited.
1326. Nursery agents to procure cer-
tificates.
1327. Inspection of imported nursery
stock.
1328. Liability of county officers.
Application and License to Import Trees.
Sec. 1318. No person, firm or corporation shall hereafter engage in
or continue in the business of importing and selling within the State
any fruit trees, forest trees, vines, plants, shrubs, scions, pits or other
nursery stock without first making an application in writing therefor
to the State Board of Horticultural Inspection, which said application
shall be accompanied with a good and satisfactory bond in the sum of
one thousand dollars, to be approved by the State Board of Horticultu-
ral Inspection, conditioned for the faithful observance of all of the pro-
visions of this chapter, and of the laws of the State of Idaho, by said
applicant or applicants and their agents and representatives. As soon
as said application is received and said bond approved, it shall be the
duty of said Board of Horticultural Inspection to issue a certificate to
such applicant or applicants, showing compliance upon the part of the
said applicant or applicants with the provisions of this section, and
thereafter the said applicant or applicants shall be authorized and
permitted to carry on said business within the State of Idaho.
Historical: Laws 1903, 347, Sec. 8.
Imported Trees to Be Fumigated Before Sale.
Sec. 1319. No person, firm or corporation after importing into the
State any fruit trees, forest trees, vines, plants, shrubs, scions, pits or
other nursery stock, shall sell or offer for sale or dispose of the same
without first thoroughly fumigating the same with hydro-cyanic gas,
unless said fruit trees, forest trees, vines, plants, shrubs, scions, pits
or other nursery stock be accompanied by a certificate from a com-
petent person duly authorized by law in the State, Territory or dis-
trict wherein said stock was grown, showing that the said stock had
been properly fumigated, or disinfected by hydro-cyanic gas before
being shipped.
Historical: Laws 1903, 347, Sec. 9.
Violation of Sections a Misdemeanor.
Sec. 1320. Any person, persons, firms or corporations, his or their
agents, who shall bring or import into the State fruit trees, forest
610 POLICE — HORTICULTURE AND BEES Tit. 8
trees, vines, plants, shrubs, scions, pits, or other nursery stock with
intent to sell or dispose of the same, without first making application
to the State Board of Horticultural Inspection, filing the necessary
bonds and securing the certificate provided for in Section 1318, or
who, having imported said fruit trees, forest trees, vines, plants,
shrubs, scions, pits or other nursery stock, into the State with intent
to sell or dispose of the same, or any part thereof, without first noti-
fying the State Horticultural Inspector or the deputy district inspec-
tor thereof, or having said fruit trees, forest trees, vines, plants,
shrubs, scions, pits or other nursery stock fumigated, as provided in
Section 1319, or, where found infested, shall fail or refuse to destroy
or disinfect the same, shall be deemed guilty of a misdemeanor and
upon conviction thereof, shall be punished as provided by Section
1324.
Historical: Laws 1903, 347, Sec. 10.
Certain Trees to Be Destroyed.
Sec. 1321. All peach, nectarine, apricot, plum, prune, almond or
other trees budded or grafted on peach stock or roots ; all peach or
other pits, cuttings, buds or scions, raised or grown in a district
where "peach yellows" or "peach rosette" is known to exist, are
hereby prohibited from being offered for sale, gift, distribution, trans-
portation or planting within the State of Idaho. Any person or per-
sons, dealers, shippers, transportation companies, or their agents, who
shall be in the possession of any such property for any purpose, shall,
when required by the inspector, burn the same without delay.
Historical: Laws 1903, 347, Sec. 11.
Sale of Diseased Trees Prohibited.
Sec. 1322. Fruit of any kind, trees, plants, shrubs, cuttings, grafts,
buds, seeds, scions, pits or other articles of any kind, grown in any
foreign country or in any of the United States, or Territories, infested
by any insect or insects, or their eggs or larvae, or by any fungus
diseases or their germs known to be injurious to fruit or fruit trees,
or other trees, plants, vines, shrubs, or other articles liable to spread
contagion, are hereby prohibited from being offered for sale, gift, dis-
tribution, transportation or planting in any county in this State, un-
less the same shall have been examined by the State Inspector or his
deputy for such district, and, if found diseased or infested, they shall
have been thoroughly disinfected in such manner as may be required
by the inspector, the owner to pay the expense of such disinfection.
Historical: Laws 1903, 347, Sec. 12.
Trees to Be Marked Before Shipment.
Sec. 1323. Any person or persons shipping fruit trees or trees of
any kind, shrubs, vines, scions, cuttings or plants within the State,
shall affix to each package, bundle, or parcel containing the same, a
distinct mark, stamp or label, showing the name of the shipper or
grower, the locality where grown, and the variety of said trees, shrubs,
vines, grafts, scions, cuttings, plants or buds; also any person or
persons or corporation, his or their agents selling or offering for
sale, fruit of any kind, shall affix to each package a distinct mark or
Ch. 15. Art. 2. horticulture — regulations 611
label showing the kind and quality of the same, the name of the grower
or shipper, and the locality where grown.
Historical: Laws 1903, 347, Sec. 13.
Non-Compliance With Law a Misdemeanor.
Sec. 1324. Any person, persons, dealers or shippers, having in
their possession any fruits, trees, vines, shrubs, plants, cuttings,
grafts, buds, seeds, pits, scions or other articles infested with any
injurious insects or their germs, or with any fungus or other diseases
injurious to fruit or fruit trees, shrubs, or to other trees or plants, or
who shall sell nr offer for sale, erift, distribution, transportation or
planting, or who shall refuse to destroy or disinfect, as provided in
this chapter or as ordered by the State Inspector or by the deputy in-
spector in his district, the said fruit or trees, shrubs, vines, plants, cut-
tings, grafts, pits, scions or other articles, or who shall refuse or neg-
lect to attach a distinct mark or label as hereinbefore provided, shall
be deemed guilty of a misdemeanor and upon conviction thereof shall
be fined not less than twenty-five or more than three hundred dollars.
All sums so collected shall be paid into the State Treasury. Neglect
>r refusal to comply with the orders of the State Inspector or his
deputies, made in pursuance of the provisions of this chapter, shall
constitute a misdemeanor, and shall be punished as provided for mis-
demeanors in this section.
Historical: Laws 1903, 347, Sees. 14,
18. The last sentence is Sec. 18.
Sale of Infected Fruit Prohibited.
Sec. 1325. It shall be unlawful to sell or dispose of, or offer to sell
or dispose of, or to have in one's possession for sale or barter, any fruit
which is or has been infected with San Jose scale or the larva or larvae
of the codling moth, and the fact that such fruit bears the marks of
the San Jose scale, or is wormeaten by the larva or larvae of the codling
moth, shall be deemed conclusive evidence that said fruit is infected
within the meaning of this section ; and the State Inspector and the
several deputy inspectors are hereby given power to seize and destroy
such infected fruit whenever they shall find that the same has been
packed, sold, shipped or offered for sale, or where the same has been
exposed for sale, or is being held in any warehouse, store, salesroom
or other place for the purpose of being sold, bartered, shipped or ex-
posed for sale or barter ; and it is hereby made the duty of said State
Inspector and said district inspectors to enforce the provisions of this
section, and any person or persons who shall violate the provisions of
this section shall be deemed guilty of a misdemeanor and shall be
punished by a fine of not less than twenty-five dollars and not more
than three hundred dollars, or by imprisonment in the county jail not
more than three months, or by both such fine and imprisonment : Pro-
vided, That nothing in this section shall be construed to prevent the
utilization of such infected fruit in the manufacture of fruit by-prod-
ucts, where said fruit has not been packed, sold, shipped, stored or
offered or exposed for sale as fruit.
Historical: Laws 1907, 448, Sec. 1;
■■tiding by adding Sec. 22, Laws
1903, 347.
612
POLICE — HORTICULTURE AND BEES
Tit. 8
Nursery Agents to Procure Certificates.
Sec. 1326. All persons, firms or corporations complying with the
provisions of Section 1318, by filing bond with the State Board of
Horticultural Inspection, shall, upon the approval of such bond, be en-
titled, in addition to the certificate provided for in Section 1318, to
such additional or duplicate certificates as he or they shall demand,
upon the payment of the sum of one dollar each therefor, and said
duplicate certificates shall entitle the holder thereof to represent, as
agent, the person, firm or corporation named in said certificate, in all
matters relating to the business for which said original certificate
was issued ; and it shall be unlawful for any person or persons to sell
or solicit orders for the sale of, or to deliver or cause to be delivered
any fruit trees, forest trees, vines, plants, shrubs, scions, pits or other
nursery stock, without first having secured such written authority
and any person or persons violating the provisions of this section shall
be deemed guilty of a misdemeanor, and upon conviction thereof shall
be fined not less than twenty-five dollars nor more than three hundred
dollars, and all sums so collected shall be paid into the State Treasury.
Historical: Laws 1907, 448, Sec. 1;
amending, by adding Sec. 23, Laws
1903, 347.
Inspection of Imported Nursery Stock.
Sec. 1327. Any person, firm or corporation receiving any fruit
trees, forest trees, vines, plants, shrubs, scions, pits or other nursery
stock from persons, firms or corporations outside of the State, who
do not hold a license to sell such nursery stock in this State, shall
make application to the district or State Inspector to have said nur-
sery stock inspected either by himself or some person duly qualified
to perform said service, and the person, firm or corporation receiv-
ing such nursery stock shall be required to pay the necessary expenses
for said inspection.
Historical: Laws 1907, 448, Sec. 1;
amending, by adding Sec. 24, Laws
1903, 347.
Liability of County Officers.
Sec. 1238. All county officers shall be liable on their official bonds
for the proper performance of any duties imposed by this chapter.
Historical: Laws 100 3, 347, Sec. 17.
CHAPTER 16.
BEE INSPECTION.
Section
1329.
1330.
1331.
1332.
1333.
1334.
State Bee Inspector: Duties.
Deputy bee inspectors.
Treatment of diseased colonies.
Inspector to be notified of foul
broods.
Inspector may enter premises
to inspect.
Penalty for failure to destroy
infected hives.
Sectioi
1335.
1336.
1337.
1338.
1339.
1340.
Inspector to destroy infected
bees and hives.
Penalty for sale of infected ap-
pliances.
Inspection of imported bees.
Destruction of box hives.
Inspector to disinfect person
and clothing1.
Annual report of inspector.
Ch. 16. BEE INSPECTION 613
State Bee Inspector : Duties.
Sec. 1329. The State Horticultural Inspector shall be ex officio
State Bee Inspector, whose duties it shall be, either by himself or duly
qualified and competent deputies, to examine bees of the State, and
to treat, condemn and utterly destroy by fire or by burying at least
two feet under ground, all bees, honey and fixtures found to be af-
fected with foul brood or other infectious or contagious disease.
Historical: Laws 1905, 170, Sec. 1.
Deputy Bee Inspectors.
Sec. 1330. Upon the application of the president and secretary of
any bee association, or upon petition of three bee keepers of any hor-
ticultural inspection district in the State, the State Bee Inspector may
appoint deputy bee inspectors for the district from which such appli-
cation or petition comes ; and such deputy shall have the same powers
and duties within his district as the State Bee Inspector, and the ten-
ure of his office shall be concurrent with that of the State Bee In-
spector, unless sooner dismissed.
Historical: Laws 1905, 170, Sec. 2.
Treatment of Diseased Colonies.
Sec. 1331. It shall be the duty of the State Bee Inspector or his
deputy, upon receiving information from any source of the existence
in any apiary in his district, of the disease known as foul brood, or any
other infectious or contagious disease of bees, to forthwith inspect
each colony of bees and all hives, implements and apparatus, honey
and supplies on hand or used in connection with such apiary or
otherwise distinctly designate each colony and apiary which he be-
lieves infected, and notify the owner or person in charge of said bees
thereof, in writing or otherwise; and the owners of said bees, or the
person in charge thereof, shall, within five days thereafter, practically
and in good faith, apply and thereafter fully and effectually carry out
to and upon such diseased colonies, such treatment as may have been
prescribed by the inspector of bees for such cases; also thoroughly
disinfect, to the satisfaction of such inspector, all bee hives, combs,
honey and apparatus that have been used in connection with any such
diseased colonies; or, at his election, the said owner or person in
charge of such bees may, within the same time, utterly and completely
destroy such bees, hives, house, comb houses, honey and apparatus by
fire, or bury the same in the ground, with a covering or not less than
two feet of earth.
Historical: Laws 1905, 170, Sec. 3.
Inspector to Be Notified of Foul Brood.
Sec. 1332. Every bee keeper or other person who shall be aware
of the existence of foul brood, either in his own apiary or elsewhere,
shall immediately notify the inspector of bees of the existence of such
disease, and in default of so doing he shall be guilty of a misdemeanor
and punishable by a fine of not more than five dollars and costs.
Historical: Laws 1905, 170, Sec. 4.
614 POLICE — HORTICULTURE AND BEES Tit. 8.
Inspector May Enter Premises to Inspect.
Sec. 1333. The inspector of bees shall have the right to enter the
premises of any bee keeper where bees are kept, and inspect such
bees ; and any person resisting or refusing to allow such inspection by
said bee inspector shall be guilty of a misdemeanor, and may be tneli
and there arrested by the said bee inspector or person deputized by
him, and brought before a justice of the peace, and upon conviction
shall be fined not less than ten dollars nor more than twenty-five
dollars.
Historical: Laws 1905, 170, Sec. 5.
Penalty for Failure to Destroy Infected Hives.
Sec. 1334. If any owner or keeper of bees knows of, or after being
notified by the bee inspector that foul brood, or other infectious or
contagious disease exists in any of the hives in the apiary owned by or
in charge of said person, and shall fail to comply, within ten days from
receiving said knowledge, and the date of receiving instructions from
the bee inspector, to cure or destroy the bees or hives or their appli-
ances, such person shall be guilty of a misdemeanor, and upon convic-
tion thereof shall be fined not less than ten dollars nor more than
twenty-five dollars.
Historical: Laws 1905, 170, Sec. 6.
Inspector to Destroy Infected Bees and Hives.
Sec. 1335. When the owner or possessor of bees shall disobey the
directions of said inspector in curing or destroying any diseased bees,
honey, hives, or appliances, they shall become unlawful and a public
nuisance, and the said bee inspector shall at once destroy said bees,
honey, hives, or appliances, and may deputize such additional per-
sons as he may find necessary to effect such destruction.
Historical: Laws 1905, 170, Sec. 7.
Penalty for Sale of Infected Appliances.
Sec. 1336. Should any person whose bees have been destroyed or
treated for foul brood sell, or offer for sale, any bees, hives or appurte-
nances of any kind, after such destruction or treatment, or before
being authorized by the inspector to do so, or should he expose, in
his bee yard or elsewhere, infected comb, honey, or other infected
thing, or conceal the fact that said disease exists among his bees,
he shall be guilty of a misdemeanor and punishable by a fine of not
less than, ten dollars nor more than fifty dollars.
Historical: Laws 1905, 170, Sec. 8.
Inspection of Imported Bees.
Sec. 1337. Any person, persons, company or corporation, who shall
bring into the State of Idaho any apiary, colony or colonies of bees,
shall immediately notify the State or deputy inspector of bees of
such fact, stating where any such colony or colonies are being kept,
and it shall be the duty of the State or deputy inspector to proceed
to examine such colony or colonies, and ascertain whether or not
they are free from foul brood or other infectious or contagious disease.
Any person, persons, company or corporation who shall fail to notify
Ch. 17.
MEDICINE
615
the State or deputy bee inspector, as required by this section, for a
period of ten days after the arrival within the State of Idaho of such
colony or colonies of bees, shall be guilty of a misdemeanor and pun-
ishable by a fine of not less than fifty dollars nor more than one
hundred dollars.
Historical: Laws 190 5, 170, Sec. 9.
Destruction of Box Hives.
Sec. 1338. The inspector shall have full power, in his discretion,
to order any owner or possessor of bees dwelling in box hives (being
mere boxes without movable frames) in apiaries where the disease
exists, to transfer such bees to movable frame hives within a specified
time, and in default of such transfer the inspector may destroy or
order the destruction of such box hives and the bees dwelling therein.
Historical: Laws 1905, 170, Sec. 10.
"In apiaries where the disease exists"
is transposed from its former position
before the parenthesis, to more clear-
ly express the sense.
Inspector to Disinfect Person and Clothing.
Sec. 1339. After inspecting infected hives or fixtures or handling
diseased bees, the inspector shall, before leaving the premises or
proceeding to any other apiary, thoroughly disinfect his own person
and clothing, and shall see that any assistant or assistants with him
have also thoroughly disinfected their persons and clothing.
Historical: Laws 1905, 170, Sec. 11.
Annual Report of Inspector.
Sec. 1340. The State Bee Inspector shall make an annual report
to the Governor of Idaho, giving the number of apiaries visited, the
number of diseased apiaries found, the number of colonies treated,
also the number of colonies destroyed and statistics bearing on the
bee industries.
Historical: Laws 1905, 170, Sec. 12.
REGULATION OF PROFESSIONS.
CHAPTER 17.
THE PRACTICE OF MEDICINE,
Section
1341. Board of Medical Examiners.
Board to prescribe regulations.
Officers: Meetings: Records of
board.
Compensation of members.
Annual report.
Examination of applicants.
Conduct of examination.
Issuance and signing of license.
Recording of license.
Penalty for practicing without
a license.
1342.
1343.
1344.
1345.
1346.
1347.
1348.
1349.
1350.
Section
1351. Cancellation of and refusal to
grant license.
1352. Definition of unprofessional or
dishonorable conduct.
1353. Definition of practicing medi-
cine: False diplomas or per-
sonation.
1354. Definition of medical college in
good standing.
1355. Duties of county attorneys and
Attorney General.
1356. Application of chapter.
616
POLICE — PROFESSIONS
Tit 8.
Note: The practice of medicine and surgery was treated in Rev. St. 1887,
Sees. 1298-1298e. This chapter was repealed by Laws 1897, 97, which, how-
ever, was held unconstitutional in Brown v. Collister, 5 Ida. 589. The 1899
law, found in this chapter, is substantially similar to the 1897 law.
Board of Medical Examiners.
Sec. 1341. The Governor of the State shall appoint a board of
medical examiners to be known and styled "the State Board of Medical
Examiners," consisting of six members, a majority of whom shall
never be appointed from, nor represent, any one school of medicine,
and not less than three schools of medicine shall be at all times rep-
resented on said board. All of said members shall be graduates of
reputable medical colleges or universities, in good standing, and
learned and skilled in theory and practice of medicine and surgery,
and of good moral repute. The terms of office of the members form-
ing the board shall be six years, and until their successors shall have
been appointed and qualified. The members of said board as at pres-
ent constituted shall hold office for their respective unexpired terms,
two retiring each odd numbered year, and thereafter their successors
shall be so appointed that two members shall retire, and two members
be appointed, each odd numbered year. All persons appointed to
serve upon said board shall, upon assuming the duties thereof, make
oath before a District or probate judge, that they are graduates of
colleges or universities in good standing, giving names and location
thereof, and that they will faithfully and impartially perform the
duties of such office. These oaths shall be made in duplicate, one to
be retained on file in the office of the secretary of the board, and one
to be forwarded to the Secretary of State, who shall, on receipt of
the same, issue to each member appointed on said board, and com-
plying with this section, a certificate of such appointment, under
his hand and the Great Seal of the State: Provided, That the Gov-
ernor shall remove any member of said board who shall be guilty of
any criminal or dishonorable conduct, or who shall be guilty of any
unprofessional conduct forbidden by this chapter, upon recommenda-
tion from the said board, made pursuant to a resolution thereof,
duly authenticated, and accompanied by all the facts and testimony
in possession of said board, upon which the said resolution is based.
Vacancies occurring from death, resignation or any other cause shall
be filled by appointment by the Governor within thirty days from
the time such vacancies occur; such appointee shall serve during the
unexpired portion of the term of the member whose place he fills:
Provided, further, That no person otherwise eligible shall be ap-
pointed on said board who is not in possession of a license to practice
medicine and surgery in this State under the provisions of this
chapter.
Historical: Laws 1899, 34 5, Sec. 1,
re-written so as to omit the provision
for the appointment of the first board,
and to preserve the constitution of the
board as a continuing body.
Board to Prescribe Regulations.
Sec. 1342. Said board shall have authority to prescribe and estab-
lish all needful rules, regulations and by-laws, not inconsistent with
the laws of this State, or the United States, to carry into effect the
provisions of this chapter.
Ch. 17.
MEDICINE
617
Historical: Laws 18 9 9, 345, Sec. 2.
Officers : Meetings : Records of Board.
Sec. 1343. Said board shall organize immediately after appoint-
ment by electing from among its members a president, secretary,
and a treasurer, and shall provide a seal and shall attest its acts under
said seal. Any member of the board shall have the authority to
administer oaths, — and the board shall have authority to take testi-
mony whenever the same is necessary in any manner relating to
its official acts or duties. Said board shall hold regular meetings on
the first Tuesday in the months of April and October in each year
at the capital of the State, or at such other places as the board shall
designate. Special meetings may also be called, when, in the opinion
of a majority of the said board, the same are necessary, and shall
be held at such times and places as a majority of the board may
designate. Four members of the board shall constitute a quorum
to transact business at any regular or special meeting. Said board
shall keep a minute book or general book of record in which all the
official acts, proceedings and transactions of said board shall appear
in full. They shall also keep in addition thereto a "cash book," in
which shall appear in detail all receipts and disbursements of said
board. They shall also keep a special register, containing the names
and addresses of all applicants for license, together with the data
required to be furnished in the application for said license. Said
special register shall also show whether the applicant received license
or was rejected, and if the applicant was rejected, it shall contain
a full statement of the reasons therefor. Said general book of record,
the cash-book, and the special register, shall be prima facie evidence
of all matters therein recorded, and shall be public records in charge
of the secretary of the board.
Historical: Laws 1899, 3 45, Sec. 3.
The clause defining a quorum for the
transaction of business is taken from
Sec. 12 (Sec. 1348 post), to which it
is not germane.
Cited: Raaf v. State Board, etc.
(1906) 11 Ida. 707; 84 Pac. 33.
Compensation of Members.
Sec. 1344. The members of said board shall look alone to the
revenues of this chapter for reimbursement of actual expenses in-
curred in attendance upon the business of sessions of said board,
and they shall look alone to the same source for their per diem
allowance, which shall not exceed the sum of five dollars per day
each, for each day said board may be in actual session.
Historical: Laws 1899, 345, Sec. 17.
Annual Report.
Sec. 1345. The board shall make an annual report to the Governor
of the State, which report shall set forth a full and complete history
of all its official acts during the year, and shall also contain a true
statement of all receipts and disbursements of said board for the
period so reported.
Historical: Laws 1899, 345, Sec 4.
Examination of Applicants.
Sec. 1346. Every person, except as hereinafter provided, desiring
618
POLICE — PROFESSIONS
Tit. 8
to commence the practice of medicine and surgery, or either of them,
within the State shall, immediately and prior to commencing the
same, make a written application to the State Medical Examining
Board, upon suitably prepared blanks, to be furnished by the board,
for a license so to do. The applicant shall transmit with said ap-
plication his or her diploma, together with an affidavit setting forth
that said diploma is genuine and that the applicant is the rightful
possessor thereof and the identical person named therein, and that
the same was obtained by pursuing the regular course of study or
examination in said institution, and setting forth that he or she is
a citizen of the United States, or has declared his intention of be-
coming such. If the said diploma has been issued by a reputable
college of medicine in good standing, said applicant shall be eligible
to examination.
All applicants shall be examined in the applied branches of the
theory and practice of medicine and surgery or either of them, as
those branches are taught in the reputable chartered schools of the
system of medicine to which the applicant belongs and which the
applicant intends to practice, and such examination shall in all cases
include anatomy, physiology, pathology, diagnosis, hygiene, chemistry,
histology and taxicology.
No applicant for a license shall be allowed to practice medicine and
surgery or either of them until such license shall have been granted.
The board shall cause the examination to be scientific and practical,
and sufficiently thorough to test the applicant's fitness to practice med-
icine and surgery or either of them, and if the applicant correctly an-
swer at least seventy-five per cent of all the questions submitted, said
board shall grant the applicant a license to practice medicine and sur-
gery in this State. Every applicant for license under any of the provi-
sions of this chapter, must furnish sufficient evidence to the board that
he is of good moral character. All applications under this section must
be accompanied by twenty-five dollars which is the fee for examination
under this section. Should the applicant fail to pass said examina-
tion, the fee is not returnable. The cost of transmission to and from
the board of all papers belonging to an applicant under this or any
other section of this chapter shall be paid by the applicant. In case an
applicant for an examination fails to pass the required examination,
he or she may be re-examined after the expiration of six months, and
within one year, without the payment of an additional fee, and there-
after said applicant may be examined as often as desired at any reg-
ular or special meeting of the board on the payment of the regular fee
for such examination. Said board may also refuse a license, for unpro-
fessional conduct, or conduct of a criminal, immoral, or dishonorable
nature.
Historical: Laws 18 99, 345, Sec. 6.
Omitting the opening words, "After
the passage of this act."
Cited: State v. Cooper (1905) 11
Ida. 219; 81 Pac. 374.
Constitutionality: The provisions of
this section which require applicants
for license to practice to be graduates
of a reputable school of medicine, and
which make the Board of Examiners
the judge of what constitutes a reput-
able school, are reasonable police reg-
ulations. In re Inman (1902) 8 Ida
398; 69 Pac. 120.
Duties of Board: A Board of Medi-
cal Examiners examining applicants
for a license to practice medicine, is
required to exercise judgment and dis-
cretion in granting or refusing the li-
cense, and in so doing exercises quasi
judicial functions. Raaf v. State
Board, etc. (1906) 11 Ida. 707; 84
Pac. 33.
Ch. 17.
MEDICINE
619
Conduct of Examination.
Sec. 1347. All questions upon the different branches of medicine
and surgery submitted by said board to candidates for examination
shall either be written or printed, or partly written and printed, and
the questions on each branch shall be arranged upon separate sheets
of paper and numbered consecutively. The candidates shall be sup-
plied with a list of the questions upon but one branch or subject at a
time; after completing his or her answers thereto, he or she shall
be entitled to the next list of questions, and so on in like manner
until said candidate shall have been examined in all the branches
required. All answers to the questions thus submitted shall be in
writing, upon suitable paper furnished by the board, no candidate
being permitted to furnish his or her own paper for such written
answers. Each list of the candidate's answers shall bear the same
title as the corresponding list of questions, and each answer shall
be numbered to correspond with the question to which it refers. The
questions submitted by the board to each candidate examined, to-
gether with the answers thereto, shall be placed and kept on file in
the office of the secretary of said board, and shall constitute part
of the records of said office.
Historical: Laws 1899, 345, Sec. 8.
Issuance and Signing of Licenses.
Sec. 1348. All licenses issued by the board, shall be numbered con-
secutively and in the order issued. Each license shall be signed by
the president and secretary of the board, under the official seal of the
board issuing the same.
Historical: Laws 1899, 345, Sec. 12.
Omitting the last sentence relating to
a quorum for the transaction of busi-
ness, which is combined with Sec.
3 (Sec. 1343 ante.). Sec. 5 of the
act provided for the issuance of li-
censes without examination to estab-
lished practitioners, on application be-
ing made within six months from the
taking effect of the act. Failure to
make such application within that
time subjected the practitioner to ex-
amination as hereinbefore provided.
That time having long since expired,
the section is obsolete and is accord-
ingly omitted.
Recording of License.
Sec. 1349. Every person receiving a license under this chapter
shall, within thirty days thereafter, have the same recorded in the
office of the county recorder, within the county where the licentiate
intends to practice. Otherwise, said license is void. The county
recorder of each county shall have, suitably prepared, a separate
book of record in which all the licenses under this chapter presented
to him, shall be recorded, and on the first day of December of each
year, he shall furnish the secretary of the State Medical Examining
Board a list of the licenses on record in his office, and upon notice
to him from said secretary of the revocation of any license on record
in his office, or of the death or removal from the county of any
person whose license is on record therein, said recorder shall make a
note of the fact on the page containing the record of said license, so
that the records kept by said county recorder shall correspond with
the records of his county, as kept by the secretary of said medical
board.
Historical: Laws 1899, 345, Sec. 11.
620
POLICE — PROFESSIONS
Tit. 8
Penalty for Practicing Without a License.
Sec. 1350. Any person practicing medicine and surgery within this
State, without having obtained the license herein provided for, or
contrary to the provisions of this chapter, shall be deemed guilty
of a misdemeanor, ^nd upon conviction thereof shall be fined not
less than fifty dollars, nor more than three hundred dollars, or be
imprisoned in the county jail not less than ten days, nor more than
six months, or be punished by both such fine and imprisonment, in
the discretion of the court, together with the costs of prosecution,
and each day such person continues to practice medicine and surgery
contrary to the provisions of this chapter, shall constitute a separate
offense.
Historical: Laws 1899, 345, Sec. 10.
Phraseology slightly changed to con-
form to grammatical rules.
Rejection of Applicant: Since this
section makes it a misdemeanor to
practice medicine without a license
from the Board of Medical Examiners,
the court has no authority in review-
ing the action of the examiners in re-
jecting an applicant to decree that
such applicant has the right to prac-
tice medicine. Raaf v. State Board,
etc. (1906) 11 Ida. 707; 84 Pac. 33.
Cancellation of and Refusal to Grant License.
Sec. 1351. When complaint is made to the board, of unprofessional
or other conduct, on the part of any licentiate, under the provisions
of this chapter, meriting a suspension, revocation or cancellation of
his license, the board shall have power to hear evidence for and
against the accused, touching such complaint, and if the board be
satisfied from the evidence of the justice of such complaint, the board
must institute proper proceedings in the District Court in and for
the county where such licentiate resides, for the suspension or revoca-
tion and cancellation of such license, and the District Courts of this
State are hereby vested with jurisdiction to hear and determine all
such proceedings, and to suspend or revoke and cancel any license
at issue in any such proceeding. The accused shall be entitled to
appear in person or by counsel at every stage of any such proceeding,
from the first hearing of said complaint before the board to the
final disposition of the case in the District Court. All costs incident
to any such proceeding in the District Court shall be assessed by the
court as the justice- of the case, in the discretion of the court, may
require. In all such proceedings the county attorney shall appear
for the board in the District Court. In case the board refuse to
grant a license to practice under this chapter, the applicant shall
have the right to have the action of the board refusing such license
reviewed by the District Court in and for the county in which the
meeting at which the license was refused was held, or such other
county as may be agreed upon: Provided, Proceedings for such re-
view be instituted within ten days after notice of such refusal to the
applicant.
Historical: Laws 1899, 345, Sec. 9.
Review of Board's Action: The
jurisdiction of courts in reviewing the
action of the Board of Medical Ex-
aminers in refusing to grant a license
is confined to the scope of investiga-
tion usually pursued and exercised by
the courts in issuing and considering
writs of review; this section does not
confer on disappointed applicants the
right of appeal from the action of the
examiners, or authorize the court to
re-examine and re-grade the appli-
cant, and to determine whether or not,
as a matter of fact, the applicant
passed the examination. Raaf v.
State Board, etc. (1906) 11 Ida. 707;
8 4 Pac. 33
Ch. 17. MEDICINE 621
Definition of Unprofessional or Dishonorable Conduct.
Sec. 1352. The words "unprofessional or dishonorable conduct" as
used in this chapter, are hereby declared to mean:
1. The procuring, or aiding or abetting in procuring, a criminal
abortion ;
2. The employment of what are popularly Known as "cappers"
or "steerers" in procuring practice;
3. The obtaining of a fee on the assurance that a manifestly
incurable disease can be permanently cured;
4. A wilful betrayal of a professional secret to the detriment
of a patient;
5. All advertisements of medical business in which untruthful
and improbable statements are made;
6. All advertisements of any kind, of any medicine or means
whereby the monthly periods of women can be regulated or the
menses can be re-established if suppressed;
7. Conviction of any offense involving moral turpitude ;
8. Habitual intemperance in the use of ardent spirits, narcotics
or stimulants.
Historical: Laws 1899, 345, Sec. 7. words "Section 6, or any other sec-
Omitting- in the opening clause, the lion" before "this chapter."
Definition of Practicing Medicine : False Diplomas or Personation.
Sec. 1353. Any person shall be regarded as practicing medicine
and surgery, or either, who shall advertise in any manner, or hold
himself or herself out to the public, as a physician and surgeon, or
either, in this State, or who shall investigate or diagnosticate, or offer
to investigate or diagnosticate, any physical or mental ailment of
any person with a view of relieving the same as is commonly done
by physicians and surgeons, or suggest, recommend, prescribe or
direct, for the use of any person, sick, injured or deformed, any drug,
medicine, means or appliance for the intended relief, palliation or
cure of the same, with the intent of receiving therefor, either directly
or indirectly, any fee, gift or compensation whatsoever: Provided,
however, This chapter shall not apply to dentists and registered
pharmacists or midwives in the legitimate practice of their respective
professions, nor to services rendered in cases of emergency, where
no fee is charged.
Any person who shall present to the board, as his or her own,
the diploma of another, or a forged affidavit of identification, or
who shall attempt to personate another practitioner of a like or
different name, shall, upon conviction thereof, be subject to such
fine and imprisonment as are made and provided by the statutes of
the State of Idaho for the crime of forgery.
Historical: Laws 1899, 345, Sec. 14.
Cross Reference: Punishment for
forgery: Sec. 7031.
Definition of Medical College in Good Standing.
Sec. 1354. The words "respectable or reputable medical college
or university in good standing" are hereby declared to mean such
medical colleges or universities as are legally chartered, reputable,
622 POLICE — PROFESSIONS Tit. 8
and in good standing within the State or country where they are
located.
Historical: Laws 1899, 345, Sec. 13.
Duties of County Attorneys and Attorney General.
Sec. 1355. It shall be the duty of the county attorneys to prosecute
all violations of this chapter within their respective counties. In
all cases of appeal to the Supreme Court of the State, the Attorney
General thereof shall represent said board upon such appeal. The
board shall investigate all complaints of non-compliance with, or
violations of, the provisions of this chapter, and bring all such cases
to the notice of the proper prosecuting officers.
Historical: Laws 1899, 345, Sec. 15.
Application of Chapter.
Sec. 1356. This chapter shall not apply to commissioned medical
officers of the United States Army, Navy, and Marine Hospital service
in the discharge of their official duties, nor to railway surgeons in the
discharge of official duties, nor to legally qualified physicians and
surgeons from other States, when called in consultation with any
legally qualified physician and surgeon of this State.
Historical: Laws 1899, 345, Sec. 16.
CHAPTER 18.
PRACTICE OF DENTISTRY.
Section
1362. Registration without examina-
tion.
1363. Certificate and record thereof.
1364. Annual license fee.
1365. Practicing without license a
misdemeanor.
Section
1357. State Board of Dental Ex-
aminers.
1358. Officers, meetings and records
of board.
1359. Payment of expenses.
1360. Practicing dentistry defined.
1361. Examination of applicants to
practice.
Note: This chapter is taken from the 1907 law, which supersedes and
repeals Laws 1899, 387.
State Board of Dental Examiners.
Sec. 1357. The State Board of Dental Examiners, consisting of
five members, heretofore created, shall continue to be the State Board
of Dental Examiners. Upon the expiration of each member's term
of office the Governor shall appoint his successor, who shall hold
office for three years, or until his successor is appointed and qualified.
In case of a vacancy occurring in said board, the Governor shall fill
the same by appointment. No person shall be eligible for member-
ship on such board who is not a legally practicing dentist in this State.
The Board of Dental Examiners may sue and be sued, and in all
actions brought by or against it, it shall be made a party under the
name of the Board of Dental Examiners of the State of Idaho, and
no suit shall abate by reason of any change in the membership of
said board.
Historical: Laws 1907, 547, Sees.
2, 8.
Ch. 18.
DENTISTRY
623
Officers, Meetings and Records of Board.
Sec. 1358. Such board shall have power to make reasonable rules
and regulations for carrying into effect the provisions of this chapter.
It shall choose one of its members president, and one secretary
thereof, and shall have a common seal. The secretary shall give
such bond as the board shall, from time to time, require. It shall
hold one regular meeting each year, and special meetings at such time
and place as the board may select. A majority of the members of
the board shall constitute a quorum for the transaction of business,
but one less number may adjourn from time to time. The board
shall keep full and complete minutes of its proceedings and of its
receipts and disbursements, and a full and complete record of all
persons licensed and registered by it, and such records, together
with a list of licensed and registered dentists, shall be public records,
and shall at all reasonable times be open to public inspection. Such
records, or a transcript of the same, or any part thereof, under the
seal of the board, certified by the secretary thereof, shall be com-
petent evidence of the facts therein stated. A certificate of the sec-
retary, under the seal of the board, stating that any person is or
is not a registered dentist shall be prima facie evidence of the fact.
The board shall make an annual report to the Governor, by December
first of each year, together with an account of all moneys received
and disbursed under this chapter.
Historical: Laws 1907, 547, Sec. 3.
The provision requiring the secretary
to give bond, and the provision re-
quiring reports to be made to the
Governor are taken from Section 4
(Sec. 1359) to which they are not ger-
mane.
Cross Reference: Reports of offi-
cers: Sec. 2 79.
Payment of Expenses.
Sec. 1359. All legitimate and necessary expenses, incurred in at-
tending and holding the sessions of said board, shall be paid out of
the funds coming into possession of the board, from fees, fines and
penalties recovered under the provisions of this chapter: Provided,
That no part of the expenses of the board shall ever be paid out of
the State Treasury. All funds received in excess of expenses above
provided for shall be held by the secretary of said board as a special
fund for meeting the expenses of carrying out the provisions of
this chapter.
Historical: Laws 1907, 547, Sec. 4.
The phrases preceding the proviso are
transposed for grammatical reasons.
Th<- two concluding sentences of the
section which required the secretary
Practicing Dentistry Defined.
Sec. 1360. All persons shall be said to be practicing dentistry
within the meaning of this chapter who shall, contrary to this chapter,
for a fee, salary or other reward, paid either directly or indirectly
to himself or to another person, perform operations or parts of
operations of any kind on, or treat diseases or lesions of the human
teeth or jaws, or correct malpositions thereof. This chapter shall
not be construed to prohibit an unlicensed person from performing
mechanical work upon inert matter in a dental office or laboratory,
or to prohibit the student of a licensed dentist from assisting his
to give bond, and the board to report
to the Governor, are transferred to
the preceding section, to which they
seemed more germane.
Vol. 1—21
624 POLICE — PROFESSIONS Tit. 8
preceptor in dental operations while in his presence and under his
direct and immediate personal supervision, or to prohibit a duly
licensed physician from treating the diseases of the mouth, or per-
forming operations in oral surgery.
Historical: Laws 1907, 547, Sec. 6. "operations," to express what seemed
The word "perform" inserted before I to be the meaning of the section.
Examination of Applicants to Practice.
Sec. 1361. Any person who shall desire to begin the practice of
dentistry in the State of Idaho, shall file his name, together with
an application for examination, with the secretary of the State Board
of Dental Examiners, and at the time of making application shall
pay to the secretary a fee of twenty-five dollars, and shall present
himself at the first meeting of said board to undergo examination
before that body. In order to be eligible for such examination, such
person shall present to said board his diploma from some dental
college in good standing, or a license from some other State dental
board, or furnish proof of having been engaged in the study of
dentistry under a licensed dentist for at least four years. The ex-
amination shall be elementary and practical in character, but suf-
ficiently thorough to test the fitness of the applicant to practice
dentistry. It shall include answering in the English language ques-
tions of and on the following subjects: Anatomy, physiology,
chemistry, materia medica, therapeutics, oral surgery, metallurgy,
histology, pathology, operative and mechanical dentistry, and also
demonstrations of skill in operative and mechanical dentistry. All
persons successfully passing such examinations shall be registered
as licensed dentists in the record book of the board, and shall also
receive a certificate of such registration. Said certificate shall be
signed by the president and the secretary of the board, and shall also
bear the official seal of said board. The examination fee shall in
no case be refunded, but a candidate failing in his first examination
may demand a second examination at a subsequent meeting of the
board, and no fee shall be charged for said examination.
Historical: Laws 1907, 54 7, Sec. 10.
Registration Without Examination.
Sec. 1362. Said board may, in its discretion, accept and register,
upon payment of a registration fee, and without examination of the
applicant, any certificate which shall have been issued to him by the
dental examining board of any State or Territory of the United
States: Provided, however, That the legal requirements of such
dental examining board shall have been at the time of issuing such
certificate in no degree or particular less than those of Idaho at the
time when such certificate shall have been presented for registration
to the board created by this chapter; and, Provided, That such ap-
plicant shall have been lawfully engaged in the practice of dentistry
in the State from which he shall present his certificate for a period
of five years next preceding his application to the Dental Board of
the State of Idaho; and, Provided, further, That the provisions in
this section contained shall be held to apply only to such of said
dental examining boards as accept and register the certificates granted
by this board, without examination by them of the persons holding
Ch. 18. DENTISTRY 625
such certificates. Each applicant on making application, shall pay
to the secretary of the board a fee of twenty-five dollars.
Historical: Laws 1907, 547, Sec. 11.
Certificate and Record Thereof.
Sec. 1363. The certificate in this chapter provided for shall entitle
the holder thereof to practice dentistry in any county in the State of
Idaho : Provided, Such certificate shall first be filed for record in the
office of the recorder of the county in which such holder desires to
practice, and nothing herein contained shall be construed to permit
any holder of any certificate to practice in any county in this State
unless such certificate shall have been first recorded in the office of the
recorder of such county as herein provided : Provided, further, That
such holder of a certificate may practice in more than one or any
number of counties in this State on having such certificate recorded in
each of such counties in which such holder desires to so practice. Said
Board of Dental Examiners shall, upon satisfactory proof of the loss
of any certificate issued under the provisions of this chapter, issue a
new certificate in place thereof. The county recorder shall charge for
registering such certificate a fee of one dollar.
Historical: Laws 1907, 547, Sec. 9.
Annual License Fee.
Sec. 1364. Every registered dentist shall, in each and every year,
pay to said Board of Examiners the sum of two dollars as a license
fee for such year. Such payment shall be made prior to May first
in each and every year. And in case of default in such payments
by any person, his license may be revoked by the Board of Examiners
upon twenty days' notice of the time and place of considering such
revocation. But no license shall be revoked for such non-payment
if the person so notified, before or at such consideration, shall pay
his fee and such penalty as may be imposed by said board : Provided,
That said board may impose a penalty of not to exceed ten dollars
as a condition of allowing his license to stand: Provided, further,
That said Board of Examiners may collect any such bills by law.
Historical: Laws 1907, 547, See. 7.
Practicing Without License a Misdemeanor.
Sec. 1365. It shall be unlawful for any person to practice dentistry
in this State without having a license so to do from the Board of
Dental Examiners. Any person who, as principal, agent, employer
or employee, in any manner whatsoever shall practice dentistry, or
who shall run, operate, or cause to be operated, or manage a dental
office or headquarters in the State of Idaho, without having first filed
for record and had recorded in the office of the recorder of the county
wherein he shall so practice or do such act, a license from said Board
of Dental Examiners as herein provided, shall be deemed guilty of a
misdemeanor, and upon conviction shall be fined in any sum not less
than fifty dollars, nor more than two hundred dollars, or be confined
for any period not exceeding six months in the county jail, for each
and every offense. All fines received under this chapter shall be
paid one-half to the school fund in the county in which conviction is
secured, and one-half to the State Dental Board.
626
POLICE — PROFESSIONS
Tit. 8
Historical: Laws 1907, 547, Sees. 1,
and 5.
CHAPTER 19.
THE PRACTICE OF OSTEOPATHY.
Section
1366. Board of Osteopathic Exami-
nation and Registration.
1367. Compensation of members of
board.
1368. Examination and issuance of
certificates.
Section
13 69. Certificates to be recorded.
13 70. Fraudulent practice a misde-
meanor.
1371. Osteopaths to observe health
regulations.
Note: This law is taken almost verbatim from a model bill framed by a
Legislative Committee appointed by the American Osteopathic Association.
See Mo. An. St. 1906, Vol. 4 Sees. 8539 et seq.
Board of Osteopathic Examination and Registration.
Sec. 1366. The Board of Osteopathic Examination and Registrar
tion consists of five persons who are reputable practitioners of oste-
opathy, selected from a number of not less than fifteen who are
recommended by the State Osteopathic Association ; the recommenda-
tion of the president and secretary being sufficient proof of the
appointee's standing in the profession. The term of office of one
member of the board expires each year, and in each year the Governor
shall appoint one person to fill the vacancy thus created in the board
at that time from a number of not less than five who are recommended
by the State Osteopathic Association; the term of said appointee to
be for the term of five years. A vacancy occurring from any cause
shall be filled by the Governor for the unexpired term in the same
manner as last above stated. The board shall meet annually in the
City of Boise, and organize by electing a president, secretary and
treasurer, each to serve for one year. The treasurer and secretary
shall each give bond, approved by the board, for the faithful per-
formance of their respective duties, in such sum as the board may,
from time to time, determine. The board shall have a common seal,
and shall formulate rules to govern its actions; and the president
and secretary shall be empowered to administer oaths. The board
shall meet in the City of Boise in June of each year, and at such
other times and places as a majority of the board may designate.
Three members of the board shall constitute a quorum, but no cer-
tificate to practice osteopathy shall be granted on the affirmative vote
of less than three. The board shall keep a record of its proceedings
and a register of all applicants for certificates, giving the name and
location of the institution granting the applicant the degree of doctor
of, or diplomate in, osteopathy; the date of his or her diploma; and
also whether the applicant was rejected, or diploma granted. The
record and register shall be prima facie evidence of all matters
recorded therein.
Historical: Laws 190 7, 128, Sec. 1.
Re-written so as to omit the provision
for the appointment and first meeting
of the board.
Compensation of Members of Board.
Sec. 1367. All fees shall be paid in advance to the treasurer of
the board, to be held by him as a fund for the use of said Board of
Osteopathic Examination and Registration. The compensation and
Ch. 19. OSTEOPATHY 627
expenses of the officers and members of said board, and all expenses
proper and necessary, in the opinion of said board, to discharge its
duties under and to enforce the law, shall be paid out of said funds
upon warrants of the president and secretary of said board, and no
expense shall be created to exceed the income of fees or fines as
hereby provided. The salaries shall be fixed by the board, but shall
not exceed ten dollars per day and railroad and hotel expenses.
Historical: Laws 1907, 128, Sec. 3.
Examination and Issuance of Certificates.
Sec. 1368. Any person, before engaging in the practice of osteop-
athy in this State, shall, upon payment of a fee of twenty-five dollars,
make application for certificate to practice osteopathy, to the Board
of Osteopathic Examination and Registration, on a form prescribed
by the board, giving:
1. His name and age, which shall not be less than twenty-one
years, and residence ;
2. Evidence that such applicant shall have, previous to the be-
ginning of his course in osteopathy, a certificate of examination for
admission to the freshman class of a reputable literary or scientific
college, a diploma from a high school, academy, State normal school,
college or university, approved by the aforesaid board ;
3. The date of his or her diploma, and evidence that such diploma-
was granted on personal attendance and completion of a course of
not less than three terms of not less than nine months each in three
separate years ;
4. The name of the school or college of osteopathy from which
said applicant is a graduate, and which shall have been in good repute
as such at the time of granting his or her diploma, as determined
by the board.
The board may, in its discretion, accept as the equivalent of any
part or all of the second, third and fourth requirements, evidence of
five or more years of reputable practice of osteopathy: Provided,
Such substitution be specified in the certificate.
If the evidence thus set forth, and to which the applicant shall
be required to make affidavit, shall meet the requirements of the
board as prescribed by its rules, then the board shall require the
applicant to submit to an examination as to his qualification for the
practice of osteopathy, which shall include the subjects of anatomy,
physiology, physiological chemistry, toxicology, osteopathic pathology ;
osteopathic diagnosis, hygiene, osteopathic obstetrics and gynecology,
minor surgery, principles and practice of osteopathy, and such other
subjects as the board may require. If such examination is passed
in a manner satisfactory to the board, or with a grade of seventy-
five per cent, then the board shall issue to said applicant a certificate
granting him or her the right to practice osteopathy in the State
of Idaho. All examination papers shall be recorded and kept by the
board. Any person failing to pass such examination may be re-
examined at any regular meeting of the board within one year from
the time of such failure, without additional fee: Provided, That a
physician's certificate issued by a reputable school of osteopathy to a
graduate from a reputable school of medicine after an attendance of
628
POLICE — PROFESSIONS
Tit. 8
not less than two terms of not less than nine months each in two
separate years may be accepted by the board on the same terms as a
diploma, and the holder thereof shall be subject to the same regula-
tions in all other respects as other applicants before the board.
Provided, further, That the board may, in its discretion, dispense
with an examination in the case, first, of an osteopathic physician
duly authorized to practice osteopathy in any other State or Territory
or the District of Columbia, who presents a certificate of license
issued after an examination by the legally constituted board of said
State, Territory or District of Columbia, accorded only to applicants
of equal grade with those required in this State; or, second, of an
osteopathic physician who has been in the actual practice of osteop-
athy for five years, who is a graduate of a reputable school of
osteopathy, who may desire to change his residence to this State and
who makes application, on a form to be prescribed by the board,
accompanied by a fee of twenty-five dollars. The secretary of the
board may grant a temporary permit until a regular meeting of the
board or to such time as the board can conveniently meet, to one
whom he considers eligible to practice in the State, and who may
desire to commence the practice immediately. Such permit shall only
be valid until legal action of the board can be taken. In all of the
above provisions the fee shall be the same as charged to applicants
for examination.
The board may refuse to grant a certificate to any person con-
victed of a felony or of unprofessional conduct, or who is addicted
to any vice to such degree as to render him unfit to practice osteopathy,
and may, after due notice and hearing, revoke such certificate for
like cause.
Historical: Laws 1907, 128, Sec. 2.
Omitting- provisions, now obsolete, for
the registration of applicants engaged
in practice prior to the passage of the
act, and as to qualifications of appli-
cants during, and prior to, the year
1908, which will be obsolete at the
time of the submission of these Codes
to the Legislature.
Certificates to Be Recorded.
Sec. 1369. Every person holding a certificate from the State Board
of Examination and Registration shall have it recorded in the office
of the recorder of the county in which he or she expects to practice.
Until such certificate is filed for record, the holder shall exercise none
of the rights or privileges therein conferred. Such certificate shall
be recorded as are other medical certificates and for the same fee.
Historical: Laws 1907, 128, Sec. 5.
Fraudulent Practice a Misdemeanor.
Sec. 1370. Any person who shall practice, or pretend or attempt
to practice or use, the science or system of osteopathy in treating
diseases of the human body by fraud or misrepresentation; or any
person who shall buy, sell or fraudulently obtain any diploma, license,
record or registration to practice osteopathy, illegally obtained, or
signed or issued unlawfully or under fraudulent representation; or
who shall use any of the forms or letters "osteopathy," "osteopath,"
or osteopathist," "Diplomate in Osteopathy," "D. 0.," "D. Sc. 0.,"
"Osteopathic Physician," "Doctor of Osteopathy," or any other title
Ch. 20.
OPTOMETRY
629
or letters, either alone or with other qualifying words or phrases,
under such circumstances as to induce the belief that the person
using such term or terms is engaged in the practice of osteopathy;
without having complied with the provisions of this chapter, shall
be deemed guilty of a misdemeanor, and upon conviction thereof shall
be fined not less than fifty nor more than two hundred dollars for
each offense, or be imprisoned not less than three months nor more
than six months in the county jail.
Historical: Laws 1907, 128, Sec. 6.
'Be imprisoned" inserted before "not
less than three months," to complete
the sense.
Osteopaths to Observe Health Regulations.
Sec. 1371. Osteopathic physicians shall observe and be subject to
all State and municipal regulations relating to the control of con-
tagious diseases, reporting and certifying births and deaths, and all
matters pertaining to public health, the same as all other schools of
medicine, and such reports shall be accepted by the officers of the
district to whom the same are made.
Historical: Laws 1907, 128, Sec. 4.
CHAPTER 20.
THE PRACTICE OF OPTOMETRY.
Section
1372. Practice of optometry defined.
1373. Unlawful to practice without
certificate.
1374. State Board of Examiners in
optometry.
1375. Officers and meetings of board.
1376. Compensation and expenses of
board.
1377. Examination and registration
of practitioners.
Section
1378. Certificate of registration to be
recorded.
1379. Certificate to be displayed.
1380. Annual registration fee.
1381. Revocation of certificate.
1382. Violations of chapter a mis-
demeanor.
1383. Same: Jurisdiction and con-
duct of prosecution.
1384. Application of chapter.
Practice of Optometry Defined.
Sec. 1372. The practice of optometry is defined as follows : Name-
ly: The employment of subjective or objective mechanical means to
determine the accommodative and refractive states of the eye and the
scope of its functions in general.
Historical: Laws 1907, 574, Sec. 1.
California Legislation : Same ex-
cept "and" for "or" between "subjec-
tive" and "objective": Henning's Gen.
Laws, 1016, Sec. 1.
Unlawful to Practice Without Certificate.
Sec. 1373. It shall be unlawful for any person to practice opto-
metry in the State of Idaho unless he shall first have obtained a cer-
tificate of registration and filed the same, or a certified copy thereof,
with the recorder of the county of his residence, all as hereinafter
provided.
Historical: Laws 1907, 574, Sec. 2.
Recorder" inserted for "clerk". There
' no county clerk, and in practice
tnese certificates are filed with the re-
corder.
California Legislation: Same except
"California" for "Idaho", and "clerk"
for "recorder": Henning-'s Gen. Laws,
1016, Sec. 2.
630
POLICE — PROFESSIONS
Tit. 8
State Board of Examiners in Optometry.
Sec. 1374. There is hereby created a board whose duty it is to
carry out the purposes and enforce the provisions of this chapter,
which shall be styled the "Idaho State Board of Examiners in Op-
tometry." Said board shall consist of three persons engaged in the
actual practice of optometry and residing in the State of Idaho, to be
appointed by the Governor for a term of four years and until their
successors are appointed. Appointments to fill vacancies caused by
death, resignation or removal, shall be made for the residue of such
term by the Governor. Nothing herein contained shall affect the con-
stitution of the present board or the terms of office of its members.
The members of said board, before entering upon their duties, shall
respectively take and subscribe the oath required by other officers, and
file the same with the recorder of the county in which said member
resides, and said board shall have a common seal.
Historical: Laws 1907, 574, Sec. 3,
rewritten so as to omit the provision
relating to the appointment of the
first board, and preserving its consti-
tution. "Recorder" inserted for
"clerk"; see note to preceding sec-
tion.
California Legislation : Similar:
Henning's Gen. Laws, 1016, Sec. 3.
Officers and Meetings of Board.
Sec. 1375. Said board shall choose, annually, one of its members
president, and one secretary thereof, who severally shall have the
power during their terms of office to administer oaths and take affi-
davits, certifying thereto under their hand and the seal of the board.
Said board shall meet at least once in each year at the State capitol,
and in addition thereto, whenever and wherever the president and
secretary thereof shall call a meeting. A majority of said board shall
at all times constitute a quorum. The secretary of said board shall
keep a full record of the proceedings of said board, which records
shall at all reasonable times be open to public inspection.
Historical: Laws 1907, 574, Sec. 4.
Omitting the provision for the first
meeting of the board. "Certifying" in-
serted for "certify", line 4.
California Legislation: Same: Hen-
ning's Gen. Laws, 1016, Sec. 4.
Compensation and Expenses of Board.
Sec. 1376. Out of the funds coming into the possession of said
board, each member thereof may receive, as compensation, the sum
of five dollars for each day actually engaged in the duties of the
office, and mileage at three cents per mile for all distance necessarily
traveled in going and coming from the meetings of the board.
Said expenses shall be paid from the fees and assessments received
by the board under the provisions of this chapter, and no part of the
salary or other part of expenses of the board shall ever be paid out
of the State Treasury. All moneys received in excess of said per
diem allowance and mileage, as above provided for, shall be held by
the secretary as a special fund for meeting expenses of said board
and carrying out the provisions of this chapter, and he shall give
such bonds as the board shall from time to time direct, and the said
board shall make an annual report of its proceedings to the Governor
on the first Monday in January of each year, which report shall con-
tain an account of all moneys received and disbursed by them pur-
suant to this chapter.
Ch. 20.
OPTOMETRY
631
Historical: Laws 1907, 574, Sec. 11.
Examination and Registration of Practitioners.
Sec. 1377. Every person, before beginning to practice optometry
in this State, shall pass an examination before said board of exami-
ners. Such examination shall be confined to such knowledge as is
essential to the practice of optometry. Any person having signified
to said board his desire to be examined by them shall appear before
them at such time and place as they may designate, and, before be-
ginning such examination shall pay to the secretary of said board
for the use of said board, the sum of ten dollars, and if he shall suc-
cessfully pass such examination, shall pay to said secretary, for use
of said board, a further sum of five dollars on the issuance of a cer-
tificate. All persons successfully passing such examination shall be
registered in the board register, which shall be kept by said secretary,
as licensed to practice optometry, and shall also receive a certificate
of such registration to be signed by the president and secretary of
said board, which shall be filed as hereinafter provided.
Historical: Laws 1907, 574, Sec. 5.
Omitting "after the passage of this
act". Persons engaged in the prac-
tice at the time of the passage of the
act were exempted from examination,
and were entitled to a certificate on
making application within six months,
by Sees. 6 and 7 of the act, which are
omitted from these Codes because now
obsolete.
California Legislation: Substan-
tially same: Henning's Gen. Laws,
1016, Sec. 5.
Certificate of Registration to Be Recorded.
Sec. 1378. Recipients of said certificate of registration shall pre-
sent the same for record to the recorder of the county in which they
reside, and shall pay the legal fee to the recorder for recording the
same. Said recorder shall record said certificate in a book to be pro-
vided by him for that purpose. Any failure, neglect or refusal on
the part of the person holding such certificate, or copy of record to
file the same for record, as hereinbefore provided, for six months af-
ter the issuance thereof, shall forfeit the same. Such board shall be
entitled to a fee of one dollar for the re-issue of any certificate, and
the recorder of any county shall be entitled to a fee of one dollar for
making and certifying a copy of the record of any such certificate.
Historical: Laws 1907, 574, Sec. 8.
"Recorder" for "clerk"; see note to
Sec. 1373. The last sentence of Sec.
9 of the act is practically identical
with the sentence of this section, be-
ginning "Any failure, neglect, or re-
fusal" and is omitted to avoid dupli-
cation. The remainder of Sec. 9 is
obsolete, because applicable only to
persons engaged in practice at the
time of the passage of the act, and re-
ferring to the omitted sections 6 and
7. See note to preceding section.
California Legislation: Similar:
Henning's Gen. Laws, 1017, Sec. 8.
Certificate to Be Displayed.
Sec. 1379. Every person to whom a certificate of examination or
registration is granted shall display the same in a conspicuous part
of his office wherein the practice of optometry is conducted.
Historical: Laws 1907, 574, Sec. 10.
California Legislation: Same: Hen-
ning's Gen. Laws, 1017, Sec. 10.
Annual Registration Fee.
Sec. 1380. Every registered optometrist who desires to continue
632
POLICE— PROFESSIONS
Tit 8
the practice of optometry in this State, shall annually, on such date
as the board of optometry may determine, pay to the secretary of
said board a registration fee to be fixed by the board, but which shall
in no case exceed the sum of two dollars per annum, for which he
shall receive a renewal of said registration ; and in case of default in
such payment by any person, his certificate may be revoked by the
board of examiners, upon twenty days' notice of the time and place
of considering such revocation. But no certificate shall be revoked
for such non-payment, if the person so notified shall pay, before or at
such time of consideration, his fee and such penalty as may be im-
posed by said board: Provided, That said board may impose a pen-
alty of five dollars and no more, on any one person so notified, as a
condition of allowing his certificate to stand : Provided, further, That
said board of examiners may collect any such fees by suit.
Historical: Laws 1907, 574, Sec. 12.
California Legislation: Same: Hen-
ning's Gen. Laws, 1018, Sec. 12.
Revocation of Certificate.
Sec. 1381. Said board shall have power to revoke any certificate
of registration granted by it under this chapter for conviction of
crime, for habitual drunkenness, gross incompetency, or while the
licentiate is suffering from contagious or infectious disease : Provided,
That before any certificate shall be so revoked, the holder thereof
shall have notice in writing of the charge or charges against him, and
on a day specified in said notice, at least five days after the service
thereof, shall be given a public hearing, and have opportunity to pro-
duce testimony in his behalf, and to confront the witnesses against
him. Any person whose certificate has been revoked, may, after the
expiration of ninety days, apply to have the same regranted, and the
same shall be regranted, upon a satisfactory showing that the dis-
qualification has ceased.
Historical: Laws 1907, 574, Sec. 13.
California Legislation: Similar:
Henning's Gen. Laws, 1018, Sec. 13.
Violations of Chapter a Misdemeanor.
Sec. 1382. Any person who shall violate any of the provisions of
this chapter, shall be deemed guilty of a misdemeanor, and, upon con-
viction, shall be fined not less than twenty dollars, nor more than one
hundred dollars, or be imprisoned in the county jail for a term of not
less than one month nor exceeding three months and in default of
payment of said fine, shall be imprisoned in the county jail at the
rate of one day for every two dollars of the fine so imposed. All fines
thus received shall be paid into the common school fund of the county
in which such conviction takes place.
Historical: Laws 1907, 574, Sec. 14.
"Be imprisoned" inserted for "by im-
prisonment" to conform to grammati-
cal rules.
California Legislation: Similar:
Henning's Gen. Laws, 1018, Sec. 14.
Same: Jurisdiction and Conduct of Prosecutions.
Sec. 1383. Justices of the peace and the respective municipal
courts shall have jurisdiction of violations of this chapter. It shall
Ch. 21.
PHARMACY
633
be the duty of the respective county attorneys to prosecute all viola-
tions of this chapter.
Historical: Laws 1907, 574, Sec. 15.
"County attorneys" substituted for
"district attorneys".
California Legislation: Same: Hen-
ning's Gen. Laws, 1018, Sec. 15.
Application of Chapter.
Sec. 1384. Nothing in this chapter shall be construed to apply to
physicians and surgeons authorized to practice under the laws of the
State of Idaho, nor to persons who sell spectacles or eye-glasses in
the ordinary course of trade, and who do not attempt to employ sub-
jective or objective mechanical means to determine the accommoda-
tive and refractive states of the eye.
Historical: Laws 1907, 574, Sec. 16.
California Legislation: Same: Hen-
ning's Gen. Laws, 1018, Sec. 16.
CHAPTER 21.
THE PRACTICE OF PHARMACY.
Section
1385. Constitution of Board of Phar-
macy.
1386. Officers and meetings of
board.
1387. Records and reports.
1388. Compensation of members of
board.
1389. Fees.
1390. Drugs to be sold by registered
pharmacists.
1391. Application for examination.
1392. Qualifications of licentiates and
assistants.
Section
1393. Issuance and refusal of licenses.
1394. License of registered pharma-
cists from other States.
1395. Licenses to be displayed: Re-
newal.
1396. Unauthorized persons not to
use title of pharmacists.
1397. Exemption from jury service.
1398. Restrictions upon sale of
poisons and patent medicine.
1399. Penalties for violation of chap-
ter.
1400. Duty of county attorneys.
Note: The act of 1905, contained in this chapter, expressly repealed Rev.
St. 1887, Sees. 1282-1297, and Laws 1888-89, 13, on the same subject.
Constitution of Board of Pharmacy.
Sec. 1385. The Board of Pharmacy shall consist of three persons
licensed as pharmacists and actively engaged in the practice of
pharmacy within this State, who shall be appointed by the Governor,
and who shall hold their office for a period of three years from the
date of their appointment, the term of one member expiring and a
new member being appointed each year: Provided, That the mem-
bers of the present board shall continue to hold office until the ex-
piration of their respective terms.
Historical: Laws 1905, 319, Sec. 7.
Re-written by omitting the provision
relating to the first board, and preserv-
ing the terms of office of the present
members.
Officers and Meetings of Board.
Sec. 1386. Annually the Board of Pharmacy shall organize by the
election of a president and secretary, both of whom shall be members
of the board, who shall hold their offices for a period of one year,
and until their successors have been elected and qualified. The secre-
634 POLICE — PROFESSIONS Tit, 8
tary shall give a bond in such sum as may be prescribed by the board,
conditioned upon the discharge of his duties according to law.
The president and secretary shall have power to administer oaths
in all matters pertaining to the examination and registration of
pharmacists and assistant pharmacists. The board shall hold two
meetings each year, at such times and places as may be provided by
law, for the examination of candidates, and for the discharge of such
other business as may legally come before it, and such other addi-
tional meetings as may be necessary. A majority of the board shall
constitute a quorum to transact business.
Historical: Laws 1905, 319, Sec. 8, i of Section 9, relating- to the adminis-
combined with the last two sentences tration of oaths and quorum.
Records and Reports.
Sec. 1387. The board shall keep a record of its proceedings, and
a register of all persons to whom certificates of license as pharmacists
and assistant pharmacists, and permits, have been issued, and of all
renewals thereof. The books and register of the board, or a copy
of any part thereof, certified by the secretary and attested by the
seal of the board, shall be accepted as competent evidence in all courts
in this State. The Board of Pharmacy shall make, annually, to the
Governor of the State, a written report of its proceedings, and of
its receipts and disbursements under this chapter, and of all persons
licensed to practice as pharmacists and assistant pharmacists in
this State.
Historical: Laws 1905, 319, Sec. 9. are transferred to the preceding sec-
Omitting the last two sections, which tion.
Compensation of Members of Board.
Sec. 1388. There shall be no money appropriated from the funds
of the State for the purposes of carrying out the provisions of this
chapter, and the members of the Board of Pharmacy shall look en-
tirely to fees arising from licenses and permits for their compensa-
tion, which shall in no case exceed five dollars per day for each
member, for the time actually spent in the discharge of his duty as
a member of said board, together with ten cents per mile for each
mile actually traveled both going to and coming from the meetings
of the board.
Historical: Laws 1905, 319, Sec. 10.
Fees.
Sec. 1389. The Board of Pharmacy shall be entitled to charge and
collect the following fees :
For licensing those already qualified under the now existing laws,
five dollars ;
For examining an applicant for license as pharmacist, fifteen
dollars ;
For examining an applicant for license as assistant pharmacist,
ten dollars;
For renewal of licenses, one dollar, payable annually;
For issuing permit to an assistant pharmacist to conduct a drug
store in village of not more than two hundred inhabitants, five dollars.
Ch. 21. PHARMACY 635
All fees must be paid before the applicant shall be admitted to
examination or his name placed upon the register of pharmacists, or
before any license or permit or renewal thereof may be issued by
the board.
Historical: Laws 1905, 319, Sec. 11.
Drugs to Be Sold by Registered Pharmacists.
Sec. 1390. It shall be unlawful for any person not a registered
pharmacist, within the meaning of this chapter, to conduct or man-
age any pharmacy, drug or chemical store, apothecary shop or other
place of business, for the retailing, compounding or dispensing of
any drugs, chemicals or poisons, except as hereinafter provided; or
for the compounding of physicians' prescriptions ; or to keep exposed
for sale at retail any drugs, chemicals or poisons ; or for any person
not licensed as a pharmacist or assistant pharmacist, within the
meaning of this chapter, to compound, dispense, or sell at retail,
any drug, chemical, poison or pharmaceutical preparation, upon the
prescription of a physician or otherwise ; or to compound physicians'
prescriptions, except under the supervision of a person licensed as
a pharmacist under this chapter. And it shall be unlawful for any
owner or manager of a pharmacy, drug store or other place of busi-
ness, to cause or permit any other than a person licensed as a pharma-
cist or assistant pharmacist to compound, dispense, or sell at retail,
any drug or medicine or poison except as an aid to or under the
supervision of a person licensed as a pharmacist or assistant pharma-
cist: Provided, however, That nothing in this section shall be con-
strued to interfere with a legally registered practitioner of medicine
or dentist, in the compounding of his own prescriptions, or to prevent
him from supplying to his patients such medicines as he may deem
proper; nor with the exclusively wholesale business of any dealer
who shall be licensed as a pharmacist, or who shall keep in his em-
ploy at least one person who is licensed as a pharmacist; nor with
the selling at retail of domestic non-poisonous remedies; nor with
the sale of patent or proprietary preparations which no not contain
poisonous ingredients; nor with the sale of poisonous substances
which are sold exclusively for use in the arts, or for use as insec-
ticides, when such substances are sold in unbroken packages bearing
a label having plainly printed upon it the name of the contents, the
word "poison" and the names of at least two readily obtained anti-
dotes : Provided, Nothing in this chapter shall be construed to apply
to the manufacture or sale of proprietary or patent medicines :
Provided, further, That in any village of not more than two hundred
inhabitants, where there is no person licensed as a pharmacist within
less than two miles of such village, the Board of Pharmacy may grant
to any person who is licensed as assistant pharmacist, a permit to
conduct a drug store or pharmacy in such village, which permit shall
not be valid in any other village than the one for which it was granted,
and shall cease and determine when the population of the village for
which such permit was granted shall become greater than two hun-
dred: And, Provided, also, That this chapter shall not apply to
dealers in general merchandise in a city or rural district where there
is no person licensed as a pharmacist or assistant pharmacist. All
636
POLICE — PROFESSIONS
Tit. 8
such drugs and remedies authorized to be sold by general merchandise
stores shall be sold in original packages, properly labeled over the
name of a registered pharmacist of this or some other State. Within
the meaning of this chapter rural districts are places of not more
than one hundred inhabitants.
Historical: Laws 1905, 319, Sec. 1.
Application for Examination.
Sec. 1391. Every person who shall hereafter desire to be licensed
as a pharmacist or assistant pharmacist, shall file with the secretary
of the Board of Pharmacy an application, duly verified under oath,
setting forth the name and age of the applicant, the place or places
at which he studied, and the time spent in the study of, the science
and art of pharmacy, and the experience in compounding physicians'
prescriptions which the applicant has had under the direction of
legally qualified pharmacists; and shall appear at a time and place
designated by the Board of Pharmacy, and submit to an examination
as to his qualifications for registration under this chapter, as pharma-
cist or assistant pharmacist.
Historical: Laws 1905, 319, Sec. 2.
Omitting- the first two sentences, which
provided for the licensing- of persons
engaged in the practice of pharmacy
at the time of the passage of the act.
As the act has been in effect for over
three years, and Sec. 4 (Sec. 1393
post) limits the duration of a license
to two years, and Section 6 (Sec. 1395
post) avoids licenses not renewed writ-
ten sixty days from their expiration,
the omitted sentences are obsolete.
Qualifications of Licentiates and Assistants.
Sec. 1392. In order to be licensed as a pharmacist, within the
meaning of this chapter, an applicant shall not be less than twenty-
one years of age, and he shall present to the Board of Pharmacy
satisfactory evidence that he has sufficient preliminary education,
and that he has had four years' experience in pharmacy under the
instruction of a licensed pharmacist; and he shall also pass a satis-
factory examination by or under the direction of the Board of
Pharmacy.
In order to be licensed as an assistant pharmacist, within the
meaning of this chapter, an applicant shall not be less than eighteen
years of age, and shall have had not less than two years' experience
in pharmacy under the instruction of a licensed pharmacist. He shall
also have had sufficient preliminary education, and shall pass a satis-
factory examination by or under the direction of the Board of
Pharmacy: Provided, however, That in case of persons who have
attended a reputable school or college of pharmacy, the actual time
of attendance at such school or college of pharmacy shall be deducted
from the time of experience required of pharmacists and assistant
pharmacists, but in no case shall less than two years' experience be
required for registration as a licensed pharmacist.
Historical: Laws 1905, 319, Sec. 3.
Issuance and Refusal of Licenses.
Sec. 1393. If the applicant for license as pharmacist or assistant
pharmacist has complied with all the provisions of the two preceding
sections, the Board of Pharmacy shall enroll his name upon the regis-
Qi. 21. PHARMACY 637
ter of pharmacists or assistant pharmacists, and issue to him a
license which shall entitle him to practice as a pharmacist or assistant
pharmacist for the period of two years from the date of said license.
The Board of Pharmacy may refuse to grant a license to any person
guilty of felony or gross immorality, or who is addicted to the use
of alcoholic liquors or narcotic drugs to such an extent as to render
him unfit to practice pharmacy; and the board may, after due notice
and hearing, revoke the license for like cause, or any license which
has been obtained by fraud. An appeal from the action of the board
in refusing to grant or in revoking a license for such cause, may be
taken to the Governor and Attorney General, the decision of which
officers, either affirmative or overruling the action of the board, shall
be final.
Historical: Laws 190 5, 319, Sec. 4. i patent medicines, which is appended
Omitting the last sentence relating- to to Sec. 13 (Sec. 1398 post).
License of Registered Pharmacists From Other States.
Sec. 1394. The Board of Pharmacy may issue a license to pharma-
cists and assistant pharmacists who are registered in other States,
or who are graduates of a reputable school or college of pharmacy
requiring not less than a three years' course, without examination:
Provided, That the requirements of the State are equal to the re-
quirements of this State. Applicants for license under this section
shall be required to pay the same fees as those undergoing an ex-
amination.
Historical: Laws 1905, 319, Sec. 5.
Licenses to Be Displayed : Renewal.
Sec. 1395. All licenses and permits under the provisions of this
chapter, shall within thirty days of the issuance of the same, be con-
spicuously displayed in the place of business of the person holding the
license or permit.
All licenses and permits must be renewed within sixty days after
the expiration of the same. A failure to make application for re-
newal within the time specified will work forfeiture of the right to
renewal under this chapter, and will subject the applicant to examina-
tion and the payment of the original fee.
Historical: Laws 19 05, 319, Sec. 6.
Unauthorized Persons Not to Use Title of Pharmacist.
Sec. 1396. It shall be unlawful for any person, not legally licensed
as a pharmacist, to take, use or exhibit the title of pharmacist or the
title of druggist or apothecary, or any other title or description of
like import; and it shall be unlawful for any person, not legally
licensed as an assistant pharmacist, to take, use or exhibit the title
of assistant pharmacist, or any other title or description of like
import.
Historical: Laws 1905, 319, Sec. 14.
Exemption From Jury Service.
Sec. 1397. All persons licensed under this chapter as pharmacists
or assistant pharmacists, and actively engaged in the practice of
/
638 POLICE — PROFESSIONS Tit. 8
their profession, shall be free and exempt from jury duty in all courts
of this State.
Historical: Laws 1905, 319, Sec. 15.
Restrictions Upon Sale of Poisons and Patent Medicines.
Sec. 1398. It shall be unlawful for any person to sell or deliver
to any minor under sixteen years of age, except upon the written order
of an adult, or to sell to or deliver to any person, any of the following
described substances, or any poisonous compounds or preparations
thereof, to-wit: Arsenic, corrosive sublimate, hydro-cyanic acid,
opium, morphine, strychnine, cocaine, or aconite, except in the manner
following: It shall first be learned, by due inquiry, that the person
to whom delivery is made is aware of the poisonous character of the
substance, and that it is desired for a lawful purpose, and the box,
bottle or other package shall be plainly labeled with the name of
the substance, the word "poison," and the name of the person or
firm dispensing the substance. Before a delivery shall be made of
any of the foregoing substances, there shall be recorded, in a book
kept for that purpose, the name of the article, the quantity delivered,
the purpose for which it is alleged to be used, the date of delivery,
the name and address of the purchaser and the name of the dispenser,
which book shall be preserved for at least one year and shall at all
times be open to inspection by the proper officers of the law:
Provided, however, That the foregoing provision shall not apply to
articles dispensed upon the order of persons believed by the dis-
penser to be lawfully authorized practitioners of medicine or den-
tistry: And, Provided, also, That the record of sale and delivery
above mentioned shall not be required of manufacturers and whole-
salers who shall sell any of the foregoing substances at wholesale;
but the box, bottle or other package containing such substance when
sold at wholesale shall be properly labeled with the name of the
substance, the word "poison, " and the name and address of the
manufacturer or wholesaler.
The board shall have the power to examine any patent or propri-
etary medicine, and condemn the same in case it is found to contain
deleterious matter which might produce an effect other than that
claimed by such patent or proprietary medicine.
Historical: Laws 1905, 319, Sec. 13, ent medicines, of Sec. 4 (Sec. 1393
and the last sentence, relating to pat- I ante).
Penalties for Violations of Chapter.
Sec. 1399. Whoever, not being licensed as a pharmacist, shall con-
duct or manage any drug store, pharmacy or other place of business
for the compounding, dispensing, or sale at retail of any drugs,
medicines or poisons, or for the compounding of physician's pre-
scriptions, contrary to the provisions of Section 1390, shall be deemed
guilty of a misdemeanor, and upon conviction thereof shall be fined
not less than twenty-five dollars nor more than one hundred dollars;
and each week such drug store or pharmacy or other place of busi-
ness is so unlawfully conducted, shall be held to constitute a separate
and distinct offense.
Whoever, not being licensed as a pharmacist or assistant phar-
macist, shall compound, dispense or sell at retail, any drug, medicine,
Ch. 21 PHARMACY 639
poison or pharmaceutical preparation, either upon a physicians' pre-
scription or otherwise, and whoever, being the owner or manager
of a drug store, pharmacy or other place of business, shall cause or
permit any one not licensed as a pharmacist or assistant pharmacist
to dispense, sell at retail or compound any drug, medicine, poison
or physicians' prescription, contrary to the provisions of Section 1390,
shall be deemed guilty of a misdemeanor, and upon conviction thereof
shall be fined not less than ten dollars nor more than one hundred
dollars.
Any license or permit or renewal thereof obtained through fraud
or by any false or fraudulent representation shall be void and of no
effect in law. Any person who shall make any false or fraudulent
representation for the purpose of procuring a license or permit, or
renewal thereof, either for himself or for another, shall be deemed
guilty of a misdemeanor, and upon conviction thereof shall be fined
not less than twenty-five dollars nor more than one hundred dollars ;
and any person who shall wilfully make a false affidavit for the
purpose of procuring a license or permit, or renewal thereof, either
for himself or for another, shall be deemed guilty of perjury, and
upon conviction thereof shall be subject to like punishment as in
other cases of perjury.
Whoever, being the holder of any license or permit granted under
this chapter, shall fail to expose such license or permit, or any re-
newal thereof, in a conspicuous position in the place of business to
which such permit relates, or in which the holder of any license issued
under the provisions of this chapter is employed, contrary to the
provisions of Section 1395, shall, upon conviction thereof, be fined
not less than five dollars nor more than twenty-five dollars, and each
week that such license, permit or renewal shall not be exposed shall
be held to constitute a separate and distinct offense. And whoever,
being the holder of any license or permit granted under this chapter,
shall after the expiration of such license or permit, and without re-
newing the same, continue to carry on the business for which such
license or permit was granted, contrary to the provisions of Section
1395, shall, upon conviction thereof, be fined not less than five dollars
nor more than twenty-five dollars.
Whoever shall sell or deliver to any person any poisonous substance
specified in Section 1398, without labeling the same and recording
the delivery thereof in the manner prescribed in said Section 1398,
shall be deemed guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not less than ten dollars nor more than one hundred
dollars.
Whoever, not being legally licensed as a pharmacist, shall take,
use or exhibit the title of pharmacist, licensed or registered phar-
macist, druggist, apothecary, or any other title of similar import,
contrary to the provisions of Section 1396, and whoever, not being
legally licensed as an assistant pharmacist, shall take, use or exhibit
the title of assistant pharmacist, or any other title of similar import,
contrary to the provisions of said Section 1396, shall be deemed
guilty of a misdemeanor, and, upon conviction thereof, shall be fined
not less than ten dollars nor more than fifty dollars.
Historical: Laws 1905, 319, Sec. 16.
640
POLICE — PROFESSIONS
Tit. 8
Duty of County Attorneys.
Sec. 1400. It shall be the duty of the county attorneys to take
charge of and prosecute any violation of any of the provisions of this
chapter.
Historical: Laws 1905, 319, Sec. 12.
CHAPTER 22.
LICENSED SURVEYORS.
Section
1401. Board of Examiners.
1402. Application for license.
1403. Issuance of license.
1404. License without examination.
1405. Duration of license.
1406. Revocation of license.
Section
1407. Care of papers.
140 8. Duties in making surveys.
1409. Surveyors may administer
oaths.
1410. Legal survey of land.
Board of Examiners.
Sec. 1401. Every odd numbered year the Governor shall appoint,
for the term of two years, two competent engineers, who, together
with the State Engineer, shall constitute an examining board, who
shall serve without compensation. The State Engineer shall ex-officio
be the chairman of such board, which shall hold meetings at such
times and places as may be designated by the State Engineer.
Historical: Laws 1903, 81, Sec. 4.
Omitting the provision for the ap-
pointment of the first board and
changing "every two years" to "every
odd numbered year" so as to fix the
year of appointment.
California Legislation: See Hen-
ning's Gen. Laws, 661, Sec. 5.
Application for License.
Sec. 1402. Every person desiring to become a licensed land sur-
veyor in this State, must present to the State Engineer a certificate
that he is a practical surveyor and a person of good moral character;
also a certificate signed by the Board of Examining Surveyors, pro-
vided for in the preceding section, which certificate shall set forth
that the person named therein is, in the opinion of the person signing
the same, a fit and competent person to receive a license as land
surveyor, together with his oath to support the Constitution of the
State and of the United States, and to faithfully discharge the duties
of a land surveyor as defined in this chapter.
Historical: Laws 190 3, 81, Sec. 1.
California Legislation: Similar:
Henning's Gen. Laws, 660, Sec. 1.
Issuance of License.
Sec. 1403. Upon the receipt of such certificate and oath, and upon
his filing a good and sufficient bond in the sum of five hundred dollars
for the faithful performance of his duties as land surveyor, the State
Engineer shall issue to such applicant a license, upon payment of a
fee of five dollars, which fee shall be turned into the State Treasury.
The license shall set forth the fact that he is a surveyor and author-
ized to practice his profession within this State.
Historical: Laws 1903, 81, Sec. 2.
California Legislation: See Hen-
ning's Gen. Laws, 660, Sec. 2.
Ch. 22.
SURVEYORS
641
this act." The act contained no emer-
gency clause, and became effective
May 6, 1903. This section would be
obsolete except for the fact that the
act prescribed no time within which
surveyors should apply for their li-
censes.
License Without Examination.
Sec. 1404. All persons residing in this State and who were en-
gaged in the actual practice of land surveying prior to the sixth day
of May, 1903, shall be licensed, without examination, to continue
such practice, upon filing with the State Engineer an affidavit, stating
his residence and qualifications, accompanied by the fee and bond
provided for in the preceding section.
Historical: Laws 1903, 81, Sec. 11.
Section 10 declared county surveyors in
office at the time of the passage of the
act to be licensed surveyors until the
expiration of their terms. Those terms
having since expired, that section is
obsolete and is omitted. "Sixth day of
May, 1903," inserted for "passage of
Duration of License.
Sec. 1405. Surveyor's licenses, issued in accordance with this chap-
ter, shall remain in force until revoked for cause, as hereinafter pro-
vided.
Historical: Laws 1903, 81, Sec. 5.
California Legislation: Same: Hen-
ning's Gen. Laws, 661, Sec. 8.
Revocation of License.
Sec. 1406. Upon failure of any licensed surveyor to comply with
the requirements of this chapter, and the furnishing of satisfactory
proof of such fact, the State Engineer must revoke his license, and
no license shall be issued to him within one year from such revocation.
Historical: Laws 1903, 81, Sec. 8.
California Legislation: Similar in
part:
13.
Henning's Gen. Laws, 662, Sec.
Care of Papers.
Sec. 1407. All papers received by the State Engineer on applica-
tion for licenses, shall be kept on file in his office, and a proper index
and record thereof shall be kept by him, and he shall keep a list of
all licensed land surveyors.
Historical: Laws 1903, 81, Sec. 3.
California Legislation: Similar in
part: Henning's Gen. Laws, 660, Sec. 4.
Duties in Making Surveys.
Sec. 1408. Every land surveyor is hereby authorized to make sur-
veys relating to the sale or subdivision of lands, the retracing or
establishing of property or boundary lines, public roads, streets,
alleys or trails ; and it shall be the duty of each surveyor, whenever
making any such survey except those relating to the retracing or
subdivision of cemetery or town lots, whether the survey be made
for private persons, corporations, cities or counties, to set permanent
and reliable monuments ; and such monuments must be permanently
marked.
Historical: Laws 1903, 81, Sec. 7.
Surveyors May Administer Oaths.
Sec. 1409. Every licensed surveyor is authorized to administer
642
POLICE — PROFESSIONS
Tit. 8
and certify oaths, when it becomes necessary to take testimony to
identify or establish old or lost corners, or to perpetuate a corner
that is in a perishable condition, or whenever the importance of the
survey makes it desirable, and to administer oaths to assistants for
the faithful performance of duty. A record of such oaths shall be
kept as part of the field notes of the survey.
Historical: Laws 1903, 81, Sec. 6.
The word "and" is inserted after "de-
sirable." The section as printed and
as found in the enrolled bill had a
semicolon at that place, and while the
insertion possibly changes the mean-
ing of the section, it is thought that it
only makes it clear. The section was
ambiguous as it stood. The words "to
assistants" are transposed from their
original position after "duty."
California Legislation: Similar:
Henning's Gen. Laws, 661, Sec. 9.
Legal Survey of Land.
_ Sec. 1410. No survey of land, or plat or subdivision shall be legal
after June 1, 1903, unless made by a licensed surveyor.
All surveys made under the authority of the State, or of any
county, town, city or village within the State, must be performed
by a licensed surveyor.
Historical: Laws 1903, 81, Sees. 9,
12.
CHAPTER 23.
ABSTRACTORS OF TITLES.
Section
Section
1411. Abstractors to give bond.
1414.
1412. Certificate of abstractor: Ef-
fect.
1415.
1413. Use of abstract as evidence:
1416.
Service of copy.
Duration of bond: Additional
security.
Appeal from probate judge.
Register of Abstractors: Fee
for certificate.
Abstractors to Give Bond.
Sec. 1411. It shall be a misdemeanor for any person or persons
to engage in the business of compiling abstracts of title to real estate,
in the State of Idaho, and demand and receive pay for the same,
without first filing in the office of the probate judge of the county
in which such business is conducted, a bond to the State of Idaho,
in the penal sum of ten thousand dollars, with not less than three
sureties, residents of the county, conditioned for the payment by
such abstractors of any or all damages that may accrue to any party
or parties, by reason of any error, deficiency or mistake in any ab-
stract or certificate of title, made and issued by such person or
persons.
Historical: Laws 1897, 92, Sec. 1;
re-enacted Laws 1899, 314, Sec. 1;
amended Laws 1899, 456, Sec. 1.
Comparative Legislation: See Neb.
Cobbey's An. St. Vol. 2, Sec. 10279.
Certificate of Abstractor: Effect.
Sec. 1412. When any abstractor shall have duly filed his bond as
above provided, he shall be entitled to receive a certificate from such
probate judge, that said bond has been by him duly approved and
filed for record, which certificate shall be valid so long as such ab-
stractor shall maintain his surety upon the bonds as herein provided
Ch. 23.
ABSTRACTORS
643
for unimpaired, and the possession of such valid certificate at the
date of issuance of any abstract shall entitle such abstract of title
to real estate, certified to and issued by such abstractor, to be re-
ceived in all courts as prima facie evidence of the existence of the
record of deeds, mortgages and other instruments, conveyances, or
liens, affecting the real estate mentioned in such abstract, and that
such record is as described in said abstract of title.
Historical: Laws 18 99, 314, Sec. 3;
re-enacting Laws 1897, 92, Sec. 3.
Comparative Legislation: See Neb.
Cobbey's An. St. Vol. 2, Sec. 10280.
Use of Abstract as Evidence : Service of Copy.
Sec. 1413. Any party to a civil action, who may desire to use in
evidence at the trial thereof, any abstract of title to real estate as
herein provided, shall furnish to the opposing party or his attorneys
a copy of such abstract at least three days before the trial of said
action, and in case such real estate be not in the county where such
trial is to take place, then such copy shall be furnished to the opposing
party or his attorney, in time to allow a sufficient number of days
for such opposing party to proceed, by the usual route of travel, to
the county seat of the county where such real estate may be situated
and return to the place of trial, in addition to the three days for
preparation above provided for.
Historical: Laws 1899, 314, Sec. 4;
re-enacting Laws 1897, 92, Sec. 4. "In
time" inserted before "to allow," to
make the section read more smoothly.
Comparative Legislation: See Neb.
Cobbey's An. St. Vol. 2, Sec. 102 81.
Duration of Bond: Additional Security.
Sec. 1414. The bond herein provided for may run during the con-
tinuance of said person or persons in said abstract business, not to
exceed five years, and the probate judge of the county where the bond
herein provided for may be filed, may, at any time upon complaint
of any owner of real estate in his county, require such abstractor,
upon ten days' notice, to give additional security upon said bond, and
show cause why the same should not be declared invalid, and the cer-
tificate thereof recalled and annulled, and if within such time the
additional security, to be approved by said probate judge, be not
furnished, and there is no sufficient reason to show to the judge why
the same should not be required, the said bond shall be declared in-
valid, and the certificate thereof recalled and cancelled.
Historical: Laws 1899, 314, Sec. 5;
re-enacting Laws 1897, 92, Sec. 5.
Comparative Legislation: See Neb.
Cobbey's An. St. Vol. 2 Sec. 10282.
Appeal From Probate Judge.
Sec. 1415. The abstractor or complainant may have an appeal to
the District Court from such decision of the probate judge, by pre-
serving the evidence taken at the hearing which shall be certified up
by such judge, and such appeal shall be summarily decided by the court
upon such evidence, and the cost of such appeal, including the fur-
nishing of such evidence, shall be adjudged against the defeated party.
Historical: Laws 1899, 314, Sec. 6;
re-enacting Laws 1897, 92, Sec. 6.
Comparative Legislation: See Neb.
Cobbey's An. St. Vol. 2, Sec. 102 83.
644
POLICE — REGULATION OF LABOR
Tit. 8
Register of Abstractors : Fee for Certificate.
Sec. 1416. The probate judge shall be provided with a suitable
register, for entering and registering the names of all abstractors
who qualify and receive a certificate, and shall be entitled to a fee
of two dollars for each and every certificate so issued.
Historical: Laws 1899, 314, Sec. 2;
re-enacting Laws 1897, 92, Sec. 2.
PROTECTION AND REGULATION OF LABOR.
CHAPTER 24.
BUREAU OF IMMIGRATION, LABOR AND STATISTICS.
Section
Section
1417.
Establishment of bureau.
1422.
Distribution of advertising
1418.
Commissioner of Immigration,
matter.
Labor and Statistics.
1423.
Expenses of office.
1419.
Duties of Commissioner.
1424.
Report of Commissioner.
1420.
Same: Assistance of officers.
1425.
Same: Compilation of labor
1421.
Exhibits of products of State.
statistics.
Establishment of Bureau.
Sec. 1417. In conformity with the requirements of Section 1,
Article 13, of the Constitution of the State of Idaho, a Bureau of
Immigration, Labor and Statistics for the State is hereby established.
Historical: Laws 18 99, 394, Sec. 1.
Commissioner of Immigration, Labor and Statistics.
Sec. 1418. It shall be the duty of the Governor, by and with the
consent of the Senate, to appoint a competent person as Commissioner
of Immigration, Labor and Statistics, who shall have charge of said
bureau, and who shall hold his office for the term provided in said
Article 13 of the Constitution. He shall receive a salary of eighteen
hundred dollars per year, and all necessary traveling expenses not
exceeding six hundred dollars per annum while traveling in the dis-
charge of his official duties, to be paid as are the salary and fees of
other State officers. Before entering upon the duties of his office, he
shall take oath for the faithful discharge of the duties thereof, the
same as other State officers. The Secretary of State shall provide a
suitable room for the use of said bureau, and furnish the necessary
fuel, light and appurtenances. All books, papers and documents in
the office of said Commissioner shall be deemed public records of the
State, and shall be transferred by him to his successor in office.
Historical: Laws 1899, 394, Sec. 2.
Omitting- "immediately after the pass-
age of this act."
Cross Reference: Office created and
duties prescribed by Constitution: Art.
13, Sec. 1.
Duties of Commissioner.
Sec. 1419. It shall be, and is hereby made, the duty of said Com-
missioner to collect and compile all reliable data and information at
his command, concerning the climate, soil and various resources of
Ch. 24. BUREAU OF IMMIGRATION AND LABOR 645
the State; its agricultural, horticultural, mineral, timber and grazing
lands, and industries, and the development thereof; the water courses
and lakes of the State in reference to irrigation, manufacturing, me-
chanical and other uses; the various crop products, and the adapta-
bility of different soils and localities for the production of different
crops; the number, kinds and value of domestic animals in the State,
with useful information regarding the same; the number of public
schools, educational institutions, churches, charitable and fraternal
organizations; health and pleasure resorts, and health statistics of
the State ; the number and mileage of railroads and other transporta-
tion lines ; the number and capacity of irrigation canals and the lands
covered by the same: the number and location of newspapers and
periodicals in the State; the amount of public and school lands, and
those belonging to various public institutions of the State ; the wages
and hours of labor, both skilled and common, and its relation to capi-
tal; and, generally, any information, which, if disseminated abroad,
would tend to the development of the State by inducing population
and capital to come within its borders. Said Commissioner shall also
inform himself in regard to suitable locations for agricultural and
horticultural colonies in the State, and use all facilities at his com-
mand for encouraging and promoting desirable enterprises of this
kind. To this end he shall endeavor to secure low rates of transporta-
tion favorable to immigrants by urging the co-operation of railroads
and other corporations interested in the settlement of the State. He
shall also open correspondence with, and answer any and all inquiries
from, those seeking information in regard to the resources of the
State.
Historical: Laws 1899, 39 4, Sec. 3.
Same: Assistance of Officers.
Sec. 1420. In order to enable said Commissioner to secure the
above required information, he is hereby clothed with the power to
call upon officers of the State, county assessors, superintendents of
public instruction, and other officers, for such information as he may
desire and deem valuable in his department.
Historical: Laws 189 9, 394, Sec. 4.
Exhibits of Products of State.
Sec. 1421. It shall be the duty of the Commissioner to keep in his
office for exhibit such samples of the productions of the State, includ-
ing grains, grasses, fruits, vegetables, minerals, manufactured articles
and other products, as may be contributed by towns and counties,
without expense to the State, the same to be arranged so that each
town or county shall receive due credit therefor. He shall, whenever
practicable, organize and encourage local exhibits at such points as
would tend to advertise the resources of the State, and, whenever
funds are available for such purposes, shall also make, or cause to
be made, exhibits of the products and industries of the State, at such
industrial and international exhibitions in other States, as the Gov-
ernor shall direct.
Historical: Laws 1899, 394, Sec. 5.
646 POLICE — REGULATION OF LABOR Tit. 8
Distribution of Advertising Matter.
Sec. 1422. Said Commissioner shall cause to be printed and dis-
tributed such pamphlets, circulars, cards and maps, and shall publish,
from time to time, through the public press, such information as, in
the judgment of said Commissioner, would tend to carry out the
objects sought by this chapter, and result in the largest possible
benefit to the State.
Historical: Laws 1899, 394, Sec. 6.
Expenses of Office.
Sec. 1423. Said Commissioner shall receive the salary and mileage
heretofore provided for, and be allowed the actual cost of the printing
and supplies necessary for the publication and distribution of the
matter heretofore mentioned : Provided, That the allowance for such
printing and supplies shall not exceed the aggregate sum of two thou-
sand dollars in any one year.
Historical: Laws 1899, 394, Sec. 7.
Report of Commissioner.
Sec. 1424. The Commissioner shall, on or before the first day of
December in each year, transmit to the Governor a full and complete
report of the doings of his office, including a tabulated statement of
all statistics accumulated in his office, and a detailed and itemized
account of the expenses thereof.
Historical: Laws 1899, 394, Sec. 8. conform to Laws 1903, 149 (Codes, Sec.
"December" inserted for "January" to I 279).
Same: Compilation of Labor Statistics.
Sec. 1425. The Commissioner shall collect information upon the
subject of labor, its relation to capital, the hours of labor, and the
earnings of laboring men and women, and the means of promoting
their material, social, intellectual, and moral prosperity, and assort,
systematize, print and present in annual reports to the Governor, on or
before the first day in December of each year, statistical details re-
lating to all departments of labor in this State, including the penal
institutions thereof, particularly concerning hours of labor, the num-
ber of laborers and mechanics employed, the number of apprentices
in each trade, with the nativity of such laborers, mechanics, and ap-
prentices, wages earned, the savings from the same, the culture,
moral and mental, with age and sex, of laborers employed, and num-
ber and character of accidents, the sanitary condition of institutions
and other places where labor is employed, as well as the influence of
the several kinds of labor, and the use of intoxicating liquors upon
the health, and mental condition of the laborer, the restrictions, if
any, which are put upon apprentices when indentured, the proportion
of married laborers and mechanics who live in rented houses, with
the annual rental of the same, the average number of members in the
families of married laborers and mechanics, the value of property
owned by laborers and mechanics, together with the value of prop-
erty owned by such laborers or mechanics (if foreign born), upon
their arrival in this country, and the length of time they have re-
sided here, the subject of co-operation, strikes, or other labor diffi-
CH. 25
LABOR COMMISSION AND ARBITRATION
647
culties, trades unions, and other labor organizations, and their effects
upon labor and capital, with such other matter relating to the com-
mercial, industrial, and sanitary condition of the laboring classes, and
permanent prosperity of the respective industries of the State, as
such bureau may be able to gather, accompanied by such recommen-
dations relating thereto, as the bureau shall deem proper.
Historical: Laws 1899, 394, Sec. 9.
"December" inserted for "January"
for the reasons stated in the note to
the preceding section.
CHAPTER 25.
LABOR COMMISSION AND ARBITRATION.
Section
Secti
1426.
Constitution of commission.
1434.
1427.
Appointment and qualifications
of Commissioners.
1435.
1428.
Seal: Appointment of secre-
tary.
1436.
1437.
1429,
Duties of commissioners in
case of strike.
1438.
1430.
1431.
1432.
Arbitration: Constitution of
board.
Agreement for arbitration.
Appointment of Commissioner
pro tern.
1439.
1440.
1441.
1442.
1433.
Oath of arbitrators: Nature of
proceedings.
ion
Award.
Record of proceedings: Dis-
obedience to award: Procedure.
Rules governing proceedings.
Application for arbitration.
Precedence of arbitration pro-
ceedings.
Investigations by commission.
Report of investigation.
Confidential communications.
Compensation of Commission-
ers.
Note: For prior legislation on this subject, see Laws 1897, 141; Laws
1899, 319.
Constitution of Commission.
Sec. 1426. There shall be and is hereby created, a commission to
be composed of two electors of the State, which shall be designated
the Labor Commission, and which shall be charged with the duties,
and vested with the powers, hereinafter enumerated.
Historical: Laws 1901, 66, Sec. 1.
Cross Reference: Legislature may
establish Boards of Arbitration: Const.
Art. 13, Sec. 7.
Appointment and Qualifications of Commissioners.
Sec. 1427. The members of said commission shall be appointed
by the Governor, by and with the advice and consent of the Senate,
and shall hold office for two years and until their successors shall
have been appointed and qualified. One of said commissioners shall
have been, for not less than six years of his life, an employee, for
wages, in some department of industry, in which it is usual to employ
a number of persons under single direction and control, and shall be,
at the time of his appointment, affiliated with the labor interest as
distinguished from the capitalist or employing interest.
The other of said commissioners shall have been, for not less than
six years, an employer of labor, for wages, in some department of
industry in which it is usual to employ a number of persons under
single direction and control, and shall be, at the time of his appoint-
ment, affiliated with the employing interest, as distinguished from
the labor interest. Neither of said commissioners shall be less than
twenty-five years of age, and they shall not be members of the same
648 POLICE — REGULATION OF LABOR Tit. 8
political party. A political party within the meaning of this section,
shall be held to mean one or more parties supporting one ticket or
member of a fusion. Neither of the commissioners shall hold any
other State, county or city office in Idaho, during the term of office
for which they shall be appointed. Each of said commissioners shall
take and subscribe an oath, to be indorsed upon his commission, to
the effect that he will punctually, honestly and faithfully discharge
his duties as such commissioner.
Historical: Laws 1901, 66, Sec. 2.
Seal: Appointment of Secretary.
Sec. 1428. Such commission shall have a seal and shall not be re-
quired to leave their personal labor or business, except to perform
the duties devolving upon them as members of the labor commission.
When necessary, they may appoint a secretary, who shall be a skill-
ful stenographer and typewriter, and who shall receive a salary of
four dollars per day and traveling expenses for every day spent in
the discharge of duty under the direction of the commission.
Historical: Laws 1901, 66, Sec. 3.
Duties of Commissioners in Case of Strike.
Sec. 1429. It shall be the duty of said commissioners, upon re-
ceiving authentic information, in any manner, of the existence of
any strike, lockout, or other labor complication in this State, affecting
the labor or employment of fifty persons or more, to go to the place
where such complication exists, put themselves into communication
with the parties to the controversy, and offer their services as me-
diators between them: Provided, That in all cases where less than
fifty persons are on strike or lockout, the commission may, in their
discretion, act as though such number of strikers consisted of fifty
or more persons. If they shall not succeed in effecting an amicable
adjustment of the controversy in that way, they shall endeavor to
induce the parties to submit their differences to arbitration, either
under the provisions of this chapter or otherwise as they may elect.
Historical: Laws 1901, 66, Sec. 4.
Arbitration : Constitution of Board.
Sec. 1430. For the purpose of arbitration under this chapter, the
labor commissioners and the Judge of the District Court of the dis-
trict in which the business in relation to which the controversy shall
arise, shall have been carried on, shall constitute a board of arbitra-
tors, to which shall be added, if the parties so agree, two other mem-
bers, one to be named by the employer, and the other by the employees
in the arbitration agreement. If the parties to the controversy are
a railroad company, and the employees of the company engaged in
the running of trains, any terminal within this State, of the road, or
any division thereof, may be taken and treated as the location of
the business within the terms of this section, for the purpose of giv-
ing jurisdiction to the Judge of the District Court, to act as a mem-
ber of the board of arbitration.
Historical: Laws 1901, 66, Sec. 5.
Ch. 25. LABOR COMMISSION AND ARBITRATION 649
Agreement for Arbitration
Sec. 1431. An agreement to enter into arbitration under this
chapter, shall be in writing and shall state the issue to be submitted
and decided, and shall have the effect of an agreement, by the parties,
to abide by, and perform the award. Such an agreement may be
signed by the employer, as an individual, firm or corporation, as the
case may be, and execution of the agreement, in the name of the
employer, by any agent or representative of such employer, then and
there in control or management of the business, or department of
business, in relation to which the controversy shall have arisen, shall
bind the employer. On the part of the employees the agreement may
be signed by them, in their own person, not less than two-thirds of
those concerned in the controversy, signing, or it may be signed by a
committee by them appointed. Such committee may be created by
election at a meeting of the employees concerned in the controversy,
at which not less than two-thirds of such employees shall be present,
which election, and the fact of the presence of the required number
of employees at the meeting, shall be evidenced by the affidavit of the
chairman and secretary of such meeting, attached to the arbitration
agreement. If the employees concerned in the controversy, or any
of them, shall be members of any labor union or working men's so-
ciety, they may be represented in the execution of said arbitration
agreement by officers or committeemen of the union or society des-
ignated by it, in any manner conformable to its usual methods of
transacting business, and others of the employees represented by
committee as hereinbefore provided.
Historical: Laws 1901, 66, Sec. 6.
Appointment of Commissioner Pro Tern.
Sec. 1432. If upon any occasion calling for the presence and in-
tervention of the labor commissioners under this chapter, one of
said commissioners shall be present and the other absent, the Judge
of the District Court of the district in which the dispute shall have
arisen, as defined in Section 1430, shall, upon the application of the
commissioner present, appoint a commissioner pro tern, in the place
of the absent commissioner, and such commissioner pro tern shall
exercise all the powers of a commissioner under this chapter, until
the termination of the duties of the commission with respect to the
particular controversy upon the occasion of which the appointment
shall have been made, and shall receive the same pay and allowances
provided by this chapter for the other commissioners. Such com-
missioner pro tern shall represent and be affiliated with the same in-
terests as the absent commissioner.
Historical: Laws 1901, 66, Sec. 7.
Oath of Arbitrators: Nature of Proceedings.
Sec. 1433. Before entering upon their duties, the arbitrators shall
take and subscribe an oath or affirmation to the effect that they will
honestly and impartially perform their duties as arbitrators, and a
just and fair award render, to the best of their ability. The sitting
of the arbitrators shall be in the court room of the District Court
or such other place as shall be provided by the county commissioners
650 POLICE — REGULATION OF LABOR Tit. 8
of the county in which the hearing is had. The District Judge shall
be the presiding member of the board. He shall have power to issue
subpoenas for witnesses who do not appear voluntarily, directed to
the sheriff of the county, whose duty it shall be to serve the same
without delay. He shall have power to administer oaths and affirma-
tions to witnesses, enforce order, and direct and control the examina-
tions. The proceedings shall be informal in character, but in general
accordance with the practice governing the District Courts in the
trial of civil cases. All questions of practice, or questions relating
to the admission of evidence, shall be decided by the presiding member
of the board summarily and without extended argument. The sittings
shall be open and public. If five members are sitting as such board,
three members of the board, agreeing, shall have power to make an
award, otherwise two. The secretary of the commission shall attend
the sitting and make a record of the proceedings in shorthand, but
shall transcribe so much thereof only as the commission shall direct.
Historical: Laws 1901, 66, Sec. 8.
Award.
Sec. 1434. The arbitrators shall make their award in writing and
deliver the same, with the arbitration agreement and their oath as
arbitrators, to the clerk of the District Court of the judicial district
in which the hearing was had, and deliver a copy of the award to
the employer and a copy to the first signer of the arbitration agree-
ment on the part of the employees. A copy of all the papers shall
be preserved by the commission.
Historical: Laws 1901, 66, Sec. 9.
Record of Proceedings: Disobedience to Award: Procedure.
Sec. 1435. The clerk of the District Court shall record the papers
delivered to him, as directed in the last preceding section, in the
order book of the District Court. Any person, who was a party to
the arbitration proceedings, may present to the District Court of
the county in which the hearing was had, or the judge thereof, in
vacation, a verified petition referring to the proceedings and the
record of them, in the order book, and showing that said award has
not been complied with, stating by whom and in what respect it has
been disobeyed. Thereupon the court or judge thereof in vacation,
shall grant a rule against the party or parties so charged, to show
cause within five days why said award has not been obeyed, which
shall be served by the sheriff as other process. Upon return made
to the rule, the judge, or court if in session, shall hear and determine
the questions presented, and make such order or orders, directed
to the parties before him in personam, as shall give just effect to
the award. Disobedience by any party to such proceedings of any
order so made, shall be deemed a contempt of the court, and may be
punished accordingly. But such punishment shall not extend to
imprisonment except in case of wilful disobedience. In all proceed-
ings under this section, the award shall be regarded as presumptively
binding upon the employer and all employees who were parties to
the controversy submitted to arbitration, which presumption shall
be overcome only by proof of dissent from the submission delivered
Ch. 25. LABOR COMMISSION AND ARBITRATION 651
to the arbitrators, or one of them, in writing, before the commence-
ment of the hearing.
Historical: Laws 1901, 66, Sec. 10.
Rules Governing Proceedings.
Sec. 1436. The labor commission, with the advice and assistance
of the Attorney General of the State, which he is hereby required
to render, may make rules and regulations respecting proceedings in
arbitration under this chapter, not inconsistent with this chapter or
the law, including forms, and cause the same to be printed and fur-
nished to all persons applying therefor, and all arbitration proceed-
ings under this chapter shall thereafter conform to such rules and
regulations.
Historical: Laws 1901, 66, Sec. 11.
Application for Arbitration.
Sec. 1437. Any employer and his employees, not less than twenty-
five in number, between whom differences exist which have not re-
sulted in any open rupture or strike, may, of their own motion, apply
to the labor commission for arbitration of their differences, and upon
the execution of an arbitration agreement, as hereinbefore provided,
a board of arbitrators shall be organized in the manner hereinbefore
provided, and the arbitration shall take place and the award be
rendered, recorded and enforced, in the same manner as in arbitra-
tions under the provisions found in the preceding sections of this
chapter.
Historical: Laws 1901, 66, Sec. 12.
Precedence of Arbitration Proceedings.
Sec. 1438. In all cases arising under this chapter, requiring the
attendance of a Judge of the District Court as a member of the
arbitration board, such duty shall have precedence over any other
business pending in his court, and if necessary for prompt transac-
tion of such other business, it shall be his duty to appoint the District
Judge of an adjoining district to sit in the District Court in his place
during the pendency of such arbitration, and such appointee shall
receive the same compensation for his services as is now allowed
by law to judges appointed to sit in case of change of judge in civil
actions. In case the Judge of the District Court, whose duty it shall
become under this chapter to sit upon any board of arbitrators shall
be at the time actually engaged in a trial which cannot be interrupted
without loss and injury to the parties, and which will, in his opinion,
continue for more than three days to come, or is disabled from acting
by sickness or otherwise, it shall be the duty of such judge to call
in and appoint the District Judge of an adjoining district, to sit
upon such board of arbitrators, and such appointed judge shall have
the same power, and perform the same duties, as member of the
Board of Arbitration, as are by this chapter vested in and charged
upon the District Judge regularly sitting, and he shall receive the
same compensation, now provided by law, to a judge sitting by
appointment, upon a change of judge in civil cases, to be paid in the
same way.
Historical: Laws 1901, 66, Sec. 13.
652 POLICE — REGULATION OF LABOR Tit. 8
Investigations by Commission.
Sec. 1439. If the parties to any such labor controversy as is de-
fined in Section 1429, shall have failed, at the end of five days after
the first communication of said labor commission to them, to adjust
their differences amicably, or to agree to submit the same to arbitra-
tion, it shall be the duty of the labor commission to proceed at once
to investigate the facts attending the disagreement. In this investi-
gation the commission shall be entitled, upon request, to the presence
and assistance of the Attorney General of the State, in person or by
deputy, whose duty it is hereby made to attend, without delay, upon
request by letter or telegram from the commission. For the purpose
of such investigation, the commissioners shall have power to issue
subpoenas and each of the commissioners shall have power to ad-
minister oaths and affirmations., Such subpoena shall be under seal
of the commission, and signed by the secretary of the commission,
or a member of it, and shall command the attendance of the person
or persons named in it, at a time and place named, which subpoena
may be served and returned as other process by any sheriff or con-
stable in the State. In case of disobedience of any such subpoena or
the refusal of any witness to testify, the District Court having juris-
diction, or the Judge thereof during vacation, shall, upon the appli-
cation of the labor commission, grant a rule against the disobeying
person or persons or the person refusing to testify, to show cause,
forthwith, why he or they should not obey such subpoena or testify
as required by the commission, or be adjudged guilty of contempt,
and in such proceedings, such court, or the Judge thereof, in vacation,
shall be empowered to compel obedience to such subpoena, as in the
case of a subpoena issued under the order of and by the authority
of the court, or to compel a witness to testify as witnesses in court
are compelled to testify. But no person shall be required to attend
as a witness at any place outside of the county of his residence.
Witnesses called by the labor commission, under this section, shall
be paid two dollars per diem fees out of the expense fund provided
by this chapter, if such payment is claimed at the time of their ex-
amination.
Historical: Laws 1901, 66, Sec. 14.
Report of Investigations.
Sec. 1440. Upon the completion of the investigation authorized by
the last preceding section, the labor commission shall forthwith re-
port the facts thereby disclosed, affecting the merits of the contro-
versy, in a brief and condensed form, to the Governor.
Historical: Laws 1901, 66, Sec. 15.
Confidential Communications.
Sec. 1441. An employer shall be entitled, in his response to the
inquiries made of him by the commission in the investigation provided
for in the last two preceding sections, to submit in writng to the
commission a statement of any facts material to the inquiry, the
publication of which would be likely to be injurious to his business,
and the facts so stated shall be taken and held as confidential, and
shall not be disclosed in the report or otherwise.
Ch. 26.
EMPLOYMENT BUREAUS
653
Historical: Laws 1901, 66, Sec. 16.
Compensation of Commissioners.
Sec. 1442. Said Commissioners shall receive a compensation of six
dollars each per diem, for the time actually expended, and actual and
necessary traveling and hotel expenses, while absent from home in
the performance of duty, and each of the two members of the Board
of Arbitration, chosen by the parties under the provisions of this
chapter, shall receive the same compensation for the days occupied
in service upon the board. The Attorney General or his deputy shall
receive his necessary and actual traveling expenses while absent
from home in the service of the commission. Such compensation and
expenses shall be paid by the State Treasurer upon warrants drawn
by the Auditor upon itemized and verified accounts of time spent
and expenses paid. All such accounts except those of the commis-
sioners, shall be certified as correct by the commissioners, or one of
them, and the accounts of the commissioners shall be certified by the
secretary of the commission. It is hereby declared to be the policy
of this chapter, that the arbitrations and investigations provided for
in it, shall be conducted with all reasonable promptness and dispatch,
and no member of any board of arbitration shall be allowed payment
for more than fifteen days' service, in any one arbitration, and no
commissioner shall be allowed payment for more than ten days' service
in the making of the investigation provided for in Section 1439 and
sections following.
Historical: Laws 1901, 66, Sec. 17.
CHAPTER 26.
EMPLOYMENT BUREAUS.
Section
Section
1443. License from
county commis-
1444. Same:
Bond.
sioners.
1445. Same:
Penalty
License From County Commissioners.
Sec. 1443. No person or persons shall carry on, hold, or keep any
labor agency, or bureau of employment, without first having obtained
written permission of the county commissioners of the county wherein
said agency or bureau is to be located.
Historical: Laws 1901, 131, Sec. 1.
Omitting the opening words, "That
from and after the passage of this
act."
Same: Bond.
Sec. 1444. Before any person or persons shall be permitted to
open, keep or conduct any labor agency or bureau of employment
within the jurisdiction of said county, he shall furnish a bond with
good and solvent security in favor of the chairman of said county
commissioners in the full sum and amount of five thousand dollars,
conditioned that he shall well and truly carry out the purposes for
which said agency shall have been established, and that he shall pay
all such damages which may result from his or their actions as such
agent or agents, keeper or keepers of said bureau of employment,
and that any one who may have been injured or damaged by said
654
POLICE — REGULATION OF LABOR
Tit. 8
agent or agents by any act done in furtherance of said business or
by fraud or misrepresentations of said agents or keepers, shall have
a right to sue for the recovery of such damages before any court of
competent jurisdiction.
Historical: Laws 1901, 131, Sec. 2.
Same : Penalty.
Sec. 1445. Any one violating the provisions of this chapter shall
be subject to a fine of not more than three hundred dollars, nor less
than one hundred dollars, and imprisonment in the county jail for
not more than ninety days, nor less than thirty days.
Historical: Laws 1901, 131, Sec. 3.
CHAPTER 27.
PROTECTION OF MECHANICS.
Section
1446. Employers to make statement.
1447. Same.
Section
1448. Violation of chapter a misde-
meanor.
Employers to Make Statement.
Sec. 1446. It shall be the duty of any person, persons, company
or corporation engaged in working any mine, mines, mining premises
or in developing any mining claim or claims, whether quartz or placer,
or in the running of any tunnel, or in the erection or repair of any
building or other structure, or in the construction of any canal, ditch,
railroad, wagon road or aqueduct, in every case where mechanics or
laborers are employed in or about the properties above mentioned
to make, record and publish a statement under oath, setting forth
the following data :
1. The name or names of the owner or owners of the mine,
mines, mining claim or premises, tunnel, building, canal, ditch, rail-
road, wagon road, aqueduct or other structure upon which work is
being done or upon which it is intended to begin work ;
2. The name or names of the person, persons, company or cor-
poration engaged in, or who contemplates engaging in, work upon
any of the properties or structures mentioned herein ;
3. The conditions under which said person> persons, company or
corporation is prosecuting said work, whether as owner, agent, lessee,
contractor, sub-contractor, contemplative purchaser or lien holder;
4. The principal office of said person, persons, company or cor-
poration, and, if a corporation, the State or county where incor
porated and the agent in this State on whom service may be had ;
5. The day of the week or month when payment of the laborers,
mechanics and material men will be made, and the place where said
payments will be made;
6. A statement of all mortgages and liens against the property
on which work is being done, with the amount of each of said in-
cumbrances and whether or not the same is due.
Historical: Laws 1899, 365, Sees. 1,
2, re-written in combination.
Ch. 28. Art. 1.
UNION LABOR — TRADE MARKS
655
Same:
Sec. 1447. Any person, persons, company or corporation who shall
engage in working, developing or prospecting any mine, mines, min-
ing claim or premises, or in running any tunnel, or in repairing or
erecting any building, or in constructing any canal, ditch, railroad,
wagon road, aqueduct or other structure, and shall employ any me-
chanics or laborers in prosecuting said work, shall, before employing
said mechanics or laborers or any of them, make a statement under
oath containing the data provided for in the preceding section, and
file the same for record in the office of the recorder of the county
in which said labor is being done, and if there be a district recorder,
then also in the office of said district recorder of the district where
said mechanics or laborers are employed, and to also post similar
statements in his or its office, at the place where payment of wages
is to be made and in a public and conspicuous place where it can be
easily seen at or near the place where said mechanics or laborers are
employed.
Historical: Laws 1899, 365, Sees. 3,
4, re-written in combination so as to
omit the provision applicable to per-
sons employing- labor at the time of
the passage of the act, which is now
obsolete, and to preserve the portions
of the section now in force.
Violation of Chapter a Misdemeanor.
Sec. 1448. Any person, persons, company or corporation, or any
managing agent violating any of the provisions of this chapter shall
be deemed guilty of a misdemeanor, and upon conviction thereof
shall be punished by a fine of not less than one hundred dollars, or
by imprisonment in the county jail for not exceeding three months.
Historical: Laws 1899, 365, Sec. 5.
CHAPTER 28.
UNION LABOR AND EMPLOYMENT OF ALIENS.
Article
1. Union labels and trade mark?.
2. Anti-union contracts.
Article
3. Employment of aliens.
ARTICLE 1.
UNION LABELS AND TRADE MARKS.
Section
1454. Penalty for unauthorized use of
label.
1455. Penalty for unauthorized use of
name.
Section
1449. Unlawful to counterfeit union
label.
1450. Same: Penalty.
1451. Record of label.
1452. Penalty for fraudulent record.
1453. Injunction and damages for in-
fringement.
Unlawful to Counterfeit Union Label.
Sec. 1449. Whenever any person, or any association or union of
working men, has heretofore adopted or used, or shall hereafter adopt
or use, any label, trade mark, term, design, device or form of ad-
vertisement, for the purpose of designating, making known, or dis-
tinguishing any goods, wares, merchandise, or other products of
Vol. 1—22
656 POLICE — REGULATION OF LABOR Tit. 8
labor, as having been made, manufactured, produced, prepared
packed or put on sale, by such person, or association, or union of
working men, or by a member or members of such association or union,
it shall be unlawful to counterfeit or imitate such label, trade mark'
term, design, device or form of advertisement, or to use, sell, offer
for sale, or in any way utter or circulate any counterfeit or imitation
of any such label, trade mark, term, design, device or form of ad-
vertisement.
Historical: Laws 1899, 316, Sec. 1; 1 Comparative Legislation: See Colo
re-enacting Laws 1897, 123, Sec. 1. I Mill's An. St. Vol. 3, Sec. 2985-1.
Same : Penalty.
Sec. 1450. Whoever counterfeits or imitates any such label, trade
mark, term, design, device or form of advertisement, or sells, offers
for sale, or in any way utters or circulates any counterfeit or imita-
tion of any such label, trade mark, term, design, device or form of
advertisement; or keeps or has in his possession, with intent that
the same shall be sold or disposed of, any goods, wares, merchandise
or other product of labor to which or on which any such counterfeit
or imitation is printed, painted, stamped or impressed; or knowingly
sells or disposes of any goods, wares, merchandise or other product
of labor contained in any box, case, can or package, to which or on
which any such counterfeit or imitation is attached, affixed, printed,
painted, stamped or impressed; or keens or has in his possession,
with intent that the same shall be sold or disposed of, any goods,
wares, merchandise or other product of labor in any box, case, can
or package to which or on which any such counterfeit or imitation
is attached, affixed, printed, painted, stamped or impressed, shall be
guilty of a misdemeanor and be punished by a fine or not more than
one hundred dollars, or by imprisonment for not more than three
months.
Historical: Laws 1899, 316, Sec. 2: Comparative Legislation: See Colo,
re-enacting Laws 1897, 123, Sec. 2. I Mill's An. St. Vol. 3, Sec. 2985m.
Record of Label.
Sec. 1451. Every such person, association or union, that has here-
tofore adopted or used, or shall hereafter adopt or use, a label, trade
mark, term, design, device or form of advertisement, as provided in
Section 1449, may file the same for record in the office of the Secre-
tary of State, by leaving two copies, counterparts or facsimiles
thereof with said Secretary, and by filing therewith a sworn appli-
cation specifying the name or names of the person, association or
union on whose behalf such label, trade mark, term, design, device
or form of advertisement shall be filed; the class of merchandise
and a description of the goods to which it has been or is intended
to be appropriated, stating that the party so filing on or whose behalf
such label, trade mark, term, design, device, or form of advertise-
ment shall be filed, has the right to the use of the same; that no
other person, firm, association, union or corporation has a right to
such use, either in the identical form or in any such near resemblance
thereto as may be calculated to deceive, and that the facsimile or
counterparts filed therewith are true and correct. There shall be
paid for such filing and recording a fee of one dollar. Said Secretary
Ch. 28. Art. 1. union labor — trade marks 657
shall deliver to such person, association, or union, so filing or causing
to be filed any such label, trade mark, term, design, device or form
of advertisement, so many duly attested certificates of the recording
of the same as such person, association, or union may apply for, for
each of which certificates said Secretary shall receive a fee of one
dollar. Any such certificate of record shall, in all suits and prosecu-
tions under this chapter, be sufficient proof of the adoption of such
label, trade mark, term, design, device or form of advertisement.
Said Secretary of State shall not record for any person, union, or
association, any label, trade mark, term, design, device or form of
advertisement that would probably be mistaken for any label, trade
mark, term, design, device or form of advertisement theretofore
filed by or on behalf of any other person, union, or association.
Historical: Laws 1899, 316, Sec. 3; Comparative Legislation: See Colo,
re-enacting Laws 1897, 123, Sec. 3. I Mill's An. St. Vol. 3, Sec. 2985n.
Penalty for Fraudulent Record.
Sec. 1452. Any person who shall, for himself or on behalf of any
other person, association or union, procure the filing of any label,
trade mark, term, design or form of advertisement in the office of
the Secretary of State under the provisions of this chapter, by making
any false or fraudulent representations or declarations, verbally or in
writing or by any fraudulent means, shall be liable to pay any dam-
ages sustained in consequence of any such filing, to be recovered by,
or on behalf of, the party injured thereby, in any court having juris-
diction, and shall be guilty of a misdemeanor, and be punished by a
fine not exceeding one hundred dollars, or by imprisonment not ex-
ceeding three months.,
Historical: Laws 1899, 316, Sec. 4; Comparative Legislation: See Colo,
re-enacting Laws 1897, 123, Sec. 4. I Mill's An. St. Vol. 3, Sec. 2985o.
Injunction and Damages for Infringement.
Sec. 1453. Every such person, association or union adopting or
using a label, trade mark, term, design, device or form of advertise-
ment as aforesaid, may proceed by suit to enjoin the manufacture,
use, display or sale of any counterfeits or imitations thereof, and all
courts of competent jurisdiction shall grant injunctions to restrain
such manufacture, and may award the complainant in any such suit
damages resulting from such manufacture, use, sale or display, as
may be by the said court deemed just and reasonable, and shall re-
quire the defendants to pay to such persons, association or union, all
profits derived from such wrongful manufacture, use, display or sale ;
and such court shall also order that all such counterfeits or imitations
in the possession or under the control of any defendant in such cause
be delivered to an officer of the court, or to the complainant to be
destroyed.
Historical: Laws 1899, 316, Sec. 5; I Comparative Legislation: See Colo.
re-enacting Laws 1897, 123, Sec. 5. I Mill's An. St. Vol. 3, Sec. 2985p.
Penalty for Unauthorized Use of Label.
Sec. 1454. Every person who shall use or display the genuine
label, trade mark, term, design, device or form of advertisement of
any such person, association or union, in any manner, not being
658
POLICE — REGULATION OF LABOR
Tit. 8
authorized so to do by such person, union or association, shall be
deemed guilty of a misdemeanor, and shall be punished by imprison-
ment for not more than three months or by fine or not more than
one hundred dollars. In all cases where such association or union
is not incorporated, suits under this chapter may be commenced
and prosecuted by an officer or members of such association or union
on behalf of, and for the use of, such association or union.
Historical: Laws 1899, 316, Sec. 6;
re-enacting Laws 1897, 123, Sec. 6.
Comparative Legislation: See Colo
Mill's An. Stat. Vol. 3, Sec. 2985q.
Penalty for Unauthorized Use of Name.
Sec. 1455. Any person or persons who shall in any way use the
name or seal of any such person, association or union, or officer
thereof, in and about the sale of goods or otherwise, not being au-
thorized to so use the same, shall be guilty of a misdemeanor, and
shall be punishable by imprisonment for not more than three months,
or by a fine of not more than one hundred dollars.
Historical: Laws 1899, 316, Sec. 7;
re-enacted Laws 1897, 123, Sec. 7.
Comparative Legislation: See Colo.
Mill's An. Stat. Vol. 3, Sec. 2985r.
ARTICLE 2.
ANTI-UXIOX CONTRACTS.
Section
1456. Anti-union contracts prohibited.
Anti-Union Contracts Prohibited.
Sec. 1456. It shall be unlawful for any person, firm or corporation
to make or enter into any agreement, either oral or in writing, by
the terms of which any employee of such person, firm or corporation,
or any person about to enter the employ of such person, firm or
corporation, as a condition for continuing or obtaining such employ-
ment, shall promise or agree not to become or continue a member
of a labor organization. Any person or persons or corporation vio-
lating the provisions of this section shall be guilty of a misdemeanor,
and upon conviction thereof shall be fined in a sum not less than
fifty not more than three hundred dollars, or be imprisoned in the
county jail for not more than six months, or shall be punished by
both such fine and imprisonment.
Historical: Laws 1899, 221, Sees. 1,
2; re-enacting- Laws 1893, 152, Sees. 1,
2. "Shall be punished" inserted before
"by both such, fine and imprisonment,"
to express the sense.
ARTICLE 3.
EMPLOYMENT OF ALIENS.
Section
14 57. Employment on public works
prohibited.
1458. Counties, cities and corpora-
tions not to employ aliens.
Section
1159. Discharge of alien employee.
1460. Same: Refusal to discharge.
Employment on Public Works Prohibited.
Sec. 1457. No person not a citizen of the United States, or who
has not declared his intention to become such, or who is not eligible
to become such, shall be employed upon any State or municipal works ;
Ch. 28. Art. 3.
EMPLOYMENT OF ALIENS
659
nor shall any such person be employed by any contractor to work on
any public works of the State or any municipality ; Provided, That any
State prisoner may be employed within the State Prison grounds
and as provided in Section 3, Articlel3, of the constitution. Any person
who shall violate any of the provisions of this section, on conviction
thereof, shall be punished by a fine of not less than ten dollars nor
more than one hundred dollars for each person so employed, or by
imprisonment in the county jail until such fine be paid, or until dis-
charged as provided by law.
Historical: Laws 189 9, 70. Sees. 3
and 4; re-enacting Laws 1890-91, 233,
Sees. 1, 2.
Cross Reference: Convicts are to be
employed within the prison grounds,
except when the work is done on
public works under the direct control
of the State: Const. Art. 13, Sec. 3.
Employment of aliens on or in con-
nection with State or municipal works
prohibited: Const. Art. 13, Sec. 5.
Rights of aliens to hold property:
Sees. 2609, 2610.
Counties, Cities and Corporations Not to Employ Aliens.
Sec. 1458. It shall hereafter be unlawful for any county govern-
ment, or municipal or private corporation organized under the laws
of this State or organized under the laws of another State or Terri-
tory or in a foreign county and doing business in this State, to give
employment in any way to any alien who has failed, neglected or
refused, prior to the time such employment is given, to become
naturalized or to declare his intention to become a citizen of the
United States.
Historical: Laws 1899, 70, Sec. 5;
re-enacting Laws 1897, 5, Sec. 1.
Discharge of Alien Employee.
Sec. 1459. Whenever employment has been innocently given to
any alien by any county government, municipal or private corpora-
tion mentioned in the preceding section, and complaint shall be made
in writing by any person to the officers of the county government
or municipal corporation, or to the general manager, superintendent,
foreman or other agent of the private corporation, having charge or
superintendency of the labor of such alien employee, that such em-
ployee is an alien, he shall forthwith discharge such employee from
employment unless said employee shall produce his declaration to
become a citizen, or his certificate of naturalization, or a duly certified
copy thereof.
Historical: Laws 1899, 70, Sec. 6;
re-enacting Laws 1897, 5, Sec. 2. The
section referred to "Section 1 of this
act," but the reference was obviously
to the preceding section, which was
Sec. 1 of the 1897 act, and the change
was overlooked in the re-enactment.
Same: Refusal to Discharge.
Sec. 1460. Any public officer or any county government, or mu-
nicipal corporation, or any general manager, superintendent, fore-
man, or other agent of any private corporation, or any contractor
or agent of any company engaged in public work, who shall violate
any of the provisions mentioned in this article, or who shall know-
mgly give employment to any alien, or who having innocently given
such employment, shall, on complaint being made to him by any
person, fail or refuse to discharge any such employee forthwith on
660
POLICE — REGULATION OF LABOR
Tit. 8
the failure or refusal of such employee to produce for his inspection
and the inspection of the complainant, his declaration of intention
to become a citizen, or certificate of naturalization, as provided in
the preceding section, shall be deemed guilty of a misdemeanor.
Historical: Laws 18 99, 70, Sec. 7;
re-enacting- Laws 1897, 5, Sec. 3. This
section contained the same error in
reference as the preceding section, by
referring to Sec. 2 of the re-enact-
ment instead of to Sec. 2 of the origi-
nal act.
CHAPTER 29.
DAYS WORK AND CHILD LABOR.
Article
1. Days work on public works.
2. Days work in mines.
Article
3. Child labor.
ARTICLE 1.
DAY'S WORK ON PUBLIC WORKS.
Section
1461. Eight hours a day's work.
Section
1462. Bids for public work.
Eight Hours a Day's Work.
Sec. 1461. Not more than eight hours' actual work shall constitute
a lawful day's work on all State, county and municipal works:
Provided, That nothing in this article contained shall be construed
as meaning any labor except manual labor, employed by the day, and
nothing in this article contained shall apply to State, county or mu-
nicipal officials, or to any employees of the State or of any county
or municipality, who are paid monthly or yearly salaries.
Historical: Laws 1899, 113, Sec. 1.
Cross Reference: Eight hours shall
constitute a lawful day's work on State
and municipal works: Const. Art. 13,
Sec. 2.
Bids for Public Work.
Sec. 1462. Any and all bids for work on public buildings or other
public works of the State, or of any county or municipality of the
State, shall expressly state and declare that all laborers and me-
chanics employed by the day on such buildings or public works, or
in the preparation of materials to be directly used for or in the con-
struction of such buildings or public works, shall be employed on
the basis of eight hours as a lawful day's work. -
Historical: Laws 1899, 113, Sec. 2.
ARTICLE 2.
DAY'S WORK IN MINES.
Section
1463. Eight hours a day's work.
1464. Same: In smelters.
Section
1465. Violation of article a misde-
meanor.
Eight Hours a Day's Work.
Sec. 1463. The period of employment of working men in all un-
derground mines or workings shall be eight hours per day, except in
cases of emergency where life or property is in imminent danger.
Historical: Laws 1907, 97, Sec. 1.
Ch. 29. Art. 3.
DAY'S WORK — CHILD LABOR
661
Same : In Smelters.
Sec. 1464. The period of employment of working men in smelters,
and in all other institutions for the refining or reduction of ores or
metals, shall be eight hours per day, except in cases of emergency
where life or property is in imminent danger.
Historical: Laws 1907, 97, Sec. 2.
Violations of Article a Misdemeanor.
Sec. 1465. Any person, body corporate, agent, manager or em-
ployer who shall violate any of the provisions of the two preceding
sections shall be guilty of a misdemeanor, and upon conviction thereof
shall be punished by a fine of not less than fifty dollars, nor more
than three hundred dollars, or by imprisonment in the county jail
for not more than six months, or by both such fine and imprisonment.
Historical: Laws 1907, 97, Sec. 3.
ARTICLE 3.
CHILD LABOR.
Section
1466. Restrictions on employment of
children under fourteen.
1467. Same: Children under sixteen:
Educational requirements.
1468. Employers to keep record of
minor employees.
1469. Working hours for children
under sixteen.
Section
1470. Penalty for violation of article.
1471. Prohibition against theatrical
employment of children.
1472. Employment of minors in sa-
loons, etc.
1473. Probation officers and school
trustees to bring complaint.
Restrictions on Employment of Children Under Fourteen.
Sec. 1466. No child under fourteen years of age shall be employed
in, or permitted or suffered to work in or in connection with, any
mine, factory, workshop, mercantile establishment, store, telegraph
or telephone office, laundry, restaurant, hotel, apartment house, or
in the distribution or transmission of merchandise or messages. It
shall be unlawful for any person, firm or corporation to employ any
child under fourteen years of age in any such business or service
whatever, during the hours in which the public schools of the district
in which the child resides are in session, or before the hour of six
o'clock in the morning, or after the hour of nine o'clock in the evening :
Provided, That any such child, over the age of twelve years, may be
employed at any of the occupations mentioned in this article during
the regular vacations, of two weeks or more, of the public schools of
the district in which such child resides.
Historical: Laws 1907, 248, Sec. 1.
Cross Reference: Employment of
children under fourteen years of age
Same: Children Under Sixteen: Educational Requirements.
Sec. 1467. No minor who is under sixteen years of age shall be
employed or permitted to work at any gainful occupation during the
hours that the public schools of the school district in which he resides
are in session, unless he can read at sight, and write legibly, simple
sentences in the English language, and has received instruction in
spelling, English grammar, and geography, and is familiar with the
in underground mines prohibited
Const. Art. 13, Sec. 4.
662 POLICE — REGULATION OF LABOR Tit. 8
fundamental operations of arithmetic up to and including fractions,
or has similar attainments in another language.
Historical: Laws 1907, 2 48, Sec. 2.
Employers to Keep Record of Minor Employees.
Sec. 1468. Every person, firm, corporation, agent or officer of a
firm or corporation employing or permitting minors under sixteen
years of age and over fourteen years of age to work in any mine,
factory, workshop, mercantile establishment, store, telegraph or tele-
phone, office, laundry, restaurant, hotel, apartment house, or in the
distribution or transmission of merchandise or messages, shall keep
a record of the names, ages, and places of residence of such minors.
Historical: Laws 1907, 248, Sec. 3.
Working Hours for Children Under Sixteen.
Sec. 1469. No person under the age of sixteen years shall be em-
ployed or suffered or permitted to work at any gainful occupation
more than fifty-four hours in any one week, nor more than nine hours
in any one day; nor before the hour of six o'clock in the morning,
nor after the hour of nine o'clock in the evening.
Historical: Laws 1907, 2 48, Sec. 4.
Penalty for Violation of Article.
Sec. 1470. Whoever employs a child under sixteen years of age,
and whoever, having under his control a child under such age, permits
such child to be employed in violations of Sections 1466 and 1467,
shall, for such offense, be fined not more than fifty dollars, and who-
ever continues to employ any child in violation of either of said sec-
tions after being notified by a truant officer, probatioruofficer or school
authority, shall, for every day thereafter that such employment con-
tinues, be fined not less than five nor more than twenty dollars. A
failure to produce to a truant officer, policeman, probation officer or
school authority, the age record required by this article, shall be
prima facie evidence of the illegal employment of any person whose
age record is not produced. Any parent, guardian or custodian of
a minor under sixteen years of age, who knowingly swears falsely
as to the age of such child for the purpose of obtaining an age record,
is guilty of perjury.
Historical: Laws 1907, 24 8, Sec. 5.
Cross Reference: Punishment for
perjury: Sec. 6486.
Prohibition Against Theatrical Employment of Children.
Sec. 1471. Any person, whether as parent, relative, guardian, em-
ployer or otherwise, having the care, custody or control of any child
under the age of sixteen years, who exhibits, uses or employs in any
manner, or under any pretense sells, apprentices, gives away, lets
out or disposes of such child to any person, under any name, title or
pretense, for or in any business, exhibition or vocation, injurious
to the health or dangerous to the life or limb of such child, or in or
for the vocation, occupation, service or purpose of singing, playing
on musical instruments, rope or wire walking, dancing, begging or
peddling, or as a gymnast, acrobat or contortionist, or rider, or in
Ch. 30. THE PRINTING TRADE 663
any place whatsoever, or for any obscene, indecent or immoral pur-
pose, exhibition or practice whatsoever, or for or in any mendicant
or wandering business whatsoever, or who causes, procures or en-
courages such child to engage therein, is guilty of a misdemeanor,
and punishable by a fine of not less than fifty nor more than two
hundred and fifty dollars, or by imprisonment in the county jail for
a term not exceeding six months, or by both such fine and imprison-
ment. Every person who takes, receives, hires, employs, uses, ex-
hibits or has in custody any child under the age and for any of the
purposes mentioned in this section, is guilty of a like offense and
punishable by like imprisonment. Nothing in this section contained
applies to or affects the employment or use of any such child as a
singer or musician in any church, school or academy, or the teaching
or learning of the science or practice of music.
Historical: Laws 1907, 248, Sec. 6.
Employment of Minors in Saloons, Etc.
Sec. 1472. Any person, whether as parent, guardian, employer or
otherwise, and any firm or corporation, who as employer or other-
wise, shall send, direct or cause to be sent or directed, any minor,
to any saloon, gambling house, house of prostitution or other im-
moral place; or who shall employ any minor to serve intoxicating
liquors to customers, or who shall employ a minor in handling in-
toxicating liquors or packages containing such liquors in a brewery,
bottling establishment or other place where such liquors are pre-
pared for sale or offered for sale, shall, for each offense, be punished
by a fine of not less than fifty dollars, or imprisonment for not less
than two months, or by both such fine and imprisonment.
Historical: Laws 1907, 248, Sec. 7.
Probation Officers and School Trustees to Bring Complaint.
Sec. 1473. The probation officer, or in counties where there is no
probation officer one or more of the school trustees, shall visit the
various places of employment mentioned in Sections 1466 and 1472,
and ascertain whether any minors are employed therein contrary to
the provisions of this article, and they shall bring complaint for
offenses under this article to the attention of the prosecuting attor-
ney for prosecution, but nothing herein shall be held to prohibit any
reputable citizen from bringing complaint for violations of this arti-
cle. All offenses under this article shall be prosecuted in the probate
court.
Historical: Laws 1907, 248, Sec. 8.
PARTICULAR INDUSTRIES.
CHAPTER 30.
THE PRINTING TRADE.
Section
1474. Contracts for State printing-.
475. Contracts for county printing.
1476. Exception in case of excessive
charge.
Section
1476a. Penalty for violation of chap-
ter.
1477. Rates for official notices.
664 POLICE — PARTICULAR INDUSTRIES Tit. 8
Contracts for State Printing'.
Sec. 1474. All printing, binding and stationery work, executed for
or on behalf of the State, and for which the State contracts, or be-
comes in any way responsible, shall be executed within the State
of Idaho, except as provided in Section 1476.
Historical: Laws 1903, 333, Sec. 1. Supreme Court reports to be let with-
Cross Reference: Contract to print ' in the State if feasible: Sec. 227.
Contracts for County Printing.
Sec. 1475. All county printing, binding and stationery work, ex-
ecuted for or on behalf of the several counties throughout the State,
for which the said counties contract, or become in any way responsi-
ble, shall be executed within the county for which said work is done,
when there are practicable facilities within the said county for ex-
ecuting the same, but when it shall become necessary, from want
of proper facilities, to execute the work without the said county,
then the same shall be executed at some place within the State of
Idaho, except as provided in the following section.
Historical: Laws 1903, 333, Sec. 2.
Exception in Case of Excessive Charge.
Sec. 1476. Whenever it shall be established that any charge for
printing, binding or stationery work is in excess of the charge usually
made to private individuals for the same kind and quality of work,
then the State or county officer or officers having such work in charge
shall have power to have such work done outside of said county or
State, but nothing in this chapter shall be construed to oblige any
of said officers to accept any unsatisfactory work.
Historical: Laws 1903, 333, Sec. 3.
Penalty for Violation of Chapter.
Sec. 1476a. Any State or county officer either as an official, mem-
ber of a board, or purchasing agent, who violates any of the above
provisions, is guilty of a misdemeanor, and upon conviction thereof
shall be fined in a sum not less than one hundred dollars nor more
than five hundred dollars for each offense, and shall be liable upon
his official bond for the amount of such contract entered into.
Historical: Laws 1903, 333, Sec. 6.
Rates for Official Notices.
Sec. 1477. The rate to be charged for all official notices, required
by law to be published in any newspaper in this State, by any State,
county, municipal official or other person, shall be one dollar per
vertical inch, single column measure, consisting of not less than ten
lines in nonpariel type or its equivalent, or sixty words to the inch,
for first insertion; and fifty cents per inch for each subsequent in-
sertion ; and for table or figure matter, one dollar and one-half per
vertical inch, consisting of not less than ten lines in nonpariel type
or its equivalent, and seventy-five cents for each subsequent insertion ;
fractional inches to be charged for pro rata: Provided That no
charge shall be made for less than an inch in any case.
Historical: Laws 1907, 27, Sec. 1.
Ch. 31.
WAREHOUSEMEN
665
CHAPTER 31.
WAREHOUSEMEN.
Section
1478. State Grain Commission.
Establishment of grades and
regulations.
Same: Manner of establishing
grades.
Publication of grades and regu-
lations.
Commission to furnish sample
of grain.
Compensation of commission-
ers.
Disposal of moneys collected
by commission.
Audit and payment of ex-
penses.
1479
1480
1481
1482
1483
1484
1485
Section
1486. Receipts for grain and pro-
duce.
1487. Form of receipt.
1488. Restrictions on issuance.
1489. Mixing grades prohibited.
1490. Unauthorized sales by ware-
houseman.
1491. Checks and receipts negotiable.
1492. Possession to be delivered.
1493. Violation of chapter a felony:
Action for damages.
State Grain Commission.
Sec. 1478. The State Grain Commission consists of three qualified
electors of the State of Idaho, who are appointed by the Governor
to hold office for two years and until their successors are appointed
and qualified, unless sooner removed by the Governor. The Com-
missioners shall be appointed each odd numbered year. Said Com-
missioners shall take the oath of office required of other State officers.
Each of them shall be a competent and experienced grain man, and
they shall be selected from different sections of the State. The de-
cisions of a majority of the Commissioners shall be deemed the de-
cisions of the commission on all questions arising for their considera-
tion.
Historical: Laws 1907, 52 9, Sec. 1;
amending, by addition of Sees. 8 and
9, Laws 1899, 7. Re-written so as to
omit the provisions for the appoint-
ment of the first commission, and to
fix the year for the appointment of
the commissioners as contemplated by
the act.
Comparative Legislation : See Wash-
ington: Bal. An. Code, Sees. 2893,
2894.
Establishment of Grades and Regulations.
Sec. 1479. The board shall select one of its members as chairman
of said commission, and before the twentieth day of September of
each year said commission shall be called together by the chairman
at some place within the State, and shall then and there establish
standard grades of all grain bought or handled by any public ware-
house within this State which shall be known as "Idaho grade." The
said commission shall also establish the necessary rules and regula-
tions for grading and weighing grain, and shall fix the charges for
inspecting and grading grain, and shall make such other rules and
regulations as may be necessary for enforcing the regulations of this
chapter or any law of this State in regard to the same.
Historical: Laws 1907, 529, Sec. 1;
amending Laws 1899, 7, by adding
Sec. 10.
Same: Manner of Establishing Grade.
Sec. 1480. For the purpose of maintaining the grades of wheat in
this State, it shall be the duty of the chairman to procure from every
666 POLICE— PARTICULAR INDUSTRIES Tit. 8
part of the State of Idaho, each season, as soon as it can be done after
harvest, samples of the crop of grains, and after collecting such sam-
ples of grain he shall call a meeting of the State Grain Commission,
and they shall make up and establish from said samples the said
grade, which shall be a fair average mixture of all the varieties of
grain in the different sections of the State. If the said State Grain
Commission deem it expedient they may, in making up and establish-
ing the said grades, meet and confer with like grain authorities
in the States of Oregon and Washington, or, in case there are no
such authorities in the States of Oregon and Washington, then with
the representatives of the leading handlers of grain in the cities of
Portland, Oregon, and Tacoma, Washington, and make up and estab-
lish the same fair average quality, which shall be maintained in this
State. This section shall not be so constructed as to interfere with
the standard grades of grain elsewhere provided for in this chapter.
Historical: Laws 1907, 52 9, Sec. 1; i Comparative Legislation: See Wash-
amending Laws 1899, 7, by adding ington: Bal. An. Code, Sec. 2899.
Sec. 13. I
Publication of Grades and Regulations.
Sec. 1481. The said standard grades, charges, rules and regula-
tions so made and established, shall be published in some newspaper
printed and published in every county in the State of Idaho for a
period of two weeks, beginning immediately after they are made or
established, and it shall be the duty of every warehouseman within
this State to apply to and receive of the chairman a placard copy of
the said standard grades, charges, rules and regulations which he
shall keep posted in a conspicuous place in his office, and which the
chairman shall furnish free of cost. Said commission may modify
such grades, rules and regulations or establish new ones, and such
changes shall be advertised the same as required for the original.
Historical: Laws 1907, 52 9, Sec. 1;
amending Laws 1899, 7, by adding
Sec. 11.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 2897.
Commission to Furnish Sample of Grain.
Sec. 1482. It shall be the duty of the commission to furnish any
elevator or warehouse in this State or adjoining States, standard
samples of grain as established by the State Grain Commission when
requested to do so by the proprietor, lessee or manager thereof, at
the actual cost of such sample. It shall be the duty of the commission
to advertise the cost to the warehousemen off the said standard sam-
ples of grain, at the time the said standard grades, charges, rules
and regulations are advertised as herein provided.
Comparative Legislation: See Wash-
Historical: Laws 1907, 529, Sec. 1;
amending Laws 1899, 7, by adding
Sec. 12.
ington: Bal. An. Code, Sec. 2898.
Compensation of Commissioners.
Sec. 1483. The members of the said Grain Commission shall re-
ceive five dollars for each day in going to, attending upon and re-
turning from any meeting of said commission, but not more than
four meetings shall be held in any one year.
Ch. 31.
WAREHOUSEMEN
667
Historical: Laws 1907, 529, Sec. 1;
amending Laws 18 99, 7, by adding
Sec. 14.
Disposal of Moneys Collected by Commission.
Sec. 1484. All moneys collected by the Grain Commission from
any source, shall be paid into the State Treasury on or before the
fifteenth day of the month succeeding said collection, accompanied
with a statement showing from what source collected and the amount
of such collection. It shall be the duty of the State Treasurer to
receive all moneys aforesaid, and to credit the same to the grain
inspection fund, and said fund is hereby appropriated for the purpose
of carrying out the provisions of this chapter.
Historical: Laws 1907, 52 9, Sec. 1;
amending Laws 1899, 7, by adding
Sec. 15.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 2903.
Audit and Payment of Expenses.
Sec. 1485. All expenditures and salaries, not otherwise provided
for in this chapter, shall be audited and paid out of the current ex-
pense fund of the State the same as the account of any other State
official.
Historical: Laws 19 07, 5 29, Sec. 1;
amending Laws 1899, 7, by adding
Sec. 16.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 2904.
Receipts for Grain and Produce.
Sec. 1486. It shall be the duty of every person keeping, control-
ling, managing or operating, as owner or agent or superintendent
of any company or corporation, any warehouse, commission house,
forwarding house, mill, wharf or other place where grain, flour, wool
or other product is stored, to deliver to the owner of such grain,
flour, wool, or other product a warehouse receipt therefor, which re-
ceipt shall bear the date of its issuance, and shall state from whom
received, the number of sacks (if sacked), the number of bushels or
pounds, the condition or quality of the same, and the terms and con-
ditions upon which it is stored : Provided, That in case of grain the
receipt shall show the grade thereof, and shall be conclusive evidence
of what it contains as against said warehouse, and no further expense
or charge shall be made than is provided for in said receipt, and the
grade so shown by said warehouse receipt shall conform to the grades
established by the State Grain Commission.
Historical: Laws 1899, 7, Sec. 1;
re-enacting Laws 1890-91, 12, Sec. 1.
The proviso is compiled from Laws
1907, 529, Sec. 1, amending the act of
1899 by adding thereto Sec. 17, the
first part of which section is identical
in language with the first part of Sec.
1 of the 1899 law, and the contents
of the last part is preserved by the
proviso.
Comparative Legislation: See Wash-
ington: Hill's An. Code, Vol. 1, Sec.
2400.
Form of Receipt.
Sec. 1487. The receipt required in the last preceding section shall
be in form as follows:
(Name of firm or company.)
No (Place and date.)
668
POLICE — PARTICULAR INDUSTRIES
Tit. 8
Received in store from (name of consignor), (quantity), gross
— lbs., tare lbs, net lbs., No
(give here grade and name of commodity) , at owner's risk of unavoid-
able damage, to be delivered at this warehouse, upon return of this
receipt, properly indorsed, and payment of charges. This receipt
negotiable when duly indorsed by consignor. Storage to (here give
amount and date).
Signed (Name of firm or company,)
(Name of agent), Agent.
Historical: Laws 1907, 5 2 9, Sec. 1;
amending- Laws 1899, 7, by adding
Sec. 18.
Comparative Legislation: See Wash-
ington: Hill's An, Code, Vol. 1, Sec.
2401.
Restrictions on Issuance.
Sec. 1488. No person shall issue any receipt or other vouchers as
provided for in the two preceding sections for any grain, flour, wool
or other produce not actually in store at the time of issuing such
receipt, or issue any receipt in any respect fraudulent in its char-
acter, either as to its date or the quantity, quality or grade of such
property, or duplicate or issue a second receipt for the same while
any former receipt is outstanding for the same property or any part
thereof, without writing across the face of the same the word
"duplicate."
Historical: Laws 1899, 7, Sec. 2;
re-enacting Laws 1890-91, 12, Sec. 2.
Comparative Legislation: See Wash-
ington: Hill's An. Code, Vol. 1, Sec.
2402.
Mixing Grades Prohibited.
Sec. 1489. No person operating any warehouse, commission house,
forwarding house, mill, wharf, or other place where grain, flour,
wool, or other product or commodity, is stored, shall mix any grain,
flour, wool, or other product or commodity), of different grades to-
gether (or different qualities of the same grade), or deliver one grade
for another, or in any way tamper with the same while in his pos-
session or custody; and such person shall in no case mix different
grades together while in store without the consent of the owner or
owners thereof in writing.
Historical: Laws 1899, 7, Sec. 3;
re-enacting Laws 1890-91, 12, Sec. 3.
"Such person shall" inserted in the
last clause, to complete the sense.
Comparative Legislation: See Wash-
ington: Hill's An. Code, Vol. 1, Sec.
2403.
Unauthorized Sales by Warehouseman.
Sec. 1490. No person operating any warehouse, commission house,
forwarding house, mill, wharf, or other place of storage, shall sell,
hypothecate, ship, transfer, or in any manner remove, or permit
to be shipped, transferred or removed beyond his custody and control,
any grain, flour, wool or other produce or commodity for which a
receipt has been given by him as aforesaid, whether received for
storing, shipping, grinding or manufacturing or other purposes,
without the written assent of the holder of the receipt.
Historical: Laws 1899, 7, Sec. 4;
re-enacting Laws 1890-91, 12, Sec. 4.
Comparative Legislation: See Wash-
ington: Hill's Ann. Code, Vol. 1, Sec.
2404.
Ch. 31.
WAREHOUSEMEN
669
Checks and Receipts Negotiable.
Sec. 1491. All checks or receipts given by any person operating
any warehouse, commission house, forwarding house, mill, wharf
or other place of storage for grain, flour, wool or other produce or
commodity stored or deposited, and all bills of lading and transporta-
tion receipts of every kind, are hereby declared negotiable, and may
be transferred by indorsement of the party to whose order such
check or receipt was given or issued, and such indorsement shall be
deemed a valid transfer of the commodity represented by such re-
ceipt, and may be made either in blank or to the order of another.
Historical: Laws 1899, 7, Sec. 5;
re-enacting Laws 1890-91, 12, Sec. 5.
Comparative Legislation: See Wash-
ington
2407.
Hill's Ann. Code, Vol. 1, Sec.
Possession to Be Delivered.
Sec. 1492. On the presentation of the receipt given by any person
operating any warehouse, commission house, forwarding house, mill,
wharf or any other place of storage for any grain, flour, wool or
other produce or commodity, and on payment of all the charges due
thereon the owner shall be entitled to the immediate possession of
the commodity named in such receipt, and it shall be the duty of
such warehouseman, wharfinger, mill man or other bailee to deliver
such commodity to the owner of such receipt.
Cited: Lawson v. Genesee, etc., Co.
(1895) 4 Ida. 588; 43 Pac. 191.
Historical: Laws 18 99, 7, Sec. 6;
re-enacting Laws 1890-91, 12, Sec. 6.
Comparative Legislation: See Wash-
ington: Hill's Ann. Code, Vol. 1, Sec.
2405.
Violation of Chapter a Felony: Action for Damages.
Sec. 1493. Any person who shall violate any of the provisions of
this chapter shall be guilty of a felony, and, upon conviction thereof,
shall be fined in any sum not exceeding five thousand dollars, or be
imprisoned in the Penitentiary of this State not exceeding five years,
or both; and in case of a corporation the person acting for such
comporation shall be liable for a like punishment upon indictment
and conviction. And all and every person or persons aggrieved by
a violation of this chapter may have and maintain an action at law
against the person or persons, corporation or corporations, violating
any of the provisions of this chapter, to recover all damages, im-
mediate or consequential, which he or they may have sustained by
reason of such violation, before any court of competent jurisdiction,
whether such person shall have been convicted under this chapter
or not.
Historical: Laws 1899, 7, Sec. 7;
re-enacting Laws 1890-91, 12, Sec. 7.
Comparative Legislation: See Wash-
ington: Hill's Ann. Code, Vol. 1, Sec.
2406.
Sufficiency of Complaint: In an ac-
tion under this section, a complaint al-
leging that the defendant warehouse-
man, disregarding its duty and obliga-
tions in the premises, and without
plaintiff's knowledge and consent, and
in fraud of plaintiff's rights, refused
and neglected to deliver wheat called
for by certain receipts, states a cause
of action based on a violation of the
preceding section. Lawson v. Gene-
see, etc., Co. (1895) 4 Ida. 588; 43
Pac. 191.
670
POLICE — PARTICULAR INDUSTRIES
Tit. 8
CHAPTER 32.
INSPECTION OF LUMBEE.
1495.
1496.
1497.
1498.
1499.
1500.
Section
1501. Scribner decimal rule is stand-
ard of measurement.
Recording- lumber marks.
Sales and mortgages of logs to
be recorded.
Disposition of prize logs.
Fees of inspectors.
1502.
1503.
1504.
1505.
Section
1494. Designation of lumber districts.
Lumber inspectors.
Same: Oath and bond.
Official seats of inspectors.
Sub-districts and deputies.
Bill of measurement.
Allowance for rotten logs: Ac-
counts of deputies.
Designation of Lumber Districts.
Sec. 1494. Lumber districts are established and shall be desig-
nated by the following numbers respectively :
The Pend d'Oreille River and its tributaries within the State of
Idaho, number one ;
Coeur d'Alene Lake and all of the streams tributary to and
emptying into same, and all of the streams tributary to said streams in
the State of Idaho, number two;
The Palouse River and its tributaries within the State of Idaho,
number three;
The Payette River and its tributaries in the State of Idaho, num-
ber four;
All the Clearwater River in Idaho, number five.
Historical: Laws 1903, 89, Sec. 1.
Lumber Inspectors.
Sec. 1495. The Governor shall appoint an inspector for each of
said lumber districts, who shall be styled "Lumber Inspector of Dis-
trict No " (designating the proper district). He shall at
the time of his appointment be a citizen of the State and reside
within the lumber district for which he is appointed. His term
of office shall be two years, and shall commence on the first Monday
in April of the year of his appointment, but the incumbent shall hold
until his successor is appointed and qualified. All vacancies in such
office shall be filled by like appointment, and if such vacancy occurs
before the expiration of the term it shall be filled for the residue of
the term only.
Historical: Laws 1903, 89, Sec. 2.
Same: Oath and Bond.
Sec. 1496. Each lumber inspector shall, before entering upon the
duties of his office, take and subscribe an oath that he will faithfully
discharge the duties of his office to the best of his knowledge, judg-
ment and ability, and shall execute to the county in which his office
shall be kept, a bond, with three or more sureties to be approved by
the treasurer and probate judge, in the sum of five thousand dollars,
conditioned that he will faithfully perform his duties as lumber In-
spector of District (giving number) and deliver to his
successor in office all bills, papers, journals, books and other effects,
appertaining to his office. Such oath of office and bond shall be filed
in the office of such county treasurer ; and any person feeling himself
Ch. 32. INSPECTION OF LUMBER 671
aggrieved may commence an action in his own name on said bond,
in like manner as actions may be brought on other official bonds.
Historical: Laws 1903, 89, Sec. 3.
"Probate judge" for "county judge,"
to conform to local nomenclature.
Official Seats of Inspectors.
Sec. 1497. The inspector of lumber district number one shall keep
his office at Sandpoint, Idaho; of district number two at Harrison,
Idaho; of district number three at Princeton, Idaho; of district
number four at Emmett, Idaho ; of district number five at Lewiston,
Idaho.
Historical: Laws 1903, 89, Sec. 4.
Sub-Districts and Deputies.
Sec. 1498. Each such inspector may divide his district into sub-
districts as he may deem best, and for each sub-district as well as
for any specific purpose, he may appoint one or more deputies, for
whose conduct and fidelity in the discharge of his duties as such
he shall be responsible upon his official bond. Each of said lumber
inspectors shall have power and authority to administer oaths to
their several deputies or for any purpose relating to the duties of
their office.
Historical: Laws 1903, 89, Sec. 5.
Bill of Measurement.
Sec. 1499. Each lumber inspector shall, in person or by deputy,
at the request of any owner of logs, timber or lumber, after a scale-
ment or measurement thereof, make a bill stating therein the number
of logs, the number of feet, board measure, contained in such logs
and lumber, and the number of feet, cubic running or board measure,
contained in said timber, and at whose request the same were scaled
or measured, and to whom scaled or measured, a copy of which he
shall enter upon the books of his office, to be provided by him and
kept for that purpose, with the marks as they occurred upon the logs.
A correct bill of the same shall be given to such owner, with a cer-
tificate thereto attached that it is a true and correct bill, which bill
so certified shall be presumptive evidence of the facts therein con-
tained, and of the correctness of such scalement or measurement, in
all courts, except in favor of the inspector who made the same.
Historical: Laws 1903, 89, Sec. 6.
Allowance for Rotten Logs: Accounts of Deputies.
Sec. 1500. Each lumber inspector and his deputies shall, in sur-
veying or measuring logs, make such allowance for hollow, rotten or
crooked logs as would make them equal to good, sound, straight,
merchantable logs; and all logs that are straight and sound are to
be measured at their full size, inside the bark at the small end. Each
lumber inspector shall require of each of his deputies, at the end
of each month, a correct account of all the logs, lumber or timber
measured by him during the month next preceding, and he shall
immediately enter such account upon the books of his office.
Historical: Laws 1903, 89, Sec. 7.
672 POLICE — PARTICULAR INDUSTRIES Tit. 8
Scribner Decimal Rule Is Standard of Measurement.
Sec. 1501. Unless otherwise agreed upon, the Scribner decimal
rule shall be the standard rule for scaling or measuring logs in the
said districts; but in all cases the bill of the inspector shall state
by what rule the logs were scaled or measured.
Historical: Laws 1903, 89, Sec. 8.
Recording Lumber Marks.
Sec. 1502. Any owner of logs or timber in any of said lumber
districts may use thereon any mark not before recorded and used
by any other person in the same district; but before any such mark
shall be used, it shall be the duty of such owner intending to use
the same to cause a diagram, and a full and complete written de-
scription of his mark, signed by him, to be recorded in the office of
the inspector, who shall record the same, provided the mark, diagram
and description are different from any other mark, diagram and
description recorded in his office. It shall be the duty of such in-
spector to keep a book for such purpose of recording all assignments
and transfers or marks so recorded, which book shall at ail reasonable
times be open to public inspection.
No person shall use any mark on any logs or timber until he
shall have caused a diagram and description thereof to be so recorded,
and no person shall use any mark previously recorded and used by
another in the same district, unless authorized so to do by an in-
strument in writing executed and acknowledged by the owner of
such mark, and recorded in the office or offices where said mark is
recorded. No person shall mark any prize log. Any person offending
against any of the provisions of this section shall forfeit ten dollars,
one-half of which shall be paid to the person prosecuting therefor.
Historical: Laws 1903, 89, Sec. 9.
Sales and Mortgages of Logs to Be Recorded.
Sec. 1503. All mortgages, liens, bills of sale or other written in-
struments in any way affecting the ownership of any marked logs
in any lumber districts, shall specify the marks placed upon said
logs and when they were cut, and shall be recorded in the office of
the lumber inspector in which said marks were recorded; and no
such conveyance, lien, mortgage or transfer shall be valid, except
as to the parties thereto, until the same is so recorded, or until the
same shall be filed with some deputy lumber inspector, who shall
immediately forward such instrument to the inspector of the proper
district. Such filing and recording of all such instruments and
papers shall have the same effect as the recording of deeds and
mortgages in the office of the county recorder.
Historical: Laws 1903, 89, Sec. 10. deeds," to conform to local nomencla-
"County recorder" for "register of ture.
Disposition of Prize Logs.
Sec. 1504. All prize logs shall be divided between the owners in
each sub-district in proportion to the number of logs owned by each
person or company, respectively, in each sub-district. Prize log*
are hereby defined to mean such logs as bear no mark or marks, and
Ch. 33.
LIQUOR TRAFFIC
673
all logs bearing marks not recorded or claimed within one year after
any general drive. Any person with whose logs or timber in any
waters of this State such prize logs or timber shall become so inter-
mixed that they can not be conveniently separated for the purpose of
being floated to the market or place of manufacture, may drive
all such logs or timber with which his own may be intermixed toward
such market place, when no special or different provision is made
by law for driving the same, and shall be entitled to reasonable
compensation from the owner for driving such logs or timber, to be
recovered after demand therefor on said owner or agent if known;
and he shall have a prior lien thereon until thirty days after they
arrive at their place of destination to enable him to attach the same ;
and if the owner thereof can not be ascertained, the property shall
be liable to be sold according to law, and enough shall be disposed
of to defray the expenses thereof.
Historical: Laws 1903, 89, Sec. 11.
"To be sold" inserted before "accord-
ing to law," to complete the sense.
Fees of Inspectors.
Sec. 1505. Each lumber inspector shall be entitled to receive the
following fees for services, viz: five cents per thousand feet for
measuring or scaling and making out survey bills for all logs he is
called upon to measure or scale; twelve cents per thousand feet,
running measure, for measuring square timber, stulls, railroad ties,
telegraph and telephone poles, and cedar posts; and in all cases
such fees shall be paid by the owner of the logs, timber or lumber
scaled or measured; for recording each mark or assignment thereof,
fifty cents ; for recording any mortgage, bill of sale or other written
instrument, the same fees allowed by law to county recorders for
recording like instruments.
Historical: Laws 1903, 89, Sec. 12.
"County recorders" for "registers of
deeds."
Cross Reference: Fees of recorder
for recording- mortgages, etc.: Sec.
2124.
LICENSED OCCUPATIONS.
CHAPTER 33.
THE LIQUOR TRAFFIC.
Section
1506. Liquor dealers must procure li-
cense.
1507. Application for licenses.
1508. Eond of license: Discretion of
commissioners.
1509. Amount and duration of li-
cense.
1510. License to sell liquor not to be
drank on premises.
1511. Notice not to sell liquor to
drunkards.
1512. Revocation of license for
breach of chapter. •
Section
1513. City licenses.
1514. Same.
1515. Sales to intoxicated persons.
1516. Approval of insufficient bond a
misdemeanor.
1517. Unlawful gifts equivalent to
sales.
1518. Sales in violation of chapter a
misdemeanor.
1519. Keeping a disorderly house a
misdemeanor.
1520. Liquor dealer's bond liable for
fines.
674 POLICE — LICENSED OCCUPATIONS Tit. 8
Section
1521. Certain sales by drug-gists au-
thorized.
1522. Liquor cannot be drank on
premises of druggists.
1523. Violation of chapter by drug-
gist a misdemeanor.
Section
152 4. Evasion of chapter by phy-
sician: Simulation of phy-
sician's signature.
1525. Sales to minors unlawful.
15 2 6. Duties of county officers.
1527. Intoxicating liquors defined.
Note: The subject of licenses in general is covered by the Revenue
Law, Tit. 10, Chap. 2. This chapter and the one following contain many
provisions peculiar to themselves, and not in harmony with the matters
covered by the Revenue Law. They are primarily police measures, and
consequently are inserted in this place.
Liquor Dealers Must Procure License.
Sec. 1506. It shall be unlawful for any person, by himself, by
agent, or otherwise, to sell spirituous, malt or fermented liquors or
wines, to be drank in, on or about the premises where sold, without
having first procured a license and given a bond as hereinafter pro-
vided.
Historical: Laws 1890-91, 33, Sec. 1.
Applications for Licenses.
Sec. 1507. All applications for a license to sell intoxicating, spirit-
uous, malt or fermented liquors or wines, to be drank or handled
in, on or about the premises where sold, must be made to the board
of county commissioners of the county wherein it is proposed to
sell such liquors, at least twenty days before the meeting at which
said application shall be acted upon, and said application shall specify
the precinct within which such place of sale is to be located, and
said application may be granted or rejected by said board as here-
inafter provided.
■
Historical: Laws 1890-91, 33, Sec.
2; amended Laws 1907, 219, Sec. 1.
Bond of Licensee : Discretion of Commissioners.
Sec. 1508. Before any license is issued, the applicant shall produce
before such board the receipt of the sheriff, showing that he has
paid into his hands the amount due for such license, and shall execute
and deliver to said board his bond to the State of Idaho, which bond
shall be in the penal sum of three thousand dollars, with at least
two good and sufficient sureties, residents and householders or free-
holders of the county, who shall on oath justify in double the penal
sum of the bond, to be approved by the board of county commis-
sioners.
Said bond to be in substantially the following form :
"Whereas, , of , has applied or is
about to apply to the board of county commissioners of
County, Idaho, for a license to sell intoxicating liquors to be drunk
or handled in, on or about the premises where sold, at.....
in said County, for the time of months from and
after the
"We hereby undertake that the above named
if granted such license, will keep a quiet and orderly house for the
sale of such intoxicating liquors, and will well and faithfully keep
and observe all the laws of Idaho in regard to the sale of intoxicating
liquors, and will well and faithfully keep and regard the provisions
Ch. 33.
LIQUOR TRAFFIC
675
of any ordinances and regulations of any municipal organization of
the place where such business is to be conducted, relating to the
keeping of saloons, taverns and the sale of intoxicating liquors, and
if said fails to perform any of the conditions of
this bond, or violates any of the provisions of the laws in regard
to sale of intoxicating liquors or the keeping of saloons and taverns,
we will pay all costs, damages, fines and forfeitures resulting there-
from, not to exceed the sum of three thousand dollars."
No such bond shall be void upon its first recovery, but it may be
sued upon and recovered upon from time to time as herein authorized,
until the whole penalty thereof is exhausted. The board of county
commissioners may require any licensee under the provisions of
this chapter to file an additional bond or furnish additional sureties
at any time when, in their judgment, the bonds furnished by any
licensee are insufficient: Provided, That when application is made
for the sale of intoxicating liquors, as in this section provided, for
a place outside of any incorporated city, either upon their own
motion or upon objections duly filed upon the part of any citizen and
resident of the precinct within which it is intended to carry on such
sale, the county commissioners shall determine whether or not the
granting of such license will be conducive to the best interests of
the community in which such saloon or business is proposed to be
established, and whether or not such applicant is a fit person to have
such license and carry on said business, and whether or not such
place of sale and business will likely be conducted in a quiet, orderly
and peaceable manner, and should said board of county commission-
ers determine adversely to the applicant upon any grounds above
specified, the license must be refused and the sheriff shall return the
amount deposited to said applicant; otherwise the said license may
be granted; and such order of the board of county commissioners
shall be subject to appeal to the District Court as in the case of
other orders of said board.
Historical: Laws 1890-91, 33, Sec.
3; amended Laws 1907, 219, Sec. 1.
Cross Reference: Appeals to Dis-
trict Court: Sees. 1950-1953.
Right to License Money: Where a
person pays to the sheriff the amount
of a liquor license tax and begins busi-
ness without making- application to the
board of commissioners for a license,
the money paid to the sheriff belongs
to the county from the moment the
party paying it commences the liquor
business, and the sureties on the sher-
iff's bond are liable therefor. Bingham
Co. v. Fidelity & Deposit Co. (1907)
13 Ida. — ; 88 Pac. 829.
Where a person pays a license tax to
the sheriff and begins business and
thereafter the portion of the county
in which such business is carried on is
annexed to another county, the license
tax so paid to the sheriff must be paid
to the treasurer of his county, and
his surety is liable to the county
therefor. lb.
Amount and Duration of License.
Sec. 1509. The amount to be paid by each applicant for such li-
cense shall be the sum of seven hundred and fifty dollars per year,
and no license shall be issued under the provisions of this chapter
for a less or longer period than one year.
Historical: Laws 1890-91, 33, Sec
; amended Laws 1905, 82, Sec. 1
re-enacted Laws 1899, 21, Sec. 1
amended Laws 1901, 13, Sec. 1
amended Laws 1907, 219, Sec. 2.
Constitutionality: This section is a
police measure and does not violate
the constitutional requirements of
equality and uniformity of taxation.
State v. Doherty (1892) 3 Ida. 384;
29 Pac. 855.
676 POLICE — LICENSED OCCUPATIONS Tit. 8
License to Sell Liquor Not to Be Drank on Premises.
Sec. 1510. All persons selling spirituous, malt or fermented liquors
or wines in any quantity, not to be drank in, on or about the premises
where sold, shall pay a license of two hundred dollars per year. No
license issued under this section shall be for less or longer than one
year. Every person violating the provisions of this section shall be
guilty of a misdemeanor and shall be punished therefor as provided
for in Section 1518.
Historical: Laws 1890-91, 33, Sec.
23; amended Laws 1901, 13, Sec. 2.
Notice Not to Sell Liquor to Drunkard.
Sec. 1511. Any wife, mother, father, son, daughter or sister of a
person who is an habitual drunkard, or in the habit of getting in-
toxicated, or the county commissioners, or the mayor of any city,
or any county officer, may make complaint to any justice of the
peace of the precinct where such person resides or may be staying,
or to the probate judge of the county where such person resides or
may be staying, alleging the name of such person, the fact of his
being an habitual drunkard, or in the habit of getting intoxicated,
and the name or names of the person or persons from whom the
person having such habits obtains his liquor, as such relative or
officer believes, which complaint shall be verified by the person mak-
ing the same. Thereupon such justice of the peace or said probate
judge shall issue a notice in writing to such person or persons so
named, notifying him or them that no intoxicating liquors of any
kind must be sold or given away by him or them, or at his or their
place or places of business, to such person having such habit, and
said notice must at once be served upon such person or persons as
summons are served from justice courts. After the service of such
notice, if any person or persons so notified shall sell, give away, or
permit any person at his place of business to sell or give away, any
intoxicating liquor to such person about whom he or they have re-
ceived notice as aforesaid, his or their license to sell liquor shall
from that time be deemed and held to be cancelled and annulled;
and said person, and each of said persons, if more than one, shall be
guilty of a misdemeanor, and be liable in a civil action brought
in the name or for the benefit of the person making such complaint,
in the sum of two hundred dollars for each offense, and the wife,
if there be one, may bring such suit without uniting her husband
as a party to the action: Provided, In all cases the party making
such complaint may cause the same to be published at least once a
week for a period of four weeks in a newspaper published in such
county, and upon such notice all persons having notice of the pub-
lication of such notice, whether engaged in such business or not,
Who shall sell, give away or furnish such intoxicating liquors to such
habitual drunkard, or person who is in the habit of getting intoxi-
cated, within the provisions of this chapter, shall be guilty of a
misdemeanor: And, Provided, further, That any person having
actual knowledge or notice that any person is such an habitual drunk-
ard, or in the habit of getting intoxicated, and that notice thereof
has been served upon any liquor dealer included within the terms
Ch. 33. LIQUOR TRAFFIC 677
of this chapter by either of the methods of service hereinbefore pro-
vided for, who shall sell, give away or furnish to any such habitual
drunkard, or person who is in the habit of getting intoxicated, any
intoxicating liquors, shall be guilty of a misdemeanor: Provided,
further, That when such notice shall be served upon any individual,
firm or corporation engaged in the sale of intoxicating liquor, it shall
be the duty of such individual, firm or corporation, to immediately
post the same in a conspicuous place in his or their place of business,
and upon failure so to do such person, firm, or the agent of such
corporation having charge of the place of business of such corpora-
tion, shall be guilty of a misdemeanor.
Historical: Laws 1890-91, 33, Sec.
5; amended Laws 1907, 325, Sec. 1.
Revocation of License for Breach of Chapter.
Sec. 1512. When any person so licensed shall be convicted of a
violation of any of the provisions of this chapter, or any of the penal
statutes of this State relating to the sale of intoxicating liquors, or
shall fail to conduct his place of business in a quiet, orderly and
peaceable manner, or shall violate any of the conditions of said
bond hereinbefore provided for, the board of county commissioners
may, and it is hereby made their duty to, revoke said license. But
such revocation shall not be construed to discharge such licensee or
his sureties for any damages sustained by, or right accrued to, any
person prior to said revocation.
Historical: Laws 1890-91, 33, Sec. 6;
amended Laws 1907, 219, Sec. 1.
City Licenses.
Sec. 1513. It shall be competent or lawful for any incorporated
city or town within the county where such bond is filed and license
granted, to prohibit the person so licensed, as well as all others, from
engaging in the business of selling intoxicating liquors within the
corporate limits until he shall obtain from said city or town authori-
ties, such license as may be authorized by law and required by the
ordinances and regulations of said city or town: Provided, That
no additional bond shall be required by said city or town, nor shall
any license be granted by the authorities of any such city or town,
to any one who has not filed the required bond with the board of
county commissioners, and obtained from such board a license as
herein provided : And, Provided, further, That no license granted
by such city or town shall run for any longer period than the license
granted by such board of county commissioners; and the revocation
of the county license granted by the board of county commissioners
shall work a revocation of any license granted by such city or town.
Historical: Laws 1890-91, 33, Sec. 7.
Same.
Sec. 1514. It shall be competent and lawful for both the county
commissioners of any county, and also the proper authorities of any
city or town situated therein, to require the payment of the licenses
herein and by law provided, and the granting of the power to license
or tax in any city or town shall not be held as in any way conflicting
678 POLICE — LICENSED OCCUPATIONS Tit. 8
with the provisions of this chapter, the intention being to allow
both the county and the city or town authorities to levy and collect
a license for the sale of spirituous, malt and fermented liquors and
wine as herein provided, and as provided by the charter and ordi-
nance of such city or town.
Historical: Laws 1890-91, 33, Sec. 8.
Sales to Intoxicated Persons.
Sec. 1515. Every person, with or without a license, who shall sell
or give away to any person already intoxicated, any spirituous, malt
or fermented liquor or wine, shall be guilty of a misdemeanor, and,
upon conviction thereof, shall be fined in any sum not less than one
hundred dollars, nor more than three hundred dollars, or imprisoned
in the county jail not to exceed six months.
Historical: Laws 1890-91, 33, Sec. 9.
Approval of Insufficient Bond a Misdemeanor.
Sec. 1516. Any county commissioner who shall knowingly approve
any insufficient bond required by the provisions of this chapter, shall
be deemed guilty of a misdemeanor, and, upon conviction, shall be
fined not less than three hundred dollars.
Historical: Laws 1890-91, 33, Sec.
10.
Unlawful Gifts Equivalent to Sales.
Sec. 1517. The giving away of intoxicating liquor of any kind,
or any other shift or device to evade the provisions of this chapter,
shall be deemed and held to be an unlawful selling within the pro-
visions of the same.
Historical: Laws 1890-91, 33, Sec.
11.
Sales in Violation of Chapter a Misdemeanor.
Sec. 1518. Every person selling or giving away spirituous, malt
or fermented liquors or wine in violation of the provisions of this
chapter, or without first having complied with the requirements of
the same, shall be deemed guilty of a misdemeanor, and, upon con-
viction thereof, shall be fined in any sum not less than one hundred
dollars, nor more than three hundred dollars.
Historical: Laws 1890-91, 33, Sec.
12.
Keeping a Disorderly House a Misdemeanor.
Sec. 1519. Any person engaged in the business of retailing liquors
under the provisions of this chapter, who shall keep a disorderly
house or allow boisterous or disorderly conduct therein, or shall allow
the peace and quietude of the neighborhood to be disturbed by loud
and unusual noises therein, or threatening, abusive or obscene lan-
guage therein, or by other means or methods, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be punished ac-
cordingly, and his license may likewise be revoked as provided in
Section 1512 hereof.
Ch. 33 LIQUOR TRAFFIC 679
Historical: Laws 1890-91, 33, Sec.
13. Section "1512" for "7." The pro-
vision for revocation of licenses is
found in Sec. 6 of the original act
(Code, Sec. 1512), and not in Sec. 7
(Code Sec. 1513).
Liquor Dealer's Bond Liable for Fines.
Sec. 1520. The bond required to be given by the provisions of
Section 1508 shall be liable for the payment of all fines, costs, com-
pensation and damages assessed against the person giving it, in
consequence of the sale of intoxicating liquors, contrary to the pro-
visions of this chapter.
Historical: Laws 1890-91, 33, Sec.
14.
Certain Sales by Druggists Authorized.
Sec. 1521. It shall be lawful for regular druggists or apothecaries
to sell, without license, spirituous and vinous liquors for medicinal
purposes, upon the written prescription of a regular practicing phy-
cision of this State, who certifies that in his opinion the health of
the party to whom the liquor is to be sold requires or would be pro-
moted by the use of the particular kind of liquor prescribed. It shall
also be lawful for druggists, without the license herein provided, to
sell wines for sacramental purposes, and to sell alcohol for mechanical
and scientific purposes.
Historical: Laws 1890-91, 33, Sec.
15.
Liquor Cannot Be Drank on Premises of Druggists.
Sec. 1522. It shall be unlawful for druggists to sell spirituous,
malt or fermented liquors or wines to be drank, or to permit the same
to be drank, in, upon or about the premises where sold, or in any
room or building connected therewith.
Historical: Laws 1890-91, 33, Sec.
16.
Violation of Chapter by Druggist a Misdemeanor.
Sec. 1523. Any druggist violating any of the provisions of this
chapter shall be guilty of a misdemeanor, and, upon conviction
thereof, he shall be fined in any sum not less than one hundred dollars,
nor more than three hundred dollars.
Historical: Laws 1890-91, 33, Sec.
17.
Evasion of Chapter by Physician: Simulation of Physician's Signature.
Sec. 1524. Any physician who shall give any person or persons
a prescription to obtain liquor from a druggist to enable such person
or persons to evade the provisions of this chapter, shall be guilty
of a misdemeanor. Any person not a physician who shall give any
person or persons a prescription to obtain liquor from a druggist, and
sign it in his own name as a physician, or sign the name of a regular
physician thereto, or sign the name of any other person or any
fictitious name, pretending by such signature that such name is that
of a physician, shall be guilty of a felony.
Historical: Laws 1890-91, 33, Sec.
18,
680
POLICE — LICENSED OCCUPATIONS
Tit. 8
Sales to Minors Unlawful.
Sec. 1525. It shall be unlawful for any person or persons to sell
or give away any spirituous, vinous or malt liquors to a minor. Any
person violating this section is guilty of a misdemeanor.
Historical: Laws 1890-91, 33, Sec.
19.
Duty of County Officers.
Sec. 1526. It is hereby made the duty of the prosecuting attorney,
sheriff, and all constables and peace officers of the county or munici-
pality, knowing of any violation of this chapter, to make complaint
thereof before the proper tribunal.
Historical: Laws 1890-91, 33, Sec.
20.
Intoxicating Liquors Denned.
Sec. 1527. The words "intoxicating liquors/' as used in this chap-
ter, shall be deemed and construed to include spirituous, vinous, malt
and fermented liquors, and all mixtures and preparations thereof,
including bitters that may be used as a beverage and produce in-
toxication.
Historical: Laws 1890-91, 33, Sec.
21.
CHAPTER 34.
PEDDLERS.
Section
1528. Peddlers defined.
1529. Penalty for peddling- without a
license.
1530. Application for and issuance of
license.
Section
1531. Applications to be filed.
1532. Cancellation of licenses.
1533. Liability of deposit to claims
against licensee.
Peddlers Defined.
Sec. 1528. The term "peddler" for the purpose of this chapter
shall be construed to include all persons, both principals and agents,
who go from place to place and house to house, carrying for sale or
offering for sale or exposing for sale, goods, wares or merchandise:
Provided, That nothing in this chapter shall apply to peddlers in
agricultural or farm products.
Historical: Laws 1905, 9 7, Sec. 1.
Repeal: The act commencing with
this section repeals Laws 1901, 155.
Decisions under the repealed act were
as follows:
Constitutionality: The act of 1901
was held to be an unconstitutional in-
terference with interstate commerce
in so far as it applied to one who was
not the owner of the goods for which
he solicited orders, but who merely
exhibited a sample thereof and took
orders for goods to be afterwards
shipped into the State pursuant to
such orders. In re Kinyon (1904)
9 Ida. 642; 75 Pac. 268.
A clause of the act which sought
to exclude runners traveling for
wholesale houses and "taking orders
from merchants only" from the pro-
visions of the act requiring a license,
was held class legislation in contra-
vention of the State and Federal Con-
stitutions. In re Abel (1904) 10 Ida.
288; 77 Pac. 621.
A provision of the act which ex-
cluded from its requirements peddlers
or hawkers in farm produce was held
to apply to farm produce of other
States as well as of this State, and
was not class legislation, nor did it
interfere with interstate commerce. lb.
Municipal Ordinances: On ordi-
nance by the terms of which a farmer
Ch. 34.
PEDDLERS
681
was prohibited from selling his farm
produce without first taking- out a city
license was held void under a pro-
vision of the act of 1901, which ex-
cluded peddlers of farm products from
its provisions. In re Snyder (190 5)
10 Ida. 682; 79 Pac. 819.
Penalty for Peddling Without License.
Sec. 1529. Every peddler who shall sell, or offer for sale, or expose
for sale, at public or private sale, any goods, wares or merchandise,
without a county license issued as hereinafter provided, shall be
punished by imprisonment for not less than thirty days, or more
than ninety days, or by fine or not less than fifty dollars, or more
than two hundred dollars, or by both.
Historical: Laws 1905, 97, Sec. 2.
California Legislation: See Pol.
Code 1872, Sec. 3384; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Application for and Issuance of License.
Sec. 1530. Every peddler, whether principal or agent, shall, be-
fore commencing business in any county of the State, make applica-
tion in writing and under oath, to the county treasurer for the county
in which he proposes to make sales, for a county license. Such ap-
plication must state the names and residences of the owners or parties
in whose interest said business is conducted, and shall state the
number of horses and vehicles to be used by him. At the same time
he shall file a true statement under oath of the quantity and value
of the stock of goods, wares and merchandise that is in the county
for sale, or to be kept or exposed for sale in said county. He shall
also at the same time make a special deposit of five hundred dollars
with the county treasurer aforesaid, and shall pay the said treasurer
the county license fee as follows :
1. Peddler on foot, one hundred dollars;
2. Peddler with one horse and a wagon, one hundred and fifty
dollars ;
3. Peddler with two horses and wagon, two hundred and fifty
dollars.
4. Peddler with any other conveyance, three hundred dollars.
The county treasurer shall thereupon issue to said applicant a
peddler's license, authorizing him to do business in the county afore-
said for the term of one year from the date thereof: Provided,
That the license issued under and by virtue of this chapter shall
expire by limitation on the second Monday of January succeeding
the year in which said license is issued. Every county license shall
contain a copy of the application therefor, and shall not be trans-
ferable, and shall not authorize more than one person to sell goods
as a peddler, either by agent or clerk, or in any other way than in
his own proper person.
Historical: Laws 1905, 97, Sec. 3.
Applications to Be Filed.
Sec. 1531. The county treasurer of each county shall keep on file
all applications for licenses issued thereon. All files and records of
said county treasurer shall be in convenient form and open to public
inspection.
Historical: Laws 1905, 97, Sec. 4.
682
POLICE — M ISCELLANEOUS
Tit. 8
Cancellation of Licenses.
Sec. 1532. Upon the expiration and return of each county license,
the county treasurer shall cancel the same, indorse thereon the can-
cellation thereof and place the same on file. He shall then hold the
special deposit of the licensee for a period of ninety days from the
date of said cancellation, and after satisfying any and all claims
made upon the same under the following section, he shall return said
deposit or such portion of the same, if any, as may remain in his
hands, to the licensee.
Historical: Laws 1905, 97, Sec. 5.
Phraseology slightly changed to ex-
press the sense.
Liability of Deposit to Claims Against Licensee.
Sec. 1533. Each deposit made with the county treasurer of any
county in this State, shall be subject to all taxes legally chargeable
to the same, and to attachment and execution on behalf of the credit-
ors of the licensee whose claims arise in connection with the business
done under his county license, and the treasurer may be held to
answer as trustee in any civil action in contract or tort brought
against any licensee, and shall pay over, under order of the court
or upon execution, such amount of money as the licensee may be
chargeable with upon the final determination of the case. Such de-
posit shall also be subject to the payment of any and all fines and
penalties incurred by the licensee through violations of the provisions
of the preceding sections, which shall be a lien upon the same, and
shall be collected in the manner provided by law.
Historical: Laws 1905, 97, Sec. 6.
MISCELLANEOUS PROVISIONS.
CHAPTER 35.
MONEY OF ACCOUNT AND INTEREST.
Section
1534. Money of account defined.
1535. Money of other denominations.
1536. Computation of judgments.
1537. Legal rate of interest.
Section
1538. Maximum rate of interest.
153 9. Compound interest prohibited.
1540. Penalty for usury.
Money of Account Defined.
Sec. 1534. The money of account in this State is the dollar, cent,
and mill, and all public accounts and the proceedings of all courts in
relation to money must be kept and expressed in money of the above
denominations.
Historical: Rev. St. 1887, Sec. 1260.
See 12 Ter. Ses. (1879) 7, Sec. 1.
California Legislation: Similar:
Pol. Code 1872, Sec. 3272; Deering's
Code, ib.; Kerr's Code, ib.
Money of Other Denominations.
Sec. 1535. The above provisions do not in any manner affect any
demand expressed in money of another denomination, but such demand
Ch. 35.
MONEY OF ACCOUNT AND INTEREST
683
in any suit or proceeding affecting the same must be reduced to the
above denominations.
Historical: Rev. St. 1887, Sec. 1261.
See 12 Ter. Ses. (1879) 7, Sec. 2.
California Legislation: Similar:
Pol. Code 1872, Sec. 3273; Deering's
Code, ib.; Kerr's Code, ib.
Computation of Judgments.
Sec. 1536. In all judgments rendered by any court for any debt,
damages, or costs, and in all executions issued thereon, the amount
must be computed, as near as may be in dollars and cents, rejecting
small fractions; and no judgment or other proceeding is erroneous for
such omission.
Historical: Rev. St. 1887, Sec. 1262.
12 Ter. Ses. (1879) 7, Sec. 3.
California Legislation : Similar:
Pol. Code 1872, Sec. 3274; Deering's
Code, ib.; Kerr's Code, ib.
Legal Rate of Interest.
Sec. 1537. When there is no express contract in writing fixing a
different rate of interest, interest is allowed at the rate of seven cents
on the hundred by the year on:
1. Money due by express contract;
2. Money after the same becomes due ;
3. Money lent;
4. Money due on the judgment of any competent court or tribunal ;
5. Money received to the use of another and retained beyond a
reasonable time without the owner's consent, express or implied;
6. Money due on the settlement of mutual accounts from the date
the balance is ascertained ;
7. Money due upon open accounts after three months from the
date of the last item.
Historical: Rev. St. 188 7, Sec. 1263
(see 12 Ter. Ses. ri879) 7, Sec. 4);
amended Laws 1897, 95, Sec. 1; re-
enacted Laws 1899, 315, Sec. 1.
Cited: State v. FitzpatricK (1897)
5 Ida. 499; 51 Pac. 112. Anderson v.
Creamery, etc., Co. (1902) 8 Ida. 200;
67 Pac. 493.
Rate of Interest: Where a note
provides for interest at the rate of
eighteen per cent, and the note, so
far as the interest is concerned, Is
held void for usury by a judgment
rendered under Rev. St. Sec. 1266,
interest will be allowed under this
section at the rate of seven per cent
per annum. Finney v. Moore (1903)
9 Ida. 284; 74 Pac. 866.
Maximum Rate of Interest.
Sec. 1538. Parties may agree in writing for the payment of any rate
of interest, on money due or to become due on any contract, not to
exceed the sum of twelve per cent, per annum ; any judgment rendered
on such contract shall bear interest at the rate of seven per cent, per
annum until satisfied.
Historical: Rev. St. 18 8 7, Sec. 12 64
(see 12 Ter. Ses. (1879) 7, Sec. 5;
amended Laws 1897, 9 5, Sec. 1; re-
enacted Laws 1899, 315, Sec. 1.
Cited: Vermont Loan Co. v. Hoff-
man (1897) 5 Ida. 376; 49 Pac. 314.
State v. Fitzpatrick (1897) 5 Ida. 499;
;>1 Pac. 112. Stevens v. Home Sav-
ings & Loan Assn. (1898) 5 Ida. 741;
51 Pac. 779, 986.
Contracts Held Usurious: A con-
tract which provides for a monthly
payment of $37.50 on a debt of $2,500,
to be applied: (1) To the payment
of any fines or other assessments
made in pursuance of by-laws; (2) to
the payment of the premium for
precedence due on the loan amount-
ing- to $8.75 per month; (3) to the
payment of interest due on the loan
amounting to $12.50 per month; (4)
the balance of said payments to be
credited as dues on stock and to con-
tinue until the dues credited on the
684
POLICE — M ISCELLANEOUS
Tit. 8
stock and dividends equal the amount
due, is usurious. Stevens v. Home Sav-
ings & Loan Asn. (1898) 5 Ida. 741;
51 Pac. 779, 986.
A contract of loan between a bor-
rowing member of a building and
loan association and the association,
by which the borrower agrees to pay
a monthly sum of $6, applicable to
the satisfaction of the debt, which
was $650, and $7.15 monthly interest
(called "dues" on "stock") until the
entire debt should be paia\ is usuri-
ous. Fidelity Savings Assn. v. Shea
(1899) 6 Ida. 405; 55 Pac. 1022.
The exaction of illegal interest un-
der the guise of premiums is in viola-
tion of this section. Cleveland v.
Western Loan, etc., Co. (1901) 7 Ida.
477; 63 Pac. 885.
Premiums exacted for making loans
and retained from the race of the
loan, or secured by mortgage, con-
stitute unlawful interest, when, added
to the rate provided by the loan con-
tract, they make a rate greater than
the statutes authorize, and payments
upon such premiums and upon inter-
est and principal must be applied to
reducing the principal of the debt.
Madsen v. Whitman (1902) 8 Ida.
762; 71 Pac. 152.
Contracts Not Usurious: The pay-
ment of commissions to an agent for
procuring a loan, does not render the
loan contract usurious . because the
commission plus interest exceeds the
rate of interest allowed by statute, in
the absence of any showing that the
agent was acting on behalf of the
lender, or that the latter received any
part of the agent's compensation.
Cornwell v. Urton (1898) 6 Ida. 266;
55 Pac. 294.
The fact that parties to a loan con-
tract agree that the same shall bear
interest both before and after judg-
ment, at ten per cent per annum,
does not render the contract usurious
in the absence of any evidence of a
corrupt intent to exact usurious in-
terest. Anderson v. Creamery, etc.,
Co. (1892) 8 Ida. 200; 67 Pac. 493.
A mortgage bearing the highest
rate of interest allowed by law is not
rendered usurious by a further stipu-
lation whereby the mortgagor agreed
to pay taxes on the loan, which stipu-
lation was, at the time it was entered
into, absolutely void by the terms of
Rev. St. Sec. 1425. First Nat. Bank
of Hailey v. Glenn (1904) 10 Ida.
224; 77 Pac. 623.
Effect of Usury: Usurious contracts
are not absolutely void, but the prin-
cipal sum loaned thereon may be re-
covered by suit. Portneuf Lodge v.
Western, etc., Savings Co. (1899) 6
Ida. 673; 59 Pac. 362
Compound Interest Prohibited.
Sec. 1539. Compound interest is not allowed, but a debtor may
agree in writing to pay interest upon interest over-due at the date of
such agreement.
Historical: Rev. St. 1887, Sec. 1265.
See 12 Ter. Ses. (1879) 7, Sec. 6.
Cited: Blaine County v. Lincoln
County (1898) 6 Ida. 57; 52 Pac. 165.
Portneuf Lodge v. Western etc., Sav-
ings Co. (1899) 6 Ida. 673; 59 Pac.
362. (Dist. op.) Anderson v. Or.
Mtg. Co. (1902) 8 Ida. 418; 69 Pac.
130.
Interest on Interest: A stipulation
in a promissory note that interest
upon interest is to be paid, is in con-
travention of the provisions of this
section. State v. Fitzpatrick (1897)
5 Ida. 499; 51 Pac. 112.
Coupon Notes: Coupon notes, given
for the interest of the principal debt,
which, by their terms, draw interest
after maturity, are in contravention
of this section forbidding compound
interest, and are usurious. Vermont
Loan Co. v. Hoffman (1897) 5 Ida.
376; 49 Pac. 314. Cleveland v. West-
ern Loan & Savings Co. (1901) 7 Ida.
477; 63 Pac. 885.
Penalty for Usury.
Sec. 1540. If it is ascertained in any suit brought on any contract,
that a rate of interest has been contracted for greater than is author-
ized by this chapter, either directly or indirectly, in money or in
property, such contract works a forfeiture of ten cents on the hundred
by the year, and at that rate, upon the amount of such contract, to the
school fund of the county in which the suit is brought, and the plain-
tiff must have judgment for the principal sum less all payments of
principal or interest theretofore made, and without interest or costs.
The court must render judgments in said action for ten per cent per
annum upon the entire principal of said contract, against the defend-
ant in favor of the State for the use of the school fund of the county,
Ch. 35.
MONEY OF ACCOUNT AND INTEREST
685
whether the unlawful interest is contested or not ; and in no case where
unlawful interest is contracted for, must the plaintiff have judgment
for more than the principal sum less the payments already made,
whether the unlawful interest be incorporated with the principal sum
or not. But no indorsee in due course of negotiable paper, is affected
by any usury exacted by any former holder of such paper unless he
have actual notice of the usury previous to his purchase ; but in such
case the judgment above provided in favor of the school fund must
be entered against the drawer or maker, if a party to the action, and he
may recover back the usury paid from the party who received the
same.
Historical: Rev. St. 1887, Sec. 1266.
Cited: Stevens v. Home Savings &
Loan Assn. (1898) 5 Ida. 741; 51 Pac.
779, 986. Finney v. Moore (1903) 9
Ida. 284; 74 Pac. 866. Washington
Co. Abstract Co. v. Stewart (1904) 9
Ida. 376; 74 Pac. 955.
Strict Construction: The provisions
of this section being quasi penal and
providing for a forfeiture, will not be
construed to include matters not ex-
pressly enumerated therein. Finney
v. Moore (1903) 9 Ida. 284; 74 Pac.
866.
Test of Usury: The test of usury is
whether or not a contract has been
made whereby a greater rate of in-
terest than that authorized by law
may be charged, either directly or in-
directly, and where the aggregate
amount of interest to be paid falls
within the terms of the usury statute,
the contract will not be relieved from
the operation of such statute because
it reserves to the borrower an option
to pay the entire debt at anv time
(the same being payable otherwise in
installments), and the earliest interest
installments fall within the rate of
interest which may be legally charged.
Ford v. Washington Nat. Bldg., etc.,
Assn. (1904) 10 Ida. 30; 76 Pac. 1010.
Form of Action: This section does
not especially authorize any action on
an usurious contract, but simply di-
rects the judgment to be entered in
an action brought to enforce the
same. It does not preclude an action
under Rev. St. Sec. 3364, (Code Sec.
3402), to compel the cancellation of
usurious mortgages after the princi-
pal sum due thereon has been paid.
Portneuf Lodge v. Western, etc., Sav-
ings Co. (1899) 6 Ida. 673; 59 Pac.
362.
The penalty herein provided for can
only be adjudged in an action to en-
force an usurious contract; this sec-
tion does not prevent the mortgagor
in an usurious transaction from suing
for a cancellation of the mortgage.
Cleveland v. Western Loan, etc., Co.
(1901) 7 Ida. 477; 63 Pac. 885.
Provisions Mandatory: It is the
duty of the trial court to see that the
Provisions of this section are carried
out and to inflict the penalty therein
provided without suggestion so to do
from any source. Vermont Loan Co.
v. Hoffman (1897) 5 Ida. 376; 49 Pac.
314.
Since this statute imposes a penalty,
a part of which goes to the school
fund of the county, the effect of the
same cannot be obviated by stipula-
tion of parties, and the court must
enter judgment in accordance with
the statute, notwithstanding stipula-
tions, to the contrary. Ocobock v.
Nixon (1899) 6 Ida. 552; 57 Pac. 309.
It is not necessary to plead the de-
fense of usury, but the rights of the
parties and the duty of the court are
fixed by this section. Cleveland v.
Western Loan, etc., Co. (1901) 7 Ida.
477; 63 Pac. 885.
Proceedings by State: The State is
not authorized to maintain an inde-
pendent action to recover the penalty
provided for in this section, but if the
court fails to enter judgment for such
penalty, the State should intervene by
motion within the six months allowed
by Sec. 4229 for the amendment of
proceedings, upon notice to all parties
to the record, and apply for a modifi-
cation of the judgment so as to make
it conform to this section. State v.
Eves (1898) 6 Ida. 144; 53 Pac. 543.
The provisions of this section are
not applicable to an action brought
by the State to foreclose a mortgage,
taken to secure the payment of a
loan made from the permanent school
fund; an unauthorized violation by
the land board of Rev. St. Sec. 1265,
by exacting usurious interest, cannot
work a forfeiture or impose a penalty,
directly or indirectly, upon the State.
State v. Fitzpatrick (1897) 5 Ida. 499;
51 Pac. 112.
Right to Invoke Statute: This sec-
tion applies only to actions where the
lender or his assignee is plaintiff and
the borrower is defendant. The
grantee of an usurious mortgage who
assumes the payment of the same,
cannot set up the defense of usury
or sue to cancel the mortgage after
the payment of the principal on the
ground of the usury contained there-
in. (Quarles, C. J., dissents.) Ander-
son v. Or. Mtg. Co. (1902) 8 Ida. 418;
69 Pac. 130. But the purchaser of
premises covered by an usurious
686
POLICE — MISCELLANEOUS
Tit. 8
mortgage may plead the defense of
usury where he does not assume the
mortgage debt, nor retain from the
purchase price any sum for applica-
tion upon the mortgage debt. Ford
v. Washington Natl. Bldg., etc., Assn.
(1904) 10 Ida. 30; 76 Pac. 1010.
Estoppel to Plead Usury: Since the
State has an interest in the enforce-
ment of this section, a private party
connot estop himself from asserting
the plea of usury, ib.
Attorneys' Fees: In a suit upon an
usurious contract, it is error to allow
the plaintiff an attorney fee under the
stipulation of the mortgage securing
the debt. Fidelity Savings Assn. v.
Shea (1899) 6 Ida. 405; 55 Pac. 1022.
Purging Usury: An usurious con-
tract may be purged by giving a new
contract with the element of usury
excluded, where no usury has been
paid pursuant to the original contract.
Sanford v. Kunz (190 3) 9 Ida. 29;
51 Pac. 612.
Foreclosure of Usurious Mortgage:
Where coupon interest notes, to se-
cure which and the principal note to
which they are attached, a mortgage
is given, are void for usury, no action
can be maintained to foreclose the
mortgage until after the principal
debt secured thereby becomes due,
although the interest notes are, by
their terms, declared to be due, and
the mortgage authorizes foreclosure
in case of default in the payment of
the interest notes. Vermont Loan &
Trust Co. v. Tetziaff (1898) 6 Ida.
105; 53 Pac. 104.
CHAPTER 36.
WEIGHTS AND MEASURES.
Section
1541. Sealer of weights and meas-
ures.
1542. Standard of weights and meas-
ures.
1543. Same: Units of measurement.
Section
1544. Penalty for using false
weights.
15 45. Standard of measurement for
stone masonry.
Note: Prior legislation on the subject of weights and measures may be
found as follows: Rev. St. 1887, Sees. 1250-1251; Laws 1890-91, 204;
Laws 1899, 142; Laws 1903, 87.
Sealer of Weights and Measures.
Sec. 1541. The Dairy, Food and Oil Commissioner shall be ex-
officio inspector and sealer of weights and measures, and shall have
the care and custody of the authorized public standards of weights
and measures. He shall, as often as may be necessary, prove by
such standard all weights and measures, scales and beams, which
may be in the possession of any person, persons, firm or corporation
doing business within the State, and shall seal such, when found to
be accurate, by stamping on them the letter "I," which seal he shall
have and keep for that purpose. He is hereby empowered to enter,
during business hours, into any place of business or other places
where such scales, beams or measures are kept or are being used,
for the purpose of inspecting and testing the same. The State in-
spector and sealer of weights and measures shall receive no com-
pensation for his services, but shall be allowed actual and necessary
expenses while in the performance of his duties.
for "inspector" in the first line. The
phrase "during business hours" is
transposed to better express the sense.
Standard of Weights and Measures.
Sec. 1542. The standard of weights and measures of this State
shall agree exactly with the standards recognized and furnished by
the United States, unless otherwise provided for in this chapter,
and shall, for the purpose of security and verification, be kept in
the custody of the State sealer and inspector of weights and measures.
Historical: Laws 1905, 364, Sec. 2
(amended Laws 1907, 340, Sec. 1),
and Sec. 5. "Commissioner" inserted
Ch. 37.
UNCLAIMED PROPERTY
687
Historical: Laws 1905, 364, See. 1.
*
Same: Units of Measurement.
Sec. 1543. The standard gallon contains 231 cubic inches.
The standard quart contains 57.75 cubic inches.
The standard pint contains 28.875 cubic inches.
The standard gill contains 7.21375 cubic inches.
The standard barrel contains 31.50 gallons.
The standard hogshead contains 63 gallons.
Beer and milk measures shall contain the following capacities:
The gallon shall contain 282 cubic inches; the half gallon shall con-
tain 141 cubic inches, and the quart one-half as much, and the pint
one-half as much as the quart.
The hundredweight shall consist of 100 pounds, and twenty such
weights are a ton. A box or packet of apples shall contain 2150.42
cubic inches.
Historical: Laws 1905, 364, Sec. 3.
Penalty for Using False Weights.
Sec. 1544. Any person, persons, firm or corporation, who shall
use any scales, beam, weight or measure falsely, or who shall mark
or stamp false weight or measure on any container, package or cask,
or who shall sell, offer for sale, or have in his possession for sale,
any article which does not conform to the United States standard
or the standards designated in this chapter, shall be guilty of a mis-
demeanor, and, upon conviction, shall be fined not to exceed three
hundred dollars, nor less than twenty-five dollars for each offense,
or imprisoned in the county jail not exceeding ninety days, nor less
than thirty days.
Historical: Laws 1905, 364, Sec. 4.
Standard of Measurement for Stone Masonry.
Sec. 1545. The perch is the standard of measurement of stone
masonry, and contains sixteen and one-half solid feet.
Historical: Rev. St. 1887, Sec. 1251.
12 Ter. Ses. (1883) 65, Sec. 1.
CHAPTER 37.
UNCLAIMED PROPERTY.
Section
1546. Property held for charges.
1547. Sale of unclaimed property.
Section
1548. Disposition of proceeds.
15 49. Recovery of charges advanced.
Property Held for Charges.
Sec. 1546. When any goods, merchandise or other property has
been received by any railroad or express company, or other common
carrier, commission merchant, inn keepers or warehousemen for
transportation or safe keeping, and is not delivered to the owner,
consignee or other authorized person, the carrier, commission mer-
chant, inn keeper or warehouseman may hold or store the same
with some responsible person, until the freight and all just and
reasonable charges are paid.
Vol. 1 — 23
688
POLICE — M ISCELL ANEOUS
Tit. 8
Historical: Rev. St. 1887, Sec. 116 0.
California Legislation: Same: Pol.
Code 1872, Sec. 3152; Deering's Code,
ib.; Kerr's Code. ib.
Sale of Unclaimed Property.
Sec. 1547. If no person calls for the property within four months
from the receipt thereof and pays freight and charges thereon, the
carrier, commission merchant, inn keeper or warehouseman, may
sell such property, or so much thereof as will pay freight and charges,
at auction to the highest bidder, first having given twenty days'
notice of the time and place of sale, to the owner, consignee or con-
signor, when known, and by advertisement in a daily paper ten days
(or if in a weekly paper, four weeks), published where such sale
is to take place; and if any surplus is left, after paying freight,
storage, cost of advertising and other reasonable charges, the same
must be paid over to the owner of such property at any time there-
after, upon demand being made therefor within sixty days after
the sale.
Historical: Rev. St. 1887, Sec. 1161.
The phrase "at auction to the highest
bidder" is transposed for grammati-
cal reasons.
California Legislation: Same, ex-
cept "sixty days" for "four months,"
line 1: Pol. Code 1872, Sec. 3153;
Deering's Code, ib.; similar as amend-
ed: Kerr's Code, ib.
Disposition of Proceeds.
Sec. 1548. If the owner or his agent fails to demand such sur-
plus within sixty days of the time of such sale, then it must be paid
into the county treasury, subject to the order of the owner.
Historical: Rev. St. 11
California Legislation:
7, Sec. 1162.
Same: Pol.
Code 1872, Sec. 3154; Deering's Code,
ib. ; Kerr's Code, ib.
Recovery of Charges Advanced.
Sec. 1549. When any commission merchant or warehouseman
receives, on consignment, produce, merchandise or other property,
and makes advances thereon for freight and charges, he may, if the
same is not paid to him within four months from the date of such
advances, cause the produce, merchandise or property on which the
advances were made, to be advertised and sold as provided herein.
Historical: Rev. St. 1887, Sec. 1163.
California Legislation: Same, ex-
cept "either to the owner or" inserted
after "thereon," line 3, and "sixty
days" for "four months," line 4: Pol.
Code 1872, Sec. 3156; Deering's Code,
ib. ; Kerr's Code, ib.
CHAPTER 38.
FIRE ESCAPES ON BUILDINGS.
Section
1550. Fire escapes to be provided
for certain structures.
1551. Same: How attached.
Section
1552. Application to school districts.
1553. Violation of chapter a misde-
meanor.
Fire Escapes to Be Provided for Certain Structures.
Sec. 1550. It is hereby made the duty of every person, firm or
corporation, or his or its agents, officers or trustees, owning or having
the management or control of any public hall, office building, hotel,
school building, factory or other structure over two stories in height
to provide and furnish such building with safe and suitable metallic,
Ch. 39.
HUNTING ON INCLOSED LANDS
689
iron or fireproof ladders of sufficient strength, and to permanently
and securely attach the same to the outside or outer walls of such
buildings, in such manner and in such position as to be adjacent
to the windows, and convenient and easy of access to the occupants
of such buildings in case of fire.
Historical: Laws 1903, 148, Sec. I.
Same : How Attached.
Sec. 1551. Such metallic, iron or fireproof ladders must connect
with each floor above the first, and. be well fastened and secure and
of sufficient strength, and must extend from the first story to the
upper stories of such building or to the cornice thereof.
Historical: Laws 1903, 148, Sec. 2.
Application to School Districts.
Sec. 1552. The provisions of this chapter are hereby made ap-
plicable to the trustees of all school districts in this State, whether
operating under the general school laws of the State, or whether they
are independent districts operating under special charter.
Historical: Laws 1903, 14 8, See. 3.
Violation of Chapter a Misdemeanor.
Sec. 1553. Any person, firm or corporation, or his or its agents,
officers or trustees, who shall fail to comply with the provisions of
this chapter, shall be guilty of a misdemeanor, and, on conviction
thereof, shall be punishable by imprisonment in the county jail for
not less than three, nor more than six, months, or by a fine of not
less than two hundred dollars, nor more than three hundred dollars,
or by both such fine and imprisonment.
Historical: Laws 1903, 14 8, Sec. 4.
CHAPTER 39.
HUNTING ON INCLOSED LANDS.
Section
1554. Hunting on inclosed
without permission.
lands
Hunting on Enclosed Lands Without Permission.
Sec. 1554. Any person who shall hunt with dog or gun upon the
cultivated or inclosed lands of another, without first obtaining per-
mission from the owner or occupant thereof or his agent, shall be
responsible to the owner of such cultivated or enclosed lands for all
damages, and any person or persons violating the provisions of this
chapter resulting in injuring or killing any livestock on said culti-
vated or enclosed lands, shall be deemed guilty of a misdemeanor.
Historical: Laws 1903, 105, Sec. 1.
CHAPTER 40.
EXPLOSIVES.
Section
1555. Explosives to be marked.
1556. Same.
Section
1557. Violation of chapter a misde-
meanor.
690 POLICE — MISCELLANEOUS Tit. 8
Explosives to Be Marked.
Sec. 1555. It shall be unlawful for any person or persons, part-
nership or corporation, to sell or offer for sale, or take or solicit
orders of sale, or purchase, or use, or have on hand or in store for
the purpose of sale or use, in any state, any giant, hercules, atlas,
venture, or any high explosive containing nitro-glycerine, unless on
each and every box or package and wrapper containing any such
giant, hercules, atlas, venture, or any other high explosive containing
nitro-glycerine, there shall be plainly stamped or printed the name
and place of business of the person or partnership or corporation
by whom or which the same was manufactured, and the exact and
true date of its manufacture, and the percentage of nitro-glycerine
or other high explosive contained therein.
Historical: Laws 1907, 314, Sec. 1.
Same.
Sec. 1556. It shall be unlawful for any person or persons, part-
nership or corporation, to have two or more different dates on any
such box or package containing giant, hercules, atlas, venture or any
other high explosive containing nitro-glycerine; it shall further be
unlawful for any person or persons, partnership or corporation, to
use any box, package or wrapper formerly used by any other person
or persons, partnership or corporation, in the packing of such giant,
hercules, atlas, venture or other high explosive containing nitro-
glycerine; and the name and date on such box or package shall be
the same as on the wrapper containing such giant, hercules, atlas,
venture or other explosive containing nitro-glycerine.
Historical: Laws 1907, 314, Sec. 2.
Violation of Chapter a Misdemeanor.
Sec. 1557. If any person or persons, partnership or corporation,
shall violate any of the provisions of this chapter, such person or
persons, the members of such partnership, or the officers or agents
of such corporation, shall be deemed guilty of a misdemeanor, and,
on conviction thereof, shall be punished by a fine of not more than
three hundred dollars, or by imprisonment in the county jail for
not more than six months, or by both such fine and imprisonment,
in the discretion of the court.
Historical: Laws 1907, 314, Sec. 3.
TITLE 9
THE PUBLIC LANDS
Chapter
1. Organization or State Land De-
partment.
2. Appraisement, lease and sale of
State lands.
3. Sales of timber on State lands.
Chapter.
4. Prevention of forest fires.
5. Carey act lands.
6. Reservoirs and rights-of-way.
7. Miscellaneous provisions.
Note: The chapters of this title prescribing the organization of the State
Land Department and the manner of selling and leasing State lands, seems
to follow in a general way the Colorado law. See Mill's An. St. Vol. 2, Sees.
3627-3662. Legislation prior to the act of 1905, on which this title is pri-
marily based, is as follows: Laws 1890-91, 109; Laws 1893; 139; Laws
1899, 72.
CHAPTER 1.
ORGANIZATION OF STATE LAND DEPARTMENT.
Section
1558. Constitution of State Land
Board.
1559. President of board: Quorum:
Administering oaths.
1560. Meetings of board.
1561. Attorney General to represent
State.
1562. Register of Land Board: Con-
tests.
1563. Statements, reports and bond
of Register.
Section
1564. State Land Commissioner and
other appointees.
1565. False oath: Improperly di-
vulging information.
1566. Fees of board.
1567. Deposit of papers with State
Treasurer.
1568. Audit and payment of ex-
penses.
Constitution of State Land Board.
Sec. 1558. The Governor, Secretary of State, Attorney General
and Superintendent of Public Instruction being constituted a State
Board of Land Commissioners by Section 7 of Article 9 of the Con-
stitution of the State, as such board, have the direction, control and
disposition of the public lands of the State. The board shall have
an office in the Capitol building, in a room set apart by the Capitol
Commission, which shall be in charge of the Register hereinafter
provided for.
Historical: Laws 1905, 131, Sec. 1.
The last sentence is taken from the
first two sentences of Laws 1899, 282,
Ch. 2, Sec. 5, re-enacting Laws 1895,
215, Ch. 2, Sec. 5. (The "Carey Act,"
Ch. 5 of this title.) "Register" is in-
serted for "secretary" on the authori-
ty of Laws 1905, 131, Sec. 30, impos-
ing- the duties of the secretary of the
old board on the Register.
Cross Reference: Board created by
Const. Art. 9, Sec. 7. General duties
of board: Const. Art. 9, Sec. 8. Du-
ties of board with respect to State
lands included in irrigation districts:
Sec. 2439.
President of Board: Quorum: Administering Oaths.
Sec. 1559. The Governor shall be president of the board, but in
his absence from any meeting, one of the members may act as presi-
dent pro tempore, and shall preside at such meeting. A majority of
692
PUBLIC LANDS
Tit. 9
the members of said board shall constitute a quorum for the transac-
tion of business. Each member of the board shall have power to
administer oaths in a proceeding of any character which may be
pending before said board.
Historical: Laws 1905, 131, Sec. 2.
Meetings of Board.
Sec. 1560. The board shall have a regular meeting on the second
Wednesday in each month, and may hold such adjourned or special
meetings as the board may direct, and may meet at any time on call
of the president or majority of the board. The said board shall cause
a complete record of their meetings and other proceedings to be kept
in suitable books, and shall preserve all important papers and docu-
ments pertaining to the State lands and the business of said board.
The meetings and proceedings of said board shall be regulated by
such rules as the board may adopt.
Historical: Laws 1905, 131, Sec. 3.
Cross Reference: To set apart and
keep records of lands for Industrial
Training- School: Sec. 821.
Attorney General to Represent State.
Sec. 1561. The Attorney General shall represent or shall cause
the State to be properly represented in all suits, actions, contests or
controversies relating to or involving State lands or timber, before
the several land offices in this State, before the general land office
at Washington, D. C, and before the courts of this State and of
the United States, and may employ a competent attorney or attorneys
for that purpose, who shall be paid out of the fund provided for the
land department of the State.
Historical: Laws 1905, 131, Sec. 4.
Employment of Counsel: Sec. 2 9 of
the act of 1893, which was similar to
this section in that it gave the secre-
tary of the board power to cause the
State to be represented in suits re-
lating to State lands, was held not to
authorize the secretary to employ
special counsel to represent the State
in an action to foreclose a school fund
mortgage. State v. Fitzpatrick (1897)
5 Ida. 499; 51 Pac. 112.
Register of Land Board: Contests.
Sec. 1562. The State Board of Land Commissioners are hereby
authorized to appoint a Register of the State Board of Land Com-
missioners, who is not a member of said board, whose salary shall
be two thousand five hundred dollars per annum. It shall be the
duty of the Register to keep the records of the State Board of Land
Commissioners, to make out and countersign all patents and leases
issued by the president of the said board to purchasers and lessees
of State lands, and to keep a suitable record of the same; to file and
preserve bonds of lessees and those given by purchasers to secure
deferred payments; to make and deliver to purchasers suitable cer-
tificates of purchase; to have the custody of the seal of the State
Board of Land Commissioners ; to keep the minutes of the said board,
and to perform such other duties concerning the land affairs of the
State as the said board may direct.
It shall also be the duty of the Register in any or all contested
cases, at the direction of the board, when hearings are necessary
and witnesses may be required to be examined, to set a date for
hearing such cases. The Register shall duly advise the contestants
Ch. 1. STATE LAND DEPARTMENT 693
and their accredited attorneys of the date set for such hearings, and
on the date appointed the Register is hereby empowered to administer
oaths and to hear and receive evidence, after the manner and pro-
cedure established by the United States in the district land offices, or
in accordance with the rules that are or may be adopted by the board
governing such cases. All evidence given and provided in such
cases before the Register, shall be at the contestant's own cost, and
shall be fully transcribed and arranged, and shall form a part of
the records of the office of the State Board of Land Commissioners.
The Register shall, as soon as convenient after such hearings, present
a full trancript of the proceedings to the State Board of Land Com-
missioners, who shall render a decision in accordance therewith. The
Register shall be provided with a suitable office, office furniture,
stationery and postage by the Secretary of State.
Historical: Laws 1905, 131, Sec. 5;
amended Laws 1907, 312, Sec. 1. By
Section 30 of the act the powers
previously exercised by the Attorney
on the Register. That section is given
effect in these Codes by inserting
"Register" in place of "secretary" in
all cases where the latter word for-
Gen^ral as secretary were devolved merly appeared.
Statements, Reports and Bond of Register.
Sec. 1563. On the first business day of each quarter the Register
shall forward to the State Auditor and Treasurer a statement in
duplicate of the amount of moneys received and deposited from all
sources. Such statement shall show the class and character of the
lands sold or leased, and the amounts of moneys received from all
other sources; and on or before the first day of December immedi-
ately preceding the meeting of the Legislature, he shall make a
report to the Governor of the business of his office, the transactions
of the State Board of Land Commissioners and the land affairs of
the State, showing, by tables, the land belonging to the several funds
of the State, to whom sold, the amount leased, and the receipts from
all sources; and said reports shall contain any such other items of
information concerning State lands as the State Board of Land Com-
missioners may deem worthy of publication. Before assuming the
duties of his office, the said Register shall give a bond in the sum
of twenty thousand dollars, conditioned upon the faithful discharge
of his duties. The said bond shall be approved by the State Board
of Land Commissioners and filed with the Secretary of State. .
Historical: Laws 1905, 131, Sec. 6.
State Land Commissioner and Other Appointees.
Sec. 1564. The State Board of Land Commissioners shall appoint
a State Land Commissioner, who shall, when directed by the board,
and with such assistants as the board may appoint, select, locate
and appraise all lands which are now, or may be hereafter, granted
to this State by the United States for any purpose whatever, and
who shall perform such other duties as shall be required of him
by the board, or as shall be prescribed by its rules. He shall be
paid a salary of two thousand dollars per annum, and his actual,
necessary expenses while away from the capital of the State on
business for the board. Said Land Commissioner and his assistants
shall each take the oath of office and shall give bond in such sums
694 PUBLIC LANDS Tit. 9
as the board may fix, conditioned upon the faithful performance of
their duties; said bonds to be approved by the board and filed with
the Secretary of State. Said assistants shall receive such com-
pensation as the board may prescribe, not to exceed five dollars per
day, and their actual and necessary expenses while away from the
capital of the State on business for the board. The board may em-
ploy necessary clerical or other assistants for carrying on the busi-
ness of the State Land Department and fix their compensation. The
Register, State Land Commissioner, and other appointees of the
board shall hold their respective positions during the pleasure of
the board.
Historical: Laws 1905, 131, Sec. 8.
False Oath: Improperly Divulging Information.
Sec. 1565. If the State Land Commissioner, or any State land
selector, appraiser, or timber cruiser or appraiser, or other ap-
pointee or employee of the State Board of Land Commissioners, shall,
knowingly, make a false oath concerning the selection or appraise-
ment of any State lands, or the timber thereon, or knowingly or
wilfully divulge anything, or give any information in regard to such
land other than to the State Board of Land Commissioners, or the
Register of said board, or the State Land Commissioner, he shall
forthwith be removed from office, and shall be deemed guilty of a
felony, and upon conviction thereof shall be imprisoned in the Peni-
tentiary for a period not exceeding two years, or be fined not ex-
ceeding one thousand dollars, or shall suffer both such fine and im-
prisonment.
Historical: Laws 1905, 131, Sec. 9. i is slightly changed to express the
The phraseology of the last two lines sense.
Fees of Board.
Sec. 1566. The said board shall collect the following fees :
For filing each application to lease or purchase, fifty cents.
For recording each lease of one section, or less, one dollar, and
for each additional section or fraction thereof, twenty-five cents.
For granting and recording a right-of-way, five dollars.
For issuing each certificate of purchase of one section, or less,
two dollars, and for each additional section, or fraction thereof,
fifty cents.
For making duplicate certificates of purchase, each, two dollars.
For issuing more than one certificate, on each purchase of State
lands, made by one party, two dollars ; for each additional certificate
so issued, fifty cents.
For making and recording each patent, two dollars.
For making each township plat, and date thereon, two dollars.
For recording assignment of leases and certificate of purchase,
fifty cents.
For making certified copies of papers, or records, the same fees
as are provided to be charged by the Secretary of State for like
services.
All moneys collected for fees shall be paid to the Treasurer of
the State quarterly, as hereinbefore provided, and shall be credited
to the general fund: Provided, however, That in all cases where
Ch. 2.
APPRAISEMENT, LEASE AND SALE
695
filing, or other fees, or rent moneys, have been paid to the said board,
by two or more applicants for the same lands, such fees, or rent
moneys, may be returned to the unsuccessful applicant from any
funds in the possession of said board: Provided, That such pay-
ments shall be made out of the fund to which they have been credited.
Historical: Laws 1905, 131, Sec. 7.
Cross Reference: Fees of Secretary
of State: Sec. 99.
Deposit of Papers With State Treasurer.
Sec. 1567. All valuable papers and securities, or any portion
thereof, pertaining to the business of the land department, may,
by direction of the State Board of Land Commissioners, be deposited
with the State Treasurer for safe keeping in the fireproof vault and
fire and burglar-proof safe provided for the Treasurer's department.
Upon such order being made by the board, the register shall prepare
a list of such valuable papers and securities so ordered deposited,
in triplicate, and shall take thereon the receipt of the Treasurer
for such papers and securities, leaving one list with the Treasurer,
filing one with the State Auditor and preserving one in the office
of the board. For the safe keeping of such papers and securities,
and their return to the State Board of Land Commissioners when
required at any time, the State Treasurer shall be liable on his
official bond.
Historical: Laws 1905, 131, Sec. 29.
First sentence re-written to conform
to existing conditions — the vault and
safe referred to in the section having
been provided. See Laws 1905, 31;
Codes, Sec. 118a.
Audit and Payment of Expenses.
Sec. 1568. All expenses incurred by the State Board of Land
Commissioners, or by any person employed by said board, in accord-
ance with the provisions of this title, shall be audited by the State
Board of Examiners and paid out of the fund provided for the State
land department.
Historical: Laws 1905, 131, Sec. 26.
CHAPTER 2.
APPRAISEMENT, LEASE AND SALE OF STATE LANDS.
Section
1569. Appraisement of land.
Abstracts of State lands.
Duplicate abstracts to be sent
to county treasurer.
Leases.
Rent to be paid in ad-
1570.
1571.
1572.
1573.
1574.
1 5 7 5 .
1578.
15 7 7.
1578.
Same:
vance.
Same:
Same:
Term: Renewal.
Improvements: Mis-
take and fraud.
Same: Bond of lessee: Cut-
ting timber.
Auction of lease.
Occupation of land without
lease.
Section
15 79. Sale of State land.
1580. Same: Place and terms of
sale.
1581. Same: Forfeiture of rights of
purchaser.
1582. Sales in lots and blocks.
1583. Sales under government irriga-
tion works.
1584. Supplying lost certificates.
1585. Land board to determine va-
lidity of claims.
1586. Lands exempt from taxation.
1587. Investment of funds derived
from sales.
696 PUBLIC LANDS Tit. 9
Appraisement of Land.
Sec. 1569. The board may cause all lands belonging to the State
and the timber thereon, either separately or together, to be appraised,
at such times, in such manner and by such means as the board shall
decide, and may require the person or persons seeking such land or
timber to be appraised, for the purpose of leasing or purchasing the
same or for the purpose of purchasing the timber thereon, or other-
wise, to pay the cost of such appraisement. All appraisements are
under the control of the board, which may approve or disapprove
of the same, in whole or in part, and may, at any time, direct a re-
appraisement or new appraisement to be made. Whenever the board
shall have acquired the cost of appraisement to be paid by the person
or persons applying therefor, as provided in this section, the amount
so paid shall be apportioned by the board to the several subdivisions
of the land appraised, and when the land shall be thereafter sold,
the purchaser, if he be other than the party seeking such appraise-
ment, shall be required to pay the said sums, or the due proportion
thereof, so apportioned by the board, in addition to the sum bid for
the land; and the notice of sale of such lands shall specify the pro-
portion of the cost of such appraisement apportioned to each tract,
and that the purchaser, in addition to the sum bid for the land, will
if he has not already paid the same, be required to pay the cost of
the appraisement of such land as he shall purchase at said sale.
Thereupon the sum or sums, or the due proportion thereof, so ad-
vanced by the party applying for such appraisement, shall be returned
to the party paying the same. If said moneys shall have been paid
into the State Treasury, the State Board of Examiners shall audit
said claim, and the Auditor shall draw his warrant for the amount
on the fund in which said moneys shall be.
Historical: Laws 1905, 131, Sec. 10.
Abstracts of State Lands.
Sec. 1570. The board shall cause suitable abstracts of all lands
owned by the State, to be made and entered into suitable and well
bound books. Such abstracts shall show, in proper columns and
pages, the county in which each tract is situated; the section, part
of section, township and range; whether timbered or not, mineral
or non-mineral, in whole or in part; improved or unimproved, and
the value of improvements, if any; the character, whether agri-
cultural or grazing ; the date of the appraisement ; the value per acre ;
the date of sale or lease ; the price per acre, if sold ; the name of the
purchaser or lessee; the amount paid in cash; the amount unpaid;
the amount of the annual interest or rental; the date of deed from
the State; number of sale, certificate or lease; the date of assign-
ment, if any; and such other information as may be necessary to
show a complete and full abstract of the condition of each tract of
land acquired by the State, until final payment by the purchaser,
and the issue of a deed for the land by the State.
Historical: Laws 1905, 131, Sec. 11.
Duplicate Abstracts to Be Sent to County Treasurer.
Sec. 1571. When the public lands or any portion thereof in any
Ch. 2. APPRAISEMENT, LEASE AND SALE 697
county have been appraised, the board shall cause duplicates of such
abstracts to be prepared and sent to the county treasurer of such
county, and the county treasurer shall preserve the same as a record
of his office, and enter the same in the books provided by the State
for that purpose. Whenever, after the transmission of such duplicate
abstracts to the county treasurer as aforesaid, other lands are ap-
praised in that county, a copy of the appraisement in full shall be
forwarded to such treasurer by the Register and shall be entered
by said treasurer in said abstract books; and all sales of land or
timber or both, and all leases executed affecting lands in said county,
shall be reported to said treasurer, and shall be by him entered in
said books.
Historical: Laws 190 5, 131, Sec. 12.
Leases.
Sec. 1572. The State Board of Land Commissioners may lease any
portion of the land of the State, at a rental of not less than five per
cent per annum, on the valuation fixed by the State Board, except
as hereinbefore provided. The lessee shall pay the annual rental to
the register of the State Board of Land Commissioners, who shall
receipt for the same, in the name of the board, on the lease, and
file a duplicate receipt with the State Auditor. Upon receiving such
annual rental, the Register shall immediately transmit the same to
the State Treasurer and take his receipt therefor in duplicate, filing
one receipt with the State Auditor and preserving the other in the
office of the State Board of Land Commissioners. If stone, coal,
coal oil, gas, or other mineral or precious metals be found upon the
State land, such land may be leased for the purpose of obtaining
therefrom the stone, coal, coal oil, gas, or other mineral, or precious
metals, for such length of time, and conditioned upon the payment
to the board of such royalty upon the product, as the State Board
of Land Commissioners may determine.
Historical: Laws 1905, 131, Sec. 13.
Same : Rent to Be Paid in Advance.
Sec. 1573. All leases of State land, except mineral leases, shall be
conditional upon the payment of rental annually in advance, and a
violation of this condition shall work a forfeiture of the lease, at
the option of the State Board of Land Commissioners, after thirty
days' notice to the lessee, such notice being sent to the postoffice of
the lessee, as given by himself to the Register of the State Land Board
when the lease is issued.
Historical: Laws 1905, 131, Sec. 14.
Same : Term : Renewal.
Sec. 1574. No lease of State lands shall be for a longer term than
five years. When any lease expires by limitation, the holder thereof
may renew the same in manner as follows : At any time within the
thirty days next preceding the expiration of the lease, the lessee,
or his assigns, shall notify the Register of his desire to renew said
ease. If the lessee and State Board agree as to the valuation of the
land, a new lease may be issued, bearing even date with the expira-
tion of the old one, and upon like conditions.
698 PUBLIC LANDS Tit. 9
Historical: Laws 1905, 131, Sec. 15.
Same: Improvements: Mistake and Fraud.
Sec. 1575. Should any one apply to lease any of the lands belong-
ing to the State upon which there are improvements belonging to
another party, before the lease shall issue, he shall file in the office
of the State Board of Land Commissioners a receipt showing that
the price of said improvements, as agreed upon by the parties, or
fixed by the State Board, has been paid to the owner thereof in full,
or shall make satisfactory proof that he has tendered to such owner
the price of said improvements, so agreed upon, or fixed by the
board. If by any mistake or error, any money has been, or shall
hereafter be, paid on account of any sale or lease of State lands,
or if any land or timber shall have been, or shall hereafter be, sold
by the State, or lease executed, which land or timber shall have
been, or shall hereafter be, by a court or tribunal of competent juris-
diction, adjudged to belong to another than the State of Idaho, at
the date of such sale or the execution of such lease, a claim shall
be presented to the State Board of Examiners, and, if authorized by
them, the Auditor shall draw a warrant in favor of the party paying
said money, and the State Treasurer shall pay the same out of the
fund into which such money was deposited or placed. If through
any fraud, deceit or misrepresentation, any party or parties shall
procure the issuing of any lease for State lands the board shall have
the authority to cancel such lease.
Historical, Laws 1905, 131, Sec. 16.
Same : Bond of Lessee : Cutting Timber.
Sec. 1576. In leasing State lands the State Board of Land Com-
missioners shall require of the lessee such a bond as shall secure
the State against loss or waste, or occupation of the land for more
than thirty days after the cancellation or expiration of the lease
of said lessee, unless the said lessee becomes the purchaser of the
land ; and in no case shall a lessee be allowed to cut or use more timber
than shall be necessary for the improvement of the land or for fuel
for the use of the family of the lessee, and the cutting and hauling
of timber to sawmills, to be sawed on shares, is expressly prohibited.
A violation of this section by the lessee or party in possession shall
constitute a misdemeanor.
Historical: Laws 1905, 131, Sec. 17.
Auction of Lease.
Sec. 1577. When two or more persons apply to lease the same
land, then, in such cases, the Register shall, at a stated time, at his
office in the Capitol building, auction off and lease said land to the
applicant who will pay the highest annual rental therefor : Provided,
That said State Board of Land Commissioners may arrange for said
auction sale or sales to be held by some authorized person, at a desig-
nated place in the counties where the said lands are situate: Pro-
vided, In such case, the board may require the expenses thereof to
be paid by the successful bidder : Provided, further, That said board
shall have power to reject any and all bids made at such auction
Ch. 2. APPRAISEMENT, LEASE AND SALE 699
sales when, in their judgment, there has been fraud or collusion,
or for any other reason, which in the judgment of said board justifies
the rejection of said bids. If the amount of the annual rental bid
be not paid forthwith by the highest bidder, together with the ex-
penses of such sale, if the board shall require the same to be paid
as hereinbefore provided, said lease may be immediately re-offered
again in the same manner at public auction.
Historical: Laws 1905, 131, Sec. 18.
Occupation of Land Without Lease.
Sec. 1578. All persons using or occupying any State land without
a lease, and all persons who shall use or occupy State lands for more
than thirty days after the cancellation or expiration of a lease, shall
be regarded as trespassers, and upon conviction shall be fined in a
sum of not less than twenty-five nor more than one hundred dollars,
and in case of a lessee, the sureties on his bond shall be liable for
all damages sustained by the State by reason thereof. All suits under
this section shall be instituted by the Attorney General in the name
of the State.
Historical: Laws 1905, 131, Sec. 27.
Sale of State Land.
Sec. 1579. The State Board of Land Commissioners may at any
time direct the sale of any State lands, in such parcels as they shall
deem for the best interest of the State. All sales of State lands
shall be advertised in four consecutive issues of some weekly news-
paper in the county in which such land is situate, if there be such
paper, if not, then in some newspaper published in an adjoining
county, and in such other paper or papers as the board may direct.
The advertisement shall state the time, place and terms of sale, a
description of the land and value of improvements, if any, thereon,
and the minimum price per acre of each parcel as fixed by the board,
below which no bid shall be received. In all sales the land shall
be offered in legal subdivisions of not more than one hundred and
sixty acres: Provided, That sales of State lands shall only be made
to citizens of the United States and to those who shall have declared
their intention to become such. No land shall be sold for less than
its appraised value nor for less than ten dollars per acre. If the
required sum be not paid forthwith by the highest bidder any lands
upon which such payment shall not be made may be immediately
re-offered at public sale as before. If any land be sold on which
surface improvements have been made by a lessee, said improve-
ments shall be appraised under the direction of the State Board of
Land Commissioners. When lands on which improvements have
been made, as above, are sold, the purchaser, if other than the owner
of said improvements shall pay the appraised value of said improve-
ments to the owner thereof, taking a receipt therefor, and shall de-
posit such receipt with the State Board of Land Commissioners
before he shall be entitled to a certificate of purchase or patent of
said land. All such receipts shall be filed and preserved in the office
of said board.
700
PUBLIC LANDS
Tit. 9
Historical: Laws 1905, 131, Sec. 19.
Cross Reference: Not to exceed
twenty-five sections of school land
shall be sold in any one year, the
sale to be in subdivisions of not to
exceed one hundred and sixty acres
to any one purchaser at a price of
not less than ten dollars per acre*
Const. Art. 9, Sec. 8.
Same : Place and Terms of Sale.
Sec. 1580. All sales of State lands shall be held at the State Capi-
tol, unless otherwise directed by the State Board of Land Commis-
sioners. Any such sale held away from the State Cauitol shall take
place at the county seat of the county or of one of the counties in
which such lands are situate, unless otherwise directed by the board.
Terms of payment shall be as follows: Timber lands, and lands
chiefly valuable for timber, cash on the day of sale; on other lands
selling for ten dollars to twenty-five dollars per acre, ten per cent
of the purchase money on the day of sale, the balance in eighteen
equal annual payments at six per cent interest per annum. Lands
selling at more than twenty-five dollars per acre, twenty per cent
cash on day of sale, and the balance in sixteen equal annual pay-
ments at six per cent interest per annum, or the purchaser may make
full payment with accrued interest at any time. Interest on deferred
payments shall be payable annually in advance, on January first,
and interest for the first year to January first next succeeding shall
be paid at the time of purchase. When the conditions hereinbefore
prescribed have been complied with, the State Board shall make and
deliver to the purchaser, a certificate of purchase containing the
name of the purchaser, a description of the land, the sum paid, the
amount remaining due, and the date at which each of the deferred
payments falls due, and the amount thereof, and the amount and date
of the several payments of interest to be made thereon. Such cer-
tificates shall be signed by the Governor and countersigned by the
Register, and a record of the same kept by him in a suitable book.
When, in the judgment of the board, a bond by a purchaser of State
lands is necessary, the State board shall require such purchaser to
give a bond, upon such conditions as the board may determine.
Whenever a purchaser of any State land shall have complied with
all the conditions of the sale, and paid all purchase money with the
lawful interest thereon, he shall receive a deed for the land pur-
chased ; such deed shall be signed by the Governor, and countersigned
by the Register, and attested witli the seal of the State Board of
Land Commissioners, and said deed shall operate to convey to the
purchaser a good and sufficient title in fee simple. All payments
shall be made to the State Board of Land Commissioners.
Historical: Laws 1905, 131, Sec. 20.
Cross Reference: Sale of State
lands included within irrigation dis-
tricts: Sec. 2439.
Same: Forfeiture of Rights of Purchaser.
Sec. 1581. If any purchaser of State land, after receiving a cer-
tificate of purchase, as provided in this chapter, shall fail to make
any of the payments stipulated therein, and the same remains unpaid
for thirty days after the time when it should have been paid, as
specified in such certificate, the Register shall, by registered letter
addressed to such delinquent purchaser at his last known post office
address, notify such purchaser of such delinquency and of the amount
Ch. 2. APPRAISEMENT, LEASE AND SALE 701
due, and that unless such amount be paid within sixty days after
the date of mailing such letter and notice, the board will declare all
rights of the purchaser in and to said land forfeited and the cer-
tificate and conrtact relating thereto annulled. After the expiration
of said period of sixty days, the State Board of Land Commissioners
shall declare such forfeiture, and shall annul said contract and cer-
tificate. Such action of the board shall be recorded in the minutes
of the proceedings of the board, and a certified copy of such minutes,
under seal of the board, be forwarded by the Register to the recorder
of the county where such lands are situated for filing in his office,
and when filed shall constitute notice of the facts therein stated.
When such forfeiture shall have been declared and entered in the
minutes, as hereinbefore provided, all rights of such purchaser in
and to said land shall be and are extinguished, and the State Board
of Land Commissioners may sell the land again : Provided, That in
case of such default and declaration of forfeiture, all previous pay-
ments made by a purchaser on account of such land shall be forfeited
to the State, and the title and right of possession to such land shall
be in the State as if no sale had ever been made. All purchase moneys
arising from the sale of State lands, shall without delay be paid by
the State Board of Land Commissioners to the Treasurer, who shall
receipt for the same, and the same shall be by him credited to the
permanent fund to which the land sold belonged. All interest on
such money, and all rents received from lands leased, shall be paid
forthwith by the Register on behalf of the said board to the State
Treasurer, and be by the Treasurer credited to the income fund to
which the land belonged.
Historical: Laws 1905, 131, Sec. 21.
Sales in Lots and Blocks.
Sec. 1582. The State Board of Land Commissioners may cause
any portion of State lands to be laid out in lots and blocks, and to
be sold from time to time, at public auction, in such quantities and
on such terms as shall enable the State to realize the best prices
therefor ; and such land shall not be sold except in lots and blocks, as
herein provided.
Historical: Laws 1905, 131, Sec. 22.
Sales Under Government Irrigation Works.
Sec. 1583. Whenever the United States shall, through its proper
officers, authorize the construction of any irrigation works in this
State under the provisions of the reclamation act of June 17, 1902,
no lands belonging to the State whose irrigation depends upon the
construction of such works shall, after such authorization for con-
struction shall have been publicly announced or communicated by
such proper officer to the Governor of the State, be sold except in
conformity with the classification of farm units by the United States,
and the title to such lands shall not pass from the State, until the
applicant therefor shall have fully complied with the provisions of
the laws of the United States, and the regulations thereunder, con-
cerning the acquisition of the right to use water from such works,
and shall produce the evidence thereof duly issued.
702 PUBLIC LANDS Tit. 9
Historical: Laws 1905, 373, Sec. 2.
Supplying Lost Certificates.
Sec. 1584. Whenever a certificate of purchase shall be lost or
wrongfully withheld by any person from the owner thereof, the State
Board of Land Commissioners may receive evidence of such loss
or wrongful detention, and upon satisfactory proof of the fact, may
cause the certificate of purchase, or deed, as the case may be, to issue
to such person or to his grantees or assigns, as shall appear to them
to be the proprietor of the land described in the original certificate
of purchase.
Historical: Laws 1905, 131, Sec. 2 2.
Land Board to Determine Validity of Claims.
Sec. 1585. The State Board of Land Commissioners may hear and
determine the claims of all persons who may claim to be entitled,
in whole or in part, to any lands owned by this State, and the decision
of said board shall be final until set aside by a court of competent
jurisdiction, and the board shall have power to establish such rules
and regulations as, in their opinion, may be proper or necessary to
prevent fraudulent applications.
Historical: Laws 1905, 131, Sec. 2 4.
Lands Exempt From Taxation.
Sec. 1586. All lands sold under the provisions of this chapter shall
be exempt from taxation for and during the period of time in which
the title to said land is vested in the State of Idaho, but the value
of the interest therein of the purchaser may be taxed, which interest
shall be determined by the amount paid on such land and the amount
invested in improvements thereon at the date of such assessment.
Historical: Laws 1905, 131, Sec. 25.
Investment of Funds Derived From Sales.
Sec. 1587. The State Board may, at any meeting, make the neces-
sary orders for the investment of the funds derived from the sale
of the public lands of the State then in the State Treasury. The
proceeds of the sales of public lands of the State may be invested
for and on account of the specific purposes for which the lands were
granted, in United States bonds. State bonds, school district bonds
or State warrants, or loaned on first mortgage. or improved farm
lands within the State; but no loans secured by mortgage on such
improved farm lands shall exceed in amount one-third of the market
value of the lands, exclusive of buildings, given as security for such
loan. Whenever the board shall order the investment of any part
of the public school fund or any permanent fund of the State held
for investment, the board shall notify the State Auditor and State
Treasurer of such order and of the amount so ordered loaned, to-
gether with the name of the borrower, and the State Auditor shall
draw a warrant for the amount stated in the notice in favor of the
chairman of the board, and the State Treasurer shall pay such war-
rant out of the fund designated, upon the indorsement of such chair-
man and borrower. The rate of interest on loans secured by mort-
gage herein provided for shall be five per cent per annum.
Ch. 3. Art. 1.
SALE OF TIMBER — IN GENERAL
703
Historical: Laws 1905, 131, Sec. 28.
Cross Reference: Restrictions on
loan of educational funds: Const. Art.
9, Sec. 11.
Powers of Board: The board does
not possess plenary power, but only
limited power, such as is given it by
the Legislature. A regulation of the
board requiring the payment of com-
pound interest on mortgages given to
secure a school fund loan, is in viola-
tion of the usury statutes and void.
State v. Pitzpatrick (1897) 5 Ida. 499;
51 Pac. 112.
CHAPTER 3.
SALE OF TIMBER ON STATE LANDS.
Article
1. Sales of timber in general.
Article.
2. Installment sales.
ARTICLE 1.
SALES OF TIMBER IN GENERAL.
1589.
1590.
1591.
1592.
1593.
Section
1594. Proceedings on sale of trees.
Persons cutting trees to furnish
bond.
Definition of tree.
Violation of provisions a mis-
demeanor.
County attorneys to prosecute.
1595.
1596.
1597.
1598.
Section
1588. Preservation of trees on State
lands.
Application for permit to cut
trees.
Same: Deposit covering esti-
mated costs.
Publication of application.
Water master may file protest.
Land board to act on applica-
tion.
Note: Penalty for destruction of timber on State lands: Sec. 6987; for
cutting timber for shipment: Sec. 6988.
Preservation of Trees on State Lands.
Sec. 1588. No trees standing on lands of the State, which lands
when cleared of trees will not be suitable for cultivation and raising
crops, and no trees needed to conserve the snows, ice or water of
any irrigation district, shall be cut from any part of the public lands
belonging to the State, except as hereinafter provided.
Historical: Laws 1905, 14 5, Sec. 1.
Application for Permit to Cut Trees.
Sec. 1589. Any person desiring to cut trees upon any lands owned
by the State shall make application in writing to the Register of the
State Board of Land Commissioners, which application shall contain :
(a) A complete legal designation of the lands upon which it is de-
sired to cut the trees; (b) the purpose for which such trees are to
be used; (c) that he will carefully protect from fires or other damage
all trees less in size than those desired to cut; (d) that he will en-
tirely remove, as directed by the State Board of Land Commissioners,
all cut trees and their branches in such manner that fires may not
consume the smaller trees; (e) that such trees as are desired for
use are not necessary for the conservation of the irrigation waters
of any irrigation water shed, or that the same are on lands of the
State, which lands when cleared of trees will not be suitable for culti-
vation and raising of crops.
Historical: Laws 1905, 145, Sec. 2.
Same : Deposit Covering Estimated Costs.
Sec. 1590. The Register of the State Board of Land Commission-
704 PUBLIC LANDS Tit. 9
ers shall, on receiving such application, refer the same to the State
Land Commissioner, who shall estimate the cost of examining and
reporting upon the said application, and the said Register of the
State Board of Land Commissioners shall thereupon require of the
applicant a certified check, payable to the State Board of Land Com-
missioners, covering the costs as estimated by the said State Land
Commissioner, as well as the costs of all other proceedings, directed
in this article, to determine whether such trees can be lawfully cut.
Historical: Laws 1905, 145, Sec. 3.
Publication of Application.
Sec. 1591. The Register of the State Board of Land Commission-
ers shall cause the application of said person to cut trees to be pub-
lished, for the full period of thirty days, in one or more daily or
weekly newspapers having such circulation as will fully advise the
water users of the irrigation area upon the water shed on which
such trees are growing, of the pendency of such application, and that
protests to the granting of the application must be made within
twenty days from the date of the last publication, which date shall
be given in such published notice.
Historical: Laws 1905, 145, Sec. 4.
Water Master May File Protest.
Sec. 1592. Any water master, upon petition in writing addressed
to him and signed by twenty-five or more bona fide water users in
the irrigation district thus affected, may, within a period of thirty
days after the first publication of said application, file a protest in
writing with the State Board of Land Commissioners, against allow-
ing such trees to be cut.
Historical: Laws 1905, 145, Sec. 5.
Land Board to Act on Applications.
Sec. 1593. Upon the expiration of the time for filing protests as
provided in this article, the Register of the State Board of Land
Commissioners shall refer all papers to said board, who may, there-
upon, and under such conditions as to the payment of the cost of such
proceeding as they may impose, cause the lands designated in the
application and the trees growing thereon to be inspected, and, if
deemed best, such trees to be appraised, and may refer all papers
to the State Land Commissioner, who shall thereupon, personally
or by his assistants, inspect the designated lands and the trees grow-
ing thereon, and, if directed by the board, shall appraise the same
and report in writing to the board. The board shall consider said
protest or protests and the report of the State Land Commissioner
or his assistants, and shall decide that such trees may be properly
disposed of, or against allowing the same to be done. But no trees
less than twelve inches in diameter, two feet above the ground, shall
be allowed to be cut by any person whomsoever; except that for
mining and fencing purposes, trees may be cut not less than five
inches in diameter, for use within the county where cut.
Historical: Laws 1905, 145, Sec. 6.
Ch. 3. Art. 1. SALE OF TIMBER — IN GENERAL 705
Proceedings on Sale of Trees.
Sec. 1594. Should the State Board of Land Commissioners decide
that the trees desired may be properly disposed of, the Register shall,
if any protest has been filed, at once notify by registered letter such
water master or water masters. Such protestant or protestants
shall thereafter be allowed fifteen days in which to commence, in
the District Court, proceedings to restrain the State Board of Land
Commissioners from disposing of said trees, and the said State Board
of Land Commissioners shall make no defense to the proceedings, if
any, so brought, except at the cost of the applicant desiring to cut
such trees from the State lands. Should there be no protests, or
should such court proceedings fail, said trees desired by said appli-
cant shall be advertised in one or more newspapers, to be designated
by the board, one of which shall be in the county where such timber
is located, and, if in more than one county, then in some one news-
paper in each of said counties, for a period of four weeks. There-
after said trees shall be publicly sold at the State Capitol, in the
City of Boise, or at some other place designated by said board in
said notice, to the highest bidder, and if such highest bidder be
some person other than the applicant, he shall pay the costs and
disbursements incurred by said applicant in the matter of said ap-
plication, as herein provided, the amount of which shall be determined
by the board or by the person designated by the board to make such
sale, not including compensation to his attorney, and shall be re-
turned to the applicant; and no bids shall be received which do not
include the costs incurred by said applicant in determining the right
to cut the desired trees. Should the State Board of Land Commis-
sioners decide adversely to the cutting of trees desired by the appli-
cant, or should an order of court bar a sale, said applicant shall not
recover any of the costs incurred by him by reason of said applica-
tion. The proceeds of the sales of the trees sold under the provisions
of this article shall forthwith be paid by the State Board of Land
Commissioners to the State Treasurer, to be by him placed in the
permanent fund entitled to the proceeds of sales of the land upon
which said trees are standing.
Historical: Laws 1905, 145, Sec. 7.
Persons Cutting Trees to Furnish Bond.
Sec. 1595. The State Board of Land Commissioners shall require
of all persons cutting trees upon State lands a bond in a sufficient
amount, with good and approved sureties, for the carrying out in
good faith of the provisions of this article.
Historical: Laws 1905, 14 5, Sec. 8.
Definition of Tree.
Sec. 1596. For the purpose of this article the word "tree" shall
be held to mean all vegetable growth of a woody texture of any size
whatsoever. No lands contemplated in this article shall be leased for
any purpose whatsoever that will destroy the tree growth.
Historical: Laws 1905, 145, Sec. 9.
Violations of Provisions a Misdemeanor.
Sec. 1597. Any person violating any of the provisions of this
706
PUBLIC LANDS
Tit. 9
article shall be deemed guilty of a misdemeanor, and on conviction
thereof shall be fined in the sum of not less than ten nor more than
one hundred dollars, or be punished by imprisonment of not less
than sixty days, or by both fine and imprisonment, as the court may
direct. Suit may also be brought in the name of the State whenever
such damage has been caused by any violation of the provisions of
this article, by any person or persons engaged in any business or
pleasure pursuit whatever.
Historical: Laws 19 05, 145, Sec. 14.
"Be punished" inserted before "by
imprisonment" to complete the sense.
County Attorneys to Prosecute.
Sec. 1598. The prosecuting attorneys of the various counties of
the State are hereby directed to prosecute in the name of the State
all cases arising under this article.
Historical: Laws 1905, 145, Sec. 15.
ARTICLE 2.
INSTALLMENT SALES.
Section
1599. Terms of installment sales.
1600. When timber may be cut:
Payment of installment.
Section
1601. Permit to cut timber.
1602. Time in which to cut timber.
1603. Other statutes unaffected.
Terms of Installment Sales.
Sec. 1599. Timber and timber lands belonging to the State of
Idaho may be sold by the State Board of Land Commissioners, at
their option, upon payment of installments of the purchase price
thereof as follows: Twenty per cent of the purchase price thereof
must be paid at the time of purchase, and the balance of such pur-
chase price in from ten to twenty equal annual installments, with
annual interest thereon at the rate of six per centum per annum
payable in advance; the number of installments to be fixed by the
State Board of Land Commissioners at the time of purchase.
Historical: Laws 1907, 193, Sec. 1.
When Timber May Be Cut : Payment of Installment.
Sec. 1600. No timber shall be cut under the above provisions
except in the following manner, to- wit: Thirty days written notice
shall be given to the State Board of Land Commissioners, by filing
such notice with the Register, of the particular land, describing it
by legal subdivisions, upon which it is desired to cut timber. On or
before the expiration of such time, there shall be paid into the State
treasury, by the purchaser, to the credit of the proper fund, the full
amount of the appraised value of such subdivision or subdivisions,
or in case the purchase is of timber only, then the amount paid in
shall be the full amount of the appraised value of the timber on
such subdivision. The register shall certify to the State Treasurer
the amount of the appraisement on the land or timber before such
payment is made. All payments so made shall be credited upon the
final installment of the purchase price, or if more than sufficient to
pay the final installment, then upon the next installment, all such pay-
Ch. 4.
PREVENTION OF FIRES
707
merits thereafter being credited upon the latest installment to fall
due.
Historical: Laws 1907, 193, Sec. 2.
Permit to Cut Timber.
Sec. 1601. No timber shall be cut under the provisions of this
article until after the first payment of twenty per cent is made, and
the additional payment is paid into the State Treasury as provided
in the preceding section. The receipt of the Treasurer for the money
so paid shall be filed with the register of the State Board of Land
Commissioners, who shall thereupon issue a permit to cut the timber
for which payment has been so made. Said permit shall be issued
under rules and regulations made by the State Land Board. The
right to cut timber under the terms hereof does not accrue until the
permit therefor is issued.
Historical :
3, 5.
Laws 1907, 193, Sees.
Time in Which to Cut Timber.
Sec. 1602. The timber cut on lands where the timber only is pur-
chased, must be cut within ten years from the date of purchase, or
such further time, not exceeding twenty years, as may be ordered
by the State Board of Land Commissioners, said order to be made at
the time of purchase. All timber remaining after such period shall
be the property of the State.
Historical: Laws 1907, 193, Sec. 4.
Other Statutes Unaffected.
Sec. 1603. Nothing in this article shall be construed as changing
or modifying any other statute relative to the sales of timber and
timber lands, but shall be construed as being in addition thereto, and
as authorizing the sale of timber and timber lands on payment of
installments as provided in this article.
Historical: Laws 1907, 193, Sec. 6.
CHAPTER 4.
PREVENTION OF FOREST FIRES.
Close season for fire.
Care of railroad right-of-way.
Officers charged with enforce-
ment of law.
Employment of persons to en-
force chapter.
Fire Districts and Wardens.
Sec. 1604. The State Board of Land Commissioners of the State
of Idaho shall divide the State into districts to be known and desig-
nated as fire districts, having due regard in establishing the bounda-
ries thereof to the area of forests or timber lands therein ; they shall
appoint, upon the application of any owner or owners of land or
other property within the State, one fire warden within each of the
Section
Secti<
1604.
Fire districts and wardens.
1609.
1605.
Duties of fire wardens.
1610.
1606.
Permit to set out fires.
1611.
1607.
Engines to use spark arresters.
1608.
Violations of chapter a
demeanor.
mis-
1612.
708 PUBLIC LANDS Tit. 9
districts of the State, and such fire wardens, so appointed, shall be
paid by said property owners applying for the appointment of the
same, and shall in no case be paid by the State. All such appoint-
ments shall be made for one year, unless sooner revoked, and the
State Board of Land Commissioners may at any time revoke any
such appointment, upon good cause shown. The fire wardens, so
appointed, shall appoint, as deputy fire wardens, within their re-
spective districts, such persons as shall be designated by such owners
of land or other property, who shall also be paid by the person or
persons securing their appointment. Their employment shall not
be for any definite time, and they shall be discharged immediately
by the fire warden of their district upon the request of such person
or persons at whose instance they were appointed. The fire warden
and deputy fire wardens shall have and exercise police powers while
engaged in performing the duties of their respective offices: Pro-
vided, That the State Board of Land Commissioners shall prepare an
abstract of the penal laws relating to forest and prairie fires, to-
gether with proper regulations and suggestions for the prevention and
control thereof, and before April first in each year shall forward
printed copies to all fire wardens, railroad companies, and chairmen
of county boards. The wardens shall post such abstract in numerous
conspicuous places in their respective districts.
Historical: Laws 1907, 18, Sec. 1.
Duties of Fire Wardens.
Sec. 1605. The fire wardens shall enforce the provisions of this
chapter. They and the deputy fire wardens shall patrol their districts
in dry seasons. They shall promptly investigate each prairie and
forest fire within their respective districts. Each fire warden shall
make an annual report to the State Board of Land Commissioners
of the fires within his respective district, together with the cause
thereof, the property destroyed and its value, the lives lost, if any,
and the means used to combat such fire, and any additional facts
required by the State Board. Each warden shall co-operate with the
warden in the adjoining district, and, in his absence, assume control
therein. Each may arrest, without a warrant, any person found
violating any provision of this chapter, and take him before a mag-
istrate and there make complaint; and, when a warden shall have
information that such violation has been committed, he shall make
similar complaint. Wardens shall go to the place of danger to con-
trol or prevent fires, and, in emergencies, may employ or compel
assistance, and the compensation for such service compelled shall
not exceed two dollars and fifty cents per day, exclusive of subsis-
tence and reasonable traveling expenses, and such compensation shall
be payable for each day in advance on demand.
Historical: Laws 1907, 18, Sec. 2.
Permit to Set Out Fires.
Sec. 1606. It shall be the duty of the fire warden of each fire
district to issue written or printed permits during permit season,
to any and all persons named in an application to set out fires. Said
application shall state the general description of the land upon which
Ch. 4. PREVENTION OF FIRES 709
it is desired to set out fires and the extent of the slashing or burning
desired to be burned. Said permit season shall be from June first
to October first of each year. Said permits shall fix the time for
setting out fires on any three consecutive days therein named, and
not less than ten days from the date of such permit, and such fires
shall be set at no time when the wind is blowing to such an extent
as to cause danger of the same getting beyond the control of the
person setting out said fire, or without sufficient help present to con-
trol the same, and the said fire shall be watched by the persons setting
out the fire until the same is out. Upon granting said permit the
fire warden shall be present at said proposed burning, or notify, at
the earliest possible moment, some qualified and acting deputy fire
warden in the vicinity of said proposed burning to be present thereat,
and upon good couse may revoke or postpone said permit upon notice
to said applicant.
Historical: Laws 1907, 18, Sec. 3.
Engines to Use Spark Arresters.
Sec. 1607. From May first to October first of each year, it shall
be unlawful for any person, firm or corporation to use any spark
emitting locomotive, logging engine, portable engine, traction engine
or stationary engine, located in a timber district without the use of
a good and efficient spark arrester. Any person, firm or corporation
who shall fail to provide and use such spark arrester upon any
engine, shall be guilty of a misdemeanor, and upon conviction thereof
shall pay a fine of not less than twenty-five dollars nor more than
one hundred dollars for each day such engine or locomotive is so used.
Historical: Laws 1907, 18, Sec. 4.
Violation of Chapter a Misdemeanor.
Sec. 1608. Every warden or deputy warden, and every person
lawfully commanded to assist in enforcing any of the provisions of
this chapter, who shall unjustifiably refuse or neglect to perform his
duty; every person who shall kindle a fire on or near to forest or
prairie land and leave it unextinguished, or be a party thereto ; every
person who shall use other than incombustible wads for firearms,
or carry a naked torch, fire brand or exposed light in or near to
forest land; and every person who shall deface, destroy or remove
any abstract or notice posted under this chapter, shall be guilty of
a misdemeanor, and upon conviction thereof shall be punished by a
fine of not less than ten dollars nor more than one hundred dollars.
Historical: Laws 1907, 18, Sec. 5.
Close Season for Fires.
Sec. 1609. The period from May first to October first in each year
shall be known as the close season, during which time it shall be
unlawful for any camper, farmer, logger or other individual, firm
or corporation to set out, or cause to be set out, fires in slashings,
down or fallen timber, or on timber lands, or in the vicinity or grain
fields, for the purpose of clearing land of brush, grass or other in-
flammable material without first obtaining a permit in writing, or
print, from the fire warden of the district as provided in Section
710 PUBLIC LANDS Tit. 9
1606, and at no time shall any fire be set out when the wind is blowing
to such an extent as to cause danger of the same getting beyond the
control of the person setting out such fire, or without sufficient help
present to control the same; and the same shall be watched by the
person setting the fire until the same is out. Any person violating
any of the provisions of this section shall be punished by a fine of
not less than one hundred dollars, nor more than three hundred dol-
lars, or by imprisonment in the county jail not less than one month,
nor more than six months: Provided, That this section shall not
apply to any person or persons setting out back fires for the purpose
of stopping or checking a fire then burning. The fire warden shall
keep a complete copy of permits issued.
Historical: Laws 1907, 18, Sec. 6.
Care of Railroad Right of Way.
Sec. 1610. Every person, firm or corporation operating a railroad,
shall keep the ground for fifty feet on each side of the center of the
track, or such portion thereof as may be owned or controlled by
such person, firm or corporation, clear of combustible materials,
except ties and other materials necessary for the maintenance and
operation of the road, from May first to October first of each year.
No person, firm or corporation shall permit any of his or its em-
ployees to leave a deposit of fire, live coals or ashes in the immediate
vicinity of woodland or lands liable to be overrun by fire, and every
engineer, conductor, trainman or section man discovering fire ad-
jacent to the track shall report the same promptly at the first tele-
graph or telephone station reached by him. At the beginning of the
close season every such person, firm or corporation shall give his
or its employees particular instructions for the prevention and ex-
tinguishment of fires, and shall cause warning placards to be con-
spicuously posted at every station within this State, and when a
fire occurs near the line of his or its road, shall concentrate such
help and adopt such measures as shall be available for its extinguish-
ment. Any person, firm or corporation violating any provision of
this section shall be guilty of a misdemeanor, and shall be subjected
to a penalty of not more than one hundred dollars for each offense,
and any railroad employee violating the same shall be guilty of a
misdemeanor, and shall be punished by a fine of not less than five
dollars nor more than fifty dollars.
Historical: Laws 1907, 18, Sec. 7.
Officers Charged With Enforcement of Law.
Sec. 1611. The State Land Commissioner and his assistants, or
land appraisers and selectors, game wardens and their deputies, and
all peace officers of the State, are hereby charged with the enforce-
ment of this chapter, and shall have full power to arrest violators of
the provisions of this chapter, and deliver them to, the nearest magis-
trate to be dealt with according to law; and it is hereby made the
duty of such officers having a knowledge of any violation of the pro-
visions of this chapter, to file complaint in a court of competent juris-
diction against such person.
Historical: Laws 1907, 18, Sec. 8.
Ch. 5.
CAREY ACT LANDS
711
Employment of Persons to Enforce Chapter.
Sec. 1612. For the purpose of carrying out and enforcing the pro-
visions of this chapter relating to fires in forest areas in this State,
and for the prevention and extinguishment of the same, the State
Board of Land Commissioners are hereby empowered to employ such
number of persons as in their judgment shall be necessary. Such
persons so appointed are empowered to arrest any violator of the
provisions of this chapter relating to fires, and deliver him to any
probate judge or justice of the peace of the county where such arrest
shall be made.
Historical: Laws 1907, 18, Sec. 9.
CHAPTER 5.
CAREY ACT LANDS.
Section
1613. Acceptance of the Carey act.
1614. Duties of Register.
1615. Proposals to construct irriga-
tion works.
1616. Certified check to accompany
proposal.
1617. Application for appropriation
permit to be filed.
1618. Submission of proposal to
State Engineer.
1619. Approval of application by
board.
1620. Adverse report by Engineer.
1621. Contract of proposed con-
tractor.
1622. Same: Limitations on terms.
1623. Forfeiture of contract for con-
tractor's default.
Section
1624. State not to be responsible for
work.
1625. Publication of notice of open-
ing.
1626. Application to enter land.
1627. Disposition of proceeds of sale.
162 8. Proof of reclamation by set-
tlers.
1629. Water contracts a lien on
land: Foreclosure.
1630. Rights-of-way for canals.
1631. Board to prescribe rules: Re-
ports of contractors.
1632. Fees of board.
1633. Board to issue report.
1634. Suits by board.
Acceptance of the Carey Act.
Sec. 1613. The State of Idaho hereby accepts the conditions of
Section 4 of an act of Congress, entitled, "An act making appropria-
tions for sundry civil expenses of the government for the fiscal year
ending June 30, 1894, and for other purposes," approved August 18,
A. D. 1894, together with all the grants of land to the State under
the provisions of the aforesaid act. The selection, management and
disposal of said land shall be vested in the State Board of Land Com-
missioners, as constituted by Section 7 of Article 9 of the Constitution
of the State of Idaho. Said State Board of Land Commissioners
shall be hereinafter designated as the "board."
Historical: Laws 1899, 282, Ch. 2,
Sees, l, 2; re-enacting Laws 18 95,
215, Sees. 1, 2. The act of Congress
referred to in the section popularly
known as the "Carey act," may be
found in U. S. Comp. Stat. 1901, Vol.
2, pp. 1554-1556.
Comparative Legislation: See Rev.
St. Wyoming, 1899, Sees. 934, 935.
Duties of Register.
Sec. 1614. The Register shall have the custody of the records of
the board; and shall receive and file all proposals for the construction
of irrigation works to reclaim lands selected under the provisions of
this chapter; keep for public inspection maps or plats, on a scale
712
PUBLIC LANDS
Tit. 9
of two inches to the mile, of all lands selected; receive entries of
settlers on these lands, and hear or receive the final proof of their
reclamation ; and do any and all work required by the board in carry-
ing out the provisions of this chapter. He shall have authority to
administer oaths whenever necessary in the performance of his duties
as secretary of the board.
Historical: Laws 18 99, 2 82, Ch. 2,
Sec. 5; re-enacting- Laws 1895, 215,
Ch. 2, Sec. 5. Omitting the first two
sentences relating to the offices of the
board, which have been transferred
to Sec. 1558. "Register" inserted for
"secretary," in conformity to Laws
1905, 131, Sec. 30.
Comparative Legislation: See Rev.
St. Wyoming, 1899, Sec. 939.
Proposals to Construct Irrigation Works.
Sec. 1615. Any person, company of persons, association or incor-
porated company, constructing, having constructed or desiring to
construct, ditches, canals or other irrigation works to reclaim land
under the provisions of this chapter, shall file with the board a request
for the selection, on behalf of the State, by the board, of the land
to be reclaimed, designating said land by legal subdivisions. This
request shall be accompanied by a proposal to construct the ditch,
canal or other irrigation works necessary for the complete reclama-
tion of the land asked to be selected. The proposal shall be prepared
in accordance with the rules of the board and with the regulations
of the Department of the Interior; and shall be accompanied by the
certificate of the State Engineer that application for permit to ap-
propriate water has been filed in his office, together with the State
Engineer's report thereon. It shall state the source of water supply,
the location and dimensions of the proposed works, the estimated
cost thereof, the price and terms per acre at which perpetual water
rights will be sold to settlers on the land to be reclaimed, said per-
petual rights to embrace a proportionate interest in the canal or other
irrigation works, together with all the rights and franchises attached
thereto. In the case of incorporated companies it shall state the
name of the company, the purpose of its incorporation, the names
and places of residence of its directors and officers, the amount of
its authorized and of its paid up capital. If the applicant is not an
incorporated company, the proposal shall set forth the name or
names of the party or parties, and such other facts as will enable
the board to determine his or their financial ability to carry out the
proposed undertaking.
Historical: Laws 1899, 282, Ch. 2,
Sec. 6, re-enacting Laws 1895, 215,
Ch. 2, Sec. 6.
Comparative Legislation: See Rev
Stat. Wyoming, 1899, Sec. 940.
Certified Check to Accompany Proposal.
Sec. 1616. A certified check for a sum not less than two hundred
and fifty dollars, not more than two thousand five hundred dollars,
as may be determined by the rules of the board, shall accompany
each request and proposal, the same to be held as a guarantee of
the execution of the contract with the State, in accordance with its
terms, by the party submitting such proposal, in case of the approval
of the same and the selection of the land by the board, and to be
forfeited to the State in case of failure of said parties to enter into
Ch. 5.
CAREY ACT LANDS
713
a contract with the State in accordance with the provisions of this
chapter.
Historical: Laws 1899, 282, Ch. 2,
Sec. 7; re-enacting- Laws 1895, 215,
Ch. 2, Sec. 7.
(Comparative Legislation: See Rev.
Stat. Wyoming, 1899, Sec. 941.
Application for Appropriation Permit to Be Filed.
Sec. 1617. The person, company of persons, association or incor-
porated company making application to the board for the selection
of lands by the State, shall have filed with the State Engineer an
application for a permit to appropriate water for the reclamation
of the lands described in the request to the board. This application
for a permit shall be of a form prescribed by the State Engineer
and shall be accompanied by two copies of a map of the land to be
selected, and it shall show accurately the location and dimensions
of the proposed irrigation works. The maps of the lands and pro-
posed irrigation works shall be prepared in accordance with the
regulations of the State Engineer's office and the rules of the Depart-
ment of the Interior.
Historical: Laws 1899, 2 82, Ch. 2,
Sec. 8; re-enacting Laws 1895, 215,
Ch. 2, Sec. 8.
Comparative Legislation: See Rev.
Stat. Wyoming, 1899, Sec. 942.
Submission of Proposal to State Engineer.
Sec. 1618. Immediately upon the receipt of any request and pro-
posal, as designated in Section 1615, it shall be the duty of the
Register to examine the same and ascertain if it complies with the
rules of the board and the regulations of the Department of the
Interior. If it does not, it is to be returned for correction ; but, if it
does so comply, it shall be submitted to the State Engineer, who shall
examine the same and make a written report to the board, stating
whether or not the proposed works are feasible; whether the pro-
posed diversion of the public waters of the State will prove beneficial
to the public interest; whether there is sufficient unappropriated
water in the source of supply ; and whether or not a permit to divert
and appropriate water through the proposed works has been approved
by him; whether the capacity of the proposed works is adequate to
reclaim the land described; whether or not the proposed cost of
construction is reasonable; and whether or not the maps filed in
his office comply with the requirements of said office and the regula-
tions of the Department of the Interior; also whether or not the
lands proposed to be irrigated are desert in character and such as
may properly be set apart under the provisions of the aforesaid act
of Congress and the rules and regulations of the Department of the
Interior thereunder. Whenever the State Engineer shall be unable
from an examination of the maps and field notes submitted for his
examination, to determine whether or not the proposed irrigation
works are feasible and adequate, whether or not the proposed
cost of construction is reasonable, or whether or not the proposed
diversion of the public water would be beneficial to the public in-
terest, and whether or not the lands proposed to be irrigated are
of such a character as to come under the provisions of the aforesaid
act of Congress, it shall be his duty to make, or cause to be made
714
PUBLIC LANDS
Tit. 9
by some qualified assistant, such survey or examination as will enable
him to report intelligently thereon to the board.
Historical: Laws 1899, 282, Ch. 2,
Sec. 9; re-enacting Laws 1895, 215,
Ch. 2, Sec. 9. "Register" inserted for
"secretary," to conform to Laws 1905,
131, Sec. 30.
Comparative Legislation: See Rev
Stat. Wyoming, 1899, Sec. 943.
Approval of Application by Board.
Sec. 1619. On receipt of the report of the State Engineer the
Register shall place the request and proposal with the Engineer's
report thereon before the board for its consideration. In case of
approval the board shall instruct the Register to file in the local
land office a request for the withdrawal of the land described in said
proposal. No request on which the State Engineer has reported
adversely, either as to the water supply, the feasibility of the con-
struction, the cost or capacity of the works, or as to the character
of the lands sought to be irrigated, shall be approved by the board.
Historical: Laws 1899, 282, Ch. 2,
Sec. 10; re-enacting Laws 1895, 215,
Ch. 2, Sec. 10. "Register" inserted
for "secretary," to conform to Laws
1905, 131, Sec. 30.
Comparative Legislation: See Rev.
Stat. Wyoming, 1899, Sec. 944.
Adverse Report by Engineer.
Sec. 1620. In case the State Engineer shall report adversely upon
the proposed irrigation works, or where requests and proposals are
not approved by the board, the said board shall notify the parties
making such proposal of such action and the reasons therefor. The
parties so notified shall have sixty days in which to submit a satis-
factory proposal; but the board may, at its discretion, extend the
time to six months.
Historical: Laws 18 99, 282, Ch. 2,
Sec. 11; re-enacting Laws 1895, 215,
Ch. 2, Sec. 11. "The said board" in-
serted before "shall notify," to com-
plete the sense.
Comparative Legislation: See Rev.
Stat. Wyoming, 1899, Sec. 945.
Contract With Proposed Contractor.
Sec. 1621. Upon the withdrawal of the land by the Department
of the Interior, it shall be the duty of the board to enter into a con-
tract with the parties submitting the proposal, which contract shall
contain complete specifications of the location, dimensions, character
and estimated cost of the proposed ditch, canal or other irrigation
works; the price and terms per acre at which such works and per-
petual water rights shall be sold to settlers; and the price and terms
upon which the State is to dispose of the lands to settlers. This
contract shall not be entered into on the part of the State until the
withdrawal of the lands by the Department of the Interior and the
filing of a satisfactory bond on the part of the proposed contractor
for irrigation works, which bond shall be in a penal sum equal to
five per cent of the estimated cost of the works, and shall be con-
ditioned for the faithful performance of the provisions of the contract
with the State.
Historical: Laws 1899, 282, Ch. 2,
Sec. 12; re-enacting Laws 1895, 215,
Ch. 2, Sec. 12.
Comparative Legislation: See Rev.
Stat. Wyoming, 1899, Sec. 946.
Ch. 5.
CAREY ACT LANDS
715
Same : Limitations on Terms.
Sec. 1622. No contract shall be made by the board which requires
a greater time than five years for the construction of the works,
and all contracts shall state that the work shall begin within six
months from date of contract; that at least one-tenth of the con-
struction work shall be completed within two years from the date
of said contract; that construction shall be prosecuted diligently
and continuously to completion, and that a cessation of work under
the contract with the State for a period of six months after the
second year, without the sanction of the board, will forfeit to the
State, all rights under said contract.
Historical: Laws 1899, 2 82, Ch. 2,
Sec. 13; re-enacting- Laws 1895, 215,
Ch. 2, Sec. 13.
Comparative Legislation: See Rev.
Stat. Wyoming-, 1899, Sec. 947.
Forfeiture of Contract for Contractor's Default.
Sec. 1623. Upon the failure of any parties, having contracts with
the State for the construction of irrigation works, to begin the same
within the time specified by the contract, or to complete the same
within the time or in accordance with the specifications of the con-
tract with the State, to the satisfaction of the State Engineer, it
shall be the duty of the Register to give such parties written notice
of such failure ; and, if after a period if sixty days from the sending
of such notice, they shall have failed to proceed with the work or to
conform to the specifications of their contract with the State, the
bond and contract of such parties and all works constructed there-
under shall be at once and thereby forfeited to the State ; and it shall
be the duty of the board at once so to declare and to give notice once
each week, for a period of four weeks, in some newspaper of general
circulation in the county in which the work is situated, and in one
newspaper at the State capital in like manner and for a like period,
of the forfeiture of said contract, and that upon a fixed day proposals
will be received at the office of the board in the Capitol at Boise City
for the purchase of the incompleted works and for the completion
of said contract, the time for receiving said bids to be at least sixty
days subsequent to the issuing of the last notice of forfeiture. The
money received by the board from the sale of partially completed
works under the provisions of this section shall first be applied to
the expenses incurred by the State in their forfeiture and disposal,
and to satisfying the bond; and the surplus, if any exists, shall be
paid to the original contractors with the State.
Historical: Laws 1899, 2 82, Ch. 2.
Sec. 14; re-enacting Laws 1895, 215,
Ch. 2, Sec. 14. "Register" inserted
for "secretary," to conform to Laws
1905, 131, Sec. 30.
Comparative Legislation: See Rev.
Stat. Wyoming, 1899, Sec. 948.
State Not to Be Responsible for Work.
Sec. 1624. Nothing in this chapter shall be construed as authoriz-
ing the board to obligate the State to pay for any work constructed
under any contract, or to hold the State in any way responsible to
settlers for the failure of contractors to complete the work according
to the terms of their contracts with the State.
716
PUBLIC LANDS
Tit. 9
Historical: Laws 1899, 2 82, Ch. 2,
Sec. 15; re-enacting Laws 1895, 215,
Ch. 2, Sec. 15.
Comparative Legislation: See Rev
Stat. Wyoming, 1899, Sec. 949.
Publication of Notice of Opening.
Sec. 1625. Immediately upon the withdrawal of any land for the
State by the Department of the Interior, and the inauguration of
work by the contractor, it shall be the duty of the board, by publica-
tion once each week in some newspaper of the county in which said
lands are situated, and one newspaper at the State Capital, for a
period of four weeks, to give notice that said land, or any part thereof
as the board in its discretion may deem is for the best interest of
the State, is open for settlement, the price for which said land will
be sold to settlers by the State and the contract price at which set-
tlers can purchase water rights or shares in such works.
Historical: Laws 1899, 282, Ch. 2,
Sec. 16; amended Laws 1901, 191,
Sec. 6.
Comparative Legislation: See Rev.
St. Wyoming, 1899, Sec. 950.
Application to Enter Land.
Sec. 1626. Any citizen of the United States, or any person having
declared his intention to become a citizen of the United States (ex-
cepting married women) over the age of twenty-one years, may make
application, under oath, to the board, to enter any of said land in an
amount not to exceed one hundred and sixty acres for any one per-
son ; and such application shall set forth that the person desiring to
make such entry does so for the purpose of actual reclamation, cultiva-
tion and settlement in accordance with the Act of Congress and the
laws of this State relating thereto, and that the applicant has never
received the benefit of the provisions of this chapter to an amount
greater than one hundred and sixty acres, including the number of
acres specified in the application under consideration. Such applica-
tion must be accompanied by a certified copy of a contract for a per-
petual water right, made and entered into by the party making ap-
plication with the person, company or association who has been
authorized by the board to furnish water for the reclamation of said
lands; and, if said applicant has at any previous time entered lands
under the provisions of this chapter he shall so state in his applica-
tion, together with description, date of entry and location of said
land. The board shall thereupon file in its office the application and
papers relating thereto, and, if allowed, issue a certificate of location
to the applicant. All applications for entry shall be accompanied by
a payment of twenty-five cents per acre, which shall be paid as a
partial payment on the land if the application is allowed ; and all cer-
tificates when issued shall be recorded in a book to be kept for that
purpose. If the application is not allowed, the twenty-five cents per
acre accompanying it shall be refunded to the applicant. The board
shall dispose of all lands accepted by the State under the provisions
of this chapter at a uniform price of fifty cents per acre, half to be
paid at the time of entry and the remainder at the time of making
final proof by the settler.
Historical: Laws 1899, 282. Ch. 2,
Sec. 17; re-enacting Laws 1895, 215,
Ch. 2, Sec. 17.
Comparative Legislation: See Rev.
St. Wyoming, 1899, Sec. 951.
Ch. 5.
CAREY ACT LANDS
717
Disposition of Proceeds of Sale.
Sec. 1627. As provided in the act of Congress all moneys received
by the board from the sale of lands selected under the provisions of
this chapter shall be deposited with the State Treasurer, and such
sums as may be necessary shall be available for the payment of the
expenses of the board and of the State Engineer's office incurred in
carrying out the provisions of this chapter.
Such expenses shall be paid by the State Auditor in the manner
provided by law, upon vouchers duly approved by the State Board of
Examiners, for the work performed under the direction of the State
Board of Land Commissioners, and by the State Engineer for all
work performed by the State Engineer's office; and any balance re-
maining over and above the expense necessary to carry out the pro-
visions of this chapter, shall constitute a trust fund in the hands of
the State Treasurer to be used only for the reclamation of other arid
lands.
Historical: Laws 1899, 282, Ch. 2,
Sec. 18; re-enacting- Laws 1895, 215,
Ch. 2, Sec. 17. Inserting- "under the
direction of the State Board of Land
Commissioners" for "its" before "di-
rection." The word "its" was evi-
dently a mistake as the work is not
performed under the direction of the
Board of Examiners, but of the Land
Board.
Comparative Legislation: See Rev.
St. Wyoming, 1899, Sec. 952.
Proof of Reclamation by Settlers.
Sec. 1628. Within one year after any person, company or per-
sons, association or incorporated company, authorized to construct
irrigation works under the provisions of this chapter, shall have
notified the settlers under such works that they are prepared to fur-
nish water under the terms of their contract with the State, the said
settler shall cultivate and reclaim not less than one-sixteenth part of
the land filed upon, and within two years after the said notice the
settler shall have actually irrigated and cultivated not less than one-
eighth of the land filed upon, and within three years from the date
of said notice the settler shall appear before the register of the State
Board of Land Commissioners, a judge or clerk of any court of record
within the State, or commissioners to be designated by the board,
within the State, and make final proof of reclamation, settlement and
occupation, which proof shall embrace evidence that he is the owner
of shares in the works which entitled him to a water right for his
entire tract of land sufficient in volume for the complete irrigation
and reclamation thereof; that he has been an actual settler thereon
and has cultivated and irrigated not less than one-eighth part of said
tract ; and such further proof, if any, as may be required by the regu-
lations of the Department of the Interior and the Board. The officer
taking this proof shall be entitled to receive a fee of two dollars,
which fee shall be paid by the settler and shall be in addition to the
price paid to the State for the land: Provided, That when the Reg-
ister of the board takes final proof, all fees received by him shall be
turned into the State Treasury. The commissioners appointed by the
board are hereby authorized to administer oaths. All proofs so re-
ceived shal« be submitted by the Register to the Board, and shall be
accompanied by the final payment for said land, and upon approval
of the same by the board the settler shall be entitled to his patent. If
718
PUBLIC LANDS
Tit. 9
the land shall not be embraced in any patent theretofore issued to the
State by the United States, the proofs shall be forwarded to the Sec-
retary of the Interior, with the request that a patent to said lands
be issued to the State.
When the works designed for the irrigation of lands under the
provisions of this chapter shall be so far completed as to actually fur-
nish an ample supply of water in a substantial ditch or canal to re-
claim any particular tract or tracts of such lands, the State of Idaho
shall, through the State Board of Land Commissioners, make proof
of such fact, and shall apply for a patent to such lands in the manner
provided in the regulations of the Department of the Interior.
Historical: Laws 1895, 215, Ch. 2,
Sec. 19; re-enacting Laws 1899, 282,
Ch. 2, Sec. 19; amended Laws 1901,
191, Sec. 7; amended Laws 1905, 95,
Sec. 1. The words "Secretary or"
appearing before "Register" in the
proviso are omitted, as the office of
secretary is supplanted by that of
Register under the 1905 law. See
Laws 1905, 131, Sec. 30.
Comparative Legislation: See Rev.
St. Wyoming, 18*99, Sec. 953.
Water Contracts a Lien on Land: Foreclosures.
Sec. 1629. Upon the issuance of a patent to any lands by the
United States to the State, notice shall be forwarded to the settler
upon such land. It shall be the duty of the board, under the signature
of the president attested by its Register, to issue a patent to said
lands from the State to the settler.
The water rights to all lands acquired under the provisions of this
chapter shall attach to and become appurtenant to the land as soon
as title passes from the United States to the State. Any person, com-
pany or association, furnishing water for any tract of land shall have a
first and prior lien on said water right and land upon which said water
is used, for all deferred payments for said water right ; said lien to be
in all respects prior to any and all other liens created or attempted to
be created by the owner and possessor of said land ; said lien to remain
in full force and effect until the last deferred payment for the water
right is fully paid and satisfied according to the terms of the contract
under which said water right was acquired. The contract for the
water right upon which the aforesaid lien is founded shall be recorded
in the office of the recorder of the county where said land is situate.
Upon default of any of the deferred payments secured by any lien
under the provisions of this chapter, the person, company of persons,
association or incorporated company, holding or owning said lien, may
foreclose the same according to the terms and conditions of the con-
tract granting and selling to the settler the water right. All sales
shall be advertised in a newspaper of general circulation, published in
the county where said land and water right is situate, for six consec-
utive weeks, and shall be sold to the highest bidder at the front door of
the court house of the county, or such place as may be agreed upon by
the terms of the aforesaid contract. And the sheriff of said county
shall in all such cases give all notices of sale, and shall sell all such
lands and water rights, and shall make and execute a certificate of
sale to the purchaser thereof. And at such sale no person, company
of persons, association or incorporated company, owning and holding
any lien, shall bid in or purchase any land or water right at a greater
price than the amount due on said deferred payment for said water
Ch. 5.
CAREY ACT LANDS
719
right and land, and the costs incurred in making the sale of said land
and water right.
At any time within nine months after the foreclosure sale by the
sheriff of the land and water rights aforesaid, the original owner
against whom the lien has been foreclosed, may apply to the person,
company of persons, association or incorporated company, purchasing
at such sale, to redeem such land and water rights and the purchaser
shall assign the certificate of sale of such land and water rights to such
original owner, upon the payment by him within such nine months, of
the amount of the lien for which the same was sold at such foreclosure
sale, together with the interest, costs and fixed charges thereon.
Where the lien holder becomes the purchaser at such foreclosure
sale, if such land and water rights are not redeemed by the original
owner within nine months, then at any time within three months after
the expiration of such nine months, any person desiring to settle upon
and use such land and water rights, may apply to the purchaser at
such foreclosure sale to redeem such land and water rights, and such
purchaser shall assign the certificate of sale of such land and water
rights to the person desiring to redeem the same, upon the payment
by him, within such three months, of the amount of the lien for which
the same was sold at such foreclosure sale, together with the interest,
costs and fixed charges thereon.
Upon issuing any certificate of sale, it shall be the duty of the
sheriff to file for record in the office of the recorder of the
county where such land is situated, a certified copy of such certifi-
cate of sale ; and, in case the original owner shall redeem the land and
water rights sold as aforesaid, he shall file for record in the office of
such recorder, the certificate of sale assigned to him by the purchaser
as aforesaid, upon his redemption of such land and water rights. In
case the land and water rights shall be redeemed by any person other
than the original owner, the sheriff shall, upon presentation of such
certificate, issue a deed for such land and water rights to the person
so redeeming the same. If the land and water rights shall not be re-
deemed by any person within the times and in the manner hereinbe-
fore provided, it shall be the duty of the sheriff, upon presentation of
the certificate of sale by the original purchaser, to issue a deed to such
purchaser. Where such land and water rights are not purchased by
the lien holder at such foreclosure sale, it shall be the duty of the
sheriff to first pay the lien holder out of the proceeds of such sale, the
amount of the lien, together with all interest, costs and fixed charges
thereon, and to pay any balance remaining to the person against whom
such lien has been foreclosed, and for his services in such cases the
sheriff shall receive the same fees as are provided by the law in civil
cases.
Historical: Laws 1899, 282, Ch. 2,
Sec. 20; re-enacting Laws 1895, 215,
Ch. 2, Sec. 20. "Recorder"' inserted
throughout for "county clerk" to con-
form to local nomenclature.
Comparative Legislation: See Rev.
St. Wyoming, 1899, Sees. 954 to 962
inclusive.
Rights of Way for Canals.
Sec. 1630. The maps in the office of the board of the lands selected
under the provisions of this chapter, shall show the location of the
canals or other irrigation works approved in the contract with the
Vol. l — 24
720
PUBLIC LANDS
Tit. 9
board, and all lands filed upon shall be subject to the rights of way of
such canals or irrigation works. Each right of way shall embrace th<±
entire width of the canal and such additional width as may be re-
quired for its proper operation and maintenance, the width of right
of way to be specified in the contracts provided for in this chapter.
Historical: Laws 1899, 282, Ch. 2,
Sec. 21; re-enacting Laws 1895, 215,
Ch. 2, Sec. 21.
Comparative Legislation: See Rev.
St. Wyoming, 1899, Sec. 963.
Board to Prescribe Rules : Reports of Contractors.
Sec. 1631. The board shall provide suitable rules for the filing
of proposals for constructing irrigation works, and for the entry of
and payment for the land by settlers, and for the forfeiting of entry
by settlers upon failure to comply with the provisions of this chapter.
There shall be kept in the office of the board, for public inspection,
copies of all maps, plats, contracts for the construction of irrigation
works, and of the entries of lands by settlers. The board shall require
from each person, company of persons, association or incorporated
company engaged in the construction of irrigation works, under the
provisions of this chapter, an annual report, to be submitted to the
board on or before November 1st of each year. This report shall
show the number of water rights sold, the number of users of water
under said irrigation works, the legal subdivisions of land for which
water is to be furnished, the names of the officers of the company,
the acreage of land which the said irrigation works are prepared to
supply with water, and such other data as the board sees fit to re-
quire. The rules required by this section may be waived in the case
of irrigation works being constructed by a person, colony or associa-
tion of persons to furnish water for land settled upon and being
reclaimed by themselves.
Historical: Laws 1899, 282, Ch. 2,
Sec. 22; re-enacting Laws 1895, 215,
Ch. 2, Sec. 22.
Comparative Legislation: See Rev.
St. Wyoming, 1899, Sec. 964.
Fees of Board.
Sec. 1632. The board shall prescribe the duties of all its em-
ployees and shall collect the following fees :
For filing each application, one dollar ; for making certified copies
of papers or records the same fee as provided for to be charged by
the Secretary of State for like services. The money collected for
fees shall be paid to the Treasurer of the State and by him credited
to the fund created by virtue of this chapter.
Cross Reference: Fees of Secretary
of State: Sec. 99.
Historical: Laws 1899, 282, Ch. 2,
Sec. 23; re-enacting Laws 1895, 215,
Ch. 2, Sec. 23.
Comparative Legislation: See Rev.
St. Wyoming, 1899, Sec. 965.
Board to Issue Report.
Sec. 1633. The board shall issue on or before November 30th of
each vear a report setting forth in detail the names, location and
character of the irrigation works in process of construction, the
acreage and legal subdivisions of land intended to be reclaimed, the
estimated cost of said irrigation works, and the price of water rights
Ch. 6.
RESERVOIRS AND RIGHTS OF WAY
721
from such irrigation works, and the terms of payment for both water
rights and land. Not less than five thousand copies of such report
shall be printed for gatuitous distribution.
Historical: Laws 1899, 2 82, Ch. 2,
Sec. 24; re-enacting Laws 1895, 215,
Ch. 2, Sec. 24.
Comparative Legislation: See Rev.
St. Wyoming, 1899, Sec. 966.
Cross Reference: Reports of offi-
cers and boards: Sec. 2 79.
Suits by Board.
Sec. 1634. All suits or actions brought by the board, under the pro-
visions of this chapter, shall be instituted by the board in the name
of the people of the State of Idaho.
Historical: Laws 1899, 282, Ch. 2,
Sec. 25; re-enacting Laws 1895, 215,
Ch. 2, Sec. 25.
Comparative Legislation: See Rev.
St. Wyoming, 1899, Sec. 967.
CHAPTER 6.
RESERVOIRS AND RIGHTS OF WAY.
Section
1635. Rights of way for ditches and
reservoirs.
1636. Reservoir lands may be with-
held from sale.
Section
1637. Rights of way for railroads,
telegraphs, etc.
1638. Rights of way to United States.
Rights of Way for Ditches and Reservoirs.
Sec. 1635. Any person or persons desiring to construct over or
upon any of the lands owned or controlled by the State of Idaho,
any ditch, canal, reservoir or other works for carrying or distributing
public waters for any beneficial use, may make application to the State
Board of Land Commissioners for said right of way, and shall at
the same time file, in duplicate, both in the office of the State Board
of Land Commissioners and in the office of the State Engineer, maps
showing the location of such lands by accurate survey of such ditch,
canal, reservoir or other irrigation works. Such map shall be drawn
on tracing linen on a scale of not less than one thousand feet to the
inch, and shall be accompanied by the field notes of survey of such
irrigation works.
In the case of- a reservoir the maps shall show by contour lines,
at intervals not greater than ten feet, the topographic features of
such reservoir site, and shall state the capacity of such reservoir in
acre feet; and when the dam or embankment of such reservoir shall
be more than ten feet in height, plans showing the construction of
such dam or embankment shall be filed in duplicate in the office of
the State Board of Land Commissioners and in the office of the State
Engineer. All such maps, plans and field notes shall be certified by
the engineer under whose direction such surveys or plans were made.
If such map or description is defective or incomplete, the State Board
of Land Commissioners may order the same to be corrected ; and the
State Board of Land Commissioners may grant land for such right
of way upon the payment of such compensation therefor as may be
deemed reasonable, not less than ten dollars per acre, and unon such
terms and conditions as they may deem best: Provided, That the
works for which the right of way is herein provided, must be com-
722
PUBLIC LANDS
Tit. 9
pleted within the time mentioned in the application for the same
(which shall accompany such map), which shall in no case be more
than five years from the time of filing such application and maps,
and the construction of the works herein mentioned must be com-
menced within one year after such application and maps are filed,
and must be prosecuted to completion diligently and uninterruptedly
on a scale reasonably commensurate with the magnitude of the pro-
posed works, in order to obtain the right of way under this section.
It shall be the duty of the Register of the State Board of Land
Commissioners, upon the granting of the said rights of way, to note
the same upon the plats of the said lands on file in his office.
Historical: Laws 1901, 191, Sec. 8;
amended Laws 1907, 527, Sec. 1.
Cross Reference: Rights of way
for ditches — additional provision: Sec.
3302.
Reservoir Lands May Be Withheld From Sale.
Sec. 1636. When it shall appear upon an investigation by the State
Board of Land Commissioners that certain lands belonging to the
State are more valuable for reservoir purposes than for any other
purpose, the said board may withhold such lands from sale, and such
lands shall be reserved by the State for storage purposes as a means
of reclaiming other State lands in the vicinity. If, upon investigation,
it is ascertained that certain State lands are more valuable for reser-
voir purposes than for any other purpose, and can be used as a means
of reclaiming other lands in that vicinity, the said board may with-
hold the same from sale until such time as it is advisable to sell the
same, and may sell such lands as a whole for the purpose of a reservoir
site, and uoon such terms and conditions as they may deem advisable,
but no such lands shall be sold for less than ten dollars per acre;
Provided, That if the lands so sold for reservoir purposes are not
used for the purpose of said reservoir, or if the works in connection
with which said reservoir is to be used are not constructed within
five years from the granting or sale of the said lands, or such further
time as the State Land Board shall grant, the rights granted shall
revert to the State.
Historical: Laws 1901, 191, Sec. 9:
amended Laws 1907, 527, Sec. 2.
Rights of Way for Railroads, Telegraphs, Etc.
Sec. 1637. The State Board of Land Commissioners is hereby em-
powered to grant, over and upon any land owned or controlled by the
State of Idaho, rights of way for railroad, telegraph, telephone and
electric lines, also rights of way for highway purposes, and rights of
way for any other public or private purpose or beneficial use. Appli-
cation for such right of way must be accompanied by a map, in dupli-
cate, showing the course of such right of way over each smallest
legal subdivision of land, and the amount of land required for said
right of way. The said right of way may be granted by the State
Board of Land Commissioners upon such terms and upon such com-
pensation being paid therefor as the said board may determine:
Provided, That no land shall be sold under the provisions of this sec-
tion for less than ten dollars per acre. Upon the said right of way being
granted, it shall be the duty of the Register of the State Land Board
Ch. 7.
MISCELLANEOUS PROVISIONS
723
to enter the same upon the plats of State lands on file in his office:
Provided, further, That if the lands so granted are not used for the
purpose specified in the application for right of way, within five years
from the granting of such right of way, then in such event the said
lands so granted shall revert to the State; or if the tracks or works
upon such lands for which such right of way has been granted are
not completed within five years after such right of way has been
granted, the State Land Board shall have the right to declare such
rights of way forfeited.
Historical: Laws 1907, 310, Sec. 1.
Rights of Way to United States.
Sec. 1638. There is hereby granted over all the lands now or here-
after belonging to the State a right of way for ditches, tunnels and
telephone and transmission lines, constructed by authority of the
United States. All conveyances of State lands hereafter made shall
contain a reservation of such right of way.
Historical: Laws 1905, 373, Sec. 1.
CHAPTER 7.
MISCELLANEOUS PROVISIONS.
Section
1639. Withdrawal of lands for park
purposes.
1640. Payment of taxes on state
lands.
Section
1641. Conveyances in satisfaction of
school fund mortgages.
1642. Foreclosure of school fund
mortgages.
Withdrawal of Lands for Park Purposes.
Sec. 1639. Wherever any lands are owned by the State of Idaho,
bordering on or in the vicinity of any lake, waterfall, spring, or other
natural curiosity, the State Board of Land Commissioners may with-
draw said premises from sale. If in the opinion of the said Land
Board it is desirable, the said lands may be platted into lots and
blocks, parks, streets and public places, and said lots and blocks
may be appraised and an annual rental fixed thereon. No lease of
such premises shall be made for a longer period than seven years,
and every lease shall specify that no saloon or disorderly house shall
be kept on the premises; that the premises shall be kept in good
condition, and that no waste shall be committed thereon. The said
Land Board may require a bond against waste, and may prescribe
additional rules and regulations for leasing of said premises for the
use thereof and for construction of buildings or other improvements
thereon, and the removal thereof.
Historical: Laws 190 7, 311, Sec. 1.
Payment of Taxes on State Lands.
Sec. 1640. The State Board of Land Commissioners is hereby au-
thorized to pay any and all taxes and assessments that are assessed
against, and are liens upon, lands upon which the State has loaned
money secured by mortgage, or upon which the State has acquired
title through foreclosure proceedings, and upon which there are de-
linquent taxes, assessed previous to acquiring such title. Such amount
724 PUBLIC LANDS Tit. 9
of taxes and assessments shall be ascertained by the State Board of
Land Commissioners, and a claim presented to the State Board of
Examiners, and after the allowance of such claim the Auditor shall
draw his warrant for the amount of such claim.
Historical: Laws 1905, 377, Sec. 1.
Conveyances in Satisfaction of School Fund Mortgages.
Sec. 1641. In all cases where school moneys have been advanced,
furnished or loaned to companies, corporations or individuals, by the
State Board of Land Commissioners, and a mortgage for the payment
of the same has been taken on improved farm lands, as provided by
the Constitution, and the said money has become due, and remains
unpaid, the State Board of Land Commissioners are hereby em-
powered to, and they may in their discretion, receive and accept from
the said mortgagor a warranty deed to the property mortgaged in
full satisfaction of the debt due the State upon said mortgage, and
surrender the note to the mortgagor and receipt him in full for the
debt due thereon.
Historical: Laws 1899, 439, Sec. 1.
Foreclosure of School Fund Mortgages.
Sec. 1642. In any case where any mortgage is held by the State
Board of Land Commissioners for any school money due, it shall be
the duty of the Attorney General, when directed by the Board of
Land Commissioners, to file foreclosure proceedings in the proper
court and prosecute the same to judgment, and to look after and care
for the State's interests in every stage of the proceedings until finally
determined.
Historical: Laws 1899, 439, Sec. 4.
TITLE 10
REVENUE
Chapter
1. Property taxes.
2. License taxes.
3. Poll taxes.
Chapter
4. Taxation of profits of mines.
5. Transfer tax on successions, leg-
acies and devises.
Xote: Levy and collection of municipal taxes: Sees. 2265, 22 68; of
road taxes: Sees. 894-906; of irrigation district taxes: Sees. 240 7-2415. Levy
of special taxes by school districts: Sec. 622; by independent districts: Sec.
661. Crimes against revenue: Sees. 6975-6985.
CHAPTER 1.
PROPERTY TAXES.
Article
1. Property subject to taxation.
Definitions.
Levy and lien of taxes.
Assessment of property.
County board of equalization.
State board of equalization.
Assessment book and assess-
ment rolls.
Payment of taxes before delin-
quency.
Sales of real property for delin-
quent taxes.
9.
Article
10. Redemption, and assignment of
certificates.
11. Seizure and sale of personalty.
12. Errors, mistakes and informal-
ities.
13. Apportionment of taxes.
14. Settlements with the State.
15. Assessment and collection of city
and school district taxes.
16. General duties and liabilities of
officers in relation to revenue.
Xote: This chapter is the 1901 Revenue Act, which was a compilation
of the existing law based on Rev. St. 1887 as amended by Laws 1895 and
1899. The article relating to the State Board of Equalization first ap-
peared in its present form in 1893, and the provisions concerning the as-
sessment of livestock in 1897. The legislation is traced in the historical
notes.
ARTICLE 1.
PROPERTY SUBJECT TO TAXATION.
Section
1643. Property subject to taxation.
1644. Property exempt from taxa-
tion.
Section
1645. Transient teams not taxable.
Property Subject to Taxation.
Sec. 1643. All property in this State, not exempt under the laws
the United States, including interests in State lands to the extent
of the amount paid thereon and of the value of all improvements, is
subject to taxation as in this chapter provided; but nothing in this
chapter shall be construed to require or permit double taxation.
Historical: Laws 1901, 233, Sec. 1. Code 1872, Sec. 3607; as amended:
see Rev. St. 1887, Sec. 1400. Deering's Code, ib.; further amended:
California Legislation: See Pol. Kerr's Code, ib.
726
REVENUE
Tit. 10
goods have ceased to be the subject
of interstate transportation, and are
taxable under the revenue laws of this
State. Parks Bros. v. Nez Perce Co
(1907) 13 Ida. ...; 89 Pac. 949.
Double Taxation: The assessment
of a taxpayer's property in one coun-
ty, when it has already been assessed
in another county, resulting from his
refusal to furnish the assessor with a
statement of his property, does not
constitute double taxation within the
meaning of this section. Erwin v.
Hubbard (1894) 4 Ida. 170; 37 Pac.
274.
Cross Reference: Duplicate taxa-
tion prohibited. Const. Art. 7, Sec. 5.
Taxable Property: Where goods
were ordered by citizens of Idaho from
wholesale merchants in San Fran-
cisco, and the goods were packed,
boxed and shipped from San Fran-
cisco and consigned to the shippers
at Ilo, Idaho, and received by them
at their destination and removed
from the depot or warehouse, and the
boxes or cases were opened by them,
and the separate packages or parcels
were removed from the boxes or
cases in which they were shipped, the
Property Exempt From Taxation.
Sec. 1644. The following property is exempt from taxation :
1. All property used exclusively for school purposes and such
as may belong to the United States, this State, or to any county or
municipal corporation or school district within this State.
2. Churches, chapels and other buildings with the lots or ground
appurtenant thereto and used therewith, belonging to any church
organization or society and used for religious worship, from which
no rent is derived, with their furniture and equipments, and hospitals
used for benevolent purposes, with the lots of ground appurtenant
thereto and used therewith from which no rent is derived, with their
furniture and equipments; also public cemeteries.
3. Buildings or parts of buildings owned and used by the Orders
of Masons, and Odd Fellows, or by any other benevolent or charitable
society, exclusively for the purpose of its order, and their furniture
and equipments.
4. The property of resident widows, orphan children and honor-
ably discharged soldiers and sailors who served in the Army and
Navy of the United States during the war of the Rebellion, not to
exceed the amount of one thousand dollars to any one family, when
their total assessment is less than five thousand dollars.
5. Growing crops.
6. Capital stock of corporations when the property has been
assessed.
7. Public and private libraries.
8. Tools of a mechanic, farmer, miner, prospector, and the house-
hold goods of the head of a family or householder, or the farming
implements and machinery of farmers, not exceeding in value four
hundred dollars.
9. Possessory rights to public lands.
10. All dues and credits secured by mortgage, trust deed or
other liens.
11. Mining claims not patented; but machinery, property and
improvements upon or appurtenant to mining claims shall not be
exempt.
12. All irrigation canals and ditches and water rights appurte-
nant thereto, when the owner or owners of said irrigating canals and
ditches use the water thereof exclusively upon land or lands owned
by him, her or them : Provided, In case any water be sold or rented
from any such canal or ditch, then, in that event, such canal or ditch
shall be taxed to the extent of such sale or rental.
Ch. 1. Art. 2.
PROPERTY TAXES — DEFINITIONS
727
Historical: Laws 1901, 2 33, Sec. 2;
amended Laws 1907, 176, Sec. 1. See
Rev. St. 1887, Sec. 1401; amended
Laws 1897, 77, Sec. 1; re-enacted
Laws 1899, 220, Sec. 2.
California Legislation: See Pol.
Code 1872, Sec. 3607; amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Cross Reference: Legislature may
provide exemptions: Const. Art. 7,
Sec. 5. Property of the United States,
the State, counties, municipal corpo-
rations, and public libraries exempt
from taxation: Const. Art. 7, Sec. 4.
State lands are exempt from taxa-
tion while the title remains in the
State but the value of the purchaser's
interest may be taxed: Sec. 1586.
Taxation of Mining Claims: As long-
as the title to mines and mining
claims remains in the United States
government, such mines and mining
claims are not subject to local taxa-
tion, but when they cease to be the
property of the United States, when
the fee has passed from the United
States to the citizen, such exemption
no longer exists and they are subject
to taxation. (Sullivan J., dissents.)
Salisbury v. Lane (1900) 7 Ida. 370;
63 Pac. 383.
Transient Teams Not Taxable.
Sec. 1645. Any team, wagon, pack train, or any animal or prop-
erty belonging thereto or connected therewith, owned without the
State and temporarily within the State for the purpose of carrying
or delivering goods or other freight, is not subject to taxation.
Historical: Laws 1901, 233, Sec. 39.
Rev. St. 1887, Sec. 1437,.
ARTICLE 2.
DEFINITIONS.
Section
1646. Definitions of terms.
Definitions of Terms.
Sec. 1646. Whenever the terms mentioned in this section are em-
ployed in this chapter they are employed in the sense hereafter affixed
to them :
1. The term "property" includes moneys, credits, bonds, stocks,
dues, franchises, and all other matters and things, real, personal and
mixed, capable of private ownership.
2. The term "real estate" includes: (1) The possession of, claim
to, ownership of or right to the possession of land: (2) all mines,
minerals and quarries in and under the lands, and all rights and
privileges appertaining thereto.
3. The term "improvements" includes: (1) All buildings,
structures, fixtures, fences and improvements erected upon or affixed
to the land; (2) all fruit, nut bearing or ornamental trees, or vines
not of natural growth.
4. The term "personal property" includes everything which is
the subject of ownership not included within the meaning of the
term "real estate."
5. The term "value" and "full cash value" means the amount at
which the property would be taken in payment of a just debt due
from a solvent debtor.
6. The term "credit" means those solvent debts owing to the
person, firm or corporation or association assessed. The term "debts"
means those liabilities owing by the person, firm, corporation or
association, assessed to bona fide residents of this State, or firms,
associations or corporations doing business therein.
Historical: Laws 1901, 233, Sec. 3.
Rev. St. 1887, Sec. 1405.
California Legislation: Similar in
part: Pol. Code 1872, Sec. 3617; sim-
728
REVENUE
Tit. 10
ilar as amended: Deering's Code, ib.;
further amended: Kerr's Code, ib.
Cross Reference: Property to be de-
fined and classified by law: Const. Art.
7, Sec. 3.
Cited: Humbird Lumber Co. v.
Thompson (1905) 11 Ida. 614; 83 Pac.
941.
Construction: Under the revenue
act of 1869, it was held that a pos-
sessory interest in a claim to public
land is real estate and assessable as
such, but the buildings and improve-
ments on such a claim are personal
property and cannot be assessed as
real estate. People v. Owyhee Min-
ing Co. (1871) 1 Ida. 409.
ARTICLE 3.
LEVY A1NTD LIEN OF TAXES.
Section
1647. State ad valorem tax: County
tax.
1648. Levy for State tax: Delin-
quency warrant tax.
Section
1649. Tax has effect of judgment.
16 50. Personal taxes a lien on realty.
1651. Real property taxes a lien.
State Ad Valorem Tax: County Tax.
Sec. 1647. Whenever there is levied for State purposes, as pro-
vided by law, an annual ad valorem tax, the same shall be paid by
the several counties of this State in the proportion which their
assessed valuation, as shown by their respective assessment and sub-
sequent assessment rolls, bears for the year next preceding that in
which said tax is to be paid, to the total assessed valuation of the
State for the preceding year; and upon the same property, the board
of county commissioners of each county is also hereby authorized
and empowered to levy annually a tax for county expenditure, in-
clusive of the amount required to be paid as State taxes, the sum
of one hundred and fifty cents on each one hundred dollars, and, if
they deem necessary, a tax of twenty-five cents on each one hundred
dollars, to be expended for the repair and construction of bridges
within the county, as the board of county commissioners may order
and direct, and such additional and special taxes as are in this chapter
or other laws of this State authorized: Provided, however, That
whenever the board of county commissioners levy any tax, such levy
must be entered on the records of their proceedings; their clerk
must deliver a certified copy thereof to the assessor, tax collector,
auditor and treasurer, each of whom must file said copy in his office.
Historical: Laws 1901, 233, Sec. 4.
See Rev. St. 1887, Sec. 1410; amended
Laws 1895, 101, Sec. 2; amended
Laws 1897, 33, Se2. 1; re-enacted
Laws 1899, 254, Sec. 2.
Cross Reference: Levy of school
tax: Sec. 603. Livestock sanitary tax:
Sec. 1205. Special tax levy in good
road district: Sec. 1056. Addition to
tax against land of amount charged
for services of water master: Sec.
3281.
Liability of County: A county i*
not liable to the State for uncollected
taxes levied upon lands, which, in de-
fault of payment, are sold at a delin-
quent sale and bid in by the county,
until such lands are redeemed or oth-
erwise disposed of by the county.
State v. Ada Co. (1900) 7 Ida. 261:
62 Pac. 457.
Levy for State Tax : Delinquency Warrant Tax.
Sec. 1648. The board of county commissioners of each county
must, on the second Monday of September, annually, ascertain the
rate necessary to be levied on each one hundred dollars of taxable
property in said county, as shown by the last assessment, in order
to secure the amount of State ad valorem taxes apportioned to such
county, each year, by the State Board of Equalization as certified
Ch. 1. Art. 3. PROPERTY TAXES — LEVY AND LIEN 729
by the State Auditor, and must levy the same, together with such
percentage of increase as in the judgment of the board of county
commissioners may be necessary in order to provide for taxes unpaid
prior to sale for delinquency thereof; and thereupon the county shall
become liable to the State for the full amount of such State ad valorem
taxes apportioned to such county, and the same shall be payable in
full without deductions, on or before the day designated by the
assessor for the sale of property for delinquent taxes for such year
in such county; and at the same time said commissioners, unless
provision shall have been made for funding, refunding or exchange
of the outstanding county warrant indebtedness as provided by law,
whenever any county shall have warrants outstanding and unpaid
for the payment of which there are no funds in the county treasury,
in addition to the other taxes provided by law, if such warrants
amount to a sum equal to five per cent, or more, of the value of the
taxable property of such county, as shown by the last preceding
assessment, must levy a special tax of ten mills on the dollar, as shown
by such preceding assessment; if such warrants amount to a sum
equal to four per cent and less than five per cent of such taxable
property, they must levy a special tax of not less than eighty cents
nor more than one hundred cents on the one hundred dollars of such
taxable property, as shown by such preceding assessment; if such
warrants amount to a sum equal to three per cent and less than four
per cent of such taxable property, they must levy a special tax of
not less than sixty cents nor more than ninety cents on the one
hundred dollars of such taxable property, as shown by such preceding
assessment; if such warrants amount to a sum equal to two per cent
and less than three per cent of such taxable property, they must
levy a special tax of not less than forty cents nor more than sixty
cents on the one hundred dollars of such taxable property, as shown
by such preceding assessment; if such warrants amount to one per
cent and less than two per cent of such taxable property, they must
levy a special tax of not less than twenty cents nor more than forty
cents on the one hundred dollars of such taxable property, as shown
by such preceding assessment; and if such warrants amount to less
than one per cent of such taxable property, they must levy such special
tax on the dollar, as shown by such preceding assessment, as shall
be sufficient to pay such warrants.
All moneys arising from such special tax shall be placed in a
special fund for the redemption of such warrants, which shall be
paid exclusively out of said fund, which shall be known as the warrant
redemption fund. All moneys in the county treasury at the end of
each fiscal year, not needed for current expenses and applicable
thereto, shall be transferred to sa?d warrant redemption fund.
Laws 1899, 254, Sec. 3; amended
Laws 1899, 455, Sec. 1.
Historical: Laws 1901, 233, Sec. 5.
See Rev. St. 1887, Sec. 1411; amended
Laws 1895, 101, Sec. 3; re-enacted
Tax Has Effect of Judgment.
Sec. 1649. Every tax, including taxes of cities, towns, villages and
independent school districts, authorized by law to collect revenue, as
provided by this chapter, has the effect of a judgment against the
person, and every lien created by this chapter has the force and
730
REVENUE
Tit. 10
effect of an execution duly levied against all property of the delin-
quent; the judgment is not satisfied nor the lien removed until the
taxes are paid or the property sold for the payment thereof.
Historical: Laws 1901, 233, Sec.
181. See Rev. St. 1887, Sec. 1412.
California Legislation: Similar:
Pol. Code 1872, Sec. 3716; Deering's
Code, ib. ; Kerr's Code, ib.
Personal Taxes a Lien on Realty.
Sec. 1650. Every tax due upon personal property is a lien upon
real property of the owner thereof from and after the second Monday
in January in each year.
Historical: Laws 1901, 2 33, Sec.
182, See Rev. St. 1887, Sec. 1413.
California Legislation: See Pol.
Code 1872, Sec. 3717; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Real Property Taxes a Lien.
Sec. 1651. Every tax of State, counties, cities, towns, villages and
independent school districts, authorized by law to collect revenues
as provided in this chapter, when due upon real estate, is a lien
against property assessed, and every tax due upon improvements
on real estate assessed to others than the owner of the real estate,
is a lien upon the lands and improvements ; which several liens attach
as of the second Monday in January in each year.
Historical: Laws 1901, 233, Sec. 183.
See Rev. St. 1887, Sec. 1414.
California Legislation: See Pol.
Code 1872, Sec. 3718; Deering's Code,
ib.; Kerr's Code, ib.
ARTICLE 4.
ASSESSMENT OF PROPERTY.
assessed at cash
Section
1652. Property
value.
Place of assessment: Persons
to whom assessed: Mistakes
in names.
Assessment of real estate.
Same: Second description un-
necessary.
Same: Ditches and toll roads.
Assessment of livestock.
Same: Assessment in other
counties.
Same: Notification to asses-
sor: Statement by taxpayer.
Same: Rebates for subsequent
payments.
Same: Migratory stock fund.
Amount of tax.
Distraint of stock.
Excess: Rebate.
Collection of deficiency.
Enforcement by
1653.
1654.
1655.
1656.
1657
1658.
1659.
1660.
1361.
1662.
1663.
1664.
1665.
1666.
Same:
Same:
Same:
Same :
Lien of tax:
action.
1667. Non-compliance
by owner.
1668. Stock in transit.
1669. Assessment of
transit.
1670. Assessment to agents, etc.
with article
property in
Section
1671. Owner of corporate stock not
to be assessed.
1672. Assessment of bank stock.
1673. Assessment of corporate and
firm property.
1674. Property of decedents.
1675. Ferries and toll bridges.
1676. Assessment of vessels.
1677. Same.
1678. Same: Boats and small craft.
167 9. Property in litigation.
1680. Assessment of concealed prop-
erty.
1681. Assessment of omitted prop-
erty.
1682. Statement by taxpayer.
1683. Credits: Deduction of debts.
1684. Bank statements.
1685. Same: Form.
1686. Assessor may file statement.
1687. Examination of witnesses.
1688. Refusal to furnish statement:
Duty of assessor.
1689. Absent or unknown owners.
1690. Same: To whom assessed.
1691. Property in other county:
Transmission of statement.
Ch. 1. Art. 4.
PROPERTY TAXES — ASSESSMENT
731
Property Assessed at Cash Value.
Sec. 1652. All taxable property must be assessed at its full cash
value ; lands and improvements thereon must be assessed separately.
Historical: Laws 1901, 233, Sec. 10.
See Rev. St. 1887, Sec. 1425; amended
Laws 1893, 131, Sec. 1; re-enacted
Laws 1899, 215, Sec. 1.
California Legislation: Similar:
Pol. Code 1872, Sec. 3627; similar in
part as amended: Deering's Code,
ib.; Kerr's Code, ib.
Full Cash Value: A complaint to
enjoin a tax collector from selling-
property to satisfy a tax levy on the
ground that the assessment is exces-
sive, must allege the "full cash value"
of the property as required by this
section, and it is not sufficient to state
the "fair value" or "true value" of the
property, or to allege that other prop-
erty of similar character in the same
vicinity has been assessed at a less
valuation. Humbird Lumber Co. v.
Thompson (1905) 11 Ida. 614; 83
Pac. 941.
Place of Assessment : Persons to Whom Assessed : Mistakes in Names.
Sec. 1653. All taxable property shall be assessed in the county,
city or district in which it is situated on the second Monday in Jan-
uary, or, if not within the State on that day, on the day of assessment ;
the assessor must, between the second Monday in January and the
first day of July in each year, ascertain the names of all taxable in-
habitants and all property in his county subject to taxation, and must
assess such property to the persons by whom it was owned or claimed,
or in whose possession or control it was, at 12 o'clock noon of the
second Monday in January next preceding, or on the day of assess-
ment as aforesaid; but no mistake in the name of the owner or sup-
posed owner of real property shall render the assessment thereof
invalid. In assessing solvent credits not secured by mortgage or
trust deed, a reduction therefrom shall be made of debts due to bona
fide residents of this State.
Historical: Laws 1901, 233, Sec. 11.
See Rev. St. 1887, Sec. 1428; amended
Laws 1895, 101, Sec. 5; amended
Laws 1897, 30, Sec. 1; re-enacted
Laws 1899, 25 4, Sec. 5.
California Legislation: See Pol.
Code 1872, Sec. 3628; as amended:
Deering's Code, ib. ; further amend-
ed: Kerr's Code, ib.
Assessment of Real Estate.
Sec. 1654. Real estate, and improvements thereon, together with
all furniture, fixtures or other personal property belonging to any
telegraph, telephone or railroad company, except such as is enumer-
ated as being exclusively subject to assesment by the State Board
of Equalization, shall be assessed by the assessor of the county for
the State, county, city, town, village and independent school district,
authorized by law to collect revenue as provided herein, in which
such property is situated.
Historical: Laws 1901, 233, Sec. 12.
Assessment of Contiguous Lots:
Two contiguous town lots owned by
the same individual, may be jointly
assessed and one valuation fixed for
the two unless the owner demands
that the assessor assess the lots sepa-
rately. Co-operative etc. Assn. v.
Green (1897) 5 Ida. 660; 51 Pac. 770.
Same: Second Description Unnecessary.
Sec. 1655. Lands once described on the assessment book need not
be described a second time in the same year, but any person claiming
the same and desiring to be assessed therefor, may have his name
inserted with that of the person to whom such land is assessed.
732
REVENUE
Tit. 10
Historical: Laws 1901, 2 33, Sec. 13.
Rev. St. 1887, Sec. 1456.
California Legislation: Same except
"in the same year", line 2, omitted:
Pol. Code 1872, Sec. 3657; Deering's
Code, ib.; Kerr's Code, ib.
Same: Ditches and Toll Roads.
Sec. 1656. Water ditches constructed for mining, manufacturing
or irrigation purposes, and wagon or turnpike toll roads, must be
assessed the same as real estate by the assessor of the county, at a
rate per mile for that portion of such property as lies within his
county, and extended on the assessment roll as improvements on real
estate, indicating by initials the kind of improvement.
Deering's Pol. Code, Sec. 3663; as
amended: Kerr's Code, ib.
Historical: Laws 1901, 2 33, Sec. 14.
See Rev. St. 1887, Sec. 1460.
California Legislation: Similar:
Assessment of Livestock.
Sec. 1657. All livestock shall be assessed for taxation in the county
in which it is found at the time fixed in this chapter to determine
in what county property shall be assessed, or if not within the State
on that day, shall be assessed in any county in which it may be found
and first assessed, which county in which such livestock is assessed,
or liable to assessment, shall be known as its home county; and at
the time of such assessment the owner of such livestock, or his agent,
shall make and deliver to the assessor a written statement under
oath showing the number, description and different kinds of such
'ivestock within the county, belonging to him or under his charge,
with their marks and brands when practicable, and showing the full
time during the current fiscal year that such livestock, and every part,
portion any kind thereof, has been and will be within the county;
and such livestock and the owner thereof, shall be liable to said county
for the taxes thereon at the rate of levy for all State, county and
other purposes, as other property is liable; and the owner thereof
shall, unless sufficient real estate ample to secure the same is liable
therefor, pay the assessor at the time of such assessment the whole
amount of said taxes for the full year, and take his receipt therefor.
Historical: Laws 1901, 233, Sec. 15.
See Laws 1897, 22, Sec. 2; re-enacted
Laws 1899, 298, Sec. 2.
California Legislation : See Deer-
ing's Pol. Code, Sec. 3637, note; Kerr's
Code, ib.
Same: Assessment in Other Counties.
Sec. 1658. All livestock that is kept, driven or. pastured, or that
is suffered to range or graze, in more than one county in this State,
during the fiscal year, shall be subject to taxation in each of the
counties in which it is kept, driven or pastured, or suffered to range
or graze, or in which it does range or graze, in proportion to the
time it is so kept, driven or pastured, or suffered to range or graze,
or does range or graze, in such county in any fiscal year, as in this
article provided.
Historical: Laws 1901, 233, Sec. 16.
See Laws 1897, 22, Sec. 1; re-enacted
Laws 1899, 298, Sec. 1.
California Legislation: See Deer-
ing's Pol. Code, Sec. 3637, and note;
Kerr's Code, ib.
Same : Notification to Assessor : Statement by Taxpayer.
Sec. 1659. Whenever any such livestock is removed, or kept, driven
or pastured, or suffered to range or graze, or does range or graze,
J
Ch. 1. Art. 4. PROPERTY TAXES — ASSESSMENT 733
in any county other than its home county, the owner thereof or his
agent shall, within ten days from the time any such stock enters
such other county, notify the assessor of said county that he has
entered or intends to enter said county, stating the date of said entry,
the number, description and different kinds, with their marks and
brands, when practicable, of such livestock in his possession or under
his control or charge within said county, and he shall make and de-
liver, and it shall be the duty of such assessor to demand, a written
statement under oath, similar in all respects as far as applicable to
the statement required in the home county, showing the full length
of time during the current fiscal year that such livestock and every
part, portion and kind thereof, has been and will be within such
county; that the taxes on such livestock for the current fiscal year
have been fully paid or secured in the home county, naming the same,
and shall produce for the inspection of the assessor or his deputy,
upon demand, the receipt for said taxes, or in case the same have
been secured, a certificate showing that the same has been done, and
such livestock and the owner thereof shall be liable to said county
for the part or portion of the taxes thereon, for the full length of
time that such livestock has been and will be within said county,
during said fiscal year, according to the rate of levy in said county
for all State, county or other purposes, as other property in said
county is liable; and such owner shall, before any livestock leaves
said county, pay said taxes to the assessor of said county, or shall
secure the payment of the same to the satisfaction of the assessor,
and take his receipt or certificate therefor. If any such livestock
shall not be removed from any county on or before the expiration
of the time mentioned in any such written statement as the time
during which they will remain in said county, and for which time
taxes have been paid or secured in said county, or before the expira-
tion of the time for which the taxes have been paid on the same, it
shall be the duty of the owner or his agent to at once seek the assessor
of the county and make an additional statement, under oath, similar
to that hereinbefore provided for, and stating the additional time
which such livestock has been and will remain in said county within
the fiscal year, and he shall at once pay or secure the proportional
tax for such additional time and take the assessor's receipt or cer-
tificate therefor.
Historical: Laws 1901, 233, Sec. 17.
See Laws 1897, 22, Sees. 3, 4; re-en-
acted Laws 1899, 298, Sees. 3, 4.
Same : Rebate for Subsequent Payments.
Sec. 1660. As soon as any such livestock is returned to its home
county, or if not so returned there, before the expiration of the fiscal
year, the owner thereof to whom they were first assessed, shall pre-
sent the receipt or receipts received by him or any other person to
whom he may have sold, showing what part or parts of the fiscal
year for which taxes have been paid in other counties under and in
pursuance of the provisions of this article, and said owner shall be
entitled to, and shall receive, from the treasurer of said home county
and out of the migratory stock fund, that part of the amount of the
taxes paid on such livestock in said home county, proportionate as
734 REVENUE Tit. 10
the total periods of time for which taxes have been paid in other
counties within the State, as shown by the receipts therefor presented,
is to the whole year : Provided, That all the provisions of this article
in regard to the payment of rebates shall apply where livestock owned
by bona fide residents of this State has been ranged or grazed in an
adjoining State for a portion of the year, and the owner of said
livestock has been assessed and has paid taxes on said livestock in
said adjoining State, upon the owner making satisfactory proof of
the time during which his livestock has ranged during such year in
said adjoining State.
Historical: Laws 1901, 233, Sec. 18; i Laws 1897, 22, Sec. 5; re-enacted Laws
amended Laws 1903, 374, Sec. 1. See I 1899, 298, Sec. 5.
Same : Migratory Stock Fund.
Sec. 1661. For the purpose of meeting and paying such rebates,
as mentioned in the preceding section, the assessor of each county
in the State is hereby directed, at the time of his regular monthly
settlement with the treasurer, to separately deposit with him all
moneys collected as taxes on livestock, except when such money has
been finally paid as a settlement of the amount of tax due, from
which no rebate is to be thereafter deducted, and accompany such
separate deposits with the auditor's certificate, which shall set out
the amount of such tax, the number, kind, description and owner
and person in charge of such livestock, and the length of time for
which such tax is paid, which amount shall be charged by the auditor,
and credited by the treasurer, to a special fund hereby created and
which shall be known as the migratory stock fund; such fund shall
be reported in all reports of the auditor and treasurer, but the funds
therein shall be considered as deposit funds and shall not be included
in such reports or balances as public money. In all cases where a
rebate for livestock is made by payment to the person by whom
the tax on such livestock for the year was originally paid, such pay-
ment must be made upon the certificate of the assessor, which shall
show the name of the person entitled thereto, the number, kind and
description of livestock, the time for which such rebate is allowed,
and the county or counties in which taxes on such livestock have been
paid or secured other than the home county and upon the order of
the auditor. On the first Monday in December of each year the
assessor shall report to the auditor the net amount of such migratory
stock fund, and the amount thereof due the several revenue districts
in his county, and thereupon the auditor shall apportion the net
amount in said fund amongst the several funds entitled thereto, charg-
ing the migratory livestock fund therewith, and shall certify such
apportionment to the treasurer, who shall transfer the balance in
said fund accordingly and credit the migratory stock fund with such
net amount. After said first Monday in December no rebates on
such fund or for taxes on livestock shall be allowed.
Historical: Laws 1901, 233, Sec. 19.
Same : Amount of Tax.
Sec. 1662. The assessor and collector shall be governed as to the
amount of taxes to be by him collected on such transient stock, and
Ch. 1. Art. 4. PROPERTY TAXES — ASSESSMENT 735
on all other stock and personal property, when not secured by lien on
leal estate, by the State and county rate of the previous year.
Historical: Laws 1901, 233, Sec. 21.
Same: Distraint of Stock.
Sec. 1663. The assessor and collector may distrain and sell such
portion of transient and other stock, and all other personal property,
when not secured by lien on real estate, as may be requisite to pay
the tax due and the costs of sale, in the same manner provided by
law for the distraint and sale of other personal property.
Historical: Laws 1901, 233, Sec. 22.
See Rev. St. 1887, Sec. 1427.
Same : Excess : Rebate.
Sec. 1664. When the rate is fixed for the year in which such col-
lection is made, then if a sum in excess of the rate has been collected,
such excess shall be paid by the county treasurer to the person from
whom the collection was made, or to his agent, on demand, out of the
migratory stock fund.
Historical: Laws 1901, 233, Sec. 23. mand," is transposed to better express
The phrase, "or to his agent, on de- the sense.
Same: Collection of Deficiency.
Sec. 1665. If a sum less than the rate fixed has been collected, the
deficiency must be collected as other taxes on personal property are
collected, if the property remains in the county.
Historical: Laws 1901, 233, Sec. 24. i
Lien of Tax : Enforcement by Action.
Sec. 1666. All taxes that shall become due to any county under
the provisions of this article relating to the assessment of livestock,
shall be a personal debt and demand against the owner to whom the
property was first assessed, and may be enforced by any proper
action in the name of the county, in any court of competent juris-
diction, and secured by attachment or other provisional remedy, which
may be issued without undertaking or other security by or on behalf
of the county ; and said taxes shall be a first lien upon such livestock
wherever found within the State, and a lien upon all real estate be-
longing to any owner of such livestock, situate within the county to
which such taxes are due and payable, and such lien shall only be
discharged by the actual payment of the taxes.
Historical: Laws 1901, 233, Sec. 25.
"Relating to the assessment of live-
stock" inserted to confine the provi-
sions to the subject matter contem-
plated thereby.
Non-Compliance With Article by Owner.
Sec. 1667. Any owner or agent neglecting to give any notice to
any assessor or refusing to make any statement required by this
article relating to the assessment of livestock, or making a wilfully
false statement, or removing or suffering to be removed any such
livestock from any county to evade the payment of any taxes payable
to said county, according to the provisions of this article, shall be
guilty of a misdemeanor.
736
REVENUE
Tit. 10
Historical: Laws 1901, 2 33, Sec. 26.
See Laws 1893, 22, Sec. 7; re-en-
acted Laws 1899, 298, Sec. 7.
"Relating- to the assessment of live-
stock" inserted for the reason stated
in the note to the preceding- section.
Stock in Transit.
Sec. 1668. The provisions of this article relative to the taxation
of livestock shall not apply to such stock in transit through this State
by railroad or other means of public transportation.
Historical: Laws 1901, 233, Sec. 27.
Assessment of Property in Transit.
Sec. 1669. All personal property consigned to any person within
this State from any place out of this State must be assessed as other
property ; and all property in transit to any county in this State must
be assessed at its destination or in any county where it remains
thirty days.
Historical: Laws 1901, 233, Sec. 40.
Rev. St. 1887, Sec. 1438.
California Legislation: Similar
through "property," line 3, rest omit-
ted: Pol. Code 1872, Sec. 3638; Deer-
ing's Code, ib.; as amended: Kerr's
Code, ib.
Assessment to Agents, Etc.
Sec. 1670. When a person is assessed as agent, trustee, bailee,
guardian, executor or administrator, his representative designation
must be added to his name, and the assessment entered on a separate
line from his individual assessment.
Historical: Laws 1901, 233, Sec. 41.
Rev. St. 1887, Sec. 1439.
California Legislation: Same: Pol.
Code 1872, Sec. 3639; Deering's Code,
ib.; Kerr's Code, ib.
Owner of Corporate Stock Not to Be Assessed.
Sec. 1671. The owner or holder of stock in any firm or corporation,
the entire capital or property whereof is assessed, must not be assessed
individually for his stock in such firm or corporation.
Historical: Laws 1901, 233, Sec. 42.
Rev. St. 1887, Sec. 1440.
California Legislation: Same: Pol.
Code 1872, Sec. 3640; repealed 1881.
Assessment of Bank Stock.
Sec. 1672. The stockholders of every banking association located
in this State, and organized under the laws of the United States or
of this State, must be assessed and taxed on the value of their shares
of stock therein in the county, city, town, village and independent
school district, authorized by law to collect revenue as in this chapter
provided, where such bank is located, whether the stockholders reside
there or not. Such shares must be listed and assessed with regard
to the value of such shares by reason of any net undivided profits
or surplus of such corporation and with regard to the ownership
thereof, subject, however, to all deductions allowed in the assess-
ment of other moneyed capital, and subject to the restriction that
taxation of such shares must not be at a greater rate than is assessed
on any other moneyed capital in the hands of individual citizensof
the State in the place where such bank is located. Every such banking
association must furnish to the assessor a full and correct list of
the names and residence of its stockholders and the number of shares
held by each. The taxes upon such shares must be assessed against
Ch. 1. Art. 4.
PROPERTY TAXES — ASSESSMENT
737
the holder of the same in the list of personal property, and must
be paid by the bank. The real estate of such banking association
is subject to State, county, municipal and district taxation as other
real estate.
Historical: Laws 1901, 2 33, Sec. 43.
Rev. St. 1887, Sec. 1441.
Assessment of Corporate and Firm Property.
Sec. 1673. The property of every firm and corporation must be
assessed in the county where the property is situated, and must be
assessed in the name of the firm or corporation.
Historical: Laws 1901, 2 33, Sec. 44.
Rev. St. 1887, Sec. 1442.
California Legislation: Same: Pol.
Code 1872, Sec. 3641; Deering's Code,
ib.; Kerr's Code, ib.
Property of Decedents.
Sec. 1674. The undistributed or unpartitioned property of deceased
persons may be assessed to the heirs, guardians, executors or ad-
ministrators; and a payment of taxes made by either binds all the
parties in interest for their equal proportions.
Historical: Laws 1901, 233, Sec. 45.
Rev. St. 1887, Sec. 1443.
California Legislation: Same: Pol.
Code 1872, Sec. 3642; Deering's Code,
ib. ; Kerr's Code, ib.
Ferries and Toll Bridges.
Sec. 1675. Ferries and toll bridges must be assessed in the county
where tolls are collected.
Historical: Laws 1901, 233, Sec. 46.
Rev. St. 1887, Sec. 1444.
California Legislation: Same: Pol.
Code 1872, Sec. 3643; different as
amended: Deering's Code, ib.; Kerr's
Code, ib.
"county", line 3: Pol. Code 1872, Sec.
3644; similar as amended: Deering's
Code, ib. ; Kerr's Code, ib.
Assessment of Vessels.
Sec. 1676. All vessels of every class which are by law required
to be registered must be assessed and the taxes thereon paid only in
the county where the same are registered, enrolled or licensed.
Historical: Laws 1901, 233, Sec. 47.
Rev. St. 1887, Sec. 1445.
California Legislation: Same except
"or city and county" inserted after
Same.
Sec. 1677. Vessels registered, licensed or enrolled out of and ply-
ing, in whole or in part, in the waters of this State, the owners of
which reside in this State, must be assessed in this State.
Historical: Laws 1901. 233, Sec. 48.
Rev. St. 1887, Sec. 1446.
California Legislation: Same: Pol.
Same : Boats and Small Craft.
Sec. 1678. All boats and small craft not required to be registered
must be assessed in the county where their owner resides.
Historical: Laws 1901 233, Sec. 49. Code 1872, Sec. 3646; Deering's Code,
Rev. St. 1887, Sec. 1447. ib.; Kerr's Code, ib.
California Legislation: Same: Pol.
Code 1872, Sec. 3645; Deering's Code,
ib. ; Kerr's Code, ib.
738
REVENUE
Tit. 10
Property in Litigation.
Sec. 1679. Money and property in litigation, in possession of a
county treasurer, of a court, clerk or receiver, must be assessed to
such treasurer, clerk or receiver, and a statement of the amount of
taxes due thereon filed in the case by the assessor, and the taxes must
be paid thereon under the direction of the court. No order, judgment
or decree of any court shall be construed to discharge the lien of any
tax upon such property.
Historical: Laws 1901, 2 33, Sec. 50.
See Rev. St. 1887, Sec. 1448.
California Legislation: Similar up
to last sentence which is omitted: Pol.
Code 1872, Sec. 3647; Deering-'s Code,
ib. ; Kerr's Code, ib.
Property Held by Receiver: Prop-
erty in the hands of a receiver is not
liable to seizure and sale for taxes, but
the court having possession thereof
should direct the receiver to pay the
taxes. Palmer v. Pettingill (1898) 6
Ida. 346; 55 Pac. 653.
Assessment of Concealed Property.
Sec. 1680. Any property wilfully concealed, removed, transferred
or misrepresented by the owner or agent thereof to evade taxation,
upon discovery must be assessed at not exceeding ten times its value,
and the assessment so made must not be reduced by the board of
commissioners.
Historical: Laws 1901, 233, Sec. 51.
Rev. St. 1887, Sec. 1449.
California Legislation: Same except
"supervisors" for "commissioners" last
word: Pol. Code 1872, Sec. 3648;
Deering-'s Code, ib.; Kerr's Code, ib.
Assessment of Omitted Property.
Sec. 1681. Any property discovered by the assessor to have escaped
assessment for the preceding year, if such property is in the owner-
ship or under the control of the same person who owned or controlled
it for such preceding year, may be assessed at double its value.
Historical: Laws 1901, 2 33, Sec. 52.
Rev. St. 1887, Sec. 1450.
California Legislation: Same: Pol.
Code 1872, Sec. 3649; Deering's Code,
ib.; Kerr's Code, ib.
Statement by Taxpayer.
Sec. 1682. The assessor must exact from each person a statement
under oath setting forth specifically all the real and personal property
owned by said person or under his control at twelve o'clock, noon,
on the second Monday in January, and as to property not within
the State on that day, on the day of assessment. Such statement
shall be in writing, showing separately :
1. All property belonging to, claimed by, or in the possession
of, or under the control or management of, such person.
2. All property belonging to, claimed by, or in the possession
of, or under the control or management of, any firm of which such
person is a member.
3. All property belonging to, claimed by, or in the possession
of, or under the control or management of, any corporation of which
such person is president, secretary, cashier or managing agent.
But whenever one member of a firm, or one of the proper officers
of a corporation, has made a statement showing the property of the
firm or corporation, another member of the firm, or another official
of the corporation, need not include such property in that statement
Ch. 1. Art. 4.
PROPERTY TAXES — ASSESSMENT
739
made by him, but such statement must show the name of the person
or officer who made the statement in which the property is included.
4. The county, town, city, village or independent school district
in which such property is situated, or in which it is liable to taxation,
and (if liable to taxation in the county in which the statement is
made) the school district, road district or other revenue districts
in which it is situated.
5. An exact description of all lands in parcels, improvements and
personal property, including all vessels, steamers and other water
crafts; and all taxable State, county, city or municipal or public
bonds, and the taxable bonds of any person, firm or corporation, and
deposits of money, gold dust or other valuables, and the names of
the persons with whom such deposits are made and the places in
which they may be found.
6. All shares of stock of any national banking association located
within this State, and all solvent credits unsecured by deed of trust,
mortgage or other lien on real or personal property, owned by, or due
or owing to, such person or any firm of which he is a member, or any
corporation of which he is president, secretary, cashier or managing
agent.
Historical: Laws 1901, 233, Sec. 28.
See Rev. St. 1887, Sec. 1429; amended
Laws 1895, 101, Sec. 6; amended
Laws 1897, 30, Sec. 2; re-enacted
Laws 1899, 254, Sec. 6.
California Legislation: See Pol.
Code 1872, Sec. 3630; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Cited: Inland Lumber etc. Co. v.
Thompson (1905) 11 Ida. 508; 83
Pac. 933.
Statement — Duty of Owner: The
owner is not required to list the prop-
erty under the appropriate heads in
the assessment roll, and he is not pre-
cluded from questioning the validity
of the assessment on the ground that
the property was not properly de-
scribed and listed in the assessment
roll. People v. Owyhee Mining Co.
(1871) 1 Ida. 409.
Necessity of Statement: It is not
necessary to a valid assessment that
the sworn statement provided for in
this section be demanded by the as-
sessor, or that the person assessed
give such statement or refuse to do
so. Co-operative Savings & Loan
Assn v. Green (1897) 5 Ida. 661; 51
Pac. 770.
Refusal to Give Statement : . A tax
payer who refuses or neglects after
demand to furnish the assessor the
statement required by this section can-
not maintain an action against the
assessor to recover taxes collected on
cattle assessed by the assessor which
had also been assessed in another
county. Erwin v. Hubbard (189 4) 4
Ida. 170; 37 Pac. 274.
Credits : Deduction of Debts.
Sec. 1683. In making up the amount of credits which any person,
firm or corporation is required to list, he will be entitled to deduct
from the gross amount of such credits the amount of all bona fide
debts unsecured by mortgage or trust deed or other lien on real or
personal property owing by him or any firm or corporation of which
he is president, secretary, cashier or managing agent ; but no acknowl-
edgment of indebtedness not founded on actual consideration, and
no such acknowledgment made for the purpose of being so deducted,
must be considered a debt within the meaning of this section; and
no person is entitled to a deduction on account of an obligation of
any kind given to an insurance company for the premium of insur-
ance, nor on account of any unpaid subscription to any institution
or society ; nor on account of a subscription to, or installment payable
on, the capital stock of any company or corporation, and no liability
of any person or persons, company or corporation as surety for
740
REVENUE
Tit. 10
another must be deducted ; and no liability of any person or persons,
company or corporation on any bond or undertaking must be de-
ducted; and no deduction must be made in any case unless the party
claiming such deduction discloses to the assessor, by a written state-
ment under oath, the name or names of the persons to whom such
person or persons, firm, company or corporation, is indebted, with
the amount of every such indebtedness; and also that such indebted-
ness is not barred by the statute of limitations, or if it is so barred,
acknowledges such indebtedness in writing; and such written state-
ment under oath shall be subject to examination by the board of
equalization of the county having the equalization of the assessment
roll upon which such deduction is claimed, upon demand of said board
upon the assessor therefor. No debt is to be deducted unless the
statement shows the amount of such debt as stated under oath in
the aggregate, and that the same is due to bona fide residents of this
State, or to firms or corporations doing business in this State.
Historical: Laws 1901, 233, Sec. 29.
See Rev. St. 1887, Sec. 1428; amended
Laws 1895, 101, Sec. 5; amended
Laws 1897, 30, Sec. 1;
Laws 1899, 254, Sec. 5.
re-enacted
Blank Statements.
Sec. 1684. The State Auditor may have printed at State expense,
and may furnish to the assessor of each county in the State at the
actual cost thereof, to be paid as hereinafter provided, the blank
forms of statements provided for in the next section ; affixing thereto
an affidavit which must be substantially as follows :
"I, , do swear that I am a resident of the county of
(naming it) ; that the above list contains a full and correct statement
of all property, subject to taxation, which I, or any firm of which
I am a member, or any corporation, association or company of which
I am president, secretary, cashier or managing agent, owned, pos-
sessed or controlled at twelve noon on the second Monday in January
last, or now own, claim, possess or control, and which was not within
the State on that day, and which is not already assessed this year;
and that I have not in any manner whatsoever transferred or dis-
posed of any property, or placed any property out of said county,
or my possession, for the purpose of avoiding any assessment upon
the same, or of making this statement, and that the debts therein
stated as owing by me are owing to bona fide residents of this State,
or to firms, associations or corporations doing business in this State,
and hereon listed and sworn to as provided by law."
The affidavit to the statement on behalf of any firm or corporation
must state the principal place of business of the firm or corporation,
and in other respects must conform substantially to the foregoing
form.
Historical: Laws 1901, 233, Sec. 31.
See Rev. St. 1887, Sec. 1430; amended
Laws 1895, 101, Sec. 7; amended
Laws 1897, 30, Sec. 3; re-enacted
Laws 1899, 254, Sec. 7.
California Legislation: See Pol.
Code 1872, Sec. 3630; as amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Same : Form.
Sec. 1685. The form for such statement shall be as follows: Pro-
vided, A different size, may, when convenient, be used:
Ch. 1. Art. 4.
PROPERTY TAXES — ASSESSMENT
741
Historical: Laws 1901, 233, Sec. 32.
Assessor May Fill Statement.
Sec. 1686. The assessor may fill out the statement at the time he
presents it, or he may deliver it to the person and require him, within
an appointed time, to return the same to him, properly filled out.
Historical: Laws 1901, 233, Sec. 33.
Rev. St. 1887, Sec. 1431.
California Legislation: Same: Pol.
Code 1872, Sec. 3631; Deering's Code,
ib.; Kerr's Code, ib.
Examination of Witnesses.
Sec. 1687. The assessor may in his discretion subpoena and ex-
amine witnesses in relation to any statement or claim for deductions
on account of unsecured debts due, and all persons are required to
testify when requested so to do Dy him; and he may also issue sub-
poenas duces tecum to compel the production before him of all
necessary books, papers or accounts to enable him to verify any
such statement or claim for deduction of unsecured debts; and in
case of refusal, the assessor must certify such fact to the judge of
any court, who must issue a subpoena and compel a refusing witness
to give testimony, and to produce all books, papers and accounts so
demanded by the assessor, and must for each refusal impose a fine
of not less than twenty nor more than one hundred dollars.
Historical: Laws 1901, 233, Sec. 34.
See Rev. St. 1887, Sec. 1432.
California Legislation: See Pol.
Code 1872, Sec. 3632; as amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Refusal to Furnish Statement : Duty of Assessor.
Sec. 1688. If any person, after demand made by the assessor,
neglects or refuses to give, under oath, the statements therein provided
for, or to comply with the other requirements of this chapter, the
assessor must note the refusal on the assessment book, opposite his
name, and must make an estimate of the value of the property of
such person, and the value so fixed by the assessor must not be re-
duced by the board of commissioners.
Historical: Laws 1901, 233, Sec. 35.
Rev. St. 1887, Sec. 1433.
California Legislation: Similar.
Pol. Code 1872, Sec. 3633; Deering's
Code, ib.; additional provisions as
amended: Kerr's Code, ib.
Cited: Inland Lumber Co. v.
Thompson (1905) 11 Ida. 508; 83
Pac. 933; Humbird Lumber Co. v.
Thompson (1905) 11 Ida. 614; 83
Pac. 941.
Failure to Furnish Statement: A
taxpayer who fails to furnish the
proper statement cannot maintain an
action against the assessor to recover
excess taxes. Erwin v. Hubbard
(1894) 4 Ida. 170; 37 Pac. 274.
Absent or Unknown Owners.
Sec. 1689. If the owner or claimant of any property, not listed by
another person, is absent or unknown, the assessor must make an
estimate of the value of such property.
Historical: Laws 1901, 233, Sec. 36.
Rev. St. 1887, Sec. 1434.
California Legislation: Same: Pol.
Code 1872, Sec. 3635; Deering's Code,
ib. ; Kerr's ("ode, ib.
Same: To Whom Assessed.
Sec. 1690. If the name of the absent owner is known to the as-
742
REVENUE
Tit. 10
sessor, the property must be assessed in his name; if unknown, the
property must be assessed to "unknown owners."
Historical: Laws 1901, 233, Sec. 37.
Rev. St. 1887, Sec. 1435.
California Legislation: Same: Pol.
Code 1872, Sec. 3636; Deering's Code,
ib.; similar as amended: Kerr's Code,
ib.
Property in Other County: Transmission of Statement.
Sec. 1691. The assessor, as soon as he receives a statement of any
taxable property situated in another county, must make a copy of
such statement for each county in which the same is situated, and
transmit the same by mail or express to the assessor of the proper
county, who must assess the same as other taxable property therein.
Historical: Laws 1901, 2 33, Sec. 38.
Rev. St. 1887, Sec. 1436.
California Legislation: Same: Pol.
Code 1872, Sec. 3637; Deering's Code,
ib.; Kerr's Code, ib.
ARTICLE 5.
COUNTY BOARD OF EQUALIZATION.
Section
Secti<
1692.
General duties of board.
1697.
1693.
Powers of board.
1694.
Reduction in valuation: Appli-
1698.
cation.
1699.
1695.
Same: Examination of appli-
cant.
1700.
1696.
Same: Examination of wit-
nesses.
1701.
of
assessor
on
Attendance
board.
Same: Attendance of recorder.
Change in assessment: Notice
to owner.
Record of corrections.
Second meeting of board: Ab-
stract of assessment.
General Duties of Board.
Sec. 1692. The board of county commissioners of each county
within the State shall meet on the second Monday in July of each year
to examine the assessment roll, and shall equalize the assessment of
property of the county and of any city, town, village and independent
school district authorized by law to collect revenue as in this chapter
provided, for taxation within their respective counties. It is hereby
made the duty of the board of county commissioners, at such meeting,
to enforce and compel an assessment of the property within their
respective counties, and in any such city, town, village and independent
school district, at a fair cash value, and in so doing such board of
county commissioners shall examine such assessment roll, name by
name, together with the valuation of property of each taxpayer
assessed, and shall raise or cause to be raised any assessment of
property, which, in the judgment of the board, has not been assessed
at a fair cash value. Such board must continue in session, for the
purpose of equalizing such assessment, until the business of equaliza-
tion is disposed of.
Historical: Laws 1901, 233, Sec. 53.
See Rev. St. 1887, Sec. 1475; amended
Laws 1895, 101, Sec. 12; re-enacted
Laws 1899, 254, Sec. 12; amended
Laws 1899, 453, Sec. 1.
California Legislation: Similar in
part: Pol. Code 1872, Sec. 3672; Deer-
ing's Code, ib.; as amended: Kerr's
Code, ib.
Cross Reference: Board created by
Const. Art. 7, Sec. 12. Duties with
reference to assessment of net
profits of mines: Sec. 1871.
Cited: Inland Lumber etc. Co. v.
Thompson (1905) 11 Ida. 508; 83 Pac.
933.
Board of Equalization: County com-
missioners sitting as a board of equal-
ization constitute a distinct body from
the board of commissioners. Gen.
Custer Mining Co. (1884) 2 Ida. 40;
3 Pac. 22.
Ch. 1. Art. 5. PROPERTY TAXES — COUNTY EQUALIZATION
743
Powers of Board.
Sec. 1693. The board has power to determine all complaints in re-
gard to the assessed value of property, and may, except as prohibited
in this chapter, correct any valuation by adding or reducing such
sums as may be necessary to make it conform to the actual cash value.
Historical: Laws 1901, 233, Sec. 54.
Rev. St. 1887, Sec. 1476.
California Legislation: Similar:
Pol. Code 1872, Sec. 3673; as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Reduction in Valuation: Application.
Sec. 1694. No reduction must be made in the valuation of property
unless the party affected thereby, or his agent, makes and files with
the board a written application therefor, verified by his oath, showing
the facts upon which it is claimed such reduction should be made.
Historical: Laws 1901, 233, Sec. 55.
Rev. St. 1887, Sec. 1477.
California Legislation: Same: Pol.
Code 1872, Sec. 3674; Deering's Code,
ib.; Kerr's Code, ib.
Same: Examination of Applicant.
Sec. 1695. Before the board grants the application or makes any
reduction applied for, it must first examine, on oath, the person or
agent making the application touching the value of the property of
such person. No reduction must be made unless such person or the
agent making the application attends and answers all questions perti-
nent to the inquiry.
Historical: Laws 1901, 233, Sec. 56.
Rev. St. 1887, Sec. 1478.
California Legislation: Same: Pol.
Code 1872, Sec. 3675; Deering's Code,
ib. ; Kerr's Code, ib.
Same : Examination of Witnesses.
Sec. 1696. Upon the hearing of the application the board may
subpoena such witnesses, and hear and take such evidence in relation
to the subject pending, as in its discretion it may deem proper.
Historical: Laws 1901, 233, Sec. 57.
Rev. St. 1887, Sec. 1479.
California Legislation: Same: Pol.
Code. 1872, Sec. 3676; Deering's Code,
ib. ; Kerr's Code, ib.
Attendance of Assessor on Board.
Sec. 1697. During the session of the board the assessor and any
deputy whose testimony is needed must be present, and may make
any statement or introduce and examine witnesses on questions before
the board.
Code 1872, Sec. 3677; Deering's Code,
ib. ; Kerr's Code, ib.
Historical: Laws 1901, 233, Sec. 58.
Rev. St. 1887, Sec. 1480.
California Legislation: Same: Pol.
Same: Attendance of Recorder.
Sec. 1698. The board may require the attendance of the county
recorder, and he is directed to furnish the board abstracts and all
other information which may be gained from the records in his
office when so requested. The board may use information gained
from such abstracts, or records, or elsewhee, in equalizing the assess-
ment of the property of the county, and it shall be the duty of the
744
REVENUE
Tit. 10
assessor to enter upon the assessment book any property which has
not been previously assessed by him; and any such assessment made
and entered into the assessment book, as prescribed in this section,
has the same force and effect as if made and entered by the assessor
before the delivery of the assessment book to the clerk of the board.
The tax collector must collect such subsequent assessments in the
same manner, and receipt and account for the same in the same
manner, as assessments placed on the assessment book prior to its
delivery to the clerk of the board.
Historical: Laws 1901, 2 33, Sec. 59.
See Rev. St. 1887, Sec. 1481.
California Legislation: Similar:
Pol. Code 1872, Sees. 3678 and 3679;
as amended: Deering's Code, ib.; fur-
ther amended: Kerr's Code, ib.
Change in Assessment: Notice to Owner.
Sec. 1699. During the session of the board of county commissioners
sitting as a board of equalization, it may direct and require the asses-
sor to assess any taxable property that has escaped assessment, in-
crease any valuation, or add to the amount, number, quantity, or
value of any property, when a false, inaccurate, or incomplete list has
been furnished or rendered; and in making such alterations, addi-
tions, or new assessments, he shall note the previous assessments
"cancelled" and such new entries, with the alterations and additions,
shall be deemed the true assessment of the property affected thereby.
When any assessment made by the assessor is deemed by the
board so incomplete or inaccurate as to render doubtful the col-
lection of the tax thereon, the board shall direct him to
make a new assessment thereof, as hereinbefore provided, mark-
ing such defective assessment "cancelled." All persons whose
assessment is altered, modified, or affected in the amount of
valuation of property charged to them, shall be . notified by
the clerk of said board, by letter deposited in the United States mail,
postpaid and addressed to such person interested, at least ten days
before the final action is taken in fixing and equalizing such assess-
ment, of the day fixed when he may be heard upon the matters af-
fecting the assessment of his property for taxation, which shall be on
the fourth Monday in July of each year, or as soon thereafter as he
can be heard or his matter be reached.
Historical: Laws 1901, 2 33, Sec. 60.
See Rev. St. 1887, Sec. 1482; amend-
ed Laws 1897, 94, Sec. 1; re-enacted
Laws 1899, 254, Sec. 13.
California Legislation: See Pol.
Code 1872, Sec. 3681; Deering's Code,
ib.; as amended: Kerr's Code, ib.
Powers of Board: The board of
equalization has power under this
section to raise the assessment of an
individual taxpayer, and it will be
presumed that in doing so they act
upon proper evidence. Murphy v.
Board of Equalization (1899) 6 Ida.
745; 59 Pac. 715.
Notice to Taxpayer: This section
only requires notice to be mailed to
persons who have already been as-
sessed and whose assessments are
altered, modified or affected in the
amount of valuation charged to them;
there is no requirement that a notice
be mailed to a person who has never
been assessed and whose assessment
is ordered by the board. Every per-
son who has not been assessed prior
to the date on which the assessor
delivers the assessment roll to the
clerk of the board has notice that
the board will order his property as-
sessed if they discover it, and if he
wants to know the amount for which
his property is assessed, or to be
heard in relation thereto, he should
appear during the session convened
on the fourth Monday in July, and
present his grievances. Inland Lum-
ber etc. Co. v. Thompson (1905) 11
Ida. 508; 83 Pac. 933.
Ch. 1. Art. 6. PROPERTY TAXES — STATE EQUALIZATION.
745
Record of Corrections.
Sec. 1700. The clerk of the board must record in a book to be
kept for that purpose all changes, corrections and orders made by the
board, and also all proposed changes and corrections as to which
notice is required to be given, and during its session or as soon as
possible after its adjournment, he must enter upon the assessment
book all changes and corrections made by the board.
Historical: Laws 1901, 233, Sec. 64.
Rev. St. 1887, Sec. 1484.
California Legislation : Similar in
part: Pol. Code 1872, Sec. 3682
Deering's Code, ib.; Kerr's Code, ib.
Second Meeting of Board: Abstract of Assessment.
Sec. 1701. On the fourth Monday in July the board of county com-
missioners must meet and continue in session until all the parties
appearing have been heard, and until all the proposed additional as-
sessments, changes and corrections have been acted upon, and the
board may subpoena witnesses and hear evidence as provided upon
application for reduction of assesssment; and the clerk of the board
must keep a record of their proceedings, and as auditor he may re-
ceive from the tax collector the original assessment book, and may
retain the same for the time necessary to enter the additional as-
sessments, changes and corrections ordered by the board; and at the
same time it shall be the duty of the county auditor to prepare an
abstract, upon blanks furnished by the State Board of Equalization,
showing the total number of items or pieces of property and the total
value thereof, in each class, as contained in said assessment book as
corrected by the board of county commissioners, or in any subsequent
assessment made therein or any other assessment book, and transmit
such abstract by registered mail to the State Audtior on or before the
first Monday in August: Provided, That the abstract of any subse-
quent assessment shall be sent in like manner at the earliest possible
time subsequent to the date of the last assessment of property made
in such county for such year. The form of such blank herein pro-
vided for shall be prepared in strict conformity with the classifica-
tion of property in the assessment roll form herein provided for.
Historical: Laws 1901, 2 33, Sec. 65.
See Rev. St. 1887, Sec. 1485; amended
Laws 1895, 101, Sec. 14; re-enacted
Laws 1899, 254, Sec. 15.
Cited: Inland Lumber etc. Co. v.
Thompson (1905) 11 Ida. 508; 83
Pac. 933.
ARTICLE 6.
STATE BOARD OF EQUALIZATION.
Section
1702.
1703.
1704.
1705.
Constitution of board.
Meeting of board.
Adjournment of board: Sub-
poena for abstracts.
Liability for failure to transmit
abstract.
1706. Equalization of valuations.
1707. Transmission of statement to
county auditor.
1708. Board to prescribe rules.
1709. Record of proceedings.
1710. Assessment of telegraph, tele-
phone and railroad companies.
Section
1711. Same: Time of meeting.
1712. Same: Failure of officer to
furnish list.
1713. Same: Contents of list.
1714. Determination of valuation:
Apportionment.
1715. Statement: Transmission to
county auditor.
1716. Completion of work by board.
1717. Neglect of officers: Punish-
ment.
746
REVENUE
Tit. 10
Constitution of Board.
Sec. 1702. The State Board of Equalization shall consist of the
Governor, Secretary of State, Attorney General, State Auditor and
State Treasurer. The Governor shall be chairman and the State
Auditor shall be secretary of the board. Any three members, in-
cluding the chairman and secretary, shall be a quorum for the trans-
action of business.
Historical: Laws 1901, 233, Sec. 66.
Laws 1893, 72, Sec. 1; re-enacted
Laws 1895, 101, Sec. 15; re-enacted
Laws 1899, 254, Sec. 16.
California Legislation: See Pol.
Code 1872, Sec. 352; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Cross Reference: Board created by-
Constitution, Art. 7, Sec. 12. Duties
with reference to equalization of as-
sessment of net profits of mines: Sec.
1871.
Meeting of Board.
Sec. 1703. The said board shall meet at the State Capital on the
second Monday in August of each year, and if all the abstracts of
original assessments hereinbefore provided for and required to be
transmitted to the State Auditor have been received, such abstracts
shall be laid before said board, which shall then and there proceed to
equalize the valuation of property throughout the State, as herein-
after provided.
Historical: Laws 1901, 23 3, Sec. 67.
Laws 1893, 72, Sec. 2; re-enacted
Laws 1895, 101, Sec. 15; re-enacted
Laws 1899, 254, Sec. 16.
Adjournment of Board: Subpoena for Abstracts.
Sec. 1704. In case the said abstracts have not all been received
by the State Auditor by or before the second Monday in August, the
said board shall adjourn from day to day until said abstracts are re-
ceived, and may issue subpoenas for any officer or officers by this
chapter required to transmit such abstracts, and who have failed to
transmit the same, requiring such officer or officers to appear before
the board forthwith to produce the abstracts herein provided for.
The sheriff of Ada county is hereby designated as the officer by whom
such subpoenas shall be served, and for such services said sheriff
shall be paid the same compensation as is by law provided for similar
services in civil cases.
Historical: Laws 1901, 233, Sec. 68.
Laws 1893, 72, Sec. 3; re-enacted
Laws 1895, 101, Sec. 15; re-enacted
Laws 1899, 254, Sec. 16.
Liability for Failure to Transmit Abstract.
Sec. 1705. The officer so failing to transmit such abstract, shall
be liable on his official bond for the compensation paid said sheriff.
Historical: Laws 1901, 2 33, Sec. 6 9.
Laws 1893, 72, Sec. 3; re-enacted
Laws 1895, 101, Sec. 15; re-enacted
Laws 1899, 254, Sec. 16.
California Legislation: See Pol.
Code 1872, Sec. 3636; Deering's Code,
ib.; as amended: Kerr's Code, ib.
Equalization of Valuations.
Sec. 1706. The State Board shall equalize the valuation of prop-
erty throughout the State as follows :
By classes, as shown by the abstracts transmitted from the vari-
ous counties, county by county; in such equalization said board shall
have power to increase the total valuation of any class of property
Ch. 1. Art. 6. PROPERTY TAXES — STATE EQUALIZATION
747
in the county as shown by the abstracts from that county when, in
the opinion of the board, the valuation of that class, appearing in
said abstract, is not just and equal as compared with the valuation
of other classes of property in that county, or in other counties, be-
cause of its being less than the true valuation, as determined by such
comparison, and the said board shall have power to decrease the
valuation of any class of property, when, in the opinion of the board,
the valuation of that class of property, appearing in the abstract is
not just and equal, as compared with other classes of property in
that county, or in other counties, because of its being in excess of
the true valuation as determined by such comparison.
Second. The State Board shall have power to add to, or deduct
from, the aggregate valuation, as shown by such abstracts, of all
property in any county, such a percentage of such aggregate valua-
tion as may be necessary, in the opinion of the board, to establish
uniformity and equality of valuations among the several counties of
the State.
The rate of the percentage of increase or decrease made by the
board, either in equalizing among the classes of any county or in
equalizing the aggregate of the counties, shall in all cases be even
and not fractional. The increase or decrease made by the board in
equalizing among the counties by aggregate, shall, in no case, increase
or decrease the total valuation of the State, as shown by the total
sum of all valuations as stated in the abstracts returned, by an
amount exceeding fifteen per centum of said total aggregate valuation
of the State.
Third. The State Board of Equalization shall have power to re-
quire the attendance of the assessors of the various counties of the
State at such times and places as may be required by said board to
assist the board in its duties, and the necessary expenses of said as-
sessors in attending such meetings shall be a county charge.
Fourth. The State Board of Equalization, for the purposes of
considering questions of taxation with the assessors of the several
counties of the State, and for such other business as may be brought
before the board, shall meet on the third Monday of January in each
year, and at such other times as the chairman of the board may des-
ignate, but no taxes shall be equalized at said meetings.
Historical: Laws 1901, 233, Sec. 70.
See Laws 1893, 72, Sees. 5, 6; re-en-
acted Laws 1905, 101, Sec. 15; re-en-
acted Laws 1899, 254, Sec. 16; amend-
ed Laws 1899, 452; Sec. 1.
Change in Valuations: Under the
act of 1891, which is superseded oy
this and other sections of the present
law, it was held that the power given
the board to raise or diminish the val-
uation of the several counties could
only be exercised by adding to or de-
ducting from the aggregate valuation
of real and personal property by per-
centage, and that the board had no
power to raise or diminish any class
of property by percentage or other-
wise, nor to assess or fix the value of
any property. Orr v. State Board of
Equalization (1891) 3 Ida. 190; 28
Pac. 416.
Transmission of Statement to County Auditor.
Sec. 1707. Within five days after the State Board shall have com-
pleted the equalization of valuations as by this article provided, the
State Auditor, as secretary of said board, shall transmit by registered
mail to the county auditor of each county, a certified statement
showing the changes, if any, that have been made by said board in
748 REVENUE Tit. 10
the valuation of any class or of all classes of property in. the county
to which such statement is sent, or the changes in the aggregate val-
uation of all property in said county. The county auditor to whom
such statement is sent shall forthwith, upon receipt thereof, proceed
to enter in the assessment book of his county for the then current
year, the changes (if any) that have been certified in such statement.
When the entries herein required to be made by the county auditor
have all been made, the county auditor shall forward to the State
Auditor an affidavit setting forth the fact that all changes certified
to him by the State Auditor have been entered as required by law.
Historical: Laws 1901, 233, Sec. 71.
See Laws 1893, 72, Sec. 7; amended
Laws 1895, 101, Sec. 15; re-enacted
Laws 1899, 254, Sec. 16.
California Legislation: See Pol.
Code 1872, Sec. 3695; Deenng's Code,
ib.; Kerr's Code, ib.
Board to Prescribe Rules.
Sec. 1708. The State Board shall prescribe such rules and regu-
lations, not inconsistent with the provisions of this chapter, as shall
be necessary to carry this chapter into effect ; for the government of
assessors in matters affecting the performance of the duties of the
State Board and for the government of county auditors in the per-
formance of their duties under this chapter; and generally for the
government of county assessors and county auditors as may be re-
quired in connection with the equalization of valuations by said State
Board. The said board shall provide, for the use of the board and of
county auditors, such forms as are herein not otherwise provided for.
Historical: Laws 1901, 233, Sec. 72. Laws 1895, 101, Sec. 15, re-enacted
See Laws 1893, 72, Sec. 8; re-enacted I Laws 1899, 254, Sec. 16.
Record of Proceedings.
Sec. 1709. The State Board shall keep a record of all its proceed-
ings, which, when the board is not in session, shall be in the custody
of the State Auditor, and be at all times subject to inspection by the
public.
Historical: Laws 1901, 233, Sec. 73. I Laws 1895, 101, Sec. 15, re-enacted
Laws 1893, 72, Sec. 8; re-enacted I Laws 1899, 254, Sec. 16.
Assessment of Telegraph, Telephone and Railroad Companies.
Sec. 1710. The State Board of Equalization shall have exclusive
power to assess and value for purposes of taxation all telegraph and
telephone lines and the "railroad track" and "rolling stock" and fran-
chises of all persons, companies, or corporations owning, operating or
constructing any telegraph or telephone lines, or railroads wholly
or partly within this State.
For the purposes of this chapter, "railroad track" shall be deemed
to include the right of way, station, and other necessary grounds,
superstructures upon such right of way, station, and other grounds,
and all other immovable property used, operated, or occupied by any
person, company or corporation, owning, operating or constructing
any line of railroad, wholly or partly within this State, and reasonably
necessary to the maintenance and operation of such road.
For the purposes of this chapter "rolling stock" shall be deemed
Ch. 1. Art. 6. PROPERTY TAXES — STATE EQUALIZATION
749
to include all movable property owned, used, occupied by, or operated
in connection with, any railroad, wholly or partly within this State.
All property belonging to any person, company, or corporation,
owning, operating, or constructing any railroad wholly or partly
within this State, not included within the terms "railroad track" or
"rolling stock/' namely, property not reasonably necessary for the
maintenance and successful operation of such road, consisting of
vacant lots and tracts of lands, and lots and tracts of land together
with the buildings thereon used for non-railroad business purposes;
r:ho tenement and residence property (except section houses) ; also
hotels and eating houses situate more than one hundred feet from
main line track shall be assessed by county assessors as other prop-
ertv is assessed in this State.
Historical: Laws 1901, 233, Sec. 74.
Laws 1893, 72, Sec. 9; re-enacted
Laws 1895, 101, Sec. 15, re-enacted
Laws 1899, 254, Sec. 16.
Cited: McConnel v. St. Bd. etc.
(1905) 11 Ida. 652; 83 Pac. 494.
Assessment of Railroad Property:
Machinery and repair shops or other
buildings not situated on tne strip or
land granted to a railroad as right ot
way by act of Congress March 3, 1875,
should be assessed by the county as-
sessor and not by the Territorial
Board of Equalization. (Declared in-
applicable in view of change of stat-
ute. O. S. L. Ry. v. Gooding, post.)
O. S. L. Ry. v. Yeates (1888) 2 Ida.
397; 17 Pac. 457.
The term, "right of way" as used In
this section, embraces only such land
as is used as a way for the road and
not such additional ground as may be
used for the convenience of the rail-
road, but not as a part of Its way,
such additional ground is to be as-
sessed by the county assessors and not
by the State Board of Equalization. O.
S. L. Ry. v. Gooding (1899) 6 Ida.
773; 59 Pac. 821.
Same: Time of Meeting.
Sec. 1711. The State Board shall meet for the purpose of valuing
and assessing telegraph, telephone and railroad property on the sec-
ond Monday of August of each year, and shall continue in session
from day to day thereafter until such valuation and assessment is
completed.
Historical: Laws 1901, 2 33, Sec. 75.
Laws 1893, 72, Sec. 13; re-enacted
Laws 1895, 101, Sec. 15, re-enacted
Laws 1899, 254, Sec. 16.
Same : Failure of Officer to Furnish List.
Sec. 1712. In case the president, secretary, superintendent or
other principal accounting officer of any person, company or corpo-
ration owning, operating or constructing any telegraph or telephone
line or railroad wholly or partly within this State, fail, neglect, or
refuse to forward to the State Auditor the list required by the fol-
lowing section, by or before the second Monday of August of each
year, then and in that case, the State Board shall proceed to assess
and value, and shall assess and value the property of such person,
company or corporation.
Historical: Laws 1901, 233, Sec. 76.
Laws 1893, 72, Sec. 14; re-enacted
Laws 1895, 101, Sec. 15, re-enacted
Laws 1899, 254, Sec. 16.
Same: Contents of List.
Sec. 1713. The president, secretary, superintendent or other prin-
cipal accounting officer of any person, company or corporation, own-
ing, constructing or operating any telegraph or telephone line or rail-
road wholly or partly within this State, shall list for assessment and
750 REVENUE Tit. 10
taxation all the following described property belonging to, owned,
occupied or operated by such person, company or corporation in this
State, viz: The whole number of miles of telegraph or telephone
line, the number of wires, the number of instruments," the number
of miles of railroad track (main, side and second tracks and turn-
outs being separately stated), the property held for right of way, the
amount and character of improvements, and the stations located on
the right of way; and under the head of "rolling stock" shall list all
movable property owned, used, occupied or operated in connection
with any railroad, wholly or partly within this State.
Such lists shall specifically show the number of miles of such tel-
egraph and telephone line or of "main track" in each county, district,
city and incorporated town or village through which such line or rail-
road passes. And all such lists shall be verified by the oath of such
president, secretary, superintendent or other principal accounting
officer making the same.
Historical: Laws 1901, 233, Sec. 77. Laws 1895, 101, Sec. 15, re-enacted
Laws 1893, 72, Sec. 10; re-enacted I Laws 1899, 254, Sec. 16.
Determination of Valuation: Apportionment.
Sec. 1714. The State Board shall determine the total value of each
telegraph or telephone line and of all instruments used in connection
therewith, and shall apportion such total value among the several
counties into or through which such line passes, in the proportion
which the number of miles of such line situated in each of such coun-
ties respectively bears to the entire length of such line within the
State. The said board shall determine the total value of each railroad
by adding together the value of the franchise, "railroad track" and
"rolling stock" thereof, and shall apportion such total value among
the several counties into or through which the main line of such rail-
road passes, in proportion to the total length of such line in the sev-
eral counties respectively. After the board shall have determined
such total valuation as aforesaid, said board shall assess such tele-
graph, telephone and railroad property for each mile thereof; which
assessed value per mile shall be determined by dividing the total val-
uation, as determined by said board, by the number of miles of main
line, or main track within the State.
Historical: Laws 1901, 233, Sec. 78. I Laws 1895, 101, Sec. 15, re-enacted
Laws 1893, 72, Sec. 11; re-enacted I Laws 1899, 254, Sec. 16.
Statement: Transmission to County Auditor.
Sec. 1715. When the total valuation of the telegraph, telephone
and railroad property has been determined and assessed and ap-
portioned as provided in Section 1714, the State Auditor shall
prepare a statement to be sent to each county in which such tel-
egraph, telephone or railroad property may be situated, specifying
the number of miles of such line or road within the county, the as-
sessed value per mile and the number of miles of main line or main
track in each district, city or incorporated town therein. Such state-
ment shall be certified by the State Auditor and sent to the county
auditor of each county in which any part of such telegraph, telephone
or railroad property may be situated, and shall be sent at the same
Ch. 1. Art. 6 PROPERTY TAXES — STATE EQUALIZATION
751
time that the statements provided for in Section 1707, are trans-
mitted.
The county auditor of each county to which such statement is
sent shall immediately enter in the assessment book for that year the
amount of such telegraph, telephone or railroad property so certi-
fied, and the assessed value thereof, to the proper owner, and said
county auditor shall also divide and adjust among the several dis-
tricts, cities and incorporated towns and villages, independent school
districts, and cities, towns and villages, organized under special laws
or charters that are authorized as provided by law to adopt the pro-
visions of this chapter, the proper amount and value of such property
falling within each respectively; and for such purpose the auditor
shall be furnished each year by the assessor with a statement of the
number of miles of main track within each such revenue district.
Historical: Laws 1901, 233, Sec. 79.
See Laws 1893, 72, Sec. 12: amended
Laws 1895, 101, Sec. 15; re-enacted
Laws 1899, 254, Sec. 16.
Completion of Work by Board.
Sec. 1716. The State Board of Equalization must complete the
assessment, valuation and equalization of all property hereinbefore
mentioned on the fourth Monday in August of each year, and on that
day it shall be their duty to ascertain the total assessed valuation of
all property subject to taxation in the State. The State Board of
Equalization shall on that day determine the amount of the State tax
which each county must pay to the State, by apportioning the aggre-
gate tax among the several counties of the State in the exact pro-
portion that the total assessed valuation of each county, as shown by
the assessment roll and subsequent assessment roll thereof for the
year next preceding, bears to the aggregate assessment valuation of
all the counties of this State for such preceding year; and for pur-
pose of ascertaining such several and aggregate valuations, the
board shall examine the annual reports of valuations made by the
county auditors to the State Auditor, and such other reports as they
may deem necessary.
The amount of State tax so found to be due from each county shall
be certified to the county auditors 01 the several counties by the State
Auditor, and said county auditors shall file the same with the board
of county commissioners.
Historical: Laws 1901, 233, Sec. 80.
Laws 189 5, 101, Sec. 15; re-enacted
Laws 1899, 254, Sec. 16.
Assessment Against Counties: The
sum assessed against the various
counties under and by virtue of this
section is not a judgment against the
counties, which must be paid without
deduction from anv cause. State v.
Ada Co. (1900) 7 Ida. 261; 6 2 Pat-.
45 7.
Neglect of Officers: Punishment.
Sec. 1717. Any officer required by this article to perform any ser-
vice who shall fail, neglect or refuse to perform such duty shall be
guilty of a misdemeanor, and shall be punished by a fine of not less
than one hundred dollars and not more than three hundred dollars.
Historical: Laws 1901, 233, Sec. 81.
See Laws 1893, 72, Sec. 15; re-enacted
Laws 1895, 101, Sec. 15; Laws 1899,
254, Sec. 16. "Article" instead of
chapter" inserted for "act." While
the 1901 law reads "act" and the pro-
vision would therefore seem applica-
ble to the whole chapter, the 1901
law is. in this respect, a re-enactment
of the 1893 law, which relates solely
to the State Board of Equalization — ■
the subject matter of this article.
Vol. 1-— 25
752
REVENUE
Tit. 10
ARTICLE 7.
ASSESSMEXT BOOK AND ASSESSMENT ROLLS.
Section
1718.
1719.
1720.
1721.
1722.
1723.
1724.
Description
Cor-
Assessment book:
and contents.
Same: Form of book.
Duties of county auditor:
rections and changes.
Same: Certificate and affidavit.
Tabulated statement.
Transmission of state-
Same:
Same:
ment.
Same:
Delivery of assessment
book to tax collector.
Section
1725. Same: Taxes charged to col-
lector.
172 6. Printing of assessment rolls.
172 7. Completion of assessment roll:
Affidavit.
1728. Notice of equalization.
172 9. Failure to complete book: Pen-
alty.
1730. Verification of statements.
Assessment Book: Description and Contents.
Sec. 1718. The State Auditor may have printed each year an as-
sessment book, and also subsequent and delinquent assessment books,
in the form herein provided, for each county in the State: Provided,
That any county so specifying may have such subsequent assessment
book bound with the assessment book, occupying the final requisite
number of pages, as may be indicated, in which must be listed by the
assessor, alphabetically arranged according to the owner's name, all
property within the county; and in which must be specified, in sepa-
rate columns, according to the classification provided for by the form
of assessment roll under the appropriate head ; when no head is given
in case of personal property then under the head "not otherwise
classified. "
Such listing shall include : The name and residence of the person
to whom the property is assessed. Land, by township, range, section,
or fractional section; and when such land is not described as a Con-
gressional division or subdivision, by metes and bounds, or other de-
scription sufficient to identify it, giving an estimate of the number of
acres, and localty. The kind of improvements on land, when con-
sisting of improvements on mining claims, quartz mills, concentra-
tors, samplers, smelters, or other mining improvements, grist mills,
saw mills, planing mills, shingle mills, mining, manufacturing, or ir-
rigating ditches or toll roads. Franchises shall be listed in the column
for improvements on real estate. When any tract of land is situated
in two or more school or road or other revenue districts of the county,
the part in each district must be separately designated, together with
the improvements thereon. City, and town lots, naming the city or
town and the number of the lot and block, according to the system of
numbering in such city or town, and improvements thereon.
All personal property shall be listed and classified as required by
the form of the assessment roll showing the kind, number and qual-
ity ; cattle shall be listed as thoroughbred, graded, common stock, beef,
oxen; cows shall be listed separately; and horses shall be listed as
thoroughbred, graded, common stock, stallions, and colts, jacks, jen-
nets, or mules ; sheep and goats shall be listed together ; sheep as im-
ported, fine, graded and common; goats, common and Angora; and
other property as provided for by the form of the assessment roll;
but a failure to enumerate and classify in detail such personal prop-
erty does not invalidate the assessment, but the assessor shall forfeit
Ch. 1. Art. 7. PROPERTY TAXES — ASSESSMENT ROLLS
753
the sum of one hundred dollars for any failure to fully enumerate
and classify the classes of property according to the classification here-
in provided for, or according to the requirements of the form of assess-
ment roll herein designated, to be recovered on his official bond for the
o?.e of the county. All classifications may be made by abbreviating to
the first letter, or first two letters when recessary to avoid confusion, of
the word or words necessary to indicate the class or kind of property.
The cash value of real estate, other than city or town lots. The kind
and cash value of improvements on such real estate. The cash value
of city or town lots. The cash value of improvements on city and
town lots. The cash value of all personal property, exclusive of
money, enumerating the several classes according to the subdivision
of the assessment roll therefor. The amount of money. The school,
road, and other revenue districts m which each piece of property as-
sessed is situated. The total value of all property. The total value
of property after equalization. The words "yes" and "no" in sepa-
rate column, opposite the name of every person assessed as to whether
liable to pay a poll tax, and if not liable, a statement of why exempt.
Historical: Laws 1901, 233, Sec. 88.
See Rev. St. 1887, See. 1451; amended
Laws 1895, 101, Sec. 8; re-enacted
Laws 1899, 254, Sec. 8.
California Legislation: See Pol.
Code 1872, Sec. 3650; as amended:
Deering's Code, ib.; as amended:
Kerr's Code, ib.
Assessment Roll: The columns in
the assessment roll must be properly
filled and the totals of taxes carried
out in a separate money column; an
assessment is invalid where the dif-
ferent kinds of taxes are not separately
set down in the assessment roll. Peo-
ple v. Moore (1877) 1 Ida. 662.
Under the revenue act of 1869 it
was held that possessory claims in
public lands must be listed as real es-
tate, whereas improvements thereon
must be listed as personal property.
People v. Owvhee Mining Co. (1871)
1 Ida. 409.
Same: Form of Book.
Sec. 1719. The form of the assessment book must be substantially
as follows:
[See form.]
(Subsequent and delinquent assessment rolls to be in the same
form, except that such changes as are required by reason of the char-
acter of the roll shall be made.)
Historical: Laws 1901, 2 33, Sec. 8 9.
See Rev. St. 1887, Sec. 1452; amended
Laws 1895, 101, Sec. 9; re-enacted
Laws 1899, 254, Sec. 9.
California Legislation: See Pol.
Code 1872, Sec. 3651; a? amended:
Deering's Code, ib.; as amended:
Kerr's Code, ib.
Duties of County Auditor: Corrections and Changes.
Sec. 1720. The county auditor must, as soon as he shall receive
notice from the State Board of Equalization, by the certificate of the
State Auditor, of any changes in the assessed valuation, and of the
assessment of railway, telegraph, or telephone property in said
county, make the corrections or changes ordered by the State Board
of Equalization, add up the valuations, and enter the total valuation
of each kind of property, and the total valuation of all property, on
the assessment book, and make report thereof to the board of county
commissioners, for the purpose of making the county and other tax
levies thereon, and when such levy or levies have been made, he shall
carry out, on the assessment book in a separate money column, the
754
REVENUE
Tit. 10
totals of taxes composed of State, county and other taxes to each
person.
Laws 1895, 101, Sec. 16;
Laws 1899, 254, Sec. 17.
re-enacted
Historical: Laws 1901, 233, Sec. 82.
See Rev. St. 1887, Sec. 1500; amended
Same: Certificate and Affidavit.
Sec. 1721. The county auditor shall make and transmit to the
State Auditor an affidavit showing that such duties have been per-
formed as herein required, and shall also forward to the State Audi-
tor a certificate showing the total assessed valuation of such county
after such changes have been made, and said auditor shall, upon the
correction of the assessment roll after equalization, certify to the
governing authority of cities, towns, villages, and independent school
districts, situated within his county, and that are authorized by law
to collect revenue in the manner provided herein, the total valuation
of the property in each such city, town, village and independent school
district. When thereafter the authority to which is delegated by law
the power to levy taxes in such cities, towns, villages and independent
school districts, shall file with the auditor the levy made for such
cities, towns, villages, and independent school districts, he shall carry
out on the assessment roll, the total taxes for each of such cities, towns,
villages and independent school districts, as required for State and
county purposes.
Historical: Laws 1901, 233, Sec. 83.
Cited: McConnel v. State Board,
etc. (1905) 11 Ida. 652; 83 Pac. 494.
Same: Tabulated Statement.
Sec. 1722. The county auditor must, on or before the second Mon-
day of September in each year, prepare from the "assessment book"
as finally corrected and equalized, and also from all subsequent as-
sessments of such year, a statement showing in separate columns :
1. The total value of all property.
2. The value of real estate.
3. The value of improvements thereon.
4. The value of personal property, exclusive of money.
5. The amount of money.
Historical: Laws 1901. 2 33, Sec. 84.
See Rev. St. 1887, Sec. 1501; amended
Laws 1895, 101, Sec. 17; re-enacted
Laws 1899, 254, Sec. IS.
California Legislation: Similar:
Pol. Code 1872, Sec. 3728; Deering's
Code, ib.; as amended: Kerr's Code,
ib.
Same: Transmission of Statement.
Sec. 1723. The auditor must, as soon as such statement is pre-
pared, transmit it by mail or express to the State Auditor.
Historical: Laws 1901, 233, Sec. 85.
See Rev. St. 1887, Sec. 1502.
California Legislation: See Pol.
Code 1872, Sec. 3729; Deering's Code,
ib.; Kerr's Code, ib.
Same: Delivery of Assessment Book to Tax Collector.
Sec. 1724. On or before the second Monday of September, he must
deliver the corrected assessment book to the tax collector, with an
affidavit attached thereto, and by him subscribed as follows :
"I , do solemnly swear that, as clerk of the board
Ch. 1, Art. 7. PROPERTY TAXES — ASSESSMENT ROLLS
755
of commissioners of county, I have kept correct minutes
of all the acts of the board touching alterations in the assessment
book ; that all alterations agreed to and directed to be made have been
made and entered in the book, and that no changes or alterations have
been made therein, except those authorized ; and that as auditor I have
reckoned the respective sums due as taxes, and have added up the
columns of valuations and taxes, as required by law."
Historical: Laws 1901, 233. Sec. 86.
Rev. St. 1887, Sec. 1503.
California Legislation: See Pol.
Code 1872, Sec. 3732; as amended:
Deering's Code, ib.; as amended
Kerr's Code, ib.
Same: Taxes Charged to Collector.
Sec. 1725. On delivering the assessment book to the tax collector,
the auditor must charge the tax collector with the full amount of the
taxes levied and forthwith transmit by mail to the State Auditor a
statement of the amount so charged.
Historical: Laws 1901, 233, Sec. 87.
Rev. St. 1887, Sec. 1504.
California Legislation: Similar:
Pol. Code 1872, Sec. 3734; as amend-
ed: Deering's Code, ib. ; further
amended: Kerr's Code, ib.
Printing of Assessment Rolls.
Sec. 1726. The State Auditor may have, each year, such a num-
ber of assessment, subsequent and delinquent assessment rolls printed
in such form, appropriate changes being made to adapt the same to
the necessities of subsequent and delinquent rolls, and uniformly,
stoutly and economically bound and supplied with detached leather
alphabetical tabs, in number sufficient to enable him to furnish one of
each such rolls, to each county in the State. He shall let the printing
and binding of all such rolls in any one year to a single firm or con-
cern at the most reasonable rate obtainable for the work, which, in all
cases, must be of good quality. Each assessor in the several counties
of the State shall, on or before the first day of May in each year pre-
ceding the year for which such roll is required, notify the State Aud-
itor of the number of pages required by him in the assessment, sub-
sequent and delinquent assessment rolls of his county, and also of the
number of tax statements required by him for the year; and there-
upon the State Auditor shall have such tax statements so printed, and
such assessment, subsequent and delinquent assessment rolls printed
and bound with the number of pages required by each, and the name
of the county and the year inserted in the assessment book and tax
statement forms to make the same appropriate for each county; and
he shall provide that such assessment rolls by him ordered shall be
sent by the makers thereof direct to the assessors of the several
counties ; payment therefor to be made by the State, and shall be col-
lected and paid for as other claims against the State are. The State
Auditor shall certify to the State Board of Equalization the amount
for which each county is chargeable on account of such assessment
roll and tax statement which shall be the actual cost thereof to the
State; and thereupon the State Board shall add such amounts to the
amount of State tax apportioned to such county to be paid as a part
of such State tax.
Historical: Laws 1901, 233, Sec. 90.
756
REVENUE
Tit. 10
Completion of Assessment Roll: Affidavit.
Sec. 1727. On or before the first day of July in each year the
assessor must complete his assessment roll. He and his deputies
must take and subscribe an affidavit in the assessment book, to be
substantially as follows:
I, , assessor (or deputy assessor, as the case may be)
of county, do swear that between the second Monday
in January and the first day of July, nineteen hundred and , I
have made diligent inquiry and examination to ascertain all the prop-
erty, real and personal, within the county, (or within the subdivision
thereof assessed by me, as the case may be) subject to as-
sessment by me, and that the same has been listed and assessed on
the assessment book, equally and uniformly, according to the best of
my judgment, information and belief, at its full cash value ; and that
I have faithfully complied with all the duties imposed on the assessor
under the revenue laws; and that I have not imposed any unjust or
double assessment through malice or ill-will or otherwise; nor al-
lowed anyone to escape a just and equal assessment through favor or
reward or otherwise.
But the failure to take or subscribe such affidavit as required by
this section shall not in any manner affect the validity of the assess-
ment. The making of such affidavit is declared, however, to be a
duty pertaining to the office of every assessor in this State, and when
the same is to be made by the deputy assessor, it shall be the duty of
the assessor to have the same properly made. In every case where the
said affidavit is omitted from any assessment roll so completed as
aforesaid, the board of equalization of the county must require the
assessor to make the same or to have the same made by the deputy
assessor, and upon the refusal or neglect of such assessor to supply
such affidavit forthwith, the chairman of the board of county com-
missioners must immediately file, in the District Court of the county,
an information, in writing, verified by his oath, charging such asses-
sor with refusal or neglect to perform the official duties pertaining to
his office, and thereupon he must be proceeded against as in such case
provided by law.
Historical: Laws 1901, 233, Sec. 91.
See Rev. St. 1887, Sec. 1453; amended
Laws 1895, 101, Sec. 10; amended
Laws 1897, 10, Sec. 1; also 30, Sec.
4; re-enacted Laws 1899, 254, Sec. 10.
California Legislation: Similar in
Part: Pol. Code 1872, Sec. 3652; as
amended: Deering's Code, ib. ; Kerr's
Code, ib.
Cited: Inland Lumber etc. Co. v.
Thompson (1905) 11 Ida. 508; 83 Pac.
933.
Notice of Equalization.
Sec. 1728. As soon as completed, the assessment book, together
with the statements, must be delivered to the clerk of the board of
county commissioners, who must immediately give notice thereof, and
of the time the board will meet to equalize assessments, by publica-
tion in a newspaper, if any is printed in the county; if none, then in
such manner as the board may direct, and in the meantime the as-
sessment book must remain in his office for the inspection of all per-
sons interested.
Historical: Laws 1901, 233, Sec. 92.
Rev. St. 1887, Sec. 1454.
California Legislation: Same except
"map book and" inserted before
Ch. 1. Art. 8.
PROPERTY TAXES — PAYMENT
757
"statements", line 2, and "supervi-
sors" for "commissioners", line 3: Pol.
Code 1872, Sec. 3654: Deering's Code,
ib. ; similar as amended: Kerr's Code,
lb!
Cited: Inland Lumber etc. Co. v.
Thompson (1905) 11 Ida. 508; 83 Pac.
933.
Failure to Complete Book: Penalty.
Sec. 1729. Every assessor who fails to complete his assessment
book forfeits the sum of one thousand dollars, to be recovered on his
official bond for the use of the county.
Historical: Laws 1901, 2 33, Sec. 93.
See Rev. St. 1887, Sec. 1455. "As-
sessor" inserted for "auditor". The
assessor makes out the delinquent list.
See Sec. 1727, ante.
California Legislation: See Pol.
Code 1872, Sec. 3656; Deering's Code,
ib.; similar as amended: Kerr's Code,
ib.
Verification of Statements.
Sec. 1730. The auditor must verify by his affidavit attached there-
to all statements made by him under the provisions of this chapter.
Historical: Laws 1901, 233, Sec. 94.
Rev. St. 1887, Sec. 1505.
California Legislation: Same except
"title" for "chapter": Pol. Code 1872,
Sec. 3735; Deering's Code, ib.; Kerr's
Code, ib.
ARTICLE 8.
PAYMENT OF TAXES BEFORE DELINQUENCY.
L
When taxes become delinquent.
No taxes collected between
certain dates.
Delivery of delinquent list and
assessment roll.
Same: Contents of list.
Settlement with tax collector.
Charge to tax collector. Addi-
tion of penalty.
Publishing Notice of Delinquency.
Sec. 1731. Within ten days after the receipt of the assessment
book (the tax collector must publish a notice specifying that taxes
will become delinquent on the first Monday in January next there-
after, and that unless paid prior thereto ten per cent penalty will
be added thereon, with such other costs as may be provided by law.
Section
Sectic
1731.
Publishing- notice of delin-
1737.
quency.
1738.
1732.
Same: Period of publication.
1733.
Taxes payable in money.
1739.
1734.
Payment of tax: Marking
book: Receipts.
1740.
1735.
Receipts supplied by State
174L
Auditor.
1742.
1736.
Taxes due from estates.
Historical: Laws 1901, 2 33, Sec. 95.
See Rev. St. 1887, Sec. 1515; amended
Laws 1895, 101, Sec. 18; amended
Laws 1899, 254, Sec. 19.
California Legislation: Similar:
Pol. Code 1872, Sec. 3746; similar as
amended: Deering's Code, ib.; as
amended: Kerr's Code, ib.
Same: Period of Publication.
Sec. 1732. The notice in every case must be published for two
weeks in some weekly or daily newspaper published in the county,
if there is one; or if there is not, then by posting it in five public
places in the county.
Historical: Laws 1901, 233, Sec. 96.
Rev. St. 1887, Sec. 1516.
California Legislation: Same except
three public places in each town-
ship" for "five public places in the
county": Pol. Code 1872, Sec. 3749;
Deering's Code, ib.; Kerr's Code, ib.
758
REVENUE
Tit. 10
Taxes Payable in Money.
Sec. 1733. Taxes must be paid in lawful money of the United
States.
Historical: Laws 1901, 233, Sec. 173.
Rev. St. 1887, Sec. 1707.
California Legislation: See Pol.
Code 1872, Sec. 3888; Deering's Code,
ib.; same with additional provision as
amended: Kerr's Code, ib.
Payment of Tax: Marking Book: Receipts.
Sec. 1734. The tax collector must mark the date of payment of
any tax in the assessment book, opposite the name of the person
paying. It shall be the duty of the State Auditor, if required by
the county commissioners, to have the tax receipts printed; the style
of printing such receipts shall be such as to enable the making of a
carbon copy of each receipt, which shall remain bound in the receipt
book, the original being detachable, and the year for which they are
intended must be printed in skeleton type in red on the receipts as
well as on the duplicates. But nothing in this chapter relating to
the furnishing of tax statements, assessment rolls, tax receipts or
other forms or books, by the State Auditor shall be construed so as
to prohibit the board of county commissioners, in any county, from
themselves contracting for such supplies or any part thereof: Pro-
vided, All such supplies by them contracted for shall conform in all
respects to the requirements of this chapter : And, Provided, further,
That the board of county commissioners, so electing to contract, shall
have notified the State Auditor of such election on or before the
twentieth day of July, 1901. The said receipt shall be in the follow-
ing form:
[See form.]
Historical: Laws 1901, 233, Sec. 97.
See. Rev. St. 1887, Sees. 1517, 1518;
amended Laws 1897, 94, Sec. 2; re-
enacted Laws 1899, 254, Sec. 24.
California Legislation: Same
through "paying", line 3. rest omitted;
Pol. Code 1872, Sec. 3750; Deering's
Code, ib.; similar as amended: Kerr's
Code, ib.
Receipts Supplied by State Auditor.
Sec. 1735. The said receipts shall be supplied to the assessors of
the several counties by the State Auditor, in number as ordered by
each, at the same time ordering their assessment books and tax state-
ment blanks; and shall be chargeable to the several counties at the
actual cost thereof to the State. The same shall be collected in the
manner provided herein for the collection of the amounts chargeable
for assessment rolls and tax statement blanks. No receipts for prop-
erty taxes other than those mentioned in this section must be used
or given by the tax collector for the payment of any such taxes.
Historical: Laws 1901, 2 33, Sec. 98.
Taxes Due From Estates.
Sec. 1736. The probate judge must require every administrator
and executor to pay out of the funds of the estate all taxes due from
such estate ; and no order or decree for the distribution of any prop-
erty of any decedent among the heirs or devisees must be made until
all taxes against it are paid.
Ch. 1. Art. 8.
PROPERTY TAXES — PAYMENT
759
Historical: Laws 1901, 233, Sec. 99.
Rev. St. 1887, Sec. 1519.
California Legislation: Same except
"the estate" for "it", last line: Pol.
Code 1872, Sec. 3752; similar as
ib.;
as
amended: Deering's Code,
amended: Kerr's Code, ib.
Cross Reference: Taxes must be
paid before distribution is made: Sec.
5630.
When Taxes Become Delinquent.
Sec. 1737. On the first Monday in January of each year all unpaid
taxes are delinquent, and thereafter the tax collector must collect
thereon for the use of the county and city, town, village and inde-
pendent school district authorized to collect revenue in the manner
provided by this chapter, a penalty of ten per cent and other costs
provided by law.
Application: This section only ap-
plies to property taxes and does not
apply to poll taxes which become de-
linquent on the second Monday in De-
cember. Sponberg v. Oneida Co.
(1899) 6 Ida. 722; 59 Pac. 532.
Historical: Laws 1901, 233, Sec. 103.
See Rev. St. 1887, Sec. 1523; amended
Laws 1895, 101, Sec. 19; re-enacted
Laws 1899, 254, Sec. 20.
California Legislation: Similar
but penalty five per cent and other
costs: Pol. Code 1872, Sec. 3756; as
amended: Deering's Code, ib.; further
amended: Kerr's Code, ib.
No Taxes Collected Between Certain Dates.
Sec. 1738. No taxes shall be collected or received from the first
Monday of January to the fourth Monday of January, inclusive in
each year.
Historical: Laws 1901, 2 33, Sec. 104.
See Rev. St. 1887, Sec. 1524; amended
Laws 1895, 101, Sec. 20; re-enacted
Laws 1899, 254, Sec. 21.
California Legislation: Similar but
"third Monday" for "fourth Monday";
Pol. Code 1872, Sec. 3757; repealed
1873.
Delivery of Delinquent List and Assessment Roll.
Sec. 1739. The tax collector must make out and, on the fourth
Monday in January, deliver to the county auditor a complete delin-
quent list of all property and persons then owing taxes, and must
deliver his assessment roll to the auditor to remain on file in his
office; he must at the same time certify to the governing authority
of cities, towns, villages and independent school districts in his
county, authorized by law to collect revenue in the manner provided
by this chapter, a complete delinquent list of all persons then owing
taxes to such city and independent school district.
Historical: Laws 1901, 233, Sec. 105.
See Rev. St. 1887, Sec. 1525; amended
Laws 1895, 101, Sec. 21; re-enacted
Laws 1899, 254, Sec. 22.
California Legislation: Similar
through "taxes", line 3, rest omitted:
Pol. Code 1872, Sec. 3759; Deering's
Code, ib.; similar as amended: Kerr's
Code, ib.
Same: Contents of List.
Sec. 1740. In the list so delivered must be set down in alphabetical
order all matters and things contained in the assessment book and
relating to delinquent persons or property.
Historical: Laws 1901, 233, Sec. 106.
Rev. St. 1887, Sec. 1526.
California Legislation: Same except
numerical or" inserted before "al-
phabetical": Pol. Code 1872, Sec.
3760; Deering-'s Code, ib.; Kerr's Code,
ib.
760
REVENUE
Tit. 10
Settlement With Tax Collector.
Sec. 1741. The auditor must carefully compare the list with the
assessment book, and if satisfied that it contains a full and true
statement of all taxes due and unpaid, he must foot up the total
amount of taxes so remaining unpaid, credit the tax collector who
acted under it therewith, and make a final statement with him of all
taxes charged against him on the assessment book, and must require
from him the treasurer's receipt for any existing deficiency.
Historical: Laws 1901, 233, Sec. 107.
See Rev. St. 1887, Sec. 1527.
California Legislation : Similar:
Pol. Code 1872,* Sec. 3761; Deering's
Code, ib.; Kerr's Code, ib.
Charge to Tax Collector: Addition of Penalty.
Sec. 1742. After settlement with the tax collector, as prescribed
in the preceding section, the auditor must charge the tax collector
with the amount of taxes due on the delinquent tax list, with ten
per cent added thereto, and deliver the list, duly certified, to such
tax collector.
Historical: Laws 1901, 233, Sec. 108.
Rev. St. 1887, Sec. 1528.
California Legislation: Similar:
Pol. Code 1872, Sec. 3762; Deering's
Code, ib.; similar as amended: Kerr's
Code, ib.
ARTICLE 9.
SALES OF REAL PROPERTY FOR DELINQUENT TAXES.
Re-sale.
Refusal to pay: Rejection of
subsequent bids.
Certificate of sale.
Same: Signature.
Entry of certificates.
Lien of purchaser: Certificate
of sales.
Issuance of deed.
Effect of deed as evidence.
Same.
Same: Effect as conveyance.
Assessment book and delin-
quent list as evidence.
Comparison of delinquent list
with assessment book.
Final settlement with collector.
Publication of Delinquent List.
Sec. 1743. On or before the fourth Monday in May, the tax col-
lector must publish the delinquent list, which must contain the
names of the persons, and a description of the property, delinquent,
and the amount of the taxes and penalties and costs due, opposite
each name and description, with the taxes due on personal property,
added to taxes on real estate where the real estate is liable therefor,
or the several taxes are due from the same person, for the purpose
of making which publication the board of county commissioners
Section
Section
1743.
Publication of delinquent list.
1757.
1744.
Notice appended to list.
1758.
1745.
Period of publication.
1746.
Designation of time and place
of sale.
1759.
1760.
1747.
Time and place of sale.
1761.
1748.
Affidavit of publication.
1762.
1749.
Collection of cost of publica-
tion.
1763.
1750.
Commencement of sale.
1764.
1751.
1752.
Postponement and adjourn-
ment.
Sales of less than whole tracts.
1765.
1766.
1767.
1753.
Amount of property to be sold.
1754.
Sales to county: Subsequent as-
sessment.
1768.
1755.
Taxes accruing on property
sold to county.
1769.
1756.
Rights of cities, etc., on de-
livery of tax deeds to county.
Ch. 1. Art. 9. PROPERTY TAXES — SALES OF REALTY
761
may allow the publisher not exceeding the sum of twenty-five cents
for each description of property advertised.
Historical: Laws 1901, 233, Sec. 109.
See Rev. St. 1887, Sec. 1530; amended
Laws 1895, 101, Sec. 22; re-enacted
Laws 1899, 254, Sec. 23.
California Legislation : Similar but
"the first Monday in February" for
"tlie fourth Monday in May", and con-
cluding' clause omitted: Pol. Code
187?, Sec. 3764; similar as amended:
Deering's Code, ib.; rurther amended:
Kerr's Code, ib.
Publication of Delinquent List: This
section does not authorize the asses-
sor to audit and allow a publisher's
claim for publishing the delinquent
tax list, but such claim must be aud-
ited by the board of county commis-
sioners. Jolly v. Woodward (1895) 4
Ida. 496; 42 Pac. 512.
Notice Appended to List.
Sec. 1744. The tax collector must append and publish with the
delinquent list a notice that unless the taxes delinquent, together
with the costs and penalties, are paid, the real property upon which
such taxes are a lien will be sold at public auction.
Historical: Laws 1901, 233, Sec. 110.
Rev St. 1887, Sec. 1531.
California Legislation: Same except
"percentage" for "penalties", line 3:
Pol. Code 1872, Sec. 3765: Deering-'s
Code, ib.; same as amended except "at
public auction" omitted: Kerr's Code,
ib.
Period of Publication.
Sec. 1745. The publication must be made in a newspaper, or sup-
plement thereto, once a week for three consecutive weeks published
in the county; if it cannot be so published, then by posting in not
less than three public places in the county, one of which shall be at
the court house door.
Historical: Laws 1901, 2 33, Sec. 111.
See Rev. St. 1887, Sec. 1532; amended
Laws 1891, 235; amended Laws 1899,
254, Sec. 24.
California Legislation: Similar
Pol. Code 1872, Sec. 3766; similar as
amended with additional provisions:
Deering's Code, ib.; as amended:
Kerr's Code, lb.
Compensation for Publication: This
section does not give the assessor the
authority to fix by contract the com-
pensation to be paid for publishing de-
linquent tax lists. Jolly v. Latah Co.
(1897) 5 Ida. 301; 48 Pac. 1063.
Designation of Time and Place of Sale.
Sec. 1746. The publication must designate the time and place
of sale.
Historical: Laws 1901, 233, Sec. 112.
Rev. St. 1887, Sec. 1533.
California Legislation: Same: Pol.
Code 1872, Sec. 3767; Deering's Code,
ib.; similar in part as amended: Kerr's
Code, ib.
Time and Place of Sale.
Sec. 1747. The time of sale must not be less than forty-two nor
more than fifty days from the first publication, and the place must
be in front of the county court house.
Historical: Laws 1901, 233, Sec. 113.
Rev. St. 1887, Sec. 1534.
California Legislation: Different:
Pol. Code 1872, Sec. 3768; as amend-
ed: Deering's Code, ib.; repealed
190 5. See Kerr's Pol. Code, Sec. 3767.
Affidavit of Publication.
Sec. 1748. The collector, as soon as he has made the publication
required, must file with the county auditor a copy of the publication.
762
REVENUE
Tit. 10
with an affidavit attached thereto that it is a true copy of the same:
that the publication was made in a newspaper or supplement thereof,
stating its name and place of publication, and the date of eacn
appearance; and in case there was no newspaper published in the
county, that notices were put up in three public places in the county,
designating the places therein, which affidavit is prima facie evidence
of all the facts stated therein. Thereupon the auditor shall charge
the assessor twenty-five cents for each description of property con-
tained therein.
Historical: Laws 1901, 233, Sec. 114.
See Rev. St. 1887, Sec. 1535.
California Legislation: Similar with
last sentence omitted: Pol. Code 1872,
Sec. 3769; Deering's Code, ib.; Kerr's
Code, ib.
Collection of Cost of Publication.
Sec. 1749. The collector must collect, in addition to the taxes due
on the delinquent list and the penalty added thereto by law, twenty-
five cents on each lot, piece or tract of land separately described and
assessed, and on the assessment of personal property, which must
be paid into the county treasury.
Historical: Laws 1901, 233, Sec. 115.
See Rev. St. 1887, Sec. 1536; amended
Laws 1895, 101, Sec. 23; re-enacted
Laws 1899, 254, Sec. 25.
California Legislation: Different:
Pol. Code 1872, Sec. 3770; Deering's
Code, ib.; as amended: Kerr's Code, ib.
Commencement of Sale.
Sec. 1750. On the day fixed for the sale, or some subsequent day
to which he may have postponed it, of which he must give notice
as in the next section provided, the collector, between the hours of
ten o'clock a. m. and three o'clock p. m., must commence the sale of
the property advertised, commencing at the head of the list and con-
tinuing alphabetically, or in the numerical order of lots and blocks,
until completed.
Historical: Laws 1901, 233, Sec. 116.
Rev. St. 1887, Sec. 1537.
California Legislation: Same except
"as in the next section provided",
line 3, omitted: Pol. Code 1872, Sec.
3771; Deering's Code, ib. ; different as
amended: Kerr's Code;: ib.
Postponement and Adjournment.
Sec. 1751. He must postpone the day of commencing the sale, by
public announcement on the day and at the time and place fixed for
the sale in the original or any amended published notice thereof, and
he may adjourn the sale from day to day by public announcement
of such adjournment made at the time and place for such adjourned
sale; but the sale must be completed within two weeks from the day
first fixed.
Historical: Laws 1901, 233, Sec. 117.
See Rev. St. 1887, Sec. 1538.
California Legislation: Different:
Pol. Code 1872, Sec. 3772; Deering's
Code, ib.
Sales of Less Than Whole Tracts.
Sec. 1752. The owner or person in possession of any real estate
offered for sale for taxes due thereon, may designate, in writing, to
the tax collector, prior to the sale, what portion of the property
embraced in each separate description he wishes sold, if less than
Ch. 1. Art. 9. PROPERTY TAXES — SALES OF REALTY
763
the whole; but if the owner or possessor does not, then the collector
may designate it and the person who will take the least quantity of
the land, or in case an undivided interest is assessed, then the smallest
portion of the interest, and pay the taxes, penalties and costs due,
including fifty cents to the collector for the duplicate certificate of
sale, is the purchaser. But in case there is no purchaser in good
faith for a portion not less than the whole of the property embraced
in any one separate description, the assessor may sell the whole
thereof, and if there is then no purchaser on the first day that the
property is offered for sale then when the property is offered
thereafter for sale and there is no purchaser in good faith of
the same, the whole amount of the property assessed in any or
separate description shall be struck off to the county or the purchaser,
and the duplicate certificate delivered to the county treasurer and
filed by him in his office. No charge shall be made for the duplicate
certificate when the county is a purchaser; and in such case the tax
collector shall make an entry, "Sold to the county," on the delinquent
list opposite the tax, and he shall be credited with the amount thereof
in his settlement: Provided, The original certificates have been filed
with the auditor.
Historical: Laws 1901, 233, Sec. 118.
See Rev. St. 1887, Sec. 1539.
California Legislation: Similar
through first sentence: Pol. Code 1872,
Sec. 3773; similar as amended: Deer-
ing's Code, ib.; repealed 1895.
Amount of Property to Be Sold.
Sec. 1753. Each tax sale, and the certificate therefor, shall be for
such portion less than the whole amount of property embraced in
any one separate description as the purchaser may agree to purchase ;
but in no case shall any sale be made, or tax certificate issued, for
more property than is embraced in any one separate description of
real estate and such personal property as may be assessed to the
owner thereof, unless, in the judgment of the assessor, a greater
number of pieces of real estate are necessary to be included to secure
the lien of the tax for personal property thereon ; in which case the
several pieces of real estate selected by the assessor to be sold with
the personal property, shall be included in the sale and tax certificate ;
every tax certificate so issued can be redeemed only by the payment
of the whole amount of tax, penalty, cost and interest due upon all
the property included therein.
Historical: Laws 1901, 233, Sec. 119.
Sales to County: Subsequent Assessment.
Sec. 1754. In case property is sold to the county as purchaser it
shall be subsequently assessed, each year, but not sold for taxes,
unless the county has disposed of its interest, but no person shall
be permitted to redeem from such sale execpt upon payment of the
amount due upon such tax certificate, and also of the amount of all
subsequent assessments, penalties, costs and fees, and interest on
each amount at the rate of eighteen per cent per annum from the
date of tax sales in the respective years at which such assessment be-
comes delinquent.
Historical: Laws 1901, 233, Sec. 120. I which" inserted before "such assess-
See Rev. St. 1887, Sec. 1541. "At I ment" to express the sense.
764
REVENUE
Tit. 10
Taxes Accruing on Property Sold to County.
Sec. 1755. All taxes and penalties which have accrued upon prop-
erty subsequently assessed after sale to the county, shall, as long as
the county retains the tax certificate therefor and until the date
when the county is entitled to a tax deed for such property, be en-
tered by the assessor in red ink, with the amount for each year,
under the current assessment for property for each year, but such
amounts shall not be extended into the footing of such assessment
roll. At the expiration of the time in which the county is entitled
to a deed for any such property, the assessor shall immediately ex-
ecute a deed therefor and file the same with the recorder for record.
When the taxes due on any property so subsequently assessed are
paid, the auditor shall cancel such tax opposite the original assess-
ment for each year, showing the amount of tax and penalty paid
thereon, with date paid.
Historical: Laws 1901, 2 33, Sec. 148.
Rights of Cities, Etc., on Delivery of Tax Deed to County.
Sec. 1756. Whenever the assessor makes and delivers to the county
his tax deed for any property sold to the county for delinquent taxes,
the cities, towns, villages and independent school districts in such
county, authorized by law to collect taxes as provided by this chapter,
shall receive of the proceeds of any sale thereof their proportionate
interest therein from the county, to be paid as provided upon re-
demption of tax certificates for property sold for taxes.
Historical: Laws 19 01, 2 33, Sec. 18 4.
Resale.
Sec. 1757. If the purchaser does not pay the taxes and costs be-
fore ten o'clock a. m. of the following day, the property on the next
sale day, before the regular sale, must be resold for the taxes and
costs.
Historical: Laws 1901, 233, Sec. 121.
Rev. St. 1887, Sec. 1542.
California Legislation: Same: Pol.
Code 1872, Sec. 3774; Deering's Code,
ib.; repealed 1895.
Refusal to Pay: Rejection of Subsequent Bids.
Sec. 1758. The bid of any person refusing to make the payment
for property purchased by him must not, after such refusal, be re-
ceived on the sale of any property advertised in the delinquent list
of that year.
Historical: Laws 1901, 233, Sec. 122.
Rev. St. 1887, Sec. 1543.
California Legislation: Same except
"after such refusal" omitted: Pol.
Code 1872, SeC. 3775; Deering's Code,
ib.; repealed 1895.
Certificate of Sale.
Sec. 1759. After receiving the amount of taxes and costs, the
collector must make out in duplicate a certificate, dated on the day
of the sale, stating (when known) the name of the person assessed,
a description of the land sold, the amount paid therefor, that it was
sold for taxes, giving the amount of State and county tax, poll taxes,
costs and penalties; also giving the amount of all taxes, penalties
and costs of every city, town, village and independent school district
Ch. 1. Art. 9. PROPERTY TAXES — SALES OF REALTY
765
in his county, that is authorized by law to collect revenue in the
manner provided by this chapter, and each thereof, and the year
of the assessment, and specifying the time when the purchaser will
be entitled to a deed; also a guaranty of the county or municipality
to which the tax is due that if, for any irregularity of the taxing
officers this certificate be void, then such county or municipality will
repay to the holder the sum paid therfor with interest at six per
cent per annum from the date of its issuance.
Historical: Laws 1901, 233, Sec. 123,
amended Laws 1905, 390, Sec. 1. See
Rev. St. 1887, Sec. 1544.
California Legislation: See Pol.
Code 1872, Sec. 3776; Deering's Code,
ib.; Kerr's Code, ib.
Same : Signature.
Sec. 1760. The certificate must be signed by the collector and one
copy delivered to the purchaser, and the other filed in the office of
the county auditor.
Historical: Laws 19 01, 2 33, Sec. 12 4.
See Rev. St. 1887, Sec. 1545.
California Legislation: Same except
"certificates" for "certificate" and "re-
corder" for "auditor": Pol. Code 1872,
Sec. 3777; Deering's Code, ib.; See
Kerr's Code, ib.
Entry of Certificates.
Sec. 1761. The collector, before delivering any certificate, must
enter in a book the name of the party assessed, a description of the
land sold corresponding with the description in the certificate, the
date of sale, the purchaser's name and amount of tax, penalty and
cost on account of State and county tax and the taxes of each of the
cities, towns, villages and independent school districts in such county,
authorized by law to collect revenue as provided in this chapter,
stated separately, and the total amount paid; and must regularly
number the descriptions on the margin of the book and put a corre-
sponding number on each certificate. Such book must contain blank
spaces following each entry of a tax certificate therein, in which may
be entered the name of the redemptioner, and the time when paid,
the amount paid for such redemption and to whom sold. He shall
keep the entries of certificates sold to individuals and to the county
for any year separately, and shall arrange them in alphabetical order
of the names of the persons assessed. He shall, at the same time,
make, in like books, an exact copy of his said tax certificate book,
and furnish one each of such copies to the county auditor and the
county treasurer at the time of delivering the original and duplicate
tax certificates to said officers as required by law. At such time it
shall be the duty of the county auditor to compare the duplicate tax
certificates of property sold to individuals, and the original tax cer-
tificates of property sold to the county, with his copy of said certifi-
cate book, and to certify therein that the same is correct. It shall
be the duty of the county treasurer to make a like comparison of
the duplicate tax certificates of property sold to the county at the
time the same are filed with him by the assessor, and to certify that
the same is correct as to such certificates; and such book and dupli-
cate and original tax certificates so delivered to and filed with the
ex-officio auditor and recorder of the county shall, for all purposes
for which necessary in connection with the lien upon or title to
766
REVENUE
Tit. 10
any real estate, be considered filed with, and a part of the records of,
such officer as ex-officio recorder.
Historical: Laws 1901, 2 33, Sec. 12 5.
See Rev. St. 1887, Sec. 1546.
California Legislation: See Pol.
Code 1872, Sec. 3778; Deering's Code,
ib.; repealed 1895.
Lien of Purchaser: Certificate of Sales.
Sec. 1762. On filing the certificates with the ex-officio auditor and
recorder, the lien vests in the purchaser and is only divested by the
payment to the county treasurer, on certificate of the auditor, for
the use of the purchaser, the whole amount of money paid for such
certificate, together with interest thereon at the rate of eighteen
per cent per annum until paid, which said per cent of interest shall
be construed in the nature of a penalty. At the time of filing such
certificate, the assessor must certify to the governing authority of
cities, towns, villages and independent school districts authorized
by law to collect revenues as in this chapter provided, a complete
list of property sold in such city, town, village and independent
school district for delinquent taxes.
Historical: Laws 1901, 2 33, Sec. 12 6.
See Rev. St. 1887, Sec. 1547; amended
Laws 1895, 101, Sec. 24; re-enacted
Laws 1899, 254, Sec. 26.
California Legislation: See Pol.
Code 1872, Sec. 3779; Deering's Code,
ib.; repealed 1895.
Issuance of Deed.
Sec. 1763. If the property is not redeemed within three years from
the date of sale, the assessor or ex-officio tax collector, or his successor
in office, must make to the purchaser or the other person lawfully
entitled thereto, upon demand by him, a deed to the property, reciting
in the deed substantially the matters contained in the certificate;
and that no person redeemed the property during the time allowed
by law for its redemption. The assessor as ex-officio tax collector is
entitled to receive for the county from the purchaser two dollars for
making such deed.
Historical: Laws 1901, 253, Sec. 12 9.
See Rev. St. 1887, Sec. 1553; amended
Laws 1895, 101, Sec. 26; re-enacted
Laws 1899, 254, Sec. 28; amended
Laws 18 99, 376, Sec. 1. Last para-
graph of section* the first paragraph
relates to the redemption from tax
sales, and is found in Sec. 1772.
Effect of Deed as Evidence.
Sec. 1764. The matters recited in the certificate of sale must be
recited in the deed, and such deed duly acknowledged or proved is
prima facie evidence that :
1. The property was assessed as required by law;
2. The property was equalized as required by law ;
3. The taxes were levied in accordance with law;
4. The taxes were not paid ;
5. At a proper time and olace the property was sold as pre-
scribed by law, and by the proper officer;
6. The property was not redeemed;
7. The person who executed the deed was the proper officer ;
8. Where the real estate was sold to pay taxes on personal prop-
erty, that the real estate belonged to the person liable to pay the tax.
Ch. 1. Art. 9.
PROPERTY TAXES — SALES OF REALTY
767
Historical: Laws 1901. 2 33, Sec. 134.
Rev. St. 1887. Sec. 1555.
California Legislation: Same except
"primary" for "prima facie", line 3:
Pol. Code 1872, Sec. 3786; Deering's
Code, ib.; Kerr's Code, ib.
Effect of Tax Deed: A tax deed is
prima facie evidence of the facts and
things mentioned in the eight subdi-
visions of this section; and to defeat
such deed the defendant must show
the non-existence of such facts, or
some of them. The fact that there is
no sworn statement of the owner of
the property on file, or any marginal
entry on the assessment book showing
that he refused to give such state-
ment, is not sufficient to establish the
invalidity of a tax deed. Co-operative
Savings & Loan Assn. v. Green (1897)
5 Ida. 661; 51 Pac. 770.
A party may show in opposition to
a tax deed that the property was not
assessed or equalized as required by
law. McMasters v. Torsen (1897) 5
Ida. 536; 51 Pac. 100.
Same.
Sec. 1765. Such deed duly acknowledged and proved, is prima
facie evidence of the regularity of all other proceedings, from the
assessment by the assessor inclusive up to the execution of the deed.
Historical: Laws 1901, 2 33, Sec. 135.
See Rev. St. 1887, Sec. 1556.
California Legislation: Different:
Pol. Code 1872 Sec. 3787; Deering's
Code, ib.; as amended: Kerr's Code,
ib.
Same: Effect as Conveyance.
Sec. 1766. The deed conveys to the grantee the absolute title to
the lands described therein, free of all incumbrances, except any
lien for taxes which may have attached subsequently to the assess-
ment.
Historical: Laws 1901, 233, Sec. 136.
Rev. St. 1887, Sec. 1557.
California Legislation: See Pol.
Code 1872, Sec. 3788; as amended:
Deering's Code, ib.; as amended:
Kerr's Code, ib. ,
Assessment Book and Delinquent List as Evidence.
Sec. 1767. Tht assessment book, or delinquent list or a copy there-
of, certified by the county auditor showing unpaid taxes against any
person or property, is prima facie evidence of the assessment, the
property assessed, the delinquency, the amount of taxes due and
unpaid, and that all forms of law in relation to the assessment and
levy of such taxes have been complied with.
Historical: Laws 1901, 233, Sec. 137.
Rev. St. 1887, Sec. 1558.
California Legislation: Similar:
Pol. Code 1872, Sec. 3789; as amend-
ed: Deering's Code, ib.; as amended
Kerr's Code, ib.
Comparison of Delinquent List With Assessment Book.
Sec. 1768. The tax collector must annually, within fifteen days
after the tax sale of any year has been completed, attend at the
office of the auditor, with the delinquent tax list and all certificates
of tax sales required by law to be filed by him with the auditor, and
the auditor must then carefully compare the lists with the assess-
ments of persons and property not marked as "paid" on the assess-
ment and subsequent assessment book, and when taxes have been
paid, must note the fact in the appropriate column in the assessment
book and also note that all descriptions of property which has been
sold at tax sale are represented by proper tax certificates as provided
by law, and shall thereupon administer to the tax collector an oath,
to be written and subscribed in the delinquent list, that every person
768
REVENUE
Tit. 10
and all property assessed in the delinquent list on which taxes have
been paid, has been credited in the list with such payment.
Historical: Laws 1901, 2 33, Sec. 146.
See Rev. St. 1887, Sec. 1567; amended
Laws 1895, 101, Sec. 28; re-enacted
Laws 1899, 254, Sec. 30.
California Legislation: See Pol.
Code 1872, Sec. 3797; Deering's Code,
ib.; as amended: Kerr's Code, ib.
Final Settlement With Collector.
Sec. 1769. The auditor must foot up the amount of taxes, penal-
ties and costs which have been paid to the assessor upon such de-
linquent roll, the amount of all taxes therein which have been sold
to the county, and the penalties thereon. And (after charging the
assessor in his proper account with all penalties and costs due on
account of such taxes on said roll) he shall credit the tax collector
therewith, having a final settlement with him, and the delinquent
roll must thereafter remain on file in the auditor's office. All taxes
due on property subsequently assessed after sale to the county for
any year, and remaining unpaid, must be credited to the tax collector
with the penalty thereof.
Historical: Laws 1901, 233, Sec. 147.
See Rev. St. 18 87, Sec. 1569.
California Legislation: See Pol.
Code 1872, Sec. 3799; as amended:
Deering's Code, ib.; Kerr's Code, ib.
ARTICLE 10.
REDEMPTION AND ASSIGNMENT OF CERTIFICATES.
Section
1770. Time for redemption.
1771. Currency in which made: Tax
redemption fund: Entries: Pay-
ment to purchaser.
1772. Redemption fund: Entries in
book.
17 73. Redemption from purchase by
county.
Section
1774. Sale of certificates held by
county.
1775. Same: Rights of purchaser.
1776. Assignees of certificates: En-
tries of names.
Time for Redemption.
Sec. 1770. Redemption of the property sold may be made by the
owner or any party in interest within three years from the date of
the purchase.
Historical: Laws 1901, 233, Sec. 127.
See Rev. St. 1887, Sec. 1548; amended
Laws 1895, 101, Sec. 25.
California Legislation: Same except
"twelve months" for "three years":
Pol. Code 1872, Sec. 3780; additional
provision as amended: Deering's Code,
ib.; different as amended: Kerr's Code,
ib.
Currency in Which Made: Tax Redemption Fund: Entries: Payment to
Purchaser.
Sec. 1771. Redemption must be made in lawful money of the
United States; and when made from the auditor and treasurer the
redemptioner shall, upon the auditor's certificate, pay to the treasurer
the amount necessary to redeem the same which shall be charged
by the county auditor and credited by the county treasurer to a fund
to be known as the 'Tax Redemption Fund," and upon the payment
of such amount to the county treasurer, he shall immediately enter
in his tax certificate book the name of the redemptioner and the
time when redeemed and the amount paid, and upon the return of
Ch. 1. Art. 10. PROPERTY TAXES — REDEMPTION 769
the treasurer's receipt to the auditor and assessor for such amount,
the auditor and assessor shall each make a like entry in his tax
certificate book, and the auditor shall indorse on the duplicate cer-
tificate in his office the fact of such redemption, for which he shall
collect for the county a fee of one dollar. Whenever, after any such
redemption, the person to whom the original tax certificate was issued,
or any lawful owner thereof, shall present to the auditor such original
certificate marked redeemed and signed by him, together with legal
evidence of his lawful ownership thereof, if other than the person
to whom issued, the auditor shall issue to him an order on the county
treasurer for the amount theretofore paid on account of such re-
demption ; crediting the "Tax Redemption Fund" on account of such
order; and upon presentation of such auditor's order the county
treasurer shall pay the same, charging said "Tax Redemption Fund"
therefor, and returning such order as his voucher for such payment
at the time of making his regular reports to the county auditor as
provided by law.
Historical: Laws 1901, 233, Sec. 128.
See Rev. St. 1887, Sec. 1549.
Redemption Fund: Entries in Book.
Sec. 1772. Such tax redemption fund shall be reported in all re-
ports of the auditor and treasurer, but the fund therein from time
to time shall be considered as deposit funds and shall not be included
in such reports or balances therein as public money. In all cases
where the redemption of any tax certificate is made by payment to
the person to whom the original tax certificate was issued or to the
lawful owner thereof, such person, or the lawful owner thereof,
must personally direct the auditor and assessor each to make the
necessary entries in their respective tax certificate books, and the
auditor to mark the duolicate thereof redeemed, and must pay the
auditor for the use of the county a fee of one dollar therefor; and
at the same time surrender the original tax certificate marked re-
deemed and signed by him : Provided, That upon legal documentary
evidence of the ownership of such tax certificates being furnished,
and upon the signature of the owner duly acknowledged as required
by law to transfer title to real estate, together with the surrender
of the tax certificate in like manner, and the payment of like fee,
the auditor and assessor shall each proceed relative to such redemp-
tion as provided when such person or the lawful owner thereof is
personally present.
Historical: Laws 1901, 233, Sec. 129. to the issuance of a deed, which is
Omitting the last paragraph relating found in Sec. 1763.
Redemption From Purchase by County.
Sec. 1773. In all cases where the county has become the purchaser
of property at any tax sale, and the tax certificates have been issued
to the county therefor and duly entered in the certificate books of
the county auditor and treasurer, redemption thereof may be made
by any person in interest, in the same manner and upon like terms
as is herein provided for the redemption of such tax certificates to
the auditor and county treasurer when sold to individuals : Provided,
however, That in every such redemption of property sold to the
770 REVENUE Tit. 10
county, the county auditor, in his certificate to the treasurer, shall
apportion the total amount paid for taxes, penalties, costs and in-
erest, to the several funds provided for in such levy except State
ad valorem, in the amount levied for each together with interest at
the rate of seven per cent per annum on the amount apportioned
to each fund, and the balance thereof to the current expense fund
of the year of such redemption; and the amount of all taxes, penal-
ties and costs, other than State and county, and interest thereon,
to each of the several cities, towns, villages and independent school
districts authorized by law to collect revenue as provided herein, in
such county according to their several interests, and the county
treasurer shall credit to each of such cities, towns, villages and in-
dependent school districts, such amounts apportioned thereto, and
pay out of such funds all warrants drawn thereon. The county
auditor is authorized to draw his warrant upon such funds when-
ever there is any amount to the credit of such cities, towns, villages
and independent school districts, without an order of the board of
county commissioners, and such warrants shall be payable to the
treasurers of such cities, towns, villages and independent school dis-
tricts, for the taxes, costs and penalties for which any property in-
cluded in such certificate was sold, according to their several interests,
together with the interest thereon that may be due, and deliver the
same ; charging the treasurers therewith in such several funds.
Historical: Laws 1901. 233, Sec. 130. I Laws 1895, 101, Sec. 27; re-enacted
See Rev. St. 1887, Sec. 1554; amended I Laws 1899, 254, Sec. 29.
Sale of Certificates Held by County.
Sec. 1774. All tax sale certificates held by the county, shall be on
sale by the auditor at all times during office hours, for an amount
equal to the face thereof, with accrued interest. Whenever any
person shall desire to purchase the same, he shall pay to the treasurer,
upon the certificate of the auditor, the total amount expressed in
each tax certificate as tax, penalty and cost, together with interest
thereon from date of issue to date of purchase at the rate of eighteen
per cent per annum; and thereupon the treasurer shall enter in the
proper column of the tax certificate book the name of the person
to whom sold, and deliver to him the duplicate tax certificate therefor.
Upon the return of the treasurer's receipt for the payment of such
purchase money, one each to the assessor and auditor, and the pro-
duction of the duplicate tax certificate to the auditor, the auditor
shall indorse on such duplicate tax certificate, "Sold to (naming him)
this day of , 190....," and shall sign the same as
auditor; and thereupon shall file the same with the duplicate tax
certificates sold to individuals ; indorsing in a like manner the original
tax certificate, affixing his seal thereto, and delivering it to the pur-
chaser. The treasurer and auditor shall each enter on his tax certifi-
cate book the name of such purchaser opposite each such certificate
purchased.
Historical: Laws 1901, 233, Sec. 131.
i
Same: Rights of Purchaser.
Sec. 1775. The auditor shall apportion the amount received from
Ch. 1. Art. 11. PROPERTY TAXES— SALE OF PERSONALTY
771
the sale of any or all such tax certificates, as moneys for the redemp-
tion thereof, are herein required to be apportioned. After any such
sale of tax certificates held by the county for delinquent taxes, the
purchaser shall be considered an individual purchaser thereof, and
entitled to all the provisions of law relating to such purchasers as
if he had purchased at such tax sale ; and all certificates so sold may
be redeemed in like manner as provided for the redemption of tax
certificates sold to individuals.
Historical: Laws 1901, 233, Sec. 132.
Assignees of Certificates: Entries of Names.
Sec. 1776. Upon the proper notice to the auditor, any lawful owner
other than the person to Whom originally sold, may have his name
entered in the tax certificate book as the owner of any certificate
owned by him, and the auditor must notify him, and all original
purchasers who have not disposed of their interests, of the redemp-
tion of any tax certificate so entered as owned by him.
Historical: Laws 1901, 233, Sec. 133.
ARTICLE 11.
SEIZURE AND SALE OF PERSONALTY.
Section
1777. Seizure of personalty.
1778. Same: Sale.
1779. Notice of sale.
1780. Fees for sale.
Section
1781. Bill of sale.
1782. Excess proceeds: Return to
owner.
1783. Disposition of unsold property.
Seizure of Personalty.
Sec. 1777. The tax collector may, at any time after it is assessed,
collect the taxes due on personal property, except when real estate
is liable therefor, by seizure and sale of any personal property owned
by the delinquent.
Historical: Laws 19 01, 233, Sec. 139.
Rev. St. 1887, Sec. 1560.
California Legislation: See Pol.
Code 1872, Sec. 3821; Deering's Code,
ib.; Kerr's Code, ib.
Lien on Personalty: A tax is not a
lien on personal property until actual
seizure thereof. Palmer v. Pettingill
(1898) 6 Ida. 346; 55 Pac. 653.
Same : Sale.
Sec. 1778. The sale must be at public auction, and of a sufficient
amount of the property to pay the taxes, percentage and costs.
Historical: Laws 1901, 233, Sec. 140.
Rev. St. 1887, Sec. 1561.
California Legislation: See Pol.
Code 1872, Sec. 3822; Deering's Code,
ib.; Kerr's Code, ib.
Notice of Sale.
Sec.1779. The sale must be made after one week's notice of the
time and place thereof, given by publication in a newspaper in the
county, or by posting in three public places.
Historical: Laws 1901, 233, Sec. 141
Hev. St. 1887, Sec. 1562.
California Legislation: See Pol
Code 1872, Sec. 3822; Deering's Code,
ib.; Kerr's Code, ib.
772
REVENUE
Tit. 10
Fees for Sale.
Sec. 1780. For seizing and selling personal property, the tax col-
lector may charge in each case, for each mile necessarily traveled in
going only, twenty-five cents.
Historical: Laws 1901, 233, Sec. 142.
See Rev. St. 1887, Sec. 1563.
California Legislation: See Pol.
Code 1872, Sec. 3822; Deering-'s Code,
ib.; Kerr's Code, ib.
Bill of Sale.
Sec. 1781. On payment of the price bid for any property sold, the
delivery thereof with a bill of sale, vests the title thereto in the pur-
chaser.
Historical: Laws 1901, 233, Sec. 143.
Rev. St. 1887, Sec. 1564.
California Legislation: See Pol.
Code 1872, Sec. 3822; Deering-'s Code,
ib.; Kerr's Code, ib.
Excess Proceeds: Return to Owner.
Sec. 1782. All excess, over the taxes, per cent and costs, of the
proceeds of any such sale, must be returned to the owner of the
property sold, and until claimed must be deposited in the county
treasury subject to the order of the owner, his heirs or assigns.
Historical: Laws 1901. 233, Sec. 144.
Rev. St. 1887, Sec. 1565.
California Legislation: See Pol.
Code 1872, Sec. 3822; Deering's Code,
ib.; Kerr's Code, ib.
Disposition of Unsold Property.
Sec .1783. The unsold portion of any property may be left at the
place of sale at the risk of the owner.
Historical: Laws 1901, 233, Sec. 155.
Rev. St. 1887, Sec. 1566.
California Legislation: See Pol.
Code 1872, Sec. 3822; Deering's Code,
ib.; Kerr's Code, ib.
ARTICLE 12.
ERRORS, MISTAKES AND INFORMALITIES.
Section
Section
1784. Assessment book: Correction
of errors.
1785. Same: Republication.
1786. Same: Manner of publication.
1787. Use of abbreviations.
1788. Informality not fatal to tax
proceedings.
1789. Mistake in ownership.
179 0. Partial invalidity of assess-
ment: Necessity of protest.
1791. Cancellation and refunding of
taxes erroneously assessed.
Assessment Book: Correction of Errors.
Sec. 1784. Omissions, errors or defects in form in any assessment
book, when it can be ascertained therefrom what was intended, may
be supplied or corrected by the assessor at any time prior to the
delinquent sale and after the original assessment was made.
Historical: Laws 1901, 233, Sec. 167.
Rev. St. 1887, Sec. 1700.
California Legislation: Similar:
Pol. Code 1872, Sec. 3881; as amend-
ed: Deering-'s Code, ib.; further
amended: Kerr's Code, ib.
Same : Republication.
Sec. 1785. When the omission, error or defect has been carried
Ch. 1. Art. 12. PROPERTY TAXES — ERRORS AND MISTAKES
773
into a delinquent list or any publication, the list or publication may
be republished as amended, or notice of the correction may be given
in a supplementary publication.
Historical: Laws 1901, 233, Sec. 168.
Rev. St. 1887, Sec. 1701.
California Legislation: Same: Pol.
Code 1872, Sec. 3882; Deering's Code,
ib.; Kerr's Code, ib.
Same : Manner of Publication.
Sec. 1786. The publication must be made in the same manner as
the original publication, and for not less than one week.
Historical: Laws 1901, 233, Sec. 169.
Rev. St. 1887, Sec. 1702.
California Legislation: Same: Pol.
Code 1872, Sec. 3883; Deering's Code,
ib.; Kerr's" Code, ib.
Use of Abbreviations.
Sec. 1787. In the assessment of land, advertisement and sale there-
•of for taxes, initial letters, abbreviations and figures may be used
to designate the township, range, section or parts of section, lot or
block, and kind of improvement or personal property in the extension
thereof.
Historical: Laws 1901, 233, Sec. 170.
See Rev. St. 1887, Sec. 1703.
California Legislation: Same
through "parts of section", rest omit-
ted: Pol. Code 1872, Sec. 3884; Deer-
ing's Code, ib. ; similar as amended:
Kerr's Code, ib.
Informality Not Fatal to Tax Proceedings.
Sec. 1788. No assessment, or act relating to assessment, or collec-
tion of taxes is illegal on account of informality, nor because the
same was not completed within the time required by law.
Historical: Laws 1901, 233, Sec. 171.
Rev. St. 1887, Sec. 1704.
California Legislation: Same: Pol.
Code 1872, Sec. 3885; Deering's Code,
ib.; Kerr's Code, ib.
Mistake in Ownership.
Sec. 1789. When land is sold for taxes correctly imposed as the
property of a particular person, no misnomer of the owner or sup-
posed owner, or other mistake relating to the ownership thereof,
affects the sale, or renders it void or voidable.
Historical: Laws 1901, 233, Sec. 152.
See Rev. St. 1887, Sec. 1574. "Im-
posed" inserted after "correctly" to
express the sense.
California Legislation: Same: Pol.
Code 1872, Sec. 3807; Deering's Code,
ib.; Kerr's Code, ib.
Partial Invalidity of Assessment: Necessity of Protest.
Sec. 1790. Whenever property is advertised for sale for the non-
payment of delinquent taxes, and the assessment is valid in part and
void for the excess, the sale shall not for that cause be deemed invalid,
nor any grant subsequently made thereunder be held to be insufficient
to pass title to the grantee, unless the owner of the property, or his
agent, shall, not less than six days before the time at which the
property is advertised to be sold, deliver to the tax collector a protest
in writing, signed by the owner or his agent, specifying the portion
of tax which he claims to be invalid, and the grounds upon which
such claim is based.
774
REVENUE
Tit. 10
Historical: Laws 1901, 233, Sec. 138. for "by the owner or his. agent", line
Rev. St. 1887, Sec. 1559. 8; Deering's Pol. Code, Sec. 3811; re-
Calif ornia Legislation: Same except pealed 1895.
"by the respective owner or agent"
Cancellation and Refunding of Taxes Erroneously Assessed.
Sec. 1791. All taxes included in the delinquent roll, charged on
account of double assessments, property erroneously assessed, or
which, by reason of any bona fide error of the assessor, or fo^ any
lawful reason, should not be collected, and which has not been there-
tofore deducted, shall be reported to the board of county commis-
sioners at their first regular meeting after the settlement of the tax
collector with the auditor, and if the said board is satisfied that the
same should not be collected, they shall order the auditor to cancel
the same upon said roll; and thereupon the auditor, after cancelling
each of such items on said delinquent roll, shall credit the assessor
with the amount of all such cancellations in his property tax account
with the county. The county commissioners of the various counties
in the State of Idaho, shall have power to refund to the tax payer
any money to which he may be entitled by reason of the taxes upon
property having been paid twice for the same year, or any moneys
to which any tax payer may be entitled by reason of the double
assessment or erroneous assessment of property through clerical
or other errors, or where, in the judgment of the county commis-
sioners, the assessment upon property was so grossly overestimated
that the same was a mistake. The said money shall be refunded
by warrants drawn on the current expense fund of the county. The
county commissioners shall also have power to refund, in the same
manner, money paid by any purchaser of property at a delinquent
tax sale where it is afterwards found that the property purchased
has been erroneously sold or the sale thereof is void. In cases where
property sold as delinquent is bought by the county, and where the
value of said property has become so uncertain as to make the col-
lection of the taxes and other charges thereon doubtful, the county
commissioners are authorized to compromise the taxes and other
charges at a less amount than the full sum due, as in their judgment
may be deemed wise.
Historical: Laws 1901, 233, Sec. 149;
amended Laws 1907, 344, Sec. 1. See
Rev. St. 1887, Sec. 1571.
ARTICLE 13.
APPORTIONMENT OF TAXES.
Section
1792. Apportionment of taxes.
1793. Same: Pines, licenses and poll
taxes.
Section
1794. Collection of poor tax: Dispo-
sition.
Apportionment of Taxes.
Sec. 1792. All taxes levied and collected in each county shall be
apportioned to the several funds for the year for which levied, in-
cluding State ad valorem until the full amount levied by the
State has been apportioned, State wagon road, current expense, gen-
eral school, road, bridge and warrant redemption funds, and such
special funds as may have been created for the payment of interest
Ch. 1. Art. 14. PROPERTY TAXES — SETTLEMENTS WITH STATE 775
on and redemption of county bonds. No current expense of any
county for such year shall be paid out of any fund other than current
expense, road and bridge, the funds of which may be ordered by
the board of county commissioners to be transferred from one to
the other, as circumstances may require, and proper debits and credits
made to each fund from and to which transfer is made. All warrants
payable out of such funds shall be paid out of the respective funds
on which drawn, and charged in the aggregate against such fund,
in the amount at any time returned redeemed. Each of the State
funds, the bond fund, the general school and warrant redemption
funds, shall be charged in like manner with all amounts properly
chargeable against and paid out of such funds. Any excess of reve-
nue in any funds, to pay the liabilities of the year against the same,
shall (except in case of current expense fund, which, as provided
by law, shall go to the warrant redemption fund) be credited to the
revenues of the like fund for the succeeding year, until all liabilities
which have been created against such fund are fully paid, satisfied
and discharged, and thereupon any surplus of revenues therein shall
be transferred to the warrant redemption fund, if there is such,
otherwise to the current expense fund of the succeeding year.
Historical: Laws 1901, 233, Sec. 177.
Same: Fines, Licenses and Poll Taxes.
Sec. 1793. All revenues derived from fines imposed against county
officers, the licenses of toll roads, bridges and ferries, and all poll
taxes, other than road per capita tax, shall be apportioned to the
current expense fund of the county for the year in which collected.
Historical: Laws 1901, 233, Sec. 178.
See Rev. St. 1887, Sec. 1619; amended
Laws 1899, 367, Sec. 1.
Collection of Poor Tax: Disposition.
Sec. 1794. The per capita and ad valorem tax, when levied by the
board of county commissioners for the care and maintenance of the
poor of the county, must be collected by the tax collector in the same
manner and at the same time as other county taxes, and when col-
lected must be paid into the "Current Expense Fund" of the county,
and shall be drawn therefrom as other current expenses.
Historical: Laws 1901, 233, Sec. 180. I Laws 1895, 101, Sec. 35; re-enacted
See Rev. St. 1887, Sec. 2180; amended I Laws 1899, 254, Sec. 40.
ARTICLE 14.
SETTLEMENTS WITH THE STATE.
Section
1795. Settlements with State Auditor
and Treasurer.
1796. Same: Quarterly settlements.
1797. License statements.
1798. Same: Liability for neglect.
1"99. Report by county auditor.
Section
1800. Same: Disposition of report.
1801. Same: Liability for neglect.
1802. Duty of State Auditor.
18 03. County treasurer to file copy.
Settlements With State Auditor and Treasurer.
Sec. 1795. The treasurers of the respective counties must, at any
time upon the order of the State Auditor and the Treasurer of the
776
REVENUE
Tit. 10
State, settle with the State Auditor, and pay over to the Treasurer
all moneys in their possession belonging to the State. Whenever
there is in the hands of any county treasurer the sum of one hundred
dollars to the credit of the State of Idaho, in any fund or funds,
except State school land fund, such treasurer shall forthwith pay
over in cash, to the State Treasurer, the full amount in his hands
to the credit of the State, without expense to the State for the trans-
mission thereof, which expense shall be paid by the county, and
therewith furnish to the State Auditor a statement showing on what
accounts such payment is made, and the amount to each: Provided,
That prior to making such payment such treasurer shall ascertain
from the county auditor the amount owing to the State by the county
of which he is such officer ; and if he has on hand to the credit of the
State, in any fund, an amount greater than is required to satisfy
the claims of the State on that account, he shall retain the balance
in such fund, and if it be in the State ad valorem tax fund, shall
forthwith transfer the same to the warrant redemption fund of the
county, or if there is no such fund, then to the current expense fund
of the year in which such revenue was derived, or if such fund is
balanced, then to the next succeeding year in which there are out-
standing warrants unpaid, notifying the auditor of such transfer.
Any county treasurer who fails to comply with the provisions hereof,
shall be liable to the State for the interest, at the rate of seven per
cent per annum, on such sum or sums as are herein required to be
paid over to the State Treasurer from the date at which such pay-
ment should have been made, as provided herein, to the date of the
payment of the same, which interest may be collected by an action
on the official bond of the treasurer so failing, on one or more causes
of action.
Historical: Laws 1901, 233, Sec. 155.
See Rev. St. 1887, Sec. 1670.
California Legislation: Similar:
through first sentence, rest omitted:
Pol. Code 1872, Sec. 3865; Deering's
Code, ib.; Kerr's Code, ib.
Same: Quarterly Settlements.
Sec. 1796. The treasurers of the several counties respectively
must, between the first and fifteenth days of January, April, July
and October of each year, make out and transmit by mail, express
or other safe conveyance, a statement to the State Auditor, State
Land Board and State Treasurer, and settle in. full with the State
Auditor, and pay over in cash, without expense to the State, to the
State Treasurer, all funds which have come into their hands as county
treasurers before the close of business at the end of the previous
month, and belonging to the State, certifying particularly from what
source derived.
Historical: Laws 1901, 2 33, Sec. 15 6;
amended Laws 1905, 128, Sec. 1. See
Rev. St. 1887, Sec. 1671.
California Legislation: See Pol.
Code 1872, Sec. 3866; as amended
Deering's Code, ib.; further amended:
Kerr's Code, ib.
License Statements.
Sec. 1797. Each county treasurer must, at the time of making his
settlement with the State Auditor, produce to him statements of
Ch. 1. Art. 14. PROPERTY TAXES — SETTLEMENTS WITH STATE 777
transactions had in State and county licenses since the last settle-
ment, which statement must be made by the county auditor, accord-
ing to forms which are furnished by the State Auditor for that
purpose.
Historical: Laws 1901, 233, Sec. 157.
See Rev. St. 1887, Sec. 1672.
Same: Liability for Neglect.
Sec. 1798. Every county treasurer, who neglects or refuses to
transmit such statement to the State Auditor and Treasurer at the
time specified in this article, and to settle and make payment as re-
quired herein, is liable on his official bond.
Historical: Laws 1901, 233, Sec. 158.
See Rev. St. 1887, Sec. 1674.
Report by County Auditor.
Sec. 1799. The auditor of each county, between the first and
fifteenth days of each month in which the treasurer of his county
is required to settle with the State Auditor, must make in duplicate
and verify by his affidavit a report to the State Auditor showing
specifically the amount due the State from each particular source of
revenue at the close of business on the last day of the preceding
month.
Historical: Laws 1901, 233, Sec. 159.
Rev. St. 1887, Sec. 1675.
California Legislation: Similar:
Pol. Code 1872, Sec. 3868; as amend-
ed: Deering's Code, ib.; as amended:
Kerr's Code, ib.
Same: Disposition of Report.
Sec. 1800. The auditor must at once transmit by mail or express
to the State Auditor one copy of the report, and must deliver the
other to the treasurer of his county.
Historical: Laws 1901, 2 33, Sec. 16 0.
Rev. St. 1887, Sec. 1676.
California Legislation: Same except
"Controller" for "State Auditor" and
"copy" inserted after "other", line 3:
Pol. Code 1872, Sec. 3869; Deering's
Code, ib.; Kerr's Code, ib.
Same: Liability for Neglect.
Sec. 1801. Every auditor who fails to make and transmit the re-
port required by the preceding section, or any report or statement
required by this chapter, is liable on his official bond.
Historical: Laws 1901, 233, Sec. 161.
Rev. St. 1887, Sec. 1677.
California Legislation: See Pol.
Code 1872, Sec. 3870; Deering's Code,
ib.; as amended: Kerr's Code, ib.
Duty of State Auditor.
Sec. 1802. The State Auditor must, after the treasurer has made
settlement and payment, enter upon each copy of the Auditor's report
a statement showing the amount of money paid into the Treasury
of the State by the county treasurer.
Historical: Laws 1901, 233, Sec. 162.
See Rev. St. 1887, Sec. 1680. "By the
county treasurer" transposed for
grammatical reasons.
California Legislation: See Pol.
Code 1872, Sec. 3873; Deering's Code,
ib. ; as amended: Kerr's Code, ib.
778
REVENUE
Tit. 10
County Treasurer to File Copy.
Sec. 1803. The county treasurer must file with the auditor of his
county the copy returned to him by the State Auditor, and the auditor
must then make the proper entries in his account with the treasurer.
Historical :Laws 1901, 233, Sec. 163.
See Rev. St. 1887, Sees. 1681, 1682.
California Legislation : See Pol.
Code 1872, Sec. 3874; Deering's Code,
ib.; Kerr's Code, ib.
ARTICLE 15.
ASSESSMENT AND COLLECTION OF CITY AND SCHOOL DISTRICT TAXES.
Section
1804. Assessor to assess and collect
taxes.
1805. Delinquency of city and school
taxes.
Section
1806. Premium for collection.
1807. Assessor to give bond.
Assessor to Assess and Collect Taxes.
Sec. 1804. The county assessor shall assess all property in, and
shall collect all general and special taxes levied in and for, all cities,
towns and villages in his county, incorporated under the provisions
of Title 13 of this Code and all general laws of the State of Idaho;
also for all independent school districts in his county organized under
general laws of the State, and for all cities and independent school
districts in his county, organized under the special laws of, or char-
ters granted by, this State, when any such special law or charter
has been so amended by the Legislature of the State of Idaho, as to
authorize such cities and independent school districts to collect reve-
nue under the provisions of this chapter, at the same time that
assessments for State and county taxes are made by him; and he
is authorized and empowered to do and perform all acts in relation
to the assessment and collection of such taxes as is provided herein
for the assessment and collection of such taxes for State and county
purposes. He shall list the property in such cities, towns, villages
and independent school districts, and the valuation thereof, so that
the properties in such cities, towns, villages and independent school
districts, and the valuation thereof, can be separately shown.
Historical: Laws 1901, 2 33, Sec. 6;
amended Laws 1905, 4, Sec. 1. "Title
13 of this Code" inserted for "the act
of the Third session of the Legislature
of the State of Idaho." The act re-
ferred to is found in Title 13. It was,
however, passed at the second and not
the third session of the State Legisla-
ture.
Delinquency of City and School Taxes.
Sec. 1805. All the general and special taxes of such cities, towns,
villages and independent school districts, levied and assessed under
the laws of this State and duly certified by the officers thereof to the
assessor, shall become due and delinquent at the time that State and
county taxes so become; and such taxes shall attach to and become
a lien on the real property assessed as do State and county taxes.
All the provisions of this chapter governing and in aid of assessment
and collection of State and county taxes, are hereby made applicable
to the assessment and collection of all general and special taxes in
such cities, towns, villages and independent school districts.
Ch. 1. Art. 16. PROPERTY TAXES — GENERAL PROVISIONS
779
Historical: Laws 1901, 233, Sec. 7;
amended Laws 190 5, 4, Sec. 2.
Premium for Collection.
Sec. 1806. All such cities, towns, villages and independent school
districts shall pay to the county in which said city, town, village and
independent school district is situated, one and one-half per cent
of the amount of such city and independent school district taxes
collected, and such payment shall be in full for such services and
compensation of all county officers in assessing, collecting, equalizing
and paying over said city and independent school district taxes.
Historical: Laws 1901, 233, Sec. 8.
Assessor to Give Bond.
Sec. 1807. Every assessor shall furnish bond to each city, town,
village or independent school district within his county authorized
by law to collect revenue under the provisions of this chapter, in
such amount as shall be fixed by the board of county commissioners
for the protection of such city, town, village or independent school
district.
Historical: Laws 1901, 233, Sec. 9.
ARTICLE 16.
GENERAL DUTIES AND LIABILITIES OF OFFICERS IN RELATION TO
REVENUE.
Section
1808. Officers to perform their own
duties.
1809. General duties of assessor.
1810. Supplies for assessor.
1811. Assessor to procure abstract
of all public lands.
1812. Assessor to procure plat book.
1813. Uncollected taxes: Liability of
assessor.
1814. Property escaping- taxation: Li-
ability of assessor.
1815. Wilful neglect of assessor: Lia-
bility.
1816. Same: County attorney to bring
suit.
1817. Settlements of tax collector
with county auditor.
Section
1818. Neglect of collector: Liability.
1819. Same: Action to enforce liabil-
ity.
1820. County attorney to sue for
taxes.
1821. Same: Evidence.
1822. Annual settlements of revenue
officers.
1823. Neglect of officers: Removal
from office.
1824. Books open to inspection.
1825. State Auditor may examine
books.
1826. Prosecution of delinquent offi-
cials.
1827. Same: Employment of coun-
sel.
Officers to Perform Their Own Duties.
Sec. 1808. The treasurer, tax collector, assessor, auditor, clerk of
the board of equalization, and each member of the board, must sep-
arately perform the duties required of him in his office, and must
not, except in cases orovided by law, perform the duties required of
any other officer under this chapter.
Historical: Laws 1901, 2 33, Sec. 175.
•s'«- Rev. St. 1887, Sec. 1709.
California Legislation: Similar:
Pol. Code 1872, Sec. 3890; Deering-'s
General Duties of Assessor.
Sec. 1809. The assessor must perform all the duties required and
Code, ib.; Kerr's Code, ib.
Cross Reference: Performing- duties
of two officers — penalty: Sec. 6392.
780 REVENUE Tit. 10
imposed by law in the assessment of all property for taxation; he
is ex-officio tax collector, and is authorized and required to receive
and collect all per capita or poll taxes, and all taxes assessed upon
real and personal property, as provided by law, and he has the
power provided by law to enforce the collection and payment of all
such taxes. In addition to the duties of such assessor heretofore
prescribed by law, he shall assess and collect all taxes levied by
cities, towns, villages and independent school districts authorized
by law to collect revenue under the provisions of this chapter.
Historical: Laws 1901, 233, Sec. 179.
See Rev. St. 1887, Sec. 2040.
Supplies for Assessor.
Sec. 1810. There must be allowed to the assessor and collector,
by the board of county commissioners, postage stamps in the amount
of twenty-five dollars, and necessary blank books, blanks and sta-
tionery for the use of his office in each year, not otherwise in this
chapter provided for.
Historical: Laws 1901, 233, Sec. 30.
Assessor to Procure Abstract of All Public Lands.
Sec. 1811. The assessor shall provide himself each year with an
abstract of all lands in his county upon which final proof has been
made in any United States land office ; and also of all lands purchased
from the State ; which abstract of State lands shall show the amount
paid upon each such purchase, and the land to which the State has
given its deed. The assessor shall pay for the same and shall be en-
titled to have his bill therefor audited and allowed to him as a nec-
essary expense of his office.
Historical: Laws 1901, 2 33, Sec. 15 0.
Assessor to Procure Plat Book.
Sec. 1812. The assessor must have prepared and platted a full,
accurate and complete plat book of his county, in which shall be
platted all townships and fractional townships therein which have
been officially surveyed and platted by the United States Government,
such plats to be made in a draftsmanlike manner on a scale of four
inches to the mile. All lands in the county for which the United
States has issued its patent shall be platted thereon in such a manner
as to correspond with the technical description of such lands as de-
scribed by the government survey thereof ; and on each of such tracts
shall be entered the name of the patentee thereof, together with the
name of the present owner. In all cases where any portion of such
township has been subdivided into lots and blocks for townsite pur-
poses, a plat of such townsite shall be prepared according to the
official subdivisons thereof, if it has been so subdivided, and upon
each subdivision shall be entered the name of the present owner,
and, if a government townsite, then also the name of the person to
whom the first deed for each subdivision thereof was issued. There
after when any deed of transfer is presented to the assessor which
in any wise affects any original ownership as shown by such plat,
it shall be his duty to change such plat as may be necessary to show
Ch. 1. Art. 16. PROPERTY TAXES — GENERAL PROVISIONS.
781
such change of title, and to enter the name of the present owner
thereon; and thereupon to stamp any such deed so presented with
the following- words, "Presented to and platted by me," and sign the
same, for which there shall be no charge. All necessary and
reasonable expense incurred by the assessor in complying with the
provisions of this section, shall be audited and allowed by the county
commissioners as a necessary expense of such office.
Historical: Laws 19 01, 2 3 3, Sec. 151.
Omitting the phrase ''within one
year after this act shall have become
a law."
Cross Reference: Assessor . to exe-
cute plat for purpose of assessment:
Sec. 2312.
Uncollected Taxes: Liability of Assessor.
Sec. 1813. The assessor shall be liable to the county, on his official
bond and upon any bond given by him under the provisions of this
chapter, to be recovered by an action thereon, for the amount of the
taxes on real and personal property assessed by him and not collected
as provided by law; also for all taxes on property within his county
which, through his wilful failure or neglect, is unassessed, and the
county attorney must, as soon as any liability hereunder attaches,
commence an action on the assessor's bond for the amount of taxes
lost from either or both such causes. On the trial of such action the
value of the property unassessed being shown, judgment for the
amount of taxes that should have been collected thereon must be
entered.
Historical: Laws 1901, 2 33, Sec. 185.
See Rev. St. 1887, Sees. 1457, 1458,
1459.
California Legislation : See Pol.
Code 1872, Sec. 3660; Deering's Code,
ib.; Kerr's Code. ib.
Property Escaping Taxation : Liability of Assessor.
Sec. 1814. If any property shall ultimately escape taxation for
any year, and such fact shall be made known to the board of county
commissioners before the final settlement and payment of salary due
to any assessor during whose administration such property was not
assessed, it shall be the duty of the board to deduct from any amount
then due or to become due such assessor, as salary or otherwise, the
amount of taxes on the property not assessed: Provided, however,
That the assessor shall be subrogated to the lien of the State and
county for such taxes, and may reimburse himself for the amount
of such taxes, by enforcing such lien in a proper action, or may have
a personal action for the recovery of the same with costs of such suit.
Historical: Laws 1901. 233, Sec. 61.
California Legislation: See Pol.
Code 1872, Sees. 3660, 3661 and 3662;
Deering's Code, ib.; as amended:
Kerr's Code, ib.
Wilful Neglect of Assessor : Liability.
Sec. 1815. If any assessor shall wilfully or knowingly list, or
assess, or shall suffer to be listed, or assessed, or returned upon the
assessment roll of his county, any property, real or personal, at an
amount of value less than its fair cash valuation, he shall be and is
hereby declared to be guilty of a misdemeanor, and, upon conviction
thereof, shall be fined in any sum not less than one hundred dollars
nor more than three hundred dollars for each offense. One-half of
any such fine collected shall be paid to the person or persons in-
782
REVENUE
Tit. 10
forming against and prosecuting such violation of the law, and the
other one-half shall be paid into the county treasury for the use of
the general school fund of the county where such conviction is had.
Historical: Laws 1901, 233, Sec. 62.
Same: County Attorney to Bring Suit.
Sec. 1816. It is hereby made the duty of the county attorney of
each county, upon information of any taxpayer in his county, corrob-
orated by one reputable witness, to prosecute all violatons of the pre-
ceding section, and if he shall fail or refuse to prosecute such viola-
tions of the law upon such information, he is hereby declared to be
guilty of a misdemeanor, and upon conviction thereof shall be fined
in any sum not less than one hundred dollars, nor more than three
hundred dollars. Seventy-five per cent of any fine collected shall be
paid to the person or persons who inform against and carry on such
prosecution, and twenty-five per cent thereof shall be paid to the
county treasury for the use of the general school fund of the county
where such conviction is had. Any attorney who may be employed
in the conduct of such prosecution is hereby vested with all the powers
of the county attorney for the county for the purpose of such prosecu-
tion.
Historical: Laws 1901, 233, Sec. 63.
Settlements of Tax Collector With County Auditor.
Sec. 1817. On the first Monday in each month the tax collector
must settle with the county auditor and clerk of any city, town, village
and independent school district, authorized by law to collect revenue
in the manner provided for in this chapter, for all moneys collected
for the State and county, or for such city, town, village and indepen-
dent school district, and pay the same to the respective treasurers of
such counties, cities, towns, villages and independent school districts,
taking their duplicate receipts therefor; and on the same day must
deliver to and file in the office of the auditor the receipts of such
treasurers, and a statement under oath, showing an account of all
his transactions and receipts since his last settlement, and that all
money collected by him as tax collector has been paid.
Historical: Laws 1901, 233, Sec. 100.
See Rev. St. 1887, Sec. 1520.
California Legislation : Similar:
Pol. Code 1872, Sec. 3753; Deering's
Code, ib.; Kerr's Code, ib.
Neglect of Collector: Liability.
. Sec. 1818. A tax collector refusing or neglecting for a period of
five days to make the payments and settlements required in this
chapter is liable for the full amount of taxes charged upon the assess-
ment roll.
Historical: Laws 1901, 233, Sec. 101.
Rev. St. 1887, Sec. 1521.
California Legislation: Same: Pol.
Code 1872, Sec. 3754; Deering's Code,
ib.; Kerr's Code, ib.
Same: Action to Enforce Liability.
Sec. 1819. The county attorney must bring suit against the tax
collector and his sureties for such amount, and in case of neglect, the
Ch. 1. Art. 16. PROPERTY TAXES — GENERAL PROVISIONS
783
board of commissioners may require him to do so; and when the
suit is commenced, no credit or allowance must be made to the tax
collector for the taxes outstanding.
Historical: Laws 1901, 233, Sec. 102.
See Rev. St. 1887, Sec. 1522.
California Legislation : Similar:
Pol. Code 1872, Sec. 3755; Deering's
Code, ib.; Kerr's Code, ib.
County Attorney to Sue for Taxes.
Sec. 1820. When the owner of any assessed personal property, the
taxes upon which are not a lien upon real property, has removed,
concealed or disposed of, or threatens or is about to remove, conceal
or dispose of such property, or any part thereof, before the taxes
levied thereon have been paid, or do, or suffer or cause to be done
any act to prevent the seizure thereof by the tax collector, or when
from any cause beyond his control, but not a failure to collect at the
time when assessed, the tax collector is unable to collect the taxes
upon any assessed personal property, the county attorney must, upon
written notice from the tax collector, commence, in the name of the
county, a personal action against such owner in the county where
the assessment was made, for taxes and the percentage, interest
and costs, and in any action the provisional remedies of arrest and
bail and of attachment may be issued against such owner and his
property.
Historical: Laws 1901, 233, Sec. 153.
Rev. St. 1887, Sec. 1575.
Same : Evidence.
Sec. 1821. On the trial a certified copy of the assessment, signed
by the auditor of the county where the same was made, with the
affidavit of the collector thereto attached, that the taxes have not
been paid, describing it on the assessment book or delinquent list,
is prima facie evidence that such tax and the per centum is due, and
entitled him to judgment, unless the defendant proves the tax is paid.
Historical: Laws 19 01, 233, Sec. 154.
Rev. St. 1887, Sec. 1576.
Annual Settlements of Revenue Officers.
Sec. 1822. Every assessor and tax collector, county attorney and
county attorney must annually, on the first Tuesday after the first
Monday of January, make a settlement with the county auditor and
with the clerks of all cities, towns, villages and independent school
districts authorized by law to collect revenues as provided by this
chapter in his county, of all transactions connected with the revenue
for the previous year, and thereafter the auditor shall not issue any
certificate for the payment of any money to the treasurer by the tax
collector on account of the revenues of such year, until after the date
when the tax collector is authorized by law to collect delinquent taxes ;
and on revenues reported collected after such time the penalty of
ten per cent, on account of delinquency, shall be reported at the
same time and included in the regular reports of the assessor to the
auditor and officers named therein concerning the collection of
revenue.
Vol. 1 — 26
784
REVENUE
Tit. 10
Historical: Laws 1901, 233, Sec. 174.
See Rev. St. 1887, Sec. 1708.
California Legislation: See Pol.
Code 1872, Sec. 3889; Deering's Code,
ib.; Kerr's Code, ib.
Neglect of Officers: Removal From Office.
Sec. 1823. Whenever an assessor, collector, auditor, treasurer, or
any other officer upon whom any duties devolve under this chapter,
or under any other revenue act of this State, wilfully neglects or
refuses to perform any such duties, or performs them in a careless
or incompetent manner, he may be removed from office in the manner
prescribed by law, and when proceedings are commenced to remove
such officer from his office, the board of commissioners (in case
such officer be a commissioner, then the probate judge) may suspend
such assessor, collector, auditor, treasurer or other officer from his
powers and duties under this chapter, and under any other revenue
act, and appoint a competent person in his place, until the proper
tribunal has either removed or acquitted such suspended officer. An
act concerning the revenue or assessment, or the collection of taxes
or sale of property for non-payment of taxes, performed by any
such temporary officer, is as valid and of the same force and effect
as if performed by the suspended officer: Provided, That such ap-
pointee has first qualified and given such bond with sureties for the
faithful performance of the duties of his office, as is required of
persons elected thereto.
Historical: Laws 1901, 233, Sec. 172.
Rev. St. 1887, Sec. 1706.
Books Open to Inspection.
Sec. 1824. The books, papers and accounts of each officer relating
to the assessment or collection of taxes, or the receiving, auditing
or disbursing of moneys collected for the use or benefit of the State,
or of any county, must at all times during office hours, when not
necessarily in use by the officers, be open for any person whomsoever
to inspect or copy, without any fee or charge.
Historical: Laws 1901, 2 33, Sec. 176.
Rev. St. 18 87, Sec. 1711.
State Auditor May Examine Books.
Sec. 1825. The State Auditor, or any person authorized by him,
may examine the books of any officer charged with the collection
and receipt of State taxes and revenues.
Historical: Laws 1901, 233, Sec. 164.
See Rev. St. 1887, Sec. 1683.
California Legislation: See Pol.
Code 1872, Sec. 3877; Deering's Code,
ib.; Kerr's Code, ib.
Prosecution of Delinquent Officials.
Sec. 1826. If he believes any officer has been guilty of defrauding
the State revenues, or has neglected or refused to perform any duty
relating to the revenue, he must direct the county attorney or other
counsel to prosecute the delinquent.
Historical: Laws 1901. 2 33, Sec. 16 5.
Rev. St. 1887, Sec. 1684.
California Legislation: Similar: Pol.
Code 1872, Sec. 3878; Deering's Code,
ib.; as amended: Kerr's Code, ib.
Ch. 2.
LICENSE TAXES
785
Same : Employment of Counsel.
Sec. 1827. The State Auditor or Attorney General may employ
other counsel than the county attorney, and the expenses must be
paid out of the State Treasury.
Historical: Laws 1901, 233, Sec. 166.
See Rev. St. 1887, Sec. 1685.
California Legislation: See Pol.
Code 1872, Sec. 3880; Deering's Code,
ib.; Kerr's Code, ib.
Appropriation Necessary: The last
clause of this section, "and the ex-
penses must be paid out of the Ter-
ritorial Treasury," does not make an
appropriation for the payment of ser-
vices rendered. Kingsbury v. Ander-
son (1898) 5 Ida. 771; 51 Pac. 744.
CHAPTER 2.
LICENSE TAXES.
Section
1828. Licenses to be prepared and
printed.
1829. Licenses to be transmitted to
treasurer.
1830. Forms for county licenses.
1831. Delivery of licenses to tax col-
lector.
1832. Auditor to keep license ac-
count.
1833. Treasurer to report to State
Auditor.
1834. License to be procured before
commencing business.
Mote: Liquor licenses: Sees. 1506
setj.
Section
1835. Suits for recovery of license
tax.
1836. Same: Production of licenses.
1837. Monthly settlements for li-
censes: Application of license
moneys.
1838. Pees for licenses.
1830. Auctioneer's license.
1840. Bridge and ferry license.
1841. Exhibitions, pawnbrokers and
billiard hails.
et seq.; peddlers' licenses: Sees. 1528 et
Licenses to Be Prepared and Printed.
Sec. 1828. The State Auditor must prepare and have printed blank
licenses of all classes mentioned in this chapter for terms of three,
six and twelve months, and for such shorter terms as are herein
authorized to be issued, with a blank receipt attached for the signature
of the tax collector when sold.
Historical: Rev. St. 1887, Sec. 1630.
See 8 Ter. Ses. (1875) 475, Sec. 81.
California Legislation: Same exceot
"each county auditor" for "the State
Auditor", line 1: Pol. Code 1872, Sec.
3356; Deering's Code, ib.; Kerr's Code,
ib.
Cross Reference: Legislature may
impose license taxes on persons and
corporations: Const. Art. 7, Sec. 2.
Licenses to Be Transmitted to Treasurer.
Sec. 1829. The State Auditor, after signing, numbering and classi-
fying the same, must transmit as many as may be required to the
treasurer of each county and charge him therewith. The treasurer
must countersign the same and deliver them to the county auditor,
taking his receipt therefor, and charge him therewith, giving in the
entry the number, classes and amounts thereof.
Historical: Rev. St. 1887, Sec. 1631.
See 8 Ter. Ses. (1875) 475, Sec. 81.
Forms for County Licenses.
Sec. 1830. The county auditor must furnish printed forms (simi-
lar to those furnished by the State Auditor) for all licenses, the
entire proceeds of which are paid into the county treasury, and each
786
REVENUE
Tit. 10
license must be first numbered by the county treasurer, and by said
treasurer charged to the auditor in a book kept for that purpose.
Historical: Rev. St. 1887, Sec. 1632.
8 Ter. Ses. (1875) 475, Sec. 53.
Delivery of Licenses to Tax Collector.
Sec. 1831. The county auditor must affix his official seal to, and
sign, all licenses, and from time to time deliver them to the tax
collector in such quantity as may be required, taking his receipt
therefor and charging him therewith, giving in the entry the num-
bers, classes and amounts thereof.
Historical: Rev. St. 1887, Sec. 1663.
Ter. Ses. (1875) 475, Sec. 82.
California Legislation: Same except
"number" inserted before "and sign",
line 1; Pol. Code 1872, Sec. 3357;
Deering's Code, ib.; Kerr's Code, ib.
Auditor to Keep License Account.
Sec. 1832. The auditor must keep in his office the stumps of all
licenses by him delivered to the tax collector, and a ledger in which
he must keep the collector's account for all licenses delivered to him,
sold or returned unsold by him. A correct statement of the collector's
license account must be certified to the county treasurer each month
by the auditor.
Historical: Rev. St. 1887, Sec. 1634.
California Legislation: Same: Pol.
Code 1872, Sec. 3358; Deering's Code,
ib.; Kerr's Code, ib.
Treasurer to Report to State Auditor.
Sec. 1833. On the first business day of January, April, July and
October, respectively, of each year, or within ten days thereafter,
each county treasurer must report to the State Auditor, the number
of licenses issued by the tax collector or officer charged with the
duty of issuing the same, the amount of money paid for the same,
and the number and description of licenses on hand, and the State
Auditor must hold each county treasurer or other county officer re-
sponsible for all licenses issued to him under this chapter, not ac-
counted for or returned at the settlement required by this title to
be made on the first Tuesday after the first Monday of January of
each year.
Historical: Rev. St. 188 7, Sec. 16 35.
See 8 Ter. Ses. (1875) 475, Sec. 87.
Cross Reference: Settlement on
first Tuesday after first Monday of
January: Sec. 1822.
License to Be Procured Before Commencing Business.
Sec. 1834. A license must be procured immediately before the
commencement of any business or occupation liable to a license tax
from the tax collector of the county where the applicant desires to
transact the same, which license authorizes the party obtaining the
same in his town, city or particular locality in the county to transact
the business described in such license. Separate licenses must be
obtained for each branch, establishment or separate house of busi-
ness located in the same county. No license issued under this chapter
authorizes any person to carry on any business within the limits
of any incorporated city or town having power by its charter to
impose or levy city or town license taxes, unless such person in
Ch. 2.
LICENSE TAXES
787
addition to the license provided by this chapter, also procures the
license required by the ordinances or orders of such city or town.
Historical: Rev. St. 1887, Sec. 16 36.
See 8 Ter. Ses. (1875) 475, Sec. 84.
California Legislation: Same: Pol.
Code 1872, Sec. 3359; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Vermont Loan Co. v. Hoff-
man (1897) 5 Ida. 376; 49 Pac. 314.
Suits for Recovery of License Tax.
Sec. 1835. Against any person required to take out a license who
fails, neglects or refuses to take out such license, or who carries on,
or attempts to carry on, business without such license, the collector
may direct suit in the name of the State of Idaho as plaintiff, to be
brought for the recovery of the license tax, and in such case either
the collector or prosecuting attorney may make the necessary affidavit
for a writ of attachment, which may issue without any bonds being
given on behalf of the plaintiff. In case of a recovery by the plaintiff,
twenty dollars damages must be included in the judgment and costs
to be collected from the defendant, and when collected five dollars
thereof must be paid to the collector and fifteen dollars to the prose-
cuting attorney prosecuting the suit.
Historical: Rev. St. 1887, Sec. 1637.
See 8 Ter. Ses. (1875) 475, Sec. 84.
California Legislation: Similar: Pol.
Code 1872, Sec. 3360; Deering's Code,
ib.; Kerr's Code, ib.
Same : Production of License.
Sec. 1836. Upon the trial of any action authorized by this chapter,
the defendant is deemed not to have procured the proper license
unless he either produces it or proves that he did procure it; but
he may plead in bar of the action a recovery against him and the
payment by him in a civil action of the proper license tax, together
with the damages and costs.
Historical: Rev. St. 1887, Sec. 163 9.
See 8 Ter. Ses. (1875) 475, Sec. 84.
California Legislation: Same: Pol.
Code 1872, Sec. 3362; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Bingham Co. v. Fidelity &
Deposit Co. (1907) 13 Ida. ...; 88
Pac. 829.
Monthly Settlement for Licenses: Application of License Moneys.
Sec. 1837. On the first Monday in each month the collector must
return to the auditor all licenses unsold and be credited therewith,
and must, with the auditor, appear at the treasurer's office and pay
into the county treasury all moneys collected for licenses sold during
the preceding month, take the treasurer's receipt therefor and file a
duplicate thereof with the auditor. The auditor must credit the
collector and charge the treasurer therewith.
Fifty per cent of all moneys paid for licenses shall be applied to
and constitute a part of the school fund of the school district in
which said licenses are collected, forty per cent to the general road
fund of the county in which said licenses are collected, and ten per
cent shall be paid into the State Treasury: Provided, That forty
per cent of all moneys paid for licenses by applicants within incor-
porated towns, cities and villages, or cities acting under special char-
ters, shall be paid by the county treasurer to the municipal authori-
788
REVENUE
Tit. 10
ties of such town, city or village, for general revenue purposes of
such town, city or village ; fifty per cent of said moneys so paid for
licenses are to be applied and constitute a part of the school fund
of the school district in which said licenses are collected, and ten
per cent shall be paid into the State Treasury. The collector shall
file with the treasurer a statement or report each quarter showing
the amount of licenses collected in each school district, incorporated
town, city or village, or city acting under special charter.
Historical: Rev. St. 1887, Sec. 1640;
amended Laws 1895, 37, Sec. 1; re-
enacted Laws 1899, 242, Sec. 1.
California Legislation: Similar
through first paragraph, rest omitted:
Pol. Code 1872, Sec. 3363; Deering's
Code, ib.; Kerr's Code, ib.
Cited: Steunenberg v. Storer (1898)
6 Ida. 44; 52 Pac. 14.
Fees for Licenses.
Sec. 1838. For each license issued the collector must collect a fee
of one dollar, which must be equally divided between the auditor and
collector.
Historical: Rev. St. 1887, Sec. 1641.
See 8 Ter. Ses. (1875) 475, Sec. 75.
California Legislation: Similar: Pol.
Code 1872, Sec. 3364; as amended:
Deering's Code, ib. ; Kerr's Code, ib.
Auctioneer's License.
Sec. 1839. Every auctioneer must obtain a license from the tax
collector and must pay therefor five dollars per month: Provided,
That upon the payment of twenty dollars in advance an auctioneer
may obtain from the tax collector an annual license, which annual
license shall date from the first day of March of each and every year.
Historical: Rev. St. 1887, Sec. 1642;
amended Laws 1899, 377, Sec. 1. I
Bridge and Ferry License.
Sec. 1840. Licenses to take tolls on bridges or ferries are fixed
annually by the commissioners. The licenses therein provided for
are issued by the county auditor, and must be obtained from the tax
collector of the county.
Historical: Rev. St. 1887, Sec. 1643.
See 8 Ter. Ses. (1875) 866, Sec. 5.
California Legislation: Similar: Pol.
Code, 1872, Sec. 3378; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Bridge and ferry
licenses: See Tit. 7, Ch. 4 (Sees. 1013
et seq).
Exhibitions, Pawnbrokers and Billiard Halls.
Sec. 1841. Licenses must be obtained for the purposes hereinafter
named, for which the tax collector must require the payment as
follows :
1. For each exhibition for pay of a caravan or menagerie, or
any collection of animals, circus, equestrian or other acrobatic per-
formance, ten dollars; and for each show for pay of any figures,
jugglers, necromancers, magicians, wire or rope dancing, or sleight
of hand exhibition, Hve dollars each day;
2. From each pawnbroker, fifty dollars per quarter;
3. From each proprietor or keeper of a billiard, pool or bagatelle
table, or any other kind of a table on which games are played with
Ch. 3.
POLL TAXES
789
ball and cue, for each table five dollars per quarter, and for a bowling
alley five dollars per quarter for each alley; but no license must be
granted for a term less than three months.
Historical: Rev. St. 1887, Sec. 164 5.
(See 8 Ter. Ses. (1875) 475, Sec. 72;)
amended Laws 1903. 104, Sec. 1. The
opening paragraph was omitted from
the amendatory act, but is found in
the Revised Statutes and is inserted
to make the section complete.
California Legislation: Similar
with additional provisions: Pol. Code
1872, Sec. 3380; as amended: Deer-
ing's Code, ib. ; Kerr's Code, ib.
Constitutionality: This section as
amended by the Laws of 1903, is held
constitutional. State v. Jones (1904)
9 Ida. 693; 75 Pac. 819.
CHAPTER 3.
POLL TAXES.
Section
1842.
1843.
Persons subject to poll tax.
Poll tax receipts: Charge to
collector: Amount.
1844. Return of two dollar receipts
to auditor.
1845. Signature by treasurer and
auditor.
1846. Issuance of receipts to collec-
tor.
1847. Official receipts must be used.
1848. Poll tax a lien on realty: Seiz-
ure of personalty.
1849. Sale of personalty.
1850. Procurement of names from
employers.
1851. Same: Liability of employer.
1852. Same: Deduction of poll tax
from indebtedness.
Section
1853. Delivery of receipt to pur-
chaser at sale.
1854. Receipt as evidence of pay-
ment.
1855. Monthly settlements with aud-
itor.
1856. Same: Disposition of receipts
not used.
1857. Credit to auditor.
1858. Poll tax book.
1859. Liability of collector for poll
taxes.
1860. Return of two dollar and fifty
cent receipts.
1861. Erasure of names on book.
1862. Apportionment of poll tax
money.
Xote: For prior poll tax laws, see Rev. St. 1887, Sees. 1600-1619; Laws
1888-89, 7.
Persons Subject to Poll Tax.
Sec. 1842. Every male inhabitant of this State, over twenty-one
and under fifty years of age, except paupers, insane persons, Indians
not taxed, government pensioners, active members of volunteer fire
companies, regularly enrolled as such, and persons premanently dis-
abled so as not to be able to perform manual labor, and honorably
discharged soldiers in the volunteer service of the United States, must
annually pay a poll tax of two dollars, if paid on or before the second
Monday in January, and after that date two dollars and fifty cents.
Historical: Laws 19 01, 2 9 8, Sec. 1.
California Legislation: See Pol.
Code 1872, Sec. 3839; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Poll Tax Receipts : Charge to Collector : Amount.
Sec. 1843. Upon delivering poll tax receipts to the tax collector
as provided in this chapter, the auditor must charge the same to
him, and take his receipt therefor. All such receipts delivered to the
tax collector before the second Monday of January must be for the
sum of two dollars each, and he must charge that sum for each, and
all such receipts delivered to the tax collector after the second Mon-
Cross Reference: Legislature may
authorize a per capita tax: Const. Art.
7, Sec. 2.
790 REVENUE Tit. 10
day of January in each year must be for the sum of two dollars and
fifty cents each, and he must be charged that sum for each.
Historical: Laws 1901, 298, Sec. 2.
Return of Two Dollar Receipts to Auditor.
Sec. 1844. On the first Tuesday after the first Monday in January
the tax collector must return to the auditor all the two dollar poll
tax receipts received by him and not used, and make full settlement
with the auditor therefor, and pay to the treasurer the total amount
collected and not before paid in, and file the treasurer's receipt there-
for with the auditor.
Historical: Laws 1901, 298, Sec. 3.
Signature by Treasurer and Auditor.
Sec. 1845. The auditor of each county shall cause a sufficient num-
ber of poll tax blank receipts, and delinquent poll tax receipts, con-
secutively numbered from one, in each series, having the year for
which issued printed in red skeleton letters as large as convenient
thereon, the delinquent poll tax receipts being plainly distinguished
as such; and said auditor must cause a number thereof equal to the
probable number of inhabitants in each county liable to pay poll tax,
to be immediately forwarded to the county treasurer of each county,
who shall sign them, or so many of them as may be required, and
make an entry thereof in a book to be kept for that purpose; and
thereupon deliver them to the county auditor, who must likewise
sign them and make an entry of the number he received in a book to
be kept by him for that purpose.
Historical: Laws 1901, 2 S3, Sec. 4.
Issuance of Receipts to Collector.
Sec. 1846. The county auditor must from time to time issue to
the tax collector so many of the receipts for poll tax as he may need,
taking his receipt therefor.
Historical: Laws 1901, 298, Sec. 5.
Official Receipts Must Be Used.
Sec. 1847. No receipt for poll tax other than those mentioned in
this chapter, must be used or given for the payment of any such tax.
Historical: Laws 1901, 298, Sec. 6.
Poll Tax a Lien on Realty: Seizure of Personalty.
Sec. 1848. The poll tax is a lien upon the real property assessed
to the person liable therefor, and such property shall be sold at tax
sale therefor, as other taxes, and at the same time and in connection
therewith; but when such person is not assessed for real property,
the tax collector may collect his poll tax at any time. The tax col-
lector must demand payment of poll tax of every person liable there-
for, and on the neglect or refusal of any person, who is not assessed
for real property, to pay the same, he must collect it by seizure and
sale of any personal property owned by such person.
Historical: Laws 1901, 298, Sec. 7. I Code 1872, Sec. 3860; as amended:
California Legislation: See Pol. ' Dperin-s Code, ib.; Kerr's Code, lb.
Ch. 3. POLL TAXES 791
Sale of Personalty.
Sec. 1849. The sale may be made after three hours' verbal notice
of time and place, and the provisions of the revenue law relating to
seizure and sale of personal property for taxes thereon are applicable
thereto.
Historical: Laws 1901, 2 98, Sec. 8.
Cross Reference: Seizure and sale of
personal property: Sees. 1777-1783.
Procurement of Names From Employers.
Sec. 1850. The tax collector may demand of any employer, or from
the superintendent or foreman of any mine or reduction works, or
any agent of a corporation, the names of all persons in his employ,
or employed in such mine or works or by any such corporation.
Historical: Laws 1901, 2 98, Sec. 9.
Same: Liability of Employer.
Sec. 1851. Every person, company or corporation indebted to one
who neglects or refuses, after demand, to pay a poll tax for which
he is liable, becomes liable therefor; and must pay the same after
service upon him, or upon any member or agent of such company,
or agent of such corporation, by the collector, of a notice in writing
stating the name of any such delinquent.
Historical: Laws 1901, 298, Sec. 10.
Same: Deduction of Poll Tax From Indebtedness.
Sec. 1852. Every person, company or corporation paying the poll
tax of another, may deduct the same from any indebtedness to such
person.
Historical: Laws 1901, 298, Sec. 11. Code 1872, Sec. 3850; Deering's Code,
California Legislation: Similar: Pol. ' ib- Kerr's Code, ib.
Delivery of Receipt to Purchaser at Sale.
Sec. 1853. The tax collector must deliver the poll tax receipt, filled
out with the name of the person owing the taxes attached to the
tax certificate, to the purchaser of property at any sale for delinquent
taxes; in other cases he must deliver it, filled out in like manner, to
the person paying the tax.
Historical: Laws 1901, 298, Sec. 12. Code 1872, Sec. 3851; Deering's Code,
California Legislation Similar: Pol. ' ib- Kerr's Code, ib.
Receipt as Evidence of Payment.
Sec. 1854. The receipt so delivered is the only evidence of pay-
ment.
Historical: Laws 1901, 298, Sec. 13. | Code 1872, Sec. 3852; Deering's Code,
California Legislation: Same: Pol. ' ib- Kerr's Code, ib.
Monthly Settlements With Auditor.
Sec. 1855. On the first Monday in each month the collector must
make an oath, before the auditor, of the total amount of poll taxes
collected by him during the last preceding month, and must at the
792
REVENUE
Tit. 10
same time settle with the auditor for the same, and pay into the
county treasurer's office the total amount of poll taxes collected, and
file the treasurer's receipt therfor with the auditor.
Historical: Laws 1901, 2 98, Sec. 14.
California Legislation : Similar: Pol.
Code 1872, Sec. 3853; Deering's Code,
ib.; Kerr's Code, ib.
Same: Disposition of Receipts Not Used.
Sec. 1856. The auditor must, as soon as either settlement is made,
return to the treasurer the receipts not used.
Historical: Laws 1901, 298, Sec. 15.
California Legislation: Same except
'the" for "either": Pol. Code 1872,
Sec. 38 55; Deering's Code, ib.; Kerr's
Code, ib.
Credit to Auditor.
Sec. 1857. The treasurer must credit the auditor with the receipts
so returned, and thereupon seal them up securely and mark the
year and number of receipts, and class thereon, and file the same.
Code 1872, Sec. 3856; Deering's Code,
ib.; Kerr's Code, ib.
Historical: Laws 1901, 298, Sec. 16.
California Legislation: Similar: Pol.
Poll Tax Book.
Sec. 1858. It is the duty of the assessor of each county, during
the month of January next succeeding any general election, to copy
into a book furnished him by the board of county commissioners of
his county, to be known as the "Poll Tax Book", the name of every
person on the registrar's "Register of Qualified Electors," subject
to payment of a poll tax. The names must be alphabetically arranged
according to the first letter of the family name, and said book must
be kept in his office as a public record. Such officer must, from time
to time, add to the lists in said book, under the proper letter, the
names of any residents of his county, or of any persons who may
have become residents of said county, or who may attain their ma-
jority, who are subject to the payment of a poll tax. And any resident
of the county may require such officer to insert in said book, under
the proper letter, any omitted name of any resident of said county
who is subject to the payment of a poll tax, and for the wilfu
omission from the proper place in said book, of the name of any
resident of his county subject to the payment of a poll tax, such
officer forfeits to the school fund of his county the sum of twenty-
five dollars for each name so wilfully omitted, to be recovered in an
action on his official bond by the county superintendent of public
instruction.
Historical: Laws 1901, 298, Sec. 17.
Liability of Collector for Poll Taxes.
Sec. 1859. Such officer must, at the regular meeting of the board
of county commissioners on the second Monday in Seotember ir
each year, produce his poll tax book to the board, and he must be
charged with one poll tax for every name in said book, and can onh
be discharged by showing that he has collected the tax of every persor
named in said book, or that those from whom he has failed to collec
(Jh. 3. POLL TAXES 793
such poll tax have died, removed from the county, or become exempt,
or that, for some other sufficient reason, the tax in such case could
not be collected; and every poll tax from which he is not thus dis-
charged by the board, he must collect before the day on which he
is required herein to return to the auditor all poll tax receipts, or be
finally charged therewith: Provided, That the delivery of the poll
tax receipt of any person whose property has been sold for taxes to
the county, attached to the tax certificate therefor, shall be deemed
a collection of such poll tax; and the board must cause action to be
brought upon the official bond of such officer for the amount of such
final charge, together with the amount of any other poll taxes he
has wilfully failed to collect; and in any such action, proof that the
name of any delinquent is on his poll tax book, and that he was not
discharged from the collection of the tax from such delinquent by
the commissioners, or that any resident of the county had given
him the name of any delinquent as that of any person subject to the
payment of such tax, is prima facie evidence of such wilful neglect
by the officer and can only be rebutted by proof that the tax is paid,
or that the alleged delinquent is exempt or not subject to poll tax
in the county, or that it could not be collected by the means afforded
by law.
Historical: Laws 1901, 298, Sec. 18.
Return of Two Dollar and Fifty Cent Receipts.
Sec. 1860. On the day upon which the assessor is required by law
to file the tax certificates for property sold for delinquent taxes, and
to turn over the delinquent tax roll to the auditor, he must return
to the auditor all of the two dollar and fifty cent poll tax receipts
received by him and not used, and make final settlement therefor,
and pay the treasurer all poll tax money not before paid in, and
rile the treasurer's receipt therefor with the auditor; and thereupon
the auditor must return such delinquent poll tax receipts to the
treasurer, who must credit the auditor with the same and file the
same in the manner required for two dollar poll tax receipts.
Historical: Laws 1901, 298, Sec. 19.
Erasure of Names on Book.
Sec. 1861. No name once entered on said poll tax book must be
erased therefrom except by the direction of the board of county
commissioners, on the ground that the party is not subject to the
tax; and any name once placed on a poll tax book must be carried
to the new books successively to be prepared after each general
election unless so directed to be omitted.
Historical: Laws 1901, 29 8, Sec. 20.
Apportionment of Poll Tax Money.
Sec. 1862. All money collected as poll taxes under the provisions
of this chapter, must be paid into the county treasury, and shall be
apportioned to the "current expense" fund of the county in which
collected.
Historical: Laws 1901, 298, Sec. 21.
794
REVENUE
Tit. 10
CHAPTER 4.
TAXATION OF PROFITS OF MINES.
Section
Section
1863.
Valuation of mines for taxa-
tion.
1868.
1864.
Net profits denned.
1869.
1865.
Statement of net profits.
1870.
1866.
Statement as to entire group.
1871.
1867.
False statements constitute
perjury.
1872.
Examination of books: Penalty
for false statement.
Assessment without statement.
Assessment book.
General duties of officers.
Collection of tax.
Valuation of Mines for Taxation.
Sec. 1863. All mines and mining claims, both placer and rock in
place, containing or bearing gold, silver, copper, lead, coal, or other
valuable mineral or metal deposits, after purchase thereof, from the
United States, shall be taxed at the price paid the United States
therefor, unless the surface ground, or some part thereof, of said
mine or mining claim is used for other than mining purposes, and
has a separate and independent value for such other purposes, in
which case said surface ground, or any part thereof so used
for other than mining purposes, shall be taxed at its value for such
other prposes, and all machiery used in mining, and all property
and surface improvements upon mines or mining claims, which have
a value separate and independent of such mines or mining claims,
and the net annual proceeds of all mines and mining claims shall be
taxed: Provided, That nothing in this chapter contained must be
construed so as to exempt from taxation improvements, buildings,
erections, structures or machinery placed upon any mining claim,
or used in connection therewith.
Historical: Laws 1903, 4, Sec. 1.
The proviso is the last sentence of Sec.
8 (Sec. 1868 post).
Net Profits Defined.
Sec. 1864. The term "net profits, " as employed in this chapter,
means the amount of money received from the mining of said metals
or minerals from said mine or mining claim, after the deduction of
the actual expenditure of money and labor in and about extracting
the metals and minerals from the mine or mining claim, and trans-
porting the same to the mill, concentrator or reduction works, and
the reduction thereof, and the conversion of the same into money,
or its equivalent, and also the deduction of all moneys expended for
necessary labor, machinery and supplies needed and used in the min-
ing operations, for the improvements necessary in and about the
mine or mining claim, for reducing ores, for the construction of the
mills and reduction works used and operated in connection with the
mine or mining claim, for transporting the ore, and for extracting
the metals and minerals therefrom; but the money invested in the
mine, or improvements made during any year except the year im-
mediately preceding such statement, must not be included therein.
Such expenditures do not include the salaries, or any portion thereof,
of any person or officers not actually engaged in the working of the
mine, or personally superintending the management thereof.
Ch. 4. TAXATION OF MINING PROFITS 795
Historical: Laws 1903, 4, Sec. 4.
Statement of Net Profits.
Sec. 1865. Every person, corporation or association, engaged in
mining upon any quartz vein or lode, or placer mining claim, con-
taining gold, silver, copper, lead, coal or other precious and valuable
minerals or metals, or mineral or metal deposits, must between the
first day of January and the first day of May in each year, make
out a statement of the net profits derived from the mining of said
metals or minerals, from each mine or mining claim owned or worked
by such person, or from each group of mines or mining claims worked
by a common system of development, during the year preceding the
first day of January. Such statement must be verified by the oath
of such person, or superintendent or managing agent of such cor-
poration or association, who must deliver the same to the assessor
of the county in which such mines are situated.
Historical: Laws 1903, 4, Sec. 2.
Statement as to Entire Group.
Sec. 1866. Where the same person or company or association is
operating two or more mining claims under one general system of
mining or development, the product of which group of mines is
mingled and treated as one mining operation, the statement of the
owner provided herein to be made, and the assessment provided
herein to be made by the assessor, shall be made as to such entire
group, and need not be made as to each particular mining claim con-
stituting said group.
Historical: Laws 1903, 4, Sec. 5.
False Statements Constitute Perjury.
Sec. 1867. If any one herein required to make a statement, shall
knowingly and wilfully swear to any false statement contained there-
in, then such person shall be guilty of perjury, and shall be prose-
cuted and punished as provided for in other cases of perjury.
Historical: Laws 1903, 4, Sec. 10.
Cross Reference: Punishment for
perjury: Sec. 6486.
Examination of Books: Penalty for False Statement.
Sec. 1868. The assessor, after such statement has been rendered,
shall have the right to examine the books and accounts of any person,
corporation or association engaged in mining as mentioned in this
chapter, in order to verify the statement made by such person, cor-
poration or association, and if from such examination he finds such
statement false, he must assess the net proceeds in the same manner
as if no statement had been made and delivered, by making an esti-
mate from the best sources within his reach, and if satisfied that the
false statement was intentionally so made, he shall add as a penalty
therefor, to the amount of the net proceeds so found, fifty per cent
thereof, which amount thus increased, shall constitute the sum upon
which the taxes must be levied and collected, and such assessment
shall be binding, effectual and lawful, and the value so fixed by the
assessor shall not be reduced by the county board of equalization.
796
REVENUE
Tit. 10
All information derived from any examination of the books and
accounts made pursuant to this chapter by the assessor, or any one
acting for him or representing him, shall be deemed to be and held
as confidential communications not to be communicated to any other
person by the person making such examination, or any one to whom
the knowledge of such examination or facts therein disclosed shall
come, except when it becomes necessary as a part of the performance
of the public duty of such person to disclose the same in any pro-
ceeding affecting the validity of- said assesment or taxation, or for
the prosecution for perjury of the person required to make the
statement mentioned in this chapter. Any person or officer making
such disclosure or violating such confidence, except as herein pro-
vided, shall be deemed guilty of a felony, and upon conviction thereof
shall be removed from office and punished as in case of other felonies.
Historical: Laws 1903, 4, Sec. 8.
Omitting- the last sentence, which is
added as a proviso to Sec. 1863.
Cross Reference: Punishment for
felony: Sec. 6312.
Assessment Without Statement.
Sec. 1869. If any person, corporation or association, engaged in
mining as mentioned in this chapter, refuses or neglects to make and
deliver to the assessor of the county where the mines are located,
the statement mentioned in this chapter, such assessor must list the
property and assess, according to his knowledge and information,
the amount of said tax in the manner provided by the law for the
assessment of other property where no statement is furnished.
Historical: Laws 1903, 4, Sec. 7.
Assessment Book.
Sec. 1870. The assessor must prepare at the time of the prepara-
tion of the general assessment book, another assessment book called
the "Assessment Book of the Net Profits of Mines," alphabetically
arranged, in which must be listed the net profits of all the mines in
his county, and in which must be specified in separate columns and
under appropriate heads :
1. The name of the owner or owners of the mines;
2. The name, description and location of the mine ;
The number of tons extracted during the year;
The gross yield or value in dollars and cents;
The actual cost of extracting the same from the mine;
The actual cost of transportation to the place of reduction
or sale;
7. The actual cost of reduction or sale;
8. The cost of construction of betterments and repair of mines
and reduction works during the year;
9. The net profits in dollars;
10. The total amount of taxes.
Historical: Laws 1903, 4, Sec. 3.
General Duties of Officers.
Sec. 1871. The duties of the assessor, county auditor, State Board
of Equalization and the county board of equalization, as to the assess-
ment of the net profits of mines, the statements and returns to be
3.
4.
5.
6.
Ch. 5.
TRANSFER TAX
797
made, the equalization thereof, and other official acts, are the same
as those provided by the laws of this State for the assessment of
other property.
Historical: Laws 1903, 4, Sec. 6.
Collection of Tax.
Sec. 1872. The tax mentioned in the preceding sections must be
collected, and payment thereof enforced, as the collection and en-
forcement of other taxes are provided for, and every such tax is a
lien upon the mine or mining claim from which the ores or minerals
are extracted, which lien attaches on the second Monday of January
of each year, and the sale thereof for delinquent taxes may be made
as provided for the sale of real estate for delinquent taxes.
Historical: Laws 1903, 4, Sec. 9.
CHAPTER 5.
TRANSFER TAX ON SUCCESSIONS, LEGACIES AND DEVISES.
Section
1873. Transfer subject to tax.
1874. Appointment deemed a taxable
transfer.
1875. Rate of tax.
1876. Same.
1877. Exemptions.
1878. Tax on future and contingent
estates.
1879. Tax on devise to executor.
1880. Time of payment: Extension:
Interest.
1881. Collection of tax by adminis-
trator.
1882. Sale of property to pay tax.
1883. Payment of tax by administra-
tor.
1884. Refund of excess tax.
1885. Collection of tax from non-res-
ident administrator.
Section
1886. Appraisement of transfer.
1887. Acceptance of bribe by ap-
praiser.
1888. Jurisdiction over estate of non-
resident.
1889. Definitions.
1890. Collection of delinquent tax.
18 91. Same: County attorney to in-
stitute proceedings.
1892. Record of estates: Entries: Re-
port of probate judge.
1893. Expenses of collecting tax.
1894. Settlements and reports of
county treasurer.
18 95. Receipts for taxes paid.
1896. Failure of officers to perform
duties.
1897. Suits to enforce collection and
to quiet title against tax.
Transfers Subject to Tax.
Sec. 1873. All property which shall pass, by will or by the intes-
tate laws of this State, from any person who may die seized or
possessed of the same while a resident of this State, or if such de-
cedent was not a resident of this State at the time of death, which
property, or any part thereof, shall be within this State, or any in-
terest therein, or income therefrom, which shall be transferred by
deed, grant, safe or gift, made in contemplation of the death of the
grantor, vendor or bargainor, or intended to take effect in possession
or enjoyment after such death, to any person or persons, or to any
body politic or corporate, in trust or otherwise, or by reason whereof
any person or body politic or corporate shall become beneficially
entitled, in possession or expectancy, to any property, or to the in-
come thereof, shall be and is subject to a tax hereinafter provided
for, to be paid to the treasurer of the proper county, as hereinafter
directed for the benefit of the general fund of this State, to be used
for all the purposes for which said fund is available. And the county
798 REVENUE Tit. 10
treasurer shall, upon the receipt of said tax, pay the same to the
State Treasurer and take duplicate receipts thereof, one of which the
county treasurer shall retain, and transmit the other to the State
Auditor, and receive from him credit for the amount thereof on his
account; and such tax shall be and remain a lien upon the property
passed or transferred until paid, and the person to whom the property
passes or is transferred, and all administrators, executors and trustees
of every estate so transferred or passed, shall be liable for any and
all such taxes until the same shall have been paid as hereinafter
directed. The tax so imposed shall be upon the market value of such
property at the rates hereinafter prescribed, and only upon the excess
over the exemptions hereinafter granted.
Historical: Laws 1907, 558, Sec. 1.
California Legislation : Similar:
Henning's Gen. Laws, 138, Sec. 1.
Appointment Deemed a Taxable Transfer.
Sec. 1874. Whenever any person or corporation shall exercise a
power of appointment derived from any disposition of property made
either before or after the passage of this chapter, such appointment
when made shall be deemed a transfer taxable under the provisions
of this chapter in the same manner as though the property to which
such appointment relates belonged absolutely to the donee of such
power, and had been bequeathed or devised by such donee by will;
and whenever any person or corporation possessing such a power
of appointment so derived shall omit or fail to exercise the same
within the time provided therefor, in whole or in part, a transfer
taxable under the provisions of this chapter shall be deemed to take
place to the extent of such omission or failure, in the same manner
as though the person or corporations thereby becoming entitled to
the possession or enjoyment of the property to which such power
related had succeeded thereto by a will of the donee of the power
failing to exercise such power, taking effect at the time of such
omission or failure.
Historical: Laws 190 7, 5 5 8, Sec. 2.
California Legislation: Same: Hen-
ning's Gen. Laws, 138, Sec. 1.
Rate of Tax.
Sec. 1875. When the property or any beneficial interest therein
so passed or transferred exceeds in value the exemption hereinafter
specified, and shall not exceed in value twenty-five thousand dollars,
the tax hereby imposed shall be :
1. Where the person or persons entitled to any beneficial interest
in such property shall be the husband, wife, lineal issue, lineal an-
cestor of the decedent, or any child adopted as such in conformity
with the laws of this State, or any child to whom such decedent, for
not less than ten years prior to such transfer, stood in the mutually
acknowledged relation of a parent: Provided, hotvever, Such re-
lationship began at or before the child's fifteenth birthday, and was
continuous for said ten years thereafter, or any lineal issue of such
adopted or mutually acknowledged child, at the rate of one per
centum of the clear value of such interest in such property.
Ch. 5. TRANSFER TAX 799
2. Where the person or persons entitled to any beneficial interest
in such property shall be the brother or sister, or a descendant of a
brother or sister, of the decedent, a wife or widow of a son, or the
husband of a daughter of the decedent, at the rate of one and one-
half per centum of the clear value of such interest in such property.
3. Where the person or persons entitled to any beneficial interest
in such property shall be the brother or sister of the father or mother,
or a descendant of a brother or sister of the father or mother of the
decedent, at the rate of three per centum of the clear value of such
interest in such property.
4. Where the person or persons entitled to any beneficial interest
in such property shall be the brother or sister of the grandfather
or grandmother, or a descendant of the brother or sister of the grand-
father or grandmother, of the decedent, at the rate of four per
centum of the clear value of such interest in such property.
5. Where the person or persons entitled to any beneficial interest
in such property shall be in any other degree of collateral consan-
guinity than is hereinbefore stated, or shall be a stranger in blood
to the decedent, or shall be a body politic or corporate, at the rate
of five per centum of the clear value of such interest in such property.
Historical: Laws 1907, 558, Sec. 3.
California Legislation: Same: Hen-
ning's Gen. Laws, 139, Sec. 2.
Same.
Sec. 1876. The foregoing rates in the preceding section are for
convenience termed the primary rates. When the market value of
such property or interest exceeds twenty-five thousand dollars, the
rates of tax upon such excess shall be as follows :
1. Upon all in excess of twenty-five thousand dollars and up to
fifty thousand dollars, one and one-half times the primary rates ;
2. Upon all in excess of fifty thousand dollars and up to one
hundred thousand dollars, two times the primary rates;
3. Upon all in excess of one hundred thousand dollars and up
to five hundred thousand dollars, two and one-half times the primary
rates ;
4. Upon all in excess of five hundred thousand dollars, three
times the primary rates.
Historical: Laws 1907, 558, Sec. 4.
California Legislation: Similar:
Henning's Gen. Laws, 139, Sec. 3...
Exemptions.
Sec. 1877. The following exemptions from the tax are hereby
allowed :
1. All property transferred to societies, corporations and in-
stitutions now or hereafter exempted by law from taxation, or to
any public corporations, or to any society, corporation, institution
or association of persons engaged in or devoted to any charitable,
benevolent, educational, public or other like work (pecuniary profit
not being its object or purpose), or to any person, society, corpora-
tion, institution or association of persons in trust for or to be devoted
to any charitable, benevolent, educational or public purpose, by reason
800 REVENUE Tit. 10
whereof any such person or corporation shall become beneficially
entitled, in possession or expectancy, to any such property or to the
income thereof shall be exempt;
2. Property of the clear value of ten thousand dollars transferred
to the widow or to a minor child of the decedent, and of four thousand
dollars transferred to each of the other persons described in the
first subdivision of Section 1875 shall be exempt;
3. Property of the clear value of two thousand dollars trans-
ferred to each of the persons described in the second subdivision of
Section 1875 shall be exempt :
4. Property of the clear value of one thousand five hundred
dollars transferred to each of the persons described in the third
subdivision of Section 1875 shall be exempt;
5. Property of the clear value of one thousand dollars transferred
to each of the persons described in the fourth subdivision of Section
1875 shall be exempt;
6. Property of the clear value of five hundred dollars trans-
ferred to each of the persons and corporations described in the fifth
subdivision of Section 1875 shall be exempt.
Historical: Laws 1907, 558, Sec. 5.
California Legislation: Similar:
Henning's Gen. Laws, 140, Sec. 4.
Tax on Future and Contingent Estates.
Sec. 1878. When any grant, gift, legacy or succession upon which
a tax is imposed by Section 1873 shall be an estate, income or interest
for a term of years, or for life, or determinable upon any future or
contingent event, or shall be a remainder, reversion, or other ex-
pectancy, real or personal, the entire property or fund by which
such estate, income or interest is supported, or of which it is a part,
shall be appraised immediately after the death of the decedent, and
the market value thereof determined, in the manner provided in
Section 1886, the tax prescribed by this chapter shall be immediately
due and payable to the treasurer of the proper county, and, together
with the interest thereon, shall be and remain a lien on said property
until the same is paid: Provided, Trmt the person or persons, or
body politic or corporate, beneficially interested in the property
chargeable with said tax, may elect not to pay the same until they
shall come into the actual possession or enjoyment of such property,
and in that case such person or persons, or body politic or corporate,
shall execute a bond to the people of the State of Idaho, in a penalty
of twice the amount of the tax arising upon personal estate, with
such sureties as the said probate court may approve, conditioned
for the payment of said tax, and interest thereon, at such time or
period as they or their representatives may come into the actual
possession or enjoyment of such property, which bond shall be filed
in the office of the county recorder of the proper county: Provided,
further, That such person shall make a full and verified return of
such property to said court, and file the same in the office of the
county recorder within one year from the death of the decedent, and
within that period enter into such security, and renew the same every
five years.
Ch. 5. TRANSFER TAX 801
Historical: Laws 19 07, 558, Sec. 6.
California Legislation: Similar:
Henning's Gen. Laws, 140, Sec. 5.
Tax on Devise or Executor.
Sec. 1879. Whenever a decedent appoints or names one or more
executors or trustees, and makes a bequest or devise of property to
them in lieu of commissions or allowances, which otherwise would
be liable to said tax, or appoints them his residuary legatees, and said
bequests, devises or residuary legacies exceed what would be a reason-
able compensation for their services, such excess over and above the
exemptions herein provided for shall be liable to said tax; and the
probate court in which the probate proceedings are pending shall fix
the compensation.
Historical: Laws 1907, 5 58, Sec. 7.
California Legislation: Similar:
Henning's Gen. Laws, 141, Sec. 6.
Time of Payment: Extension: Interest.
Sec. 1880. All taxes imposed by this chapter, except as hereinafter
provided, shall be due and payable at the death of the person render-
ing such property subject to such taxation, and interest at the same
rate as is now provided by law for delinquent taxes shall be charged
and collected thereon for such time as said tax is not paid : Provided,
That if said tax is paid within one year from the accruing thereof,
no interest shall be charged or collected thereon, and if said tax is
paid within six months from the accruing thereof, a discount of five
per centum shall be allowed and deducted from said tax : Provided,
further, That if, by reason of claims made upon the estate, necessary
litigation or other unavoidable cause of delay, the estate of the de-
cedent or any part thereof cannot be settled up at the end of the
year from his or her decease, the probate court, or the judge thereof,
may make necessary extensions of time for the payment of such
taxes, but no single extension shall exceed one year, and in such
cases only six per centum per annum shall be charged upon the said
tax from the death of the decedent to the expiration of the period
for which the extension of time was granted, after which interest
at the same rate as is now provided by law for delinquent taxes shall
be charged ; and in all such cases the tax on real estate shall remain
a lien on the real estate on which the same is chargeable until paid,
and the executors, administrators or trustees shall give a bond to
the people of the State of Idaho, in a penalty of three times the
amount of the said tax, with such sureties as the probate judge of
the proper county may approve, conditioned for the payment of said
tax and interest thereon at the expiration of such period, which bond
shall be filed in the office of said probate judge.
Historical: Laws 1907, 558, Sec. 8.
California Legislation: See Hen-
ning's Gen. Laws 141, Sec. 7.
Collection of Tax by Administrator.
Sec. 1881. Any administrator, executor or trustee having in charge
or trust any legacy or property for distribution, subject to the said
tax, shall deduct the tax therefrom, or if the legacy or property be
802 REVENUE Tit. 10
not money, he shall collect the tax thereon, upon the market value
thereof, from the legatee or person entitled to such property, and
he shall not deliver, or be compelled to deliver, any specific legacy
or property subject to tax to any person until he shall have collected
the tax thereon ; and whenever any such legacy shall be charged upon,
or payable out of, real estate, the executor, administrator or trustee
shall collect said tax from the distributee thereof, and the same shall
remain a charge on such real estate until paid; if, however, such
legacy be given in money to any person for a limited period, the
executor, administrator or trustee shall retain the tax upon the whole
amount; but if it be not in money he shall make application to the
probate court to make an apportionment, if the case requires it, of
the sum to be paid into his hands by such legatees, and for such
further order relative thereto as the case may require.
Historical: Laws 1907, 55 8, Sec. 9.
California Legislation: Similar:
Henning's Gen. Laws, 141, Sec. 9.
Sale of Property to Pay Tax.
Sec. 1882. All executors, administrators and trustees shall have
full power to sell so much of the property of the decedent as will
enable them to pay said tax, in the same manner as they may be
enabled by law to do for the payment of debts of the estate, and
the amount of said tax shall be paid as hereinafter directed.
Historical: Laws 19 07, 55 8, Sec. 10.
California Legislation: Same: Hen-
ning's Gen. Laws, 142, Sec. 10.
Payment of Tax by Administrator.
Sec. 1883. Every sum of money retained by an executor, adminis-
trator or trustee, or paid into his hands, for any tax on property,
shall be paid by him, within thirty days thereafter, to the treasurer
of the county in which the probate proceedings are pending, and the
said treasurer shall give, and every executor, administrator or trustee
shall take, duplicate receipts for such payment, one of which receipts
said executor, administrator or trustee shall immediately send to
the State Auditor, whose duty it shall be to charge the treasurer
so receiving the tax with the amount thereof, and said Auditor shall
seal said receipt with the seal of his office, and countersign the same,
and return it to the executor, administrator or trustee, whereupon
it shall be a proper voucher in the settlement of his accounts; and
an executor, administrator or trustee shall not be entitled to credit
in his accounts, nor be discharged from liability for such tax, nor
shall said estate be distributed, unless he shall produce a receipt so
sealed and countersigned by the State Auditor, or a copy thereof,
certified by him, and file the same with the court.
Historical: Laws 190 7, 55 8, Sec. 11.
California Legislation: Similar:
Henning's Gen. Laws, 142, Sec. 11.
Refund of Excess Tax.
Sec. 1884. Whenever any debts shall be proven against the estate
of a decedent after the payment of legacies or distribution of property
Ch. 5. TRANSFER TAX 803
from which the said tax has been deducted or upon which it has
been paid, and a refund is made by the legatee, devisee, heir or next
of kin, a proportion of the tax so deducted or paid shall be repaid
to him by the executor, administrator or trustee, if the said tax has
not been paid to the county treasurer or to the State Auditor, or by
them, if it has been so paid.
Historical: Laws 1907, 558, Sec. 12.
California Legislation: Similar.
Henning's Gen. Laws, 142, Sec. 12.
Collection of Tax From Non-Resident Administrator.
Sec. 1885. If a foreign executor, administrator or trustee shall
assign or transfer any stock or obligations in this State standing in
the name of a decedent, or in trust for a decedent, liable to any such
tax, the tax shall be paid to the treasurer of the proper county on
the transfer thereof. No safe deposit company, trust company, cor-
poration, bank or other institution, person or persons, having in
possession or under control securities, deposits or other assets of a
decedent, including the shares of the capital stock of, or other in-
terests in, the safe deposit company, trust company, corporation,
bank or other institution making the delivery or transfer herein
provided, shall deliver or transfer the same to the executors, adminis-
trators or legal representatives of said decedent, or upon their order
or request, unless notice of the time and place of such intended de-
livery or transfer be served upon the county treasurer at least ten
days prior to said delivery or transfer ; nor shall any such safe deposit
company, trust company, corporation, bank or other institution,
person or persons, deliver or transfer any securities, deposits or other
assets of the estate of a non-resident decedent including the shares
of the capital stock of, or other interest in, the safe deposit com-
pany, trust company, corporation, bank or other institution, making
the delivery or transfer, without retaining a sufficient portion or
amount thereof to pay any tax and penalty which may thereafter be
assessed on account of the delivery or transfer of such securities,
deposits or other assets, including the shares of the capital stock
of or other interests in the safe deposit company, trust company,
corporation, bank or other institution making the delivery or transfer,
under the provisions of this chapter, unless the county treasurer con-
sents thereto in writing. And it shall be lawful for the said county
treasurer, personally, or by representative, to examine said securities,
deposits or assets at the time of such delivery or transfer. Failure
to serve such notice and to allow such examination, and to retain a
sufficient portion or amount to pay such tax and penalty as herein
provided, shall render said safe deposit company, trust company,
corporation, bank or other institution, person or persons, liable to
the payment of two times the amount of the tax and penalty due
or thereafter to become due upon said securities, deposits or other
assets, including the shares of the capital stock of, or other interests
in, the safe deposit company, trust company, corporation, bank or
other institution, making the delivery or transfer; and the payment
as herein provided shall be enforced in an action brought in accord-
ance with the provisions of Section 1891 of this chapter.
804 REVENUE Tit. 10
Historical: Laws 1907, 558, Sec. 13.
(California Legislation: Similar:
Henning's Gen. Laws, 142, Sec. 13.
Appraisement of Transfer.
Sec. 1886. When the value of any inheritance, devise, bequest or
other interest subject to the payment of said tax is uncertain, the
probate court in which the probate proceedings are pending, on the
application of any interested party, or upon its own motion, shall
appoint some competent person as appraiser, as often as and when-
ever occasion may require, whose duty it shall be forthwith to give
such notice, by mail, to all persons known to have or claim an interest
in such property, and to such persons as the court may by order
direct, of the time and place at which he will appraise such property,
and at such time and place to appraise the same and make a report
thereof, in writing, to said court, together with such other facts in
relation thereto as said court may by order require to be filed with
the clerk of said court; and from this report the said court shall,
by order, forthwith assess and fix the market value of all inheritances,
devises, bequests or other interests, and the tax to which the same
is liable, and shall immediately cause notice thereof to be given, by
mail, to all parties known to be interested therein; and the value
of every future or contingent or limited estate, income or interest
shall, for the purposes of this chapter, be determined by the rule,
method and standard of morality and of value that are set forth in
the actuaries' combined experience tables of mortality for ascertaining
the value of policies of life insurance and annuities, and for the
determination of the liabilites of life insurance companies, save that
the rate of interest to be assessed in computing the present value
of all future interests and contingencies shall be five per centum
per annum; and the insurance commissioner shall, on the applica-
tion of said court, determine the value of such future or contingent
or limited estate, income or interest, upon the facts contained in
such report, and certify the same to the court, and his certificate
shall be conclusive evidence that the method of computation adopted
therein is correct. The said appraiser shall be paid by the county
treasurer out of any funds that he may have in his hands on account
of said tax, on presentation of a sworn itemized account, and on the
certificate of the court, at the rate of five dollars per day for every
day actually and necessarily employed in said appraisement, together
with his actual and necessary traveling expenses.
Historical: Laws 1907, 558, Sec. 14.
iCalifornia Legislation: Similar:
Henning-'s Gen. Laws, 143, Sec. 14.
Acceptance of Bribe by Appraiser.
Sec. 1887. Any appraiser appointed by virtue of this chapter, who
shall take any fee or reward from any executor, administrator,
trustee, legatee, next of kin, or heir of any decedent, or from. any
other person liable to pay said tax, or any portion thereof, shall be
guilty of a misdemeanor, and upon conviction thereof shall be pun-
ished by a fine of not less than two hundred and fifty dollars nor
more than five hundred dollars, or by imprisonment in the county
Ch. 5. TRANSFER TAX 805
jail ninety days, or by both such fine and imprisonment, and in
addition thereto the court shall dismiss him from such service.
California Legislation : Similar: Hen-
ning's Gen. Laws, 144, Sec. 15.
Historical: Laws 1907, 55 8, Sec. 15.
Phraseology of last half slightly
changed to correctly express the
meaning.
Jurisdiction Over Estate of Non-Resident.
Sec. 1888. The probate court in the county in which is situate
the real property of a decedent who was not a resident of the State,
or if there be no real property, then in the county in which any of
the personal property of such non-resident is situate, or in the county
of which the decedent was a resident at the time of his death, shall
have jurisdiction to hear and determine all questions in relation to
the tax arising under the provisions of this chapter, except as here-
inafter provided, and the court first acquiring jurisdiction hereunder
shall retain the same to the exclusion of every other.
Historical: Laws 1907, 558, Sec. 16.
California Legislation: Similar:
Henning's Gen. Laws, 144, Sec. 16.
Definitions.
Sec. 1889. The words "estate" and "property" as used in this
chapter, shall be taken to mean the real and personal property or
interest therein of the testator, intestate, grantor, bargainor, vendor,
or donor passing or transferred to individual legatees, devisees, heirs,
next of kin, grantees, donees, vendees, or successors, and shall in-
clude all personal property within or without the State. The word
"transfer" as used in this chapter, shall be taken to include the pass-
ing of property or any interest therein, in possession or enjoyment,
present or future, by inheritance, descent, devise, succession, bequest,
grant, deed, bargain, sale, gift, or appointment in the manner herein
described. The word "decedent" as used in this chapter, shall in-
clude the testator, intestate, grantor, bargainor, vendor, or donor.
Historical: Laws 1907, 558, Sec. 24.
California Legislation: Same: Hen-
ning's Gen. Laws, 146, Sec. 28.
Collection of Delinquent Tax.
Sec. 1890. If it shall appear to the probate court, or judge there-
of, that any tax accruing under this chapter has not been paid ac-
cording to law, it shall issue a citation, citing the persons known to
own any interest in or part of the property liable to the tax, or any
person or corporation liable under the law for the payment of said
tax, to appear before the court on a day certain, not more than ten
weeks after the date of such citation, and show cause why said tax
should not be paid. The service of such citation, and the time, man-
ner, and proof thereof, and the hearing and determination thereon,
and the enforcement of the determination or decree, shall conform
as near as may be to the provisions now established by the laws of
this State in similar proceedings in the probate courts ; and the clerk
of the court shall, upon the request of the county attorney or treas-
urer of the county, furnish, without fee, one or more transcripts of
806
REVENUE
Tit. 10
such decree, and the same shall be docketed and filed by the county
recorder of any county in the State, without fee, in the same manner
and with the same effect as provided by Section 4460 of these Codes
for filing a transcript of an original docket.
Historical: Laws 1907, 558, Sec. 17.
"Of these Codes" for "Rev. St. 1887"
— the sections are the same.
California Legislation: Similar:
Henning's Gen. Laws, 144, Sec. 17.
Cross Reference: Citations from and
hearings in probate court: Sees. 5658-
5670.
Same: County Attorney to Institute Proceedings.
Sec. 1891. Whenever the treasurer of any county shall have rea-
son to believe that any tax is due and unpaid under this chapter, after
the refusal or neglect of the persons interested in the property liable
to said tax to pay the same, he shall notify the county attorney of
the proper county, in writing, of such failure to pay such tax, and the
county attorney so notified, if he have probable cause to believe a
tax is due and unpaid, shall prosecute the proceeding in the probate
court, as provided in the preceding section for the enforcement and
collection of such tax.
Historical Laws 1907, 558, Sec. 18.
"The preceding section" inserted for
"Section 18." The reference to Sec-
tion 18 was an error and it is prob-
able that the preceding section was
intended as the proceeding provided
for in Sec. 1897 is brought in the Dis-
trict Court.
California Legislation: Similar:
Henning's Gen. Laws, 144, Sec. 18.
Record of Estates: Entries: Report of Probate Judge.
Sec. 1892. The Secretary of State shall furnish to each probate
judge a book, which shall be a public record, and in which he shall
enter the name of every decedent upon whose estate an application
has been made to the probate court for the issuance of letters of
administration, or letters testamentary, or ancillary letters, the date
and place of death of such decedent, the estimated value of his real
and personal property, the names, places of residence, and relation-
ship to him of his heirs-at-law, the names and places of residence of
the legatees and devisees in any will of any such decedent, the amount
of each legacy and the estimated value of any real property devised
therein, and to whom devised. These entries shall be made from
the data contained in the papers filed on any such application, or in
any proceeding relating to the estate of the decedent. The probate
judge shall also enter in such book the amount of personal property
of any such decedent, as shown by the inventory thereof, when made
and filed in his office, and the returns made by any appraiser ap-
pointed by the court under this chapter, and the value of annuities,
life estates, terms of years, and other property of such decedent, or
given by him in his will or otherwise, as fixed by the probate court,
and the tax assessed thereon, and the amounts of any receipts for
payment of any tax on the estate of such decedent under this chap-
ter filed with him. The probate judge shall, on the first day of Jan-
uary, April, July and October of each year, make a report, in dupli-
cate, upon forms to be furnished by the State Auditor, containing all
the data and matters required to be entered in such book, and also
of the property from which, or the party from whom, he has reason
to believe the tax under this chapter is due and unpaid, one of which
Ch. 5. TRANSFER TAX 807
shall be immediately delivered to the county treasurer and the other
transmitted to the State Auditor.
Historical: Laws 1907, 558, Sec. 19.
California Legislation : Similar:
Henning's Gen. Laws, 144, Sec. 19.
Expenses of Collecting Tax.
Sec. 1893. Whenever the probate court of any county shall cer-
tify that there was probable cause for issuing a citation and. taking
the proceedings specified in Section 1890, the State Treasurer shall
pay, or allow, to the treasurer of any county, all expenses incurred
for service of citation, and his other lawful disbursements that have
not otherwise been paid.
Historical: Laws 1907, 558, Sec. 20.
"Section 1890" inserted for "Section
18 of this act": See note to Sec. 1891.
California Legislation: Similar:
Henning's Gen. Laws, 145, Sec. 20.
Settlements and Reports of County Treasurer.
Sec. 1894. The treasurer of each county shall collect and pay to the
State Treasurer all taxes that may be due and payable under
this chapter, who shall give him a receipt therefor; of which col-
lection and payment he shall make a report, under oath, to the State
Auditor, between the first and fifteenth days of May and December
of each year, stating for what estate paid, and in such form and con-
taining such particulars as the State Auditor may prescribe; and
for all such taxes collected by him and not paid to the State Treasurer
by the first day of June and January of each year, he shall pay inter-
est at the rate of ten per centum per annum.
Historical: Laws 1907, 558, Sec. 21.
California Legislation : Similar:
Henning's Gen. Laws. 145, Sec. 21.
Receipts for Taxes Paid.
Sec. 1895. Any person, or body politic or corporate, shall, upon
payment of the sum of fifty cents, be entitled to a receipt from the
county treasurer of any county, or a copy of the receipt, at his op-
tion, that may have been given by said treasurer for the payment of
any tax under this chapter, to be sealed with the seal of his office,
which receipt shall designate on what real property, if any, of which
any decedent may have died seized, said tax has been paid, and by
whom paid, and whether or not it is in full of said tax ; and said re-
ceipt may be recorded in the recorder's office in the county in which
said property is situated, in a book to be kept by said recorder for
such purpose, which shall be labeled "Inheritance Tax."
Historical: Laws 19 07, 558, Sec. 22.
California Legislation: Similar:
Henning's Gen. Laws, 146, Sec. 24.
Failure of Officers to Perform Duties.
Sec. 1896. Every officer who fails or refuses to perform, within a
reasonable time, any and every duty required by the provisions of
this chapter, or who fails or refuses to make and deliver, within a
reasonable time, any statement or record required by this chapter,
shall forfeit to the State of Idaho, the sum of one thousand dollars,
808 REVENUE Tit. 10
to be recovered in an action brought by the Attorney General in the
name of the people of the State, on the relation of the State Auditor.
Historical: Laws 1907, 5 58, Sec. 2 3.
California Legislation: Similar:
Henning's Gen. Laws, 146, Sec. 26.
Suits to Enforce Collection, and to Quiet Title Against Tax.
Sec. 1897. In all cases where any tax has become or shall hereaf-
ter become a lien upon any property under or by virtue of any of the
provisions of this chapter, the county attorney of the county in
which the estate of the decedent mentioned in this chapter is being
administered or has been administered in probate proceedings, may,
whenever any property of said estate has been distributed without
the payment to the State of all or any part of the taxes payable on
account thereof under this chapter, bring and prosecute an action or
actions in the name of the State as plaintiff, for the purpose of en-
forcing such lien or liens, against all or any of the property subject
thereto. In any such action the owner of any property or of any in-
terest in property against which the lien of any such tax is sought
to be enforced, and any predecessor in interest of any such owner
whose title or interest was derived through any such decedent by will
or succession or by decree of distribution of the estate of such dece-
dent, and any lineor or incumbrancer subsequent to the lien of such
tax may be made a party defendant. The enumeration in this sec-
tion of the persons who may be made defendants shall not be deemed
to be exclusive, but the joinder or non-joinder of parties, except when
otherwise herein provided, shall be governed by the rules in equity
in similar cases.
(a) Actions may be brought against the State for the purpose
of quieting the title to any property, against the lien or claim of lien
of any tax or taxes under this chapter, or for the purpose of having
it determined that any property is not subject to any lien for taxes
under this chapter. In any such action, the plaintiffs may be any
administrator or executor of the estate or will of any decedent,
whether the said estate shall have been fully administered and the
estate settled and closed or not, and any heir, legatee or devisee of any
such decedent, or trustee of the estate or of any part of the estate of
such decedent, or distributee of the estate or of any part of the es-
tate of such decedent, and any assignee, grantee or successor in
interest of any such persons, and all or any other persons who might
be made parties defendant in any action brought by the State under
the provisions of this section, and notwithstanding that all or any of
the persons enumerated in this section shall or may have assigned,
granted, conveyed or otherwise parted with all or any interest in or
title to the property, or any thereof, involved in any such claim of lien
before the commencement of such action. All or any of the persons
in this section enumerated may be joined or united as parties plain-
tiff. The enumeration in this section of the persons who may be
made parties shall not be deemed to be exclusive, but the joinder or
non-joinder of parties, except when otherwise herein provided, shall
be governed by the rules in equity in similar cases. In all cases any
person who might properly be a party plaintiff in any such action
who refuses to join as plaintiff may be made a defendant.
Ch. 5. TRANSFER TAX 809
(b) All actions under this section shall be commenced in the
District Court of the county in which is situated any part of any real
property against which any lien is sought to be enforced, or to which
title is sought to be quieted against any lien, or claim of liens.
(c) Service of summons in the actions brought against the State
shall be made on the Secretary of State and on the county attorney
of the county in which the estate of the decedent mentioned herein is
being administered, or has been administered in probate proceedings,
and it shall be the duty of said county attorney to defend all such
actions.
(d) The procedure and practice in all actions brought under this
section, except as otherwise provided in this chapter, shall be gov-
erned by the provisions of the Code of Civil procedure in relation to
civil actions, so far as the same shall or may be applicable, including
all provisions relating to motions for new trials, and appeals.
(e) The remedies provided in this section shall be in addition to
and not exclusive of any remedies provided in the sections preceding
this section.
Historical: Laws 1907, 558, Sec. 25.
California Legislation: Similar:
Henning's Gen. Laws, 146, Sec. 29.
TITLE 11
COUNTIES AND COUNTY OFFICERS
Chapter
1. Counties as bodies corporate.
2. The board of county commission-
ers.
3. County officers.
Chapter
4. Salaries and fees of office.
5. Other county charges.
6. The county poor.
CHAPTER 1.
COUNTIES AS BODIES CORPORATE.
Section
1898. Every county a body corporate.
1899. Exercise of powers.
190 0. Corporate name.
1901. Enumeration of powers.
Section
1902. Counties not to loan credit.
1903. Payment of judgments against
county.
Every County a Body Corporate.
Sec. 1898. Every county is a body politic and corporate, and as
such has the powers specified in this title or in other statutes, and
such powers as are necessarily implied from those expressed.
Historical: Rev. St. 1887, Sec. 1730.
See 6 Ter. Ses. (1871) 76, Sec. 1.
California Legislation: Same except
"code" for "title" and "in special stat-
utes" for "in other statutes", line 2:
Pol. Code 1872, Sec. 4000; Deering's
Code, ib.; Kerr's Code, ib.
Exercise of Powers.
Sec. 1899. Its powers can only be exercised by the Board of Coun-
ty Commissioners, or by agents and officers acting under their au-
thority, or authority of law.
Historical: Rev. St. 1887, Sec. 1731.
California Legislation: Same except
"supervisors" for "county commis-
sioners", line 2: Pol. Code 1872, Sec.
4001; additional provisions as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Corporate Name.
Sec. 1900. The name of a county designated in the law creating it
is its corporate name, and it must be known and designated thereby
in all actions and proceedings touching its corporate rights, property,
and duties.
Historical: Rev. St. 1887, Sec. 1732.
California Legislation: Same: Pol.
Code 1872, Sec. 4002; Deering's Code,
ib.; Kerr's Code, ib.
Actions on Bond: An action on a
bond in which a county is the party
in interest for whose benefit the action
is brought, should be brought in the
name of the county. U. S. v. Shoup
(1889) 2 Ida. 493; 21 Pac. 656.
Enumeration of Powers.
Sec. 1901. It has power:
1. To sue and be sued;
2. To purchase and hold lands within its limits;
Ch. 2. Art. 1. COMMISSIONERS — CONSTITUTION OF BOARD
811
3. To make such contracts, and purchase and hold such personal
property, as may be necessary to the exercise of its powers;
4. To make such orders for the disposition or use of its prop-
erty as the interests of its inhabitants require ;
5. To levy and collect such taxes for purposes under its exclusive
jurisdiction as are authorized by law.
Historical: Rev. St. 1887, Sec. 1733.
See 6 Ter. Ses. (1871) 76, Sec. 1.
California Legislation: Same except
"by this code or by special statutes"
for "by law", last words: Pol. Code
1872, Sec. 4003; Deering's Code, ib.;
Kerr's Code, ib.
Cross Reference: May make and
enforce local police regulations: Const.
Art. 12, Sec. 2. Shall not become
stockholders in corporations: Const.
Art. 12, Sec. 4.
Cited: U. S. v. Shoup (1889) 2 Ida.
193; 21 Pac. 656; State v. Ada Co.
(1900) 7 Ida. 261; 62 Pac. 457.
Counties Not to Loan Credit.
Sec. 1902. No county must in any manner loan or give its credit
to or in aid of any person, association, or corporation unless it is ex-
pressly authorized by law so to do.
Cross Reference: Counties not to
loan credit: Const. Art. 12, Sec. 4.
Historical: Rev. St. 1887, Sec. 1734.
California Legislation: Same except
"association, or corporation", omitted
line 2: Pol. Code 1872, Sec. 4004
Deering's Code, ib.; Kerr's Code, ib.
Payment of Judgments Against County.
Sec. 1903. Upon presentation to the board of county commission-
ers of a final judgment for money or damages, duly certified, against
their county, the board must allow the same and direct its payment
as other claims against the county are paid.
Historical: Rev. St. 1887, Sec. 1735.
See 6 Ter. Ses. (1871) 76, Sec. 4.
CHAPTER 2.
THE BOARD OF COUNTY COMMISSIONERS.
Article
1. Constitution, meetings and
ords.
2. Powers and duties.
3. Erection of public buildings.
rec-
Article
4. Payment of bounties.
5. County finances and
against county.
6. County bond issues.
claims
ARTICLE 1.
CONSTITUTION, MEETINGS AND RECORDS.
Section Section
1904. Constitution of board. 1910.
1905. District from which elected.
1906. Term of office.
1907. Division of county into dis-
1908.
1909.
tricts
Election of chairman.
Quorum: Temporary
man:
chair-
Administering- oaths.
of board.
1911. Duties of Clerk.
1912. Books to be kept.
1913. Regular meetings.
1914. Adjourned meetings.
1915. Special meetings.
1916. Meetings and records public.
Constitution of Board.
Sec. 1904. Each county must have a board of county commission-
ers consisting of three members.
812
COUNTIES
Tit. 11
Historical: Rev. St. 1887, Sec. 17 4 5.
See 5 Ter. Ses. (1869) 100, Sec. 1.
California Legislation : Similar but
"supervisors" for "commissioners":
Pol. Code 1872, Sec. 4022; Deering's
Code, ib.; Kerr's Code, ib.
Cross Reference: Constitution and
term of office: Const. Art. 18, Sec. 10.
When to take oath: Sec. 271. Vacan-
cies, how filled: Sees. 321, 322.
District From Which Elected.
Sec. 1905. Each member of a board of commissioners must be an
elector of the district he represents.
Historical: Rev. St. 1887, Sec. 1746.
See 13 Ter. Ses. (1885) 85, Sec. 3.
California Legislation : Same except
"supervisors" for "commissioners":
Pol. Code 1872, Sec. 4023; Deering's
Code, ib.; Kerr's Code, ib.
Election of Commissioners: Com-
missioners, while electors respectively
of the districts which they represent,
are elected by the voters of the whole
county. Cunningham v. George (1892)
3 Ida. 456; 31 Pac. 809.
Term of Office.
Sec. 1906. The term of office of a commissioner is two years.
Historical: Rev. St. 1887, Sec. 1747.
See 5 Ter. Ses. (1869) 100, Sec. 2.
California Legislation: Same except
"Supervisor" for "commissioner" and
"three" for "two": Pol. Code 1872,
Sec. 4024; repealed 1881.
Cited: Castle v. Bannock Co. (1901)
8 Ida. 124; 67 Pac. 35.
Division of County Into Districts.
Sec. 1907. At the regular meeting in July, preceding any general
election, the board of commissioners must district their county into
three districts, as nearly equal in population as may be, to be known
as county commissioners, districts, numbers 1, 2 and 3, respectively;
but in making such districts, no voting precinct shall be divided : Pro-
vided, That when a new county shall have been created, or the boun-
dary lines of a county shall have been changed, then the board of
commissioners of such county may district their county at any general
or special meeting of such board.
Historical: Rev. St. 1887, Sec. 1748;
amended Laws 1893, 3, Sec. 1; re-en-
acted Laws 1899, 164, Sec. 1.
Not Repealed: This section is still
in force notwithstanding- the election
law of 1891. Cunningham v. George
(1892) 3 Ida. 456; 31 Pac. 809.
Election of Chairman.
Sec. 1908. The members of the board of commissioners must, at
their first regular meeting on the second Monday of January next
after their election, elect a chairman from their number.
Historical: Rev. St. 1887, Sec. 1750.
See 5 Ter. Ses. (1869) 100, Sec. 6.
California Legislation: Different:
Pol. Code 1872, Sec. 4027; repealed
1881.
Quorum: Temporary Chairman: Administering Oaths.
Sec. 1909. A majority of the board constitutes a quorum. The
chairman must preside at all meetings of the board, and in case of his
absence or inability to act, the members present must, by an order,
select one of their number to act as chairman temporarily. Any mem-
ber of the board or its clerk may administer oaths to any person con-
cerning any matter submitted to them or connected with their
powers or duties.
Ch. 2. Art. 1. COMMISSIONERS — MEETINGS AND RECORDS
813
Historical: Rev. St. 188 7, Sec. 1751.
See 5 Ter. Ses. (1869) 100, Sec. 6.
California Legislation: Same except
first sentence and "or its clerk", line
5, omitted: Pol. Code 1872, Sec. 4028;
Deering's Code, ib.; Kerr's Code, ib.
Clerk of Board.
Sec. 1910. The county auditor is ex-officio clerk of the board of
commissioners. The records must be signed by the chairman and
the clerk.
Historical: Rev. St. 1887, Sec. 1752. Pol. Code 1872, Sec. 402 9; Deering's
See 5 Ter. Ses. (1869) 100, Sec. 6. Code,.ib.; Kerr's Code, ib.
California Legislation: Different:
Duties of Clerk.
Sec. 1911. The clerk of the board must:
1. Record all the proceedings of the board;
2. Make full entries of all their resolutions and decisions on all
questions concerning the raising of money for, and the allowance of
accounts against, the county;
3. Record the vote of each member on any question upon which
there is a division, or at the request of any member present ;
4. Sign all orders made and warrants issued by order of the
board for the payment of money;
5. Record the reports of the county treasurer of the receipts
and disbursements of the county;
6. Preserve and file all accounts acted upon by the board;
7. Preserve and file all petitions and applications for franchises ;
and record the action of the board thereon;
8. Record all orders levying taxes ; and,
9. Perform all other duties required by law or any rule or
order of the board.
Historical: Rev. St. 1887, Sec. 1753.
See 5 Ter. Ses. (1869) 100, Sec. 6.
California Legislation: Same except
additional provision in subd. 4: Pol.
Code 1872, Sec. 4030; Deering-'s Code,
ib.; Kerr's Code, ib.
Cross Reference: To keep record of
highway proceedings: Sec. 8 77. To
transmit notices of election to regis-
trars: Sec. 35 4. To file oaths of reg-
istrars of election: Sec. 395.
Necessity of Record: Under the
statute requiring the proceedings of
the board of county commissioners to
be recorded, anything not so recorded
is no part of the proceedings. Gorman
v. Co. Commrs. (1874) 1 Ida. 553.
Books to Be Kept.
Sec. 1912. The board must cause to be kept:
1. A ''Minute Book" in which must be recorded all orders and
decisions made by them, and the daily proceedings had at all regular
and special meetings.
2. An "Allowance Book", in which must be recorded all orders
for the allowance of money from the county treasury, to whom made,
and on what account, dating, numbering and indexing the same
through each year;
3. A "Road Book", containing all proceedings and adjudications
relating to the establishment, maintenance, change, and discontin-
uance of roads, road districts, and overseers thereof, their reports
and accounts;
4. A "Franchise Book", containing all franchises granted by
814
COUNTIES
Tit. 11
them, for what purpose, the length of time and to whom granted, the
amount of bond and license tax required;
5. A "Warrant Book", to be kept by the county auditor, in which
must be entered, in the order of drawing, all warrants drawn on
the treasury, with their number and reference to the order on the
minute book, with the date, amount, on what account, and name of
payee.
Historical: Rev. St. 1887, Sec. 1754.
California Legislation: Same: Pol.
Code 1872, Sec. 4031; Deering's Code,
ib.; Kerr's Code, ib.
Regular Meetings.
Sec. 1913. The regular meetings of the boards of commis-
sioners must be held at their respective county seats on the second
Mondays in January, April, July and October of each year, and must
continue from time to time until all the business before them is dis-
posed of. Such other meetings must be held, to canvass election
returns, equalize taxation, and for other purposes, as are prescribed
by law or provided for by the board.
Historical: Rev. St. 1887, Sec. 1755.
See 12 Ter. Ses. (1883) 10, Sec. 1.
California Legislation: Different:
Pol. Code 1872, Sec. 4032; Deering's
Code, ib. ; as amended: Kerr's Code, ib.
Note: This and the two following
sections are construed in Gilbert v.
Canyon County, 94 Pac. 1027, reported
too late to be regularly annotated in
these Codes.
Adjourned Meetings.
Sec. 1914. Adjourned meetings may be provided for, fixed, and
held for the transaction of business, by an order duly entered of
record, in which must be specified the character of business to be
transacted at such meetings, and none other than that specified must
be transacted.
Historical: Rev. St. 1887, Sec. 1756.
See 5 Ter. Ses. (1869) 100, Sec. 4.
Special Meetings.
Sec. 1915. If at any time after the adjournment of a regular
meeting the business of the county requires a meeting of the board
a special meeting may be ordered by a majority of the board. The
order must be entered of record, and five days' notice thereof must,
by the clerk, be given to each member not joining in the order. The
order must specify the business to be transacted, and none other
than that specified must be transacted at such special meeting.
Historical: Rev. St. 1887, Sec. 175 7.
5 Ter. Ses. (1869) 100, Sec. 5.
California Legislation: Same: Pol.
Code 1872, Sec. 4034; Deering's Code,
ib.; Kerr's Code, ib.
Sufficiency of Notice: A notice call-
ing a special meeting of the commis-
sioners for the purpose of raising
funds to purchase a site for, and to
erect, a court house, is sufficient to
authorize the board, at the meeting
held pursuant to such notice, to sub-
mit to the electors of the county the
question whether bonds should be is-
sued for the purpose of purchasing a
site for, and erecting, a court house
and jail, where the court house and
jail constitute one building. Shoshone
Co. v. Rollins (1905) 11 Ida. 314; 82
Pac. 105.
Meetings and Records Public.
Sec. 1916. All meetings of the board must be public, and the books,
records and accounts must be kept at the office of the clerk, open
Ch. 2. Art. 2. COMMISSIONERS — POWERS AND DUTIES
815
at all times for public inspection, free of charge. The clerk of th2
board must give five days' public notice of all special or adjourned
meetings, stating the business to be transacted, by posting three
notices in conspicuous places, one of which shall be at the court house
door.
Historical: Rev. St. 1887, Sec. 1758.
See 5 Ter. Ses. (1869) 100, Sees. 8, 5.
California Legislation: Same
through first sentence, rest omitted:
Pol. Code 1872, Sec. 4035; Deering's
Code, ib.; Kerr's Code, ib.
ARTICLE 2.
POWERS AND DUTIES.
Section
1917. Jurisdiction and powers in gen-
eral.
1918. Supplies for elections.
1919. Subpoenas for witnesses.
1920. Enforcement of attendance and
testimony.
1921. Fees need not be prepaid.
1922. Leave of absence to officers.
1923. Appointment of fire guard.
192 4. Powers of fire guard.
Section
1925. Same
1926.
1927.
1928.
1929.
1930.
Payment for alteration
and repairs.
Notice concerning camp fires.
Control over wires crossing
railroad tracks.
Order to change wires.
Penalty for disobedience of or-
der.
Neglect of duty
sioners.
by commis-
Jurisdiction and Powers in General.
Sec. 1917. The boards of commissioners in their respective coun-
ties have jurisdiction and power, under such limitations and restric-
tions as are prescribed by law.
1. To supervise the official conduct of all county officers, and
officers of all districts and other subdivisions of the county charged
with assessing, collecting, safe keeping, management or disburse-
ment of the public moneys and revenues ; see that they faithfully per-
form their duties ; direct prosecutions for delinquencies ; approve the
official bonds of county and precinct officers, and when necessary,
require them to renew their official bonds, to make reports, and to
present their books and accounts for inspection.
2. To divide the counties into precincts, school, road and other
districts required by law, change the same and create others, as
convenience requires.
3. To establish, abolish and change election precincts, and to
appoint judges of elections, and canvass all election returns.
4. To lay out, maintain, control and manage public roads, turn-
pikes, ferries and bridges within the county, and levy such tax there-
for as authorized by law.
5. To provide for the care and maintenance of the indigent sick,
or the otherwise dependent poor of the county ; erect, officer and main-
tain hospitals therefor, or otherwise provide for the same; and to
levy the necessary tax therefor, per capita, not exceeding two dollars,
and an ad valorem tax not exceeding one-fourth of one per cent,
or either of such levies, when both are not required, on all persons
subject to poll tax in the county and taxable property of the county.
6. To provide a farm in connection with the county hospital,
Vol. 1 — 27
816 COUNTIES Tit. 11
and make regulations for working the same, or for the maintenance
of the inmates under a lease of the same.
7. To purchase, receive by donation, or lease any real or per-
sonal property necessary for the use of the county; preserve, take
care of, manage and control the county property, but no purchase
of real property must be made unless the value of the same has been
previously estimated by three disinterested citizens of the county,
appointed by them for that purpose, and no more than the appraised
value must be paid therefor.
8. To sell at public auction at the court house door, after thirty
days' previous notice given by publication in a newspaper of the
county, or posted in five public places of the county, and convey to
the highest bidder, for cash, any property, real or personal, belonging
to the county, not necessary for its use, paying the proceeds into the
county treasury for the use of the county.
9. To examine and audit the accounts of all officers having
the care, management, collection or disbursement or moneys belong-
ing to the county, or appropriated by law, or otherwise, for its use
and benefit.
10. To examine, settle and allow all accounts legally chargeable
against the county, and order warrants to be drawn on the county
treasurer therefor, and provide for the issuing of the same.
11. To levy such tax annually on the taxable property of the
countv as may be necessary to defray the current expenses thereof,
including salaries otherwise unprovided for, not exceeding the amount
authorized by law ; and to levy such taxes as are required to be levied
by special or local statutes.
12. To equalize the assessments.
13. To direct and control the prosecution and defense of all suits
to which the county is a party in interest, and employ counsel to
conduct the same, with or without the county attorney, as they
may direct.
14. To insure the county buildings in the name of and for the
benefit of the county.
15. To grant licenses and franchises, as provided by law, for
constructing, keeping and taking tolls on roads, bridges and ferries,
and fix the tolls and licenses.
16. To fix the compensation of all county officers not otherwise
fixed by general or special law, and provide for the payment of the
same.
17. To fill by appointment all vacancies that may occur in county
or precinct offices, except in members of the county board.
18. To contract for the county printing, and provide books and
stationery for county officers.
19. At the adjournment of each session of the board, to cause
to be published such brief statement as will clearly give notice to
the public of all its acts and proceedings, and, semi-annually, a
statement of the financial condition of the county. Such statement,
as well as all other public notices of proceedings of, or to be had
before, the board, not otherwise specially provided for, must be pub-
lished in some newspaper, printed and published in the countv, as will
be most likely to give notice thereof; and, when in a weekly paper
Ch. 2. Art. 2. commissioners — powers and duties
817
it must be published in at least two issues thereof, or in at least five
issues when the paper is published oftener than weekly; but when
there is no newspaper published in the county, copies of such state-
ment must be kept posted for at least twenty days in three public
places in the county, one being in a conspicuous place at the court
house door.
20. To make and enforce such rules and regulations for the gov-
ernment of their body, the preservation of order and the transaction of
business as may be necessary.
21. To adopt a seal for their board;
22. To do and perform all other acts and things required by law
not in this title enumerated, or which may be necessary to the full
discharge of the duties of the chief executive authority of the county
government.
Historical: Rev. St. 188 7, Sec. 17 59.
(See 5 Ter. Ses. (1869) 100, Sec. 9; 7
Ter. Ses. (1873) 56. Sec. 2); Subd. 19,
amended Laws 1895, 50, Sec. 1; re-en-
acted Laws 1899, 248, Sec. 1. Last
part of subd. 3 omitted to conform to
Laws 1899, 33, Sec. 92, as construed
in Cunningham v. George, 3 Ida. 456,
31 Pac. 809. See Code Sec. 448, Subd.
17: "Except in members of the county
board" added on the authority of Laws
1899, 67, Sees. 4, 9. See Code Sees.
321. 322. Subd. 13: "County attorney"
for "District Attorney".
Calfiornia Legislation: Similar with
additional provisions: Pol. Code 1872,
Sec. 4046; Deering's Code, ib.; Kerr's
Code, ib.
Cross Reference: Additional duties
and powers: May employ counsel
when necessary: Const. Art. 18, Sec. 6.
To assist the State Examiner: Sec.
178.
Suspension and removal of county
treasurer for default reported by State
Examiner: Sec. 188.
To approve bond of county superin-
tendent: Sec. 585.
Constitute with the county physi-
cian the county board of health: Sees.
1095, 1109.
To appoint countv physician: Sec.
1109.
To license employment agencies:
Sec. 1443.
Duty in granting liquor licenses:
Sec. 1508.
Duties as board of equalization:
1692-1701.
To contract for the printing of sup-
plies for the assessor or to procure
Thr« same from the State Auditor: Sec.
1734.
.May transfer money from one fund
to another: Sec. 1792.
To make allowance for supplies to
Msor: Sec. 1810.
May suspend officers for neglect of
with relation to revenue: Sec.
1823.
Duties with respect to formation of
drainage districts: Sees. 2445-2448.
Grant of permission to construct
electric power transmission lines: Sec.
2837.
May appropriate money to aid in
defraying the expenses of county
fairs: Sec. 3040.
To provide room for use of jury:
Sec. 7900. Must make a jury list: Sec.
3947.
May require prisoners in county
jails to work: Sees. 8541, 8542, 8542b;
to inspect county jail: Sec. 8543; to
determine compensation to be allowed
sheriff for boarding prisoners: Sec.
8539.
Incorporation of villages: Sec. 2222;
to cause resolution organizing village
into city to be recorded: Sec. 2175;
changing names of municipalities:
Sees. 2281-2286; to pass order con-
solidating municipalities: Sec. 2299.
To levy livestock sanitary tax: Sec.
1205; to appoint stock inspectors: Sec.
12 44. May create herd districts: Sees.
1302-1305.
To provide office for county super-
intendent: Sec. 587; to levy a school
tax: Sec. 603; may create new school
districts and change the boundaries of
existing districts: Sees. 615-617; es-
tablishment of independent school dis-
tricts: Sec. 651; appointment of first
board of trustees: Sec. 653.
To establish and furnish election
precincts and to appoint judges of
election: Sees. 364-370; appointment
of registrars of election: Sec. 3 93;
publication of registration notices and
furnishing supplies to registrars: Sec.
394; to furnish election supplies: Sees.
402, 403; to provide two sets of ballot
boxes for certain election precincts:
Sec. 445; canvass of returns in county
seat elections: Sec. 475; canvass of
election returns: Sec. 448.
Organization of good road districts:
Sec. 10 50; to apportion to good road
districts all road and poll taxes levied
or collected within the district: Sec.
1058.
To fill vacancies in county and pre-
cinct, offices: Sees. 321-323.
To fix penalties of bonds of county
and precinct officers when not fixed
818
COUNTIES
Tit. 11
by law: Sec. 284; to approve bonds
of county and precinct officers: lb.
Duties with respect to highways:
Sees. 882, 882-a; may create and alter
road districts: Sec. 883; to appoint
road overseer in case of failure to
elect: Sec. 884; to set apart funds for
general road purpose: Sec. 887; to let
contracts for repair of roads: Sees.
888, 890, 891; levy of road taxes: Sees.
894-901; duties with respect to laying
out, altering and discontinuing high-
ways: Sees. 916-935; duties with re-
spect to construction and repair of
bridges: Sees. 936-942; grant of au-
thority to construct toll roads: Sees.
980-10 02; licensing the construction
of toll roads for traction engines: Sees.
1003-1006; license and supervision of
ferries and toll bridges: Sees. 1013-
1040; revocation of toll road, bridge,
or ferry license: Sec. 1046; construc-
tion of bridges over ditches: Sec.
3310; to direct county attorney to sue
delinquent road overseers: Sec. 915;
leases of highways by commissioners:
Sees. 964-979; to repair dams pursu-
ant to orders of the District Court:
Sec. 155; direction of expenditure of
forest reserve fund apportioned to
roads: Sec. 122.
Organization of irrigation districts:
Sees. 2372-2377; to have access to
books of irrigation district: Sec. 2395;
consolidation of irrigation districts:
Sec. 2438; audit and allowance of bills
for services of watermasters: Sec.
3281; audit and allowance of bills of
water commissioners: Sec. 3271; to
put measuring devices and headgates
in irrigation ditches where the owners
fail to do so: Sec. 3282; appointment
of commissioners to fix water rates:
Sec. 2839; regulation of use of high-
ways by company supplying water to
cities: Sec. 2840; fixing water rates:
Sees. 3294-3298.
To deduct amount of uncollected
taxes from assessor's salary: Sec. 1814.
Must not reduce assessment of con-
cealed property: Sec. 1680; nor of as-
sessments made against persons who
refuse to furnish a statement: Sec.
1688. Levy of taxes: Sees. 1647, 1648.
May cancel and refund taxes errone-
ously assessed: Sec. 1791. To furnish
assessor with blanks for special school
district taxes: Sec. 623. To furnish
poll tax book: Sec. 1858; to charge
assessor for each name on the book:
Sec. 1859; and to supervise erasures:
Sec. 1861.
Cited: Joliy v. Latah Co. (189 7) 5
Ida. 301; 48 Pac. 1063; Ball v. Ban-
nock County (1897) 5 Ida. 602; 51 Pac.
454. Peltham v. Board of Commrs.
(1904) 10 Ida. 182; 77 Pac. 332.
Establishment of Precincts: This
section taken in connection with Rev.
St. Sec. 1813, providing for precinct
officers, and Sec. 11 of the Election
Law of 1891, contemplates the estab-
lishment of two kinds of precincts by
the board of commissioners, viz: elec-
tion precincts and justices' precincts,
which need not be co-terminus, but
where the commissioners establish
election precincts, and provide for the
election of justices of the peace in
such precincts, it will be deemed a
sufficient compliance with the law,
although they do not eo nomine de-
scribe such precincts as justices' pre-
cincts. State ex rel Griffith v. Vine-
yard (1903) 9 Ida. 134; 72 Pac. 824.
Under subds. 2 and 3 of this
section, the board of county commis-
sioners has power to establish jus-
tices' precincts in incorporated cities.
Johnston v. Savidge (1905) 11 Ida.
204; 81 Pac. 616.
Employment of Counsel: The board
of county commissioners has no au-
thority to employ an attorney to act
by the year as legal adviser for the
county. Meller v. B. Co. Com. Logan
Co. (1894) 4 Ida. 44; 35 Pac. 712.
Power to employ counsel is restricted
to suits in which the county is a
party in interest and does not include
criminal cases nor authorize the
board to employ counsel in such cases.
Conger v. Commrs. Latah Co. (1897)
5 Ida. 347; 48 Pac. 1064.
The discretion of the board of
county commissioners in employing
special counsel to represent the coun-
ty in litigation will not be disturbed
unless abused. Anderson v. Shoshone
Co. (1898) 6 Ida. 76; 53 Pac. 105.
Printing Delinquent Tax List: The
authority to contract "for the printing
of the delinquent tax list" is vested in
the board of county commissioners
and not in the tax collector. Jolly v.
Latah Co. (1897) 5 Ida. 301; 48 Pac.
1063.
Publication of Statement: Where
a board of county commissioners ad-
journs from day to day, the statement
provided for in this section should
not be published until after the term
is adjourned sine die. The word "ses-
sion" as here used is synonymous
with the word "term." Ravenscraft
v. B. Commrs. Blaine Co. (1897) 5
Ida. 178; 47 Pac. 942.
Refunding Taxes: The board of
county commissioners has no power
to refund a tax which has been paid,
whether the tax is illegal or not. How-
ell v. Board of Commrs. (1898) 6
Ida. 154; 53 Pac. 542. But see Sec.
1791.
Passing on Statutes: The board of
county commissioners has no power to
pass upon the constitutionality of a
statute, in acting on a claim pre-
sented to it. lb.
Supplies for Elections.
Sec. 1918. The board must provide all poll lists, poll books, blank
Ch. 2. Art 2. COMMISSIONERS — POWERS and duties
819
returns and certificates, proclamations of election and other ap-
propriate and necessary appliances for holding all elections in the
county, and allow reasonable charges therefor, and for the trans-
mission and return of the same to the proper officers.
Historical: Rev. St. 18 8 7, Sec. 176 3.
See 13 Ter. Ses. (1885) 106, Sec. 12.
California Legislation: Same: Pol.
Code 1872, Sec. 4064; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Commissioners to
furnish election supplies: Sees. 402,
403; to furnish supplies to registrar:
Sec. 3 94; to provide two sets of bal-
lot boxes for certain precincts: Sec.
445.
Cited: Corker v. Pence (1906) 12
Ida. 152; 85 Pac. 388.
Subpoenas for Witnesses.
Sec. 1919. The board may, by their chairman, or the chairman
of any committee, issue subpoenas to compel the attendance of any
person and the production of any books or papers relating to the
affairs of the county, for the purpose of examination upon any matter
within their jurisdiction.
Historical: Rev. St. 1887, Sec. 1768.
California Legislation: Same: Pol.
Code 1872, Sec. 4067; Deering's Code,
ib.; Kerr's Code, ib.
Enforcement of Attendance and Testimony.
Sec. 1920. A witness is bound to attend, when served, and to
answer all questions which he would be bound to answer in the
same case before a court of justice. Obedience to the subpoena, or
to an order to attend, or to testify, may be enforced by the board,
and for that purpose the board has all the powers conferred by, and
the witness is subject to all the provisions of, the Code of Civil Pro-
cedure.
Historical: Rev. St. 1887, Sec. 1769.
California Legislation: Same except
"disobedience" for "obedience", line
3, and "of Chapter 2, Title 3, Part 4"
inserted after "provisions", last line:
Pol. Code 1872, Sec. 4068; Deering's
Code, ib.; Kerr's Code, ib.
Cross Reference: Rights and du-
ties of witnesses: Sees. 6090-6095.
Fees Need Not Be Prepaid.
Sec. 1921. Neither the officers serving subpoenas nor the wit-
nesses subpoenaed to testify in relation to matters of public concern
before the board of county commissioners, are entitled to have their
fees prepaid, but officers must serve the subpoenas and witnesses
must attend without their fees being prepaid. The board may allow
them reasonable compensation for services and attendance.
Historical: Rev. St. 1887, Sec. 1770.
California Legislation : Same except
'supervisors" for "commissioners",
line 3, and "must" for "may", line 5:
Pol. Code 1872, Sec. 4069; Deering's
Code, ib.; Kerr's Code, ib.
Leave of Absence to Officers.
Sec. 1922. The board of commissioners may grant to any county
officer of their respective counties (except the probate judge of such
county) leave of absence from their county and the State, for a
period of not exceeding ninety days, during which time the absence
of such officer does not work forfeiture of his office : Provided, That
before the granting of such leave of absence, the officer (except
county commissioners) must appoint a deputy to perform the duties
820 COUNTIES Tit. 11
of his office, as by statute in such cases made and provided, and
must present to, and file with, the board of commissioners of his
county the written consent of each person liable on his official bond,
that such leave of absence be granted : And, Be it further provided,
that no leave of absence shall be granted to more than any one
county commissioner at the same time.
Historical: Rev. St. 1887, Sec. 1785. i amended act 15th Ter. Ses. (Laws
(See 7 Ter. Ses. (1873) 27, Sec. 1); 1888-89), 63.
Appointment of Fire Gnard.
Sec. 1923. When a petition, signed by at least five of the tax
payers residing in any town or village, is presented to the board
asking that a committee be appointed for the purpose of inspecting
chimneys, stove pipes and fire places, the board, at their first regular
meeting, must act upon such petition by appointing not less than
three nor more than five tax payers of such town or village, who shall
constitute a "fire guard," within such limits as may be designated
by the commissioners.
Historical: Rev. St. 1887, Sec. 1788.
10 Ter. Ses. (1879) 12, Sec. 1.
Powers of Fire Guard.
Sec. 1924. They are invested with the power to examine fire
places, stove pipes, chimneys and fire escapes in all public and private
buildings within the limits designated by the commissioners, and
may, when in their opinion there exists danger from fire in any
building, give a notice in writing to the owner or occupant thereof,
requiring him to repair, alter or remove defective or insecure chim-
neys, fire places, stoves or stove pipes, within a reasonable time;
and upon his refusal or failure to comply with such written order,
the board may have the same done at the expense of such owner or
occupant.
Historical: Rev. St. 1887, Sec. 1789.
10 Ter. Ses. (1879) 12, Sec. 2.
Same: Payment for Alterations and Repairs.
Sec. 1925. To enforce the payment of such alterations and repairs,
the fire guard may seize so much of the personal property of any
person liable and refusing or neglecting to pay for such alterations
and repairs, as will be sufficient to pay for the same and costs of
seizure, which costs shall not exceed three dollars, and may sell the
same at any time or place upon giving a verbal notice of one hour
previous to such sale.
Historical: Rev. St. 188 7, Sec. 17 90.
10 Ter. Ses. (1879) 12, Sec. 3.
Notice Concerning Camp Fires.
Sec. 1926. It is the duty of the board of county commissioners
of each county in this State, to cause to be erected in a conspicuous
place at the side of each public highway, and at such places as they
may deem proper, a notice in large letters, substantially as follows :
"Camp fires must be totally extinguished before breaking camp.
Ch. 2. Art. 2. COMMISSIONERS — POWERS AND DUTIES 821
under penalty of not to exceed six months imprisonment, or three
hundred dollars fine, or both, as provided by law.
(Signed.)
"County Commissioners."
The erection and maintenance of such notices shall be at the
expense of the respective counties, and at least ten in number of
such notices shall be posted in each and every county in this State.
Historical: Rev. St. 1887, Sec. 1792.
Act Feb. 10, 1887. Omitting "within
sixty days after this act takes effect."
Control Over Wires Crossing Railroad Tracks.
Sec. 1927. It shall hereafter be unlawful for any corporation or
person to string* any wire, electric or other, over the tracks of any
railroad company, except at such places and in such manner as shall
be authorized and approved by the board of county commissioners
of the county wherein such crossing with such wire is proposed, and
any corporation or person desiring to so string any wire shall give
such railroad company notice in writing of the place and manner
in which it desires to string the same, and the place where, and the
time when, it will apply to said board of county commissioners for
approval and authority as above required, which notice shall be
served at least ten days before the time of hearing such application.
Historical: Laws 1907, 5 3 5, Sec. 1.
Order to Change Wires.
Sec. 1928. The boards of county commissioners of the several
counties in the State of Idaho shall, either by personal examination
or otherwise, obtain information as to all places where the tracks
of railroads are crossed by wires strung over said tracks, and when-
ever in their judgment such wires should be raised to a greater
height, or other thing done with reference thereto to guard against
accidents, they shall order such change or changes to be made, and
shall apportion any expense incident thereto between the companies
or persons affected, as may be deemed just and reasonable: Provided,
That in no case shall the height of any wire strung or to be strung
across or over such or any railroad tracks be less than twenty-five
feet, excepting trolley wires, which shall not be less than twenty
feet from the top of the rail of said railroad tracks.
Historical: Laws 1907, 5 3 5, Sec. 2.
Omitting "as soon as possible after
the passage of this act."
Penalty for Disobedience of Order.
Sec. 1929. It shall be the duty of every corporation and person
to whom an order made by the board of county commissioners of
the respective counties in this State under this and the two preceding
sections shall be directed, to comply with such order in accordance
with its terms, and for any neglect to so comply therewith, any such
corporation or person shall be liable to a penalty of one hundred
dollars, and to a like penalty for every ten days during which said
neglect shall continue. Any such penalty may be recovered by an
appropriate action instituted by the county where such violation or
822
COUNTIES
Tit. 11
disobedience has been committed, and said penalty shall.be recovered
by said county, and it shall be the duty of the prosecuting attorney
of the county to bring and prosecute any such action in the name of
the county, at the request of the said board of county commissioners.
Historical: Laws 1907, 5 35, Sec. 3.
Neglect of Duty by Commissioners.
Sec. 1930. Any commissioner who neglects or refuses, without
just cause therefor, to perform any duty imposed on him, or who
wilfully violates any law provided for his government as such officer,
or fraudulently or corruptly performs any duty imposed on him, or
wilfully, fraudulently or corruptly attempts to perform an act, as
commissioner, unauthorized by law, in addition to the penalty pro-
vided in the Penal Code, forfeits to the county five hundred dollars
for every such act.
Historical: Rev. St. 1887, Sec. 17 91.
The phrase "without just cause
therefor" is transposed for grammati-
cal reasons.
California Legislation: Same except
"supervisor" for "commissioner", and
additional provisions: Pol. Code 1872,
Sec. 4086; Deering's Code, ib.; Kerr's
Code, ib.
Cross Reference: Penalty for neg-
lect of duty by officers: Sec. 6534.
ARTICLE 3.
ERECTION OF PUBLIC BUILDINGS.
Section
1931. Erection of court house, and
provision for offices.
Same: Bond election.
1932.
1933.
Purchase of site and letting of
contract.
Section
193 4. Statutes governing
and bond issue.
election
Erection of Court House and Provision for Offices.
Sec. 1931. The board must cause to be erected or furnished, a
court house, jail and such other public buildings as may be necessary,
and must, when necessary, provide offices with necessary furniture
for the sheriff, clerk of the District Court and ex-officio auditor and
recorder, county treasurer, prosecuting attorney, probate judge,
county assessor, county surveyor and superintendent of public in-
struction, and must draw warrants in payment of the same: Pro-
vided, That the contract for the erection of any such buildings must
be let, after thirty days' notice for proposals, to the lowest bidder
who will give security for the completion of any contract he may
make respecting the same : And, Provided, further, No contract must
be let under the provisions of this section when the expenses there-
under will exceed one thousand dollars. The board must also pro-
vide all necessary books of record for the county auditor and re-
corder, county treasurer, county assessor, and tax collector, clerk
of the District Court, probate court, county surveyor, county super-
intendent of public instruction, and the books and stationery for
the use of the board, and so much as is necessary for the use of said
county officers in the transaction of official business.
Historical: Rev. St. 18 87, Sec. 1761.
(See 8 Ter. Ses. (1875) 520, Sec. 13);
amended Laws 1905, 228, Sec. 1.
Application: This section does not
applv to contracts for the purchase
of real estate for the erection of a
Ch. 2. Art. 3. commissioners — erection of buildings
823
court house, when the purchase of
such ground would not create an in-
debtedness on the part of the county
in excess of the revenue of the county
for the year in question, after deduct-
ing- from said revenue all indebted-
ness incurred by said county up to the
time of said purchase. Ball v. "Ban-
nock Co. (1897) 5 Ida. 602; 51 Pac.
454.
Same : Bond Election.
Sec. 1932. Whenever the interests of any county require it, and
the board of commissioners of the county deem it for the public
good to purchase a site and erect thereon a court house and jail, or
either thereof, and furnish the same ; and the expense of purchasing
such site, or erecting such buildings of suitable size and capacity
and furnishing the same would exceed the revenue of one year ap-
plicable to that purpose, and the board deems it for the public good
to bond the county for the purpose of providing funds therefor, the
board of commissioners may, by a resolution adopted at a
regular or any special meeting called for that purpose, call a special
election for such purpose, or submit, at any general election, the
question of issuing negotiable coupon bonds to an amount deemed
necessary to defray the expenses of purchasing such site and erecting
and furnishing such buildings.
Advertisement for Bids: In the mat-
ter of advertising for bids and letting
contracts for public buildings or im-
provements, the provisions of this
section must be substantially fol-
lowed, and before a board of county
commissioners can legally advertise
for competitive bids for the erection
of a bridge, they must adopt plans
and specifications of such bridge, and
said notice must contain explicit
specifications of the proposed bridge.
Any contract made without adopting
such specifications, or made when the
specifications have been adopted after
publication of the notice, is void. An-
drews v. Board of Commrs. of Ada
Co. (1900) 7 Ida. 453; 63 Pac. 592.
The contract must be let to the low-
est responsible bidder. lb.
Historical: Laws 1905, 73, Sec. 1.
Repeal: This section repeals Re-
vised Statutes, Sec. 1762. Decisions
under the repealed section are as fol-
lows:
Cited: Bannock Co. v. Bunting
(1894) 4 Ida. 156; 37 Pac. 277; Mc-
Nutt v. Lemhi Co. (1906) 12 Ida. 63;
84 Pac. 1054.
Construction With Constitution :
Under the provisions of this section,
a bridge cannot be built at a cost ex-
ceeding $1000, unless one-third of the
taxpayers who are voters petition
therefor, but since the adoption of the
Constitution this provision has been
changed and only applies when the
revenue for the fiscal year is not ex-
ceeded, for if such cost exceeds the
revenue of the fiscal year, the bridge
cannot be built without a two-thirds
vote. Dunbar v. Board of Commrs.
(1897) 5 Ida. 407; 49 Pac. 409.
Purchase of Site and Letting of Contract.
Sec. 1933. If two-thirds of the qualified electors of the county
voting at such election, vote in favor of the issuance of the bonds,
the board of commissioners shall select and purchase, or, if necessary,
cause to be condemned, for the use of the county, a suitable site for
said buildings, and cause to be prepared plans and specifications for
such court house and jail, or either thereof as the case may be, and
advertise in a weekly newspaper of the county for thirty days calling
for sealed proposals or bids for the construction of said buildings.
The published notice shall contain a general statement of the char-
acter and limited cost of the building or buildings, and state that the
plans and specifications thereof may be found and examined in the
office of the clerk of the board, and state the day when the sealed
proposals will be opened and considered. The sealed proposals must
be opened and considered publicly, and the contract let to the lowest
824
COUNTIES
Tit. 11
responsible bidder, unless all bids are rejected; and if all bids are
rejected, the board may advertise for new bids, or let the contract,
provided it be for a less sum than that offered by the lowest bidder.
The board must require a good and sufficient bond of the contractor
conditioned for the faithful performance of the contract according
to the plans and specifications. The board shall have full power and
authority to do and perform any act in relation to purchasing such
site and erecting said buildings, at any special or called meeting
when all members of the board are present, or at any regular meet-
ing of the board.
Historical: Laws 1905, 7 3, Sec. 3.
Statutes Governing Election and Bond Issue.
Sec. 1934. The board shall be governed in calling and holding said
election, and in the issuance and sale of said bonds, and in providing
for the payment of the interest thereon, and for their redemption,
by the provisions of Article 6 of this chapter, being Sections 1960
to 1972 inclusive of these Codes.
Historical: Laws 1905, 73, Sees. 2,
4, combined and re-written so as to
refer to the proper article and sec-
tions of these Codes instead of to the
sections of the Revised Statutes re-
ferred to in the original act.
ARTICLE 4.
PAYMENT OF BOUNTIES.
Section
1935. Bounty on wild animals.
1936. Special tax for bounty.
1937. Proof of claim.
1938. Surplus transferred to current
expense fund.
Section
1939. Bounties on cougars, lions and
panthers.
1940. Extermination of pests.
1941. Same: Board of control.
1942. Same: Payment of claims.
Bounty on Wild Animals.
Sec. 1935. The board of county commissioners of each county
shall, upon a petition of one-fourth of the qualified voters who are
taxpayers of the county, fix and determine the bounty for the de-
struction of each coyote, wildcat, fox, lynx, bear, squirrel, rabbit,
gopher, muskrat, and nondescript and badger, and to prescribe rules
for making proof of such destruction; and obtaining such bounty:
Provided, That in no case shall the bounty for rabbits, gophers or
squirrels be more than five cents for each animal. destroyed.
Historical: Rev. St. 1887, Sec. 1760;
amended Laws 1899, 20, Sec. 1; re-
enacting Laws 1890-91, 31, Sec. 1.
Omitting- "panther, cougar, lion"
which are covered by Laws 1905, 206,
which repeals all conflicting acts and
parts of acts. This act, omitting the re-
pealing clause, is found in Sec. 1939
post.
Special Tax for Bounty.
Sec. 1936. In order to pay bounties provided for in the preceding
section, the board of county commissioners of any county in which
a bounty for any or all the animals in said section has been offered,
are hereby authorized and required to levy and cause to be collected
a special tax of not more than one-half of one per cent on all taxable
property in said county. Said levy shall be made at the same time
that other taxes are levied and collected as other taxes are collected,
Ch. 2. Art. 4. COMMISSIONERS — PAYMENT OF BOUNTIES
825
and when so collected shall be paid into the county treasury, and
shall then become a special fund to be known as the scalp fund.
Historical: Rev. St. 1887, Sec.
1760a.
California Legislation: See Pol.
Code 1872, Sec. 4046, subd. 23; Deer-
ing's Code, ib.; Kerr's Code, ib.
Proof of Claim.
Sec. 1937. Any person desirous of obtaining any bounty offered
for the destruction of any animals mentioned in Section 1935, shall
present to the board of county commissioners a verified statement
showing the number and kind of animals destroyed by the person
seeking the bounty, and that the animals destroyed by him were
killed in the county in which application for bounty is made. Such
person shall also be required to furnish to the board of county com-
missioners the scalps or ears of the animals destroyed : Provided,
Any party residing over ten miles from the county seat may make
affidavit before any one authorized to administer oaths in said county,
and said commissioners shall allow such claim when accompanied
with the scalps from said animals. Said scalps and ears shall be
immediately destroyed in the presence of the county commissioners.
Historical: Rev. St. 1887, Sec.
1760b.
Provisions Superseded: This sec-
tion was superseded by Laws 1901,
205, Sees. 2 and 3, with respect to
the animals enumerated in the latter
act. State v. Adams (1905) 10 Ida.
591; 79 Pac. 398. But the law of
1901 was expressly repealed by Laws
1905, 69, and this section is here
treated as revived, as it was not to-
tally repealed by the 1901 law.
Surplus Transferred to Current Expense Fund.
Sec. 1938. The county commissioners of any county in which a
scalp fund shall have been established, may at the end of any quarter
when there is a deficiency in the current expense fund of said county
and a surplus in the scalp fund in excess of one hundred dollars,
transfer all of such surplus exceeding one hundred dollars to the
current expense fund, after all the warrants previously drawn on
such scalp fund shall have been paid, and whenever there shall occur
a deficiency in the scalp fund, the treasurer shall transfer from the
current expense fund to the scalp fund, a sufficient amount of money
to supply the deficiency, if not in excess of the amount previously
transferred to the said current expense fund, and at the time due
the scalp fund.
Historical :
1760c.
Rev. St. 1887, Sec.
Bounties on Cougars, Lions and Panthers.
Sec. 1939. There shall be paid out of the current expense fund
of each county for the destruction of each cougar, lion or panther,
the sum of fifteen dollars. Proof of such destruction shall be made
by the exhibition of the hide of such animal or animals with the
right foreleg to the knee joint intact, which shall be skinned out in
the presence of the board of county commissioners and the bone
thereof destroyed by them. The claim must be presented with an
affidavit stating that such lion, cougar or panther was destroyed in
the county in this State where the claim was presented, naming the
826
COUNTIES
Tit. 11
county, and also the date when such animal or animals were killed,
naming the postoffice nearest the place where the same were killed.
Historical: Laws 1905, 206, Sec. 1.
Extermination of Pests.
Sec. 1940. The board of county commissioners of any county in
this State, on the petition of one hundred or more of the taxpayers
of the county, at the time taxes are levied by them for State and
county purposes, may and they are hereby empowered to levy a tax
of not exceeding five mills on the dollar of the assessed valuation
of all taxable property within such county, for the purpose of ex-
terminating crickets, grasshoppers, rodents and rabbits, such tax
to be collected in the same manner as other county taxes are collected,
and to be placed in a fund known as the 'Test Fund."
Historical: Laws 1907, 24, Sec. 1.
Same: Board of Control.
Sec. 1941. The board of county commissioners of any county in-
fested with any such pests shall appoint three men, residents of the
county, who shall constitute the board of control to oversee the ex-
termination of any such pests and the expenditure of the funds pro-
vided for herein, and shall each receive for his services, while neces-
sarily engaged in such work, such compensation as shall be fixed by
the board of county commissioners.
Historical: Laws 1907, 24, Sec. 2.
Same: Payment of Claims.
Sec. 1942. All claims for services rendered hereunder shall be
presented to the said board of control and by them presented and
filed with the board of county commissioners, and by said commis-
sioners allowed and paid out of said pest fund in the same manner
as other bills against the county are allowed and paid.
Historical: Laws 1907, 24, Sec. 3.
ARTICLE 5.
COUNTY FINANCES AND CLAIMS AGAINST COUNTY.
Section
1943. Check list of bills allowed.
1944. Transfer of moneys.
1945. Prohibition on allowance of
claims.
1946. Officers not to present claims.
1947. Claims to be verified.
1948. Same: Other claims need not
be passed upon.
1949. Partial allowance and recon-
sideration.
1950. Appeal from order of board.
1951. Notice and bond: Time of
hearing.
Section
1952. Transmission of papers.
195 3. Disposition of appeal: Costs.
1954. Dissatisfied claimant may sue.
1955. Warrants: How drawn and
presented.
1956. Commissioners must be disin-
terested.
1957. Same: Transfer of license ap-
plications.
1958. Claims of commissioners must
be verified.
1959. Preparation of financial state-
ment by board.
Check List of Bills Allowed.
Sec. 1943. The board must require their clerk, at the close of
every session, to furnish them with a list of all bills and accounts
Ch. 2. Art. 5. commissioners — claims against county 827
cf every nature approved by them at said session, giving the name
of each person in whose favor an account or bill of any kind or nature
has been allowed, with the amount allowed him and out of what
fund the same is to be paid. They must compare their list with the
record of their proceedings, and if not found correct, make it so
and certify to said list and file it with the county treasurer, and
the treasurer must pay no warrant drawn on any fund in the county
treasury that does not correspond with the files furnished him by
the board.
Historical: Rev. St. 188 7, Sec. 17 66.
Transfer of Moneys.
Sec. 1944. The board must not transfer any money from one fund
to another, nor in any manner divert the money in any fund to other
uses, except in cases expressly provided and permitted by law, nor
make any preferred creditor, nor cause any warrant to be drawn
payable out of its order except on the order of the District Court
in cases provided by law, and the county treasurer must in all things
observe these instructions : Provided, That when any money shall
have been assessed and collected in any of the counties of this State,
and the same set apart as a separate fund, for a special purpose,
and from any cause the money in said fund shall have become in-
operative for the purpose for which said fund was created, it shall
be lawful for the board of county commissioners in such cases to
transfer the money in said fund to such fund as the board of county
commissioners may deem best.
Historical: Rev. St. 1887, Sec. 1767.
See 5 Ter. Ses. (1869) 100, Sec. 10.
Prohibitions on Allowance of Claims.
Sec. 1945. The board must not for any purpose contract debts or
liabilities, except in pursuance of law. They must not allow any
account, or cause or permit any warrant to be issued to any county
or precinct officer entrusted with the collection, safe keeping or
disbursement of the public funds, who has failed to make any state-
ment or settlement of his accounts, as required by law, or who has
failed to account for and pay over the public funds received by him
when, and as required by law, or who is in any way a delinquent
or defaulter in his trust, nor to any delinquent tax payer. They
must not allow any account, or cause or permit any warrant to be
drawn in favor of any person who is liable, either as principal or
surety, upon any official or other bond, cognizable by the board,
after a breach of such bond, or upon any recognizance in a criminal
action or proceeding in the county, after the forfeiture of such
recognizance. They must not provide any stationery for any officer,
to be used for any purpose or act for which such officer is allowed
a fee by law. They must not allow any account or claim of any
officer while he neglects or refuses to perform any duty required of
him by law.
Historical: Rev. St. 1887, Sec. 1771. account or claim for services to a
Omitting "They must not allow any I deputy of any officer, or cause or per-
828
COUNTIES
Tit. 11
mit any warrant to be drawn therefor,
except to and through, and in the
name of his principal." That clause
is superseded by Laws 1899, 405, Sec.
4, providing that the salaries of depu-
ties shall be paid in the same manner
that the salaries of county officers are
paid. (Code, Sec. 2119.)
California Legislation: See Pol.
Code 1872, Sec. 4070; Deering's Code,
ib.; Kerr's Code, ib.
Action to Recover Fees: In an ac-
tion by an officer against a county to
recover fees alleged to be due such
officer, the complaint must show that
such officer is not in arrears as to
public funds collected by him, and
that his bill as presented to the com-
missioners was itemized and verified.
(Concur, op.) Pease v. Co. of Koote-
nai (1901) 7 Ida. 731; 65 Pac. 432.
Officers Not to Present Claims.
Sec. 1946. No county officer must, except for his own services,
present any claim, account or demand for allowance against the
county, or in any way advocate the relief asked on the claim or de-
mand made by another. Any citizen and tax payer of the county
in which he resides may appear before the board and oppose the
allowance of any claim or demand made against the county.
Historical: Rev. St. 188 7, Sec. 1772.
California Legislation: Same with
first sentence omitted: Pol. Code 1872,
Sec. 4071; similar as amended: Deer-
ing's Code, ib.; Kerr's Code, ib.
Advancing Money for County: A
member of the board of commission-
ers who advances a fee to an attorney
employed by the board, is entitled to
receive the amount so advanced from
the county; he is not barred from
presenting his claim by the provisions
of this section. Ponting v. Isaman
(1901) 7 Ida. 581; 65 Pac. 434.
Allowance of Illegal Compensation:
An order of the board of county com-
missioners allowing one of their num-
ber compensation to which he is not
entitled by law, is void and may be
collaterally attacked, and the county
may sue to recover back compensa-
tion so paid. (Stockslager, C. J., dis-
sents.) Kootenai Co. v. Dittemore
(1906) 12 Ida. 758; 88 Pac. 232.
Claims to Be Verified.
Sec. 1947. The board of commissioners must not hear or consider
any claim in favor of an individual against the county unless an
account properly made out, giving all items of the claim, duly verified
as to its correctness, and that the amount claimed is justly due, is
presented to the board within a year after the last item of the account
accrued.
Historical: Rev. St. 18 87, Sec. 1773.
See 5 Ter. Ses. (1869) 100, Sec. 12. .
California Legislation: Same except
"supervisors" for "commissioners":
Pol. Code 1872, Sec. 4072; Deering's
Code, ib.; Kerr's Code, ib.
Cited: Rankin v. Jauman (1895) 4
Ida. 394; 39 Pac. 1111.
Allowance of Expenses: Accounts
of a county officer against the county
for expenses incurred in his official
capacity and while on official busi-
ness, can only be considered by the
board of county commissioners as a
part of such officer's quarterly state-
ment and cannot be considered as an
independent claim or account. Clyne
v. Bingham Co. (1900) 7 Ida. 75; 60
Pac. 76.
Apportionment of Road Taxes: This
section does not apply to a munici-
pality which claims 2 5 per cent of the
road taxes collected against property
situated within its corporate limits,
and such percentage should be paid
over by the county without the pre-
sentation of a claim therefor; it is
immaterial that no such claim is made
within a year after the collection of
the tax by the county. Village of
Mountainhome v. Elmore Co. (1904)
9 Ida. 410; 75 Pac. 65.
Same: Other Claims Need Not Be Passed "Upon.
Sec. 1948. No account must be necessarily passed upon by the
board unless made out as prescribed in the preceding section, and
filed by the clerk at least one day prior to the session at which it is
asked to be heard.
Ch. 2. Art. 5. commissioners — claims against county
829
Historical: Rev. St. 1887, Sec. 1774.
California Legislation: Same: Pol.
Code 18 72, Sec. 40 73; Deering's Code,
ib.; Kerr's Code, ib.
Partial Allowance and Reconsideration.
Sec. 1949. When the board finds that any claim presented is not
payable by the county, or is not a proper county charge, it must be
rejected. If they find it to be a proper county charge, but greater
in amount than is justly due, the board may allow the claim in part
and draw a warrant for the portion allowed, on the claimant filing
a receipt in full for his account. If the claimant is unwilling to
receive such amount in full payment, the claim may be again con-
sidered at the next regular succeeding session of the board, but not
afterwards.
Historical: Rev. St. 18 87, Sec. 17 75.
California Legislation: Same: Pol.
Code 1872, Sec. 4074; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Campbell v. Commrs. Logan
Co. (1894) 4 Ida. 181; 37 Pac. 329.
Acceptance of Warrant: A claimant
cannot accept a county warrant for a
portion of his claim aLowed by the
commissioners, and sue the county for
the balance, but must either acquiesce
in the determination of the board and
accept the warrant in full settlement
of his claim, or refuse the warrant
and submit the whole claim to the
court. Eakin v. Nez Perce Co. (1894)
4 Ida. 131; 36 Pac. 702. Nor can a
claimant who accepts his warrant ap-
peal from the order of the board dis-
allowing his claim in full. Ellis v.
Bingham Co. (1900) 7 Ida. 86; 60
Pac. 79.
Reconsideration of Claim: If an ac-
count presented to the board of
county commissioners is disallowed in
part and the claimant is unwilling to
receive such amount in full payment
the claim may again be considered at
the next regular succeeding session of
the board, but not afterwards. Clyne
v. Bingham Co. (1900) 7 Ida. 75; 60
Pac. 76.
Illegal Allowances: The claim of a
sheriff against the county for serving
subpoenas in some other county, is
an unnecessary expense, as subpoenas
should be sent to the sheriff of the
county where the witness may be,
and any allowance of such claim is
wrongful and in violation of law. Ib.
Same — Action to Recover: Where
the county commissioners illegally al-
low a claim of a county officer and
county money is paid in settlement of
such claim, the county may sue to
recover the amount of such payment.
Ada Co. v. Gess (1895) 4 Ida. 611; 43
Pac. 71.
Appeal From Order of Board.
Sec. 1950. Any time within twenty days after the first publica-
tion or posting of the statement, as required by Paragraph 19 of
Section 1917, an appeal may be taken from any act, order or pro-
ceeding of the board, by any person aggrieved thereby, or by any
tax payer of the county when any demand is allowed against the
county or when he deems any such act, order or proceeding illegal
or prejudicial to the public interests ; and no such act, order or pro-
ceeding whatever, which directly or indirectly renders the county
liable for the payment of the sum of three hundred dollars or over,
or its equivalent, shall be valid until after the expiration of the time
allowed for appeal or until such appeal, if taken, shall be finally de-
termined; but there is excepted from the operation hereof all orders
for the payment of those sums specially directed by law to be paid,
or payments in fulfillment of acts or proceedings made and confirmed
according to the provisions hereof.
Historical: Rev. St. 1887, Sec. 1776;
amended Laws 1895, 50, Sec. 1; re-
enacted Laws 1899, 248, Sec. 1.
Cross Reference: Appeals from
commissioners' orders relating to
change of highways across private
lands: Sec. 933; from order revoking
toll road, bridge or ferry license: Sec.
10 46; from orders relating to forma-
tion of good road districts: Sec. 1051;
from order granting or refusing a
liquor license: Sec. 1508.
830
COUNTIES
Lt 11
Cited: Mahoney v. Board of Co.
Commrs. (1902) 8 Ida. 375; 69 Pac.
108. Corker v. Commrs. of Elmore
Co. (1904) 10 Ida. 255; 77 Pac. 633.
Foresman v. Board of Commrs. (1905)
11 Ida. 11; 80 Pac. 1131.
Who May Appeal: The county at-
torney may appeal to the District
Court for an order of the board of
county commissioners refusing- to com-
ply with his request to require certain
officers to turn certain fees into the
county treasury. Rhea v. Board of
Co. Commrs. (1906) 12 Ida. 455; 88
Pac. 89.
This section applies only to persons
and taxpayers and has no application
to the county itself, and a failure to
appeal from an order of the board of
commissioners does not preclude the
county from resisting- the enforcement
of a claim illegally allowed by the
board of commissioners. (Stockslager,
C. J., dissents.) McNutt v. Lemhi Co.
(1906) 12 Ida. 63; 84 Pac. 1054.
Kootenai Co. v. Dittemore (1906) 12
Ida. 758; 88 Pac. 232.
Appealable Orders: The following or-
ders are appealable: Discretionary or-
ders; Meller v. Board of Co. Commrs.
of Logan Co. (1894) 4 Ida. 44; 35
Pac. 712. An order for the issuance
and sale of funding bonds; Mason,
etc., Co. v. Lieuallen (1895) 4 Ida.
415; 39 Pac. 1117. An order allowing
a claim for printing the delinquent
tax list; Jolly v. Woodward (1895) 4
Ida. 496; 42 Pac. 512. An order fix-
ing the salaries of county officers;
Reynolds v. Board of Commrs. (1899)
6 Ida. 787; 59 Pac. 730. An order
opening a private road: Latah Co. v.
Hasfurther (1907) 12 Ida. 797; 88
Pac. 433.
Put owners through whose lands a
private road is opened need not ap-
peal, but may refuse to accept the
award and compel condemnation pro-
ceedings by the county. lb.
Non-Appealable Orders: No appeal
lie? from an order of the board of
commissioners sitting as a board of
equalisation. Gen. Custer Min. Co. v.
Van Camp (1884) 2 Ida. 40; 3 Pac. 22.
Fe.tham v. Board of Commrs. (1904)
10 Ida. 182; 77 Pac. 332. Humbird
Lumber Co. v. Morgan (190 4) 10 Ida.
327; 77 Pac. 433.
Time for Appeal: A person ag-
grieved by an order of the board of
commissioners need not wait until the
statement provided for in Rev. St. Sec.
1759. paragraph 19, shall have been
published or posted, but may take his
appeal forthwith. Ravenscraft v.
Board of Commrs. (1897) 5 Ida. 178;
47 Pac. 942.
Effect of Appeal: An appeal taken
under this section is not the com-
mencement of a new action or pro-
ceeding, but is a mere transfer of the
original proceedings from one trib-
unal to another. Van Camp v. Board
of Commrs. (18 8 4) 2 Ida. 2 9; 2 Pac
721.
Collateral Actions Prohibited: This
section prescribes an adequate remedy
for contesting claims illegally allowed
by the board of county commissioners,
and precludes a resort to equity by
action to restrain the county treasurer
irom paying warrants issued on such
claims. Picotte v. Watt (1892) 3 Ida
447; 31 Pac. 805.
This statute provides a speedy and
adequate remedy by which tax payers
may procure a review of illegal action
by the board of commissioners, and
precludes resort to writ of review.
Rogers v. Hays (1893) 3 Ida. 597; 32
Pac. 259.
Where no appeal is taken from an
order of the county commissioners
making a jury list, the District Court
has no jurisdiction to quash the panel
on ex parte motion of the prosecuting
attorney. Heitman v. Morgan (1905)
10 Ida. 562; 79 Pac. 225.
A person aggrieved by an order of
the board of county commissioners
establishing a school district, should
appeal from such order under this
section and cannot attack the order
for want of jurisdiction of the com-
missioners to make the same in a col-
lateral proceeding. School District
No. 25 v. Rice (1905) 11 Ida. 99; 81
Pac. 155.
Where the action of the board of
commissioners in constituting a jus-
tice's precinct is merely voidable, and
not absolutely void, it can be reviewed
only on appeal and cannot be ques-
tioned in an action of quo warranto
to try title to the office of justice in
such precinct. Johnston v. Savidge
(1905) 11 Ida. 204; 81 Pac. 616.
Collateral Actions Allowed: The
fact that an appeal may be taken
from an order of the commissioners
allowing the account of a county offi-
cer, does not preclude the mainten-
ance of a suit by the county to re-
cover the amount of the account if
the same is illegallv allowed. Ada Co.
v. Gess (1895) 4 Ida. 611; 43 Pac. 71.
Where a county is seeking to pro-
tect itself against the payment of war-
rants illegally or fraudulently issued
by its board of commissioners, this
section does not provide a plain,
speedy and adequate remedy at law,
and the county may sue to cancel
such warrants. (Point reversed and
overruled. Rehearing opinion 5 Ida.
188; 47 Pac. 824.) Co. of Ada v.
Bullen Bridge Co. (1896) 5 Ida. 79;
47 Pac. 818.
The remedy to correct errors and
irregularities in the action of a board
of commissioners acting in a matter
over which such board has jurisdic-
tion, is solely by appeal. But where
a board, in violation of the constitu-
tion, incurs a large debt in excess of
the revenues for the fiscal year, with-
out submitting such question to the
Ch. 2. Art. 5. COMMISSIONERS — CLAIMS against county
831
voters, such board is not acting within
its jurisdiction, and the action is void,
and may be attacked directly, indi-
rectly or collaterally at any time or
place. Dunbar v. Board of Commrs.
of Canyon Co. (1897) 5 Ida. 407; 49
Pac. 409. (Modifying Morgan v.
Board, 4 Ida. 418; 39 Pac. 1118.;
Notice and Bond : Time of Hearing.
Sec. 1951. Such appeal may be taken to the District Court, or the
Judge thereof, of the judicial district of which the county is a part,
by serving upon the clerk of the board a notice of appeal so referring
to the act, order or proceeding appealed from as to identify it. Upon
notice in writing of such appeal being brought by any person to the
attention of such Judge, he shall fix the earliest time, and a place
convenient to himself, for the hearing of such appeal, which may be
heard in a summary manner before him, or his court, and when, in
his opinion, no serious injury will result from delay, the hearing
shall be had during the next term of his court in the county from
which the appeal comes. When the appeal is made for the purpose
of protecting the interests of the county and of the people, no re-
quirement shall be made of the appellant for security of costs, except
that when the District Judge shall be of opinion that such appeal
is not made in good faith, but is for delay and vexation, he may
require the appellant to enter into an undertaking with good sureties
in an amount sufficient to secure the payment of costs, and in all
other cases like undertaking shall be required.
Historical: Rev. St. 188 7, Sec. 1777;
amended Laws 1895, 50, Sec. 1; re-
enacted Laws 1899, 2 48, Sec. 1.
Necessity of Undertaking: No un-
dertaking on appeal is necessary
either on an appeal from an order of
the board of county commissioners to
the District Court, or from the Dis-
trict Court to the Supreme Court, on
the same question, unless required by
the Judge of the District Court for
reasons mentioned in this section.
Ravenscraft v. Board of Commrs.
(1897) 5 Ida. 178; 47 Pac. 942.
An appellant from an order of a
board of county commissioners must
file an undertaking when the appeal
is not taken for the purpose of pro-
tecting the interests of the county, or
his appeal will be dismissed. Davis v.
Elmore Co. (1904) 9 Ida. 764; 76 Pac.
910.
The giving of a bond is not a juris-
dictional prerequisite to the perfection
of an appeal from an order of a board
of county commissioners, and such an
appeal should not be dismissed for
failure to give the bond in the absence
of an order of the District Judge re-
quiring the bond. Great Northern
Ry. Co. v. Kootenai Co. (1904) 10 Ida.
379; 78 Pac. 1078.
Discretion of Court: This provision
vests the District Judge with discre-
tionary power and a judgment en-
tered hereunder, after hearing, finding
that no necessity exists for an
immediate hearing of an appeal from
an order made by a board of county
commissioners, and continuing the
matter until the next regular term of
the District Court, is an exercise of
such discretionary power, and man-
damus will not lie to compel such
court to reverse its decision and hear
the case. (Sullivan, C. J., dissents.)
Board of Commrs. of Shoshone Co. v.
Mayhew (1897) 5 Ida. 572; 51 Pac.
411.
Pleadings Not Required: Under the
territorial statute governing appeals
from county commissioners, it was
held that no other written pleadings
than the notice of appeal are required,
and questions of law may be presented
by motion to dismiss, by inspection or
by demurrer. Gorman v. Co. Commrs.
(1877) 1 Ida. 655.
Transmission of Papers.
Sec. 1952. When such appeal is taken the clerk of the board must,
within five days, transmit to such District Judge a copy of the notice
of appeal, the order, decision or proceeding appealed from, together
with the accounts, bills, contracts or papers connected therewith and
necessary to a proper hearing thereof; or, when this is not practic-
able, certified copies thereof, and of the record.
832
COUNTIES
Tit. 11
Historical: Rev. St. 1887, Sec. 1778
(see 5 Ter. Ses. (1869) 100, Sec. 20);
amended Laws 1895, 5 0, Sec. 1; re-
enacted Laws 1899, 248, Sec. 1.
Filing- of Transcript: If appellant
fails to file the transcript provided for
in this section within the time limited,
such appeal should be dismissed.
Clyne v. Bingham Co. (1900) 7 Ida.
75; 60 Pac. 76. Ellis v. Bingham Co.
(1900) 7 Ida. 86; 60 Pac. 79.
Transmission of Papers: An appeal
from the county commissioners is per-
fected by the service of notice, and
the transmission of papers by the
clerk is a purely ministerial act, the
neglect of which by him for the period
prescribed by this section does not
divest the District Court of jurisdic-
tion of the appeal.' Humbird Lumber
Co. v. Kootenai Co. (1904) 10 Ida.
490; 79 Pac. 396.
Disposition of Appeal: Costs.
Sec. 1953. Upon the appeal, the matter must be heard anew and
the act, order or proceeding so appealed from may be affirmed, re-
versed or modified; and, from the decision of the District Court, or
Judge, either party may, within ninety days, appeal to the Supreme
Court. Either of said courts, or said Judge, may make any rules
necessary to a proper and speedy hearing in such appeals.
The costs shall be taxed against the losing party, except that
when the appeal is taken in good faith to protect the interests 01
the county and the people, they shall not be taxed against the appel-
lant; and, if it clearly appears that the order or proceeding appealed
from was made fraudulently or in reckless disregard of the interests
of the county or people, they may be taxed against those commis-
sioners personally who assented to such order or proceeding.
Historical: Rev. St. 1887, Sec. 1779
(see 5 Ter. Ses. (1869) 100, Sec. 19);
amended Laws 1895, 50 Sec. 1; re-
enacted Laws 1899, 248, Sec. 1.
"Ninety days" inserted for "five days"
in reference to appeals to the Su-
preme Court, on the authority of
Laws 1899, 273, Sec. 1, Subd. 4 (Codes,
Sec. 48 07) as construed in Latah
County v. Hasfurther (1907) 12 Ida.
797; 88 Pac. 433.
Cited: Clyne v. Bingham Co. (1900)
7 Ida. 75; 60 Pac. 76. Feltham v.
Board of Commrs. (1904) 10 Ida. 182;
77 Pac. 332. Foresman v. Board of
Commrs. (1905) 11 Ida. 11; 80 Pac.
1131.
Trial De Novo: On an appeal from
an order of the board of commission-
ers allowing a claim, the case should
be tried anew, and evidence should
be received on the issue involved.
Fisher v. Board Co. Commrs. Bannock
Co. (1895) 4 Ida. 381; 39 Pac. 552.
Latah Ca. v. Hasfurther (1907) 12
Ida. 797; 88 Pac. 433. And since the
trial must be de novo, the court can
not act on a stipulation of the district
attorney that the action of the com-
missioners was proper. Campbell v.
Board of Commrs. (1896^ 5 Ida. 35;
46 Pac. 1022. After the trial, no new
trial is authorized. Mahoney v. Board
of Ho. Commrs. (1902) 8 Ida. 375; 69
Pac. 108.
On an appeal from an order of the
board of county commissioners allow-
ing a claim, the issue may be sub-
mitted to the jury. Fisher v. Board
of Co. Commrs. Bannock Co. (1895)
4 Ida. 381; 39 Pac. 552. But the court
need not submit the case to the jury
when, on the appellant's own showing
he is not entitled to recover. Gorman
v. Co. Commrs. (1877) 1 Ida. 655.
Defect in Statement: The respond-
ent in an appeal from the board of
county commissioners is not injured
by a defect in the statement in the
notice of appeal, where he appears
in the District Court and moves for a
further specification of the grounds
of appeal, and the motion is complied
with. Fisher v. Board of Commrs.
Bannock Co. (1895) 4 Ida. 381; 39
Pac. 552.
Judgment: On appeal from an or-
der of the county commissioners dis-
allowing a claim, the court should
either affirm the order, reverse it, an-
nul it or modify it and send the order
a? modified back to the board with
appropriate directions; it is improper
for the court to enter a judgment on
the claim against the county. Gorman
v. County Commrs. (1876) 1 Ida. 627.
Dissatisfied Claimant May Sue.
Sec. 1954. A claimant dissatisfied with the rejection of his claim
or demand, or with the amount allowed him on his account, may sue
the county therefor at any time within six months after the final
action of the board, but not afterward ; and if in such action judg-
Ch. 2. Art. 5. COMMISSIONERS — CLAIMS AGAINST COUNTY
833
merit is recovered for more than the board allowed, on presentation
of the judgment the board must allow and pay the same, together
with the costs adjudged; but if no more is recovered than the board
allowed, the board must pay the claimant no more than was originally
allowed.
Historical: Rev. St. 18 87, Sec. 1780.
California Legislation: Same: Pol.
Code 1872, Sec. 4075; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Jolly v. Woodward (1895) 4
Ida. 496; 42 Pac. 512. Ada Co. v.
Gess (1895) 4 Ida. 611; 43 Pac. 71.
Warrants : How Drawn and Presented.
Sec. 1955. Warrants drawn by order of the commissioners on the
county treasury for the current expenses during each year, must
specify the liability for which they are drawn, and when they accrued,
and must be paid in the order of presentation to the treasurer. If
the fund is insufficient to pay any warrant, it must be registered,
and thereafter paid in the order of its registration.
Historical: Rev. St. 1887, Sec. 1781.
California Legislation: Same except
"supervisors" for "commissioners":
Pol. Code, Sec. 4076; Deering's Code,
ib.; Kerr's Code, ib.
Commissioners Must Be Disinterested.
Sec. 1956. No member of the board must be interested, directly
or indirectly, in any property purchased for the use of the county,
nor in any purchase or sale of property belonging to the county, nor
in any contract made by the board or other person on behalf of the
county, for the erection of public buildings, the opening or improve-
ment of roads, or the building of bridges, or for other purposes.
Historical: Rev. St. 1887, Sec. 1782.
See 5 Ter. Ses. (1869) 100, Sec. 10,
Subd. 8.
California Legislation : Same: Pol.
Code 1872, Sec. 4077; Deering's Code,
ib.; Kerr's Code, ib.
Cited: (Dis. op.) Ponting v. Isaman
(1901) 7 Ida. 581; 65 Pac. 434.
Allowance of Money Advanced:
Where a county was engaged in litiga-
tion, and the necessity for the pay-
ment of a small amount of costs arose,
and a member of the board of com-
missioners advanced the required
sum, the allowance of the sum so
advanced by the board will not be
reversed on appeal. Osborne v.
Ravenscraft (1897) 5 Ida. 612; 51
Pac. 618.
Same : Transfer of License Applications.
Sec. 1957. Whenever an application is made to the board for an
order, franchise or license, relating to any toll road, bridge, ferry
or other subject over which the board has jurisdiction, in which a
majority of the board are not disinterested, the application, by order
of the board, must be transferred to the District Court of the county ;
the clerk of the board must thereupon certify the application and
all orders and papers relating thereto to the court to which the
transfer is ordered; and thereafter the court to which the same is
certified has full jurisdiction to hear and determine the application.
county," also additional provision:
Pol. Code 1872, Sec. 4078; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Historical: Rev. St. 18 87, Sec. 1783.
California Legislation: Similar, but
application is transferred "to the
board of supervisors of an adjoining
Claims of Commissioners Must Be Verified.
Sec. 1958. All claims against the county presented by members
834
COUNTIES
Tit. 11
of the board of commissioners for service rendered by them, must
be verified as other claims, and must state that the service has been
actually rendered.
Historical: Rev. St. 1887, Sec. 1786.
Omitting- "per diem and mileage or
other" before "service." Laws 1901,
226 (Code, Sec. 2117) provides for
the payment to the commissioners of
an annual salary and "actual and
necessary expenses." They no longer
draw per diem and mileage as such.
California Legislation: Similar except
"supervisors" for "commissioners"-
Pol. Code 1872, Sec. 4082: Deering's
Code, ib.; Kerr's Code, ib.
Cited: Rankin v. Jauman (1895) 4
Ida. 394; 39 Pac. 1111.
Preparation of Financial Statement by Board.
Sec. 1959. The boards of county commissioners of the several
counties shall, at the April session of said boards, prepare from said
auditor's statement and have spread upon their minutes, a full state-
ment of the financial condition of their respective counties for the
preceding fiscal year, together with a concise description of all prop-
erty owned by the county, with an approximate estimate of the value
thereof. The said board shall cause to be printed the said auditor's
statement in full for the information of the public.
Historical: Laws 1901, 2 94, Sec. 2.
ARTICLE 6.
COUNTY BOND ISSUES.
Section
1960. Commissioners may issue fund-
ing bonds.
1961. Prerequisites to issuance.
1962. Building-, road and bridge
bonds.
1963. Tax levy for interest and sink-
ing fund.
1964. Bond tax levies in new coun-
ties and segregated areas.
1965. Form of bonds.
1966. Sale and redemption of bonds.
of proceeds of
Section
1967. Application
bond issue.
1968. Notice of bond election.
1969. Conduct of election: Applica-
tion of election law.
1970. Officers of election: Canvass of
returns.
1971. Form of ballot.
1972. Voting on bonds at general
election.
Commissioners May Issue Funding Bonds.
Sec. 1960. The board of county commissioners of any county in
this State, may issue negotiable coupon bonds of their county for
the purpose of paying, redeeming, funding or refunding the out-
standing indebtedness of the county, as hereinafter provided, whether
the indebtedness exists as warrant indebtedness, or bonded indebted-
ness. Said bonds shall be issued as near as practicable in denomina-
tions of one thousand dollars each, but bonds of the denominations
of five hundred and one hundred dollars may be issued when neces-
sary. Said bonds must bear interest at a rate of not to exceed six
per cent per annum, the interest to be paid on the first day of
January and the first day of July in each year, at the office of the
county treasurer, or at such bank in the City of New York as may
be designated by the board of county commissioners; such bonds to
be redeemed by the county in the following manner: Ten per cent
of the total amount issued to be paid in ten years from the date of
issue; and ten per cent annually thereafter until all of said bonds
are paid. But said bonds of any part thereof may, at the option of
Ch. 2. Art. 6.
COMMISSIONERS — BOND ISSUES
835
the county issuing the same, be redeemed at any time after ten years
from the date of their issue, provided such time and option be stated
upon the face of each bond, and each bond must be redeemed in the
order it is numbered.
Historical: Rev. St. 1887, Sec. 3602;
amended Laws 1899, 136, Sec. 1; re-
enacting Laws 1895, 56, Sec. 1.
What May Be Funded: This section
authorizes counties not only to fund
their bonded indebtedness, but also
their warrant indebtedness. Bannock
Co. v. Bunting (1894) 4 Ida. 156; 37
Pac. 277.
Curative Act: Since this and the
following sections re-enact the fund-
ing act of March 8, 1895, and the act
of March 6, 1899, (Laws 1899, p. 368)
validates bonds issued under the act
of 1895, bonds issued under said last
mentioned act are binding county ob-
ligations, notwithstanding defects in
the manner of passage of such act.
Crocheron v. Shea (1899) 6 Ida. 593;
57 Pac. 707.
Prerequisites to Issuance.
Sec. 1961. For the purpose of extending the time of payment of
said outstanding indebtedness, or reducing the interest charged, or
when the interests of the county require it, the board may issue said
bonds, in exchange for bonds, theretofore issued by the county, or
for' valid and legal warrants of the county, then outstanding, and
may do so by resolution of the board at a regular meeting thereof,
and without a vote of the people. Before any bonds shall be issued
or exchanged under this section, the board of county commissioners
shall ascertain that the bonds or warrants the payment of which
is to be extended, or which are to be taken in exchange for the new
issue of bonds, are valid and legal obligations to the county, and
their finding of fact shall be entered of record on the minutes of
their proceedings at least ten days before any exchange is made, as
herein provided. The said board shall also, before issuing any bonds
under this section, deduct from the total outstanding legal indebted-
ness of the county at the time of the issue of said bonds, the cash
on hand in the treasury of the county, that is available for the pay-
ment of said legal indebtedness, or any part thereof, and the issue
of bonds as in this section provided for, shall in no case exceed
the aggregate or total legal indebtedness of the county then out-
standing, less the cash on hand to be applied in payment and dis-
charge of said indebtedness.
Historical: Rev. St. 1887, Sec. 3603;
amended Laws 1899, 136, Sec. 1; re-
enacting Laws 1895, 56, Sec. 1.
Conclusiveness of Order: An order
of the board of commissioners, made
in accordance with this section, fixing
the indebtedness of the county and
providing for the issuance of funding
bonds, which is affirmed on appeal to
the District Court, cannot be there-
after collaterally attacked. Blaine Co.
v. Smith (1897) 5 Ida. 255; 48 Pac.
286.
Building, Road and Bridge Bonds.
Sec. 1962. When the interests of the county require it and the
board of commissioners of the county deem it for the public good to
bond the county to fund or refund the outstanding obligations of
the county, or bond the county for the purpose of acquiring funds
for purchasing a site and erecting a court house and jail or a jail
thereon, or for the construction or repair of roads or bridges, or to as-
sist any city or village in said county in constructing a free bridge over
any navigable stream within, or partly within, or adjoining, the
limits of any such city or village, or for any one or more of said
836
COUNTIES
Tit. 11
purposes, and the indebtedness or liability of the county that may
be created by the bonding, funding or refunding aforesaid, or in pur-
chasing a site and erecting a court house and jail or a jail thereon,
and for the construction or repair of roads or bridges, or for assist-
ing any city or village in the construction of any such free bridge
as aforesaid, or for any one or more of said purposes, exceeds the
income or revenue of the county for that year, the board of com-
missioners may issue bonds of the county as provided by Section
1960 : Provided, That the issuance of such bonds be first authorized
by a vote of two-thirds of the qualified electors of the county, voting
at an election held for that purpose, as hereinafter provided: And
Provided, ' further, That before the board of county commissioners
shall issue any bonds to fund or refund the indebtedness of the county
as in this section provided, they shall deduct from the legal indebted-
ness of the county, at the time of the issue of said bonds, the cash
on hand in the county treasury applicable to the discharge of said
indebtedness, and may issue bonds for the remainder of the in-
debtedness.
Historical: Rev. St. 188 7, Sec. 3604;
amended Laws 1899, 136, Sec. 1; re-
enacting- Laws 1895, 136, Sec. 1;
amended Laws 1899, 443, Sec. 1.
Cited: Andrews v. Board of
Commrs. (1900) 7 Ida. 453; 63 Pac.
592.
Tax Levy for Interest and Sinking Fund.
Sec. 1963. The board must cause to be levied annually, upon all
the taxable property of the county, in addition to other authorized
taxes, a sufficient sum to pay the interest on all bonds disposed of in
pursuance of this article, and must, at least one year before such
bonds become due, and in time to provide the means for their pay-
ment, cause to be levied a sufficient additional sum to pay said bonds
as they become due, and all such taxes must be levied, assessed and
collected as other county taxes are levied, assessed and collected, until
the bonds so issued are fully paid, including the interest thereon.
The faith, credit, and all taxable property within the limits of the
county, as constituted at the time of such issue, are, and must con-
tinue, pledged to the payment of said bonds. Should the tax for the
payment of interest on any bonds issued under the provisions of this
article, at any time not be levied or collected in time to meet such
payment, the interest must be paid out of any moneys in the county
general, or current expense, fund, and the moneys so used for such
payment of interest must be repaid to the fund from which so taken,
out of the first moneys arising from taxes collected on interest account
as herein provided, and any excess over and above the interest charge
shall be olaced in a sinking fund, to be known as the "Bond Tax
Sinking Fund." The moneys in the sinking fund created under this
section may be invested in bonds or warrants of the State, or bonds
issued by any county or city or school district in any State of the
United States ; and the county treasurer may, when authorized at t a
regular meeting of the board of county commissioners, make the in-
vestment for the county.
Historical: Rev. St. 1887, Sec. 3605;
amended Laws 1899, 136, Sec. 1; re-
enacting Laws 1895, 56, Sec. 1.
Cited: In re Counties v. County of
Alturas (1894) 4 Ida. 145; 37 Pac.
349. Shoshone Co. v. Profit (1906)
11 Ida. 736; 84 Pac. 712.
Ch. 2. Art. 6. COMMISSIONERS— BOND issues 837
Bond Tax Levies in New Counties and Segregated Areas.
Sec. 1964. Should any part of a county that has incurred a bonded
indebtedness be cut off and annexed to another county, or erected
into a new or separate county, the assessor of the county to which
the segregated portion is attached, or the assessor of the new county
created as aforesaid, shall, upon notice from the board of county
commissioners of the original county from which such segregated
portion was detatched, given at the regular session of the board when
county and State taxes are levied, collect in said segregated terri-
tory, and in addition to the other taxes collected by him for county
and State purposes, and at the same time and in the same manner,
the tax levied by said board of commissioners as herein provided;
and the laws of the State relating to the levy and collection of taxes,
and prescribing the powers, duties and liabilities of officers charged
with the collection and disbursement of the revenue arising from
taxes, are made applicable to this article. The money collected by
the assessor as aforesaid shall be paid over by the treasurer of the
county collecting it to the treasurer of the county losing the said
territory, and for the purposes herein directed, but such segregated
territory so attached to another county, or erected into a new county,
shall be relieved of the annual tax, levied as provided in the fore-
going section, when the county acquiring the same, or the new or
separate county, pays to the county losing the territory, that propor-
tion of the whole indebtedness, together with legal interest thereon,
that the assessed value of property in the segregated territory bears
to the assessed value of the property in the whole county, as con-
stituted before the division or segregation thereof.
Cited: Shoshone Co. v. Profit (1906)
11 Ida. 763; 84 Pac. 712.
Historical: Rev. St. 1887, Sec. 36 06;
i amended Laws 1899, 136, Sec. 1; re-
i enacting Laws 1895, 56, Sec. 1.
Form of Bonds.
Sec. 1965. The bonds mentioned in this article must be signed by
the chairman of the board of county commissioners, attested by the
clerk of said board and bear the seal of said board, and be counter-
signed by the county treasurer of the county. Each bond must state
upon its face the amount for which the same is issued, the date of
issue, time and place of payment, and rate of interest, and must also
recite that it is issued in conformity with the provisions of this
article, and this article must be printed upon the back of each bond.
There must be attached to each bond, when negotiated, semi-annual
interest coupons covering the interest expressed in the bond from
the date of issue until paid ; the coupons annexed to such bonds must
be signed by the treasurer of the county. Each coupon must bear
a number corresponding to the number of the bond to which it is
attached, and must state upon its face the amount for which the
same is issued, the date of issue and the date and place of payment
thereof.
Historical: Rev. St. 1887, Sec. 3607;
amended Laws 1899, 136, Sec. 1; re-
enacting Laws 18 95, 56, Sec. 1.
838 COUNTIES Tit. 11
Sale and Redemption of Bonds.
Sec. 1966. The said board of county commissioners must give at
least twenty days' notice by publication in some newspaper published
in the county, if there be one, otherwise by three notices posted up
in the county, one of which must be at the court house door, of its
intention to issue, negotiate and sell such bonds, or of its intention
to issue such bonds for exchange, and shall invite bidders therefor.
Said bonds must be sold or exchanged upon the best terms and upon
the lowest rate of interest at which said bonds can be sold or ex-
changed, and the said board shall have the right to reject any or all
of the bids offered, and may re-advertise for bids as herein provided
for, by original notice. If the offers for purchase or exchange are
accepted, the board must procure the proper engraving and printing
of said bonds, which must be numbered consecutively, and must be
duly registered by the auditor of the county in a book kept for that
purpose; and therein must be stated the number, date, amount of
bond, time and place of payment, rate of interest, number of coupons
attached and any other proper description thereof for future identi-
fication. The said board must, from time to time, in such amounts
as it may deem best, and in accordance with its contract, deliver
said bonds to the county treasurer, and take and file his receipt
therefor, and charge him with all bonds so delivered. Any duties
required of said board in pursuance of the provisions of this section
may be performed at any general, special or called meeting thereof.
The treasurer must, under the general supervision of said board,
deliver said bonds for cash, or exchange them for any of the county
indebtedness for the redemption of which they were issued, but in no
case must said bonds be sold or exchanged for less than their face
or par value and accrued interest at time of disposal; nor must any
county indebtedness be redeemed at more than its face value and
any interest that may be due thereon. If any portion of said bonds
issued for the redemption of prior indebtedness are sold for money,
the proceeds thereof must be applied exclusively toward the redemp-
tion of said county indebtedness for the redemption of which such
bonds were issued. The treasurer must give notice, as provided by
law, of his readiness to redeem such indebtedness, and thereafter
interest thereon shall cease. When the treasurer redeems any county
indebtedness, he must indorse, by writing or stamping in ink, on the
face of the paper evidencing such indebtedness so redeemed, the
time when, and the amount for which, redeemed, whether by money
or the exchange of bonds, and the words "redeemed" and "cancelled."
He must also keep a record of all bonds disposed of by him, showing
their number, rate of interest, date and amount of sale, when, where
and to whom payable; and if exchanged, for what, which record he
must keeo open for inspection for the public at all reasonable office
hours. He must make such detailed statements to, and as often as
required by, said board, of all his transactions under the provisions
of this article, and return to the board evidences of indebtedness re-
deemed by him, cancelled as aforesaid.
Historical: Laws 1899, 136, Sec. 1;
re-enacting- Laws 1895, 56, Sec. 1.
Ch. 2. Art. 6. commissioners — bond issues 839
Application of Proceeds of Bond Issue.
Sec. 1967. It shall be the duty of the county treasurer to apply
the funds derived from the sale of bonds to the payment of the in-
debtedness herein mentioned and to no other purpose: Provided,
That after the expiration of one year from the date of the issuance
of said bonds, all money derived from the sale of said bonds re-
maining in the treasury may be transferred to the current expense
fund of said county by order of the board of county commissioners,
and thereafter any and all warrants or other representative of the
indebtedness for the redemption of which said bonds were issued,
shall be paid out of said current expense fund when presented for
payment. It shall be the duty of the county officials to levy, collect
and apply the taxes herein provided for to the payment of interest
and to the redemption of the principal of the bonds in the manner
specified and for no other purpose, and any failure to comply with
the conditions of this article by the proper officers, or any neglect
or refusal to levy and collect any such taxes as aforesaid, shall be
deemed a misdemeanor, and any county official guilty of the same,
must, upon conviction, be fined in the amount equal to the sum that
should have been levied, or for any misappropriation he shall be
fined in the amount equal to the sum misappropriated, and imprisoned
in the county jail for the term of not less than three months nor
more than six months.
Historical: Laws 1899, 136, Sec. 1;
re-enacting Laws 1895, 136, Sec. 1;
amended Laws 1903, 366, Sec. 1.
Notice of Bond Election.
Sec. 1968. If the question of bonding the county as herein provided,
is to be submitted to the voters of the county at a special election
held for that purpose, the board shall cause printed or written notices
of the intention to hold such an election to be posted in two or more
conspicuous places in each precinct of the county, and shall also cause
a printed notice of the intention to hold such an election to be pub-
lished in one or more newspapers of the county, if any newspapers
are printed therein. The said notices shall recite the action of the
board in deciding to bond the county, the purpose thereof, and the
amount of the bonds that are to be issued, and shall also specify the
day of the election, the time during which the ballot box shall be open,
which shall not be less than six hours; the notices posted in each of
the several precincts shall also name the place of holding
such election. The notices herein provided for shall be posted, or
posted and published, at least twenty days before such election.
Every male person over the age of twenty-one years, who is a citizen
of the United States, and shall have resided in the State six months
immediately preceding the election at which he offers to vote, and
in the county thirty days, shall be entitled to vote at such election.
Historical: Laws 1899, 136, Sec. 1;
re-enacting Laws 1895, 56, Sec. 1.
Conduct of Election : Application of Election Law.
Sec. 1969. Such election shall be held in all respects in conformity
with the general election laws so far as the same may be applicable,
840 COUNTIES Tit. 11
except as herein provided, but all that part of the general election
law relative to the apportionment of registrars and the registration of
voters, the appointment of judges and clerks, and the establishment
of voting booths and printing of an official ballot, and providing for
an official stamp, and method of voting as provided in Sections 423,
424 and 425 of the general election law, shall not apply.
Historical: Laws 189 9, 136, Sec. 1;
re-enacting Laws 1895, 56, Sec. 1. The
reference to Sees. 77, 78 and 79 of the
general election law was to the sec-
tions of 1891, and not of the 1899
law. Those sections are 42 3-425 of
these Codes.
Officers of Election: Canvass of Returns.
Sec. 1970. The board of county commissioners shall appoint two
judges and one clerk of election in each precinct, for the purpose of
holding such election, and upon the failure of either to act, the electors
present at the opening of the polls may fill vacancies. Such judges
and clerk conducting such election shall make return of such election
to the board of county commissioners, within three days after such
election is held. The returns for bond elections shall be canvassed
in the same manner as the returns for election of county and precinct
officers are canvassed, and the result of the vote shall be officially
declared by the county board of canvassers in the following manner:
They shall record the total vote cast in each precinct for and against
the proposed issue of bonds, in the book provided for recording the
results of the general election, and shall make a complete copy of
such record, duly certified to by them, and shall deposit the same with
the auditor of the county.
Historical: Laws 1899, 136, Sec. 1; i Cited: Bryan v. Montandon (1898)
re-enacting Laws 1895, 56, Sec. 1. I 6 Ida. 352; 55 Pac. 650.
Form of Ballot.
Sec. 1971. Such election shall be by ballot. The ballot shall be of
white paper, three inches square, and shall contain the words : "Bond.
Yes." "Bond. No." and shall have printed at the top the following
instruction : "If the voter desires to vote for the issue of bonds, he
he shall strike out the word 'No.' If he desires to vote against the
issue, he shall strike out the word 'Yes.' The auditor of the county
shall cause the ballots to be printed and distributed, and shall send a
sufficient number to the judges appointed in the several precincts.
Historical: Laws 18 99, 13 6, Sec. 1;
re-enacting Laws 1895, 5 6, Sec. 1.
Voting on Bonds at General Election.
Sec. 1972. The special election herein provided for, may be held
at the same time and place at which the general election is held, and
the officers of the general election in each precinct may serve as offi-
cers of the special election, but the notices of the election must be
given, and the tickets printed and distributed as herein prescribed;
the ticket when voted, shall be deposited in a separate box provided
for its reception ; the return of the vote by the judges of election shall
be on a separate sheet from the return of the general election, and
shall be canvassed as hereinbefore provided for.
Historical: Laws 1899, 136, Sec. 1;
re-enacting Laws 1895, 56, Sec. 1.
Ch. 3. Art. 1.
OFFICERS — GENERAL PROVISIONS
841
CHAPTER 3.
COUNTY OFFICERS.
Article
1. General provisions.
2. Probate judge.
3. County treasurer.
4. Sheriff.
5. Clerk of the District Court.
6. Auditor.
;. Recorder.
3. Assessor and tax collector.
Article
9. Prosecuting attorney.
10. Surveyor.
11. Coroner.
12. County superintendent of public
instruction.
13. Justices of the peace and inferior
officers.
ARTICLE 1.
GENERAL PROVISIONS.
Section
Secti
1973.
County officers enumerated.
1981.
1974.
Precinct officers.
1975.
Appointment of deputies.
1982
1976.
Same: During absence of offi-
cers.
1983
1984.
1977.
Same: Failure to appoint
deputy.
1985.
1978.
Designation of senior deputy.
1986
1979.
Appointment to be in writing
and filed.
1987
1980.
Use of official name includes
deputies.
1988
ion
Offices to be kept at county
seat.
Bond liable for penalties.
Officers may administer oaths.
Residence of officers.
Absence of officers from the
State.
Certain officers not to practice
law.
Bonds of officers: Amount of
penalty.
Same: Amounts not fixed.
Note: Oath of office: Sec. 271. Official bonds in general
Resignations, vacancies and appointments: Sees. 317-332.
Sees. 282-316.
County Officers Enumerated.
Sec. 1973. The officers of a county are :
1. A sheriff;
2. A clerk of the District Court, who shall be ex-officio auditor
and recorder, and ex-officio clerk of the board of county commis-
sioners ;
3. An assessor, who shall be ex-officio tax collector;
4. A probate judge;
5. A prosecuting attorney;
6. A county treasurer, who shall be ex-officio public administra-
tor;
7. A county superintendent of public instruction ;
8. A surveyor;
9. A coroner;
10. Three members of the board of county commissioners.
Historical: Rev. St. 1887, Sec. 2150.
Titles of officers changed to conform
to Const. Art. 18, Sec. 6; Art. 5, Sec.
18, both as amended.
California Legislation: See Pol.
Code, 1872, Sec. 4103; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: County officers
enumerated: Const. Art. 18, Sec. 6.
Precinct Officers.
Sec. 1974. The officers of precincts are two justices of the peace,
one constable, and such other inferior and subordinate officers as are
provided for elsewhere in this Code or by the board of commissioners.
842
COUNTIES
Tit. 11
Historical: Rev. St. 1887, Sec. 1813.
California Legislation: Same ex-
cept "townships" for "precincts";
"two" for "one" constable; "supervis-
ors" for "commissioners"; Pol. Code
1872, Sec. 4104; Deering's Code, ib.;
Kerr's Code, ib.
Cited: State ex rel Griffith v. Vine-
yard (1903) 9 Ida. 134; 72 Pac. 824.
Johnston v. Savidge (1905) 11 Ida
?04; 81 Pac. 616.
Appointment of Deputies.
Sec. 1975. Every county officer except probate judge, commis-
sioner, and coroner, may appoint as many deputies as may be nec-
essary for the prompt and faithful discharge of the duties of his office ;
Provided, That no deputy appointed by a county school superinten-
dent shall exercise the duties of such office except during the period
when said superintendent may be absent from his county.
Historical: Rev. St. 1887, Sec. 1815;
amended act 15th Ter. Ses. (Laws
1888-89) 13.
California Legislation : See Pol.
Code 1872, Sec. 4112; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Deputies to take
and file oaths: Sec. 273; appointment
of deputy recorders for mining dis-
tricts: Sec. 3215.
Discretion of Officer: This section
of the statute evidently places the
question as to whether one or more
deputies are required to properly dis-
charge the duties of the office wholly
within the discretion of the officer
making the appointment. Campbell v.
Board of Commrs. (1896) 5 Ida. 53;
46 Pac. 1022.
Effect of Constitution: Art. 18, Sec.
6 of the Constitution does not repeal
this section, but merely relieves the
county from the payment of salaries
to deputies other than those appoint-
ed by the sheriff, auditor, recorder and
clerk when such appointment is au-
thorized, and the salaries of the depu-
ties are fixed by the county commis-
sioners. Taylor v. Canyon Co. (1900)
7 Ida. 171; 61 Pac. 521.
Same: During Absence of Officers.
Sec. 1976. Any county officer who may be granted leave of absence
from the county wherein he resides and holds office, is required to
appoint a good and sufficient deputy to act for him and in his place
while absent.
Historical: Rev. St. 1887, Sec. 1816.
8 Ter. Ses. (1875) 822, Sec. 1.
California Legislation : Different:
Pol. Code 1872, Sec. 4112; Deering's
Code, ib. ; Kerr's Code, ib.
Cited: Taylor v. Canyon Co. (1900)
7 Ida. 171; 61 Pac. 521.
Same : Failure to Appoint Deputy.
Sec. 1977. Should any county officer who is granted leave of ab-
sence fail to appoint a deputy as required by this chapter, the act
granting such leave of absence is null and void and the office vacant,
and the vacancy must be filled by the board of county commissioners
of the county.
Historical: Rev. St. 1887, Sec. 1817.
Ter. Ses. (1875) 822,, Sec. 2.
Cited: Taylor v. Canyon Co. (1900)
7 Ida. 171; 61 Pac. 521.
Designation of Senior Deputy.
Sec. 1978. When a county officer has more than one deputy he
must designate one, by endorsement upon his appointment, as senior
deputy, and in case of a vacancy in the office, by death, resignation,
or otherwise, or of the officer's absence, or inability to perform the
duties of his office, such deputy must continue to perform the duties
of the office during such vacancy, absence, or inability.
Ch. 3. Art. 1.
OFFICERS — GENERAL PROVISIONS
843
Historical: Rev. St. 188 7, Sec. 1818.
Cited: Taylor v. Canyon Co. (1900)
7 Ida. 171; 61 Pac. 521.
Appointment to be in Writing and Filed.
Sec. 1979. The appointment of deputies and subordinate officers
must be made in writing, and filed in the office of the county re-
corder.
Historical: Rev. St. 1887, Sec. 1819.
See 8 Ter. Ses. (1875) 543; Sec. 14;
also 556, Sec. 6.
California Legislation: Similar:
Pol. Code 1872, Sec. 4113; Deering's
Code, ib. ; Kerr's Code, ib.
Cited: Taylor v. Canyon Co. (1900)
7 Ida. 171; 61 Pac. 521.
Use of Official Name Includes Deputy.
Sec. 1980. Whenever the official name of any principal officer is
used in any law conferring power, or imposing duties or liabilities,
it includes his deputies.
Historical: Rev. St. 1887, Sec. 182 0.
California Legislation: Same: Pol.
Code 1872, Sec. 4114; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Taylor v. Canyon Co. (1900)
7 Ida. 171; 61 Pac. 521.
Officers to Be Kept at the County Seat.
Sec. 1981. Sheriffs, recorders, treasurers, assessors, and prosecut-
ing attorneys must have their offices at the county seat, and keep them
open for the transaction of business from nine o'clock A. M. till five
o'clock P. M., every day in the year except holidays. The probate judge
must have an office at the county seat, and must establish such rules
and hours for official business as may be necessary for the dispatch
thereof.
Historical: Rev. St. 1887, Sec. 1822.
See 1 Ter. Ses. (1864) 475, Sees. 10,
63, 125.
California Legislation: Similar: Pol.
Code 1872, Sec. 4116; Deering's Code,
ib.; as amended: Kerr's Code, ib.
Cross Reference: County superin-
tendents to keep office at county seat,
and designate certain office days: Sec.
587.
Bond Liable for Penalties.
Sec. 1982. Whenever, except in criminal prosecutions, any special
penalty, forfeiture or liability is imposed on any officer for non-per-
formance or mal-performance of official duty, the liability therefor
attaches to the official bond of such officer and to the principal and
sureties thereon.
Historical: Rev. St. 1887, Sec. 1823.
California Legislation: Same: Pol.
Code 1872, Sec. 4117; Deering's Code,
ib. ; Kerr's Code, ib.
Officers May Administer Oaths.
Sec. 1983. Every county officer and every justice of the peace
may administer and certify oaths.
Historical: Rev. St. 1887, Sec. 182 4.
California Legislation: Similar: Pol.
Code 1872, Sec. 4118; Deering's Code,
ib.; Kerr's Code, ib.
Residence of Officers.
Sec. 1984. The following officers must reside at the county seat
of their respective counties : The probate judge, the sheriff, the as-
844
COUNTIES
Tit. 11
sessor, the prosecuting attorney, the recorder, and the county super-
intendent of public instruction.
Historical: Rev. St. 1887, Sec. 182 5.
"County superintendent of public in-
struction" added on the authority of
Laws 1899, 306, Sec. 1 (Code Sec. 584),
which requires that officer to reside
at the county seat. "Prosecuting at-
torney" for "district attorney."
California Legislation: Similar with
additional provisions: Pol. Code 1872,
Sec. 4119; Deering's Code, ib.; Kerr's
Code, ib.
Absence of Officers From the State.
Sec. 1985. No county officer must absent himself from the State
for more than twenty days unless with the consent of the board of
county commissioners.
Cross Reference: Leave of absence
granted by county commissioners:
Sec. 1922.
Historical: Rev. St. 188 7, Sec. 1826;
amended Laws 1899, 13, Sec. 2;
re-enacting Laws 1897, 15, Sec. 1.
California Legislation: See Pol.
Code 1872, Sec. 4120; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Certain Officers Not to Practice Law.
Sec. 1986. Sheriffs, clerks of courts and their deputies, and consta-
bles, are prohibited from practicing law or acting as attorneys or
counselors at law, or having as a partner a lawyer or anyone who
acts as such.
Historical: Rev. St. 1887, Sec. 182 7.
iCalifornia Legislation: Same except
"of courts and their deputies," line 1,
omitted, and "and their deputies" in-
serted after "constables," line 2: Pol.
Code 1872, Sec. 4121; Deering's Code,
ib.; Kerr's Code, ib.
Bonds of Officers: Amount of Penalty.
Sec. 1987. County, district and precinct officers must execute offi-
cial bonds in the following amounts :
1. County commissioners each in the sum of five thousand dol-
lars ;
2. Probate judges each in the sum of five thousand dollars;
3. County treasurers each in double the probable amount of
money that may at any time come into his hands as such treasurer,
to be fixed by the board of county commissioners, but in no case to
be less than ten thousand dollars;
4. Sheriffs each in the sum of ten thousand dollars;
5. Clerks of the District Court each in the penal sum of five
thousand dollars, with two sufficient sureties, to be approved by the
Judge of the District, conditioned that he will faithfully perform the
duties of his office and at all times account for and pay over all
moneys in his hands as clerk ; and the penalty of such bond may at any
time be increased by the Judge of the District. The clerk may re-
quire a bond from any deputy.
6. County recorders each in the sum of not less than five nor more
than twenty thousand dollars, to be fixed by the board of county com-
missioners, and to cover his duties and liabilities as recorder, auditor
and clerk of the board of county commissioners ;
7. Assessors each in the sum of five thousand dollars ;
8. Tax collectors each in the sum of not less than five nor more
Ch. 3. Art. 2.
OFFICERS — PROBATE JUDGE
845
than fifty thousand dollars, to be fixed by the board of county com-
missioners ;
9. Prosecuting attorneys each in the sum of two thousand dol-
lars;
10. County superintendents of public instruction each in the
sum of two thousand dollars ;
11. County surveyors each in the sum of two thousand dollars,
and with at least two sureties for the faithful and impartial perform-
ance of his duties ;
12. Coroners each in the sum of one thousand dollars;
13. Public administrators each in the sum of two thousand dol-
lars;
14. Justices of the peace and constables, each in the sum of not
less than five nor more than ten hundred dollars.
Historical: Rev. St. 188 7, Sec. 1828,
forms the basis of this section. Subd.
5 is compiled from Rev. St. Sec. 2 74;
that section required the clerk to de-
posit his bond with the Territorial
Controller (now State Auditor), but
in view of the fact that the clerk was
at that time a district officer, there
being but one clerk for each judicial
district, that part of the section is
deemed inapplicable to the present
status of the clerk's office, which is,
as denned by Const. Art. 18, Sec. 6,
purely a county office. Subd. 8 (Subd.
7 of the original section) is given as
amended by Laws 1888-89, 20. Subd.
9 (Subd. 8 of the original section) has
"prosecuting attorneys" for "district
attorneys" to conform with the pres-
ent system. Subd. 10 (Subd. 9 in old
section) "county superintendent of
public instruction" inserted for "school
superintendent," and "two" for "one"
thousand dollars to conform to Laws
1899, 306, Sees. 1, 2. Subd. 11 (Subd.
10 of old section) is compiled from
Laws 1899, 295, Sec. 5. In this sub-
division, too, a slight change is pos-
sibly made from the actual written
law, as the 1899 law required the
county surveyor to file his bond with
the county commissioners. It is
thought, however, that the meaning
of this section is simply that the bond
shall be filed with the county com-
missioners for their approval and
then recorded in the official bond
record the same as bonds of other
county officers. No good reason is
apparent for making a distinction in
the case of county surveyors, and as
a matter of practice none is made. It
may also be noted that the change
made in this section with reference to
clerks of the District Court is also
sanctioned by practice.
Cross Reference: General pro-
visions relating to official bonds: Sees.
282-316.
Breach of Sheriff's Bond: See note
to Sec. 293.
Same: Amounts Not Fixed.
Sec. 1988. When the amount of the bond to be given by any
county, district or precinct officer is not fixed by law the amount must
be fixed by the board of commissioners.
Historical: Rev. St. 188 7, Sec. 182 9.
California Legislation: Same except
"or township" for "district or pre-
cinct," line 2; and "supervisors" for
"commissioners": Pol. Code 1872, Sec.
4123; Deering's Code, ib.; Kerr's
Code, ib.
ARTICLE 2.
PROBATE JUDGE.
Section
1989. Duties of probate judge.
Section
1990. Office to be provided.
Duties of Probate Judge.
Sec. 1989. The probate judge must:
1. Perform the duties of a magistrate;
2. Hold probate courts;
846
COUNTIES
Tit. 11
3. Take and certify acknowledgments to the execution of in-
struments in writing, and grant certificates to the official character
of the county officers ;
4. Perform such other duties as are prescribed in any of the
laws of this State.
Historical: Rev. St. 188 7, Sec. 183 5.
California Legislation: Similar, but
"county judge" for "probate judge":
Pol. Code 1872, Sec. 4134; Superior
Court system as amended: Deering's
Code, ib. ; Kerr's Code, ib.
Cross Reference:. To reside at
county seat: Sec. 3885.
May take acknowledgments: Sec.
3124.
Duties under townsite law: Sees.
2147-2169.
To act in place of disqualified com-
missioner in granting ferry and toll
bridge licenses: Sec. 1022.
Duties in appraisal of homestead
for sale on execution: Sees. 3181-3195.
Fee for solemnizing marriage: Sec.
2626.
Approval of water master's bond:
Sec. 3275.
To approve bond of irrigation dis-
trict directors: Sec. 2378.
To approve bond of notary: Sec.
232.
To keep register of abstractors: Sec.
1416.
Pee for issuing abstractors' certifi-
cates: Sec. 1416.
To appoint viewers in case of dis-
putes between adjoining proprietors
as to partition fences, in the absence
of a justice of the peace: Sec. 1269.
To approve bond of lumber inspect-
ors: Sec. 1496.
To pass on claim to proceeds of
unclaimed floating timber: Sec. 870.
To appoint appraiser for toll roads
sought to be purchased by countv:
Sec. 1001.
Office to be Provided.
Sec. 1990. It shall be the duty of the board of county commis-
sioners of the different counties of the State, when the county owns
a fire proof building, to provide an office in said building for the uses
of the probate judge and for the safe keeping and protection of all
probate records.
Historical: Rev. St. 1887, Sec. 1836.
ARTICLE 3.
COUNTY TREASURER.
Section
1991. Duties of county treasurer.
1992. Receipt of money.
19 93. Treasurer must receipt for
money.
1994. Redemption of warrants.
1995. Warrants not paid for want of
funds.
1996. County warrant bulletin.
1997. Notice of payment of warrants.
1998. Same: Publication of notice.
1999. Penalty for paying unneces-
sary interest.
2000. Interest noted on warrant.
2001. Monthly settlements and state-
ments: Annual settlement.
2002. Quarterly reports.
2 003. Neglect to settle or report.
2004. Action against defaulting
prosecuting attorney.
20 05. Action against coroner or jus-
tice.
2006. Disposal of money or property
found on dead body.
Section
2007.
2008.
2009.
2 010.
2011.
2012.
2013.
2014.
2015.
2016.
2017.
2018.
2019.
2020.
2021.
2022.
Same: Demand by legal rep-
resentatives.
Custody of county money.
Suspension of treasurer pend-
ing action.
Delivery of money and papers
after death.
Inspection of books.
Examination of books.
Deposit of county funds.
Premium to be paid by banks:
Statements.
Bonds of depositories: Sureties:
Deposits outside of county.
Special deposits.
Definitions.
Investigation of security: Ex-
amination of books: Report.
Offenses by treasurer.
Same: Neglect.
Bribery of treasurer a felony.
Sale of security for default of
bank.
Ch. 3. Art. 3.
OFFICERS — TREASURER
847
Duties of County Treasurer.
Sec. 1991. The county treasurer must:
1. Receive all moneys belonging to the county, and all other
moneys by law directed to be paid to him, safely keep the same, and
apply and pay them out, rendering account therof as required
by law ;
2. File and keep the certificates of the auditor delivered to him
when moneys are paid into the treasury;
3. Keep an account of the receipt and expenditure of all such
moneys, in books provided for the purpose ; in which must be entered
the amount, the time when, from whom, and on what account all
moneys were received by him ; the amount, time when, to whom, and
on what account all disbursements were made by him ;
4. So keep his books that the amounts received and paid out on
account of separate funds or specific appropriations are exhibited
in separate and distinct accounts, and the whole receipts and ex-
penditures shown in one general or cash account ;
5. Enter no moneys received for the current year on his account
with the county for the past fiscal year, until after his annual settle-
ment for the past year has been made with the county auditor ;
6. Disburse the county moneys only on county warrants issued
by the county auditor, based on orders of the board of commissioners,
or as otherwise provided by law.
Historical: Rev. St. 1887, Sec. 1840.
1 Ter. Ses. (1864) 475, Sees. Ill, 112.
California Legislation: Same except
"supervisors" for "commissioners,"
subd. 6: Pol. Code 1872, Sec. 4144;
Deering's Code, ib. ; Kerr's Code, ib.
Cross Reference: Duties in relation
to revenue: To file copy of levy: Sec.
1647. To file duplicate certificate of
property sold to county: Sec. 1752.
To compare duplicate certificates with
certificate book: Sec. 1761. Duties on
redemption from tax sale: Sees. 1771-
1773. Entry of sale of certificates
held by county: Sec. 1774. Settle-
ments with State Auditor and Treas-
urer: Sees. 1795-1803. Monthly set-
tlements with tax collector: Sec. 1817.
Annual settlements with auditor: Sec.
1822. Duties with respect to the col-
lection of license taxes: Sees. 1828-
1841. Duties with respect to poll
taxes: Sees. 1842-1862. Duties with
respect to the collection of transfer
taxes: Sees. 1873-1897.
Duties as public administrator:
Sees. 5680-5695.
To apply poll taxes collected in con-
tract road districts to the county road
fund: Sec. 8 92. To accept and receipt
for tax for license to operate toll
roads: Sees. 998. To receive payment
of ferry and bridge license taxes: Sec.
1021. Duties with respect to road
taxes: Sees. 904, 905.
To enter sales and leases of State
land or timber in the abstract books:
Sec. 1571. To preserve duplicate ab-
stracts of State lands: Sec. 1571.
To keep accounts with school dis-
tricts: Sec. 606. Redemption of school
district bonds: Sec. 64 7. To pay in-
terest on school district bonds: Sec.
648.
To keep proceeds of sale of un-
claimed property: Sec. 1548.
To issue peddlers' licenses and keep
peddlers' deposits: Sec. 1530.
To approve and file bonds of lum-
ber inspectors: Sec. 1496.
Settlement with road overseer: Sec.
914.
To tender amount of award to
owner of toll roads on the same being-
taken over by the county: Sec. 1002.
To keep funds of good roads dis-
tricts: Sees. 1054, 1055.
Apportionment of forest reserve
fund: Sec. 122.
Duties with respect to drainage dis-
trict funds: Sees. 2470, 2474, 2475,
2476, 2477.
State Examiner may require a state-
ment of accounts: Sec. 174.
Receipt of Money.
Sec. 1992. He must receive no money into the treasury unless ac-
companied by the certificate of the auditor.
Vol. 1—2 8
848
COUNTIES
Tit. 11
Historical: Rev. St. 188 7, Sec. 1841.
California Legislation: Same with
additional provision: Pol. Code 1872,
Sec. 4145; Deering's Code, ib.; Kerr's
Code, ib.
Treasurer Must Receipt for Money.
Sec. 1993. When any money is paid to the county treasurer he
must give to the person paying the same a receipt therefor, which
must forthwith be deposited with the county auditor, who must
charge the treasurer therewith and give the person paying the same
a receipt.
Historical: Rev. St. 1887, Sec. 1842.
See 1 Ter. Ses. (1864) 475, Sec. 113.
California Legislation: Same: Pol.
Code 1872, Sec. 4146; Deering's Code,
ib.; Kerr's Code, ib.
Action on Bond — Complaint: A
complaint in an action on the county
treasurer's bond for negligently re-
ceiving worthless checks in settlement
of the tax collector's accounts with
the county, is insufficient where it
merely alleges that the tax collector
had delivered to the treasurer certain
worthless checks on an insolvent bank,
and fails to allege that the treasurer
gave any receipt to the collector for
the checks. Bingham Co. v. Woodin
(1898) 6 Ida. 284; 55 Pac. 662.
Redemption of Warrants.
Sec. 1994. When a warrant is presented for payment, if there is
money in the treasury for that purpose, he must pay the same, and
write on the face thereof "Paid", the date of payment and sign his
name thereto.
Historical: Rev. St. 1887, Sec. 18 43.
See 1 Ter. Ses. (1864) 475; Sec. 115.
California Legislation: Same: Pol.
Code 1872, Sec. 4147; Deering's Code,
ib.; Kerr's Code, ib.
Payment by Check: A county treas-
urer who deposits the public funds in
an insolvent bank and issues checks
thereon in payment of outstanding
warrants, which checks are not paid,
does not discharge the indebtedness
of the county evidenced by the war-
rants, and the holders of the warrants
may recover the money due thereon
from the county. Green v. Custer Co.
(1902) 8 Ida. 721; 71 Pac. 115.
Warrants Not Paid for Want of Funds.
Sec. 1995. When any warrant is presented to the treasurer for
payment and the same is not paid for want of funds, the treasurer
must indorse thereon "Not paid for want of funds," annexing the
date of presentation and sign his name thereto; and from that time
until paid the warrant bears seven per cent per annum interest.
Historical: Rev. St. 1887, Sec. 18 44.
See 1 Ter. Ses. (1864) 475, Sec. 116.
California Legislation: Same: Pol.
Code 1872, Sec. 4148; Deering's Code,
ib.; Kerr's Code, ib.
County Warrant Bulletin.
Sec. 1996. The county treasurer shall provide himself, at the ex-
pense of the county, with a bulletin board, to be not less than twenty
inches wide and thirty inches long, to be painted black and across
the top of which shall be painted, in white "block" letters, not less
than two inches high, the words "County Warrant Bulletin." ^ It shall
be the duty of the said treasurer to keep such bulletin conspicuously,
securely and permanently in place at the front door of his office, and
thereuoon to post, in a manner which will insure continuous notice
for not less than sixty days, all notices issued by him, whether written
or printed, calling for the presentation of county warrants for pay-
ment.
Historical: Laws 18 99, 434, Sec. 1.
Ch. 3. Art. 3.
OFFICERS — TREASURER
849
Notice of Payment of Warrants.
Sec. 1997. Whenever there is an amount to the credit of any
county fund, as shown by the books of the county treasurer, sufficient
to pay the warrant or warrants next entitled to payment therefrom,
the county treasurer shall immediately post at the door of his office,
as provided in the preceding section, a notice that such warrant or
warrants will be paid on presentation, stating therein the number
and series of any such warrants and the fund or funds upon which
drawn.
Historical: Laws 1899, 434, Sec. 2.
Same: Publication of Notice.
Sec. 1998. On the first Monday of each month, if there is a
sufficient amount to the credit of any county fund or funds to pay
the warrant or warrants, next entitled to be paid therefrom, and
whenever it shall appear from the books of the county treasurer
that there is to the credit of any county fund or funds against which
there are outstanding warrants unpaid, the sum of one thousand
dollars, available for the payment of said warrants, the said treasurer
shall cause to be published in the manner and form required by law,
notice that the warrant or warrants next entitled to be paid there-
from will be paid upon presentation. All warrants which have there-
tofore been called by posting, as provided in the preceding section,
and which remain unpaid at the time of publishing such notice, shall
be included in such published notice; and, after such publication, the
interest thereon shall cease after the time now provided by law, but
not before.
Historical: Laws 1899, 434, Sec. 3.
Penalty for Paying Unnecessary Interest.
Sec. 1999. For all sums which are paid by the county treasurer
as interest upon any warrant or warrants, after the earliest date at
which there were sufficient funds with which to have called and paid
the same, such officer shall be liable upon his official bond ; and for
the wilful violation of any of the provisions of this and the three
preceding sections, the said treasurer shall be deemed guilty of neglect
to perform the official duties pertaining to his office, and shall be
removed therefrom as provided by law.
Historical: Laws 189 9, 434, Sec. 4.
Interest Noted on Warrant.
Sec. 2000. When the treasurer pays any warrant on which any
interest is due, he must note on the warrant the amount of interest
paid thereon and enter on his account the amount of such interest
distinct from the principal.
Historical: Rev. St. 1887, Sec. 18 49.
1 Ter. Ser. (1864) 475, Sec. 118.
California Legislation: Same: Pol.
Monthly Settlements and Statements: Annual Settlement.
Sec. 2001. The treasurer must settle his accounts relating to the
collection, care and disbursement of public revenue, of whatsoever
Code 1872, Sec. 4153; Deering's Code,
ib.; Kerr's Code, ib.
850
COUNTIES
Tit. 11
nature and kind, with the auditor, on the first Monday of each month.
For the purpose of making such settlement, he must make out a
statement under oath, of the amount of money or other property re-
ceived prior to the period of such settlement, the sources whence
the same was derived, the amount of payments or disbursements,
and to whom, with the amount remaining on hand. He must in such
settlements, deposit all warrants redeemed by him and take the
auditor's receipt therefor. He must also make a full settlement of
all accounts with the auditor annually on the first Tuesday after the
first Monday of January, in the presence of the commissioners, who
have a supervisory control thereof.
Historical: Rev. St. 1887, Sec. 185 0.
"First Tuesday after the first Mon-
day" inserted for "second Monday" to
conform to Laws 1901, 233, Sec. 174.
California Legislation: Same except
"first Monday" for "first Tuesday after
the first Monday", next to last line,
and "supervisors" for "commission-
ers": Pol. Code 1872, Sec. 4154; Deer-
ing's Code, ib. ; Kerr's Code, ib.
Quarterly Report.
Sec. 2002 Each county treasurer must make a detailed report at
every regular meeting of the board of commissioners of his county,
of all moneys received by him and the disbursement thereof, and
of all debts due to and from the county, and of all other proceedings
in his office, so that the receipts into the treasury and the amount of
disbursements, together with the debts due to and from the county
may clearly and distinctly appear.
Historical: Rev. St. 1887, Sec. 1851.
California Legislation: Same except
'supervisors" for "commissioners,"
line 2: Pol. Code 1872, Sec. 4155;
Deering's Code, ib.; Kerr's Code, ib.
Neglect to Settle or Report.
Sec. 2003. If any county treasurer neglects or refuses to settle or
report as required in the two preceding sections, he forfeits and must
pay to the county the sum of five hundred dollars for every such
neglect or refusal, and the board of commissioners must institute
suits for the recovery thereof.
Historical: Rev. St. 18 87, Sec. 185 2.
California Legislation: Same except
'supervisors" for "commissioners":
Pol. Code 1872, Sec. 4156; Deering's
Code, ib.; Kerr's Code, ib.
Action Against Defaulting Prosecuting Attorney.
Sec. 2004. If the prosecuting attorney refuses or neglects to ac-
count for any pay over money received by him as required by law,
the county treasurer must bring an action against him for the re-
covery thereof in the name of the county, and may recover, in such
action, in addition to the amount so received, fifty per cent thereon
by way of damages.
Historical: Rev. St. 1887, Sec. 1853.
"Prosecuting attorney" for "district
attorney."
California Legislation: Same except
"the fifth subdivision of Section 4256"
for "law," line 2: Pol. Code 1872, Sec.
4157; Deering's Code, ib.; Kerr's Code,
ib.
Action Against Coroner or Justice.
Sec. 2005. If the coroner, or any justice of the peace acting as
Ch. 3. Art. 3.
OFFICERS — TREASURER
851
coroner, fails to deliver to the treasurer within thirty days after any
inquest upon a dead body, all money and property found upon such
body, unless claimed in the meantime by the legal representative of
the decedent as required by law, the treasurer must proceed against
the coroner, or justice acting as coroner, to recover the same by civil
action in the name of the county.
Historical: Rev. St. 1887, Sec. 1854.
1 Ter. Ses. (1864) 475, Sec. 145.
California Legislation: Same except
"by the public administrator or other
legal representative" for "by the legal
representative," line 4, and "Section
4287" for "law," line 5: Pol. Code
1872, Sec. 4158; Deering's Code, ib.;
Kerr's Code, ib.
Disposal of Money or Property Found on Dead Body.
Sec. 2006. The treasurer, upon receiving from the coroner or jus-
tice acting as coroner money found on a dead body, must place it to
the credit of the county. On receiving other property in like manner
he must, within thirty days, sell it at public auction upon reasonable
public notice, and must in like manner place the proceeds to the credit
of the county.
Historical: Rev. St. 188 7, Sec. 1855.
1 Ter. Ses. (1864) 475, Sec. 146.
California Legislation: Same: Pol.
Code 1872, Sec. 4159; Deering's Code,
ib.; Kerr's Code, ib.
Same: Demand by Legal Representatives.
Sec. 2007. If the money in the treasury is demanded within six
years by the legal representatives of the decedent, the treasurer must
pay it to them, after deducting the fees and expenses of the coroner
and of the county in relation to the matter; or the same may be so
paid at any time thereafter upon the order of the board of com-
missioners.
Historical: Rev. St. 188 7, Sec. 1856.
1 Ter. Ses. (1864) 475, Sec. 147.
California Legislation: Same except
"supervisors" for "commissioners":
Pol. Code 1872, Sec. 4160; Deering's
Code, ib.; Kerr's Code, ib.
Custody of County Money.
Sec. 2008. The county treasurer must keep all moneys belonging
to this State, or to any county of this State in his own possession
until disbursed according to law. He must not place the same in the
possession of any person to be used for any purpose; nor must he
loan or in any manner use or permit any person to use the same,
except as provided by law ; but nothing in this section prohibits him
from making special deposits for the sake keeping of the public
moneys.
ing county money in a bank on gen-
eral deposit, does not afford an action
on his bond in the absence of any
showing of loss to the county. Bing-
ham Co. v. Woodin (1898) 6 Ida. 284;
55 Pac. 662.
Historical: Rev. St. 1887, Sec. 185 7.
California Legislation: Same: Pol.
Code 1872, Sec. 4161; Deering's Code,
ib.; Kerr's Code, ib.
liability for General Deposits: The
act of the county treasurer in deposit-
Suspension of Treasurer Pending Action.
Sec. 2009. Whenever an action based upon official misconduct is
commenced against any county treasurer, the commissioners may, in
their discretion, suspend him from office until such suit is determined,
and may appoint some person to fill the vacancy.
852
COUNTIES
Tit. 11
Historical: Rev. St. 1887, Sec. 1858.
See 1 Ter. Ses. (1864) 475, Sec. 122.
California Legislation : Same except
"supervisors" for "commissioners"-
Pol. Code 1872, Sec. 4162; Deering's
Code, ib.; Kerr's Code, ib.
Delivery of Money and Papers After Death.
Sec. 2010. In case of the death of any county treasurer his legal
representatives must deliver up all official moneys, books, accounts,
papers and documents which come into their possession.
Historical: Rev. St. 1887, Sec. 185 9.
See 1 Ter. Ses. (1864) 475, Sec. 123.
Omitting the last sentence relative to
percentage of treasurers, as repealed
by Laws 1899, 405 (Code Sees. 2115-
2120), abolishing the fee system.
California Legislation: Same: Pol.
Code 1872, Sec. 4163; Deering's Code,
ib.; Kerr's Code, ib.
Inspection of Books.
Sec. 2011. The books, accounts and vouchers of the treasurer are
at all times subject to the inspection and examination of the board
of commissioners and grand jury.
Historical: Rev. St. 1887, Sec. 1860.
See 1 Ter. Ses. (1864) 475, Sec. 114.
(California Legislation: Same except
"supervisors" for "commissioners":
Pol. Code 1872, Sec. 4164; Deering's
Code, ib.; Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 1861.
See 1 Ter. Ses. (1864) 475, Sec. 114.
California Legislation: Same except
"judge" for "commissioners", line 1:
Pol. Code 1872, Sec. 4165; Deering's
Code, ib.; Kerr's Code, ib.
Deposit of County Funds.
Sec. 2013. The county treasurer of each and every county of the
State of Idaho shall deposit, and at all times keep on deposit, for
safe keeping, in the State, national or private banks doing business
in the county, of approved and responsible standing, the amount of
moneys in his hands held by him as such county treasurer. And such
bank, located in the county, may apply for the privilege of keeping
on deposit such moneys or some part thereof. All such deposits shall
be subject to payments when demanded by the county treasurer on
his check, and any bank receiving and holding any such deposit as
aforesaid, shall be required to pay, and shall pay, to the county, for
the privilege of holding the same, not less than two per cent per
annum upon the amount so deposited as herein provided; subject,
also, to such regulations as are imposed by law and the rules adopted
by the county treasurer for receiving and holding such deposits. The
treasurer shall not give preference to any one or more banks applying
to be made such depositories, as in this article provided, in the amount
he may so deposit, but shall keep deposited with each of the said
banks such part of said moneys, so on deposit, as the par value of
securities, or the penalty in the bond furnished by said bank, is a
part of the sum of all of the penalties of all the bonds, and the par
value of all the securities, so furnished by the banks so applying to
be made such depositories, so that such moneys may at all times be
deposited with said banks pro rata as to the penalty of the bond, or
Examination of Books.
Sec. 2012. The treasurer must permit the county commissioners
and auditor to examine his books and count the money in the treasury
whenever they may wish to make an examination or counting.
Ch. 3. Art. 3. officers — treasurer 853
the par value of the securities furnished by them, respectively:
Provided, The treasurer shall not have on deposit in any bank at
any time more than the par value of the securities, nor more than
three-fourths of the amount of the bond given by said bank : Provided
further, That where a surety bond in some responsible surety com-
pany shall be furnished to the satisfaction and approval of the board
of county commissioners, as hereinafter provided, the amount on
deposit may equal, but shall not exceed, ninety per cent of the penalty
of the bond; but in no case shall the amount deposited by him in
any bank exceed one hundred per cent of its paid-up capital stock.
The board of county commissioners of the several counties of this
State shall, at their regular meeting in April, fix the rate of interest
to be paid on such deposits, which shall be not less than the rate
hereinbefore, in this section, established, and which rates, when so
established, shall not be changed for such period of one year.
Historical: Laws 1905, 99, Sec. 1;
amended Laws 1907, 328, Sec. 1.
Premium to Be Paid by Banks: Statements.
Sec. 2014. The amount to be paid by any and all banks, under the
provision of this article, for the privilege of keeping such public
funds on deposit, shall be computed on the average daily balance
of the public moneys kept on deposit therewith, and shall be credited
and paid to the county quarterly on the first days of January, April,
July and October of each year, and such depository shall, quarterly,
on the days aforesaid, render a statement, in duplicate, to the treas-
urer and auditor, showing the amounts so credited. The treasurer
shall require, and it is hereby made the duty of every such depository
to keep, accurate accounts of all such moneys deposited with it, show-
ing the amount deposited and when deposited, and to render, at the
beginning of each and every month, to the treasurer and auditor a
statement, in duplicate, showing the daily balance of the county
moneys held by it during the month next preceding, and the interest
thereon ; and all sums paid to the county for the privilege of keeping
said moneys on deposit as aforesaid, shall be credited by the treasurer
to the account of the current expense fund. The treasurer shall not
make such deposits in any bank or banks other than those which
shall have complied with the provisions of this article.
Historical: Laws 1905, 99, Sec. 2.
Bonds of Depositories: Sureties: Deposits Outside of County.
Sec. 2015. For the security of funds so deposited under the pro-
visions of this article, the county treasurer shall require all such
depositories to deposit securities of the kind and character herein-
after described, or to give bonds for the payment of such deposits
and the interest thereon. Said bonds, when given, shall run to the
State of Idaho, and, together with the securities offered, are to be
approved by the board of county commissioners. Said bonds shall be
conditioned that the depository shall, at the beginning of each and
every month, render to the treasurer and auditor a statement, in
duplicate, showing the daily balance and the amount of money of
the county held by it during the month preceding, and the amount
854 COUNTIES Tit. 11
of the interest thereon, and for the payment of the said deposit and
the interest thereon, as hereinbefore provided, when demanded by
the county treasurer on his check at any time, and generally, to do
and perform whatever may be required by the provisions of this
article, and for a faithful discharge of the trust reposed in such de-
pository. The said bonds shall be in substance the same as those
provided to be given by banks seeking to be made depositories of
State funds, the necessary changes being made therein.
No person in any way connected with any bank seeking to be
made a depository, as owner, part owner, officer or stockholder, shall
be accepted as a surety on any bond to be given by such bank under
the provisions of this article, for a greater amount than the assessed
value of his real and personal property situated in the county, other
than bank and corporation stocks, money, notes and bonds, as shown
by the last preceding annual assessment thereof, and deducting there-
from any and all liens and encumbrances thereon, and it shall be the
duty of the county commissioners, before accepting any such bond,
to carefully examine the assessment rolls and the records and such
other sources of information as may be available to ascertain the real
financial worth of such surety or sureties. Where the penalty of the
bond exceeds ten thousand dollars, each surety may become severally
liable for any sum less than the whole amount that he may specify
that he stands for, and in all such cases if there should be any default
of the principal, each surety shall be held for the whole amount
that he agrees to stand for, but may compel his solvent co-sureties
to contribute pro rata in the event that he pays for more than his
share: Provided, That in all such cases the aggregate amount for
which all the sureties stand good must be at least twenty-five per
cent more than the penalty of the bond. Sureties shall be required
to justify in double the amount for which each, respectively, becomes
liable on said bond; in all other respects the justification of sureties
shall be as required by Section 4934 of these Codes. All bonds and
securities, after approval, shall be deposited with and held by the
county auditor. It shall be the duty of the prosecuting attorney to
enter and prosecute to final determination all suits for the recovery
of any penalty arising under the conditions of any bond required to
be given by the provisions of this article. Said bonds shall be de-
posited with the county auditor.
Where there are no banks in said county, or where the banks in
said county neglect or refuse to apply to be made depositories, as
provided in this article, the said moneys shall be deposited in banks
outside of the county, but within the State of Idaho, having sufficient
capital stock, under the same conditions and terms as if in the county;
and where the bank or banks in the county have not sufficient capital
stock to receive said moneys under this article, moneys to the extent
of one hundred per cent of the paid-up capital stock of sajd bank
or banks, applying to be made depositories under the provisions of
this article, shall be deposited with the said bank or banks in the
county, and the moneys remaining shall be deposited in banks outside
of the county as is hereinbefore in this section provided.
Historical: Laws 1905. 99, Sec. 3; Cross Reference: Bonds of State
amended Laws 1907, 328, Sec. 2. depositories: Sec. 129.
Ch. 3. Art. 3. officers — treasurer 855
Special Deposits.
Sec. 2016. It shall be lawful for the treasurer, until such time as
the county shall provide a vault for the use of the county treasurer,
to deposit any funds in his hands not deposited under the provisions
of this article on special deposit with such banks of approved stand-
ing and responsibility within this State as will charge the least
amount for the services of keeping such funds on such special deposit ;
the expense for such service to be borne by the county making such
deposits, and claims therefor to be approved and allowed out of the
current expense fund of the county.
Historical: Laws 1905, 99, Sec. 4.
Definitions.
Sec. 2017. The word "bank" or "banks" whenever used in this
article shall be held to include trust companies, and the word "bonds"
to include bonds furnished by surety companies authorized and quali-
fied to do business in this State. The word "security" or securities"
shall be construed to include :
(a) United States bonds or obligations, or those for which the
faith of the United States is pledged to provide for the payment
of the interest and principal, including the bonds of the District of
Columbia.
(b) Bonds of the State of Idaho, or those for which the faith
of the State of Idaho is pledged, or for which the State of Idaho is
ultimately liable.
(c) Bonds of the several counties, cities, villages, towns and
school districts of the State of Idaho ; warrants of the State of Idaho
or warrants or interest bearing obligations of any county or city of
the State of Idaho issued pursuant to the authority of any law of
the State of Idaho for the payment of which the faith and credit of
said county or city issuing them are pledged.
(d) Bonds of any association, corporation or company approved
by the board of governors of the New York Stock Exchange and
listed on the New York Stock Exchange.
No securities shall be approved unless their market value shall
equal their par value, nor where there has been default within three
years in the payment of the principal or interest of any obligation
issued by the same maker.
Upon payment to the county of the deposits and accrued interest
for which security was given, it shall be returned to the bank fur-
nishing the same, and when such securities can be conveniently
segregated, the amount thereof may be reduced in proportion as such
deposits shall be reduced or repaid to the county.
Historical: Laws 1905, 99, Sec. 5;
amended Laws 1907, 328, Sec. 3.
Investigation of Security : Examination of Books : Report.
Sec. 2018. All personal bonds shall be investigated and the suf-
ficiency of the same or the sureties thereon determined, as often as
once every six months, and they shall be renewed every two years.
The board of county commissioners may cause an investigation to be
made at any time to ascertain the sufficiency of any bond or security
856 counties Tit. 11
offered or given under this article, and to require new or additional
security whenever in their judgment the safety of any deposit of
county moneys under this article requires it: and such deposit shall
be withdrawn unless such new or additional security be given. Any
expense incurred in carrying out the provisions of this article shall
be audited by the board of county commissioners, and, when allowed,
paid out of the current expense fund of the county. The county
treasurer shall not be liable personally, or upon his official bond, for
any moneys that may be lost by reason of the failure or insolvency
of any bank which becomes a depository under this article. The
board of county commissioners, or any person authorized by them
in writing, may, during business hours, in the presence of the treas-
urer or his deputy or clerk, inspect and examine the books of account
in the office of the treasurer, and all contracts, writings, securities
and other papers belonging to the county or pertaining to the business
thereof, held by the treasurer, and may inspect and count the moneys
belonging to the county and the several funds thereof in the custody
of the treasurer; and it is hereby made the duty of the treasurer to
furnish all reasonable facilities for the purpose.
It is the duty of every county treasurer to file a report in writing,
verified by his affidavit, with the county auditor on the last business
day of each and every month, showing exactly how much cash he has
in the treasury and in what bank or banks deposited, and if in more
than one, how much in each, which reports shall be carefully ex-
amined by the board of county commissioners at the next regular
session following the filing of the same, and compared by them with
the books of the treasurer at least twice a year, and if they shall find
that the treasurer has wilfully made any false statement therein he
may be suspended or removed from office.
Historical:: Laws 1905, 99, Sec. 6;
amended Laws 1907, 328, Sec. 4.
Offenses by Treasurer.
Sec. 2019. The making of profit, directly or indirectly, by the
county treasurer, out of any money in the county treasury, belonging
to the county, the custody of which the county treasurer is charged
with, by loaning or otherwise using it, or depositing the same in any
manner contrary to law, or the removal by the county treasurer or
by his consent, of such moneys, or a part thereof, out of the vault
or safe of the treasurer's department, after the same shall have been
provided by the county, or out of any legal depository of such moneys,
except for the payment of warrants, legally drawn, or for the pur-
pose of depositing the same, under the provisions of this article, in
banks which shall have qualified as depositories, shall constitute a
felony, and, on conviction thereof, shall subject the treasurer to im-
prisonment in the State Penitentiary for a term of not exceeding
two years, or a fine not exceeding five thousand dollars, or to both
such fine and imprisonment, and the treasurer shall be liable upon
his official bond for all profits realized from such unlawful use of
such funds.
Historical: Laws 1905, 99, Sec. 7.
Ch. 3. Art. 4. officers— sheriff 857
Same : Neglect.
Sec. 2020. If the county treasurer shall wilfully fail or refuse at
any time to do or perform any act required of him by the provisions
of this article relative to the deposit of county funds, he shall be guilty
of a misdemeanor, and, upon conviction thereof, he shall be sentenced
to pay a fine not exceeding five thousand dollars.
Historical: Laws 1905, 99, Sec. 8.
"The provisions of this article relative
to the deposit of county funds" in-
serted to confine the effect of the sec-
tion to the matter contemplated by
the act from which it is taken.
Bribery of Treasurer a Felony.
Sec. 2021. The offering, or giving, directly or indirectly, by any
bank or depository, or by any officer or stockholder thereof, or by
any other person or persons in its or their behalf, or by its or their
knowledge, acquiescence or authority, or in its or their interest, to
the county treasurer, or any gift, compensation, reward or induce-
ment, with the intent or for the purpose of inducing said treasurer
to deposit funds of the county in any bank contrary to any law of
this State, shall constitute a felony, and shall, upon conviction thereof,
subject the party or parties offending to imprisonment in the State
Penitentiary for a period not exceeding two years, or to fine not
exceeding five thousand dollars, or to both such fine and imprison-
ment, ii. j
Historical: Laws 19 05, 99, Sec. 9.
Sale of Security for Default of Bank.
Sec. 2022. The county auditor is hereby authorized and empowered
to sell any or all of the bonds or warrants, or both, that may be
deposited as security for the deposit of any county funds in any de-
pository under this article, at public or private sale, whenever there
shall be a failure or refusal upon the part of any such bank, as a
depository, to pay over the said funds of any part thereof upon the
check or demand of the treasurer made on such bank. Notice of the
sale of such bonds or warrants, under this article, shall be given for
a period of thirty days in a newspaper published in the county seat
of said county, and when the sale of bonds is made by the said auditor,
either at public or private sale, under this article, and such bonds or
warrants, or both, have been transferred by the auditor, the absolute
ownership of such bonds and warrants vests in the purchaser or
purchasers, upon the payment of the purchase money to the treasurer,
and uron filing a duplicate receipt therefor with the auditor. Should
there be any surplus after paying the amount due the county, and
expenses of sale, it shall be paid over to the bank making the deposit.
Historical: Laws 1905, 99, Sec. 10.
ARTICLE 4
SHERIFF.
Section
2023. Definitions of process and no-
tice.
2024. Duties of sheriff.
2025. Process returnable to another
county.
Section
2026. Return is prima facie evidence.
2027. Penalty for failure to return.
2028. Refusal to levy execution.
2029. Refusal to pay over money.
858
COUNTIES
Tit. 11
for permitting an
Section
2030. Liability
escape.
2031. Same: For a rescue.
2032. Same: No action after recap-
ture.
2033. Directions must be in writing-.
2034. Office deemed vacant when.
2035. Apparently good process must
be executed.
2036. Must exhibit process.
203 7. Sheriff is court crier.
2 038. Service on sheriff.
2039. Coroner to execute certain
process.
Section
2040. Appointment of elisor.
20 41. Compensation for services to
State.
2042. Incarceration of sheriff on ar-
rest.
2 0 43. Elisor has powers of sheriff.
2044. Termination of sheriff's pow-
ers.
2 045. Delivery of property to suc-
cessor.
2 046. Same: Written transfer and
receipt.
2047. Completion of process.
2048. Refusal to deliver property.
Definitions of Powers and Notice.
Sec. 2023. "Process" as used in this article includes all writs, war-
rants, summons and orders of courts of justice or judicial officers.
"Notice" includes all papers and orders (except process) required
to be served in any proceeding before any court, board or officer, or
when required by law to be served independently of such proceeding.
Historical: Rev. St. 188 7, Sec. 18 70.
California Legislation: Same: Pol.
Code 1872, Sec. 4175; Deering's Code,
ib.; Kerr's Code, ib.
Definition of Process: This section
does not name all writings that may
be denominated "process," but that
term includes other papers not there-
in named, such as affidavit and notice
for foreclosure of chattel mortgages
under Rev. St. Sec. 3391 (Code Sec.
3413). Blumaur-Frank Drg. Co. v.
Branstetter (1895) 4 Ida. 557; 43 Pac.
575.
Duties of Sheriff.
Sec. 2024. The sheriff must :
1. Preserve the peace :
2. Arrest and take before the nearest magistrate for examina-
tion, all persons who attempt to commit or who have committed a
public offense;
3. Prevent and suppress all affrays, breaches of the peace, riots
and insurrections which may come to his knowledge ;
4. Attend all courts, except justices' and probate courts, at their
respective terms held within his county, and obey their lawful orders
and directions;
5. Command the aid of as many male inhabitants of his county
as he may think necessary in the execution of these duties ;
6. Take charge of and keep the county jail and the prisoners
therein ;
7. Indorse upon all process and notices the year, month, day,
hour and minute of reception, and issue therefor to the person de-
livering it, on payment of fees, a certificate showing the names of
the parties, title of paper and time of reception ;
8. Serve all process and notices in the manner prescribed by law ;
9. Certify under his hand upon process or notices the manner
and time of service, or if he fails to make service, the reasons of his
failure, and return the same without delay ;
10. Perform such other duties as are required of him by law.
Ch. 3. Art. 4.
OFFICERS — SHERIFF
859
Historical: Rev. St. 1887, Sec. 18 71,
and 1888, subd. 10 comprises Sec.
1888. See 1 Ter. Ses. (1864) 475, Sees.
3 to 6.
California Legislation: Same except
"justices', probate and police courts"
for "justices' and probate courts,"
Subd. 4: Pol. Code 1872, Sec. 4176;
Deering's Code, ib.; Kerr's Code, ib.
Cross Reference: Ineligible to suc-
ceed himself: Const. Art. 18, Sec. 6.
May be empowered by commissioners
to appoint deputies: Art. 18, Sec. 6.
To collect liquor licenses: Sec. 1508.
To complain of violations of the
liquor law: Sec. 1526.
To sell stallions taken up for run-
ning at large: Sec. 1286. To prose-
cute persons permitting stock to run
at large in town: Sec. 1290.
Sales of land entered under the
Carey act on foreclosure of water
contracts: Sec. 1629.
Sheriff of Ada County to serve sub-
poenas for abstracts issued by State
Board of Equalization: Sec. 1704.
To serve subpoenas on officers fail-
ing to make reports or to transmit
funds: Sec. 281b.
To sell unclaimed floating timber:
Sec. 869.
To impound diseased animals and
slaughter the same on order of jus-
tice of the peace: Sec. 1215.
To summon judges of election to
appear before the county board of
canvassers: Sec. 448.
To take possession of the county
treasurer's office in case of vacancy:
Sec. 330.
Duties in foreclosing chattel mort-
gages by notice and sale: Sees. 3413-
3418.
To draw water from dams pursuant
to orders of the District Court: Sec.
155.
Duties in civil and criminal actions:
See Code of Civil Procedure and Penal
Code.
Cited: Eakin v. Nez Perces Co.
(1894) 4 Ida. 131; 36 Pac. 702.
Process Returnable to Another County.
Sec. 2025. When process or notices are returnable to another
county, he may inclose such process or notice in an envelope addressed
to the officer from whom the same emanated, and deposit it in the
post office, prepaying postage.
Historical: Rev. St. 188 7, Sec. 1872.
See 1 Ter. Ses. (1864) 475, Sec. 7.
California Legislation: Same: Pol.
Code 1872, Sec. 4177; Deering's Code,
ib.; Kerr's Code, ib.
Return Is Prima Facie Evidence.
Sec. 2026. The return of the sheriff upon process or notices, is
prima facie evidence of the facts in such return stated.
Historical: Rev. St. 1887, Sec. 1873.
California Legislation: Same ex-
cept "primary" for "prima facie," line
2: Pol. Code 1872, Sec. 4178; same
as amended: Deering's Code, ib. ;
Kerr's Code, ib.
Penalty for Failure to Return.
Sec. 2027. If the sheriff does not return a notice or process in his
possession with the necessary indorsement thereon without delay, he
is liable to the party aggrieved for the sum of two hundred dollars
and for all damages sustained by him.
Historical: Rev. St. 1887, Sec. 1874.
See 1 Ter. Ses. (1864) 475, Sec. 6.
California Legislation: Same: Pol.
Code 1872, Sec. 4179; Deering's Code,
ib.; Kerr's Code, ib.
Liability of Sureties: The penalty
provided for in this section can only
be recovered against the sheriff; his
sureties are not liable therefor. Rob-
inson v. Kinney (1892) 3 Ida. 479; 31
Pac. 815.
Refusal to Levy Execution.
Sec. 2028. If the sheriff to whom a writ of execution is delivered
neglects or refuses, after being required by the creditor or his attor-
ney, to levy upon or sell any property of the party charged in the
writ which is liable to be levied upon and sold, he is liable to the
creditor for the value of such property.
860
COUNTIES
Tit. 11
Historical: Rev. St. 1887, Sec. 1875.
See 1 Ter. Ses. (1864) 475, Sec. 8.
California Legislation: Same: Pol.
Code 1872, Sec. 4180; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Blumaur-Frank Drg. Co. v
Branstetter (1895) 4 Ida. 557; 43 Pac
575.
Refusal to Pay Over Money.
Sec. 2029. If he neglects or refuses to pay over, on demand, to
the person entitled thereto, any money which may come into his hands
by virtue of his office (after deducting his legal fees) the amount
thereof, with twenty-five per cent damages and interest at the rate
of ten per cent per month from the time of demand, may be recovered
by such person.
Historical: Rev. St. 188 7, Sec. 1876.
See 1 Ter. Ses. (1864) 475, Sec. 9.
California Legislation: Same: Pol.
Code 1872, Sec.^ 4181; Deering's Code,
ib.; Kerr's Code, ib.
Demand Necessary: In order to re-
cover against the sheriff under this
section it is incumbent upon the
plaintiffs to allege and prove a de-
mand. Robinson v. Kinney (1892) 3
Ida. 479; 31 Pac. 815.
Liability of Sureties:. A sheriff's
sureties are liable for money which
the sheriff has received under an ex-
ecution and which he has neglected
to pay to the person entitled thereto.
Ib.
Liability for Permitting an Escape.
Sec. 2030. A sheriff who suffers the escape of a person arrested
in a civil action, without the consent or connivance of the party in
whose behalf the arrest or imprisonment was made, is liable as
follows :
1. When the arrest is upon an order to hold to bail or upon a
surrender in exoneration of bail before judgment, he is liable to the
plaintiff as bail ;
2. When the arrest is on an execution or commitment to enforce
the payment of money, he is liable for the amount expressed in the
execution or commitment ;
3. When the arrest is on an execution or commitment other than
to enforce the payment of money, he is liable for the actual damages
sustained ;
4. Upon being sued for damages for an escape or rescue he may
introduce evidence in mitigation and exculpation.
Historical: Rev. St. 1887, Sec. 1877.
1 Ter. Ses. (1864) 475. Sec. 33.
California Legislation: Same: Pol.
Code 1872, Sec. 4182; Deering's Code,
ib. ; Kerr's Code, ib.
Code 1872, Sec. 4183; Deering's Code,
ib.; Kerr's Code, ib.
Same : For a Rescue.
Sec. 2031. He is liable for a rescue of a person arrested in a civil
action, equally as for an escape.
Historical: Rev. St. 1887, Sec. 1878.
See 1 Ter. Ses. (1864) 475, Sec. 34.
California Legislation: Same: Pol.
Same : No Action After Recapture.
Sec. 2032. An action cannot be maintained against the sheriff for
a rescue, or for an escape of a person arrested upon an execution or
commitment, if, after his rescue or escape and before the commence-
ment of the action, the prisoner returns to the jail, or is retaken by
the sheriff.
Ch. 3. Art. 4.
OFFICERS — SHERIFF
861
Historical: Rev. St. 1887. Sec. 1879.
1 Ter. Ses. (1864) 475, Sec. 35.
California Legislation: Same: Pol.
Code 1872, Sec. 4184; Deering's Code,
ib. ; Kerr's Code. ib.
Directions Must Be in Writing.
Sec. 2033. No direction or authority by a party or his attorney
to a sheriff, in respect to the execution of process or return thereof,
or to any act or omission relating thereto, is available to discharge
or excuse the sheriff from a liability for neglect or misconduct, unless
it is contained in a writing, signed by the attorney of the party, or
by the party if he has no attorney.
Historical: Rev. St. 1887, Sec. 1880.
1 Ter. Ses. (1864) 475, Sec. 45.
California Legislation : Same: Pol.
Code 1872, Sec. 4185; Deering's Code,
ib.; Kerr's Code, ib.
Office Deemed Vacant When.
Sec. 2034. When the sheriff is committed under an execution or
commitment, for not paying over money received by him by virtue
of his office, and remains committed for sixty days, his office is vacant.
Historical: Rev. St. 1887, Sec. 1881.
1 Ter. Ses. (1864) 475, Sec. 46.
California Legislation: Same: Pol.
Code 1872, Sec. 4186; Deering's Code,
ib.; Kerr's Code, ib.
Apparently Good Process Must Be Executed.
Sec. 2035. A sheriff, or other ministerial officer, is justified in the
execution of, and must execute, all process and orders regular on
their face and issued by competent authority, whatever may be the
defect in the proceedings upon which they were issued.
Historical: Rev. St. 1887, Sec. 1882.
1 Ter. Ses. (1864) 475, Sec. 48.
California Legislation: Same: Pol.
Code 1872, Sec. 4187; Deering's Code,
ib.; Kerr's Code, ib.
Justification Under Process: Pro-
cess good on its face protects the
sheriff even though made on a void
or irregular judgment; such process
includes affidavit and notice for the
foreclosure of a chattel mortgage un-
der Rev. St. Sec. 3390 (Code Sec.
3413). Blumaur-Frank Drg. Co. v.
Branstetter (1895) 4 Ida. 557; 43 Pac.
575.
A ministerial officer may justify in
the execution of process regular on
its face and issued by competent au-
thority. Coombs v. Collins (1899) 6
Ida. 536; 57 Pac. 310.
An officer who seeks to justify a
seizure of chattels under a writ of at-
tachment must show a valid writ and
the existence of all the jurisdictional
facts that must exist before the writ
can issue. Beckstead v. Griffith
(1906) 11 Ida. 738; 83 Pac. 764.
Must Exhibit Process.
Sec. 2036. The officer executing process must then, and at all times
subsequent, so long as he retains it, upon request show the same, with
all papers attached, to any person interested therein.
Historical: Rev. St. 1887, Sec. 1883.
1 Ter. Ses. (1864) 475, Sec. 49.
California Legislation: Same: Pol.
Code 1872, Sec. 4188; Deering's Code,
ib. ; Kerr's Code. ib.
Sheriff is Court Crier.
Sec. 2037. The sheriff in attendance upon court must act as the
crier thereof, call the parties and witnesses, and all other persons
bound to appear at the court, and make proclamation of the opening
and adjournment of the court, and of any other matter under its
direction.
862
COUNTIES
Tit. 11
Historical: Rev. St. 1887, Sec. 1884.
See 1 Ter. Ses. (1864) 475, Sec. 50.
California Legislation: Same: Pol.
Code 1872, Sec. 4189; Deering's Code,
ib.; Kerr's Code, ib.
Service on Sheriff.
Sec. 2038. Service of a paper, other than process, upon the sheriff,
may be made by delivering it to him or to one of his deputies, or to
a person in charge of the office during office hours, or if no such person
is there, by leaving it in a conspicuous place in the office.
Historical: Rev. St. 1887, Sec. 1885.
1 Ter. Ses. (1864) 475, Sec. 12.
California Legislation : Same: Pol.
Code 1872, Sec. 4190; Deering's Code,
ib.; Kerr's Code, ib.
Coroner to Execute Certain Process.
Sec. 2039. When the sheriff is a party to an action or proceeding,
the process and orders therein, which it would otherwise be the duty
of the sheriff to execute, must be executed by the coroner of the
county.
Historical: Rev. St. 1887, Sec. 1886.
1 Ter. Ses. (1864) 475, Sec. 54.
California Legislation: Same: Pol.
Code 1872, Sec. 4191; Deering's Code,
ib.; Kerr's Code, ib.
Appointment of Elisor.
Sec. 2040. Process and orders in an action or proceeding may be
executed by a person residing in the county, designated by the court,
the judge thereof, or a probate judge, and denominated an elisor in
the following cases :
1. When the sheriff and coroner are both parties;
2. When either of these officers is a party and the process is
against the other; and
3. When either of these officers is a party and there is a vacancy
in the office of the other, or when it appears by affidavit to the satis-
faction of the court in which the proceeding is pending, or the judge
thereof, that both of these officers are disqualified, or by reason of
any bias, prejudice, or other cause, would not act promptly or im-
partially.
When the process is delivered to an elisor he must execute and
return it in the same manner as the sheriff is required to execute
similar process.
Historical: Rev. St. 1887, Sec. 1887.
1 Ter. Ses. (1864) 475, Sees. 57, 58.
California Legislation: Same ex-
cept "county" for "probate," line 3;
Pol. Code 1872, Sec. 4192: Deering's
Code, ib.; Kerr's Code, ib.
Appointment of Elisor — Discretion-
ary: The granting or refusing of an
application for the appointment of an
elisor i? within the discretion of the
court. State v. Hendel (1894) 4 Ida.
88; 35 Pac. 836.
Same — When Xot Authorized: The
appointment of an elisor to take
charge of a jury during the progress
of a criminal trial is not within this
section. Ib.
Disqualification of Sheriff: Where
the sheriff is disqualified to serve jury
process an elisor should be appointed,
and neither the sheriff nor his depu-
ties should be permitted to serve the
process. State v. Barber (1907) 13
Ida. — ; 88 Pac. 418.
Compensation for Services to State.
Sec. 2041. When the sheriff or other officer is legally required to
perform a service in behalf of the people of this State, which is not
chargeable to his county or private person, his account and claim for
Ch. 3. Art. 4. officers — sheriff 863
compensation therefor must be filed with the Board of Examiners,
who shall consider the same and report thereon to the Legislature,
at its first session after the rendition of such service, for its action.
Historical: Rev. St. 1887, Sec. 1889. i sider the same and report thereon"
(See 8 Ter. Ses. (1875) 543, Sec. 47.) inserted to conform to Const. Art. 4,
"Board of examiners, who shall con- Sec. 18.
Incarceration of Sheriff on Arrest.
Sec. 2042. If the sheriff, on being arrested by a coroner, or. if the
sheriff or coroner on being arrested by an elisor, or if another person
in an action in which both the sheriff and coroner are plaintiffs upon
an order of arrest in a civil action, neglect to give bail or make a
deposit of money instead thereof, or if the sheriff be arrested on ex-
ecution against his body, or on a warrant of attachment, he or they
must be confined in a house other than that of the sheriff, or the
county jail, in the same manner as the sheriff is required to confine
a prisoner in the county jail. The house in which he is thus confined
thereupon becomes for that purpose the county jail.
Historical: Rev. St. 18 87, Sec. 1890.
1 Ter. Ses. (1864) 475; Sec. 59.
Elisor Has Powers of Sheriff.
Sec. 2043. An elisor appointed to execute process and orders in
the cases mentioned in this article, is invested with the powers, duties
and responsibilities of the sheriff, in the execution of the process, or
orders, and in every matter incidental thereto.
Historical: Rev. St. 1887, Sec. 18 91.
1 Ter. Ses. (1864) 475, Sec. 60.
Termination of Sheriff's Powers.
Sec. 2044. When a new sheriff is elected, and has qualified and
given the security required by law, the county recorder must give a
certificate of that fact, under his seal of office, upon the service of
which on the former sheriff his powers cease, except as otherwise
provided in this article.
Historical: Rev. St. 1887, Sec. 1892.
1 Ter. Ses. (1864) 475, Sec. 36.
Delivery of Property to Successor.
Sec. 2045. Within three days after the service of the certificate
upon the former sheriff, he must deliver to his successor :
1. The jail of the county, with its appurtenances, and the prop-
erty of the county therein ;
2. The prisoners then confined in the county jail;
3. The process, orders and other papers in his custody, authoriz-
ing or relating to the confinement of the prisoners ;
4. All process and orders for the arrest of a party, and all papers
relating to the summoning of a grand or trial jury, which have not
been fully executed ;
5. All executions, attachments and final process, except those
which he has executed or has begun to execute, by the collection of
money or a levy on property.
Historical: Rev. St. 18 87, Sec. 1893.
1 Ter. Ses. (1864) 475, Sec. 37.
864
COUNTIES
Tit. 11
Same: Written Transfer and Receipt.
Sec. 2046. He must also, at the same time, deliver to the new
sheriff a written transfer of the property, process, papers and prison-
ers delivered, specifying the process or order by which each prisoner
delivered was committed and detained. The new sheriff must there-
upon acknowledge, in writing on a duplicate of the transfer, the re-
ceipt of the property, process, papers and prisoners therein specified.
Historical: Rev. St. 1887, Sec. 1894.
1 Ter. Ses. (1864) 475, Sec. 38.
Completion of Process.
Sec. 2047. Notwithstanding the election and qualification of a new
sheriff, the former sheriff must return all process and orders before
and after judgment, which he has fully executed, and must complete
the execution of all final process which he has begun to execute previ-
ous to the expiration of his term of office.
Historical: Rev. St. 1887, Sec. 189 5.
1 Ter. Ses. (1864) 475, Sec. 39.
Refusal to Deliver Property.
Sec. 2048. If the former sheriff refuse or neglect to deliver to his
successor the jail, process, papers and prisoners in his charge, the
new sheriff may, notwithstanding, take possession of the jail, and of
the prisoners confined therein, and the probate court, or the probate
judge, may, upon application, order the delivery of the process and
papers.
Historical: Rev. St. 1887, Sec. 1896.
1 Ter. Ses. (1864) 475, Sec. 40.
ARTICLE 5.
CLERK OF THE DISTRICT COURT.
Section
2049. Duties.
2050. Attendance on court.
Section
2051. Liability for neglect or omis-
sion.
Duties of Clerk.
Sec. 2049. The clerk of the District Court must perform such du-
ties as are prescribed in the Code of Civil Procedure and in the
Penal Code, and such duties as may be required of him by the rules
and practice of the court.
appoint deputies and clerical assist-
ants: Const. Art. 18, Sec. 6. Filing
sheriff's return of foreclosure of mort-
gage by notice and sale: Sec. 3417.
Filing water master's bond: Sec. 3275.
May take acknowledgments: Sec. 3124.
To certify lis pendens to county re-
corder in action on official bonds: Sec.
314. To report to the State Treasurer
names of attorneys admitted to prac-
tice: Sec. 840. To record papers in
labor arbitration: Sec. 1435. For du-
ties in civil and criminal cases and in
respect to court proceedings generally,
see Code of Civil Procedure and Penal
Code.
Historical: Rev. St. 1887, Sec. 270.
Omitting "for each judicial district"
as the clerks are county officers un-
der Const. Art. 18, Sec. 6. The power
to appoint deputies conferred by Rev.
St. Sec. 2 71, is conferred by the same
section of the Constitution, and as the
deputy referred to in Sec. 2 71, was
authorized in view of the system of
but one clerk to each district, that
section is treated as superseded. Sees.
1975 and 1979 of these Codes also
preserve the power of the clerk to
appoint a deputy.
Cross Reference: Election and term
of office: Const. Art. 5, Sec. 16. May
be empowered by commissioners to
Ch. 3. Art. 6.
OFFICERS — AUDITOR
865
Attendance on Court.
Sec. 2050. The clerk must in person or by deputy attend every
term of the District Court held in his county. All acts done and pro-
cess issued by the deputy must be in the name of his principal.
Historical: Rev. St. 1887, Sees. 2 72,
273. Omitting- the provisions of Sec.
272 requiring the deputy to reside at
the county seat of the county for
which he is appointed and to per-
form all the duties of the office in
the absence of his principal. These
provisions related solely to the old
system under which the clerk was a
district officer and was required for
that reason to have a deputy in each
county. As there is now a clerk resi-
dent of the county seat in each coun-
ty, the reason for the omitted pro-
visions no longer exists.
Liability for Neglect or Omission.
Sec. 2051. For any wrongful act or omission to perform any duty
imposed by law, by himself or his deputy, the clerk is liable on his
official bond to any person injured.
Historical: Rev. St. 188 7, Sec. 275.
See 1 Ter. Ses. (1864) 475, Sec. 100.
ARTICLE 6.
AUDITOR.
Section
2052.
2053.
2054.
2055.
2056.
Auditor to draw warrants.
Requirements of warrants.
Settlement of debts to county.
Account with treasurer.
Warrant blanks: Fractional
warrants: Registration.
Section
2057. Joint statement by auditor and
treasurer.
2058. Annual statement of financial
condition of county.
2059. Other duties.
2060. Filing and recording bond.
Auditor to Draw Warrants.
Sec. 2052. The auditor must draw warrants on the county treas-
urer in favor of all persons entitled thereto, in payment of all claims
and demands chargeable against the county which have been legally
examined, allowed and ordered paid by the board of commissioners;
also, for all debts and demands against the county when the amounts
are fixed by law, and which are not directed to be audited by some
other person or tribunal.
Historical: Rev. St. 1887, Sec. 2005.
See 8 Ter. Ses. (1875) 556, Sec. 26.
California Legislation : Same except
"supervisors" for "commissioners":
Pol. Code 1872, Sec. 4215; Deering's
Code, ib.; Kerr's Code, ib.
Sums Allowed by Law: The claim
of a publisher for printing the delin-
Requirements of Warrants.
Sec. 2053. All warrants must distinctly specify the liability for
which they are drawn, and when it accrued.
quent tax list pursuant to contract
with the tax collector, is not a sum
"fixed by law" for which the auditor
must draw his warrant without the
claim being first allowed by the board
of commissioners. Jolly v. Woodward
(1895) 4 Ida. 496; 42 Pac. 512.
Historical: Rev. St. 1887, Sec. 2006.
California Legislation: Same: Pol.
Code 1872, Sec. 4216; Deering's Code,
ib.; Kerr's Code, ib.
Cited: McNutt v. Lemhi Co. (1906)
12 Ida. 63; 84 Pac. 1054.
Settlement of Debts to County.
Sec. 2054. The auditor must examine and settle the accounts of
866 COUNTIES Tit. 11
all persons indebted to the county, or holding moneys payable into the
county treasury, and must certify the amount to the treasurer, and
upon the presentation and filing of the treasurer's receipt therefor,
give to such person a discharge and charge the treasurer with the
amount received by him.
Historical: Rev. St. 1887, Sec. 2007. i Code 1872, See. 4217; Deering's Code,
California Legislation: Same: Pol. I ib- Kerr's Code, ib.
Accounts With Treasurer.
Sec. 2055. The auditor must keep accounts current with the treas-
urer, and when any person deposits with the auditor any receipt given
by the treasurer for any money paid into the treasury, the auditor
must file such receipt and charge the treasurer with the amount
thereof.
Historical: Rev. St. 1887, Sec. 20 08.
8 Ter. Ses. (1864) 556, Sec. 25.
California Legislation: Same: Pol.
Code 1872, Sec. 4218; Deering's Code,
ib. ; Kerr's Code, ib.
Warrant Blanks : Fractional Warrants : Registration.
Sec. 2056. The auditor shall have prepared, in separate series,
warrant blanks for each year. They must be numbered consecutively,
and must show the year against the revenue of which they are to be
issued. He shall begin the use of a new series of warrants on the
second Monday in April of each year. All warrants issued by the
auditor shall be .upon the warrant blanks of the series for the year
chargeable with the amount for which such warrant is issued, and
the number, date, and amount of each, and the name of the person to
whom payable, and the purpose for which drawn must be stated
thereon. When the amount for which a warrant is to be drawn is
greater than the sum of two hundred dollars, the auditor shall issue
therefor warrants in sums of two hundred dollars or fraction
thereof, unless there is cash in the county treasury in the fund against
which such warrant is drawn for the payment of the same on presen-
tation. All warrants must, at the time they are issued, be registered
by the auditor.
Historical: Rev. St. 188 7, Sec. 2009;
amended Laws 1899, 397, Sec. 1.
Joint Statement by Auditor and Treasurer.
Sec. 2057. The auditor and treasurer of each county must, on the
second Mondays in January, April, July and October, make a joint
statement to the board of commissioners, showing the whole amount
of collections (stating particularly the source of each portion of the
revenue) from all sources paid into the county treasury; the funds
among which the same was distributed, and the amount to each; the
total amount of warrants drawn and paid, and on what fund ; the to-
tal amount of warrants drawn and unpaid; accounts or claims aud-
ited, or allowed and unpaid, and the fund out of which they are to be
paid, and generally make a full and specific showing of the financial
condition of the county. Said auditor and treasurer shall cause to be
published a summary of said statements in some newspaper pub-
lished in the county.
Ch. 3. Art. 6.
OFFICERS — AUDITOR
867
Historical: Rev. St. 1887, Sec. 2010;
amended Laws 1895, 13, Sec. 1; re-
enacted Laws 1899, 233, Sec. 1.
California Legislation: Similar: Pol.
Code 1872, Sec. 4223; Deering's Code,
ib.; Kerr's Code, ib.
Annual Statement of Financial Condition of County.
Sec. 2058. Every county auditor must, on or before the second
Monday in April of each year, prepare, in duplicate, an exact and full
statement, under oath, of the financial condition of his county for the
fiscal year last preceding, one of which statements shall be filed in the
office of the State Auditor, and the other with the board of county
commissioners of the county.
Such statement must clearly set forth the following: The total
assessed valuation of the county for each year; the amount of the
tax levy on each one hundred dollars' valuation for each several pur-
pose for which levied, stating it, and the total amount of the tax levy
for each year. Therefrom shall be deducted the amount of double as-
sessments, uncollected taxes or other credits ordered by the board of
county commissioners to be given to the assessor on account of the
roll for that year, showing the actual amount of revenue obtainable
from such roll. Thereafter shall follow a statement in which shall
be charged to each separate fund for which a levy was made, the pro-
portion of net revenue, which may be obtained for such fund from
such levy, and also all amounts ordered to be transferred thereto as
provided by law, and also all revenues received for such year for
each of said funds from sources other than property tax. There
shall be credited against such revenue, shown in each fund, the
amount allowed by the board of county commissioners, for which
warrants have been ordered in such year, payable out of such fund ;
and which amounts shall be classified into warrants drawn and paid,
warrants drawn and not paid, and warrants ordered and not drawn.
There shall also be credited, in the statement of the appropriate
funds, the amount paid on account of court orders; witness certifi-
cates; bonds and coupons; State, ad valorem, wagon road or other
levies; current expense; road; bridges; general school purposes; in-
terest on warrants paid ; and generally, of all amounts paid out of the
revenues of the year on account of each of the several funds, or trans-
ferred therefrom as provided by law, and the amount of delinquent
tax due to each of such funds from the revenue of such year. The
amount of cash in the treasury to the credit of each of such funds
shall be credited therein; and said statement of each of said funds
shall be balanced, as the condition thereof shall require by carrying
to the credit of such account "surplus revenue over expenditures" or
by debiting the account with "deficit of revenue to meet expendi-
tures."
The auditor must, at the close of such report, make recapitulation
of the total revenues, and expenditures for the year, and must com-
pute the exact levy which would have been required or the net amount
of the assessment roll for the year, to pay such expenditures and
make a statement of the same.
A further showing shail be made in said statement, as follows:
A statement of the actual amount and character of the bonded indebt-
edness of the county, if any, and the rate of interest thereon, to-
gether with the amount of the floating indebtedness, at the date of
868
COUNTIES
Tit. 11
said statement, and the amount of cash on hand in the treasury, ap-
plicable to the payment thereof. There shall be a detailed showing
made in said statement as to the amount of expenditure made in said
year in said county on account of current expense, other than for
roads and bridges, wherein the total amount of such expenditures
shall be debited and a credit made against the same for the several
classified items of expenditure, in the amount shown by each.
Such classification and summarized details shall be as nearly as
practicable as follows :
To total amount of expenditure for the year payable out of current
expense fund $
By care of poor: Medical attendance. $ ; burials,
; temporary aid, $
By salary, or other compensation of each; actual expenses being
a county charge; (showing separately under sheriff for deputies and
jailers; board and care of prisoners) office expenses; blanks; sta-
tionery; furniture; and supplies, amount of each, $
District Court: By defense criminals, $ ; witness fees,
$ ; juror fees, $
Justice courts: By fees of justices of the peace, $_ ; con-
stables, $ ; jurors, $
Court house: By merchandise, $ ; repairs, $ ;
janitor, $ ; fuel, $ , etc., and generally, such a
summarized detail as shall make a comprehensive statement of the
full amount and nature of the expenditures in said fund, for the
fiscal year included in said statement.
Historical: Laws 1901, 29 4, Sec. 1.
Other Duties.
Sec. 2059. The auditor must
required by law.
discharge such other duties as are
Historical: Rev. St. 1887, See. 2 011.
California Legislation : Same: Pol.
Code 1872, Sec. 4224; Deeringr's Code,
ib. ; Kerr's Code, ib.
Cross Reference: May be empow-
ered by commissioners to appoint
deputies and employ clerical assist-
ance: Const. Art. 18, Sec. 6.
Duties in relation to property
taxes: To file copy of tax levy: Sec.
1647; to prepare abstract of as-
sesment: Sec. 1701; to enter changes
in assessment book required by State
Board of Equalization: Sec. 1707; to
apportion valuations of telegraph, tel-
ephone and railroad property: Sec.
1715; to file with county commission-
ers amount of State tax certified by
State Auditor: Sec. 1716; to make cor-
rections ordered by State Board of
Equalization: Sec. 1720; to make affi-
davit of changes made: Sec. 1721; to
prepare tabulated statements of valu-
ations and transmit same to State
Auditor: Sees. 1722, 1723: to deliver
assessment book to tax collector: Sec.
1724: and charge amount of taxes to
collector: Sec. 1725; to make settle-
ments with tax collector: Sees. 1741,
1742; to charge assessor for descrip-
tions of property published: Sec. 1748:
to cancel taxes accrued on property
sold to county on payment thereof:
Sec. 1755; to file tax certificates and
compare the same with certificate
book: Sees. 1760, 1761; to compare
delinquent list with assessment book;
Sec. 1768; to. make final settlement
with the collector: Sec. 1769; duties
on redemption from tax sales: Sees.
1771, 1772, 1773; sale of tax certifi-
cates held by county: Sees. 1774,
1775; entry of names of assignees of
certificates: Sec. 1776; to credit as-
sessor with cancelled taxes: Sec. 1791;
reports to State Auditor: Sees. 1799-
1802; monthly settlements with tax
collector: Sec. 1817; annual settle-
ments with revenue officers: Sec. 1822.
Production of ballots and poll books
in contested elections before the Leg-
islature: Sec. 52. Return to auditor
of ballots and poll books used in con-
tested elections before the Legisla-
ture: Sec. 56. To file and preserve
certificates of nominations for county
Ch. 3. Art. 7.
OFFICERS — RECORDER
869
and precinct offices: Sees. 384, 387,
391. To provide official ballots and
instruction cards for elections: Sees.
404-413. To act as clerk of board of
commissioners in canvass of election
returns: Sec. 448. To transmit copy
of abstract of votes to Secretary of
State and to file and record original
abstract: Sec. 449. To prepare special
ballots for county seat elections: Sec.
479. To transmit abstract of votes
cast at special election to Secretary
of State: Sec. 481. 'To file returns of
bond elections in good road districts:
Sec. 1054.
Duties with respect to poll taxes:
Sees. 1842-1862. Duties with respect
to road taxes: Sees. 902, 904. To
issue ferry and toll bridge license: Sec.
1021. Duties with respect to collec-
tion of license taxes: Sees. 1828-1841.
Duties in collecting taxes on net
profits of mines: Sec. 1871. Addition
to taxes against land of amounts
Filing and Recording Bond.
Sec. 2060. The bonds of the recorder and auditor must be filed
by the probate judge in the probate court of the county, and a copy
thereof duly recorded by the county recorder, and when so recorded,
fully attested by the probate judge.
charged for services of water mas-
ters: Sec. 32 81. Duties with respect
to drainage district taxes: Sees. 2460-
2468.
To draw warrants for school dis-
trict moneys: Sees. 608, 611. To draw
warrants for expenses incurred in
holding teachers' institutes: Sec. 641.
Piling articles of mutual livestock
insurance companies: Sec. 2925.
Piling pedigree of sires offered for
service: Sec. 3453. Same: Issuance of
certificate: Sec. 345 4. Same:' Piling
statement of account for services ren-
dered: Sec. 3455.
To file appointments made to fill
vacancies: Sec. 328.
To issue toll bridge licenses: Sec.
1033.
Settlement with road overseer: Sec.
914.
To apportion assessment made by
good road commissioners: Sec. 10 5 6.
Historical: Rev. St. 1887, Sec. 2013.
See 8 Ter. Ses. (1875) 556, Sec. 5.
California Legislation : See Pol.
Code 1872, Sec. 4122, Subds. 3 and 5
Deering's Code, ib.; Kerr's Code, ib.
ARTICLE 7.
RECORDER.
Section
2061. Books to be procured.
20 62. Instruments to be recorded.
2063. Indexes to be kept.
2064. Indexing official deeds.
2065. Certificates of sale.
2066. Judgments affecting land.
2067. Same: Record imparts notice.
2068. Several indexes in same vol-
ume.
2069. Indorsement on instruments.
2070. Same: Book and page of rec-
ord.
Section
2071. Number to be stamped on in-
strument.
2072. Reception book.
2073. Certificate of time of reception.
2074. Failure to properly record in-
strument.
2075. Recorder must make searches.
2076. Liability for neglect.
2077. Pees to be prepaid.
2078. Records open to inspection.
Books to Be Procured.
Sec. 2061. The Recorder must procure such books for records as
the business of his office requires, but orders for the same must first
be obtained from the board of commissioners. He has the custody
of and must keep all books, records, maps, and papers deposited in
his office.
Historical: Rev. St. 1887, Sec. 20 2 3.
See 1 Ter. Ses. (1864) 475, Sec. 64.
California Legislation: Same except
"supervisors" for "commissioners,"
line 3: Pol. Code 1872, Sec. 4234;
Deering's Code, ib. ; Kerr's Code, ib.
Cross Reference: May be empower-
ed by commissioners to appoint depu-
ties and clerical assistants: Const. Art.
18, Sec. 6.
To file oaths of county, district and
precinct officers: Sec. 272; to file and
record bonds of county and precinct
officers: Sec. 284; to file bond and
870
COUNTIES
Tit. 11
oath of county superintendent: Sec.
585.
To file municipal annexation ordi-
nances: Sec. 2173; to record city and
village plats: Sec. 2301; to record and
note vacation of plat: Sees. 2306,
2309; to sign and acknowledge plat
where owners fail to do so: Sec. 2311.
May take acknowledgments: Sec.
3124; to certify to the authority of a
justice of the peace taking an ac-
knowledgment: Sec. 3135.
To file returns of property subject
to transfer tax payable at a future
date: Sec. 1878; to record transcripts
of decrees relating to transfer taxes:
Sec. 1890.
To file notice of lien for services of
sires: Sec. 3451.
Record of lien claims: Sec. 5117.
Record of liens upon sawlogs: Sec.
5133.
Issuance of certificate of incorpora-
tion: Sec. 2719.
To take charge of auctioneer's
register on removal of auctioneer
from the county: Sec. 1261.
Filing lis pendens: Sec. 4142; same:
in actions on official bonds: Sec. 315.
To file determination of viewers in
disputes as to partition fences: Sec.
1269.
To file forfeitures of State lands:
Sec. 1581.
To file tax certificates: Sec. 1761.
Investments of proceeds of sale in
partition to be made in the name of
the recorder: Sees. 4597, 4599.
Record of inventory of wife's prop-
erty: Sec. 2681; record of marriage
settlement: Sec. 2691.
Record of independent defeasance
accompanying mortgage: Sec. 3404.
Record of certificate of special part-
nership: Sec. 3339; same: record of
affidavit of publication: Sec. 3343;
same: record of certificate of change
in partnership: Sees. 3357, 3358;
same: record of notice of dissolution:
Sec. 3359.
Record of declaration of home-
stead: Sees. 3200, 3204.
Amount of fees to be indorsed on
recorded instruments: Sec. 3155.
Recording transfers: Sees. 3149-
3163.
Custody of records and papers of
act-eased notary: Sec 238.
To record certified copy of decree
condemning lands for highway pur-
poses: Sec. 930.
To record statement0 mafic ty per-
sons employing mechanics: Sec. 1446.
To attend before county board of
equalization and furnish such infor-
mation as may be required: Sec. 1698.
To file order organizing an irriga-
tion district or changing the bound-
aries of the district: Sees. 2377, 2432,
2437.
Computation of fee for recording
articles and stock subscriptions for
water users' association: Sec. 2843;
to provide record books for water
users' association: Sec. 2843.
Issuance of marriage licenses: Sec.
262 9; fee for issuing marriage li-
censes: Sec. 2 636; fee for certified
copy of marriage, birth or death: Sec.
1092; to keep register of marriages,
births and deaths: Sees. 1090-1092.
Certificate of acknowledgment of
marginal discharge of mortgage: Sec.
3399; record of certificate of dis-
charge of mortgage: Sec. 3401; fee
for filing chattel mortgage: Sec. 3409;
filing and indexing of chattel mort-
gages: Sec. 3409.
Record of articles of mutual co-
operative insurance companies: Sec.
2 906. Filing certificate of authority
of surety companies: Sec. 2943. Fil-
ing resolution of shareholders of
guaranty, title and trust companies
adopting the law governing such com-
panies: Sec. 2962.
To record brands: Sec. 1231; to
keep brand books open for inspection:
Sec. 12 33; to send out notices of stray
sheep when forwarded to him by the
finder: Sec. 1233; fee for sending out
notices of stray sheep: Sec. 1235. To
record leases of livestock: Sec. 1263.
Duties with reference to estrays: Sec.
12 99. Fees in executing the estray
law: Sec. 1299.
To record licenses of physicians:
Sec. 1349. To record dentists' certifi-
cates: Sec. 1353. Fee for registering
dentists' certificates: Sec. 1363. To
record certificates of osteopaths: Sec.
1369. To record optometric certifi-
cates: Sec. 1378. Fee for recording
optometric certificates: Sec. 1378.
Record of mining location notices:
Sec. 3209. Record of affidavit of
labor: Sec. 3211. Fee for administer-
ing and recording affidavit of labor on
mining claim: Sec. 3211. Appoint-
ment of deputies for mining districts:
Sec. 3215. Fee for recording affidavit
accompanying mining location notice:
Sec. 3217. Keep book of mining
claims: Sec. 3218. Transmission to
deputy of mining location notices:
Sec. 3219. Record of notices of loca-
tion of placer claims: Sec. 3222. Rec-
ord of mining partnership contracts:
Sec. 3371.
Copy of order granting application
for license to construct a toll road
must be recorded: Sec. 982. Descrip-
tion of proposed route and survey
must be recorded: Sees. 984, 989;
also certificate of completion of road:
Sec. 996; and certificate of abandon-
ment: Sec. 1000.
To record order granting authority
to construct toll bridge: Sec. 1030.
To file certificate of completion of
bridge: Sec. 1033.
Instruments to Be Recorded.
Sec. 2062. He must, upon the payment of his fees for the same,
Ch. 3. Art. 7.
OFFICERS — RECORDER
871
record separately, in large and well-bound separate books, in a fair
hand :
1. Deeds, grants, transfers and mortgages of real estate, re-
leases of mortgages, powers of attorney to convey real estate and
leases which have been acknowledged or proved ;
2. Certificates of marriage and marriage contracts ;
3. Wills admitted to probate ;
4. Official bonds;
5. Notices of mechanics' liens ;
6. Transcripts of judgments which by law are made liens upon
real estate;
7. Notices of attachments upon real estate;
8. Notices of the pendency of an action affecting real estate, the
title thereto or possession thereof;
9. Instruments describing or relating to the separate property
of married women ;
10. Notices of pre-emption claims ;
11. Such other writings as are required or permitted by law to
be recorded.
Historical: Rev. St. 1887, Sec. 2 02 4.
See 1 Ter. Ses. (1864) 475, Sec. 70.
Omitting Subd. 2, relative to the chat-
tel mortgage book, which is super-
seded by Laws 189 9, 121 (Code, Sec.
3409) requiring such instruments to
be filed only.
Indexes to Be Kept.
California Legislation : Same with
additional subdivisions: Pol. Code
1872, Sec. 4235; Deering's Code, ib.;
as amended: Kerr's Code, ib.
Cross Reference: For other instru-
ments to be recorded see cross refer-
ence note to preceding section.
Sec. 2063. Every recorder must keep:
1. An index of deeds, grants, and transfers, labeled "Grantors",
each page divided into four columns, headed respectively : "Names of
grantors", "Names of grantees", "Date of deeds, grants or trans-
fers", and "Where recorded" ;
2. An index of deeds labeled "Grantees", each page divided into
four columns, headed respectively: "Names of grantees", "Names of
grantors", "Date of deeds, grants, or transfers", and "Where re-
corded" ;
3. Two indexes of mortgages, labeled respectively: "Mortgagors
of real property", "Mortgagors of personal property," with the pages
thereof divided into five columns, headed respectively: "Names of
mortgagors", "Names of mortgagees," "Date of mortgages", "Where
recorded", "When discharged" ;
4. Two indexes of "Mortgagees", labeled respectively: "Mort-
gagees of real property", "Mortgagees of personal property", with
the pages thereof divided into five columns, headed respectively:
"Names of mortgagees", "Names of mortgagors", "Date of mort-
gages", "Where recorded", "When discharged" ;
5. Two indexes of release of mortgages, labeled respectively:
"Releases of mortgages of real property — mortgagors", "Releases of
mortgages of personal property — mortgagors", with the pages there-
of divided into six columns, headed respectively : "Parties releasing",
"To whom releases are given", "Date of releases", "Where releases
are recorded", "Date of mortgages released", "Where mortgages re-
leased are recorded" ;
872 COUNTIES Tit. 11.
6. Two indexes of releases of mortgages, labeled respectively:
''Releases of mortgages of real property — mortgagees", "Releases of
mortgages of personal property — mortgagees", with the pages there-
of divided into six columns, headed respectively: "Parties whose
mortgages are released", "Parties releasing", "Date of releases",
"Where recorded", "Date of mortgages released", "Where mortgages
released are recorded";
7. An index of powers of attorney, labeled "Powers of Attor-
ney", each page divided into five columns headed respectively:
"Names of parties executing powers", "To whom powers are exe-
cuted", "Date of powers", "Date of recording", "Where powers are
recorded";
8. An index of leases, labeled "Lessors", each page divided into
four columns, headed respectively: "Names of lessors", "Names of
lessees", "Date of leases", "When and where recorded" ;
9. An index of leases, labeled "Lessees", each page divided into
four columns, headed respectively: "Names of lessees", "Names of
lessors", "Date of leases", "When and where recorded" ;
10. An index of marriage certificates, labeled "Marriage certifi-
cates— Men", each page divided into six columns, headed respectively:
"Men married", "To whom married", "When married", "By whom
married", "Where married", "Where certificates are recorded";
11. An index of marriage certificates, labeled "Marriage certifi-
cates— Women", each page divided into six columns, headed respec-
tively: "Women married" (and under this head placing the family
names of the women), "To whom married", "When married", "By
whom married", "Where married", "Where certificates are recorded";
12. An index of assignments of mortgages and leases, labeled
"Assignments of Mortgages and Leases — Assignors", each page di-
vided into five columns, headed respectively : "Assignors", "As-
signees", "Instruments assigned", "Date of assignments", "When and
where recorded" ;
13. An index of assignments of mortgages and leases, labeled
"Assignments of Mortgages and Leases — Assignees", each page di-
vided into five columns, headed respectively: "Assignees", "Assignors",
"Instruments assigned", "Date of assignments", "When and where
recorded" ;
14. An index of wills, labeled "Wills", each page divided into four
columns, headed respectively : "Names of testators", "Date of wills",
"Date of probate", "When and where recorded";
15. An index of official bonds, labeled "Official Bonds", each page
divided into five columns, headed respectively: "Names of officers",
"Names of offices", "Date of bonds", "Amount of bonds", "When and
where recorded";
16. An index of notices of mechanics' liens, labeled "Mechanics'
Liens", each page divided into three columns, headed respectively:
"Parties claiming liens", "Against whom claimed", "Notices, when
and where recorded" ;
17. An index to transcripts of judgment, labeled "Transcripts of
Judgments", each nage divided into seven columns, headed respective-
ly: "Judgment debtors", "Judgment creditors", "Amount of judg-
ments", "Where recovered", "When recovered", "When transcript
filed", "When judgment satisfied" ;
Ch. 3. Art. 7.
OFFICERS — RECORDER
873
18. An index of attachments, labeled "Attachments", each page
divided into six columns, headed respectively: "Parties against
whom attachments are issued", "Parties issuing attachments", "No-
tices of attachments", "When recorded", "Where recorded", "When
attachments discharged" ;
19. An index of notices of the pendency of actions, labeled "No-
tices of actions", each page divided into three columns, headed re-
spectively: "Parties to the actions", "Notices, when recorded",
"Where recorded" ;
20. An index of the separate property of married women la-
beled "Separate property of married women", each page divided into
five columns, headed respectively: "Names of married women",
"Names of their husbands", "Nature of instruments recorded",
"When recorded", "Where recorded" ;
21. An index of possessory claims, labeled "Possessory Claims",
each page divided into five columns, headed respectively : "Claimants",
"Notices", "When received", "Date of notices", "When and where
recorded" ;
22. An index of homesteads, labeled "Homesteads", each page
divided into five columns, headed respectively: "Claimants", "Date
of declaration", "When and where recorded", "Abandonment",
"When and where recorded" ;
23. An index of agreements and bonds affecting the title of real
property, labeled: "Real Property Agreements", each page divided
into four columns, headed respectively: "Vendors", "Vendees", "Date
of agreement", "When and where recorded" ;
24. An index of mining claims, labeled "Mining Claims", each
page divided into five columns, headed "Locators", "Name of claim",
"Date of location", "When filed for record", "Where recorded" ;
25. An index of water rights, labeled "Water Rights", each page
divided into four columns labeled "Locators", "Date of notice", "When
filed for record", "Where recorded" ;
26. A general index of all papers to be entered as they are filed.
Historical: Rev. St. 1887, Sec. 2025.
See 1 Ter. Ses. (1864) 475, Sec. 72.
California Legislation: Same
through Subd. 21, rest omitted: Pol.
Code 1872, Sec. 4236; Deering's Code,
ib. ; Kerr's Code, ib.
Indexing Official Deeds.
Sec. 2064. Deeds made by sheriffs, collectors, administrators,
trustees and other officers, in their official capacity, shall be indexed
by the recorder in the name of the owner of the property conveyed
as grantor, by the officer, naming him and his office.
Historical: Laws 1907, 95, Sec. 1.
Certificates of Sale.
Sec. 2065. The recorder must keep in his office a book to be called
"Certificates of Sale", and record therein all certificates of sale of
real estate sold under execution or under order made in any judicial
proceeding. He must also prepare an index thereto, in which he must
enter, in separate columns, the names of the plaintiff in the execution,
the defendant in the execution, the purchaser at the sale, and the date
of the sale.
874
COUNTIES
Tit. 11
Historical: Rev. St. 1887, Sec. 2026.
"In separate columns" transposed for
grammatical reasons.
California Legislation: Same: Pol
Code 1872, Sec. 4237; Deering's Code,
ib.; Kerr's Code, ib.
Judgments Affecting Land.
Sec. 2066. The recorder must file and record with the record of
deeds, grants and transfers, certified copies of final judgments or
decrees partitioning or affecting the title or possession of real prop-
erty, any part of which is situate in the county of which he is re-
corder.
Historical: Rev. St. 1887, Sec. 2027.
California Legislation: Same: Pol.
Code 1872, Sec. 4238; Deering's Code,
ib.; Kerr's Code, ib.
Same: Record Imparts Notice.
Sec. 2067. Every such certified copy of decree of partition, from
the time of filing the same with the recorder for record, imparts no-
tice to all persons of the contents thereof ; and subsequent purchasers,
mortgagees, and lienholders, purchase and take with like notice and
effect as if such copy of decree was a duly recorded deed, grant or
transfer.
Historical: Rev. St. 1887, Sec. 2028.
"Decree of" inserted before "parti-
tion" to make the sentence complete.
California Legislation: Same: Pol.
Code 1872, Sec. 4239; Deering's Code,
ib.; Kerr's Code, ib.
Several Indexes in Same Volume.
Sec. 2068. The recorder may keep in the same volume any two
or more of the indexes required to be kept, but the several indexes
must be kept distinct from each other, and the volume must be dis-
tinctly marked on the outside in such way as to show all the indexes
kept therein. The names of the parties in the first column in the
several indexes must be arranged in alphabetical order.
Historical: Rev. St. 1887, Sec. 202 9.
See 1 Ter. Ses. (1864) 475, Sec. 73.
Omitting last half of section, relating
to indexing official deeds, as super-
seded by Laws 1907, 95 (Sec. 2064,
ante).
California Legislation: Similar: Pol.
Code 1872, Sec. 4240; Deering's Code,
ib. ; Kerr's Code, ib.
Indorsement on Instruments.
Sec. 2069. When any instrument, paper or notice, authorized by
law to be recorded, is deposited in the recorder's office for record, the
recorder must indorse upon the same the time when it was received,
noting the year, month, day, hour and minute of its reception, and
at once enter it in the proper index, and must record the same with-
out delay, together with the acknowledgments, proofs and certifi-
cates, written upon or annexed to the same, with the plats, surveys,
schedule and other papers thereto annexed, in the order and as of
the time when the same was received for record, and must note at the
foot of the record the exact time of its reception, and the name of
the person at whose request it was recorded.
Historical: Rev. St. 18 87, Sec. 2030.
1 Ter. Ses. (1864) 475, Sec. 74.
California Legislation: Same except
"and at once enter it in the proper
index," line 5, omitted: Pol. Code
1872, Sec. 4241; Deering's Code, ib.;
Kerr's Code, ib.
Ch. 3. Art. 7.
OFFICERS — RECORDER
875
Same: Book and Page of Record.
Sec. 2070. He must also indorse upon each instrument, paper or
notice, the book and pages in which it is recorded, and must there-
after deliver it upon request to the party leaving the same for record,
or to his order.
Historical: Rev. St. 188 7, Sec. 2 031.
See 1 Ter. Ses. (1864) 475, Sec. 75.
California Legislation: Same except
"the time when and" inserted after
"notice," line 2: Pol. Code 1872, Sec.
4242; Deering's Code, ib.; Kerr's
Code, ib.
Number to Be Stamped on Instruments.
Sec. 2071. It is hereby made the duty of each county recorder in
this State, when any instrument, paper or notice authorized by law to
be recorded is deposited in the recorder's office for record, immedi-
ately to write or stamp thereon an instrument number, and the num-
bers so stamped shall be consecutive in the order of filing, commenc-
ing with number one in each county and following in the order of the
filing of the various instruments, papers or notices, and priority of
number shall be prima facie evidence of priority of filing: Provided,
That, when such recorder shall receive by mail or other like inclosure
more than one instrument, paper or notice at a time, he shall affix
such numbers in the consecutive order in which said instruments,
papers or notices actually came to his hand on opening, save that
when more than one instrument, paper or notice is received from the
same source at the same time, he may follow such directions as the
sender may give in relation to such numbering.
Historical: Laws 190 3, 42 8, Sec. 1.
Reception Book.
Sec. 2072. There shall be provided by the county commissioners
of each county, in the same manner that other record books are pro-
vided, a book for use in the office of the recorder to be known as the
reception book, in which shall be entered, immediately after num-
bering, all instruments, papers or notices authorized by law to be
recorded. Such book shall be ruled in parallel columns and in the first
column at the left hand side of the page, shall be entered the instru-
ment number; in the second column, the day, hour and minute of
filing; in the third column, the grantor, or person executing the in-
strument; in the fourth column, the grantee, or person to whom the
instrument is executed, if there be such; in the fifth column, the
character of the instrument ; in the sixth column, the book and page
where recorded ; in the seventh column a brief description of the
property, if any, described therein ; and in the last column at the right,
the name of the person to whom delivered. Such book shall be a
part of the public records of such office, and open to public inspection
during office hours.
Historical: Laws 1903, 42 8, Sec. 2.
Certificate of Time of Reception.
Sec. 2073. When any such instrument, paper or notice is numbered
and entered in the reception book and indexed, it shall be recorded,
or filed, as now provided by law ; and it shall be the duty of the re-
876 counties Tit. 11
corder to write or stamp, or cause to be written or stamped, at the
beginning of the record thereof, if recorded, the words "Instrument
number'' and add thereto the number stamped or written on such in-
strument, paper or notice, and to add immediately after the record
thereof, a certificate setting forth the exact time of the reception
of such instrument, paper or notice, giving the day, hour and minute
as set out in the original notation of filing made by him upon the' in-
strument, paper or notice itself, and the name of the person at whose
request it is recorded, which record and certificate he shall authenti-
cate with his official signature, but for which certificate and authenti-
cation he shall not be authorized or permitted to collect a fee.
Historical: Laws 1903, 42 8, Sec. 3.
Failure to Properly Record Instrument.
Sec. 2074. If any recorder neglects or refuses or fails to record any
instrument, paper or notice authorized by law to be recorded, in the
manner provided for in the three preceding sections, he shall be liable
to the party aggrieved for three times the amount of the damages
which may be occasioned thereby, and for each such neglect or failure
or refusal, whether damages are recovered by an aggrieved party or
not, he shall pay into the general school fund of his county the sum
of fifty dollars, which may be recovered by an action which it is the
duty of the county attorney to prosecute. All penalties provided by
this section shall be recoverable from the recorder upon his official
bond.
Historical: Laws 1903, 428, Sec. 4. . Code 1872, Sec. 4244; Deering's Code,
California Legislation: See pol. io-: Kerr*b Code, ib.
Recorder Must Make Searches.
Sec. 2075. The recorder must, upon the application, of any per-
son, and upon the payment or tender of the fees therefor, make
searches for conveyances, mortgages, and all other instruments, pa-
pers, or notices recorded or filed in his office, and furnish a certifi-
cate thereof, stating the names of the parties to such instruments, pa-
pers, and notices, the dates thereof, the year, month, day, hour, and
minute they were filed, the extent to which they purport to affect the
property to which they relate, and the book and pages where they
are recorded.
Historical: Rev. F5t. 1887, Sec. 2032. "recorded and" inserted before "filed."
1 Ter. Ses. (1864) 475, Sec. 76. line 7: Pol. Code 1872, Sec. 4243;
California Legislation: Same except Deering's Code, ib.; Kerr's Code, ib.
Liability for Neglect.
Sec. 2076. If any recorder to whom an instrument, proved or ac-
knowledged according to law, or any paper or notice which may by
law be recorded, is delivered for record :
1. Neglects or refuses to record such instrument, paper, or no-
tice within a reasonable time after receiving the same ; or,
2. Records any instruments, papers, or notices untruly, or in
any other manner than as hereinbefore directed ; or,
3. Neglects or refuses to keep in his office such indexes as are
Ch. 3. Art. 8.
OFFICERS — ASSESSOR
877
required by this chapter, or to make the proper entries therein; or,
4. Neglects or refuses to make the searches and to give the cer-
tificate required by this chapter; or if such searches or certificate
are incomplete and defective in any important particular affecting the
property in respect to which the search is requested; or,
5. Alters, changes, or obliterates any records deposited in his
office, or inserts any new matter therein ;
He is liable to the party aggrieved for three times the amount of
the damages which may be occasioned thereby.
Historical: Rev. St. 1887, Sec. 2 033.
See 1 Ter. Ses. (1864) 475, Sec. 77.
California Legislation: Same: Pol.
Code 1872, Sec. 4244; Deering's Code,
ib.; Kerr's Code, ib.
Fees to Be Prepaid.
Sec. 2077. He is not bound to record any instrument or file any
paper or notice, or furnish any copies, or to render any service con-
nected with his office, until his fees for the same, as prescribed by
law, are, if demanded, paid or tendered.
Historical: Rev. St. 1887, Sec. 20 34.
1 Ter. Ses. (1864) 475, Sec. 84.
California Legislation : Same: Pol.
Code 1872, Sec. 4245; Deering's Code,
ib.; Kerr's Code, ib.
Records Open to Inspection.
Sec. 2078. All books of record, maps, charts, surveys, and other
papers on file in the recorder's office, must, during office hours, be
open for the inspection of any person who may desire to inspect them
and may be inspected without charge ; and the recorder must arrange
the books of record and indexes in his office in such suitable places as
to facilitate their inspection.
Historical: Rev. St. 1887, Sec. 2035.
1 Ter. Ses. (1864) 475, Sec. 80.
California Legislation: Same: Pol.
Code 1872, Sec. 4246; Deering's Code,
ib.; Kerr's Code, ib.
ARTICLE 8.
ASSESSOR AND TAX COLLECTOR.
Section
2079. Duties of assessor.
Duties of Assessor.
Sec. 2079. The assessor is ex-officio tax collector, and his duties
in relation to the assessment and collection of revenue are prescribed
in Title 10 of this Code, relating to revenue.
Historical: New section by Com-
missioner inserted in place of Rev. St.
Sec. 2040, which is superseded by
Laws 1901, 233, Sec. 179 (Code, Sec.
1809).
Cross Reference: Assessor ineligible
to succeed himself: Const. Art. 18,
6.
To furnish information to Commis-
sioner of Immigration: Sec. 1420.
To make lists of persons liable to
military duties: Sec. 706.
To assess and collect special school
district taxes: Sec. 623.
To collect road poll taxes in con-
tract road districts: Sec. 8 92.
Collection of road taxes: Sees. 904,
905, 906.
To collect taxes levied by good road
district: Sec. 1056.
To collect drainage district taxes:
Sec. 2473.
878
COUNTIES
Tit. 11
ARTICLE 9.
PROSECUTING ATTORNEY.
Section
2080. Qualifications.
Appointment of special prose-
cutor.
Duties.
Receipts for money collected.
2081.
2082.
2083.
Section
2384. Prohibitions.
2085. Adviser of county commission-
ers.
2086. Appointment of counsel for
accused.
Note: This article supersedes Rev. St. 1887, Sees. 2050-2057; amended
Laws 1890-91, 46, prescribing the duties of the district attorney, which
were rendered obsolete by the amendment, in 1895, of Const. Art. 5, Sec.
18, creating the office of prosecuting attorney. The words "county attor-
ney" are changed throughout to "prosecuting attorney" to conform to the
nomenclature of the Constitution."
Qualifications.
Sec. 2080. No person shall be eligible to the office of prosecuting
attorney who is not an attorney and counselor at law duly licensed
to practice as such in the District Courts of the State. No prose-
cuting attorney shall hold any other county or State office during
his term of office as prosecuting attorney.
Historical: Laws 1899, 24, Sec. 1;
re-enacting Laws 1897, 74, Sec. 1.
Cited: State v. Corcoran (1900) 7
Ida. 220; 61 Pac. 1034.
Employment of Special Counsel:
This act, in providing for a district
attorney, does not impair the power
of the county commissioners to em
ploy special counsel to perform legal
services for the county as authorized
by Rev. St. Sec. 1759, subd. 13. (Code
Sec. 1917. Anderson v. Shoshone Co.
(1898) 6 Ida. 76; 53 Pac. 105.
Appointment of Special Prosecutor.
Sec. 2081. When there is no prosecuting attorney for the county,
or when he is absent from the court, or when he has acted as counsel
or attorney for a party accused in relation to the matter of which
the accused stands charged, and for which he is to be tried on a
criminal charge, or when he is unable to attend to his duties,
the District Court may, by an order entered in its minutes, stating
the cause therefor, appoint some suitable person to perform for the
time being, or for the trial of such accused person, the duties of such
prosecuting attorney, and the person so appointed has all the powers
of the prosecuting attorney, while so acting as such.
Historical: Laws 1899, 24, Sec. 2;
re-enacting Laws 1897. 74, Sec. 2.
Appointment of Special Attorney:
Where there is no district attorney
for a district, or where he is absent
from the court, or is under any of the
disabilities herein enumerated, the
District Court may appoint a person
for the time being to fulfill the duties
of district attorney, and such ap-
pointee has all the. powers of the dis-
trict attorney, and may receive such
compensation as the court may allow
out of the salary of the district at-
torney. Conger v. Board of Commis-
sioners (1897) 5 Ida. 347; 48 Pac.
1046.
The court may appoint a suitable
person to perform, for the time being,
the duties of the county attorney, only
on the occurrence of some of the con-
tingencies that disqualify the county
attorney from performing the duties
of his office. The appointment of a
special attorney to appear before the
grand jury on the ground that the
county attorney was engaged in other
business, is void, and an indictment
returned by the grand jury before
which such special attorney appeared
should be quashed. State v. Barber
(1907^) 13 Ida. — ; 88 Pac. 418.
Same — Disqualification: A person
is not disqualified from acting as
county attorney pro tern, by reason of
having been an attorney for a min-
ing company in a civil case, though it
is claimed that the criminal action,
for which such attorney is especially
appointed, is being prosecuted at the
Ch. 3. Art. 9.
OFFICERS — PROSECUTING ATTORNEY
879
instigation of such mining company.
State v. Corcoran (1900) 7 Ida. 220;
61 Pac. 1034.
An attorney is not disqualified from
acting as county attorney by reason
of his residence in another county. lb.
Powers of Appointee: A properly
appointed county attorney pro tern.,
being for the time the de facto coun-
ty attorney and clothed with the pow-
ers and duties of that officer, is au-
thorized to appear before the grand
jury. lb.
Unauthorized Appointment : Where
the county commissioners employ an
attorney generally to act for the
county, and such contract is declared
void because it violates this section,
the attorney so employed cannot
maintain an action in quantum meruit
for the value of the services rendered
by him for the county. Hampton v.
Board of Commissioners (1896) 4 Ida.
646; 43 Pac. 324.
Duties.
Sec. 2082. It is the duty of the prosecuting attorney :
1. To prosecute or defend all actions, applications or motions,
civil or criminal, in the District Court of his county in which the
people or the State or the county are interested, or are a party; and
when the place of trial is changed in any such action or proceeding
to another county, he must prosecute or defend the same in such
other county.
2. To prosecute all criminal actions before the probate and jus-
tices' courts of his county when called upon by said courts, and upon
the request of magistrates to conduct criminal examinations which
may be had before such magistrates, and to prosecute or defend
all civil actions before the probate and justices' courts of the county,
in which the people or the State or the county are interested or a
party.
3. To give advice to the board of county commissioners, and
other public officers of his county, when requested in all public
matters, in which the people or the State or the county are interested
or a party.
4. To attend, when requested by any grand jury for the purpose
of examining witnesses before them; to draw bills of indictments,
informations and accusations; to issue subpoenas and other process
requiring the attendance of witnesses.
5. On the first Monday of each month to settle with the auditor,
and pay over all money collected or received by him during the pre-
ceding month, belonging to the county or State, to the county treas-
urer, taking his receipt therefor, and to file, on the first Monday of
January in each year, in the office of the auditor of his county, an
account verified by his affidavit, of all money received by him during
the preceding year by virtue of his office, for fines, forfeitures, penal-
ties or costs, specifying the name of each person, from whom he
receives the same, the amount received from each, and the cause
for which the same was paid.
6. To perform all other duties required by him of any law.
Historical: Laws 1899, 24, Sec. 3;
re-enacting Laws 1897, 74, Sec. 3.
Cross Reference: Election and
Qualifications: Const. Art. 5, Sec. 18.
To prosecute officers failing to
make reports: Sec. 281.
To sue road overseers for penalty
'or failure to report or to pay over
money: Sec. 915.
To sue defaulting leasees of high-
ways for forfeiture of lease: Sec. 9 74.
Prosecution of toll companies for
refusal to repair roads: Sec. 1011.
To sue for fines incurred for operat-
ing a shearing corral without a li-
cense: Sec. 1208.
To prosecute violations of the medi-
cal examiners' act: Sec. 1355.
To prosecute violations of the chap-
ter relating to the practice of op-
tometry: Sec. 1383.
To prosecute violations of the chap-
Vol. 1—29
880
COUNTIES
Tit. 11
ter relating- to the practice of phar-
macy: Sec. 1400.
To prosecute violations of the child
labor law: Sec. 1473.
To complain of violations of the
liquor law: Sec. 1526.
To sue assessor for taxes not cal-
lected or not assessed; Sec. 1813; for
failure to make settlement with
auditor: Sec. 1819; to sue for taxes
sought to be evaded: Sec. 1820.
To prosecute suits to recover license
taxes: Sec. 1835.
To sue to recover transfer taxes due
and unpaid: Sees. 1891, 1897.
To make settlements of transactions
connected with the revenue: Sec. 1822.
To bring1 suit to cancel State high-
way leases at the direction of the
State Highway Commission: Sec. 1074.
To prosecute violations of the law
relating to the sales of timber on
State lands: Sec. 1598.
To bring suits to recover expenses
incurred by horticultural inspectors in
eradicating fruit pests: Sec. 1315.
To enforce compliance by county
officers with instructions of the State
Examiner: Sec. 176.
To give legal advice and conduct
prosecutions for State Examiner: Sec.
186.
To render assistance to the Dairy,
Food and Oil Commissioners, and to
prosecute violations of the dairy, food
and oil law: Sec. 1121.
For duties in criminal cases in gen-
eral, see Penal Code.
Cited: State v. Corcoran (1900) 7
Ida. 220; 61 Pac. 1034; State v. Bar-
ber (1907) 13 Ida. — •; 88 Pac. 418.
Duties of Attorney: It is the duty
of the district attorney to prosecute all
criminal cases, and to prosecute or
defend all actions, applications or mo-
tions in civil or criminal cases when
the State or any of the counties of
his district are interested, and also to
give advice to the boards of county
commissioners and other public offi-
cers in his district. Conger v. Board
of Commissioners (1897) 5 Ida. 347;
48 Pac. 1064. It is the duty of the
district attorney to prosecute an ac-
tion to foreclose a school fund mort-
gage without extra compensation.
State v. Fitzpatrick (1897) 5 Ida. 499;
51 Pac. 112.
Special Counsel: This section does
not preclude private counsel from ap-
pearing for the State in criminal
cases. People v. Biles (1885) 2 Ida.
114; 6 Pac. 120. State v. Steers
(1906) 12 Ida. 174; 85 Pac. 104.
Receipts for Money Collected.
Sec. 2083. When any prosecuting attorney receives any money for
fines, forfeitures, penalties or costs, he must deliver to the person
paying the same duplicate receipts therefor, one of which must be
filed by such person in the office of the county auditor.
Historical: Laws 1899. 2 4, Sec. 4;
re-enacting Laws 1897, 74, Sec. 4.
Prohibitions.
Sec. 2084. No prosecuting attorney must receive any fee or reward
for or on behalf of any prosecutor or other individual, for services
in any prosecution, or business to which it is his official duty to
attend or discharge; nor be concerned as attorney or counsel for
either party other than for the State, people or county, in any civil ac-
tion depending upon the same state of facts, upon which any crim-
inal prosecution commenced but not determined depends, and no
law partner of any county attorney must be engaged in the defense
of any suit, action or proceeding, in which said prosecuting attorney
appears on behalf of the people, State or county.
Historical: Laws 1899, 24, Sec. 5;
re-enacting Laws 1897, 74, Sec. 5.
Cross Reference: Penalty for attor-
ney defending when partner prose-
cutes: Sec. 6525.
Adviser of County Commissioners.
Sec. 2085. The prosecuting attorney is the legal adviser of the
board of commissioners; he must attend their meetings when re-
quired, and must attend and oppose all claims and accounts against
the county when he deems them unjust or illegal.
Ch. 3. Art. 10.
OFFICERS — SURVEYOR
881
Historical: Laws 1899, 2 4, Sec. 6;
re-enacting Laws 1897, 74, Sec. 7.
Appointment of Counsel for Accused.
Sec. 2086. Whenever upon the trial of a person in the District
Court, upon an information or indictment, it appears to the satis-
faction of the court that the accused is poor and unable to procure
the services of counsel, the court may appoint counsel to conduct
the defense of the accused, for which service such counsel must be
paid out of the county treasury, upon order of the Judge of the
court, as follows : In all cases of misdemeanor the sum of ten dollars ;
in all cases of felony other than murder the sum of twenty-five
dollars, and in cases of murder the sum of fifty dollars.
Historical: Laws 189 9, 2 6, Sec. 1;
re-enacting Laws 1897, 74, Sec. 6.
ARTICLE 10.
SURVEYOR.
Section
2093. County surveys to be made by
county surveyors.
2094. Commissioners to furnish rec-
ord books, etc.
2095. Surveys must conform to
United States manual.
Section
2087. Duties of surveyor.
2088. Lands divided by county lines.
2089. Same: Court may designate
surveyor.
2090. Survey when county surveyor
is interested.
2091. Establishment of county lines.
2092. County commissioners to pro-
cure plats.
Duties of Surveyor.
Sec. 2087. The surveyor of each county shall :
1. Make any survey that may be required by order of court, or
on application of any person.
2. Keep a fair and correct record of all official surveys made by
himself or deputy in good and substantial books, which shall be
furnished him by the county commissioners for that purpose. All
records of road surveys and county boundary lines shall be kept in
separate books. All of such records and accompanying plats he shall,
at the expiration of his term of office, turn over to his successor in
office, together with the records and plats received by him from his
predecessor in office.
3. Number his surveys progressively with date, township, range,
section and name of party for whom it is executed. The mode of
writing field notes and preoaring plats shall be in the same manner
as prescribed for the guidance of United States deputy surveyors,
as nearly as practicable.
4. Deliver a copy of any survey to any person or court requiring
the same on payment of the fee allowed by law.
5. All corners established or re-established shall be of stone or
other imperishable material placed securely in the ground and of
such dimensions as required by the United States manual. The
marks so placed on said corners, when section or quarter-section,
shall be the same as prescribed by said United States manual, with
the additional letters C. S. (for county survey). All other corners
882
COUNTIES
Tit. 11
in the interior of a section shall be so marked to indicate what they
represent, in addition to the letters C. S. The same instructions
apply to the marking of bearing trees and bearing objects.
Historical: Rev. St. 1887, Sec. 2067
(first three lines of section), combined
with Laws 18 99, 2 95, Sec. 3; re-enact-
ing Laws 18 97, 19, Sec. 3.
California Legislation: See Pol.
Code 1872, Sec. 4268; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: County surveyor
to run division lines in case of dis-
putes between adjoining land owners
as to the location or partition fences:
Sec. 1273.
Lands Divided by County Lines.
Sec. 2088. Any person owning or claiming lands which are divided
by county lines, and wishing to have the same surveyed, may apply
to the surveyor of any county in which any part of such lands are
situated, and such survey shall be as valid as though the lands were
situated entirely within the county. Each chainman or flagman,
employed by the county surveyor or his deputy on an official survey,
shall, before commencing the duty assigned to him, take an oath
(or affirmation) to faithfully and impartially execute the duties
assigned to him, which oath (or affirmation) the county surveyor
is authorized to administer. If a party for whom a survey is made
does not furnish the chainman and markers, the surveyor may em-
ploy such necessary assistants, and receive a reasonable hire for all
employed.
Historical: Laws 189 9, 295, Sec. 4;
re-enacting Laws 1897, 19, Sec. 4.
Same : Court May Designate Surveyor.
Sec. 2089. When land, the title to which is in dispute, before any
court, is divided by a county line, the court making an order of
survey may direct the order to the surveyor of any county in which
any part of the land is situated.
Historical: Rev. St. 1887, Sec. 2 06 9.
1 Ter. Ses. (1864) 475, Sec. 181.
California Legislation: Same: Pol.
Code 1872, Sec. 4270; Deering's Code,
ib.; Kerr's Code, ib.
Survey When County Surveyor Is Interested.
Sec. 2090. When it shall appear that the county surveyor is in-
terested in any tract of land, the title of which is in dispute before
the court, the court shall direct the survey or re-survey to be made
by some capable person, who is in no wise interested, who shall be
authorized to administer oaths in the same manner as the county
surveyor is directed to do, and shall return said survey or re-survey
on oath or affirmation, and shall receive for his services the same
fees that the county surveyor would receive for like services.
Historical: Laws 1899, 295, Sec. 2;
re-enacting Laws 1897, 19, Sec. 2.
Establishment of County Lines.
Sec. 2091. Whenever it shall be ordered by an act of the Legis-
lature to establish the boundary line between two counties, the board
of county commissioners of each county interested in the boundary
shall authorize the county surveyors of said counties to jointly estab-
Ch. 3. Art. 10. OFFICERS — SURVEYOR 883
lish said boundary, and firmly plant and mark corners and monu-
ments of imperishable material, also to prepare plats and field notes
jointly, one copy of which shall be filed with the auditor and re-
corder of each of the counties so interested. The fees and compensa-
tions for such surveys, plats and field notes, as hereinafter provided,
shall be paid out of the county treasury upon the order of the county
commissioners of each county to the respective surveyors so em-
ployed.
Historical: Laws 1899, 2 95, Sec. 6;
re-enacting- Laws 1897, 19, Sec. 6.
County Commissioners to Procure Plats.
Sec. 2092. The board of county commissioners shall, when neces-
sary and recommended by the county surveyor, procure from the
Surveyor General of the United States for the State of Idaho, a
certified copy of the plats and extract of the field notes of the United
States surveys or any part thereof lying within the county, and file
the same in the office of the county surveyor. No county surveyor,
thus provided with plats and notes, when called upon to execute
any survey, shall make any charge for furnishing the same. A copy
from said plats and notes, certified to by the county surveyor, shall
be legal evidence in any court.
Historical: Laws 1899, 2 95, Sec. 7;
re-enacting Laws 1897, 19, Sec. 7.
County Surveys to Be Made by County Surveyors.
Sec. 2093. All surveys, maps and plats ordered by the board of
county commissioners shall be made by the county surveyor, unless
the office of county surveyor shall be vacant; in such case the sur-
veyor appointed by the board shall be governed by the provisions
of this article in the performance of his duty, and shall receive the
same fees that are allowed to county surveyors.
Historical: Laws 1899, 295, Sec. 8; Cross Reference: Fees of county
re-enacting Laws 1897, 19, Sec. 8. surveyors: Sec. 2125.
Commissioners to Furnish Books, Etc.
Sec. 2094. The board of county commissioners shall furnish the
county surveyor with all necessary blanks, record books, plat books,
etc., for the keeping of notes and records, as herein required.
Historical: Laws 1899, 2 95, Sec. 9;
re-enacting Laws 1897, 19, Sec. 9.
Surveys Must Conform to United States Manual.
Sec. 2095. No surveys or re-surveys hereafter made by the county
surveyor or other surveyor, shall be considered legal evidence in any
court within the State, except such surveys as are made in accord-
ance with the United States manual of surveying instructions, the
circular on restoration of lost or obliterated corners and subdivision
of sections, issued by the general land office, or by the authority
of the United States, the State of Idaho, or by mutual consent of
the parties.
Historical: Laws 1899, 295, Sec. 1;
re-enacting Laws 1897, 19, Sec. 1.
884
COUNTIES
Tit. 11
ARTICLE 11.
CORONER.
Section
2096. Inquests.
Burial of unclaimed bodies.
Disposal of property found on
corpse.
Verified statement required of
coroner.
2097.
2098.
2099.
Section
2100. Justice of the peace to act as
coroner.
2101. Coroner to act as sheriff.
2102. Same: Powers when so acting.
Inquests.
Sec. 2096.
Penal Code.
The coroner must hold inquests as prescribed in the
Historical: Rev. St. 1887, Sec. 20 80.
California Legislation: Similar: Pol.
Code 1872, Sec. 4285; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Coroner's
quests: Sees. 8377-8386.
m-
Burial of Unclaimed Bodies.
Sec. 2097. When an inquest is held by the coroner, and no other
person takes charge of the body of the deceased, he must cause it
to be decently interred; and if there is not sufficient property be-
longing to the estate of the deceased to pay the necessary expenses
of the burial, the expenses are a legal charge against the county.
Historical: Rev. St. 1887, Sec. 2081.
8 Ter. Ses. (1875) 566, Sec. 22.
California Legislation : Same: Pol.
Code 1872, Sec. 4286; Deering's Code,
ib.; Kerr's Code, ib.
Disposal of Property Found on Corpse.
Sec. 2098. The coroner must, within thirty days after an inquest
upon a dead body, deliver to the county treasurer or the legal rep-
resentatives of the deceased, any money or other property found
upon the body.
Historical: Rev. St. 1887, Sec. 2082.
See 8 Ter. Ses. (1875) 566, Sec. 15.
California Legislation : Same: Pol.
Code 1872, Sec. 4287; Deering's Code,
ib.; Kerr's Code, ib.
Verified Statement Required of Coroner.
Sec. '2099. Before auditing or allowing the accounts of the coroner,
the commissioners must require him to file with the clerk of the board
a statement in writing, verified by his affidavit, showing :
1. The amount of money or other property belonging to the
estate of a deceased person which has come into his possession since
his last statement;
2. The disposition made of such property.
Historical: Rev. St. 188 7, Sec. 2083.
Sec. 8 Ter. Ses. (1864) 566, Sec. 18.
California Legislation: Same except
"supervisors" for "commissioners":
Pol. Code 1872, Sec. 4288; Deering's
Code, ib.; Kerr's Code, ib.
Justice of the Peace to Act as Coroner.
Sec. 2100. If the office of coroner is vacant, or he is absent or
unable to attend, the duties of his office may be discharged by any
justice of the peace of the county, with the like authority, and subject
to the same obligations and penalties, as the coroner.
Ch. 3. Art. 13.
OFFICERS — INFERIOR OFFICERS
885
Historical: Rev. St. 1887, Sec. 208 4.
Ter. Ses. (1875) 566, Sec. 19.
California Legislation: Same: Pol.
Code 1872, Sec. 4289; Deering's Code,
ib. ; Kerr's Code, ib.
Coroner to Act as Sheriff.
Sec. 2101. The coroner must perform the duties of sheriff in all
cases where the sheriff is interested, or otherwise incapacitated from
serving, and in cases of vacancy by death, resignation or otherwise,
in the office of sheriff, the coroner must discharge the duties of such
office until a sheriff is appointed or elected and qualified.
Historical: Rev. St. 188 7, Sec. 2085,
8 Ter. Ses. (1875) 566, Sec. 2.
California Legislation: See Pol.
Code 1872, Sec. 4290; Deering's Code,
ib.; Kerr's Code, ib.
Employment of Coroner: Martial
law having been declared to exist in
a certain county, and the sheriff be-
ing detained by the military authori-
ties, the District Court has power to
direct the coroner to perform the du-
ties of the office of sheriff. State v.
Corcoran (1900) 7 Ida. 220; 61 Pac.
1034.
Same: Powers When So Acting.
Sec. 2102. Whenever the coroner acts as sheriff, he possesses the
powers, and may perform all the duties, of sheriff, and is liable on
his official bond, in like manner as a sheriff would be ; and is entitled
to the same fees as are allowed by law to the sheriff for similar
services.
Historical: Rev. St. 1887, Sec. 2086.
8 Ter. Ses. (1875) 566, Sec. 3.
ARTICLE 12.
COUNTY SUPERINTENDENT OF PUBLIC INSTRUCTION.
Section
2103. Powers and duties.
Powers and Duties.
Sec. 2103. The election, powers and duties of the county super-
intendent of public instruction are provided for in Title 4, Chapter 6,
of this Code.
Historical: New section by commis-
sioner.
ARTICLE 13.
JUSTICES OF THE PEACE AND INFERIOR OFFICERS.
Liability on bond.
Conservators of the peace.
Power to deputize.
Appointment of special con-
stable.
Same: Record of appointment.
Duties of Justices of the Peace.
Sec. 2104. Justices of the peace must perform such duties as are
prescribed in the Code of Civil Procedure, and such other duties as
are prescribed by law.
Section
Secti<
2104.
Duties of justices of the peace.
2110.
2105.
Duties of constable.
2111.
2106.
Same: Execution and return
2112.
of process.
2113.
2107.
Failure to return process.
2108.
Neglect to levy execution.
2114.
2109.
Failure to pay over money.
886
COUNTIES
Tit. 11
Historical: Rev. St. 1887, Sec. 2092.
California Legislation: Same except
"Title 12, Part 2, of" inserted before
"the Code of Civil Procedure": Pol.
Code 1872, Sec. 4316: Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: To reside in pre-
cinct: Sec. 3885.
To perform duties of police judge
in case of vacancy in office or absence
of judge: Sec. 2217.
May take acknowledgments: Sec.
3124.
Fee for solemnizing marriages: Sec.
2626.
To perform duties of constable in
inspecting animals for shipment
where the constable cannot be found1
Sec. 1250.
Duties with respect to impounding
diseased animals: Sec. 1215.
May call meetings of corporations:
Sec. 2734.
To appoint viewers in disputes as
to partition fences: Sec. 1269.
Duties of Constable.
Sec. 2105. Constables must attend the courts of justices of the
peace within their precincts whenever so required, and within their
counties execute, serve and return all process and notices directed
or delivered to them by a justice of the peace of such county, or by
any competent authority.
Historical: Rev. St. 188 7, Sec. 2090.
1 Ter. Ses. (1864) 475, Sec. 154.
"Precincts" inserted for "townships"
to conform to local nomenclature.
California Legislation: Same except
"townships" for "precincts": Pol.
Code 1872, Sec. 4314; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Duties in taking
up estrays: Sees. 1299-1301. To sell
stallions taken up for running at
large: Sec. 1286. To prosecute per-
sons permitting stock to run at large
in towns: Sec. 1290. To levy on prop-
erty to pay damages for hog trespass:
Sec. 12 81. To impound diseased ani-
mals and slaughter the same on or-
der of justice of the peace: Sec. 1215.
To complain of violations of liquor
law: Sec. 1526. Duties on election
day: Sec. 421. To inspect brands on
animals before shipment: Sec. 1246.
Cited: Coombs v. Collins (1899) 6
Ida. 536; 57 Pac. 310.
Same: Execution and Return of Process.
Sec. 2106. In the execution, service and return of orders, writs,
process and papers, where there are no positive provisions of law
prescribing their duties, they must be governed by the laws relating
to sheriffs, so far as they are applicable.
Historical: Rev. St. 1887, Sec. 2091.
1 Ter. Ses. (1864) 475, Sec. 155.
(California Legislation : See Pol.
Code 1872, Sec. 4315; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Coombs v. Collins (1899) 6
Ida. 536; 57 Pac. 310.
Failure to Return Process.
Sec. 2107. For failing or refusing to return, as required by law,
any writ or process issued by a justice of the peace, or any paper
connected with any suit or proceeding before such justice, the con-
stable is liable to the party at whose instance the suit or process
has issued, or for whom the paper is to be served, in the sum of
fifty dollars, to be recovered of him and his sureties by motion,
before a justice of the peace of his precinct, five days' notice of the
motion having been given.
Historical: Rev. St. 1887, Sec. 2093.
1 Ter. Ses. (1864) 475, Sec. 156.
Neglect to Levy Execution.
Sec. 2108. If any constable to whom any writ of execution is de-
livered, neglects or refuses after being required by the creditor, his
agent or attorney, to levy upon or sell any property of the defendant,
Ch. 3. Art. 13. OFFICERS — INFERIOR OFFICERS 887
which is subject to execution, he and the sureties on his bond shall
be liable to the creditor for the value of such property.
Historical: Rev. St. 1887, Sec. 2094.
1 Ter. Ses. (1864) 475, Sec. 157.
Failure to Pay Over Money.
Sec. 2109. If any constable neglects or refuses to pay over any
money in his hands, which he has collected or received in his official
capacity, when demanded by the person entitled thereto, the amount
thereof, with thirty-five per cent damages and interest at the rate
of ten per cent per month from the time of demand, may be recovered
from such constable and his sureties.
Historical: Rev. St. 1887, Sec. 20 95.
1 Ter. Ses. (1864) 475, Sec. 158.
Liability on Bond.
Sec. 2110. For any official act-or any omission to perform any
duty required of him by law, the constable is liable on his bond to
any person injured.
Historical: Rev. St. 18 87, Sec. 2 096.
1 Ter. Ses. (1864) 475, Sec. 159.
Conservators of the Peace.
Sec. 2111. Constables are conservators of the peace within their
respective precincts.
Historical: Rev. St. 188 7, Sec. 2097.
See 1 Ter. Ses. (1864) 475, Sec. 160.
Power to Deputize.
Sec. 2112. No constable of any county of this State can appoint
or deputize any person to perform any of the duties of .his office
except in cases of riots or making arrests.
Historical: Rev. St. 1887, Sec. 2098.
5 Ter. Ses. (1869) 123, Sec. 1.
Appointment of Special Constable.
Sec. 2113. When a legally qualified constable does not reside in
any precinct, is absent therefrom, or is otherwise incapacitated or
prevented from performing the duties of his office, any justice of
the peace residing in said precinct is hereby authorized and em-
powered to appoint and deputize any person therein to act as special
constable, with full power and authority to perform such duties of
constable as said justice may specifically order or designate: Pro-
vided, That before serving any writ of attachment, making any levy
under a writ of execution, or making any arrest in a civil action,
such specially appointed constable shall be required to give a good
and sufficient bond in form and amount as required from a regularly
elected constable, the same to be first approved in writing thereon
by such justice of the peace, and thereafterward filed with the county
recorder.
Historical: Laws 1907, 158, Sec. 1.
888
COUNTIES
Tit. 11
Same: Record of Appointment.
Sec. 2114. Any justice of the peace appointing and deputizing any
person to act as special constable as provided in the preceding section,
shall make a record thereof in his docket, and shall designate therein
the specific and special purposes for which the appointment is made.
Historical: Laws 190 7, 158, Sec. 2.
Article
1. Salaries of officers.
CHAPTER 4.
SALARIES AND FEES OF OFFICE.
Article
2. Fees.
ARTICLE 1.
SALARIES OF OFFICERS.
Section
2115. Officers to receive salaries and
account for fees.
2116. Refusal to account is embez-
zlement.
2117. Salaries of commissioners:
Classification of counties.
Section
2118. Salaries of county officers.
2119. Appointment and compensa-
tion of deputies.
2120. Counties organized in future.
Officers to Receive Salaries and Account for Fees.
Sec. 2115. The salaries of county officers as full compensation for
their services must be paid quarterly from the county treasury, upon
the warrants of the county auditor, and before being paid to such
officers, must be allowed and audited by the board of commissioners
as other claims against the county, and no officer or deputy must re-
tain out of any money, in his hands belonging to the county, any
salary, but all actual and necessary expenses incurred by any county
officer or deputy in the performance of his official duty shall be a legal
charge against the county, and may be retained by him out of any
fees which may come into his hands. All fees which may come into
his hands from whatever source, over and above his actual and neces-
sary expenses, shall be turned into the county treasury at the end of
each quarter. He shall, at the end of each quarter, file with the clerk
of the board of county commissioners, a sworn statement, accompa-
nied by proper vouchers, showing all expenses incurred and all fees
received, which must be audited by the board as other accounts.
Historical: Laws 1899, 405, Sec. 1.
Cross Reference: County officers
and deputies shall receive quarterly-
salaries in full compensation for their
services and actual and necessary ex-
penses incurred in the performance
of their official duties, and shall turn
all fees received over and above ex-
penses into the county treasury:
Const. Art. 18, Sec. 7. To keep ac-
count of fees: Sec. 342.
Constitutionality: The act of which
this section was the first section
(Laws 1899, 405), is constitutional ex-
cept in so far as it authorizes county
commissioners to fix their own sal-
aries. Stookev v. Board of Commrs.
(1899) 6 Ida. 542; 57 Pac. 312. The
objectionable provision has been su-
perseded by Laws 1901, 226. (See Sec.
2117.)
Accounts of Officers: A bill of a
county officer for expenses incurred in
his official capacity while on official
business, can only be considered by
the commissioners as a part of the
officer's quarterly statement and can-
not be made an independent claim or
account. Clyne v. Bingham Co.
(1900) 7 Ida. 75; 60 Pac. 76.
A charge made by a county officer
for living expenses is not an expense
incurred in the performance of official
duty such as to be payable by the
county. lb.
It should fully appear from the of-
Ch. 4. Art. 1.
SALARIES OF OFFICERS
889
fleer's quarterly statement in what
manner and for what reasons the ex-
penses presented in such statement
were incurred. The statement should
be sworn to and be accompanied by
proper vouchers proving the disburse-
ments. The claim of an officer pre-
sented in the following- form: "August
13, State v. Dan Hopkins, hotel and
horse feed, $15.50", is a "lump sum"
and should not be considered. lb. An
account of an officer against the
county presented in the following
form: "Mileage, 8 miles, serving sub-
poenas, $2.80" is too indefinite to an-
swer the requirements of law. Ellis v.
Bingham Co. (1900) 7 Ida. 86; 60
Pac. 79.
An account of an officer against the
county for expense presented in the
following form: "State of Idaho v.
James Southwick, et al, serving nine
warrants of arrest, $18.00", is vague
and indefinite. Such account should
specify the names of the defendants
arrested, and show in what courts the
action was pending and specify in
general terms the charge in the war-
rant against the parties arrested. lb.
Accounting for Fees: Fees received
by the county treasurer in acting as
ex-ofncio public administrator, must
be accounted for and reported to the
county and cannot be retained by the
officer for his personal or individual
use. In re Rice (1906) 12 Ida. 305;
85 Pac. 1109.
The fees "received" by an officer
for which he must account to the
county, include fees earned, though
not collected, by the officer. Naylor
v. Vermont etc. Co. (18 98) 6 Ida.
251; 55 Pac. 297.
Refusal to Account Is Embezzlement.
Sec. 2116. Any county officer or deputy who shall neglect or re-
fuse to account for and pay into the county treasury any money re-
ceived as fees or compensation in excess of his actual and necessary
expenses, incurred in the performance of his official duties, within ten
days after his quarterly settlement with the county, shall be guilty of
embezzlement of public funds, and be punishable as provided for such
offense.
Historical: Laws 18 99, 405, Sec. 2.
Cross Reference: Similar provi-
sion: Const. Art. 18, Sec. 9. Embez-
zlement by public officers: Sec. 7066;
punishment: Sec. 7076.
Salaries of Commissioners: Classification of Counties.
Sec. 2117. For the purpose of fixing the annual salaries of county
commissioners in the several counties of the State of Idaho, the
counties are hereby divided into three classes.
The following counties shall constitute the counties of the first
class, to-wit : Idaho, Kootenai, Latah, Nez Perce, Shoshone, and Ada.
The following counties shall constitute the counties of the second
class, to-wit : Bannock, Blaine, Bingham, Boise, Canyon, Elmore, Fre-
mont, Oneida, Owyhee and Washington.
The following counties shall constitute the counties of the third
class, to-wit: Bear Lake, Cassia, Custer, Lemhi, Lincoln, and Twin
Falls.
The annual salaries of county commissioners in counties of the
first class shall be seven hundred dollars, and all actual and necessary
expenses ; for counties of the second class five hundred dollars, and all
actual and necessary expenses; for counties of the third class, three
hundred dollars, and all actual and necessary expenses. The term
"actual and necessary expenses" shall be deemed to include all trav-
eling expenses incurred by any county officer when absent from his
residence, in performance of the duties of his office.
Historical: Laws 1901, 226, Sees. 1,
2, 3. Twin Palls county is declared to
be a county of the third class by the
act creating it: See Laws 1907, 40,
Sec. 2. No provision was made in the
Bonner County act (Laws 1907, 47)
and as there is no reason for includ-
ing- the county in one class rather
than another, the Commissioner has
referred the matter to the Legislature.
890
COUNTIES
Tit. 11
Necessary Expenses: The actual
necessary expenses of county officers
include their board when absent from
their residence in the performance of
their official duties. Corker v. Pence
(1906) 12 Ida. 152; 85 Pac. 388.
Salaries of County Officers.
Sec. 2118. It shall be the duty of the board of county commission-
ers of each county, at its regular session in April next preceding any
general election, to fix the annual salaries of the several county offi-
cers, except prosecuting attorneys, to be elected at said general elec-
tion, for the term commencing on the second Monday in January next
after said meeting, and in no case shall the salary of any county officer
be less than the lowest amount hereinafter designated for such officer,
and in no case shall it be higher than the highest amount hereinafter
designated for such officer. The salary of prosecuting attorney shall
be fixed at the regular July session next preceding each general elec-
tion.
The sheriff shall receive a salary of not less than eight hundred
dollars per annum, and not to exceed two thousand dollars per annum ;
he shall be allowed in addition to such salary as fixed by said board,
the actual and necessary expenses for care of each prisoner confined in
Ihe county jail.
The clerk of the District Court and ex-officio auditor and recorder
shall receive a salary of not less than eight hundred dollars per annum
and not to exceed two thousand dollars per annum.
The assessor and ex-officio tax collector shall receive a salary of
not less than eight hundred dollars per annum, and not to exceed
three thousand dollars per annum.
The county treasurer shall receive a salary of not less than five
hundred dollars per annum and not to exceed fifteen hundred dollars
per annum.
The prosecuting attorney shall receive a salary of not less than
five hundred dollars per annum and not to exceed fifteen hundred
dollars per annum.
The probate judge shall receive a salary of not less than five hun-
dred dollars per annum and not to exceed fifteen hundred dollars per
annum.
The county superintendent of public instruction shall receive a
salary of not less than two hundred fifty dollars per annum, and not
to exceed twelve hundred dollars per annum.
The county surveyor shall receive a salary of not less than fifty
dollars per annum, and not to exceed eight hundred dollars per annum.
The coroner shall receive a salary of not less than fifty dollars per
annum, and not to exceed three hundred dollars per annum.
Historical: Laws 1899, 405, Sec. 3,
with the exception of the last para-
graph of the section which was held
unconstitutional in Stookey v. Board
of Commissioners, 6 Ida. 542; 57 Pac.
312. The paragraph is also supersed-
ed by Laws 1901, 226 (Code Sec.
2117). The provisos to the first para-
graph relative to fixing salaries for
the years 1899-1900 are omitted as
obsolete. "Prosecuting attorney" in-
serted for "county attorney" through-
out.
Cited: Mombert v. Bannock Co.
(1904) 9 Ida. 470; 75 Pac. 239.
Duty in Fixing Salaries: This act
does not delegate to the county com-
missioners a legislative power in the
matter of fixing the salaries of coun-
ty officers, but a quasi judicial power
under which the commissioners
should take into consideration the
various elements which go to deter-
mine what salary should be paid, and
from their determination an appeal
lies to the District Court as in other
cases. Reynolds y. Board of Commrs.
(1899) 6 Ida. 787; 59 Pac. 730.
Ch. 4. Art. 2.
FEES OF OFFICE
891
Appointment and Compensation of Deputies.
Sec. 2119. The sheriff, and the clerk of the District Court and ex-
officio auditor and recorder, shall be empowered by the board of
county commissioners to appoint such deputies and clerical assist-
ance as the business of their offices may require, said deputies to re-
ceive such remuneration as may be fixed by said board of county com-
missioners, which remuneration shall be paid quarterly in the same
manner as the salaries of the county officers are paid : Provided, That
any of the officers mentioned in this section requiring the services of
one or more deputies or requiring clerical assistance shall, for a
period of at least thirty days before any regular meeting of the board
of county commissioners, publish a notice in some newspaper at the
county seat, or if no newspaper is published at the county
seat, then in some other newspaper published in the county,
or if no newspaper be published in the county, then by posting a no-
tice in his office for a period of thirty days before said regular meet-
ing, of his intention to apply to the board of county commissioners for
a deputy or deputies or for clerical assistance, and no deputy shall
be appointed or clerical assistance allowed by said board until due
proof of the publication of said notice shall have been furnished said
board and the necessity for said assistance is satisfactorily shown, and
any taxpayer in the county shall have a right to appear before said
board and protest against said appointment and show cause why said
assistance should not be allowed : Provided, further, That during the
terms of the District Court, the District Judge may authorize said
officers to employ such temporary assistance as they may need, and
his certificate shall be sufficient proof to the board of the necessity
of such employment.
Historical: Laws 1899, 4 05, Sec. 4.
Cross Reference: General power of
county officers to appoint deputies:
Sec. 1975.
Counties Organized in the Future.
Sec. 2120. Counties created or organized hereafter shall be gov-
erned by the provisions hereof, and the boards of county commission-
ers of such newly created organized counties shall respectively fix and
determine at their first meeting the salaries to be paid the several
county officers as herein provided for.
Historical: Laws 1899, 405, Sec. 5.
"Hereafter" for "after the passage of
this act."
ARTICLE 2.
FEES.
Section
2121. Fees of clerk of District Court.
2122. Sheriff's fees.
2123. Probate judge's fees.
2124. Recorder's and auditor's fees.
2125. Fees of county surveyor.
2126. Fees of justice of the peace.
2127. Fees of constable.
2128. Fees to be prepaid.
2129. No fee in habeas corpus.
Section
2129a. No fee to be charged to pen-
sioners.
2130. Officers must publish table of
fees.
2131. Execution for fees.
2132. Folio defined.
2133. Limitation on mileage of offi-
cer.
2134. Receipt for fees.
892
COUNTIES
Tit. 11
Fees of Clerk of District Court.
Sec. 2121. The clerk of the District Court may lawfully charge,
demand and receive the following fees for services rendered in dis-
charging the duties imposed on him by law :
For entering each suit on the register of actions, and making the
necessary entries therein, twenty-five cents.
For issuing every summons, attachment, writ of injunction, or
other original writ or process, fifty cents.
For issuing each subpoena, ten cents.
For filing each paper, fifteen cents.
For entering of record every motion, rule, order, default, non-suit,
or discontinuance, twenty cents per folio.
For entering every cause on the calendar, and making a copy
thereof for the bar, for each term of court, fifty cents.
For calling and swearing every jury, fifty cents.
For receiving and entering each verdict of a jury, fifty cents.
For entering every final judgment, for each folio, twenty cents.
For making a copy of any paper or record, including certificate,
when required, for each folio, twenty cents.
For making and filing judgment roll, fifty cents.
For every certificate under seal, twenty-five cents.
For issuing every commission to take testimony, including cer-
tificate and seal, one dollar.
For taking down testimony or depositions, including oath, certifi-
cate and seal, for each folio, twenty cents.
For issuing every execution, or other final process, fifty cents.
For issuing every decree or order of sale, certificate and seal, for
each folio, twenty cents.
For receiving and filing remittitur and accompanying papers from
the Supreme Court, twenty-five cents.
For taking each bond required by law, twenty-five cents.
For acknowledgment of deed, or other instrument, including seal,
twenty-five cents.
For swearing witnesses, ten cents.
For taking affidavit, including jurat, fifteen cents.
For entry of each case in judgment docket, fifty cents.
For entering satisfaction of judgment, twenty-five cents.
For filing and entering transcript of judgment from justice's
court, fifty cents.
For all services not herein enumerated and of him required, or
which he is called on to perform, such fees as are herein allowed for
similar services.
For final papers of naturalization, four dollars, which includes all
services in swearing witnesses, making minutes, recording, certify-
ing, and issuing such papers under seal.
Historical: Laws 18 99, 116, Sec. 1;
re-enacting Laws 1890-91, 174, Sec.
1. "Four dollars" inserted for "five
dollars" in the last paragraph. The
last naturalization law (act Congress,
June 29, 1906; see Codes, page 61,
ante), Sec. 13, fixes the clerk's fees
at four dollars, and Sec. 21 makes it
a misdemeanor for the clerk to
charge or receive a greater fee. Con-
gressional legislation must control in
case of a conflict with State laws on
this subject. See U. S. Const. Art. 1,
Sec. 8. i
Ch. 4. Art. 2. fees OF office 893
Sheriff's Fees.
Sec. 2122. The sheriff is allowed and may demand and receive the
fees hereinafter specified :
1. For serving a summons and complaint, or any other process
by which an action or proceeding is commenced, on each defendant,
one dollar.
2. For serving an attachment on property, or levying an execu-
tion, or executing an order of arrest, or order for the delivery of
personal property, one dollar.
3. For his trouble and expense in taking and keeping possession
of and preserving property under attachment or execution, or other
process, such sum as the court may order: Provided, That no more
than three dollars per diem be allowed to a keeper.
4. For taking a bond or undertaking in any case in which he is
authorized to take the same, fifty cents.
5. For copy of and making return on any writ, process, or other
paper, when demanded or required by law, for each folio, twenty
cents.
6. For serving every notice, rule or order, fifty cents.
7. For making and posting notices, and advertising property for
sale on attachment or execution, or under any judgment or order
of sale, exclusive of the costs of publication, each notice, twenty cents
per folio.
8. For serving a writ of possession or restitution, putting a per-
son in possession of premises and removing the occupant, three dollars.
9. For holding each inquest, or trial of right of property, to in-
clude all services in the matter except mileage, three dollars.
10. For serving a subpoena, for each witness summoned, twenty-
five cents.
11. For commissions for receiving and paying over money on
execution or other process, when land or personal property has been
levied on and sold, on the first one thousand dollars, two per cent;
on all sums above that amount one per cent; but in no case of sale
of real estate shall his commission exceed the sum of one hundred
dollars, and when the amount of such sale is credited on the debt
and no money is transferred, then one-half of such commission.
12. For commissions for receiving and paying over money on
execution without levy, or where lands or goods levied on are not
sold, on the first one thousand dollars, one and one-half per cent;
and one-half of one per cent on all over that sum, but not to exceed
in any case fifty dollars. The fees herein allowed for the levy of an
execution, costs for advertising and percentage for making or col-
lecting the money on execution, must be collected from the judgment
debtor by virtue of such execution, in the same manner as the sum
therein directed to be made.
13. For drawing and executing a sheriff's deed, including the
acknowledgment, to be paid by the grantee before delivery, three
dollars.
14. For executing a certificate of sale, exclusive of the filing and
recording the same, one dollar.
15. For making every arrest in a criminal proceeding, two
dollars.
894
COUNTIES
Tit. 11
16. For summoning each juror, twenty-five cents.
17. For serving a subpoena in a criminal action or proceeding,
for each witness summoned, twenty-five cents.
18. For traveling, to be computed in all cases from the court
house, to serve any summons and complaint, or any other process
by which an action or proceeding is commenced, notice, rule, order,
subpoena, venire, attachment on property, to levy an execution, to
post notice of sale, to sell property under execution or other order
of sale, or execute an order of arrest, or order for the delivery of
personal property, writ of possession or restitution, to hold inquest
of trial of right of property, for each mile actually and necessarily
traveled, in going only, thirty-five cents ; for traveling to execute any
warrant of arrest, subpoena, venire or other process in criminal cases,
or for taking a prisoner from prison before a court or magistrate,
or for taking a prisoner from the place of arrest to prison, or before
a court or magistrate, for each mile actually and necessarily traveled,
in going only, thirty-five cents; for each additional prisoner taken
at the same time, fifteen cents per mile ; but if any two or more papers
be required to be served in the same action or proceeding, civil or
criminal, or be in the possession of the sheriff for service at the same
time, and in the same direction, one mileage only shall be charged;
and in serving a subpoena, venire, process or paper, when two or
more jurors, witnesses, parties or persons to be served reside or are
found in the same direction, traveling fees must be charged only
for the most distant ; and only one mileage per day must be charged
for taking a prisoner from prison before a court or magistrate; and
constructive mileage must in no case be charged or allowed. For all
services arising in justices' courts, the same fees as are allowed to
constables for like services.
19. The sum of not more than one dollar per day for each prisoner
confined in the county jail, as remuneration in full for the board,
clothing and lights of such prisoner. He shall be allowed a jailor,
for whose services he shall be allowed the sum of not less than two
dollars, nor more than three dollars per day for each day a prisoner
or prisoners are confined in the county jail of his county, to be fixed
by the board of county commissioners. For all services under the
election laws, the same mileage and fees as in this article provided
for similar services.
Historical: Laws 1899, 116, Sec. 2;
re-enacting- Laws 1890-91. 174, Sec. 2.
Omitting subd. 19 prescribing fees for
executing death sentence, as obsolete
under Laws 1899. 340, Sec. 5 (Code
Sec. 8021), by which the warden of
the penitentiary executes the death
sentence.
Attendance on Courts: The sheriff
is not entitled to compensation for
attendance upon the District or any
other courts. Campbell v. Commrs.
Logan Co. (1894) 4 Ida. 181; 37 Pac.
329; Eakin v. Nez Perce Co. (1894)
4 Ida. 131; 36 Pac. 702.
Board of Prisoners: The sheriff
must file vouchers for expenses in-
curred by him in boarding county
prisoners in order to have his claim
therefor allowed. Mombert v. Ban-
nock Co. (1904) 9 Ida. 470; 75 Pac.
239.
The sheriff, and the sheriff alone, is
entitled to receive compensation from
the county for the board of prisoners;
a private person who furnished such
board carinot enforce a claim against
the county for compensation. (Stock-
slager, J., dissents.) lb.
Commissions: Where a sheriff col-
lects his commission for the sale of
land on execution, he cannot charge
another commission on money subse-
quently paid for redemption from
said sale. Coeur d'Alene Hdw. Co. v.
Cameron (1895) 4 Ida. 494; 42 Pac.
F09.
Ch. 4. Art. 2.
FEES OF OFFICE
895
Mileage: A sheriff is entitled to
mileage for taking a prisoner from
the place of arrest to prison, or before
a court or magistrate, regardless of
whether the prisoner was arrested
with or without a warrant. Warner
v. Fremont Co. (1895) 4 Ida. 591; 43
Pac. 32 7. A sheriff is not entitled to
double mileage for serving different
writs in the same case, at the same
piac- and at the same time. Ellis v.
Bingham Co. (1900) 7 Ida. 86; 60
Pac. 79.
Expenses Under Attachment :
Keepers' fees can only be allowed by-
order of court, and the prevailing
party is not entitled to recover keep-
ers' fees that have not been allowed
by order ol court. Berry v. G. V. B.
Mining Co. U897) 5 Ida. 691; 51 Pac.
746.
Expense incurred by the sheriff in
hauling lumber taken under a writ
of attachment, from the sawmill
where it was attached, to a neighbor-
ing town, for the purpose of sale, is
an unnecessary expense and not tax-
able as costs in the case. MCConnell
v. McCormick (1891) 3 Ida. 227; 28
Pac. 421.
Probate Judge's Fees.
Sec. 2123. The probate judge may charge and collect the following
fees: When sitting as a committing magistrate in preliminary ex-
aminations, three dollars ; for the trial of criminal causes, five dollars ;
for issuing warrant of arrest, fifty cents ; for taking bail after com-
mitment, fifty cents; for examination of insane person, five dollars.
The clerk of the probate court, or the probate judge acting as clerk, is
allowed, and may demand and receive, the fees hereinafter specified:
The same fees allowed the clerk of the District Court or justice of the
peace for the same services; for issuing letters testamentary, or of
administration, or of guardianship, fifty cents ; for writing and post-
ing all the required copies of each notice required to be posted, fifty
cents; for each notice, including all the copies, for publication and
posting, in addition to costs of publication, fifty cents ; for recording
wills or other papers required by law to be recorded, for each folio,
twenty cents ; for copies of all papers or proceedings in the probate
court, including certificate and seal, when required, for each folio,
twenty cents; for entering each order, for each folio, twenty cents;
for all other services, the same fees as are allowed the clerk
of the District Court for like services: Provided, That if upon
the filing of the appraisement of any estate it appears that the whole
estate is not of the value of one thousand dollars, no further clerk's
fees must be charged.
fees fall below the minimum salary,
as superseded by Laws 1899, 405 (Code
Sees. 2115-2120) establishing the sal-
ary system.
Historical: Laws 18 99, 116, Sec. 3;
re-enacting Laws 1890-91, 174, Sec. 3.
Omitting the sentence providing for
the payment of compensation when
Recorder's and Auditor's Fees.
Sec. 2124. The county recorder and auditor is allowed, and may
receive for his services, the following fees, to be paid him by the
party procuring his services as recorder: For filing, indorsing and
indexing every instrument, paper or notice, when the instrument,
paper or notice is not for record, but to be kept on file, fifty cents;
for recording every instrument, paper or notice, for each folio, twenty
cents ; for copies of any record or paper, for each folio, twenty cents ;
for each certificate under seal, when required, twenty-five cents ; for
abstract of title and searching the records therefor, and for each
conveyance or incumbrance certified, fifty cents; for entry of dis-
charge of mortgage or other instrument on the margin of the record,
witnessing and indexing the same, twenty-five cents; for recording
every town plat or map, for first one hundred lots or less, three dollars
896
COUNTIES
Tit. 11
and fifty cents; and for each additional lot, one cent; for taking
acknowledgments, including seal, fifty cents ; for filing, recording and
indexing marriage certificates, one dollar; for administering to the
locator the oath and certifying the same on the location notice of a
mining claim, and for filing, recording and indexing each notice, two
dollars, which must be divided equally between him and his mining
deputy, who receives such notice ; for recording each mark or brand,
fifty cents; for administering an oath, including jurat, twenty-five
cents, and certifying the same when required, twenty-five cents addi-
tional; for all other services as recorder, not enumerated herein, the
same fees allowed the clerk of the District Court for like services.
As the auditor, he is allowed and may receive, when not otherwise
provided by law, fees as follows : For administering each oath, in-
cluding a jurat, if required, twenty-five cents; for each paper filed,
ten cents; for making records or furnishing copies thereof, twenty
cents per folio.
Historical: Laws 189 9, 116, Sec. 4;
re-enacting- Laws 1890-91, 174, Sec. 4.
Omitting the provisions prescribing
the fees of the auditor in the assess-
ment and collection of taxes, and al-
lowing him a salary as clerk of the
board of county commissioners, as re-
pealed by Laws 18 99. 4 05 (Code Sees.
2115-2120) establishing the salary
system.
Cross Reference: For additional
fees of recorder, see cross reference
note to Sec. 2061.
Repeal: This section, in so far as
it relates to the compensation of the
auditor in the assessment and collec-
tion of taxes, repeals so much of Rev.
St. Sees. 1679 and 2157, subd. 5, as
relates to the same subject. Cun-
ningham v. Moody (1891) 3 Ida. 125;
35 Am. St. Rep. 269, 28 Pac. 395.
Fees of County Surveyor.
Sec. 2125. The county surveyor shall be allowed fees for his
services as follows: For the first corner established in accordance
with Article 10 of Chapter 3 of this title, one dollar; for each addi-
tional corner, fifty cents; for every survey less than eighty chains,
two dollars and fifty cents; for every chain over eighty chains, three
cents per chain; for calculating the quantity of each tract of land,
one dollar; for recording field notes of each survey, twenty cents
per folio; for making a certified copy of field notes, twenty cents
per folio; for making or copying maps or plats, fifty cents per hour;
for traveling to place of survey, for each mile in going only, fifteen
cents; for surveying roads and county boundaries, including the pre-
paring and recording of plats and field notes, for each day necessarily
engaged in field work, six dollars ; for surveys or re-surveys of town
lots, three dollars for the first lot and one dollar for each additional
lot.
Historieal: Laws 1899, 2 9 5, Sec. 10;
re-enacting Laws 1897, 19, Sec. 10.
"Article 10 of Chapter 3 of this title"
for "act", as the balance of the act
from which this section is taken is
found in that article.
Fees of Justice of the Peace.
Sec. 2126. A justice of the peace may charge, demand and receive
the following fees for services performed in discharge of the duties
imposed upon him by law: For filing each paper, fifteen cents; for
issuing any summons, writ or process by which action is commenced,
fifty cents ; for entering such cause on his docket, including all docket
entries before judgment, fifty cents; for subpoena to witness, twenty-
five cents; for administering an oath or affirmation, including jurat
Ch. 4. Art. 2.
FEES OF OFFICE
897
and certificate, fifteen cents; for issuing writ of attachment, or of
arrest, or for delivery of property, one dollar ; for entering any final
judgment, for each folio, twenty-five cents; for taking and approving
any bond or undertaking directed by law to be taken or approved
by him, fifty cents; for taking justification to bond or undertaking
when required by law, after exception to sureties, fifty cents; for
swearing a jury, fifty cents; for taking deposition, per folio, twenty
cents; for entering satisfaction of judgment, twenty-five cents; for
copy of judgment, order, docket, proceedings, or paper in his. office,
per folio, twenty cents; for issuing commission to take testimony,
fifty cents ; for making up and transmitting transcript and papers
on appeal, two dollars; for making up and transmitting papers on
change of venue, including copy, certificate and order, one dollar;
for issuing search warrant, fifty cents; for issuing an execution,
fifty cents; for celebrating marriage and returning certificate to the
recorder, five dollars ; for all services and proceedings before a justice
of the peace, in a criminal action or proceeding on examination, when
an examination is not waived, or trial upon an issue of fact, six dol-
lars; when an examination is waived or there is a plea of guilty,
three dollars ; for taking bail after commitment in criminal cases,
fifty cents; for entering an action without process, fifty cents; for
entering judgment by confession on only an affidavit as required in
the District Court, in full for all services before execution, one
dollar.
Historical: Rev. St. 18 8 7, Sec. 2135.
See 11 Ter. Ses. (1881) 248, Sec. 1.
Fees of Constable.
Sec. 2127. A constable is allowed and may collect and receive for
any services required of him by law, fees as follows: For serving
summons in civil cases, for each defendant, fifty cents; for summon-
ing a jury before a justice of the peace, one dollar and fifty cents;
for taking a bond required to be taken, fifty cents; for summoning
each witness, twenty-five cents; for serving an attachment against
the property of the defendant, one dollar; for receiving and taking
care of property on execution, attachment or order, his actual neces-
sary disbursements and expenses, to be allowed by the justice who
issued the process, upon satisfactory oroof that such charges are
correct, not to exceed two dollars per day: for collecting all sums of
money on execution, three per centum to be charged against the de-
fendant in the execution; for serving a warrant or order for the
delivery of personal property or making an arrest in civil cases, one
dollar; constables must receive mileage at the rate of twenty cents
per mile for each mile necessarily traveled, in going only ; for services
in criminal cases, the same fees as sheriffs are authorized to receive
for like services; for all other services, except attending court, the
same fees as are allowed sheriffs for similar services.
Historical: Rev. St. 18 87, Sec. 2136.
See 8 Ter. Ses. (1875) 566, Sec. 34.
The provision fixing the constable's
mileage is taken from Rev. St. Sec.
2126. The reason for the change is
given in the note, infra. No change is
made in the provision for services in
criminal cases except to omit the
words "and travel" for the reason that
sheriff's fees under the amendment of
1891, and 1899 referred to in the
case in the note, are the same as un-
der Rev. St. 2126, and the reference
therefore remains accurate.
898
COUNTIES
Tit. 11
Cross Reference: Fees for inspect-
ing cattle for shipment: Sec. 1248.
Fees with reference to estrays: Sec.
1299.
Fees in Criminal Cases: This sec-
tion allows constables to charge in
criminal cases the same fees which
were allowed sheriffs in such cases by
Rev St. Sec. 2126, and- does not allow
constables the fees which sheriffs
were entitled to under the act of 1891,
which amended Sec. 2126. Ellis v.
Bingham Co. (1900) 7 Ida. 86; 60
Pac. 79.
Fees to Be Prepaid.
Sec. 2128. The officers mentioned in this title are not in any case,
except for the State or county, to perform any official service unless
upon prepayment of the fees prescribed for such services by law,
except as in the succeeding sections provided; and Provided further*
That the Attorney General or any prosecuting attorney may cause
subpoenas to be issued on behalf of the State, without paying or
tendering fees in advance to any officers, and on such payment the
officer must perform the services required. For every failure or re-
fusal to perform official duty when the fees are tendered, the officer
is liable on his official bond.
Historical: Rev. St. 18 87, Sec. 2137.
The words "by law" are transposed
to clarify the construction, and the
further proviso is taken from Rev.
St. Sec. 2146, the balance of which
relates to witness' fees, and is trans-
ferred to C. C. P. Sec. 6143.
Cited: Rhea v. Board of Co.
Commrs. (1906) 12 Ida. 455; 88 Pac.
89.
Not Repealed: This section is not
amended or repealed by Laws 1891,
175, which fixes the fees of county
officers. Nay lor v. Vermont etc. Co.
(1S9S) 6 Ida. 251; 55 Pac. 297.
Action for Fees: This section enti-
tles officers to demand the prepay-
ment of fees as a condition precedent
to the performance of service, but
does not preclude such officers, in case
they do not demand prepayment,
from afterwards maintaining an ac-
tion to recover the fees allowed for
such services. lb.
No Fee in Habeas Corpus.
Sec. 2129. No fee or compensation of any kind must be charged
or received by any officer for duties performed or services rendered
in proceedings in habeas corpus; nor shall any county officer charge
any fee against, or receive any compensation whatever from, the
State for any services rendered in any action or proceeding in which
the State of Idaho, or any State board, or State officer in his official
capacity, is a party.
Historical: Rev. St. 1887, Sec. 2138;
amended Laws 1901, 162, Sec. 1.
California Legislation: Same
through "habeas corpus", line 3, rest
omitted: Pol. Code 1872, Sec. 4333;
Deering's Code, ib.; Kerr's Code, ib.
Cited: Naylor v. Vermont etc. Co.
(1898) 6 Ida. 251; 55 Pac. 297.
No Fee to Be Charged to Pensioners.
Sec. 2129a. No judge or clerk of court, county clerk, county auditor
or any other county officer shall be allowed to charge any honorably
discharged soldier or seaman, or the widow, orphan or legal repre-
sentative thereof, any fee for administering any oath or giving any
official certificate for the procuring of any pension, bounty or back
pay, nor for administering any oath or oaths and giving the certificate
required upon any voucher for collection of periodical dues from
the pension agent, nor any fee for services rendered in perfecting
any voucher. Any such officer who may require and accept fees for
such services shall be deemed guilty of a misdemeanor, and on con-
viction thereof shall be fined in any sum not less than ten dollars,
nor more than fifty dollars.
Ch. 4. Art. 2.
FEES OF OFFICE
899
Historical: Laws 1899, 2 42, Sees. 1,
2- re-enacting Laws 1895, 36, Sees.
1, 2.
Officers Must Publish Table of Fees.
Sec. 2130. Every officer whose fees are herein ascertained must
publish and set up in his office fair tables of his fees, according to
this title, within one month after he enters upon the duties of his
office, in some conspicuous place, for inspection of all persons who
have business in his office, upon pain of forfeiting for each day a
sum not exceeding twenty dollars, which may be recovered by any
person by action before any justice of the peace of the same county,
with costs.
Historical: Rev. St. 1887, Sec. 2139.
Execution for Fees.
Sec. 2131. If any clerk, sheriff, justice of the peace, or constable,
shall not have received any fees which may be due him for services
rendered in any suit or proceeding, he may have execution therefor,
in his own name, against the party from whom they are due, to be
issued from the court in which the action is pending.
Historical: Rev. St. 1887, Sec. 2140.
Not Repealed: This section is not
repealed by Laws 1891, 175, which
Axes the fees of county officers. Nay-
lor v. Vermont etc. Co. (1898) 6 Ida.
251; 55 Pac. 297.
Folio Defined.
Sec. 2132. The term "folio" when used as a measure for com-
puting fees or compensation, shall be construed to mean one hundred
words, counting every three figures necessarily used as a word. Any
portion of a folio, when in the whole draught or paper, should there
not be a complete folio, and when there should be an excess over the
last folio exceeding a quarter, shall be computed as a folio. The
filing of a paper shall be construed to include the certificate of the
same.
Historical: Rev. St. 18 87, Sec. 2141.
Limitation on Mileage of Officer.
Sec. 2133. When any sheriff, constable or coroner serves more
than one process in the same case, not requiring more than one
journey from his office, he shall receive mileage only for the most
distant service.
Historical: Rev. St. 1887, Sec. 2142.
Receipt for Fees.
Sec. 2134. Every officer upon receiving any fees for official duty
or services, may be required by the person making the same to make
out in writing and deliver to such person a particular account of such
fees, specifying for what they respectively accrued, and shall receipt
for the same; and if he refuses or neglects to do so, when required,
or shall receive illegal fees, he shall be liable to the party paying for
three times the amount so paid.
Historical: Rev. St. 1887, Sec. 2144.
900
COUNTIES
Tit. 1]
CHAPTER 5.
OTHER COUNTY CHARGES.
Section
2135. Amounts must be presented to
commissioners.
Section
2136. County charges enumerated.
Accounts Must Be Presented to Commissioners.
Sec. 2135. Accounts for county charges of every description must
be presented to the board of county commissioners to be audited as
provided by law.
Historical: Rev. St. 188 7, Sec. 2160.
California Legislation: Similar: Pol.
Code 1872, Sec. 4343; Deering's Code,
ib.; Kerr's Code, ib.
Audit of Claims: The board of com-
missioners have authority to audit a
claim for the publication of the de-
linquent tax list, although the con-
tract for such publication is made by
the assessor. Jolly v. Woodward
(1895) 4 Ida. 496; 42 Pac. 512.
County Charges Enumerated.
Sec. 2136. The following are county charges:
1. Charges incurred against the county by virtue of any pro-
vision of this title.
2. The compensation allowed by law to constables and sheriffs
for executing process on persons charged with criminal offenses; for
services and expenses in conveying criminals to jail ; for the service
of subpoenas issued by or at the request of the prosecuting attorneys,
and for other services in relation to criminal proceedings.
3. The expenses necessarily incurred in the support of persons
charged with or convicted of crime and committed therefor to the
county jail.
4. The compensation allowed by law to county officers in criminal
proceedings, when not otherwise collectible.
5. The sum required by law to be paid to grand jurors and in-
digent witnesses in criminal cases.
6. The accounts of the coroner of the county, for such services
as are not provided to be paid otherwise.
7. All charges and accounts for services rendered by justices of
the peace or probate judges for services in the examination of persons
charged with crime, not otherwise provided for by law.
8. The necessary expenses incurred in the support of county hos-
pitals and the indigent sick, and the otherwise dependent poor, whose
support is chargeable to the county.
9. The contingent expenses, necessarily incurred for the use and
benefit of the county.
10. Every other sum directed by law to be raised for any county
purpose, under the direction of the board of county commissioners,
or declared to be a county charge.
Historical: Rev. St. 1887, Sec. 2161;
amended Laws 1899, 116, Sec. 7.
Omitting "or this act" in subd. 1, as
the act referred to is included in this
title.
California Legislation : Similar: Pol.
Code 1872, Sec. 4344; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Expenses in-
curred in carrying out the provisions
of the chapter relating to county
boards of health are payable out of
current expense fund: Sec. 1113. Ex-
penses of furnishing court rooms
when the same are not provided by
the commissioners: Sec. 3872. Ex-
pense of removing prisoners from
one county jail to another payable by
county from which removal is made:
Ch. 6.
COUNTY POOR
901
Sec. 8547. Expense of sending insane
defendant in criminal action to in-
sane asylum, and maintaining- him
there, a county charge: Sec. 8200.
Expense of keeping prisoners to be
paid out of county treasury: Sec.
8539.
Cited: Cunningham v. Moody
(1891) 3 Ida. 125; 35 Am. St. Rep.
269; 28 Pac. 395; Jolly v. Woodward
(1895) 4 Ida. 496; 42 Pac. 512.
County Charges: The claim of a
physician for services in attending a
coroner's inquest, when subpoenaed
by the coroner under Sec. 8379, and
pronouncing a professional opinion on
the cause of death, is a charge against
the county to the extent of the reason-
able value of the physician's services.
(Quarles, J., dissents.) Pairchild v.
Ada Co. (1898) 6 Ida. 340; 55 Pac.
654.
The claim of an executive agent for
expenses incurred in going to another
State under the requisition of the Gov-
ernor to bring back a fugitive from
justice is not a county charge, but is
a State charge under Rev. St. Sec.
8 42 5. Kroutinger v. Board of Exam-
iners (1902) 8 Ida. 463; 69 Pac. 279.
Reports of Officers: The officer's re-
port should contain a detailed state-
ment of all fees and commissions
earned by him and the verification
should be so worded as to verify that
fact; but if the report is insufficient,
the commissioners should notify the
officer and permit him to supply the
defect, and should not summarily dis-
allow claims based thereon. Camp-
bell v. Commrs. Logan Co. (1894) 4
Ida. 181; 37 Pac. 329.
CHAPTER 6.
THE COUNTY POOR.
Section
Secti<
2137.
Contract for maintenance of
2142.
2138.
poor.
Employment of physician.
2143.
2139.
Accounts and reports of keep-
2144.
2140.
2141.
er.
Application for county aid.
Investigation of application:
Certificate.
2145.
2146.
Provision for relief.
Certified claims only to be al-
lowed.
Application by third person.
Discharge of pauper.
Treatment of paupers.
Contract for Maintenance of Poor.
Sec. 2137. The board of county commissioners, in their respective
counties, may contract for the care, protection and maintenance of
the indigent sick, or otherwise dependent poor of the county. They
must require the contractor to enter into a bond to the county with
two or more approved sureties, in such sum as the board may fix,
conditioned for the faithful performance of his duties and obligations
as such contractor, and require him to report to the board quarterly
all persons committed to his charge, showing the cause and nature
of their confinement, and the expense attendant upon their care and
maintenance.
tion for services in taking care of an
indigent sick person who is a citizen
of another State, although such per-
son is committed to his care under a
certificate, proper in form, from a jus-
tice of the peace. Board of Co.
Commrs. Logan Co. v. McPall (1894)
4 Ida. 71; 35 Pac. 691.
Historical: Rev. St. 1887, Sec. 2170.
See 2 Ter. Ses. (1864) 424, Sec. 3.
California Legislation: See Pol.
<"ode 1872, Sec. 4344; subd. 8; Deer-
ing's Code, ib.; Kerr's Code, ib.
Contract for Care of Poor: One who
contracts to keep the county poor is
not entitled to additional compensa-
Employment of Physician.
Sec. 2138. The board must employ a physician to attend, when
necessary, upon the inmates of the poor house or county hospital.
They must provide for the employment, at some kind of manual labor,
of such of the inmates as are capable and able to work, and the at-
tending physicians must certify to the keeper or lessee of the poor
farm the names of such of the inmates as are incapable of manual
902
COUNTIES
Tit. 11
labor, and when any such inmate becomes capable the physician must
certify the fact.
Historical: Rev. St. 1887, Sec. 2171.
See 12 Ter. Ses. (1883) 78, Sees. 3,
4, 5.
California Legislation: See Pol.
Code 1872, Sec. 4344; subd. 8; Deer-
ing's Code, ib.; Kerr's Code, ib.
Accounts and Reports of Keeper.
Sec. 2139. The keeper of the county poor farm, poor house or
hospital, must keep a correct account of all receipts and expenditures
in connection therewith, and make full and complete reports thereof
quarterly to the board of county commissioners.
Historical: Rev. St. 18 8 7, Sec. 2172.
See 12 Ter. Ses. (1883) 78, Sec. 6.
Application for County Aid.
Sec. 2140. Any sick or indigent person desiring aid from any
county of this State, must, before such aid can be given, make a
written application to the probate judge, the clerk of the board of
county commissioners, or to any justice of the peace in the precinct
where such applicant may reside, setting forth and describing all the
property, real, personal and mixed, wherever it is situated, owned in
whole or in part by such applicant, or in which he or she has any
legal or equitable interest; if such applicant have no available prop-
erty, real or personal, then he must declare his indigency and destitu-
tion, which must be signed by the party or parties making such ap-
plication and sworn to before some officer authorized by the laws
of this State to administer oaths, and filed in the office of the clerk
of the board of county commissioners.
Historical: Rev. St. 1887, Sec. 2173.
13 Ter. Ses. (1885) 127, Sec. 1.
Investigation of Application: Certificate.
Sec. 2141. It is the duty of the probate judge, clerk of the board
of county commissioners, or the justice of the peace to whom such
application is made, to immediately investigate the grounds of such
application, and for such purpose he may require the applicant, and
such other persons as may be deemed necessary, to testify under
oath, and if such officer is fully satisfied that such applicant is really
sick, indigent and in destitute circumstances, and would suffer unless
aided by the county, he must file a certificate to that effect with the
clerk of the board of county commissioners of such county, and in
case said board of county commissioners is not in regular session
at the time of the date of such certificate, the officer to whom said
application is made may, in his discretion, authorize the applicant
to be placed in the poor house or hospital of the county, or, if the
county is not provided with a poor house or hospital, he may authorize
the expenditure of any sums not exceeding the sum of forty dollars
in the aggregate, to provide for the immediate necessities of such
aoplicant, and must present his bill for such expenditure to the board
of county commissioners, duly verified under oath, and the board
must audit and pay such bill out of the proper fund of such county
at their next regular session.
Historical: Rev. St. 1887, Sec. 2174.
13 Ter. Ses. (1885) 127, Sec. 2.
Ch. 6. COUNTY POOR 903
Provision for Relief.
Sec. 2142. The county commissioners of such county must, after
the filing of the certificate as aforesaid, if in their judgment the
applicant is sick and indigent, and would suffer if not aided by the
county, make such provisions for his relief as may be necessary under
the circumstances.
Historical: Rev. St. 1887, Sec. 2175.
13 Ter. Ses. (1885) 127, Sec. 3.
Certified Claims Only to Be Allowed.
Sec. 2143. The county commissioners must not allow any claim or
demand against the county for services rendered to any sick or in-
digent person who has not previously obtained from the probate
judge, clerk of the board of county commissioners, or the justice of
the peace, as aforesaid, the certificate heretofore mentioned, and must
not allow any claim or demands whatsoever against the county for
any expense incurred by, or in behalf of, any sick or indigent person
before the filing of the application and certificate aforesaid.
Historical: Rev. St. 1887, Sec. 2176.
See 13 Ter. Ses. (1885) 127, Sec. 4.
Application by Third Person.
Sec. 2144. If any sick and indigent person or persons, desiring
assistance from any county in this State, is unable from illness to
make the application in writing required in this chapter, such appli-
cation may be made for him or on his behalf, by any other person
under oath.
Historical: Rev. St. 18 87, Sec. 2177.
See 13 Ter. Ses. (1885) 127, Sec. 6.
Discharge of Pauper.
Sec. 2145. Every person admitted to the county poor house or hos-
pital must be discharged therefrom by the keeper :
1. At his own request, if capable of taking care of himself, or
if his friends or relatives are willing to take care of him ;
2. Whenever, in the judgment of the keeper and attending phy-
sician, the person is capable of supporting himself; but in such case
the county commissioners have the power to revise the act of the
keeper and attending physician, and can return a person who, in
their judgment, has been improperly discharged, or may discharge
any one that, in their judgment, should no longer be an inmate of
the poor house or hospital.
Historical: Rev. St. 1887, Sec. 2178.
See 12 Ter. Ses. (1883) 78, Sec. 9.
Treatment of Paupers.
Sec. 2146. The treatment of all inmates of the poor house and hos-
pital must be kind and humane ; they must be supplied with comforta-
ble clothing, sufficient bedding and plain, substantial food, and must
not be required to perform labor to an extent that is detrimental to
health ; but the keeper has power to compel those who are able to per-
form labor to perform the same by reasonable and humane coercion.
Historical: Rev. St. 1887, Sec. 2179.
See 12 Ter. Ses. (1883) 78, Sec. 10.
TITLE 12
TOWN SITES
Section
Section
2147.
Entry of townsites.
2159.
Notice to commence suit.
2148.
Conveyance: How executed.
2160.
Service of summons.
2149.
Notice of entry.
2161.
Conveyance of land in suit.
2150.
Claims for lots.
2162.
Expense of entry a charge on
2151.
Appointment of appraisers.
land.
2152.
Appraisement of unclaimed
2163.
Tender of charges and fees.
lots.
2164.
Conveyance to claimants.
2153.
Notice of sale.
2165.
Rights of trustee as claimant.
2154.
Conduct of sale: Re-appraise-
2166.
Trustee holds title from entry.
ment and re-sale.
2167.
Costs of suit.
2155.
Purchase by entryman.
2168.
Contracts for conveyance.
2156.
Proceeds of sale.
2169.
Successor in office succeeds to
2157.
Suits to determine adverse
claims.
trust.
2158.
First settler entitled to land.
Entry of Town Sites.
Sec. 2147. It is the duty of the corporate authorities of any city
or incorporated town, or the probate judge of any county in which
is situated any unincorporated town, to enter at the proper land office
of the United States such quantity of land as the inhabitants of such
city or town may be entitled to claim, in the aggregate, according
to the population, in the manner required by the laws of the United
States and the regulations prescribed by the Secretary of the Interior
of the United States, and make and sign all necessary declaratory
statements, certificates and affidavits, or other instruments requisite
to carry into effect this title and Chapter 8 of Title 32 of the Revised
Statutes of the United States, and to make proof, when required,
of the facts necessary to establish the claim of such inhabitants to
the lands so granted by the laws of Congress.
Historical: Rev. St. 1887, Sec. 2200.
(See 8 Ter. Ses. (1875) 698, Sec. 1);
amended Laws 1905, 84, Sec. 1.
Conveyance: How Executed.
Sec. 2148. Any such corporate authorities, or judge, holding the
title to any such lands in trust, as declared in said acts of Congress,
must, by a good and sufficient conveyance, grant and convey the title
to each and every block, lot, share or parcel of the same to the person
entitled thereto, according to his rights or interest in the same as
they exist, in law or equity, at the time of the entry of such lands,
and when any parcel or share of such lands is occupied or possessed
by one or more persons, claiming the same by grant, lease or sale,
the respective rights and interests of such persons, in relation to
each other in the same, are not changed or impaired by any such
conveyance. Every conveyance, by such corporate authorities or
TOWNSITES
905
judge, pursuant to the provisions of this title, must be so executed
and acknowledged as to admit the same to be recorded, and if made
previous to the issuing of the patent for such lands, it must contain
a covenant that the grantor will, after the issuing of such patent,
execute, acknowledge and deliver to the grantee, his heirs or assigns,
such further conveyance as may be or become necessary to fully
vest and perfect the title to the lands therein described in the grantee,
his heirs or assigns.
Historical: Rev. St. 1887, Sec. 2 201,
8 Ter. Ses. (1875) 698, Sec. 2.
California Legislation: See Pol.
Code 1872, Sec. 4442; Deering's Code,
ib.; Kerr's Code, ib.
Nature of Trust: The trust im-
posed on the mayor of an incorpo-
rated town under the townsite law, is
for the benefit of the inhabitants,
first as individuals and then, collec-
tively, as a community. The title to
the occupied lots is vested in the trus-
tee for the benefit of the several oc-
cupants at the time of the entry, and
neither the surveyor nor the mayor
can deprive them of that title, Scully
v. Squier (1907) 13 Ida. ...; 90 Pac.
575.
Survey of Townsite: The surveyor,
in platting- a townsite, cannot make a
paper street and deprive the actual
occupants of vested rights in the
premises occupied by them; his only
authority is to plat the town in con-
formity to the use and occupancy of
the lots and blocks, and he cannot es-
tablish streets through and over build-
ings, nor cut off any portion or part
of a building for street purposes. Ib.
Notice of Entry.
Sec. 2149. At any time after the entry of such lands, and before
three months from the date of the receipt of a patent therefor, the
corporate authorities or judge entering the same, must give public
notice of such entry by posting the notice thereof in at least three
public places in said town, and by publishing such notice in a news-
paper printed and published in the county in which such town is
situated, or in case there is no such newspaper, then in some news-
paper printed and published at the seat of government; such notice
must be published once in each week for at least three successive
weeks, and must contain the name of the town and an accurate de-
scriotion of the lands so entered as the same are described in the
certificate of entry, duplicate receipt for the purchase money thereof
issued at the time of entry, or in the patent in case patent has issued.
Historical: Rev. St. 1887, Sec. 2 202.
(See 8 Ter. Ses. (1875) 698, Sec. 3);
amended Laws 1905, 84, Sec. 2.
Claims for Lots.
Sec. 2150. Every person, association or company claiming to be
entitled to such lands, or to any block, lot, share or parcel thereof,
must, within sixty days after the first publication of such notice,
in person or by duly authorized agent or attorney, sign a statement
in writing containing an accurate description of the particular parcel
or parts in which he claims to have an interest, and the specified
right, interest or estate therein, which he claims to be entitled to
receive, also a brief statement of the facts upon which such right,
interest or estate depends for its validity, and deliver the same to
such corporate authorities or judge, and all persons failing to sign
and deliver such statement, within the time specified in this section,
are, as against any claimant, forever barred the right of claiming
or recovering such lands, or any interest therein. In case any lots,
906 TOWNSITES Tit. 12
pieces or parcels of land remain unclaimed and unconveyed at the
end of said sixty days, all such lots shall revert to and become the
property of such town.
Historical: Rev. St. 1887, Sec. 2203.
(See 8 Ter. Ses. (1875) 698, Sec. 4);
amended Laws 1905, 84, Sec. 3.
Appointment of Appraisers.
Sec. 2151. The corporate authorities of such town, in case the
same be incorporated, shall appoint, by order, resolution or ordinance,
a board of appraisers, to consist of three freeholders or householders
of such town, who shall have no interest in such unclaimed or un-
conveyed lots or parcels of land, or the improvements thereof. Each
of said appraisers shall take an oath to faithfully discharge his duties
as such appraiser, and shall file such oath in the office of the clerk
of such municipality before commencing his duties as such appraiser.
In case such appraisers should fail or neglect to make appraisements
hereinafter specified and file the same with said clerk for a period of
more than ten days after their appointment, then said corporate au-
thorities may appoint a new board of appraisers for the purposes
herein provided. It shall be the duty of such corporate authorities
to appoint such appraisers within thirty days after the time has
expired for persons to present claims for lots, pieces or parcels of
land in such town.
Historical: Laws 1905, 84, Sec. 4.
Omitting- the concluding clause relat-
ing to appointment of appraisers with-
in thirty days after the taking effect
of the act, as now obsolete.
Appraisement of Unclaimed Lots.
Sec. 2152. Said appraisers shall appraise all lots, pieces or parcels
of land, unclaimed or not conveyed by virtue of any law, in such
town, at their just and full cash value, and file their written appraise-
ment thereof with said clerk. Said appraisement shall contain a
description of each lot, piece or parcel of land so appraised, and a
statement of the cash value of the same. Said appraiser shall make
a separate statement of the value of such lots, pieces and parcels of
land without improvements, and the value of such improvements,
and the aggregate value of both. There shall be attached to such
appraisement a written affidavit of said appraisers verifying each
statement of such appraisement and alleging that each of such lots
and parcels of land is appraised at its just and full value. This
appraisement shall be required only in cases where the time has
expired by law for claimants to file their statements.
Historical: Laws 1905, 84, Sec. 5.
Notice of Sale.
Sec. 2153. The mayor or president of the board of trustees, as
the case may be, shall, upon the filing of such appraisements, give
notice signed in his official capacity of the time and place of sale
of such lots and parcels of land by an advertisement published once
a week for three successive weeks in some newspaper published in
the county where such town is situated, or, if no newspaper is pub-
lished in said county, then in the paper published nearest such town.
TOWNSITES
907
Such sale shall be advertised to be made at some public place in said
town, and to be sold at some specified time between the hours of
sunrise and sunset.
Historical: Laws 1905, 84, Sec. 6.
Conduct of Sale: Reappraisement and Resale.
Sec. 2154. Such lots or parcels of land shall be sold at public
vendue to the highest bidder for cash, and shall be offered for sale
singly, unless a greater price can be obtained by selling several lots
or parcels of land together, in which case several lots or parcels can
be sold together after an attempt has been first made to sell the same
singly. Such sale may be continued, if necessary, from day to day,
for a period not to exceed three days at any one sale. In case all
said lands are not sold at the first sale, the sale of the remaining
lands shall be advertised as many times as may be necessary to sell
said lands, and all sales subsequent to the first sale shall be advertised
and conducted the same as the first sale. No lot or parcel of land
shall be sold at less than its appraised value. A new appraisement
may be had of all lands remaining unsold: Provided, That such
new appraisement shall not be made oftener than once every three
months. Such new appraisement shall be made by a new board of
appraisers, to be appointed in the same manner as the first board
of appraisers were appointed, or by the old board of appraisers.
Historical: Laws 1905, 84, Sec. 7.
"Once every" inserted before "three
months" in the proviso. The conclud-
ing clause, "or by the old board of
appraisers" has been transposed. Both
changes are made to more clearly ex-
press the meaning.
Purchase by Entryman.
Sec. 2155. In all cases where, subsequent to the time provided by
law for persons to claim lots on such townsite, any person may have
entered thereon and improved any lots belonging to such town, such
person, after the report of said board of appraisers, and prior to
public sale, may purchase any such lots from the corporate authori-
ties of such town for cash, at the appraised values of such lots, pieces
or parcels of land, inclusive of improvements, unless there shall be
adverse claimants to any such lots, in which case the respective rights
of such claimants shall be determined as hereinafter provided.
Historical: Laws 1905, 84, Sec. 8.
Proceeds of Sale.
Sec. 2156. The proceeds received from such sales shall be disoosed
of as follows: (1) They shall be applied to pay the expenses of said
sale. (2) To discharge any outstanding claims incurred in entering
the town site of said town. (3) The surplus, if any, shall be a special
fund, to be held by such corporate authorities, to be used in making
public improvements in such town.
Historical: Laws 1905, 8 4, Sec. 9.
Suits to Determine Adverse Claims.
Sec. 2157. In case there shall be adverse claimants to such lands,
or to any part, parcel or share thereof, either party may bring a
suit against the adverse claimant or claimants, in the District Court
908
TOWNSITES
Tit. 12
of the judicial district, in the county in which the land shall be
situated: Provided, That no Judge of the District Court who has
been an adverse claimant, directly or indirectly, of any portion of
the lands embraced within such town, or who is a party to any
action brought to determine the right to a conveyance of any portion
of the lands within such town, shall entertain, hear or determine any
action brought to determine any such claims, by or between any
parties whomsoever ; but in all such cases, if the cause shall be pend-
ing in a District Court, the Judge thereof shall order all papers, with
a transcript of the record in said cause, to be transmitted to another
judicial district, as in cases of change of venue: Provided, That the
laws applicable to a change of venue shall apply to actions brought
under this title. Suits shall be brought against adverse claimants
as defendants, and it shall not be necessary to make the probate judge
or corporate authorities parties thereto. The complaint must show
what interest or estate in the lands in controversy the plaintiff claims.
Historical: Rev. St. 1887, Sec. 22 04.
(See 8 Ter. Ses. (1875) 698, See. 5);
amended Laws 1905, 84, Sec. 10.
First Settler Entitled to Land.
Sec. 2158. Upon the trial in such action either party may give
in evidence the statement mentioned in this title, deposited by the
other, or by the person under whom he claims, with the corporate
authorities or judge holding the title to the lands in controversy
therein, and the person who made the first claim to, and settlement
upon such lands, either in person t>r by agent, servant or tenant, or
those claiming under him, must in such actions be deemed to have
the right to such lands, provided there has been no abandonment
thereof since such settlement.
Historical: Rev. St. 1887, Sec. 2205.
Ter. Ses. (1875) 698, Sec. 6.
California Legislation: See Pol.
Code 1872, Sec. 4442; Deering's Code.
ib.; Kerr's Code, ib.
Notice to Commence Suit.
Sec. 2159. In case suits shall not be brought for the purpose of
settling or determining any controversy to any such lands by either
of the adverse claimants, within sixty days after the expiration of
the time for filing the statement as provided in Section 2150, it shall
be the duty of the judge or corporate authorities to give notice to
the adverse claimant last filing his claim, or if there be more than
one adverse claim filed, then to the last adverse claimant, directing
him to commence his action against the other claimants as defendants
to determine their respective rights to said lands, within twenty days
from service of notice on him, and in case such adverse claimant
neglects or refuses to commence the action within the time specified,
he shall be deemed to have waived and relinquished all right, title,
interest and estate in the lands so in controversy, and be forever
barred from asserting or claiming any right, title, interest or estate
therein. Such notice may be served by the sheriff of the county in
which said town is situated, or by any person over the age of twenty-
one years, and proof of such service may be made as in case of sum-
mons issued out of the District Court. If the person or sheriff to
TOWNSITES 909
whom said notice is given to serve, shows by affidavit or return
that such adverse claimant can not be found in the county in which
said lands are situated, service of such notice shall be by publication
thereof for three weeks in some newspaper published in the county
where the lands are situated, and if no paper be published in said
county, then by posting such notice in three public places in the town
where the lands are situate, and in addition thereto said notice shall
be mailed to such adverse claimant at his residence or usual place
of abode. In case there be more than one adverse claimant, and
the last neglect or refuse to commence his action after service of
notice as aforesaid, said judge or corporate authority shall serve
like notice on the next last adverse claimant until all have been
notified as aforesaid. The provisions of this section shall apply to,
and have the same effect of notice and forfeiture as against any ad-
verse claimants to, lands and lots in town sites heretofore entered
under said act of Congress, after notice shall have been served as
aforesaid.
Historical: Rev. St. 188 7, Sec. 2 2 06.
(See 8 Ter. Ses. (1875) 698, Sec. 7);
amended Laws 1905, 84, Sec. 11.
Service of Summons.
Sec. 2160. Whenever complaint shall be filed in any action as
provided in this title, summons shall issue against the proper parties,
and shall be served upon the proper person or persons named therein,
as in other cases provided by law, or upon the agent or attorney of
such person or persons who shall have filed the statements as required
in Section 2150 ; and in case service can not be had upon the defend-
ant, his agent or attorney, service may be made by publication thereof
as provided by law.
Historical: Laws 1905, 84, Sec. 12. i mons: Sec. 4144; publication: Sees.
Cross Reference: Service of sum- ' 4145-4146.
Conveyance of Land in Suit.
Sec. 2161. The corporate authorities or probate judge, as the case
may be, shall convey said lands in accordance with the judgments
entered in such actions : Provided, however, In case of appeals or
writs of error to the Supreme Court, such conveyance shall not be
made until final determination by the decision of the Supreme Court.
Historical: Laws 1905, 84, Sec. 13.
Expense of Entry a Charge on Land.
Sec. 2162. As soon as may be after the expiration of sixty days
after the first publication of the notice mentioned in Section 2149,
the corporate authorities or judge holding the title to the lands de-
scribed in such notice must make a true statement in writing con-
taining a true account of all moneys expended in the acquisition of
the title and the administration or execution of the trust to that time,
including all moneys paid for the purchase of such land, all necessary
traveling expenses, all moneys paid for posting and publishing notices,
and the proof thereof, all costs of surveys and platting such lands,
all necessary attorney fees and costs of suit or actions necessarily
prosecuted or defended in obtaining title to said lands, and for all
910
TOWNSITES
Tit. 12
other necessary and proper expenses incident to such trust, and also
a true account of his time and service in the business of such trust
to that time. The whole amount of such account for moneys so ad-
vanced, and reasonable charges for compensation as herein provided,
is a charge upon the lands so held in trust, in favor of the trustee,
and must be paid by the several claimants entitled to such lands who
have filed their claims within the time mentioned in Section 2150,
in proportion to the several quantities of shares thereof to which they
are respectively entitled : Provided, however, In incorporated cities
or villages where the lands claimed are, owing to location, contour
of surface or other causes, of different values, the city council, trustees
or other legislative body of such city or village, may by ordinance
fix the part or portion of the moneys so expended by such trustee
and which are a charge against such lands, as herein provided, which
shall be charged to each parcel of land, which shall be as near as may
be in accordance with the relative values of the different parcels
of land.
Historical: Rev. St. 188 7, Sec. 2207;
amended Laws 1905, 84, Sec. 14.
Tender of Charges and Fees.
Sec. 2163. Before the corporate authorities or judge holding any
such lands in trust as aforesaid can be required to execute, acknowl-
edge or deliver any conveyance thereof, or of any lot, block, parcel
or share thereof, as hereinbefore mentioned, to any person claiming
to be entitled to such conveyance, such person must pay or tender
the sum of money chargeable upon the part thereof to be conveyed
according to the statement or account mentioned in the last section,
together with interest on each of the money items of such account
at the rate of twenty-four per cent per annum from the time when
the same accrued, and also such further sums as are a reasonable
compensation for preparing, executing and acknowledging such con-
veyance, and the fees of the officer taking the acknowledgment
thereof.
Historical: Rev. St. 18 87, Sec. 22 08.
Ter. Ses. (1875) 698, Sec. 9.
California Legislation: See Pol.
Code 1872, Sec. 4442; Deering's Code,
ib.; Kerr's Code, ib.
Conveyance to Claimants.
Sec. 2164. After the expiration of sixty days from the time of
the first publication of the notice, the corporate authorities or judge
holding the title to the lands described therein, must, upon a reason-
able demand or request, and upon the payment or tender of the
moneys mentioned in the last preceding section, execute, acknowledge
and deliver to each and every claimant, association or company of
claimants of such lands, or of any lot, block, parcel or share thereof,
a conveyance thereof, according to the statement made and deposited
as aforesaid : Provided, That no such conveyance must be executed,
acknowledged or delivered for any part, lot, block or share of such
lands to which there are adverse claimants, until the controversy
thereon is settled or determined in the manner hereinbefore pre-
scribed, and whenever any such controversy is so settled or deter-
mined, the said corporate authorities or judge must, upon the like
TOWNSITES
911
demand or request, and the like payment or tender, convey the land,
or interest, or share therein, the right to which has been thus ascer-
tained, to the person thereby determined to be entitled to the same.
Historical: Rev. St. 1887, Sec. 2209.
Ter. Ses. (1875) 698, Sec. 10.
California Legislation: See Pol.
Code 1872, Sec. 4442; Deering's Code,
ib.; Kerr's Code, ib.
Rights of Trustee as Claimant.
Sec. 2165. In case any judge or other officer who enters any such
lands under the provisions of the acts of Congress and thus becomes
the sole trustee thereof, is possessed of, or entitled to, any part, lot,
block or share thereof, according to and by virtue of the provisions
of this title, and the same is not claimed adversely to him by any
person, he is seized and possessed of the title thereto and estate
therein, to his own use in fee simple, absolute, free and discharged
of such trust, and no conveyance other than the patent of the lands
including the same is necessary to perfect his absolute title thereto.
In case any such land or share therein so claimed by said judge or
other officer, is claimed by any other person adversely to him, the
conflicting claims must be adjusted or determined by settlement,
arbitration or action as hereinbefore prescribed.
Historical: Rev. St. 1887, Sec. 2210.
Ter. Ses. (1875) 698, Sec. 11.
California Legislation : See Pol.
Code 1872, Sec. 4442; Deering's Code,
ib.; Kerr's Code, ib.
Trustee Holds Title From Entry.
Sec. 2166. For the purpose of determining the rights of adverse
claimants to any land so entered, the corporate authorities or judge
hereinbefore mentioned is deemed to possess and hold the title to
such lands in trust from the time of the entry thereof.
Historical: Rev. St. 1887, Sec. 2211.
Ter. Ses. (1875) 698, Sec. 12.
California Legislation: See Pol.
Code 1872, Sec. 4442, Deering's Code,
ib.; Kerr's Code, ib.
Costs of Suit.
Sec. 2167. The costs in the actions mentioned in this title are re-
coverable as in other civil actions.
Cross Reference: Costs in civil ac-
tions: Sees. 4900-4919.
Historical: Rev. St. 1887, Sec. 2212.
8 Ter. Ses. (1875) 698, Sec. 13.
California Legislation: See Pol.
Code 1872, Sec. 4442, Deering's Code,
ib.; Kerr's Code, ib.
Contracts for Conveyance.
Sec. 2168. Every person in whom the title to any lands is vested
under and by the provisions of this title, may be compelled to spe-
cifically perform any prior valid agreement for a conveyance.
Historical: Rev. St. 1887, Sec. 2 213.
See 8 Ter. Ses. (1875) 698, Sec. 14.
California Legislation: See Pol.
Successor in Office Succeeds to Trust.
Sec. 2169. The successor in office of any judge, mayor or other
officer who entered lands under said laws of the United States, or
Vol. 1—30
Code 1872, Sec. 4442, Deering's Code,
ib.; Kerr's Code, ib.
912 TOWNSITES Tit. 12
who was trustee for the execution of the trust in that behalf, whether
such officer or trustee acted under this title, or under any other
general law, or any local or special act relating to any city or incor-
porated town, shall succeed to the trust, and shall have authority to
execute the same as fully as his predecessor, the original trustee,
might have done while on office ; and when a mayor's or other trustee's
deed of any block, lot, share or parcel of any such town site has been
lost or cannot be found, and there is no record thereof in the office
of the county recorder, such successor, upon application to him in
writing, duly verified, showing that no mayor's or other trustee's
deed can be found to the part or parcel of such town site described
in the application, and that no such deed thereto is of record in the
office of the recorder of the county, and that the applicant, his an-
cestor, predecessor or grantor has been in the quiet, peaceable and
undisturbed possession of said premises under claim of title for the
full period of five years next before the application, must, by good
and sufficient conveyance, grant and convey the title of the premises
described in the application to the applicant, which conveyance must
be executed and acknowledged, and shall take and have effect as
provided by Section 2148, for which and the acknowledgment thereof
the trustee shall be entitled to receive a fee of five dollars from the
applicant : Provided, That in every such application for a deed under
the provisions of this section, where an adverse claim to such parcel
of said townsite shall be made to such mayor for the same, the mayor
in every such case shall remit the parties claiming deeds to the same
to a court of competent jurisdiction to settle the same, and when
so determined, then the said mayor shall execute such deed to the
prevailing party.
Historical: Rev. St. 1887, Sec. 2214. i amended Laws 1899, 141, Sec. 1; re-
(See 8 Ter. Ses. (1875) 698, Sec. lf»); trading Laws 1890-91, 201, Sec. 1.
TITLE 13
CITIES AND VILLAGES
Chapter
1. Organization of cities.
2. Council and officers of city.
3. Police courts.
4. Organization of villages.
5. Powers of cities and villages.
6. Municipal elections.
7. Municipal finances.
8. General provisions governing
cities and villages and their offi-
cers.
Chapter.
9. Changing names of municipali-
ties.
10. Consolidation of municipalities.
11. City and village plats.
12. Municipal improvement bonds.
13. Street improvement bonds.
14. Sewer construction bonds.
15. Installment payments of im-
provement assessments.
Note: Title 13, Pol. Code. Rev. St. 1887, treated of the subject "Towns
and villages." This title was amended by Laws 1890-91, 159; re-enacted
Laws 1899, 106. The act which forms the basis of this title is found in
Laws 1893, 97; re-enacted Laws 1899, 192. In City of Wardner v. Pelkes, 8
Ida. 333; 69 Pac. 64, the Supreme Court held that the act of 1893 re-
pealed "all prior acts upon the subject," but in the later case of Jack v.
Village of Grangeville, 9 Ida. 291; 74 Pac. 96 9, the court decided, without
referring to the Wardner case, that Rev. St. Sec. 2230, Subd. 12, was not re-
pealed by the 18 93 law, and was still in force. Giving effect, so far as pos-
sible, to both these decisions, the commissioner has omitted from this
title, the legislation prior to the act of 1893, with the exception of Subd. 12
of Sec. 2230, which is appended to Sec. 2238.
CHAPTER 1.
ORGANIZATION OF CITIES.
Section
Sectic
2170.
City of the second class de-
2176.
fined.
2177.
2171.
Division into wards.
2178.
2172.
Annexation of adjacent terri-
2179.
2173.
tory.
Annexation ordinance to be
2180.
filed: Survey.
2181.
2174.
2175.
Effect of annexation.
Organization of village into
city.
2182.
Division into wards.
Conduct of first election.
When village becomes a city.
Delivery of books and papers.
Existing rights and obligations
not affected.
Proof of corporate existence.
Powers of cities.
City of the Second Class Defined.
Sec. 2170. All cities, towns and villages containing more than one
thousand and less than fifteen thousand inhabitants shall be cities of
the second class, and be governed by the provisions of this chapter,
unless they shall adopt a village government as hereinafter provided.
Historical: Laws 1899, 192, Sec. 1;
re-enacting Laws 1893, 97, Sec. 1.
Comparative Legislation: See Neb.
Oobbey's An. Stat. Vol. 2, Sec. 8600.
Cited: Tn re Francis (1900) 7 Ida.
98; 60 Pac. 561.
Definition: The words, "City, Town
or Village," and, "City or Town," are
used indiscriminately and without any
purpose to distinguish between the
words "town" and "village". Brown
v. Village of Grangeville (1902) 8 Ida.
784; 71 Pac. 151.
General Repeal: This act provides
914
CITIES AND VILLAGES
Tit. 13
a complete scheme for the incorpora-
tion and government of cities, and re-
peals all prior acts on the subject.
City of Wardner v. Pelkes (1902) 8
Ida. 333; 69 Pac. 64.
No Involuntary Corporations: Since,
under Section 40 of the act of which
this section is a part, the inhabitants
of any territory must make applica-
tion therefor in order to become a
city of the second class, this section
does not create involuntary munici-
pal corporations. Carson v. City of
Genesee (1903) 9 Ida. 244; 74 Pac.
862.
Division Into Wards.
Sec. 2171. Each city of the second class shall be divided into not
less than two nor more than six wards, as may be provided by ordi-
nance of the city council thereof, and each ward shall contain, as
nearly as practicable, an equal number of legal voters and an area as
equal to each other as practicable.
Historical: Laws 1899, 192, Sec. 2;
re-enacting- Laws 1893, 97, Sec. 2.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8601.
Annexation of Adjacent Territory.
Sec. 2172. Whenever any land lying contiguous or adjacent to any
city, town, or village in the State of Idaho, or to any addition or
extension thereof, shall be, or shall have been, by the owner or pro-
prietor thereof, or by any person by or with the owner's authority or
acquiescence, laid off into lots or blocks, containing not more than five
acres of land each, whether the same shall have been, or shall be,
laid off, sub-divided or platted in accordance with any statute of this
State or otherwise, or whenever the owner or proprietor, or any per-
son by or with his authority, has sold, or begun to sell off such contig-
uous or adjacent lands by metes and bounds in tracts not exceeding
five acres, it shall be competent for the council or board of trustees,
as the case may be, by ordinance, to declare the same, by proper
legal description thereof, a part of such city, town or village.
Historical: Laws 1905, 3 91, Sec. 1.
"The owner's" inserted for "his be-
fore "authority" in line 4, to more
clearly express the meaning-.
Annexation Ordinance to Be Filed: Survey.
Sec. 2173. It shall be the duty of the clerk of any city, town or
village, upon the taking effect of such ordinance, to file with the
county recorder of the county in which said city, town or village is
located, a copy of the said ordinance duly certified as to the correct-
ness thereof, under the corporate seal of such city, town or village;
and to order the same surveyed, if the council or board of trustees
shall so direct, the cost of said survey to be pro rated according to
the amount of land surveyed, and assessed to the then owners of
said lands, and the assessments handled the same as a regular tax;
and thereupon and thereafter the corporate limits of such city, town
or village shall extend to and include such land, and thereafter all
property and persons within the limits of such annexed tract of land
shall be subject to the provisions of all by-laws and ordinances of
the said city, town or village, and to the police regulations thereunder.
Historical: Laws 1905. 391. Sec. 2;
amended Laws 1907. 309, Sec. 1.
i
Effect of Annexation.
Sec. 2174. From the date of the filing of the certified copy of said
Ch. 1
ORGANIZATION OF CITIES
915
ordinance with the county recorder as provided for in the preceding
section, all the property situated within the said annexed territory,
and the inhabitants thereof, shall be subject to taxation, as other
property and persons within the corporate limits of such city, town
or village, and all road taxes and licenses collected therein thereafter
shall be distributed in accordance with law, as though said annexed
portion had been a part of the said city, town or village from the
date of its incorporation.
Historical: Laws 19 05, 3 91, Sec. 3.
Organization of Village Into City.
Sec. 2175. Whenever any village containing more than one thou-
sand inhabitants desires to discontinue its organization as a village
and organize as a city of the second class, and a number of the
qualified electors of said village equal to three-fifths of the total vote
as shown by the last preceding general village election held in said
village, shall petition the board of trustees of such village therefor,
upon the filing of said petition with the village clerk of said village,
it shall be the duty of the board of village trustees to forthwith pass
and publish a resolution, in the manner provided for the passage and
publication of village ordinances, declaring such municipal corpora-
tion to be a city of the second class and changing the corporate name
of such municipality from the village of (inserting the
corporate name of the village) to the city of (inserting
the corporate name of such city). In the event no general village
election has ever been held in said village, then, for the purpose of
this and the following sections, the village trustees may, on their own
investigation, determine whether the voters signing said petition
equal in number three-fifths of the total vote of the village, or such
fact may be established by the affidavits of competent persons. Such
resolution shall also find the existence of the above jurisdictional facts.
Upon the passage, approval and publication of such resolution, it
shall be the duty of the clerk of such village to record the same in
the general ordinance or record book of such village, in the manner
provided for the recording of ordinances, and to forthwith make out
a true copy of the same, duly certified by him, and deliver the same
to the clerk of the board of county commissioners of the county in
which^ said municipality may be situated, and such board of county
commissioners, at their next ensuing general or special meeting, shall
cause the resolution to be entered and recorded therein, the same as
the original order of incorporation of such municipality as a village
was recorded.
Historical: Laws 1903. 216, Sec. 1;
amended Laws 1907, 217, Sec. 1.
"General" inserted for "equal" village
election, line 14, to express the mean-
ing.
Xumber of Signers: The provisions
of this section which require the peti-
tion to be signed by a number of
qualified electors equal to three-fifths
of the vote "as shown by the latest
Preceding- general village election," is
directory merely; the material and
essential requirement is that three-
fifths of the electors shall petition
for the change, and it is immaterial
whether an election has or has not
been previously held in the village.
In case no election has been held, the
number of qualified electors required
to sign the petition is a fact to be
determined by the usual modes of
proof. Boyd v. Bickel (1907) 13 Ida.
— ; 89 Pac. 631.
916 CITIES AND VILLAGES Tit. 13
Division Into Wards.
Sec. 2176. Upon the passage of the resolution mentioned in the
preceding section, it shall be the duty of the board of trustees of
such village to enact an ordinance dividing such municipality into
wards in the manner required by the city councils in cities of the
second class.
Historical: Laws 1903, 216, Sec. 2.
Conduct of First Election.
Sec. 2177. The next biennial or general election, succeeding the
passage of said resolution, held within such municipality, shall be con-
ducted in the manner required for the conducting of elections in
cities of the second class. The officers elected at such election shall
be the same as in cities of the second class organized under the gen-
eral laws of this State, and the board of trustees shall have full
power to prescribe by ordinance such rules and regulations, not in
conflict with the general laws of the State, for the conduct of such
election as may be necessary for the carrying into effect of the pro-
visions of this chapter. In all matters pertaining to such election
the officers of such village shall have the same powers, except as
herein otherwise provided, as are conferred upon the officers of cities
of the second class in the performance of like duties. For the pur-
poses of such election, such municipality shall be considered as a
city of the second class, and such election may be conducted in its
corporate name of the "city of (naming it)."
Historical: Laws 1903, 216, Sec. 3.
"Biennial" inserted for "annual" in
the first line, as municipal elections
now occur biennially. See Laws 1905,
385, Sec. 1 (Code Sec. 2245).
When Village Becomes a City.
Sec. 2178. Upon the election and qualification of the officers pro-
vided for by the general laws applicable to cities of the second class
and by this chapter, at such election, such municipality shall cease
to be a village and shall become and be a city of the second class,
and thenceforth shall be known as the "City of ," and shall
thereafter have the same powers and duties, and be subject to the
same liabilities, as though originally incorporated as a city of the
second class under the general laws of the State.
Historical: Laws 1903, 216, Sec. 4.
Delivery of Books and Papers.
Sec. 2179. Upon the qualification of the city officers elected as
herein provided, all books, papers, records, money and property of
such village, shall be delivered over to the proper officers of such
city, and the authority of the board of trustees and of all village
officers shall cease from and after the taking effect of the city govern-
ment in such former village.
Historical: Laws 1903, 216, Sec. 5.
Existing Rights and Obligations Not Affected.
Sec. 2180. Any city organized under the provisions of this and the
five preceding sections shall, for all purposes, be deemed and taken
to be in law the identical corporation theretofore incorporated and
Ch. 1. ORGANIZATION OF CITIES 917
existing; and such reorganization shall in no wise affect or impair
the title to any property owned or held by such corporation or in
trust therefor, or any debts, demands, liabilities or obligations ex-
isting in favor of or against such corporation, or any proceeding
then pending, nor shall the same operate to repeal or affect in any
manner any ordinance theretofore passed or adopted and remaining
unrepealed, or to discharge any persons from any liability, civil or
criminal then existing, for any violations of any such ordinance ; but
such ordinances, so far as the same are not in conflict with the gen-
eral laws, shall be and remain in force until repealed or amended
by the said city council : Provided, That proceedings theretofore com-
menced shall, after such reorganization, be conducted in the same
manner as though the change herein provided for had not taken place.
Historical: Laws 1903, 216, Sec. 6.
Proof of Corporate Existence.
Sec. 2181. All courts holden within the county in which such city
is situated shall take judicial notice of the corporate capacity and
existence of such city, and of the fact that such city is identical with,
and a continuation of, such municipality formerly organized as a
village. In all other courts of the State the corporate capacity and
existence of such city may be proven by copies of the resolution dis-
continuing the village government of such municipality, and declaring
the same to be a city, and of the original order of incorporation of
said municipality as a village, duly authenticated and certified by
the clerk of the board of county commissioners, in whose office such
records exist, to be correct copies of such proceedings as the same
appear of record in his office.
Historical: Laws 1903, 216, Sec. 7.
Powers of Cities.
Sec. 2182. Cities of the second class in their corporate capacities
are authorized and empowered to enact ordinances for the following
purposes, in addition to other powers granted by this title :
1. To restrain, prohibit and suppress billiard tables and bowling
alleys kept for public use, houses of prostitution, and unlicensed tip-
pling shops, and other disorderly houses and practices, gambling
and gambling houses, and all kinds of public indecencies.
2. To make regulations to prevent the introduction of contagious
diseases into the city, to make quarantine laws for that purpose, and
enforce the same within five miles of the city.
3. To erect, establish and regulate hospitals, and to provide for
the government and support of the same.
4. To make regulations to secure the general health of the city,
and to prevent and remove nuisances, and to provide the city with
water.
5. To establish night watch and police, and define the powers
and duties of the same.
6. To provide for and regulate the lighting of the streets, public
buildings and grounds, and the erection of lamp posts, and to levy and
collect a special tax therefor, upon all the taxable property within
the city limits.
918
CITIES AND VILLAGES
Tit. 13
7. To purchase and own grounds for, and to erect and establish
market houses and market places.
8. To provide for the erection and government of any useful or
necessary buildings for the use of the city.
9. To procure fire engines, hooks, ladders, buckets and other
apparatus, and to organize fire engine, hook and ladder and bucket
companies and to prescribe rules of duty, and the government thereof,
with such penalties as the council may deem proper, not exceeding
one hundred dollars, and to make all necessary appropriation therefor.
10. To elect one of the council who shall be styled the "president
of the council, " and who shall preside at all meetings of the council
in the absence of the mayor ; and, in the absence of the president, to
elect one of their own body to occupy his place temporarily, who shall
by styled "acting president of the council,,, and the president and
acting president, when occupying the place of mayor, shall have the
same privileges as other members of the council ; and all acts of the
president or acting president, while so acting, shall be as binding
upon the council and upon the city as if done by the mayor.
Historical: Laws 1899, 192, Sec. 39;
re-enacting- Laws 1893, 97, Sec. 39.
"The council" inserted for "your
body" in Subd. 10 to conform to the
construction of the remainder of the
section.
(Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sees. 8638
to 8646 inclusive; also Sees. 8666.
8667.
Cross Reference: Have the powers
conferred on county commissioners
with respect to roads within the city:
Sec. 893. Powers of cities and vil-
lages: Sees. 2236-2244.
CHAPTER 2.
THE COUNCIL AND OFFICERS OP CITIES.
Section
Secti<
m
2183.
Constitution of council.
2193.
Special meetings of council.
2184.
Election and qualifications of
2194.
Accounts and reports of offi-
councilmen.
cers.
2185.
Meetings of council.
2195.
Police powers of mayor.
2186.
Officers elective and ap-
2196.
Vacancy in office of mayor.
pointive.
2197.
Mayor may require aid in en-
2187.
Salaries of officers.
forcing law.
2188.
Salary and fees of police
2198.
Remission of fines.
judge.
2199.
Overseers of streets: Powers
2189.
Qualifications of officers.
and duties.
2190.
Duties of mayor.
2200.
Powers of policemen.
2191.
Veto power.
2201.
Duties, of city engineer.
2192.
Messages to council.
Constitution of Council.
Sec. 2183. The council of each city of the second class shall con-
sist of not less than four nor more than twelve citizens of said city,
who shall be qualified electors and taxpayers under the Constitution
and laws of the State of Idaho.
Historical: Laws 1899, 192, Sec. 3;
re-enacting Laws 1893, 97, Sec. 3.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8602.
Election and Qualifications of Councilmen. ,
Sec. 2184. Each ward of said city shall have at least two council-
men, who shall be chosen from the qualified electors of their respective
Ch. 2.
CITY COUNCIL AND OFFICERS
919
wards, and who shall serve for two years and until their successors
shall be elected and qualified. No person shall be eligible to the office
of councilman who is not at the time of his election an actual resident
of the ward for which he is elected, and a qualified elector under
the Constitution and laws of the State of Idaho, and if any council-
man shall remove from the ward for which he is elected his office
as a councilman shall thereby become vacant. Whenever there shall
be a tie in the election of councilmen, it shall be determined by lot
by the judges of election of the ward in which it shall happen.
Historical: Laws 1899, 192, Sec. 4;
re-enacting- Laws 1893, 97, Sec. 4;
amended Laws 1905, 385, Sec. 1.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8603.
Meetings of Council.
Sec. 2185. Regular meetings of the city council shall be held at
such times as the council may provide by ordinance.
Historical: Laws 189 9, 192, Sec. 5;
re-enacting Laws 1893, 97, Sec. 5.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8604.
Officers Elective and Appointive.
Sec. 2186. At the time of the biennial city election hereinafter pro-
vided for, there shall be elected a mayor, a clerk, a treasurer, a city
engineer, a police judge and the councilmen hereinbefore provided
for. The mayor, with the consent of the council, may appoint a city
attorney and an overseer of streets, who shall hold their offices for
two years unless sooner removed by the mayor with the consent of
the council. The mayor, by and with the consent of the council, shall
appoint such a number of regular policemen as may be necessary,
and may also appoint special policemen from time to time as exigencies
arise. The police officers appointed by the mayor and council in
accordance herewith shall be removable at any time by the mayor:
Provided, The council may provide by ordinance that the city clerk
shall be ex-officio police judge.
Historical: Laws 18 99, 192, Sec. 6
re-enacting Laws 1893, 97, Sec. 6
amended Laws 1905, 385, Sec. 1
amended Laws 1907, 307, Sec. 1.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8605.
Cross Reference: Mayor and coun-
cil to fill vacancies in office: Sec. 321.
Salaries of Officers.
Sec. 2187. The salaries of all officers of the city shall be fixed by
ordinance.
Historical: Laws 1899, 192, Sec. 7;
re-enacting Laws 1893, 97, Sec. 7.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8606.
Salary and Fees of Police Judge.
Sec. 2188. The police judge shall receive for all services rendered
by him as such a salary to be fixed by the city council, not exceeding
the sum of one thousand dollars per annum, payable monthly. He
shall be entitled to and shall collect the same fees as justices of the
peace are entitled to for similar services, and shall pay the same
into the city treasury on the last day of each and every month.
Historical: Laws 1899, 192, Sec.
re-enacting Laws 1893, 97, Sec.
amended Laws 1903, 187, Sec. 1;
amended Laws 1905, 375, Sec. 1.
920
CITIES AND VILLAGES
Tit. 13
Qualifications of Officers.
Sec. 2189. All officers shall be qualified electors and taxpayers, and
shall have resided within the limits of the city for three months next
preceding their election.
Historical: Laws 1899, 192, Sec. 9;
re-enacting- Laws 1893, 97, Sec. 9;
amended Laws 1905, 351, Sec. 1.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8608.
Duties of Mayor.
Sec. 2190. The mayor shall preside at all meetings of the city
council, and shall have a casting vote when the council is equally
divided, and none other, and shall have the superintending control
of all the officers and affairs of the city, and shall take care that the
ordinances of the city and of this title are complied with.
Historical: Laws 1899, 192, Sec. 10;
re-enacting- Laws 1893, 97, Sec. 10.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8609.
Veto Power.
Sec. 2191. The mayor shall have power to veto or sign any ordi-
nance passed by the city council : Provided, That any ordinance
vetoed by the mayor may be passed over his veto by a vote of two-
thirds of the members of the council elected, notwithstanding the
veto, and should the mayor neglect or refuse to sign any ordinance
and return the same with his objections, in writing, at the next regu-
lar meeting of the council, the same shall become a law without his
signature.
Historical: Laws 1899, 192, Sec. 11;
re-enacting Laws 1893, 97, Sec. 11.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8610.
Messages to Council.
Sec. 2192. He shall, from time to time, communicate to the city
council such information, and recommend such measures, as, in his
opinion, may tend to the improvement of the finances of the city,
the police, health, security, ornament, comfort and general prosperity
of the city.
Historical: Laws 1899, 192, Sec. 12;
re-enacting Laws 1893, 97, Sec. 12.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8611.
Special Meetings of Council.
Sec. 2193. The mayor or any three councilmen, shall have power
to call special meetings of the city council, the object of which shall
be submitted to the council in writing, and the call, and object, as
well as the disposition thereof, shall be entered upon the journal by
the clerk.
Historical: Laws 1899, 192, Sec. 13;
re-enacting Laws 1893, 97, Sec. 13.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8612.
Special Meetings: Where there is a
special meeting of the city council
and the mayor and all the council-
ment except one are present, any
business may be transacted that does
not incur an indebtedness, although
the call for the meeting was not made
in writing as required by this section.
Sommercamp v. Keily (1902) 8 Ida.
712; 71 Pac. 147.
Accounts and Reports of Officers.
Sec. 2194. The mayor shall have the power, when he deems it
Ch. 2. CITY COUNCIL AND OFFICERS 921
necessary, to require any officer of the city to exhibit his accounts
or other papers, and to make reports to the council in writing, touch-
ing any subject or matter he may require pertaining to his office.
Historical: Laws 1899, 192, Sec. 14; Comparative Legislation : See Neb.
re-enacting Laws 1893, 97, Sec. 14. I Cobbey's An. Stat. Vol. 2, Sec. 8613.
Police Powers of Mayor.
Sec. 2195. The mayor shall have such jurisdiction as may be vested
in him by ordinance, over all places within five miles of the corporate
limits of the city, for the enforcement of any health or quarantine
ordinance and regulation thereof, and shall have jurisdiction in all
matters vested in him by ordinance, excepting taxation, within one-
half mile of the corporate limits of said city.
Historical: Laws 1899, 192, Sec. 15; i Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 15. Cobbey's An. Stat. Vol. 2, Sec. 8614.
Vacancy in Office of Mayor.
Sec. 2196. In case of any vacancy in the office of mayor, or in
case of his absence or disability, the president of the council for the
time being, shall exercise the office of mayor until such vacancy be
filled, or such disability removed; or in case of temporary absence,
until the mayor shall return.
Historical: Laws 18 99, 192, Sec. 16; i Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 16. Cobbey's An. Stat. Vol. 2, Sec. 8615.
Mayor May Require Aid in Enforcing Law.
Sec. 2197. The Mayor is hereby authorized to call on every male
inhabitant in the city over eighteen years of age and under the age
of fifty years, to aid in enforcing the laws.
Historical: Laws 18 99, 192, Sec. 17; I Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 17. I Cobbey's An. Stat. Vol. 2, Sec. 8616.
Remission of Fines.
Sec. 2198. The mayor shall have power to remit fines and for-
feitures, and to grant reprieves and pardons for all offenses arising
under the ordinances of the city.
Historical: Laws 1899, 192, Sec. 18; I Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 18. I Cobbey's An. Stat. Vol. 2, Sec. 8617.
Overseer of Streets: Powers and Duties.
Sec. 2199. The overseer of the streets shall, subject to the orders
of the mayor and council, have general charge, direction and control
of all work on the streets, sidewalks, culverts and bridges of the
city, and shall perform such other duties as the council may require.
Historical: Laws 1899, 192, Sec. 21; i Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 21. Cobbey's An. Stat. Vol. 2, Sec. 8620.
Powers of Policemen.
Sec. 2200. The policemen of the city shall have power to arrest
all offenders against the law of the State, or of the city, by day or
by night, in the same manner as the sheriff or constable, and keep
them in the city prison or other place to prevent their escape, until
trial can be had before the proper officer.
922
CITIES AND VILLAGES
Tit. 13
Historical: Laws 1899, 192, Sec. 19;
re-enacting Laws 1893, 97, Sec. 19.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8618.
Duties of City Engineer.
Sec. 2201. The city engineer shall make estimates of the cost of
all labor and materials which may be done or furnished by contract
with the city, and make all surveys, estimates and calculations neces-
sary to be made for the establishment of grades, building of culverts,
sewers, bridges, curbing and gutters, and the improvement of streets
and the erection and repair of buildings, and shall perform such other
duties as the council may require. Before the city council shall make
any contract for building bridges or sidewalks, or for any work on
the streets, or for any other work or improvement, an estimate of the
cost thereof shall be made by the city engineer and submitted to the
council, and no contract shall be entered into for any work or im-
provement for a price exceeding such estimate; and in advertising
for bids for any such work the council shall cause the amount of such
estimate to be published therewith.
Historical: Laws 1899, 192, Sec. 20;
re-enacting Laws 1893, 97, Sec. 20.
Comparative Legislation: See Neb.
Cobbey's An. Stat, Vol. 2, Sec. 8619.
CHAPTER 3.
POLICE COURTS.
Section
2202. Jurisdiction of police judge.
2203. Issuance and service of war-
rant.
2204. Disposition of fines, etc.
220 5. Hearing and determination.
2206. Continuance: Security to ap-
pear.
2207. Breach of recognizance: Of-
fenses exceeding jurisdiction.
2208. Attendance and fees of wit-
nesses.
2209. Trial by jury.
2210. Judgment and punishment.
2211. Labor of prisoners.
Section
2212. Discharge of defendant.
2213. Laws governing proceedings.
2214. Summoning witnesses on con-
tinuance.
2215. Court to be open every day.
2216. Appeals: How taken.
2217. Vacancy in office: How filled.
2218. Punishment for contempt.
2219. Recovery of fines by suit
2220. Use of county jail.
2221. Limitation of actions and
prosecutions.
Jurisdiction of Police Judge.
Sec. 2202. The police judge shall have exclusive jurisdiction to
hear and determine all offenses against the ordinances of the city,
and jurisdiction concurrent with that which is or may be conferred
upon justices of the peace, of misdemeanors under the laws of the
State, arising within the limits of the city, and shall also have juris-
diction for the examination of offenders against the laws of the State,
for offenses arising within the city limits.
Historical: Laws 18 99, 192, Sec. 22;
re-enacting Laws 1893, 97, Sec. 22.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8621.
Issuance and Service of Warrant.
Sec. 2203. Whenever complaint shall be made to the police judge
on oath or affirmation of any person competent to testify against the
accused, that an offense has been committed of which the police
Ch. 3.
POLICE COURTS
923
judge has jurisdiction, the police judge shall forthwith issue a war-
rant for the arrest of the offender, which warrant shall be served
by the sheriff or constable of the county, or some person specially
appointed in writing indorsed on the process by the police judge for
that purpose, and whose return shall be made under oath.
Historical: Laws 1899, 192, Sec. 23;
re-enacting Laws 1893, 97, Sec. 23.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8622.
Disposition of Fines, Etc.
Sec. 2204. One-half of all moneys which are collected within the
limits of any incorporated city, town or village organized or operating
under the provisions of this title, for liquor licenses, or from fines or
penalties under the ordinances of said city, town or village, must be
paid into the city, town or village treasury for general revenue pur-
poses, and one-half into the treasury of the school district or districts
if more than one, equally embraced in whole or in part of the 'same
territory as said city, town or village.
Historical: Laws 1899, 192, Sec. 24;
re-enacting Laws 1893, 192, Sec. 24;
amended Laws 1903, 432, Sec. 1.
"Title" inserted for "act as amended,
or the original act of which this act
is amendatory."
Payments to School District: The
fact that a school district comprises
a larger territory than that embraced
within the city or village, is no excuse
or reason for a failure of the city or
village authorities to pay one-half of
the moneys collected from fines, pen-
alties and licenses to the trustees of
the school district. School Dist. No.
27 v. Village of Twin Falls (1907) 13
Ida. — ; 90 Pac. 735.
Hearing and Determination.
Sec. 2205. When any person shall be brought before the police
judge upon such warrant, it shall be his duty to hear and determine
the complaint alleged against the defendant.
Historical: Laws 1899, 192, Sec. 25;
re-enacting Laws 1893, 97, Sec. 25.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8624.
Continuance: Security to Appear.
Sec. 2206. Upon good cause shown, the police judge may postpone
the trial of the case to a certain day, in which case he shall require
the defendant to enter into recognizance with sufficient security, con-
ditioned that he will appear before the said judge at the time and
place appointed, then and there to answer the complaint alleged
against him.
Historical: Laws 1899, 192, Sec. 26;
re-enacting Laws 1893, 97, Sec. 26.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8625.
Breach of Recognizance: Offenses Exceeding Jurisdiction.
Sec. 2207. In case of the breach of any recognizance entered into
as aforesaid, the same shall be certified to the District Court of the
proper county to be proceeded upon according to law. If in the
progress of any trial before said judge it shall appear that the accused
ought to be put upon his trial for an offense not cognizable before
said judge, he shall immediately stop all further proceedings before
him and proceed as in other cases cognizable before the District Court.
Historical: Laws 1899, 192, Sec. 27;
re-enacting Laws 1893, 97, Sec. 27.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8626.
924
CITIES AND VILLAGES
/
Tit. 23
Attendance and Fees of Witnesses.
Sec. 2208. It shall be the duty of said judge to summon all persons
whose testimony may be deemed material as witnesses at the trial,
and to enforce their attendance by attachment if necessary, and all
witnesses shall receive the sum of fifty cents for each day's attendance.
Historical: Laws 18 99, 192, Sec. 28;
re-enacting- Laws 1893, 97, Sec. 28.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8627.
Trial by Jury.
Sec. 2209. Cases in the police court arising under the ordinances
of the city shall be tried and determined by the police judge without
the intervention of a jury, unless the defendant demand a trial by
jury, and when a demand shall be so made the trial shall be by a
jury of six competent men, and shall be conducted in the same man-
ner as trials before justices of the peace for misdemeanors arising
under the general laws of the State.
Historical: Laws 1899, 192, Sec. 29;
re-enacting Laws 1893, 97, Sec. 29.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 862S.
Judgment and Punishment.
Sec. 2210. If the defendant is found guilty, the said judge shall
declare and assess the punishment and render judgment accordingly;
U shall be part of the judgment that the defendant stand committed,
until the judgment is complied with.
Historical: Laws 1899, 192, Sec. 30;
re-enacting Laws 1893, 97, Sec. 30.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8629.
Labor of Prisoners.
Sec. 2211. Whenever the defendant is sentenced to imprisonment
for the violation of a city ordinance, he shall be put to work for the
benefit of the city, under direction of the mayor, for the term of his
imprisonment; and when committed for the non-payment of a fine
or costs, for the violation of any ordinance, he shall also be put to
work for the benefit of the city, and shall be credited on such fine
and costs one dollar and fifty cents per day for each day he shall work.
Historical: Laws 1899, 192, Sec. 31;
re-enacting Laws 1893, 97, Sec. 31.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8630.
Discharge of Defendant.
Sec. 2212. Any defendant committed under the provisions of this
chanter for a misdemeanor arising under the laws of this State may
be discharged in the same manner as if he had been committed by
the District Court.
Historical: Laws 1899, 192, Sec. 32;
re-enacting Laws 1893, 97, Sec. 32.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8631.
Laws Governing Proceedings.
Sec. 2213. In all cases not herein especially provided for, the
process, proceedings and trial before the judge shall be governed by
laws regulating proceedings in justices' courts in criminal cases.
Historical: Laws 1899, 192, Sec. 33;
re-enacting Laws 1893, 97, Sec. 33.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8632.
Cross Reference: Criminal proceed-
ings in justices' courts: Sees. 8280-
8314.
Ch. 3
POLICE COURTS
925
Summoning of Witnesses on Continuance.
Sec. 2214. When a trial shall be continued by a judge, it shall not
be necessary to summon any witnesses who may be present at the
continuance, but the judge shall verbally notify such witnesses as
either party may require, to attend before him to testify before
him in the case on the day set for trial, which verbal notice shall be as
valid as a summons.
Historical: Laws 1899, 192, Sec. 34;
re-enacting- Laws 1893, 97, Sec. 34.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec 8633,
Court to Be Open Every Day.
Sec. 2215. The police judge shall be a conservator of the peace,
and his court shall be open every day except Sunday to hear, try and
determine all cases cognizable before him, and he shall have power
to bring parties forthwith to trial.
Historical: Laws 1899, 192, Sec. 35;
re-enacting Laws 1893, 97, Sec. 35.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 863 4.
Appeals: How Taken.
Sec. 2216. Appeals may be taken from the judgments of the police
judge, in the same manner as appeals are taken from the judgments
of justices of the peace in criminal cases.
Historical: Laws 18 99, 192, Sec. 36;
re-enacting- Laws 1893, 97, Sec. 36.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8635.
Cross Reference: Appeals from jus-
tices' judgments: Sees. 8320-8327.
Vacancy in Office: How Filled.
Sec. 2217. In case of vacancy in the office of police judge by
death, resignation or otherwise, or in the case of the absence, in-
terest, or disability of such judge to perform his duty, it shall be the
duty of an acting justice of the peace of the precinct in which such
city is situated, and he may be designated by the mayor, to act as
judge, during such vacancy, absence or disability in the trial of causes
cognizable before said judge.
Historical: Laws 1899, 192, Sec. 37;
re-enacting Laws 1893, 97, Sec. 37.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8636.
Punishment for Contempt.
Sec. 2218. The police judge shall have the power to enforce due
obedience to all orders, rules, judgments and decrees made by him,
and may fine or imprison for contempt offered to such judge whilst
holding his court, or to process issued by him, in the same manner,
and to the same extent, as the District Courts.
Historical: Laws 1899, 192, Sec. 38;
re-enacting Laws 1893, 97, Sec. 38.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8637.
Recovery of Fines by Suit.
Sec. 2219. Fines may in all cases, and in addition to any other
mode provided, be recovered by suit or action before a justice of
the peace or other court of competent jurisdiction, in the name of
the State, and in any such suit or action where pleadings are neces-
sary, it shall be sufficient to declare generally for the amount claimed
926
CITIES AND VILLAGES
Tit.
to be due in respect to the violation of the ordinance, referring to
its title and the date of its adoption or passage, and showing as near
as may be the facts of the alleged violation.
Historical: Laws 18 99, 192, Sec. 76;
re-enacting Laws 1893, 97, Sec. 72.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8751.
Use of County Jail.
Sec. 2220. Any city or village shall have the right to use the jail
of the county for the confinement of such persons as may be liable to
imprisonment under the ordinances of such city or village, but it shall
be liable to the county for the cost of keeping such prisoners.
Historical: Laws 1899, 192, Sec. 77;
re-enacting Laws 1893, 97, Sec. 73.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8752.
Limitation of Actions and Prosecutions.
Sec. 2221. All suits for the recovery of any fine, and prosecutions
for the commission of any offense made punishable as herein provided,
shall be barred in one year after the commission of the offense for
which the fine is sought to be recovered or the prosecution is com-
menced.
Historical: Laws 1899, 192, Sec. 78;
re-enacting Laws 1893, 97, Sec. 74.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8753.
CHAPTER 4.
ORGANIZATION OF VILLAGES.
Section
Sectic
2222.
Incorporation of villages.
2230.
2223.
Board of trustees.
2231.
2224.
Qualifications of trustees.
2225.
Oath of office: Chairman:
Meetings.
2232.
2226.
Quorum: Adjournment: At-
tendance of members.
2233.
2227.
Journal of proceedings
2234.
2228.
Powers of trustees.
2235.
2229.
Appointment of officers: Pow-
ers of police.
Compensation of officers.
Publication of by-laws: Elec-
tion of chairman pro tern.
Village clerk as ex-officio po-
lice judge.
Manner of adopting village
government.
When trustees assume office.
City ordinances to remain ef-
fective: City indebtedness.
Incorporation of Villages.
Sec. 2222. Any town or village containing not less than two hun-
dred nor more than one thousand inhabitants, now incorporated as
a city, town or village, under the laws of this State, or that shall
hereafter become organized pursuant to the provisions of this title,
and any city of the second class which shall have adopted village
government as provided by law, shall be a village, and shall have
the rights, powers and immunities hereinafter granted, and none
other, and shall be governed by the provisions of this chapter:
Provided, That cities of the second class heretofore incorporated, and
containing not more than fifteen hundred inhabitants, shall continue
to be and exercise the powers of cities of the second class, and the
officers thereof shall continue to exercise the powers conferred herein
upon officers of such cities, until the first general election held therein,
and the qualification of village officers elected at said election:
Ch. 4.
ORGANIZATION OF VILLAGES
927
Provided, further, That whenever a majority of the taxable inhabit-
ants of any town or village, not heretofore incorporated under any
law of this State, shall present a petition to the county board of the
county in which said petitioners reside, praying that they may be
incorporated as a village, designating the name they wish to assume
and the metes and bounds of the proposed village ; and if such county
board, or a majority of the members thereof, shall be satisfied that
a majority of the taxable inhabitants of the proposed village have
signed such petition, and that inhabitants to the number of two hun-
dred or more are actual residents of the territory described in the
petition, the said board shall declare the said proposed village incor-
porated, entering the order of incorporation upon their records, and
designating the metes and bounds thereof; and thereafter the said
village shall be governed by the provisions of this title applicable to
the government of villages. And the said county board shall, at the
time of the incorporation of said village, appoint five persons having
the qualifications provided in Section 2224, as trustees, who shall
hold their offices and perform all the duties required of them by law,
until the election and qualification of their successors at the time and
in the manner provided in this title.
Historical: Laws 1899, 192, Sec. 40;
re-enacting- Laws 1893, 97, Sec. 40.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8680.
Cited: Carson v. City of Genesee
(1903) 9 Ida. 244; 74 Pac. 862.
Incorporation Authorized: This sec-
tion authorizes the incorporation of
towns containing- more than one thou-
sand inhabitants. City of Wardner v.
Pelkes (1902) 8 Ida. 333; 69 Pac. 64.
Petition: An attempted incorpora-
tion of a town is void where the peti-
tion for incorporation fails to describe
the metes and bounds of any tract of
land whatever. lb.
Order: The fact that the order of
the board of commissioners declaring
a town incorporated, fails to desig-
nate the metes and bounds of the
town, does not affect the legality of
the incorporation, where the petition
for incorporation clearly designates
said boundaries, and the order refers
to the petition and grants it without
change or modification. State v. In-
habitants of Pocatello (1891) 3 Ida.
174; 28 Pac. 411.
The fact that the order incorporat-
ing a city does not state that two
hundred or more inhabitants are
"legal residents" of the territory de-
scribed in the petition, does not ren-
der the order void where the same
use*-, the words "taxable inhabitants,"
and shows that a sufficient number of
taxable inhabitants signed the peti-
tion. City of Wardner v. Pelkes
*1902) 8 Ida. 333; 69 Pac. 64.
Validity in General: Where a peti-
tion for the incorporation of a city
8 signed by a majority of the taxable
male inhabitants, and designates the
nrrne of the proposed city, and also
the metes and bounds of legal sub-
divisions according to the United
States survey, and the order of in-
corporation recites the presentation
of the petition signed by the taxable
inhabitants of the city, finds that the
prayer of the petition is reasonable,
designates the metes and bounds in
accordance with the petition and di-
rects that thenceforth the inhabitants
within the described boundaries shall
bo a body politic under the name and
style of the said city, this section is
substantially complied with, although
the petition and order refer to the
proceedings as brought under Sec.
222 4 of the Revised Statutes instead
of under this section. lb.
Collateral Attack: In an action at-
tacking the validity of the incorpora-
tion of a village on the ground that
the petition praying for such incor-
poration was not signed by a ma-
jority of the taxable male inhabitants
residing within the boundaries of said
village, it must affirmatively appear
from the proceedings attacking such
incorporation that said petition was
not signed by a majority of such tax-
payers. In re Francis (1900) 7 Ida.
98; 60 Pac. 561.
Where the board of commissioners
in making an order incorporating a
city, finds that the proposed bound-
aries are reasonable, any person who
is aggrieved thereby has his remedy
by appeal, and the incorporation will
not be held void because the bound-
aries are improperly fixed, in the
absence of any showing that the
boundaries so fixed include an un-
reasonable amount of land. City of
Wardner v. Pelkes (1902) 8 Ida. 333;
69 Pac. 64.
928
CITIES AND VILLAGES
Tit. 13
Board of Trustees.
Sec. 2223. The corporate powers and duties of every village shall
be vested in a board of trustees, to consist of five members.
Historical: Laws 1899, 192, Sec. 41;
re-enacting Laws 1893, 97, Sec. 41.
Comparative Legislation: See Xeb.
Cobbey's An. Stat. Vol. 2, Sec. 8681.
Qualifications of Trustees.
Sec. 2224. Any person may be a trustee who shall be a qualified
elector of this State and who shall have been an inhabitant and tax-
payer of the village at the time of his election, and shall have resided
therein for three months next preceding his election, and every
trustee so elected shall hold his office for the term of two years, and
until his successor is elected and qualified.
Historical: Laws 1899, 192, Sec. 42;
re-enacting Laws 1893, 97, Sec. 42;
amended Laws 1905, 351. Sec. 1.
"Two years" inserted for "one year"
as the term of the trustee's office to
conform to Laws 1905, 385, Sec. 1
(Code, Sec. 2245).
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8612.
Oath of Office: Chairman: Meetings.
Sec. 2225. Every trustee before entering upon the duties of his
office, shall take an oath to support the Constitution of the United
States and the Constitution of the State of Idaho, and faithfully and
impartially to discharge the duties of his office; and every board of
trustees shall assemble within twenty days after their appointment
or election, and choose a chairman from their number. The board
of trustees shall by ordinance fix the time and place of holding their
stated meetings and may be convened at any time by the chairman.
Historical: Laws 1899, 192, Sec. 43;
re-enacting Laws 1893, 97, Sec. 43.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8683.
Quorum : Adjournments : Attendance of Members.
Sec. 2226. At all meetings of the board a majority of the trustees
shall constitute a quorum to do business; a smaller number may
adjourn from day to day, and may compel the attendance of absent
members in such manner and under such penalties as the board of
trustees by ordinance may have previously prescribed.
Historical: Laws 1899, 192, Sec. 44;
re-enacting Laws 1893, 97, Sec. 44.
Comparative Legislation : See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8684.
Journal of Proceedings.
Sec. 2227. The board of trustees shall keep a journal of their pro-
ceedings, and at the desire of any member shall cause the yeas and
nays to be taken and entered on the journal, on any question or ordi-
nance, and the proceedings shall be public.
Historical: Laws 189 9, 192. Sec. 45;
re-enacting- Laws 1893, 97, Sec. 45.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8685.
Powers of Trustees.
Sec. 2228. Such board of trustees shall have power to pass by-laws
and ordinances to prevent and remove nuisances, to prevent, restrain
and suppress bawdy houses, gambling houses and other disorderly
houses, within the limits of such village, to restrain and prohibit
gambling; to provide for licensing and regulating theatrical and other
Ch. 4.
ORGANIZATION OF VILLAGES
929
amusements within such village; to establish night watches; to pro-
vide pest houses; to prevent the introduction and spread of con-
tagious diseases; to establish and regulate markets; to erect and
repair bridges; to erect, repair and regulate wharves, and the rates
of wharfage; to regulate the landing of steamboats, rafts and other
water crafts; to provide for the inspection of lumber, building ma-
terials, and provisions, to be used or offered for sale in such village,
or to be exported therefrom; to require and regulate the planting
and protection of shade trees in the streets, and the building of stair-
ways, railways, doorways, awnings, hitching posts and rails, lamp
posts, awning posts, and all other structures projecting upon or over
and adjoining, and other excavations through and under, the side-
walks of such village; and in addition to the special powers herein
conferred and granted, maintaining the peace, good government and
welfare of the town or village, and its trade, commerce and manu-
facturies, and to enforce all ordinances by inflicting penalties upon
inhabitants or other persons, for the violation thereof, not exceeding
one hundred dollars for any one offense, recoverable with costs, to-
gether with judgment of imprisonment until the amount of said
judgment and costs shall be paid.
Historical: Laws 1899, 192, Sec. 46;
re-enacting Laws 1893, 97, Sec. 46.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8686.
Cross Reference: Trustees have the
powers conferred on county commis-
sioners with respect to roads within
the village: Sec. 893.
Appointment of Officers: Powers of Police.
Sec. 2229. Such board of trustees shall appoint a clerk, treasurer
and attorney. They may also appoint such night watch and police
as may be necessary, who shall have power to arrest all offenders
against the law of the State, or of the village, by day or by night,
in the same manner as the sheriff or constable, and to keep them in
the village prison or other place, to prevent their escape, until trial
can be had before the proper officer.
Cross Reference: Trustees to fill
vacancies in office: Sec. 321.
Historical: Laws 1899, 192, Sec. 47;
re-enacted Laws 1893, 97, Sec. 47;
amended Laws 1901, 133, Sec. 1.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 868 7.
Compensation of Officers.
Sec. 2230. The trustees shall receive no compensation,
pensation of the other officers shall be fixed by ordinance.
The COm-
Historical: Laws 1899, 192, Sec. 48;
re-enacting Laws 1893, 97, Sec. 48.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8688.
Publication of By-Laws: Election of Chairman Pro Tem.
Sec. 2231. The chairman of such board of trustees shall cause to
be printed and published the by-laws and ordinances of the board,
for the information of the inhabitants, and cause the same to be
carried into effect, and in case of the absence of the chairman of
the board from any meeting of the board of trustees, such board
shall have power to appoint a chairman, pro tempore, who shall,
for the time being, exercise and have the powers, and perform the
same duty, as the regular chairman.
930
CITIES AND VILLAGES
Tit. 13
Historical: Laws 1899, 192, Sec. 49;
re-enacting Laws 1893, 97, Sec. 49.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. '2, Sec. 8689.
Village Clerk as Ex-Officio Police Judge.
Sec. 2232. The village clerk of any village incorporated under the
provisions of this chapter may, provided that no justice of the peace
resides within the limits of such village, be ex-officio police judge,
and shall have concurrent jurisdiction with the justices of the peace
of the precinct in which said village may be situated, and shall have
jurisdiction to hear, try and determine all offenses against the gen-
eral ordinances of the said village, and may for that purpose issue
warrants of arrest for any alleged offender, upon information under
oath as in other cases; and upon the arrest of any alleged offender
by the sheriff of the county, the constable of the precinct or the
marshal of such village, he shall proceed thereon in all respects in
the same manner and with the same powers as against persons
charged with misdemeanor under the general laws of the State,
and such justice of the peace, or police magistrate, before whom
such proceedings shall be had, and the officer making the arrest,
shall be entitled to the same fees, to be collected in the same manner
as in cases of misdemeanor: Provided, however, That in all pro-
ceedings under the general ordinances of any village, all such bills
incurred shall be audited by the board of trustees, and paid out of
the village treasury, in the same manner as other bills contracted
by or on behalf of such village are paid.
Historical: Laws 1899, 192, Sec. 52;
re-enacting Laws 1893, 97, Sec. 52;
amended Laws 1905, 35, Sec. 1.
Manner of Adopting Village Government.
Sec. 2233. Whenever any city of the second class, containing more
than fifteen hundred inhabitants, desires to discontinue its organiza-
tion as a city and organize as a village, and one-fourth of the legal
voters of such city shall petition the city council, the council shall
cause to be published for at least thirty days, a notice stating that
the question of adopting village government will be submitted at
the next biennial city election. The form of the ballot shall be, "For
organization as a village" and "Against organization as a village";
and at the same election the qualified voters shall also vote for five
trustees for the village. If a majority of the votes cast are "For
organization as a village," then such city shall, within sixty days
after such election, be and become a village, and be governed under
the provisions of the law relating to villages, unless it shall at
some future biennial city election adopt a city government, in the
manner provided herein for its adoption of village government.
Historical: Laws 1899, 192, Sec. 53; Comparative Legislation: See Neb.
re enacting Laws 1899. 97, Sec. 53. Cobbey's An. Stat. Vol. 2, Sec. 8693.
"Biennial" for "annual" city election,
to conform to Laws 1905, 385, Sec. 1
(Sec. 2245 Post).
When Trustees Assume Office.
Sec. 2234. If village government shall have been adopted as afore-
said, the board of trustees shall, at the expiration of sixty days from
said election, enter upon the duties of their offices; and all books,
Ch. 5. powers 931
papers, records, money and property of such city shall be delivered
over to the board of trustees, and the authority of the city council
and all city officers shall cease from and after the taking effect of
village government in such city.
Historical: Laws 189 9, 192, Sec. 54; Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 54. I Cobbey's An. Stat. Vol. 2, Sec. 8694.
City Ordinances to Remain Effective: City Indebtedness.
Sec. 2235. All ordinances of the city shall remain and be in full
force in the village, until amended or repealed by the board of
trustees, and the board shall provide for the payment of the city
indebtedness and levy necessary taxes thereof, as if the same had
been incurred by the village.
Historical: Laws 1899, 192, Sec. 55; i Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 55. Cobbey's An. Stat. Vol. 2, Sec. 8695.
CHAPTER 5.
POWERS OF CITIES AND VILLAGES.
Section
2236. General powers of municipali-
ties.
2237. Rights of pre-existing corpora-
tions preserved.
2238. Additional powers of cities
and villages.
2239. Suppression of prostitution.
2240. Highway labor and commuta-
tion fee.
Section
22 41. Drainage of stagnant water.
22 42. Supervision of streets, bridges
and squares.
2243. Disposition of discontinued
streets.
2244. Regulation of huckstering.
Note: General powers of cities of the second class: Sec. 2182.
General Powers of Municipalities.
Sec. 2236. Cities of the second class and villages governed by this
title, shall be bodies corporate and politic, and may sue and be sued;
contract or be contracted with; acquire, hold and convey property
real or personal ; have a common seal, which they may change and
alter at pleasure ; and such other powers as may be conferred by law :
Provided, That real property shall only be conveyed by the proper
authorities of such city or village when so authorized by a vote of
the electors thereof.
Historical: Laws 1899, 192, Sec. 56; Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 56. I Cobbey's An. Stat. Vol. 2, Sec. 8696.
Rights of Pre-Existing Corporations Preserved.
Sec. 2237. All rights and privileges which have accrued to any
city, town or village held by any officer of such corporation, under
or by virtue of any act of the Legislature of the Territory or State
of Idaho, or any act of the Congress of the United States, before the
taking effect of this title, are hereby preserved to such cities, towns
or villages, and all its said trusts, rights and privileges shall be trans-
mitted to and be vested in such latter corporation, and all actions
heretofore commenced by or against any city or town which shall
be or become a city or village under the provisions of this title,
shall be in no manner affected by this title, but all such actions shall
932 CITIES AND VILLAGES Tit. 13
be continued to final judgment and satisfaction as if this title had
not been passed.
Historical: Laws 1899, 192, Sec. 58; i Comparative Legislation: See Neb.
re-enacting- Laws 1893, 97, Sec. 58. Cobbey's An. Stat. Vol. 2, Sec. 8698.
Additional Powers of Cities and Villages.
Sec. 2238. In addition to the powers hereinbefore granted to cities
and villages under the provisions of this chapter, any city or village
may, by ordinance or by-law:
First. Levy taxes for general revenue purposes not to exceed
ten mills on the dollar, in any one year, on all the property within
the limits of said city or village, taxable according to the laws of
the State of Idaho, the valuation of such property to be ascertained
from the books or assessment rolls of the tax collector of the proper
county.
Second. Levy any other tax or special assessment authorized
by law.
Third. Establish, lay out, alter, open any streets or alleys, and
improve, repair, light, grade or sprinkle, drain the same and remove
any and all obstructions therefrom, establish grades and construct
bridges, cross-walks, culverts and sewers thereon, and repair and
maintain the same; cause to be planted, set out and cultivated shade
trees along the lines thereof or therein; and defray the expenses
of the same out of the general fund of such city or village, not ex-
ceeding two mills of the levy for general purposes, or defray the
expenses of the same by a special assessment in accordance with
the provisions of the fifth subdivision of this section.
Fourth. Provide by general ordinance for the construction and
repair of sidewalks and for the laying of temporary plank sidewalks
upon the natural surface of the ground without regard to grades,
upon streets not permanently improved, and provide for the assess-
ment of the cost thereof on the property in front of which the same
shall be constructed, repaired or laid.
Fifth. Curb, plank, pave, gravel, macadamize, gutter, grade or
sprinkle any highway, street or alley therein, in whole or in part,
and levy a special tax on the lots and parcels of land fronting on
such highway, street or alley, to pay the expense thereof. But, un-
less a majority of the resident owners of the property subject to
assessment for such improvement petition the council or trustees
to make the same, such improvement shall not be made unless three-
fourths of all the members of such council or trustees, shall, by an
affirmative vote, at a regular meeting, assent to and order the same.
Sixth. Assessments made under the provisions of Subdivision
Fifth of this section shall be made, assessed and collected in the
following manner :
1. The assessment or cost of any work or improvement provided
for in Subdivision Fifth of this section, shall be assessed upon the
lots and land fronting thereon, each lot being separately assessed
for the full debt thereof in proportion to the benefits to the property
to be benefited, sufficient to cover the total expense of the work to
the center of the street on which it fronts.
2. The expense of all improvements in the space formed by the
junction of two or more streets, or wherein one main street terminates
Ch. 5. POWERS 933
in or crosses another main street, and also all street crossings or
cross-walks, shall be paid by such city or village.
3. When any work or improvement mentioned in this section
is done or made on one side of the center line of said alleys or public
ways, the lots fronting on that side only shall be assessed to cover
the expenses of said work, according to the provisions of this section.
4. The city council or trustees shall, before or during the grad-
ing, paving or other improvement of any street or alley, the cost
of which is to be levied and assessed upon the property benefited,
first pass, at a special meeting, a resolution or ordinance declaring
its intention to make such improvement, and stating in such resolu-
tion or ordinance the name of the street or alley to be improved,
the points between which said improvement is to be made, the gen-
eral character of the proposed improvement and the estimate of
the cost of the same, and that the cost of the same is to be assessed
against the property abutting (and included in the assessment dis-
trict herein provided) on such street proposed to be improved, and
shall fix the time, not less than ten days, in which protests against
said proposed improvement may be filed in the office of the city clerk.
It shall be the duty of such clerk to cause such resolution to be pub-
lished in the official newspaper of the city in at least two consecutive
issues before the time fixed in such resolution for filing such protests
and affidavit of such publication shall be filed on or before the time
fixed for such filing. It protests against the proposed improvement
by the owners of more than two-thirds of the front feet of lots and
lands abutting on such proposed improvement and included in the
assessment district therein provided, be filed on or before the date
fixed for such filing, the council or trustees shall not proceed further
with the work unless three-fourths of the members of said council
or board of trustees shall vote to proceed with such work. If no
such protest is filed, or if such protest is filed and three-fourths of
the council or trustees shall vote to proceed with such work, the
council or trustees shall, at its next regular meeting, proceed to
consider the same, and shall then or at a subsequent time proceed
to enact an ordinance for such improvement. By the provisions of
such ordinance, a local improvement district shall be established to
be called "Local Improvement District No. ," which shall include
all the property fronting on the street to be improved, between
the points named in such resolution, to the distance back from such
street, if platted in blocks, to the center of the blocks; if platted in
lots only, to the center of the lots, and if not platted to the distance
of one hundred and twenty-five feet. Such ordinance shall provide
that such improvements shall be made and that the cost and expense
thereof shall be taxed and assessed upon all property in such local
improvement district, which cost shall be assessed in proportion to
the number of feet of such lands and lots fronting thereon, and in-
cluded in said improvement district, and in proportion to the benefits
derived by said improvements: Provided, That the city council or
trustees may expend from the general fund for such purposes such
sums as in their judgment may be fair and equitable in considera-
tion of benefits accruing to the general public by reason of such
improvement.
934 CITIES AND VILLAGES Tit. 13
The expense of all improvements in the space formed by the
junction of two or more streets, or where one main street terminates
in or crosses another main street, and also all necessary street cross-
ings or cross-ways at corners, and intersections of streets, and the
expense of establishing, building and repairing bridges in such city,
shall be paid by such city. The expense incurred in making and re-
pairing sewers in any street shall be paid by the city. When any
work for improvement mentioned in this section is done or made
on one side of the center lines of said streets, avenues or public high-
ways, the lots or portions of lots fronting on that side only shall be
assessed to cover the expenses of said work according to the pro-
visions of this section. Whenever any expense or cost of work shall
have been assessed on any lands, the amount of said expenses shall
become a lien upon said lands, which shall take precedence of all
other liens, and which may be foreclosed in accordance with the
provisions of the Code of Civil Procedure.
Such suit shall be in the name of the City of (naming it)
as plaintiff, and in any such proceedings where the court trying the
same shall be satisfied that the work has been done or material fur-
nished, which, according to the true intent of this section, would
be properly chargeable upon the lot or lands through or by which
the street, alley or highway improved or repaired may pass, a re-
covery shall be permitted or a charge enforced to the extent of the
proper proportion or the value of the work, or material which would
be chargeable on such lot or land notwithstanding any informalities,
irregularities or defects in any of the proceedings of such municipal
corporation or any of its officers.
5. Upon the passage of an ordinance as herein provided the
committee on streets, together with the city engineer, or other proper
authority of such city, town or village, shall make out an assessment
roll according to the provisions of the said ordinance, and shall
certify the same to the council or trustees of such city, town or
village.
6. Upon receiving the said assessment roll, the clerk of such
city, town or village shall give notice by three successive publications
in the official newspaper of such city, town or village that such
assessment roll is on file in his office, the date of filing of same, and
said notice shall state a time at which the council or trustees will
hear and consider objections to said assessment roll by the parties
aggrieved by such assessments. The owner or owners of any prop-
erty which is assessed in such assessment roll, whether named or
not in such roll, may, within ten days from the last publication pro-
vided herein, file with the clerk his objections in writing to said
assessment.
7. At the time appointed for hearing objections to such assess-
ment the council shall hear and determine all objections which have
been filed by any party interested to the regularity of the proceedings
in making such assessment and the correctness of such assessment,
or of the amount levied on any particular lot or parcel or land; and
the council shall have the power to adjourn such hearing from time
to time, and shall have power, in their discretion, to revise, correct,
confirm or set aside such assessment and to order that such assess-
Ch. 5. powers 935
ment be made de novo, and such council shall pass an order approving
and confirming said assessment as corrected by them, and their de-
cision and order shall be a final determination of the regularity,
validity and correctness of said assessment to the amount thereof,
levied on each lot and parcel of land.
8. Any person who has filed objections to such assessment or
re-assessment as hereinbefore provided, shall have the right to appeal
to the District Court of this State and county in which said city or
village may be situated.
9. Such appeal shall be taken by filing a written notice of appeal
with the clerk of such city or village within ten days after such
assessment or re-assessment roll shall have been approved and con-
firmed by the council or trustees, and said notice shall describe the
property and the objections of such appellant to such assessment, and
such appellant shall also file with the clerk of the District Court
aforesaid within twenty days from the approval and confirmation
of such roll by the council or trustees, a copy of said notice of appeal,
assessment or re-assessment roll and proceedings thereon, certified
by the clerk of such city or village, together with a bond to such
city or village, conditioned to pay all costs that may be awarded
against the appellant in such sum not less than two hundred dollars
and with such security as shall be approved by the judge of said
court, and the case shall be docketed by the clerk of such court in
the name of the person taking the appeal, against the city or village
as "An appeal from assessments." Said cause shall then be at issue
and shall have precedence over all civil cases pending in said court,
except proceedings under the act relating to eminent domain by cities
and towns, actions of forcible entry and detainer. Such appeal shall
be tried in said court as in the case of equitable causes except that
no pleadings shall be necessary. The judgment of the court shall
be either to confirm, modify or annul the assessment in so far as
the same effects the property of the appellant, from which judgment
an appeal shall lie to the Supreme Court, as in other causes. In
case the assessment is confirmed, the fees of the clerk of the city
or village for copies of the record shall be taxed against the appellant
with other costs.
10. All such assessments shall be known as "Special assessments
for improvements," and shall be levied and collected as a separate
tax in addition to the taxes for general revenue purposes to be placed
on the tax roll for collection, subject to the same penalties and col-
lected in the same manner as other city or village taxes.
11. Whenever the mayor and council, or trustees, of any city
or village shall, under authority vested in them by any law of this
State and the charter of such city or village, cause any street, avenue
or alley in such city or village to be graded, curbed, graveled, paved,
repaired or macadamized, or any other local improvements, the ex-
pense of which is chargeable to the abutting, adjoining, contiguous
or approximate property, they may, in their discretion, provide for
the payment of the costs and expenses thereof by installments, in-
stead of levying the entire tax or special assessment for such costs
at one time, and for such installment they may issue, in the name of
such city or village, improvement bonds of the district, which shall
936 CITIES AND VILLAGES Tit. 13
include the adjoining, contiguous and approximate property liable to
assessment for such local improvement according to the city or village
charter, payable in installments of equal amounts each year ; none of
which bonds nor any of the installments shall run longer than five
years nor bear interest exceeding eight per centum per annum.
Such bonds may be issued to the contractors constructing the
improvement in payment thereof, or the mayor and council, or
trustees by charter and ordinance of said city or village, or other
authorized officer or officers of said city or village, may sell the same
at not less than their par value, net, and pay the proceeds thereof
to the contractor. Such bonds shall not be issued in amount in excess
of the contract price of the work or improvement, except that the
installment coupons shall include the interest on such installments
to the maturity thereof. The bonds shall be of such denomination
as the mayor and council, or trustees, shall deem proper. When
district bonds are issued under this section for improvements, the cost
of which is by law charged by special assessment against specific
property, the mayor and council, or trustees, or other authorized
officer, board or body, shall levy special assessments each year
sufficient to redeem the installments of such bonds next thereafter
maturing, but in computing the amount of special assessment to be
levied against each piece of property liable therefor, interest thereon
not exceeding eight per cent per annum from the date of the issuance
of said bonds until the maturity of the installments of bonds next
thereafter maturing. Such assessments shall be made upon the
property chargeable for the cost of such improvements, respectively,
and shall be levied and collected in the same manner as may be pro-
vided by law, and the charter and ordinance of such city for the
levy and collection of special assessments for such improvements
where no bonds are issued, except as otherwise provided by this sec-
tion. But the basis of such assessment, whether upon such assesed val-
uation, frontage, or otherwise liable for such costs, shall be retained
for the assessment of succeeding installments of said bonds. The
owner of any piece of property liable for any special assessment
may redeem his property from such liability by paying the entire
assessment chargeable against his property (upon the city clerk
mailing him a written or printed notice) thirty days before the issu-
ance of the bonds or after the issuance of the bonds by paying all
the installments of the assessments which have been levied and also
the amount of unlevied installments with interest on the latter at
the rate of eight per centum per annum from the date of the issu-
ance of the rate bonds to the time of maturity of the last install-
ment. In all cases where installments of the assessments not yet
levied and paid as above provided, whether before or after the issu-
ance of the bonds, the same shall be paid to the city treasurer, who
shall receipt therefor, and all sums so paid shall be applied solely
to the payment of such improvements or the redemption of the bonds
issued therefor.
When any piece of property has been redeemed from liability
for the cost of any improvement as herein provided, such property
shall not thereafter be liable for further special assessments for the
costs of such improvement except as hereinafter provided.
Ch. 5. powers 937
No suit to set aside the special assessment or to enjoin the making
of the same shall be brought, nor any defense to the validity thereof
be allowed after the expiration of thirty days from the time the
amount due on each lot or piece of ground liable for such assessment
is ascertained and confirmed by the council or trustees. The funds
arising by such assessment shall be applied solely towards the re-
demption of said bonds.
12. Such bonds, when issued to the contractor constructing the
improvement in payment thereof or when sold as above provided,
shall transfer to the contractor, or either owner or holder, all the right
and interest of such city or village in and with respect to every such
assessment, and the lien thereby created against the property of
such owners assessed as shall have not availed themselves of the pro-
visions of this section in regard to the redemption of their property
as aforesaid, shall authorize said contractor and his assigns, and the
owners and holders of said bonds, to receive, sue for and collect,
or have collected, such assessment embraced in any such bond or
through any of the methods provided by law for the collection of
assessments for local improvements.
And if the city shall fail, neglect or refuse to pay said bonds,
or to promptly collect any of such assessments when due, the owner
of any such bonds may proceed in his own name to collect such
assessment and foreclose any lien thereof in any court of competent
jurisdiction, and shall recover, in addition to the amount of such
bonds and interest thereon, five per centum, together with the costs
of such suit, including a reasonable sum as attorneys' fees.
Any number of holders of such bonds for any single improvement
may join as plaintiff, and any number of holders of the property
on which the same are a lien, may be joined as defendants in such
suit. And such bonds shall be equal liens upon the property for the
assessments represented by such bonds without priority of one over
another to the extent of the several assessments against the several
lots and parcels of land.
13. In all cases of special assessments for local improvements
of any kind against any property, persons or corporations whatso-
ever, wherein said assessments have failed to be valid in whole or
in part for want of form or sufficiency, informality or irregularity
or non-conformance with the charter provisions of laws governing
such assessments, the city council or trustees or other authorized
board or body shall be and they are hereby authorized to re-assess
such special taxes or assessments and to enforce their collection in
accordance with the provisions of law existing at the time the re-
assessment is made; and it is further provided that whenever, for
any cause, mistake or inadvertence the amount assessed shall not
be sufficient to pay the cost of the improvement made and enjoyed
by owners of property in the local assessment district where the
same is made, that it shall be lawful, and the city council or trustees,
or other authorized board or body, is hereby directed and authorized
to make re-assessments on all the property in said local assessment
district sufficient to pay for such improvement, such re-assessment
to be made and collected in accordance with the provisions of the
law or ordinance existing at the time of its levy.
938 CITIES AND VILLAGES Tit. 13
14. Nothing shall be construed as repealing or modifying any
existing manner and method for cities of the first class, or those
organized under special or local laws, to make improvements as
herein provided for, but shall be construed as an additional and
concurrent power and authority. Any city whose charter provides
for the issuance of bonds for local improvements payable only from
the proceeds of special assessments, is hereby authorized to issue
such bonds in the manner and with the effect provided in this section,
and the holder of any such bond shall look only to the fund provided
by such assessment for the principal or interest of such bond.
15. The holder of any bond issued under the authority of this
section shall have no claim therefor against the city or village by which
the same is issued, in any event, except from collection of the special
assessment made for the improvement for which said bond was
issued, but his remedy is case of non-payment shall be confined to
the enforcement of such assessments. A copy of this subdivision
shall be plainly written, printed or engraved on the face of each
bond so issued.
Seventh. Raise revenue by levying and collecting a license tax on
any occupation or business within the limits of the city or village,
and to regulate the same by ordinance. All such taxes shall be uniform
in respect to the classes upon which they are imposed: Provided,
hoivever, That all scientific and literary lectures and entertainments
shall be exempt from such taxation.
Eighth. License, regulate and prohibit the selling or giving away
of any intoxicating, malt, vinous, mixed or fermented liquor, the
license not to extend beyond the municipal year in which it shall
be granted, and to determine the amounts to be paid for such license :
Provided, That the city council or board of trustees may grant per-
mits to druggists for the sale of liquors for medicinal, mechanical,
sacramental and chemical purposes only, subject to forfeiture, and
under such restrictions and regulations as may be provided by
ordinances: Provided, further, That in granting licenses such cor-
porate authority shall comply with whatever general laws of the
State may be in force relative to the granting of licenses.
Ninth. Impose a license tax not less than three nor more than
ten dollars upon the owners and harborers of dogs, and enforce the
same by appropriate penalties, and to authorize the destruction of
any dog, the owner or harborer of which shall neglect or refuse to
pay such license tax : Provided, That no such license shall authorize
the keeping, owning or harboring of more than one dog.
Tenth. Appoint judges and clerks of all elections, and prescribe
the manner of conducting the same, and the return thereof, and of
holding special elections for any purpose provided by law.
Eleventh. Make all such ordinances, by-laws, rules, regulations,
resolutions, not inconsistent with the laws of the State, as may be
expedient, in addition to the special powers in this title granted,
maintaining the peace, good government and welfare of the cor-
poration and its trade, commerce, manufactures, and to enforce all
ordinances by inflicting fines or penalties for the breach thereof,
not exceeding one hundred dollars for any one offense, recoverable
with costs, and in default of payment, to provide for confinement
Ch. 5. powers 939
in prison or jail, and at hard labor upon the streets or elsewhere
for the benefit of the city or village.
Twelfth. Regulate and prescribe powers and duties, and com-
pensations of officers not herein provided for, and to require of all
officers and servants elected, approved bonds and security for the
faithful performance of their duties.
Thirteenth. Make contracts with, and authorize any person,
company or association, to erect gas works and to give such persons,
companies or associations the exclusive privilege for furnishing gas
to light the streets, lanes and alleys, for any length of time not ex-
ceeding five years.
Fourteenth. Establish, alter and change the channels of water
courses, and to wall them and cover them over; to establish, make
and regulate public wells, cisterns, windmills, acqueducts and reser-
voirs of water, and to provide for the filling of the same.
Fifteenth. Regulate the running at large of cattle, hogs, horses,
mules, sheep, goats, dogs and other animals, and to cause such as
may be running at large to be impounded and sold to discharge the
costs and penalties provided for the violation of such prohibition,
and the expense of impounding and keeping the same, and of such
sale.
Sixteenth. Provide for the erection of all needful pens and
pounds, within or without the city limits, and to appoint and com-
pensate keepers thereof, and to establish and enforce rules governing
the same.
Seventeenth. Regulate the construction of and order the sup-
pression and cleaning of fireplaces, chimneys, stoves, stovepipe,
ovens, boilers, kettles, forges or any apparatus used in any building,
manufactory or business, which may be dangerous in causing or
promoting fires, and to prescribe limits in which no dangerous or
obnoxious and offensive business may be carried on.
Eighteenth. Prescribe and alter the limits within which no build-
ing shall be constructed except of brick, stone or other incombustible
material, with fireproof roof, and after such limits are established
no special permits shall be given for the erection of buildings of
combustible material within said limits.
Nineteenth. Regulate levees, depots, depot grounds and places
for storing freights and goods, and to provide for and regulate the
passage of railways through streets and public grounds of the city or
village.
Twentieth. Regulate the crossings of railway tracks, and to
provide precautions and prescribe rules regulating the same; and
to regulate the running of railway engines, cars or trucks within
the limits of said city or village, and prescribe rules relating thereto,
and to govern the speed thereof, and to make any other and further
provisions, rules and restrictions to prevent accidents at crossings,
and on the tracks or railways, and to prevent fires from engines.
Twenty-first. Establish standard weights and measures, and
regulate the weights and measures to be used in the city or village,
and to regulate the weighing and measuring of every commodity sold
in the city or village, in all cases not otherwise provided by law.
Twenty-second. Provide for the inspection of hay, grain and
940 CITIES AND VILLAGES Tit. 13
coal, the measuring of wood and fuel to be used in the city or village,
and to determine the place or places of the same, and to regulate
and prescribe the place or places of exposing for sale hay, coal and
wood; to fix the fees and duties of persons authorized to perform
the duties named in this subdivision.
Twenty-third. Remove all obstructions from the sidewalks, curb
stones, gutters and cross-walks at the expense of the person placing
them there, or of the city or village, and to require and regulate the
planting and protection of shade trees in the streets, the building
of bulkheads, cellar and basement ways, stairways, railways, window
and doorways, awnings, hitching posts and rails, lamp posts, awning
posts, and all other structures projecting upon or over and adjoining,
all other excavations through or under the sidewalks in said city
or village.
Twenty-fourth. Prevent and restrain riots, routs, noises, dis-
turbances, or disorderly assemblies; to regulate, punish and prevent
the discharge of firearms, rockets, powder, fireworks, or any other
dangerous combustible material in the streets, lots, grounds, alleys,
or about or in the vicinity of any building; to regulate, prevent and
punish the carrying of concealed weapons ; to arrest, regulate, punish,
fine or set at work on the streets or elsewhere all vagrants and per-
sons found without visible means of support or some legitimate
business.
Twenty-fifth. Prevent and remove all encroachments upon and
into all sidewalks, streets, avenues, alleys or other city or village
property, and to punish and prevent all horse racing, fast driving
or riding in the streets, highways, alleys, bridges or places in the
city or village, and all games, practices or amusements therein likely
to result in damage to any person or property; to regulate, prevent
and punish the riding, driving and passing of horses, mules, oxen,
cattle or other teams, or any vehicle over, upon or across sidewalks
or along any street of the city or village.
Twenty-sixth. Open, widen or otherwise improve or vacate any
street, avenue, alley or lane," in the limits of the city or village; and
also create, open and improve any new street, avenue, alley or lane:
Provided, That all damages sustained by the citizens of the city or
village or of the owners of the property therein shall be ascertained
in such manner as shall be provided by ordinance : Provided, further,
That whenever any street, avenue, alley or lane shall be vacated,
the same shall revert to the owner of the adjacent real estate, one-
half on each side thereof.
Twenty-seventh. Create, open, widen or extend any street, ave-
nue, alley or lane, or annul, vacate or discontinue the same whenever
deemed expedient for the public good, and to take private property
for public use or for the purpose of giving right of way or other
privileges to any railroad company, or for the purpose of erecting
or establishing market houses or market places, or for any other
necessary public purpose: Provided, however, That in all cases the
city or village shall make the person or persons whose property shall
be taken or injured thereby adeauate compensation therefor, to be
determined by the assessment of five disinterested holders, who shall
be elected and compensated as may be prescribed by ordinance, and
Ch. 5. powers 941
who shall, in the discharge of their duties, act under oath faithfully
and impartially to make the assessment to be submitted.
Twenty-eighth. Borrow money on the credit of the city, and
pledge the credit, revenue and public property of the city for the
payment thereof, when authorized in the manner hereinafter pro-
vided; and to evidence the same by issuance of bonds, with proper
interest coupons attached thereto.
Twenty-ninth. All ordinances shall be passed pursuant to such
rules and regulations not inconsistent with the general laws relating
thereto as the council or board of trustees may provide; and all such
ordinances may be proved by the certificate of the clerk under the
seal of the city or village, and when printed or published in book
or pamphlet form by authority of the city or village, shall be read
and received in evidence in all courts and places without further
proof.
Thirtieth. The council or trustees shall cause to be published
semi-annually a statement of the receipts of the corporation and
source thereof, and an itemized account of expenditures, with a state-
ment of the financial condition of the city or village.
Thirty-first. Purchase, hold and pay for, in the manner herein
provided, lands not exceeding eighty acres in one body outside of the
corporate limits, for the purpose of the burial of the dead, and all
necessary grounds, hospital grounds and water works.
Thirty-second. Survey, plat, map, grade, fence, ornament and oth-
erwise improve all burial and cemetery grounds and avenues leading
thereto, owned by said city or village ; to construct walks and protect
ornamental trees therein, and provide for paying the expenses
thereof.
Thirty-third. Convey cemetery lots by certificates signed by the
mayor or chairman and countersigned by the clerk, under the seal of
the city or village, specifying that the person to whom the same is
issued is the owner of the lot or lots described therein by number,
as laid down on such map, or plat, for the purpose of interment,
and such certificate shall vest in the proprietor, his or her heirs or
assigns, a right in fee simple to such lots for the sole purpose of
interment, under the regulation of the city council, or board of
trustees, and such certificate shall be entitled to be recorded in the
office of the county recorder of the propert county, without further
acknowledgment, and such description of lots shall be deemed and
recognized as sufficient description thereof.
Thirty-fourth. Limit the number of cemetery lots which shall
be owned by the same person at the same time; to prescribe rules
for inclosing, adorning and directing monuments and tombstones on
cemetery lots; to prohibit any diversion of the use of such lots, and
any improper adornment thereof; but no religious test shall be made
as to the ownership of the lots, the burial therein or the ornamenta-
tion of graves or of such lots.
Thirty-fifth. Pass rules and ordinances imposing penalties and
fines not exceeding one hundred dollars, regulating, protecting and
governing the cemetery, the owners of lots therein, visitors thereof
and trespassers therein, and the officers of such city or village shall
have as full jurisdiction and power in the enforcement of such rules
as though they related to the corporation itself.
942
CITIES AND VILLAGES
Tit. 13
Thirty-sixth. Acquire, by purchase or otherwise, water works
or plants, and illuminating plants, and to supply the municipalities
and the inhabitants thereof with water and light, and to charge
private persons and corporations for water and light, or either;
but all such charges for rates shall be reasonable and shall be uni-
form and equal to all alike and based upon the service supply, pro-
portionately, without discrimination in favor of or against any person
or persons whomsoever.
Thirty-seventh. To prevent and extinguish fires, and for that
purpose to purchase fire engines and to erect engine houses, and
purchase hose carts, hose, hooks, ladders, trucks, buckets, ropes, and
all other apparatus, to maintain a fire department, to provide cisterns,
hydrants, water works, or purchase water for fire purposes from
others maintaining water works in such town or village, in such
manner as the council or trustees by ordinance determine.
Historical: Laws 1893, 97, Sec. 69;
amended Laws 1897, 34, Sec. 69; re-
enacted Laws 1899. 192, Sec. 73;
amended Laws 1901, 90, Sec. 1;
amended Laws 1903, 411, Sec. 1;
amended Laws 1905, 113. Sec. 1;
amended Laws 1907, 509, Sec. 1.
Subd. 3 7 is taken from Rev. St. 1887,
Sec. 2230, Subd. 12, declared to be
still in force, notwithstanding- Laws
1899, 192, Jack v. Village of Grange-
ville (1903) 9 Ida. 291; 74 Pac. 969.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8711,
et seq.
Cross Reference: Cities and vil-
lages may make and enforce local
police regulations: Const. Art. 12, Sec.
2. May contract indebtedness and
own property for school. water,
sanitary and illuminating purposes:
Const. Art. 12, Sec. 4. Shall not be-
come stockholders in corporations:
Const. Art. 12, Sec. 4. License of
liquor dealers: Sec. 1513. Contract
for supplying city with water: Sec.
2838. Determination of water rates:
Sec. 2839. Gas companies cannot lay
pipes in streets without permission
from city authorities: Sec. 3041. May
establish public libraries: Sec. 675.
Cited: State v. Preston (1894) 215;
38 Pac. 694. Carson v. City of Gene-
see (1903) 9 Ida. 244; 74 Pac. 862.
Village of Sand Point v. Doyle (1905)
11 Ida. 642; 83 Pac. 598.
Dissolution of Corporation: The
trustees of a town have no right or
power under this section to dissolve
or attempt to dissolve the corpora-
tion; this can only be accomplished
by act of the Legislature. People v.
Bancroft (1892) 3 Ida. 356; 29 Pac.
112.
Levy of Taxes: The power of towns
and villages to levy a tax for general
revenue purposes does not authorize
them to levy a property road tax.
City of Genesee v. Latah Co. (1894)
4 Ida. 141; 36 Pac. 701.
Repair of Streets: The right of
towns and villages to repair high-
ways, streets and alleys is exclusive,
and the county commissioners cannot
authorize a road overseer to go with-
in the limits of any organized town
or village to repair, or interfere with,
its streets or alleys. lb.
Fire Departments: Subd. 12 of Rev.
St. Sec. 2230, which empowers mu-
nicipal boards of trustees to purchase
fire engines and other apparatus and
to maintain Are departments, is not
in conflict with, nor repealed, by, the
act of which this section is a part.
Jack v. Village of Grangeville (1903)
9 Ida. 291; 74 Pac. 969.
Suppression of Prostitution.
Sec. 2239. City councils, boards of aldermen and boards of trustees
of cities and towns and villages in this State, heretofore incorporated
under special or general laws, or hereafter incorporated, are hereby
vested with authority and power to regulate or to suppress and pro-
hibit prostitution within the limits of their respective cities, towns
and villages; and are hereby authorized and empowered to pass such
ordinances, by-laws, rules and regulations as may be necessary to
effect such regulation, suppression or prohibition within their re-
spective cities, towns and villages.
Historical: Laws 1899, 295. Sec. 1;
re-enacting Laws 1897, 18, Sec. 1.
Ch. 5. powers 943
Highway Labor and Commutation Fee.
Sec. 2240. Each city and village governed by this title is" hereby
empowered to provide that all the able bodied male residents of the
corporation between the ages of twenty-one and fifty years, shall,
between the first day of April and the first day of September of
each year, either by themselves or satisfactory substitutes, perform
two days' labor upon the streets, alleys or highways within such
corporation at such times as the proper officer may direct and upon
three days' notice given in writing. They may further provide that,
for each day's failure to attend and perform the labor as required
at the time and place specified, the delinquent shall forfeit and pay
to the corporation any sum not exceeding one dollar for each day's
delinquency. The amount so due shall be treated and collected as
taxes on property and the same shall be a lien on all the property
of such persons that may be listed and assessed for taxation for
that year; and it shall be the duty of the city council or trustees to
certify the amount due from each individual as aforesaid to the
county tax collector as hereinafter provided. And the certificate of
the city or village clerk, under the seal of the city, that the person
named therein has performed labor as herein required, shall be
received by the county tax collector in discharge of the amount due
from such person.
Historical: Laws 1899, 192, Sec. 74; Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 70. I Cobbey's An. Stat. Vol. 2, Sec. 8749.
Drainage of Stagnant Water.
Sec. 2241. Each city and village governed by this title shall have
power to cause any lot of land within its limits on which water may
at any time become stagnant to be filled up or drained in such man-
ner as may be directed by a resolution of the council or trustees;
and such owner or his agent shall, after service of a copy of such
resolution or after a publication of the same in some newspaper of
general circulation in such corporation for two consecutive weeks,
comply with the directions of such resolution within the time therein
specified; and in case of a failure or refusal to do so, it may be done
by said corporation; and the amount of money so expended shall be
assessed against such property, and the amount thereof collected as
other special assessments.
Historical: Laws 1899, 192, Sec. 75; Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 71. I Cobbey's An. Stat. Vol. 2, Sec. 8750.
Supervision of Streets, Bridges and Squares.
Sec. 2242. The city council or board of trustees shall have the care,
supervision and control of all public highways, bridges, streets, alleys,
public squares and commons within the city or village, and shall cause
the same to be kept open and in repair and free from nuisances.
The city shall have power by ordinance to sell and convey all public
squares, streets and alleys within the city or village: Provided,
A petition containing the signatures of three-fourths of the property
holders of said city be presented to the city council, and that said
petition be published not less than four weeks in a paper published
in said city, and that any person aggrieved by said sale shall state
Vol. 1—31
944
CITIES AND VILLAGES
Tit. 13
cause why said property should not be sold to the District Court
of said -county wherein said city is situated, and if the said court
shall decide that said party or parties have shown good and sufficient
cause why said public property should not be so disposed of, then
said public property shall not be sold. The proceeds of such property
shall not be used for any other purpose except to pay any indebted-
ness against said city or for public improvement in said city.
All public bridges exceeding sixty feet in length over any stream
crossing a State or county highway shall be constructed and kept
in repair by the county: Provided, That when any city or village
has constructed a bridge over sixty feet span on any county or State
highway within its corporate limits and has incurred a debt for the
same, then the treasurer of the county in which said bridge is located
shall pay to the treasurer of said city or village seventy-five per cent
of all bridge taxes collected in said city or village until said debt and
interest upon the same is fully paid: Provided, further, That the
council or trustees may appropriate in the manner hereinafter pro-
vided, a sum not exceeding five dollars per lineal foot to aid in the
construction of any county bridge within the limits of such city, or
may appropriate a like sum to aid in the construction of any bridge
contiguous to said city or village on a highway leading to the same,
or any bridge across any unnavigable river which divides the county
in which said city or village is located, from another State, and that
no street or alley which shall hereafter be dedicated to public use
by the proprietor of ground in any city or village, shall be deemed
a public street or alley, or be under the use or control of the city
council or board of trustees, unless the dedication shall be accepted
and confirmed by an ordinance especially passed for such purpose.
Historical: Laws 1899, 19 2, Sec. 81;
re-enacting- Laws 1893, 97, Sec. 77.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8756.
Cross Reference: City council and
village trustees have powers of county
commissioners with respect to the
streets within the city and village:
Sec. 893. Railroads not to use streets
without a two-thirds vote by munici-
pal authorities. Const. Art. 11, Sec.
11. Also Codes Sec. 2807.
Liability for Defective Streets: A
bridge connecting two streets within
the corporate limits of a village is
under the exclusive control of the vil-
lage, and the village is bound to keep
it in repair and safe for the accom-
modation of the traveling public, and
is liable for any injury resulting to a
traveler from its neglect of duty in
that respect. Village of Sand Point
v. Doyle (1905) 11 Ida. 642; 83 Pac.
598.
Cities and villages have exclusive
control over streets, etc., within their
limits, and are liable to a traveler on
such streets who is injured by a neg-
ligent discharge by the municipality
of the duties imposed by this section.
Carson v. Citv of Genesee (1903) 9
Ida. 2 44; 74 Pac. 862. Eaton v. City
of Weiser (1906) 12 Ida. 544; 86 Pac.
541.
Disposition of Discontinued Streets.
Sec. 2243. In all cases where any street, highway, avenue, alley or
lane in any incorporated city, town, or village, shall have been or shall
hereafter be annulled, vacated, or discontinued, the mayor and com-
mon council of such city, or the board of trustees of such town or vil-
lage, may, by ordinance, dispose of the part or portion of such street,
highway, avenue, alley or lane so vacated, annulled, or discontinued,
and may direct a conveyance thereof to be executed by the mayor of
such city, or the chairman of the board of trustees of such town or
village, to the person named in such ordinance ; and such deed, when
Ch. 6.
ELECTIONS
945
so executed and delivered, shall operate to convey a good and valid
title in and to the said premises to the person named therein. This
section shall apply to all cities, towns, and villages, whether incorpo-
rated under special or general laws.
Historical: Laws 1901, 14, Sees.
1, 2.
Regulation of Huckstering.
Sec. 2244. No charge or assessment of any kind shall be made or
levied on any wagon or other vehicle or the horses thereto attached,
or on the owner bringing produce or provisions to any of the markets
in the city or village, or standing in or occupying a place in any of
the market spaces of the city or village or in the streets contiguous
thereto, on market days and evenings previous thereto ; but the city
council or board of trustees shall have full power to prevent forestall-
ing, to prohibit or regulate hucksterings in the markets, to prescribe
the kind and description of articles which may be sold, and the stands
or places to be occupied by the vendors, and may authorize the im-
mediate seizure and arrest or removal from the markets of any per-
son violating its regulations as established by ordinance, together
with any article of produce in their possession, and the immediate
seizure and destruction of tainted or unsound meat or other provis-
ions.
Historical: Laws 1899, 192, Sec. 82;
re-enacting Laws 1893, 97, Sec. 78.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8757.
CHAPTER 6.
MUNICIPAL ELECTIONS.
Section.
Section
2245.
Time for holding elections.
2251.
Notice to register.
2246.
Notice of election.
2252.
Compensation of registrars.
2247.
Filling vacancies among judges
and clerks.
2253.
Application of preceding sec-
tions.
2248.
Qualifications of electors.
2254.
Certificates of election.
2249.
2250.
Appointment of registrars.
Registration books and elect-
ors' oaths.
2255.
Application of general election
law.
Time for Holding Elections.
Sec. 2245. On the first Tuesday of April, 1909, and biennially there-
after an election shall be held in each city and village governed by this
title, for officers as in this title provided. All of such officers shall be
elected and hold their respective offices for a term of two years, and
until their successors are elected and qualified. At said election the
qualified voters of such city may cast their ballots between the hours
of nine o'clock A. M. and seven o'clock P. M.
Historical: Laws 1899, 192, Sec. 60;
re-enacting Laws 1893, 97, Sec. 60;
amended Laws 1905, 385, Sec. 1.
"1909" inserted for "1905."
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8700.
Notice of Election.
Sec. 2246. The board of trustees shall give public notice of the
time and place of holding each election; said notice to be given not
less than ten nor more than twenty days previous to the election.
946
CITIES AND VILLAGES
Tit. 13
Historical: Laws 1899, 192, Sec. 50;
re-enacting Laws 1893, 97, Sec. 50.
"Each" is inserted for "such" before
"elections" and the position of this
section is changed. The section orig-
inally appeared in the subdivision of
the act relating to village government,
and required notice of "such" elec-
tions to be given. A careful search
of the subdivision failed to disclose
any election mentioned therein to
which the section could apply. The
Nebraska statute from which the law
was taken, verbatim, has "each" elec-
tion. The substitution is made on the
authority of that act, and the posi-
tion is changed as above noted, so
that it is believed that the ambiguity
is cleared, and the legislative intent
effectuated.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8690.
Filling Vacancies Among Judges and Clerks.
Sec. 2247. If, on any day appointed for holding any election under
the provisions of this title, any of the judges or clerks of election shall
fail to attend, the electors present may fill such vacancies from among
the qualified electors present.
Historical: Laws 1899, 192, Sec. 51;
re-enacting Laws 1893, 97, Sec. 51.
The position of this section is changed
for the reason stated in the note to
the preceding section.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8691.
Qualifications of Electors.
Sec. 2248. All qualified electors of this State who shall have re-
sided within the limits of any city of the second class, or village, for
three months preceding any election therein, shall be entitled to vote
at all city and village elections.
Historical: Laws 18 99, 192, Sec. 61;
re-enacting Laws 1893, 97, Sec. 61.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8701.
Appointment of Registrars.
Sec. 2249. The council of every city, and board of trustees of every
village in the State of Idaho shall, biennially, not more than two
months before every village or city election, appoint a registrar for
each ward or election precinct in such city or village, who shall per-
form the same duties, as nearly as may be, as are required of the
registrars of election precincts under the general laws of the State.
Historical: Laws 1905, 36, Sec. 1.
Omitting "immediately after the pass-
age of this act" and inserting "bien-
nially" for "annually." This act was
approved March 10, 1905, at which
time the law provided for annual
municipal elections. But by an act
approved March 15, 1905, (Laws 1905,
385, Sec. 2245, Ante), biennial elec-
tions were provided for.
Registration Books and Electors' Oaths.
Sec. 2250. The city or village clerk, as the case may be, shall pro-
vide, at the expense of the city or village, registration books and
blank elector's oaths, in form similar to those used for county and
State registration, and such other materials as may be necessary to
carry out the purposes of this chapter.
Historical: Laws 1905, 36, Sec. 2.
Cross Reference: Form of registra-
tion books: Sec. 394; of electors' oath*:
Sec. 396.
Notice to Register.
Sec. 2251. Such registrars shall take the statutory oath of office,
and shall give notice substantially as required of registrars in cases
of State and county registration : Provided, That such notice shall re.
Ch. 7.
FINANCES
947
quire the registrar to be at his place of registration on the four Satur-
days next preceding the day of election, and registration on other
days during the same period shall be under the same regulations as
are provided by law for State and county registration.
Cross Reference: Oath ot office:
Sec. 268. Notice of registration: Sec.
396.
Historical: Laws 1905, 36, Sec. 3.
"Statutory" inserted for "constitu-
tional" oath of office. There is no
constitutional oath except for mem-
bers of the Legislature. See Const.
Art. 3. Sec. 25.
Compensation of Registrars.
Sec. 2252. The compensation of registrars shall be the same as
that of the registrars appointed under the general laws of the State,
and shall be paid by the city or village as the case may be.
Historical: Laws 1905, 36, Sec. 4.
Cross Reference: Compensation of
registrars: Sec. 401.
Application of Preceding Sections.
Sec. 2253. The four preceding sections shall not apply to cities
having special charters which provide for registration.
Historical: Laws 1905, 36, Sec. 5.
Certificates of Election.
Sec. 2254. Certificates of election for all officers of cities and vil-
lages shall be made out, under the corporate seal, by the city council
or board of trustees, at their first meeting after any election of such
officers.
Historical: Laws 1899, 192, Sec. 62;
re-enacting Laws 1893, 97, Sec. 62.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 870 2.
Application of General Election Law.
Sec. 2255. All elections held in villages or cities as provided for in
this title, shall be conducted in manner and form as provided by the
general election law of the State.
Historical: Laws 1899, 192, Sec.
109; re-enacting Laws 1893, 97, Sec.
105.
Cross Reference:. General election
law: Title 3 of this Code.
CHAPTER 7.
MUNICIPAL FINANCES.
Section
Secti(
2256.
Duties of treasurer.
2265.
2257.
Trustees to keep account of
moneys.
2266.
2258.
Publication of financial state-
2267.
ments.
2268.
2259.
Same.
2269.
2260.
Non-compliance with law a
misdemeanor.
2270.
2261.
Deposit of municipal funds.
2271.
2262.
Warrants: How drawn.
2263.
Presentation of claims.
2272.
2264.
Payment of claims.
Collection of municipal taxes.
Payment by assessor to city
treasurer.
Fiscal year.
Annual appropriation bill.
Same: Estimate of expenses.
Expenditures not to exceed
appropriation.
Expenses not to precede ap-
propriation.
Special assessments: How
used.
948
CITIES AND VILLAGES
Tit. 13
Duties of Treasurer.
Sec. 2256. The treasurer of each city and village shall be the cus-
todian of all money belonging to the corporation ; he shall keep a sep-
arate account of each fund or appropriation, and the debits and cred-
its belonging thereto; he shall give to every person paying money into
the treasury a receipt therefor specifying the date of payment and
on what account paid; he shall also file copies of such receipts with
his monthly reports ; he shall at the end of each and every month, and
as often as may be required, render an account to the city council or
board of trustees, under oath, showing the state of the treasury at the
date of such account, and the balance of money in the treasury; he
shall also accompany such accounts with a statement of all receipts
and disbursements, together with all warrants redeemed and paid by
him; which said warrants, with any and all vouchers held by him,
shall be filed with his said account in the clerk's office, and if said
treasurer neglect or fail, for the space of ten days from the end of
each and every month, to render his said account, his office shall be
declared vacant, and the city council or board of trustees shall fill the
vacancy by appointment until the next election for city or village
officers.
Historical: Laws 1899, 192, Sec. 64;
re-enacting Laws 1893, 97, Sec. 64.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8704.
Removal of Treasurer: In order that
the board of trustees may declare the
treasurer's office vacant for failure to
render the accounts required by this
section, the board must first And as a
fact that the treasurer failed to ren-
der such accounts before they can
declare a vacancy or fill the same by
appointment. Village of Kendrick v.
Nelson (1907) 13 Ida. — ; 89 Pac.
755.
Trustees to Keep Account of Moneys.
Sec. 2257. It shall be the duty of the board of trustees in every in-
corporated town, city or village within the State of Idaho, to cause to
be kept an accurate account of all moneys received ; the sources from
whence derived, and all moneys expended, and the purposes to which
applied.
Historical: "Laws 1899. 192, Sec. 65;
re-enacting Laws 1893, 16, Sec. 1.
Publication of Financial Statements.
Sec. 2258. It shall be the duty of the treasurer of such towns,
cities and villages to cause to be published, for at least one insertion,
in some newspaper within said town, city or village, between the first
and second Mondays of January, April, July and October of each year,
a full statement of the receipts and expenditures of said town, giving
the source from whence received, to what purpose applied and to
whom paid.
Historical: Laws 1899, 192, Sec. 66;
re-enacting Laws 1893, 16, Sec. 2.
Same.
Sec. 2259. For the purpose of causing these reports to be pub-
lished as required, the trustees of every city, town and village shall
make such provision as may be necessary to carry into effect the re-
quirements of this title.
Ch. 7.
FINANCES
949
Historical: Laws 18 99, 192, Sec. 67;
re-enacting Laws 1893, 16, Sec. 3.
Non-Compliance With Law a Misdemeanor.
Sec. 2260. A failure upon the part of the treasurer of any town,
city or village to comply with the requirements of this title shall be
deemed a misdemeanor.
Historical: Laws 18 99. 192, Sec. 68;
re-enacting Laws 1893, 16, Sec. 4.
Deposit of Municipal Funds.
Sec. 2261. The treasurer may be required to keep all money in his
hands belonging to the corporation in such place or places of deposit
as may be provided by ordinance, but no such ordinance shall be
passed by which the custody of such money shall be taken from the
treasurer and deposited elsewhere than in some regularly organized
bank, nor without a bond to be taken from such bank, in such penal
sum and with such security as the council or board of trustees shall
direct and approve, sufficient to save the corporation from any loss,
but such penal sum shall not be less than the estimated receipts for
the current year from taxes and special assessments levied and to be
levied by the corporation.
Historical: Laws 18 9 9, 192, Sec. 69;
re-enacting Laws 1893, 97, Sec. 65:
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8705.
Warrants: How Drawn.
Sec. 2262. All warrants drawn upon the treasurer must be signed
by the mayor or chairman, and countersigned by the clerk, stating the
particular fund or appropriation to which the same is chargeable and
the person to whom payable, and for what particular object; no
money shall be otherwise paid than upon such warrants so drawn.
Each warrant shall specify the amount levied and appropriated to
the fund upon which it is drawn, and the amount already expended
of such fund.
Historical: Laws 18 99, 192, Sec. 70;
re-enacting Laws 1893, 97, Sec. 66.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 870 6.
Cited: Theiss v. Hunter (1896) 4
Ida. 788; 45 Pac. 2.
Signature of Warrants: It is the
duty of the mayor to sign a warrant
presented to him for signature on a
claim allowed by the city council.
Rice v. Gwinn (1897) 5 Ida. 394; 49
Pac. 412.
Presentation of Claims.
Sec. 2263. All claims against the city or village must be presented
to the council or trustees in writing, with a full account of the items,
verified by the oath of the claimant, or his agent, that the same is
correct, reasonable and just, and no claims or demands shall be aud-
ited or allowed unless presented and verified as provided for in this
section; and no costs shall be recovered against such city or village
in any action brought against it for any unliquidated claim which has
not been presented to the city council or board of trustees to be aud-
ited, nor upon claims allowed in part, unless the recovery shall be for
a greater sum than the amount allowed with interest due.
Historical: Laws 189 9, 192, Sec. 84;
re-enacting Laws 1893, 97, Sec. 80.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8759.
950
CITIES AND VILLAGES
Tit. 13
Payment of Claims.
•
Sec. 2264. Upon the allowance of claims by the council or trustees,
the order for their payment shall specify the particular fund or ap-
propriation out of which thejr are payable, as specified in the annual
appropriation bill to be passed in the manner hereinafter provided:
and no order or warrant shall be drawn in excess of fifty per centum
of the current levy for the purpose for which it is drawn, unless there
shall be sufficient money in the treasury to the credit of the proper
fund for its payment, and no claim shall be audited or allowed except
an order or warrant for the payment thereof may legally be drawn.
Comparative Legislation : See Xeb.
Cobbey's An. Stat. Vol. 2, Sec. 8760.
Historical: Laws 1899, 192, Sec. 85;
re-enacting Laws 1893, 97, Sec. 81.
Collection of Municipal Taxes.
Sec. 2265. The council or trustees of each city or village shall, at
the time provided by law, cause to be certified to the county tax col-
lector the percentage or number of mills on the dollar of tax levied
for all city or village purposes by them on the taxable property within
said corporation for the year then ensuing as shown by the assess-
ment roll for said year, including all special assessments and taxes
assessed as hereinbefore provided, and the said tax collector shall
place the same on the proper tax lists to be collected in the manner
provided by law for the collection of State and county taxes in the
county where such city or village is situated, and in all sales for any
delinquent taxes for municipal purposes, if there be other delinquent
taxes from the same person, or lien upon the same property, the sale
shall be for all the delinquent taxes ; and such sales and all sales made
under and by virtue of this section or the provisions of law herein
referred to shall be of the same validity, and, in all respects, be
deemed and treated as though sales had been made for the delinquent
State and county taxes, exclusively. The amount which may be so
certified, assessed and collected, shall not exceed ten mills on the
dollar to defray its general and incidental expenses, together with
any special assessment or special taxes, or amounts so assessed as
taxes under the provisions of this chapter, and such sum as may be
authorized by law to be levied for the payment of outstanding bonds
and debts.
Historical: Laws 1899, 192, Sec. 86;
re-enacting Laws 1893, 97, Sec. 82.
ComparatiAe Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8761.
Cited: Theiss v. Hunter (1896) 4
Ida. 788; 45 Pac. 2. City of Moscow
v. Latah Co. (1896) 5 Ida. 36; 46 Pac.
874.
Xot Repealed: This section is not
repealed by Laws 1903, 26, authoriz-
ing' the construction of sewers, and
the city authorities may certify sewer-
age taxes to the county tax collector
to be collected as other taxes. Den-
ning v. City of Moscow (1905) 11 Ida.
415; 83 Pac. 339.
Payment by Assessor to City Treasurer.
Sec. 2266. The tax collector of the county shall pay over on de-
mand, to the treasurer of any city or village, all money received by
him arising from taxes levied belonging to such city or village, to-
gether with all money collected as a tax on dogs from the residents
of such corporation, for the use of the general fund therein.
Ch.7.
FINANCES
951
Historical: Laws 189 9, 192, Sec. 88;
re-enacting Laws 1893, 97, Sec. 84.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8763.
Duty of Tax Collector: The tax col-
lector is required to pay over to the
city treasurer, on demand, all moneys
received by him arising from taxes
levied by said city. Neither the tax
collector nor the county has any legal
right to retain any part whatever of
the taxes so collected as premium for
their collection, but all such money
must be paid to the city treasurer on
demand. City of Moscow v. Latah
Co. (1896) 5 Ida. 36; 46 Pac. 874.
Fiscal Year.
Sec. 2267. The fiscal year of each city or village shall commence
on the first Tuesday of May.
Historical: Laws 1899, 192, Sec. 89;
re-enacting Laws 1893, 97, Sec. 85.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8764.
Annual Appropriation Bill.
Sec. 2268. The city council of cities, and board of trustees in vil-
lages, shall, within the first quarter of each fiscal year, pass an ordi-
nance to be termed the annual appropriation bill, in which such
corporate authorities may appropriate such sum or sums of money
as may be deemed necessary to defray all necessary expenses and
liabilities of such corporation, not exceeding in the aggregate the
amount of tax authorized to be levied during that year, and at the
same time said council of cities, and board of trustees in villages,
unless provision shall have been made as provided by law, for the
funding, refunding, purchase, redemption or exchange of the out-
standing city or village warrant indebtedness, must, whenever any
city or village shall have warrants outstanding and unpaid for the
payment of which there are no funds in the city or village treasury,
in addition to other taxes provided by law, if such warrants amount
to a sum equal to five per cent or more of the value of the taxable
property of such city or village as shown by the last preceding assess-
ment, levy and include in such annual appropriation bill, a special tax
assessment of not to exceed ten mills on the dollar, as shown by such
preceding assessment; if such warrants amount to a sum equal to
four per cent and less than five per cent of such taxable property,
they must levy and include in such annual appropriation bill, a special
tax or assessment of not to exceed eight mills on the dollar as shown
by such preceding assessment; if such warrants amounts to a sum
equal to three per cent and less than four per cent of such taxable
property, they must levy and include in such annual appropriation
bill a special tax or assessment of not to exceed six mills on the dollar
as shown by such preceding assessment; if such warrants amount
to a sum equal to two per cent and less than three per cent of such
taxable property, they must levy and include in such annual appro-
priation bill a special tax or assessment of not to exceed four mills
on the dollar as shown by such preceding assessment; if such war-
rants amount to one per cent and less than two per cent of such tax-
able property, they must levy and include in such annual appropria-
tion bill a special tax or assessment of not to exceed two mills on the
dollar as shown by such preceding assessment; and if such warrants
amount to less than one per cent of such taxable property, then they
must levy and include in such annual appropriation bill such special
tax or assessment on the dollar as shown by such preceding assess-
ment as shall be sufficient to pay such warrants. All moneys arising
952
CITIES AND VILLAGES
Tit. 13
from such special tax or assessment shall be placed in a. special fund
for the redemption of such warrants, which shall be paid exclu-
sively out of said fund, which shall be known as the warrant redemp-
tion fund. All moneys in the city or village treasury at the end of
each fiscal year, not needed for current expenses, and applicable
thereto, shall be transferred to said warrant redemption fund. Such
ordinance shall specify the object and purposes for which such appro-
priations are made, and the amount appropriated for each object or
purpose. No further appropriation shall be made at any other time
within such fiscal year, unless the proposition to make each appro-
priation has been first sanctioned by a majority of the legal voters
of such city or village, either by a petition signed by them, or at a
general election duly called therefor, and all appropriations shall end
with the fiscal year for which they were made.
Cited: Theiss v. Hunter (1896) 4
Ida. 788; 45 Pac. 2.
Historical: Laws 1899, 192, Sec. 90;
re-enacting Laws 1893, 97, Sec. 86;
amended Laws 1897, 50, Sec. 1.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8765.
Same : Estimate of Expenses.
Sec. 2269. Before such annual appropriation bill shall be passed,
the council or trustees shall prepare an estimate of the probable
amount of money necessary for all purposes to be raised in said city
or village during the fiscal year for which the appropriation is to be
made, including interest and principal due on the bonded debt and
sinking fund, itemized and classifying the different objects and
branches of expenditures as near as may be with a statement of the
entire revenue of the city or village for the previous fiscal year, and
shall enter the same at length upon its minutes and cause the same to
be published four weeks in some newspaper published, or of general
circulation, in the city or village.
Historical: Laws 1899, 192, Sec. 91;
re-enacting Laws 1893, 97, Sec. 87.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8766.
Expenditures Not to Exceed Appropriation.
Sec. 2270. The mayor and council, or board of trustees, shall have
no power to appropriate, issue or draw any order or warrant on the
treasurer for money, unless the same has been appropriated or or-
dered by ordinance, or the claim for the payment of which such order
or warrant is issued, has been allowed according to the provisions of
this chapter, and appropriations for the class or object out of which
such claim is payable has been made as provided in Section 2268.
Neither the city council nor board of trustees, nor any department or
officer of the corporation, shall add to the corporation expenditures in
any one year anything over and above the amount provided for in the
annual appropriation bill for the year, except as herein otherwise spe-
cially provided ; and no expenditures for an improvement to be paid
for, out of the general fund of the corporation, shall exceed in any
one year the amount provided for such an improvement in the annual
appropriation bill: Provided, however, That nothing herein con-
tained shall prevent the city council or board of trustees from order-
ing, by two-thirds vote, the repair or restoration of any improvement,
the necessity of which is caused by any casualty or accident happen-
Ch. 8. GENERAL PROVISIONS 953
ing after such annual appropriation is made. The city council or
board of trustees may, by a like vote, order the mayor or chairman
of the board of trustees, and finance committee, to borrow a sufficient
sum to provide for the expense necessary to be incurred in making
any repairs or restoration of improvements, the necessity for which
has arisen as is last above mentioned, for a space of time not exceed-
ing the close of the next fiscal year, which sum and the interest shall
be added to the amount authorized to be raised in the next general tax
levy, and embraced therein. Should any judgment be obtained
against the corporation, the mayor or the board of trustees and finance
committee, under the sanction of the city council or board of trus-
tees, may borrow a sufficient amount to pay the same, for a space of
time not exceeding the close of the next fiscal year, which sum and
interest shall, in like manner, be added to the amount authorized to
be raised in the general tax levy of the next year and embraced
therein.
Historical: Laws 18 99, 192, Sec. 92; Comparative Legislation: See Neb.
re-enacting Laws 1893, 97,' Sec. 88. I Cobbey's An. Stat. Vol. 2, Sec. 8767.
Expenses Not to Precede Appropriation.
Sec. 2271. No contract shall be hereafter made by the city council
or board of trustees, or any committee or member thereof ; and no ex-
pense shall be incurred by any of the officers or departments of the
corporation, whether the object of the expenditures shall have been
ordered by the city council or board of trustees or not, unless an ap-
propriation shall have been previously made concerning such expense,
except as herein otherwise expressly provided.
Historical: Laws 18 99, 192, Sec. 93; Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 89. I Cobbey's An. Stat. Vol. 2, Sec. 8768.
Special Assessments: How Used.
Sec. 2272. All money received on special assessments shall be held
by the treasurer as a special fund to be applied to the payment of the
improvement for which the assessment was made, and said money
shall be used for no other purpose whatever, unless to reimburse such
corporation for money expended for such improvement.
Historical: Laws 1899, 192, Sec. 94; | Comparative Legislation: See Neb.
re-enacting Laws 1893, 97, Sec. 90. I Cobbey's An. Stat. Vol. 2, Sec. 8769.
CHAPTER 8.
GENERAL PROVISIONS GOVERNING CITIES AND VILLAGES AND THEIR
OFFICERS.
Section
2273. Corporate name: Service of
process.
2274. Ordinances: Style, publication,
and when effective.
2275. Passage of ordinances: Ap-
pointment of officers.
2276. Same: Reading and title:
Amendments.
Section
2277. Journal. Record of outstand-
ing bonds.
22 78. City attorney.
2279. Officers not to be interested
in contracts: Extra allowances
prohibited.
2280. Salaries not to be changed
during term.
Corporate Name: Service of Process.
Sec. 2273. The corporate name of each city or village governed by
954
CITIES AND VILLAGES
Tit. 13
this chapter shall be, the "city (or village) of
and all and
every process and notice whatever affecting such corporation, shall
be served upon the mayor or chairman of the board of trustees, and in
his absence, upon the clerk, or in the absence of such officers, then by
leaving a certified copy at the office of the clerk.
Historical: Laws 189 9, 192, Sec. 57;
re-enacting Laws 1893, 97, Sec. 57.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8697.
Ordinances: Style, Publication, and When Effective.
Sec. 2274. The style of all ordinances shall be : "Be it ordained by
the mayor and council of the city of or the chairman and
board of trustees of the village of ," and all ordinances of a
general nature shall, before they take effect and within one month
after they are passed, be published by written or printed handbill, or
one time in some newspaper published in the city or village, but if
no paper be published within said city or village, then in some paper
having general circulation therein : Provided, however, That in case of
riot, infectious or contagious diseases, or other impending danger, re-
quiring its immediate operation, such ordinances shall take effect upon
the proclamation of the mayor or chairman of the board of trustees,
posted in at least five public places in the city or village.
Historical: Laws 189 9, 192, Sec. 59;
re-enacting- Laws 1893, 97, Sec. 59.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8699.
Passage of Ordinances: Appointment of Officers.
Sec. 2275. On the passage or adoption of every by-law or ordi-
nance, and every resolution or order to enter a contract by the coun-
cil or board of trustees, the yeas and nays shall be called and re-
corded, and to pass or adopt any by-law, ordinance, or any such reso-
lution or order, a concurrence of a majority of the whole number of
members elected to the council or trustees shall be required. All ap-
pointments of the officers by any council or trustees shall be made
viva voce and the concurrence of a like majority shall be required, and
the names of those voting, and for whom they voted on the vote re-
sulting in an appointment, shall be recorded.
Historical: Laws 1899, 192, Sec. 80;
re-enacting Laws 1893, 97, Sec. 76.
"Voting" inserted after "those" in
next to last line to complete the
sense.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8755.
Cited: Rice v. Gwinn (189 7) 5 Ida.
394; 49 Pac. 412.
Same : Reading and Title : Amendments.
Sec. 2276. All ordinances and resolutions, or orders for the ap-
propriation or payment of money, shall require for their passage or
adoption the concurrence of a majority of all members elected to the
council or board of trustees. Ordinances of a general or permanent
nature shall be fully and distinctly read on three different days, unless
three-fourths of the council or trustees shall dispense with the rule.
Ordinances shall contain no subject which shall not be clearly expressed
in their title, and no ordinance or section thereof shall be revised or
amended unless the new ordinance contain the entire ordinance or
section as revised or amended, and the ordinance or section so amended
shall be repealed.
Ch. 8.
GENERAL PROVISIONS
955
Historical: Laws 1899, 192, Sec. 83;
re-enacting Laws 1893, 97, Sec. 79.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8758.
Sufficiency of Title: The subject of
an ordinance prescribing- the payment
of a fixed sum as license for retail
liquor dealers, prohibiting running a
restaurant or lunch counter in con-
nection with saloons, requiring the
doors of saloons to be closed on Sun-
day, and prohibiting music, singing
and dancing in saloons, is sufficiently
expressed by the title, "An Ordinance
Regulating and Licensing Liquor
Dealers." Village of St. Anthony v.
Brandon (1904) 10 Ida. 205; 77 Pac.
322.
Journal: Record of Outstanding Bonds.
Sec. 2277. The city or village clerk shall have the custody of all
laws and ordinances, and shall keep a correct journal of the proceed-
ings of the council or board of trustees. He shall also keep a record of
all outstanding bonds against the city or village, showing the num-
ber and amount of each, for and to whom the said bonds were issued ;
and when any bonds are purchased or paid or cancelled, said record
shall show the fact. In his annual report, he shall describe particu-
larly the bonds issued and sold during the year, and the terms of
sale, with each and every item of expense thereof. He shall also per-
form such other duties as may be required by the ordinances of the
city.
Historical: Laws 18 99, 192, Sec. 63;
re-enacting Laws 1893, 97, Sec. 63.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8703.
City Attorney.
Sec. 2278. The city or village attorney shall be the legal adviser of
the council and board of trustees. He shall commence, prosecute, and
defend all suits and actions necessary to be commenced, prosecuted
or defended on behalf of the corporation, or that may be ordered by
the council or board of trustees. When requested, he shall attend
meetings of the council or board, and give them his opinion upon any
matters submitted to him, either orally or in writing as may be re-
quired.
Historical: Laws 1899, 192, Sec. 71;
re-enacting Laws 1893, 97, Sec. 67.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8707.
Officers Not to Be Interested in Contracts: Extra Allowances Prohibited.
Sec. 2279. No officer of any city or village shall be interested di-
rectly or indirectly in any contract of which the corporation or any
one for its benefits is a party; and any such interest in any such
contract shall avoid the obligation thereof, on the part of such corpo-
ration; nor shall any officer receive any pay or perquisites from the
city other than his salary as fixed by ordinance and this title; and
neither the city council or board of trustees shall pay or appropriate
any money or other valuable thing to any person not an officer, for the
performance of any act, service or duty, the doing or performance of
which shall come within the proper scope of the duties of any such
officer of such corporation.
Historical: Laws 1899, 192, Sec. 72;
x-*nacting Laws 1893, 97, Sec. 68.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8710.
Salaries Not to Be Changed During Term.
Sec. 2280. The emoluments of no officer whose election or appoint-
ment is required by this title shall increase or diminish during the
956
CITIES AND VILLAGES
Tit. 13
term for which he shall have been elected or appointed ; and no person
who shall have resigned or vacated any office shall be eligible to the
same during the time for which he was elected or appointed, when
during the same time the emoluments have been increased.
Historical: Laws 18 9 9, 192, Sec. 79;
re-enacting- Laws 1893, 97, Sec. 75.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8754.
CHAPTER 9.
CHANGING NAMES OF MUNICIPALITIES.
Section
2281. Petition for change: Special
election.
2282. Duty of election boards.
2283. Successive elections.
Section
2284. Order changing name.
2285. Expenses of election:
paid.
2286. Existing rights unaffected,
How
Petition for Change: Special Election.
Sec. 2281. Whenever a majority of the legal voters of any incor-
porated town, village or city shall present a petition to the board of
county commissioners of the county in which such town, village or
city is situated, praying that a special election may be called in said
town, village or city for the purpose of voting on the question of
changing the name of such town, village or city, and if such board, or
a majority of the members thereof, shall be satisfied, by affidavit or
other proof, that a majority of the legal voters of such town, village
or city have signed such petition, it shall be the duty of such board
to forthwith give notice of the filing of such petition, by publishing
such notice in a newspaper published in said town, village or city, or
if there be no newspaper published in said town, village or city, then
by publishing such notice in some other paper published in the county,
or by posting said notice in three of the most public places in said
town, village or city. Said notice shall contain the date when the
same will be heard, which said date shall be not less than thirty days
after the first meeting of the board of county commissioners after the
filing of said notice, and said publication shall be made, or said no-
tices posed, for not Jess than twenty days before such petition is
acted upon by said board of county commissioners. At the hearing
of said petition, if it shall satisfactorily appear to said board of county
commissioners that said petition does contain the names, as signers
thereto, of a majority of the legal voters of said town, village or city,
and that the notice as herein required has been given, then it shall be
the duty of said board of county commissioners to forthwith call a
special election in said town, village or city for the purpose of sub-
mitting to the qualified electors thereof the question of changing
the name of such town, village or city. Notice of the time and place
of holding said election shall be given in the same manner, and said
election shall be conducted in all respects the same, as is provided by
law relating to general elections for town and village purposes. The
electors at said election shall designate, on their ballots, what name
they desire said town, village or city shall take, and the name receiv-
ing a two-thirds vote of all the votes cast at said election shall become
and remain the name of such town, village or city.
Historical: Laws 1899. 8 2, Sec. 1;
re-enacting Laws 1890-91, 127, Sec. 1.
Ch. 10. CONSOLIDATION OF MUNICIPALITIES 957
Duty of Election Boards.
Sec. 2282. It shall be the duty of the election board conducting
such election to certify to the board of county commissioners the tally
sheets used at such election, showing the votes cast, and the number of
votes cast for each name voted for at such election.
Historical: Laws 1899, 82, Sec. 2;
re-enacting Laws 1890-91, 127, Sec. 2.
Successive Elections.
Sec. 2283. In case no name has received two-thirds of all the votes
cast at such election, then said board of county commissioners shall
forthwith call another election in the same manner as the first, which
said election shall be conducted in the same manner as the first, and
the name receiving a majority of the votes cast at such second elec-
tion, shall become and remain the name of such town, village or city.
Historical: Laws 1899, 82, Sec. 3;
re-enacting Laws 1890-91, 127, Sec. 3.
Order Changing Name.
Sec. 2284. It shall be the duty of the board of county commission-
ers, upon receiving the tally sheets and returns of such election as
provided in Sections 2281 and 2283, to enter upon their record an or-
der changing the name of such town, village or city to the name se-
lected by the voters of such town, village or city at such special elec-
tion held as herein provided, and to make and file with the board of
trustees of such town, village or city, and also with the county re-
corder of the county, a certified copy of the order made by such board
of county commissioners in changing the name of such town, village or
city.
Historical: Laws 1899, 82, Sec. 4;
re-enacting Laws 1890-91, 127, Sec. 4.
Expenses of Election: How Paid.
Sec. 2285. The cost and expenses of holding the election or elec-
tions, as in this chapter provided, shall be paid by the town, village or
city where such election is held.
Historical: Laws 18 99, 8 2, Sec. 5;
re-enacting Laws 1890-91, 127, Sec. 5.
Existing Rights Unaffected.
• Sec. 2286. A change of name under the provisions of this chap-
ter shall not in any manner affect or alter any right of action, legal
process or property,
Historical: Laws 1899, 82, Sec. 6;
re-enacting Laws 1890-91, 127, Sec. 6.
CHAPTER 10.
CONSOLIDATION OF MUNICIPALITIES.
Section
2287. Adjacent cities and towns may
consolidate.
2288. Resolutions for joint session of
city council.
Section
2289. Same: Specification of time
and place.
2290. Officers of joint session.
2291. Conduct of session: Quorum.
958
CITIES AND VILLAGES
Tit. 13
Section
2297. Consolidated city to assume
debts.
2298. Property vests in consolidated
city.
22 99. County commissioners to make
order of consolidation.
Section
2292. Consolidation ordinance: For-
malities and contents.
2293. Same: Definition of bounda-
ries.
2 2 94. Journal of proceedings.
2295. Application of pre-existing
ordinances.
2296. Books of smaller city to be
turned over.
Adjacent Cities and Towns May Consolidate.
Sec. 2287. Whenever two cities, towns or villages organized under
the laws of this State, which are adjacent to each other, desire to con-
solidate so as to form one city, town or village, such consolidation
may be made under the provisions of this chapter.
Historical: Laws 1899, 35 9, Sec. 1.
Comparative Legislation: See Kan-
sas, Gen. Stat. 1901, Sec. 604.
Resolution for Joint Session of City Councils.
Sec. 2288. The mayor and council of any city, or the chairman and
board of trustees of any town or village desiring such consolidation
with the adjacent city, town or village may pass a resolution wherein
it shall be stated that such city, town or village desires to be consoli-
dated with the adjacent city, town or village, and shall also request the
city council or the board of trustees of such adjacent city, town or
village, to fix a time for the joint session of the city councils or boards
of trustees of the two cities, towns or villages, to pass an ordinance
consolidating the same.
Historical: Laws 1899, 359, Sec. 2.
Comparative Legislation: See Kan-
sas, Gen. Stat. 1901, Sec. 605.
Same : Specification of Time and Place.
Sec. 2289. The city council or board of trustees of such city, town
or village, shall upon the receipt of such resolution, if deemed expe-
dient, pass a resolution specifying the time and place of holding such
joint session of the city councils or boards of trustees, of the two cities,
towns or villages.
Historical: Laws 1899, 359, Sec. 3.
Comparative Legislation: See Kan-
sas, Gen. Stat. 1901, Sec. 606.
Officers of Joint Session.
Sec. 2290. At the time specified for holding such joint session of
such city councils or boards of trustees, the said councils or boards of
trustees shall meet at the place specified by the resolution fixing the
time and place for holding such joint session, and the mayor of the
larger city, or chairman of the board of trustees of the larger town
or village, shall be president of such session, and the clerk of such city,
town or village shall be secretary thereof. In case of absence of
either or both of said officers the corresponding officers of the smaller
city, town or village shall act as president or secretary, as the case
might be. In the absence of both mayors and chairmen or both clerks
Ch. 10. CONSOLIDATION OF MUNICIPALITIES 959
the joint session shall elect a president or secretary from the mem-
bers present.
Historical: Laws 1899, 35 9, Sec. 4.
Comparative Legislation: See Kan-
sas, Gen. Stat. 1901, Sec. 608.
Conduct of Session: Quorum.
Sec. 2291. Said joint session may be adjourned from time to time
until the business for which it is assembled is completed. On all pre-
liminary questions a majority of those present and voting shall be
sufficient, but on the final passage of the joint ordinance there must be
two-thirds of all the councilmen or trustees elect of each city, town or
village voting in the affirmative, to give such ordinance validity.
Historical: Laws 189 9, 35 9, Sec. 5.
Comparative Legislation: See Kan-
sas, Gen. Stat. 1901, Sec. 609.
Consolidation Ordinance: Formalities and Contents.
Sec. 2292. The joint ordinance shall be signed by the mayors of
both cities, or chairmen of both boards of trustees, as the case may
be, and attested by the clerks, and shall be published in some news-
paper published in one of the two cities, towns or villages proposed
to be consolidated for two successive weeks, prior to the time of the
taking effect of the ordinance, and such ordinance shall provide some
day in the future when such ordinance shall go into effect, such ordi-
nance shall state the terms upon which the consolidation of the two
cities, towns or villages shall be effected, and the said joint session
shall also adopt a name by which the said consolidated city, town or
village shall be known, which name shall be stated in such joint ordi-
nance.
Historical: Laws 1899, 359, Sec. 6.
Comparative Legislation: See Kan-
sas, Gen. Stat. 1901, Sec. 610.
Same: Definition of Boundaries.
Sec. 2293. Said joint ordinance shall define the boundaries of such
consolidated city, town or village, and for the purpose of making such
boundaries regular may include such territory adjacent to such city,
town or village as receives or will receive the benefit of the incorpora-
tion of such cities, towns or villages: Provided, That no city, town
or village receiving the benefits of this chapter shall include within its
corporate limits more than one-quarter section of land to each two
hundred inhabitants.
Historical: Laws 18 99, 3 5 9, Sec. 7.
Journal of Proceedings.
Sec. 2294. The proceedings of the joint session of the city councils
or boards of trustees herein provided for, shall be copied in the jour-
nal of the proceedings of the city council or board of trustees of the
larger city, town or village, and the joint ordinance shall be recorded
in the ordinance book of the larger city, town or village.
Historical: Laws 1899, 359, Sec. 8.
Comparative Legislation: See Kan-
sas, Gen. Stat. 1901, Sec. 626.
960 CITIES AND VILLAGES Tit. 13
Application of Pre-Existing Ordinances.
Sec. 2295. All ordinances, rules and regulations of the larger city,
town or village shall remain in force and effect over all the territory
embraced in such consolidated city, town or village.
Historical: Laws 18 9 9, 35 9, Sec. 9.
Books of Smaller City to Be Turned Over.
Sec. 2296. All records, papers and documents of the smaller city,
town or village in the hands of the clerk of such city, town or village,
shall be turned over to the clerk of the consolidated city, town or
village, and become the records of such consolidated city, town or
village, and the treasurer of such smaller city, town or village shall on
demand turn over all money, books, papers, or records in his hands
belonging to such smaller city, town or village, to the treasurer of the
consolidated city, town or village.
Historical: Laws 1899, 3 5 9, Sec. 10.
Comparative Legislation: See Kan-
sas, Gen. Stat. 1901, Sec. 627.
Consolidated City to Assume Debts.
Sec. 2297. All the claims, debts or demands against either of the
cities, towns or villages so consolidated shall be assumed and paid by
the consolidated city, town or village.
Historical: Laws 18 99, 3 5 9, Sec. 11.
Property Vests in Consolidated City.
Sec. 2298. All the property of every description, including all
debts, claims and demands of every description in favor of either of
the cities, towns or villages so consolidated, upon consolidation be-
comes the property of the consolidated city, town, or village.
Historical: Laws 1899, 359, Sec. 12. consolidated city," omitted as super-
"Of the consolidation" before "of the I fluous.
County Commissioners to Make Order of Consolidation.
Sec. 2299. After the passage of such ordinance herein provided
for, a true copy of such ordinance shall be filed with the clerk of the
board of county commissioners for the county in which such city, town
or village is situated, and such board shall, if it appears that the pro-
visions of this chapter have been complied with, make an order that
such cities, towns or villages are duly consolidated and incorporated
under the name adopted by such joint ordinance, and embracing the
territory described in such ordinance. Said board of county commis-
sioners shall also provide for the first election to be held in such con-
solidated city, town or village which election and the notice thereof
shall be the same and conducted in the same manner as other village
elections: Provided, That the city council or board of trustees of
the larger city, town or village shall be deemed the city council or
board of trustees of the consolidated city, town or village: Provided,
further. That if such ordinance is adopted within two months of the
biennial election held in the cites, towns and villages of this State, no
election need be provided for, but the city council or board of trustees
of the larger city, town or village shall be deemed the officers of the
Ch. 11.
PLATS
961
consolidated city, town or village until such biennial election, and the
biennial election shall be the first election of such consolidated city,
town, or village.
Historical: Laws 1899, 359, Sec. 13.
"Biennial" inserted for "annual" elec-
tion, to conform to Laws 1905, 385,
Sec. 1 (Code Sec. 2245).
CHAPTER 11.
CITY AND VILLAGE PLATS.
Section
Sectio
n
2300.
Essentials of plats.
2307.
Same: Effect.
2301.
Certification to plat: Accept-
2308.
Same: Enclosure of streets.
ance by municipal authorities.
2309.
Same: Duty of county re-
2302.
Survey: Stakes and monu-
corder.
ments.
2310.
Platting after vacation of
2303.
Same: Government corners to
prior plat.
be shown.
2311.
Enforcing execution of plat.
2304.
Effect of acknowledging and
2312.
Executing plat for purpose of
i
recording plat.
assessment.
2305.
Streets and alleys to be con-
2313.
Existing plats validated.
tinuous.
2314.
Penalty for selling unplatted
2306.
Vacation of plat.
lots.
Essentials of Plats.
Sec. 2300. When any owner or proprietor of any tract or parcel
of land, wishes to lay out a town site or an addition to any town, vil-
lage or city or subdivision of out lots, they shall cause the same to be
surveyed and a plat thereof made, which shall particularly and ac-
curately describe and set forth all the streets, alleys, commons or
public grounds, and all in and out lots or fractional lots within, ad-
joining or adjacent to said town site or addition, giving the names of
streets and width, boundaries and extent of all streets and alleys, and
courses of certain lines sufficient to determine the course of all streets
and alleys and lot lines. All lots shall be numbered by progressive
numbers in each block separately; blocks shall also be numbered. The
duty to file for record a plat as provided herein shall attach as a cove-
nant of warranty in all conveyances hereafter made of any lot or lots
included in said plat by the original owner or proprietor against any
and all assessments, costs and damages paid, lost or incurred by any
grantee or person claiming under him in consequence of the omission
on the part of said owner or proprietor to file such plat. Description
of lots or parcels of land according to the number and designation on
said plat in conveyances or for the purposes of taxation, shall be
deemed good and valid for all intents and purposes.
Historical: Laws 1893, 97, Sec. 91:
re-enacted Laws 1899, 192, Sec. 95;
amended Laws 1901, 183, Sec. 1.
Certification to Plat : Acceptance by Municipal Authorities.
Sec. 2301. The correctness of said plat must be certified to by the
surveyor making the survey, said certificate to contain a correct de-
scription of the land included in said plat, and the owner or owners
of the land included in said plat, shall also make a certificate contain-
ing the correct description of the land with the statement as to their
intentions to include the same in the plat, and must also make a deed of
962
CITIES AND VILLAGES
Tit. 13
donation of all streets and alleys, shown on said plat, which certifi-
cates and deeds shall be acknowledged before some officer duly au-
thorized to take acknowledgments of deeds, and shall be indorsed on
the plat and be recorded and form part of the record.
No plat of any townsite, or addition to any town, village or city, or
subdivisions of outlots, shall be accepted for record by the recorder of
any county unless said plat shall have first been submitted to the city
council, board of trustees, or other governing body of the town, vil-
lage or city to which said town sites, additions, or subdivisions of
outlots belong, and to which they are platted as such said town
sites, additions, or subdivisions of outlots, and have been accepted and
approved by the said city council, board of trustees, or other govern-
ing body of said town, village or city ; and shall have written thereon
the acceptance and approval of the said city council, board of trus-
tees, or other governing body of the town, village or city to which
said town sites, additions or subdivisions of outlots belong, and to
which they are platted as said townsites, additions or subdivisions
of outlots.
Historical: Laws 18 93. 97, Sec. 92;
re-enacted Laws 1899, 192, Sec. 96;
amended Laws 1901, 183, Sec. 2;
amended Laws 1905, 70, Sec. 1.
Survey : Stakes and Monuments.
Sec. 2302. In the survey of a town site, addition to any town, vil-
lage or city or subdivision of outlots, it shall be necessary to drive a
stake at each and every corner of each and every lot, or to mark
the same in some other good and substantial manner ; stakes must be
at least two inches square and fourteen inches in length, and driven
at least ten inches in the ground; stone monuments must be planted
six inches under ground, at different points in said town site or ad-
dition and upon the limiting lines of the same, with exact points
marked thereon, and must not be over eight hundred feet apart, fol-
lowing the course of streets; said monuments must contain at least
five hundred cubic inches, and the exact point where the same are
located must be marked on the plat.
Historical: Laws 1901, 183, Sec. 3.
Same: Government Corners to Be Shown.
Sec. 2303. When the land upon which any town site or addition is
located has been surveyed by the government, the plat of said town
site must show the location of at least three government corners.
Historical: Laws 19 01, 183, Sec. 4.
Effect of Acknowledging and Recording Plat.
Sec. 2304. The acknowledgment and recording of such plat is
equivalent to a deed in fee simple of such portion of the premises
platted as is on such plat set apart for streets or other public use;
or as is thereon dedicated to charitable, religious, or educational pur-
poses.
Historical: Laws 1899, 192, Sec. 97;
re-enacting Laws 1893, 97, Sec. 93.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8780.
Cited: Town of Juliaetta v. Smith
(1906) 12 Ida. 288; 85 Pac. 923.
Ch. 11.
PLATS
963
Streets and Alleys to Be Continuous.
Sec. 2305. Streets and alleys laid out in any addition to any city
or village shall be continuous with and correspond in directions and
width to the streets and alleys of the city or village to which they are
an addition.
Historical: Laws 189 9, 192, Sec. 98;
re-enacting Laws 1893, 97, Sec. 94.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8781.
Vacation of Plat.
Sec. 2306. Any such plat may be vacated by the proprietors there-
of at any time before the sale of any lots therein, by a written instru-
ment declaring the same to be vacated, duly executed, acknowledged
or proved and recorded in the same office with the plat to be vacated ;
and the execution and recording of such writing shall operate to de-
stroy the force and effect of the recording of the plat so vacated, and
to divest all public rights in the streets, alleys, commons and public
grounds laid out or described in such plat, and in cases where any
lots have been sold the plat may be vacated, as herein provided, by all
the owners of lots in such plat joining in the execution of the writing
aforesaid.
Historical: Laws 1899, 192, Sec. 99;
re-enacting- Laws 1893, 97, Sec. 95.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8782.
Same : Effect.
Sec. 2307. Any part of a plat may be vacated under the provisions
and subject to the conditions of this chapter: Provided, Such vacat-
ing does not abridge or destroy any of the rights and privileges of
other proprietors in said plat; and, Provided further, That nothing
contained in this section shall authorize the closing or obstruction of
any public highways laid out according to law.
Historical: Laws 1899, 192, Sec. 100;
re-enacting Laws 1893, 97, Sec. 96.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8783.
Same: Enclosure of Streets.
Sec. 2308. When any part of a plat shall be vacated as aforesaid,
the proprietors of the lots so vacated may enclose the streets, alleys
and public grounds adjoining said lots in equal proportions.
Historical: Laws 1899, 192, Sec.
101; re-enacting Laws 1893, 97, Sec.
97.
Comparative Legislation: See Neb.
Cobbey's an. Stat. Vol. 2, Sec. 8784.
Same : Duty of County Recorder.
Sec. 2309. The county recorder in whose office the plats aforesaid
are recorded, shall write in plain, legible letters, across that part of
said plat so vacated, the word "vacated", and also make a reference on
the same to the volume and page in which the said instrument of va-
cation is recorded.
Historical: Laws 1899, 192, Sec. 102;
re-enacting Laws 1893, 97, Sec. 98.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8785.
Platting After Vacation of Prior Plat.
Sec. 2310. The owner of any lots in a plat so vacated may cause
the same and a proportionate part of adjacent streets and public
grounds to be platted and numbered by the county surveyor; and
964
CITIES AND VILLAGES
Tit. 13
when such plat is acknowledged by such owner, and is recorded in
the recorder's office of the county, such lots may be conveyed and as-
sessed by the numbers given them on such plats.
Historical: Laws 1899, 192, Sec. 103;
re-enacting Laws 1893, 97, Sec. 99.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8786.
Enforcing Execution of Plat.
Sec. 2311. Whenever the original owners or proprietors of any
subdivision of land, as contemplated in Section 2300, have sold or con-
veyed any part thereof, or invested the public with any rights therein,
and have failed and neglected to execute and file for record a plat as
provided in Section 2300, the county recorder shall notify some or all
of such owners and proprietors by mail or otherwise, and demand an
execution of such plat as provided ; and if such owners or proprietors,
whether notified or not, fail and neglect to execute and file for record
said plat for thirty days after the issuance of such notice, the recorder
shall cause to be made the plat of such subdivision, and any surveying
necessary therefor. Said plat shall be signed and acknowledged by
the recorder, who shall certify that he executed it by reason of the
failure of the owners or proprietors named to do so, and filed for
record, and, when so filed for record, shall have the same effect for
all purposes as if executed, acknowledged and recorded, by the owners
or proprietors themselves. A correct statement of the costs and ex-
penses of such plat, surveying and recording, verified by oath, shall be
by the recorder laid before the first session of the county board, who
shall allow the same, and order the same to be paid out of the county
treasury, and who shall, at the same time, assess the same amount
pro rata upon all several subdivisions of said tract, lot or parcel so
subdivided; and said assessment shall be collected with, and in like
manner as, the general taxes, and shall go to the general county fund ;
or said board may direct suit to be brought in the name of the county,
before any court having jurisdiction, to recover of the said original
owners or proprietors, or either of them, said cost and expense of pro-
curing and recording said plat.
Historical: Laws 1899, 192, Sec. 104;
re-enacting- Laws 1893, 97, Sec. 100.
Section ("2300" for Section "97". Sec.
97 is Sec. 2304, but the subject matter
referred to is found in Sec. 2300.
Comparative Legislation: See Neb
Cobbey's An. Stat. Vol. 2, Sec. 8787
Executing Plat for Purpose of Assessment.
Sec. 2312. Whenever any Congressional subdivision of land of
forty acres or less, or any lot or subdivision is owned by two or more
persons in severalty, and the description of one or more of the dif-
ferent parts or parcels thereof, cannot, in the judgment of the county
tax collector, be made sufficiently certain and accurate for the pur-
ooses of assessment and taxation without noting the metes and
bounds of the same, the tax collector shall cause and require to be
made and recorded a plat of such tract or lot of land with its several
subdivisions, in accordance with the provisions of this chapter; and
he shall proceed in such cases according to the provisions of the pre-
ceding section, and all the provisions of said section in relation to
plats of cities and villages, and so forth, shall govern as to the tracts
and parcels of land in this section referred to.
Ch. 12.
MUNICIPAL IMPROVEMENT BONDS
965
Historical: Laws 1899, 192, Sec. 105;
re-enacting Laws 1893, 97, Sec. 101.
The reference in the original section
is to the following instead of to the
preceding section, but it is appar-
ently a mistake. The Nebraska stat-
ute refers to the preceding section.
See the note to Cobbey Sec. 8788.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8788.
Existing Plats Validated.
Sec. 2313. None of the provisions of this chapter shall be con-
strued to require replatting in any case where plats have been made
and recorded in pursuance of any law heretofore in force; and all
plats heretofore filed for record, and not subsequently vacated, are
hereby declared valid, notwithstanding irregularities and omissions
in manner of form of acknowledgment or certificate; but the pro-
visions of this section shall not affect any action or proceeding now
pending.
Historical: Laws 1899, 192, Sec. 106;
re-enacting Laws 1893, 97, Sec. 102.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, Sec. 8789.
Penalty for Selling Unplatted Lots.
Sec. 2314. Any person who shall dispose of, or offer for sale or
lease, any lots in any town, or addition to any town or city, until the
plat thereof has been duly acknowledged and recorded as provided in
this chapter, shall forfeit and pay fifty dollars for each lot and part of
a lot sold or disposed of, leased or offered for sale.
Historical: Laws 1899, 192, Sec. 107;
re-enacting Laws 1893, 97, Sec. 103.
Comparative Legislation: See Neb.
Cobbey's An. Stat. Vol. 2, 'Sec. 8790.
CHAPTER 12.
MUNICIPAL IMPROVEMENT BONDS.
Section
2315. Purposes for which bonds may
be issued.
Bond ordinance and election.
Denomination, interest and
2316.
2317.
2318.
maturity of bonds.
Interest coupons and form of
bond.
Section
2319. Issue and sale of bonds.
2320. Tax levy for interest and sink-
ing fund.
2321. Use of proceeds: Duties of
officers.
2322. Power to collect tax: Refund-
ing bonds.
Purposes for Which Bonds May Be Issued.
Sec. 2315. Every city or town incorporated under the laws of the
Territory of Idaho, or of the State of Idaho, shall have power and
authority to issue municipal coupon bonds, not to exceed at any time
in the aggregate fifteen per cent of the real estate value of said city
or town according to the assessment of the preceding year, for any
or all of the following purposes :
1. To provide for the construction and maintenance of nec-
essary water works and supplying the same with water, and to pro-
vide lights for streets, public buildings and grounds.
2. To provide for the laying, constructing, equipment and main-
tenance of sewers and drains.
3. To provide for the grading, paving, construction and lay-
ing out of streets and alleys.
4. To provide for the funding, refunding, purchase and re-
demption of the outstanding indebtedness of such city or town.
966
CITIES AND VILLAGES
Tit. 13
5. To provide for the establishment and maintenance of hos-
pitals, pest houses, and cemeteries, either within or without the cor-
porate limits of such city or town.
6. To provide for the purchase, improvement, equipment and
maintenance of lands for the use of public parks, either within or
without the corporate limits of such city or town.
7. To provide for the purchase, erection, construction, and
furnishing of public buildings and building sites for the use of such
city or town.
8. To provide for the establishment, equipment and mainte-
nance of a fire department and for the purchase of suitable and nec-
essary apparatus and buildings and building sites for the use thereof
and for all other necessary public improvements.
Bonds may be issued under the fourth subdivision of tnis section
for the purpose of funding, refunding, purchase or redemption of the
outstanding indebtedness of any such city or town, when the same
can be done to the profit and benefit of such city or town and without
incurring any additional liability, without the submission of the ques-
tion of the issuance of such bonds to the electors of the city or town.
Historical: Laws 1899, 29, Sees. 1,
8; re-enacting- Laws 1890-91, 53, Sees.
1, 8; amended Laws 1893, 34, Sec. 1.
The concluding- paragraph is Sec. 8.
Cited: Wiggin v. Citv of Lewiston
(1902) 8 Ida. 527; 69 Pac. 286; Jack
v. Village of Grangeville (1903) 9 Ida.
291; 74 Pac. 969.
Definition: The words "town" and
"village" are used in the statutes
synonymously, and a granting of
powers to towns to issue municipal
coupon bonds includes villages.
Brown v. Village of Grangeville
(1902) 8 Ida. 784; 71 Pac. 151.
Bond Ordinance and Election.
Sec. 2316. Whenever the common council of such city or the
trustees of such town, or other legislative body of any such city or
town, shall deem it advisable to issue the coupon bonds of such city
or town for any of the purposes aforesaid, the mayor and common
council of such city or the trustees of such town shall provide therefor
by ordinance, which shall specify the purpose of issuing such pro-
posed bonds; if it is to create a new debt, the object thereof must
be stated, or, if it is to fund or refund any existing indebtedness,
it must be described; and, when it consists of warrants or other
securities, they must be described by giving their number, date and
amount and the fund out of which the same, according to the terms
thereof, are payable ; and the ordinance shall declare the purpose and
the total amount for which such bonds shall be issued and designate
the provisions to be made to pay the interest on such bonds as it
falls due, and also to constitute a sinking fund for the payment of
the principal thereof within twenty years from the time of the issu-
ance of the same, and shall also provide for the holding of an election
of the qualified electors who are taxpayers of such city or town, of
which thirty days' notice, to be provided for in such ordinance, shall
be given in a newspaper of such city or town designated in said
ordinance. Such election shall be conducted as other city elections.
The voting at such election must be by ballot, and the ballot used
shall be substantially as follows: "In favor of issuing bonds to the
amount of dollars for the purpose stated in Ordinance No. ,"
Ch. 12.
MUNICIPAL IMPROVEMENT BONDS
967
and "Against issuing bonds to the amount of dollars for the
purpose stated in Ordinance No "
If at such election held as provided for in this chapter, two-thirds
of the qualified electors, who are taxpayers in such city or town,
voting at such election, assent to the issuing of such bonds and the
incurring of the indebtedness thereby created for the purpose afore-
said, such bonds for said purpose shall be issued in the manner here-
inafter provided.
Historical: Laws 1899, 2 9 Sec. 2;
re-enacting Laws 1890-91, 53, Sec. 2;
amended Laws 1895, 70, Sec. 1.
Sufficiency of Ordinance: The pro-
vision of this section which requires
the bonding ordinance to specify the
purpose of issuing the proposed
bonds, is not complied with by an
ordinance stating the purpose of the
bonds to be "to fund the outstanding
indebtedness of said city." Coffin v.
Richards (1899) 6 Ida. 741; 59 Pac.
562.
Sufficiency of Notice: Where the
mayor publishes a proclamation for a
period of more than thirty days in a
newspaper published in the city, giv-
ing the time and place when an elec-
tion will be held to vote upon a prop-
osition to issue bonds for municipal
improvement, there is a sufficient
compliance with this section. Som-
mercamp v. Kelly (1902) 8 Ida. 712;
71 Pac. 147.
Sufficiency of Ballot: A ballot in
the exact language of this section is
sufficient. Brown v. Village of Grange-
vilie (1902) 8 Ida. 784; 71 Pac. 151.
Denomination, Interest and Maturity of Bonds.
Sec. 2317. Said bonds shall be known as municipal coupon bonds
of (name of city or town, county and State) and shall be issued as
near as practicable in denominations of one thousand dollars each,
but bonds of the denomination of five hundred or one hundred dollars
may be issued when necessary, and each bond shall be made payable
within twenty years from the date of its issuance. Said bonds must
bear interest at a rate not exceeding six per centum per annum, to
be paid on the first day of January and first day of July in each year
at the office of the city or town treasurer, or at such banking house
or trust company in the City of New York as may be designated
by the mayor and common council of the city or trustees of the town
issuing such bonds, at the option of the holder thereof. Such bonds
shall be redeemable at the pleasure of the city or town at any time
after the expiration of ten years from the date of the issuance, and
each bond must be redeemed in the order it is numbered.
Historical: Laws 1899, 29, Sec. 3;
re-enacting Laws 1890-91, 53, Sec. 3;
amended Laws 1895, 70, Sec. 1.
Interest Coupons and Form of Bonds.
Sec. 2318. The bonds mentioned in the preceding section must
have attached to each bond, when negotiated, semi-annual interest
coupons covering the interest expressed in the bond from the date
of issue until paid. Such bonds must be signed by the mayor or
chairman of the board of trustees and attested by the city or town
clerk, and bear the city or town seal, and be countersigned by the
city or town treasurer, and the coupons attached to such bonds must
be signed by the city or town treasurer. Each coupon must have
annexed to the same a number corresponding with the number of
the bond, and each bond must state upon its face the amount for
which the same is issued, the date of issue, and be made payable to
or bearer, and must also recite that it is issued in con-
formity with the provisions of this chapter.
968 CITIES AND VILLAGES Tit. 13
Historical: Laws 1899, 2 9, Sec. 4;
re-enacting Laws 1890-91, 53, Sec. 4;
amended Laws 1895, 70, Sec. 1.
Issue and Sale of Bonds.
Sec. 2319. The said mayor and common council or board of trus-
tees must give notice by publication in some newspaper published in
the city or town — if in a weekly paper, in four issues thereof; if in
any other paper, for four weeks — of its intention to issue and nego-
tiate such bonds, and invite bidders therefor, and, after ascertaining
the best terms upon, and the lowest interest at, which such bonds
can be negotiated, must secure the proper engraving or printing
thereof, and thereafter must have them consecutively numbered and
otherwise properly prepared and executed; and, when so executed,
they must each be registered by the city or town clerk in a public
record book to be kept for that purpose, and therein must be stated
the number, date, amount of each bond, time and place of payment,
rate of interest, number of coupons attached, and any other proper
description thereof for future identification. Then said mayor and
common council or trustees must from time to time, in such amounts
as they may deem best, deliver said bonds to the city or town treas-
urer and take and file his receipt therefor, and charge him with all
bonds so delivered; and any duties required of said mayor and com-
mon council or trustees by virtue of this chapter, may be performed
at any general, special or called meeting thereof. The city or town
treasurer must, under the general supervision of said mayor and
common council or trustees, sell said bonds for cash, and in no case
must said bonds be sold for less than their face, or par value, and
the accrued interest at time of disposal. All proceeds derived from
sale of said bonds must be applied exclusively to the purpose for
which said bonds are issued. Said city or town treasurer must keep
a record of all bonds disposed of, showing their number, rate of in-
terest, date and amount of sale, and when and where payable, which
record he must keep open for the inspection of the public at all rea-
sonable office hours; and he must make such detailed statements to,
and as often as required by, said mayor and common council or
trustees, of all of his transactions under the provisions of this chapter.
Historical: Laws 1899, 2 9, Sec. 5;
re-enacting- Laws 1890-91, 53, Sec. 5;
amended Laws 1895, 70, Sec. 1.
Tax Levy for Interest and Sinking Fund.
Sec. 2320. The mayor and common council or trustees must, in
accordance with the provisions designated to be made for the collec-
tion of an annual tax sufficient to pay the interest on such bonds as
it falls due, and to create and constitute a sinking fund for the pay-
ment of the principal of said bonds as they respectively become due,
cause to be levied annually upon all the taxable property within said
city or town, in addition to the authorized taxes, a sufficient sum to
pay said interest, and must, in time to provide means for the pay-
ment of said bonds as they become due, cause to be levied a sufficient
additional sum to pay said bonds at maturity ; and all such taxes must
be levied, assessed and collected as other city or town taxes, until
the bonds so issued are fully paid, including the interest thereon.
Ch. 12. MUNICIPAL IMPROVEMENT BONDS 969
The faith, credit and all taxable property within said city or town
are, and must continue, pledged, and the proper officers of the city
or town must continue to assess and collect, on all taxable prop-
erty within the limits thereof, the necessary taxes to pay said bonds
and interest thereon as the same becomes due. Should the tax for
the payment of interest on any bonds issued under the provisions
of this chapter, at any time, not be levied or collected in time to meet
such payment, the interest must be paid out of any moneys in the
city or town general or expense fund, and the money so used for
such payment of interest must be repaid to the fund from which so
taken out of the first moneys collected from taxes.
Historical: Laws 189 9. 2 9, Sec. 6;
re-enacting Laws 1890-91, 53, Sec. 6;
amended Laws 1895, 70, Sec. 1.
Use of Proceeds: Duties of Officers.
Sec. 2321. It shall be the duty of the city or town treasurer to
use the proceeds arising from the sale of said bonds in payment of
the indebtedness described in said ordinance only. And it shall be
the duty of the city or town officials to levy, collect and apply the
tax herein provided for to the payment of interest and redemption
of the principal of the bonds in the manner specified, and for no
other purpose, and any failure to comply with the provisions of this
chapter, by the proper officers, or any neglect or refusal to levy and
collect any such tax as aforesaid, shall be deemed a misdemeanor,
and any city or town official guilty of the same shall, upon conviction,
be fined in an amount equal to the sum that should have been levied ;
or for any misappropriation he shall be fined in an amount equal to
the sum misappropriated, and imprisoned in the city or town jail
not exceeding six months.
Historical: Laws 1899, 29, Sec. 7;
re-enacting Laws 189 0-91, 53, Sec. 7;
amended Laws 1895, 70, Sec. 1.
Power to Collect Tax: Refunding Bonds.
Sec. 2322. Every city whose mayor and common council, and
every town whose trustees have authorized the issue of bonds for
any one or more of the purposes specified in this chapter, is hereby
authorized to make provision for the collection of an annual tax
sufficient to pay the interest on such bonds as falls due, and also to
constitute a sinking fund for the payment of the principal thereof,
within twenty years from the time of contracting the same; and in
any case where such provision has not been designated, or an in-
sufficient provision has been designated, in the resolution of the
mayor and common council of such city or of the trustees of such town
which is provided for in Section 2316, such sufficient provision may
be, and the same is, hereby authorized to be made by such mayor and
common council or such trustees by an ordinance duly passed, and
such provision by such ordinance shall be deemed and held to be a
full and complete compliance with all the provisions of this chapter,
and with all other laws which require such provision to be made or
designated; and in case any such bonds authorized as aforesaid have,
by any city or town, been sold for value and the purchase price
970
CITIES AND VILLAGES
Tit. 13
thereof at not less than par has been paid to and received by such
city or town, the common council or trustees thereof may, by ordi-
nance duly passed, ordain and provide that upon the surrender of
such bonds by the holder of holders thereof, new bonds in the place
thereof shall be issued and delivered to such holder or holders:
Provided, That such new bonds shall not be for any greater sum
or rate of interest than the bonds so surrendered, and the bonds
so surrendered shall thereupon be immediately cancelled, and the
new bonds thus issued in place thereof shall be the valid and binding
obligations of the city or town so issuing the same.
Historical: Laws 1899, 29, Sec. 9;
re-enacting Laws 1893, 130, Sec. 1.
CHAPTER 13.
STREET IMPROVEMENT BONDS.
Section
2333. Sale of bonds.
2334. Proceeds of sale: Use and ac-
count.
2335. Assessment of cost of improve-
ment.
2336. Same: Plat and schedule.
2337. Certification to assessor: In-
stallment payments.
23 38. Assessment constitutes a lien.
2339. Appropriation of assessment
money.
2 340. Mistakes do not vitiate lien.
2 3 41. Improvement of part of street.
Section
2323. Application of chapter.
2324. Contract for improvement to
be let.
2325. Letting of contracts: Adver-
tising- for bids.
2326. Contractor to give bond.
2327. City engineer to furnish
grades.
2328. Petition or three-fourths vote
necessary.
2329. City may issue bonds.
2330. Bond election.
2331. Denomination of bonds: In-
stallment coupons.
2332. Signature and formalities of
bonds.
Application of Chapter.
Sec. 2323. All incorporated cities of this State, except cities or-
ganized or incorporated under special or local laws of Idaho, in which
at the last preceding city election held prior to the filing of the peti-
tion, or the casting of the vote of the members of the city council,
mentioned in Section 2328, there were cast seven hundred, or more,
votes for mayor, shall have the powers and be subject to all the
provisions of this chapter; and this chapter shall be applicable only
to all such cities organized or incorporated under general laws of
this State, and shall not be applicable to incorporated cities organized
or incorporated under special or local laws of Idaho.
Historical: Laws 18 95, 41, Sec. 1:
re-enacted Laws 1899, 244, Sec. 1;
amended Laws 1907, 5, Sec. 1.
Contract for Improvement to Be Let.
Sec. 2324. When the council of any such city shall direct the pav-
ing or curbing of, or the construction of sidewalks on, any street or
streets, they shall make and enter into a contract for furnishing
materials and for the paving or curbing or construction of sidewalks,
as the case may be, of such street or streets, either for the entire
work in one contract, or parts thereof in separate and specified sec-
Ch. 13. STREET IMPROVEMENT BONDS 971
tions, as to them may seem best: Provided, That no work shall be
done under any such contract until a certified copy thereof shall
have been filed in the office of the city clerk.
Historical: Laws 1899, 2 44, Sec. 2;
re-enacting Laws 1895, 41, Sec. 2.
Letting of Contracts : Advertising for Bids.
Sec. 2325. All such contracts shall be made by the council in the
name of the city upon such terms of payment as shall be fixed by
the council, and shall be made with the lowest and best bidder upon
sealed proposals, after public notice for not less than three weeks,
in at least two newspapers of said city, which notice shall contain
a description of the kind and amount of work to be done and material
to be furnished as nearly accurate as practicable.
Historical: Laws 18 99, 244, Sec. 3;
re-enacting- Laws 18 95, 41, Sec. 3.
Contractor to Give Bond.
Sec. 2326. Each contractor shall be required to give a bond to
the city, with sureties to be approved by the council, for the faithful
performance of the contract, and the council shall have power to
institute suit in the name of the city to enforce all such contracts.
Historical: Laws 1899, 244, Sec. 4;
re-enacting Laws 1895, 41, Sec. 4.
City Engineer to Furnish Grades.
Sec. 2327. It shall be the duty of the city engineer to furnish the
council with proper grades and lines and see that the work is done
in accordance with the ordinances and regulations of the city with
respect to said grades and lines.
Historical: Laws 1899, 244, Sec. 5;
re-enacting Laws 1895, 41, Sec. 5.
Petition or Three-Fourths Vote Necessary.
Sec. 2328. The council of any such city shall not have the right
to authorize any improvement under this chapter unless the owners
of two-thirds of the feet front of the property abutting upon the
street or streets to be improved shall first petition therefor, or unless
the same shall be voted for by three-fourths of the members of the
council.
Historical: Laws 1899, 24 4, Sec. 6;
re-enacting Laws 1895, 41, Sec. 6.
City May Issue Bonds.
Sec. 2329. For the purpose of paying the costs and expenses in-
curred in making the improvements provided for in this chapter,
or either or any thereof, such city is empowered to issue bonds and
sell the same in the manner in this chapter provided.
Historical: Laws 1899, 24 4, Sec. 7;
re-enacting Laws 1895, 41, Sec. 7.
Bond Election.
Sec. 2330. Before any such bonds are issued, the mayor and com-
972 CITIES AND VILLAGES Tit. 13
mon council of such city must, by resolution passed at a regular
meeting, declare the purpose or purposes for which such bonds are
to be issued, and the total amount. They must also, by ordinance,
provide for the holding of a special election of the qualified voters
of such city, which shall be conducted as other city elections, at
which election there shall be submitted to such electors the question
of issuing such bonds for the purpose named in such resolution. The
voting at such election must be by ballot, on which ballot must be
written or printed: "For bonds and debt (here separately naming
the purpose or purposes for which said bonds shall be issued and
said debt incurred)," or "Against bonds and debt (here separately
naming the purpose or purposes for which such bonds shall be issued
and such debt incurred)." If it shall appear upon a canvass of such
ballots that two-thirds of such qualified voters voting at such elec-
tion assent to the issuing of such bonds and the incurring of the
indebtedness thereby created for any one or more of the purposes
named in such resolution, such bonds for said purpose or purposes
shall be issued in the manner in this chapter provided.
Historical: Laws 1899, 244, Sec. 8;
re-enacting Laws 1895, 41, Sec. 8.
Denomination of Bonds : Installment Coupons.
Sec. 2331. Said bonds shall be known as municipal improvement
coupon bonds of (name city, county and State) and shall be issued
as near as practicable in denominations of five hundred dollars each,
but bonds of the denomination of one hundred dollars may be issued
when necessary, and each bond shall be payable in seven years from
the date of its issuance, to which must be attached seven coupons
maturing and payable and for the amounts as follows: The first
coupon shall be payable one year from the date of the issuance of
the bond in an amount equal to one-seventh of the principal of the
bond with interest on the total amount of the bond for one year;
the seconcj coupon shall be payable in two years from the date of the
issuance of the bond in an amount equal to one-seventh of the princi-
pal of the bond with interest on six-sevenths of the principal of said
bond for a period of one year; the third coupon shall be payable in
three years from the date of issuance of said bond in an amount
equal to one-seventh of the principal of the bond with interest on
five-sevenths of the principal of said bond for one year; the fourth
coupon shall be payable in four years from the date of the issuance
of the bond in an amount equal to one-seventh of the principal of
said bond with interest on four-sevenths of the principal of said
bond for one year; the fifth coupon shall be payable in five years
from the date of the issuance of the bond in an amount equal to
one-seventh of the principal of said bond with interest on three-
sevenths of the principal of said bond for one year ; the sixth coupon
shall be payable in six years from the date of the issuance of the
bond in an amount equal to one-seventh of the principal of the bond
with interest on two-sevenths of the principal of said bond for one
year: and the seventh coupon shall be payable in seven years from
the date of the issuance of said bond in an amount equal to one-
seventh of the principal of said bond with interest on one-seventh
of the principal of said bond for one year. Upon the payment of
Ch. 13. STREET IMPROVEMENT BONDS 973
the seventh coupon, as above provided, said bond shall become null
and void. The rate of interest must not exceed seven per cent per
annum.
Historical: Laws 1899, 24 4, Sec. 9;
re-enacting Laws 1895, 41, Sec. 9.
Signature and Formalities of Bonds.
Sec. 2332. The bonds mentioned in the preceding section must be
signed by the mayor and attested by the city clerk and bear the city
seal and be countersigned by the city treasurer, and the coupons
attached to such bonds must be signed by the city treasurer. Each
coupon must have annexed to the same a number corresponding with
the number of the bond, and each bond must state upon its face the
amount for which the same is issued, to whom issued and the date
of issue, and must also recite that it is issued in conformity with
the provisions of this chapter.
Historical: Laws 189 9. 244, Sec. 10;
re-enacting- Laws 1895, 41, Sec. 10.
Sale of Bonds.
Sec. 2333. The said mayor and common council must give three
weeks' notice by publication in some newspaper published in such
city, of its intention to issue and negotiate such bonds, and invite
bidders therefor, and after ascertaining the best terms upon, and the
lowest interest at, which such bonds can be negotiated, must secure
the proper engraving and printing thereof, and must thereafter have
them consecutively numbered and otherwise properly prepared and
executed; and when so executed, they must be by the city clerk
registered in a public record book to be kept for that purpose, and
therein must be stated the number, date, amount of bond, time and
place of payment, rate of interest, number of coupons attached, and
any other proper description thereof for future identification. Then
said mayor and common council must, from time to time, in such
amounts as they may deem best, deliver said bonds to the city treas-
urer and take and file his receipt therefor, and charge him with all
bonds so delivered ; and any duties required of said mayor and com-
mon council by virtue of this chapter may be performed at any
general, special or called meeting thereof. The city treasurer must,
under the general supervision of said mayor and common council, sell
said bonds for cash, and in no case must said bonds be sold for
less than the face or par value and the accrued interest at the time
of disposal. All proceeds derived from the sale of said bonds must
be applied exclusively to the purposes for which said bonds are issued.
And in no case must any more of said proceeds be expended for any
one purpose than the amount named in the resolution of said mayor
and common council above mentioned. Said city treasurer must keep
a record of all bonds disposed of by him, showing their number, rate
of interest, date and amount of sale, and when, where and to whom
payable, which record he must keep open for the inspection of the
public at all reasonable office hours, and he must make such detailed
statements to, and as often as required by, said mayor and common
council of all of his transactions under the provisions of this chapter.
Should the tax for the payment of interest and installment of princi-
974 CITIES AND VILLAGES Tit. 13
pal on any of the bonds issued under the provisions of this chapter
at any time not be collected in time to meet such payment, the interest
and such installments must be paid out of any moneys in the city
general or expense fund, and the moneys so used for such payment
must be repaid to the fund from which so taken out of the first
moneys collected from the assessments in this chapter provided.
Historical: Laws 1899, 2 44, Sec. 11;
re-enacting Laws 1895, 41, Sec. 11.
Proceeds of Sale : Use and Account.
Sec. 2334. All moneys received by the city treasurer from the sale
of said bonds, shall be kept by him in a separate fund and paid out
on requisition of the council, accompanied by affidavit of the city
engineer, that work has been done or material furnished to the
amount of said requisition, and that it is required for payment of
the same, and all moneys received by said treasurer shall be kept
in the same manner, and subject to the regulations, regarding other
money of the city, except that he shall keep a separate account of
the same, and all interest received upon the same shall be credited
to such fund.
Historical: Laws 1899, 2 44, Sec. 12;
re-enacting Laws 1895, 41, Sec. 12.
Assessment of Costs of Improvement.
Sec. 2335. When any such improvement shall have been com-
pleted, it shall be the duty of the council to ascertain the entire
amount of the bonds sold, and the interest thereon to the date of
completion, which shall be taken to be the cost of such improvement,
and such costs shall then be assessed as shall be provided by law
or by ordinance of such city, upon the property fronting or abutting
upon such improvement: Provided, Nothing in this chapter shall
be construed as authorizing the assessment of any such cost on prop-
erty belonging to the State.
Historical: Laws 1899, 244, Sec. 13;
re-enacting Laws 1895, 41, Sec. 13.
Same: Plat and Schedule.
Sec. 2336. The council shall cause a plat to be made of the street
or streets on which any such improvement shall be made, showing
the separate lots of ground, and the names of the several owners,
and shall make or cause to be made a list or schedule of the names
of all such owners, and the amount assessed against each lot or piece
of ground, and shall give two weeks' public notice in two newspapers
in the city, and by hand bills posted in conspicuous places, on the
line of such street or streets, of the time and place where, for the
period of twenty days thereafter, the same may be seen for the cor-
rection of errors, and after having corrected such errors as may be
made known to them, they shall file the same in the office of the
city clerk.
Historical: Laws 1899. 244, Sec. 14;
re-enacting Laws 1895, 41, Sec. 14.
Certification to Assessor: Installment Payments.
Sec. 2337. Said assessment shall be certified by the mayor of the
Ch. 14.
SEWER CONSTRUCTION BONDS
975
city and attested by the city clerk and delivered to the county assessor
who shall place the same upon the city assessment roll, and said
assessment shall be payable at the office of the city tax collector in
seven equal installments, with interest at seven per cent per annum
from the date of the assessment upon the unpaid portion thereof,
the first of which, with interest on the whole amount at seven per
cent, shall be payable at the first annual payment of taxes next suc-
ceeding the time said assessment is placed upon the tax roll, and
the others annually thereafter, and said assessment shall be collected
in the same manner as other city taxes.
Historical: Laws 1899, 2 44, Sec. 15;
re-enacting Laws 18 95, 41, Sec. 15.
Assessment Constitutes a Lien.
Sec. 2338. Said assessments, with interest accruing thereon, shall
be a lien upon the property abutting upon the street or streets on
which any such improvement is made, from the commencement of
the work, and shall remain a lien until fully paid and shall have
precedence over all other liens excepting ordinary taxes, and shall
not be divested by any judicial sale: Provided, That such lien shall
be limited to the lots abounding or abutting on such street or streets,
and not exceeding in depth therefrom one hundred and fifty feet.
Historical: Laws 18 99, 2 44, Sec. 16;
re-enacting Laws 1895, 41, Sec. 16.
Appropriation of Assessment Money.
Sec. 2339. All moneys received from assessments shall be ap-
propriated to the payment of the interest and redemption or pay-
ment of the bonds that shall be issued for said improvements, and
if any interest shall become due on any of said bonds, when there
are no funds from which to pay the same, the council shall be au-
thorized to make a temporary loan for the payment thereof.
Historical: Laws 189 9, 2 44, Sec. 17;
re-enacting Laws 1895, 41, Sec. 17.
Mistakes Do Not Vitiate Lien.
Sec. 2340. Any mistake in the description of the property or in
the name of the owner shall not vitiate the lien.
Historical: Laws 18 99, 2 44, Sec. 18;
re-enacting Laws 1895, 41, Sec. 18.
Improvement of Part of Street.
Sec. 2341. Any part or section of any street may be improved
under this chapter as well as an entire street.
Historical: Laws 1899, 2 4 4, Sec. 19;
re-enacting Laws 1895, 41, Sec. 19.
CHAPTER 14.
SEWER CONSTRUCTION BONDS.
Section
2342. Cities may construct sewerage
system.
2343. Sewer committee.
Section
2344. Chairman and clerk.
2345. Treasurer.
2346. Duties of officers.
Vol. 1—32
976
CITIES AND VILLAGES
Tit. 13
Section
Sectic
2347.
Vacancies: Quorum.
2355.
2348.
Duties of chairman.
2356.
234 0.
Duties of clerk.
2357.
2350.
Committee to employ assist-
ants.
2 35 8.
2351.
Powers of committee.
1359.
2352.
Meetings. ,
2 3 60.
2353.
Assessment and bond issue.
2354.
Committee to supervise con-
struction work.
Committee to turn over system.
Maps and plans to be kept.
Quarterly statements of com-
mittee.
Regulation of system by city.
Same: Powers of city.
Validating prior assessments
and bonds.
Xote: The act contained in this chapter supersedes a prior similar act
on the same subject: See Laws 1903, 26.
Cities May Construct Sewerage System.
Sec. 2342. In addition to the powers heretofore granted to cities,
towns or villages under the provisions of the laws of the State of
Idaho now in force, cities, towns or villages may by ordinances by-
laws, and under and by virtue of this chapter: Construct, build or
purchase, keep, conduct and maintain a sewer system or sewerage
disposal works therein, or elsewhere, of the character and keeping
sufficient to furnish the inhabitants thereof, as well as the places
and people along and in the vicinity of the lines of pipes, conduits
or aqueducts constructed or used for such purposes, with a sewer
system and sewerage disposal works sufficient for all uses and pur-
poses necessary for the comfort, convenience, health and well being
of said city, town or village, and to that end may acquire by pur-
chase, gift, condemnation or otherwise, to own and possess such real
or personal property within and without the limits of the city, town
or village, as, in the judgment of the persons herein authorized
to construct, purchase, conduct and maintain a sewer system and
sewerage disposal works, may be deemed necessary and convenient.
And for that purpose they may level a special assessment on the
lots and parcels of land fronting on any highway, street or alley
that may be included within any of the sewer system, or sewerage
disposal works, district or districts, as well as on all lots or parcels
of land situated therein, except as hereinafter provided, to pay the
expenses thereof. Such cities, towns or villages may establish sewer
districts in conformity to the requirements of the topography of the
ground; and construct in each of said districts a main or trunk
sewer; and such districts shall include real estate which can be
conveniently sewered or drained in such main or trunk sewer, and
which will be benefited thereby. They may, from time to time,
establish, in connection with such main or trunk sewer, lateral sewer
district or districts, and construct and maintain therein lateral sewers
connecting and draining, directly or indirectly, into such main or
sub-sewer. But unless a majority of the resident owners of the
property subject to assessment for such sewerage system or sewer-
age disoosal works and improvements, shall petition the council or
trustees to make the same or have the same constructed, such im-
orovements shall not be made unless three-fourths of all the mem-
bers of such city council or trustees shall, by an affirmative vote, at
a regular meeting, assent to and order the same. ,
Historical: Laws 1905, 334, Sec. 1.
Ch. 14. SEWER CONSTRUCTION BONDS 977
Sewer Committee.
Sec. 2343. The power and authority given by the preceding section
hereof to construct and operate a sewer system and sewerage disposal
works, and levy a special assessment therefor and issue and dispose
of special improvement bonds therefor, shall be exercised as here-
inafter provided by three substantial taxpayers and bona fide resi-
dents of such city, town or village, who shall be styled collectively
the "sewer committee/' and are hereinafter mentioned and referred
to as the "committee." Such committee shall be appointed by the
mayor of cities, or by the chairman of the board of trustees of towns
and villages, and upon appointment shall hold office as follows : One
for one year next ensuing after his appointment, and until his suc-
cessor is appointed and qualified; one for two years next ensuing
his appointment, and until his successor is appointed and qualified;
and one for three years next ensuing his appointment, and until his
successor is appointed and qualified. Such committee shall receive
only such compensation as is fixed by the council or trustees, as the
case may be, which compensation shall be in full for all duties per-
formed or connected with their office. Upon the completion of any
work or contract or contracts made or entered into during the life
of said committee, and upon the turning over of such work to the
council or trustees, in that event the said committee shall become
null and void and of no further force and effect: Provided, however,
That at any time thereafter, when the necessity exists, a further
committee may be appointed, as hereinbefore stated, who shall have
the same powers and duties, and shall all the time remain under the
provisions of this chapter and of such ordinances as may be passed by
said city, town or village.
Historical: Laws 1905, 334, Sec. 2.
Chairman and Clerk.
Sec. 2344. The sewer committee at their pleasure shall elect a
president as a presiding officer of their number, who shall be styled
chairman of the committee, and they shall also elect a clerk, who
shall be the city or village clerk, who shall be styled the clerk of
the committee.
Historical: Laws 1905, 334, Sec. 3.
Treasurer.
Sec. 2345. The committee shall appoint a treasurer, who shall
be the city or town treasurer, who shall give a bond in such addi-
tional sum over and above his official bond, as may be required, and
who shall have the care and custody of all money of the committee
from collections, or special assessments, or the sale of special im-
provement bonds, or otherwise, for the construction of a sewer system
or sewerage disposal works as herein provided, and who shall pay
out moneys received under the provisions of this chapter, on the
order of the chairman, countersigned by the clerk of the committee,
and not otherwise.
Historical: Laws 1905, 334, Sec. 4.
978 CITIES AND VILLAGES Tit. 13
Duties of Officers.
Sec. 2346. The chairman, clerk, and treasurer, aforesaid, shall
also perform all such acts and duties as required of them, or either
of them, by the committee or this chapter or any ordinance passed
in furtherance of this chapter. The chairman shall hold his office
at the pleasure of the committee.
Historical: Laws 190 5, 334, Sec. 5.
Vacancies : Quorum.
Sec. 2347. The mayor of the city, or the chairman of the town
or village trustees, as the case may be, shall fill vacancies on the
sewer committee, as they may occur by death, resignation, removal
from the city or village, or expiration of term, by the appointment
of persons to be members thereof, who are bona fide residents and
taxpayers of such city, town or village. Two of the committee shall
constitute a quorum for the transaction of all business.
Historical: Laws 1905, 334, Sec. 6.
"Trustees" inserted after "village",
line 2, and "or expiration of term"
transposed from its original position
following "removal" to express the
sense.
Duties of Chairman.
Sec. 2348. The chairman of the committee shall execute all written
contracts on behalf thereof, and sign all orders for the payment of
money authorized thereby.
Historical: Laws 19 05, 334, Sec. 7.
Duties of Clerk.
Sec. 2349. The clerk of the committee is its clerical officer and
shall keep a fair minute of all its acts, and duly countersign all orders
authorized by it and signed by the chairman on its behalf, keep its
accounts and have the custody of its books and papers.
Historical: Laws 1905, 33 4, Sec. 8.
Committee to Employ Assistants.
Sec. 2350. The committee may also from time to time hire, em-
ploy and discharge an engineer or engineers, surveyor or surveyors,
consulting engineer or engineers, draftsman, or consulting surveyor
or surveyors, as well as such other agents, workmen, laborers and
servants, at such compensation or wages as the committee may deem
necessary or convenient, for the accomplishment of the purposes of
this chapter.
Historical: Laws 1905, 334, Sec. 9.
Powers of Committee.
Sec. 2351. The committee has power and authority:
1. To employ, hire and discharge from time to time all such
agents, workmen, laborers or servants as may be deemed necessary
in the conduct, operation and management of the city sewer system
and sewrerage disposal works.
2. To make all needful rules and regulations for the conduct
and management of the same for the said city and inhabitants
thereof.
Ch. 14. SEWER CONSTRUCTION BONDS 979
3. To do any other act, and to make any other regulation, neces-
sary and convenient for the conduct of its business and the due
execution of the power and authority given it by this chapter, or
by ordinances not contrary to law.
Historical: Laws 1905, 334, Sec. 10.
Meetings.
Sec. 2352. The committee shall meet in the city or village, for the
transaction of such business as it may deem proper, at least once a
month, and at such other time as it may provide.
Historical: Laws 19 05, 33 4, Sec. 11.
Assessment and Bond Issue.
Sec. 2353. Assessments made under Subdivision 1 of this section
shall be made, assessed and collected in the following manner :
1. The assessment as well as all costs of any sewerage work,
or sewerage disposal works, or improvements provided for in Section
2342; shall be assessed upon all the lots or parcels of land fronting
on all highways, streets or alleys included within any sewerage im-
provement district, as well as all lots or parcels of land situated
therein, each lot or parcel of land being separately assessed for the
full debt thereof in proportion to the benefits to the property to be
benefited, sufficient to cover the total expense of such work, or the
construction of such sewer and sewerage disposal works : Provided,
however, That such assessments shall not include the property occu-
pied by the streets, cross streets and alleys.
2. When any work or improvement mentioned in this chapter
is done or made so that the boundary line of the sewerage district,
within which such work or improvement is being carried on, shall
cross along the center line of any alley, street or public way, within
said town, city or village, the lots fronting along that side of said
street, alley or public way within said district only shall be assessed
to cover the expense of such work according to the provisions of
said chapter.
3. The city council or trustees shall before or during the con-
struction of the sewerage system, or sewerage disposal works, or
either or both, or other improvements under the provisions of this
chapter, the costs of which are to be levied and assessed upon the
property benefited, first pass at a general or special meeting an
ordinance declaring its intention to construct such sewer system, or
sewerage disposal works, or portion thereof, or other improvements
under this chapter and stating in such resolution or ordinance the
specific boundaries of the proposed sewerage district, which boundary
lines shall be plainly and distinctly stated so that it may be plainly
determined therefrom what property or properties are to be in-
cluded in said proposed district, the general character of the said
proposed sewerage system and sewerage disposal works, or portion
thereof and the estimated cost of same. That the costs of the same
are to be assessed against all the property included within such
sewerage district: Provided, however, That it shall be stated that
such sewerage district shall not include for assessment, property
occupied by streets, cross streets and alleys in said district. Said
980 CITIES AND VILLAGES Tit. 13
resolution or ordinance shall fix the time, not less than five days, in
which protests against said proposed improvements and works may
be filed in the office of the city clerk, and it shall be the duty of such
clerk to cause such resolution or ordinance, after the same shall be-
come a law, to be published in the official newspaper of the city or
village in at least one issue before the time fixed in such resolution
or ordinance for filing such protest, and an affidavit of such pub-
lication shall be filed with the clerk on or before the time fixed for
the hearing of such protest.
If protests against the proposed improvements by owners of more
than two-thirds of the front feet of lots of land included within the
assessment district therein provided shall be filed on or before the
day fixed for such filing, the council or trustees shall not proceed
further with such work unless three-fourths of the members of the
council or board of trustees shall vote to proceed with such work.
If no such protest is filed, or if such or any protest is filed, and
after hearing the same, three-fourths of the city council, or trustees,
shall vote to proceed with such work, the council or trustees shall
at the next regular meeting proceed to consider the same, and shall
then, or at any subsequent time proceed to enact an ordinance for
such improvement. By the provisions of such ordinance, a local
improvement district shall be established to be called "Local Sewer-
age Improvement District No (numbering it)", which shall in-
clude all the property fronting on the street or streets and all the
lots and parcels of lands included within the boundary lines of the
said local sewerage improvement district as heretofore designated
by the said council or board of trustees, other than such property
and is occupied by streets or alleys. Such ordinance shall provide
that such sewerage improvement shall be made and that the cost
and expense thereof shall be fixed and assessed upon all the property
in such local sewerage improvement district, which costs shall be
assessed in proportion to the property front feet of such lands or
lots included in said sewerage improvement district as hereinbefore
stated, and as in this chapter provided and in proportion to the
benefits derived by said sewerage improvement: Provided, That
the city council or trustees may expend from the general fund for
such purposes such sums as in their judgment may be fair and
equitable in consideration of the benefits accruing to the general
public by reason of such sewerage improvement.
4. The expense of repairing and maintaining such sewer system
and sewerage disposal works, when completed, shall be paid and
borne by the city or village. Whenever any expense or cost of work
shall be assessed on any land, lots, or pieces or parcels of land, the
amount of said assessment or expenses shall become a lien upon
such lands, lots or parcels of land, and shall take precedence of all
other liens and may be foreclosed in accordance with the provisions
of law.
Such suit or suits may be in the name of the city or village of
(naming it), as plaintiff. And in such proceedings, where
the court trying the case shall be satisfied that the work has been
done or material furnished, which, according to the true intent of
this chapter or any ordinance passed in connection therewith by
Ch. 14. SEWER CONSTRUCTION BONDS 981
such city or village, would be properly chargeable upon the lot or
lands thereby, or along such lots or lands, or that the same or any
part thereof may be of benefit to or are within the boundary lines
of such improved district, a recovery shall be permitted and a charge
enforced to the extent of the proper proportion or value of the work
or labor or material which would be chargeable upon such lot or
land notwithstanding any informalities, irregularities or defects in
any of the proceedings of such municipal corporation, or any of its
officers.
5. Upon the passage of an ordinance as herein provided, the
committee on streets, together with the sewer committee, or other
proper authority of said city, town or village, shall make out an
assessment roll according to the provisions of said ordinance, and
shall certify the same to the council or trustees of said city, town
or village.
6. Upon receiving said assessment roll, the clerk of said city,
town or village shall give notice by two successive publications in
the official newspaper of said city, town or village that said assess-
ment roll is on file in his office, and the date of filing the same, and
said notice shall state the time at which the council or trustees will
hear and consider objections to said assessment roll, by the parties
or any party aggrieved by such assessment. The owner or owners
of any property which is assessed in such assessment roll, whether
named there or not in such assessment roll, may within ten days
of the last publication provided herein, file with the clerk his or her
objections, in writing, to said assessment or any portion thereof,
which objections must be definite and specific as to the property or
piece of property included in said assessment roll to which said objec-
tion is made, as well as specific grounds of such objections.
7. At the time appointed for hearing said objections to such
assessment, the council or trustees shall hear and determine all ob-
jections which have been filed by any parties interested to the
regularity of the proceedings in making such assessment, and the
correctness of such assessment, and the amount levied upon any lot,
part or parcel of land, and the council or trustees shall have power
to adjourn such hearing from time to time and shall have power in
their discretion to overrule such objections in whole or in part, or
to revise, correct, confirm, set aside, or to order such assessment
to be made de novo, and such council or trustees shall make an order
approving and confirming such proceedings and assessments as cor-
rected by them, and their decision shall be a final determination of
the regularity, validity and correctness of said assessment to the
amount thereof levied on each lot or parcel of land.
8. Any person who has filed objections to such assessment or
re-assessment, as herein provided, shall have the right to appeal to
the District Court of this State in and for the county in which the
said city, town or village may be situated.
9. Such appeal shall be made by filing written notice of appeal
with such clerk of said city, town or village, within five days after
such assessment or re-assessment roll shall have been approved and
confirmed by the said council or trustees, and the said notice shall
describe the property and the objections of such appellant to such
982 CITIES AND VILLAGES Tit. 13
assessment, and such appellant shall also file with the clerk of the
District Court, aforesaid, within fifteen days after the approval
and confirmation of such roll by the council or trustees, a copy of
said notice of appeal, assessment or re-assessment roll or proceedings
thereon, certified by the clerk of such city, town or village, together
with a bond to such city, town or village, conditioned to pay all costs
that may be awarded against the appellant in such sum not less
than two hundred dollars with such surety as shall be approved by
the judge of the said court, and the case shall be docketed by the clerk
of the said court in the name of the person taking such appeal against
such city, town or village, as "an appeal from assessment." Said
cause shall then be at issue and shall have precedence over all civil
cases pending in said court, except the proceedings relating to the
act of eminent domain by cities or towns, actions of forcible entry
and detainer. Such appeals shall be tried in said court as in the
case of equitable causes except that no pleadings shall be necessary.
The judgment of the court shall be either to confirm, modify or annul
the assessment, in so far as the same affects the property of the ap-
pellant, from which judgment an appeal shall lie in the Supreme
Court, as in other cases. In case the assessment is confirmed the
fees of the clerk of the city, town or village for copies of the record
shall be taxed against the appellant with other costs.
10. All such assessments shall be known as "special assessments
for sewerage improvements," and shall be levied and collected as
separate taxes in addition to the taxes for general revenue purposes,
to be placed on the tax roll for collection subject to the same penal-
ties in collection, and in the same manner as other city, town or
village taxes.
11. Whenever the mayor or council or trustees of any city, town
or village, shall, under authority in them vested under any law of
this State or this chapter or the charter or ordinance of such city,
town or village, cause any sewerage work or improvement to be
done under the provisions of this chapter, or the laws aforesaid, or
any sewerage disposal works to be built or constructed thereunder,
the expense of which is chargeable to the property within the limits
and boundary lines of the sewerage district, or any sewerage district
formed, ordered or laid out under the provisions of this act, they
may, in their discretion, provide for the payment of the costs and
expense of such improvement by bonds of the district which shall
include the property liable to assessment for the payment of the
cost and exoense of such improvement according to the city, town
or village charter, this chapter or any ordinances passed in connec-
tion with this chapter, for the purposes of such improvement. Such
bonds may be issued to the contractor constructing or building such
sewer system, or sewerage disposal works, or portion thereof, or
other improvements connected therewith in payment thereof; or
the mayor and council, or the trustees of such city, town or village,
or other officer or officers of such city, town or village thereto au-
thorized by charter or ordinance, may sell the same at not less than
their par value, net, and pay the proceeds to the contractor. Such
bonds shall not be issued in excess of the contract price and expense
of such work or improvement; such bonds may be issued in the
Ch. 14. SEWER CONSTRUCTION BONDS 983
name of the city, town or village in which such improvement district
is situated, which shall be known and designated as "Special Assess-
ment Sewerage Improvement Bonds, District No (naming it,"
which shall include all property liable for assessment within the
boundary lines of said improvement district, for such local sewerage
improvement according to the city, town or village charter, this chap-
ter or any ordinances passed in connection with this chapter for the
purposes of such improvement: Provided, however, That in deter-
mining the amount for which such bonds may be issued the interest
coupon thereunto attached shall not be included. Said bonds shall
by their terms be made payable on or before a date not to exceed
ten years from and after the date of issue of such bonds, which
latter date may be fixed by resolution or order by the council or
trustees of the city, town or village; and shall bear such interest
as may be provided by charter or ordinance, not exceeding eight
per cent per annum. Such bonds shall be in such denomination as
shall be provided in the ordinance ordering their issue and shall be
numbered from one upward, consecutively, and such bond and coupon
shall be signed by the mayor and attested by the clerk or comptroller
of such city: Provided, however, That said coupons may in lieu of
being so signed have printed thereon fac-simile of the signatures
of said officers ; and each bond shall have the seal of such city, town
or village affixed thereto and shall refer to the improvement for the
payment of which the same shall be issued. Each bond shall pro-
vide that the principal sum thereon named and the interest thereon,
shall be payable out of the local improvement fund created for the
payment of the cost and expense of such improvement, and not
otherwise.
When district bonds are issued under this act for such improve-
ment or improvements, the costs of which are by law charged by
special assessment against the property within any improved district,
the council, or trustees, or other authorized officer, board or body,
shall assess the costs and expense of such improvement against the
lots and parcels of land included within such improvement district,
and which under the provisions of law and the charter or ordinances
of such city, town or village shall be liable therefor; but the ordi-
nance levying such assessment shall declare that the sum charged
thereby against each of said lots or parcels of land may be paid in
equal annual installments; the number of which installments shall
be equal to the number of years which the bonds issued to pay for
the improvement may run, with interest upon the whole sum so
charged at a rate fixed by ordinance; and each year thereafter one
of such installments, together with the interest due thereon, and on
all installments thereafter to become due, shall be collected in such
manner as shall be provided by law and the charter or ordinances
of such city, town or village for the collection of assessments for
such improvements in cases where no bonds are issued.
The owner of any lot or parcel of land charged with any such
assessments may redeem the same from all liability for such assess-
ment by paying the entire assessment charged against such lot or
oarcel of land, without interest, within thirty days after notice to
him of such assessment, which notice shall be given as follows : The
city treasurer shall, as soon as the assessment roll has been placed
984 CITIES AND VILLAGES Tit. 13
in his hands for collection, publish a notice in the official newspaper
of the city, town or village, for ten consecutive days, or two con-
secutive weekly issues, that the said roll is in his hands for collection
and that any assessment therein may be paid at any time within
thirty days from the date of the first publication of such notice with-
out penalty, interest or cost. The bonds herein provided for shall
not be issued prior to twenty days after the expiration of the thirty
days above mentioned, but may be issued at any time thereafter.
The owner of any such lot or parcel of land may redeem the same
from all liability for said assessment at any time after said thirty
days by paying all the installments of said assessment remaining
unpaid and charged against such property at the time of such pay-
ment with interest thereon at the rate of not to exceed eight per
cent per annum from the date of issuance to the time of maturity
of the last installment. In all cases where any assessment or any
installment thereof is paid as herein provided the same shall be
paid to the city treasurer, or officer whose duty it is to collect said
assessment, and all sums so paid shall be applied solely to the pay-
ment of the cost and expense of such improvement and the redemp-
tion of the bonds issued therefor.
Where any piece of property has been redeemed from liability
of the costs for any improvements as herein provided, such property
shall not thereafter be liable for further assessment for the costs
of such improvement except as hereinafter provided. No suit to
set aside the said special assessment or to enjoin the making of the
same shall be brought or any objection to the validity thereof shall
be allowed after the expiration of thirty days from the date the
amount due on each lot or piece of ground liable for such assessment
is ascertained or confirmed by the council or trustees. The funds
raised by such assessment shall be applied solely towards the re-
demption of said bonds, and the costs and expenses of such improve-
ment.
The city treasurer or other authorized officer of such city, town
or village shall pay the interest on the bonds authorized to be issued
by this chapter out of the respective local improvement funds from
which they are payable. Whenever there shall be sufficient money
in any local improvement fund against which bonds have been issued
under the provisions of this chapter, over and above sufficient for
the payment of interest on all unpaid bonds, to pay the principal
of one or more bonds, the treasurer shall call in and pay such bonds :
Provided, That such bonds shall be called in and paid in their
numerical order: Provided, further, That such call shall be made
by publication in the city official newspaper on the day following
the delinquency of any installment of the assessment or as soon
thereafter as practicable, and shall state that Bonds No (giving
the serial number or numbers of the bonds called) will be paid on
the day the next interest coupons on said bonds shall become due,
and interest on said bonds shall cease upon such date.
12. Such bonds when issued to the contractor constructing said
work or improvements in payment thereof, or when sold as above
provided, shall transfer to the contractor, or other owner or holder,
the right or interest of such city, town or village in or with respect
to every assessment and the lien thereby created against the property
Ch. 14. SEWER CONSTRUCTION BONDS 985
of the owners assessed who shall not have availed themselves of the
provisions of this act in regard to the redemption of their property,
as aforesaid, and shall authorize said contractor, and his assigns
and the owners and holders of said bonds to receive, sue for and
collect every such assessment embraced in any such bond by or
through any of the methods provided by law for the collection of
assessments for local improvements. And if the city, town or village
shall fail, neglect or refuse to pay said bonds, or to properly collect
any such assessments when due, the owner of any such bonds, may
proceed in his own name to collect such assessments and foreclose
the lien thereof in any court of competent jurisdiction, and shall
recover, in addition to the amount of such bonds, and interest thereon,
five per cent together with the costs of such suit.
Any number of holders of such bonds for any single assessment
or improvement may join as plaintiff, and any number of owners
of property on which the same are a lien may be joined as defendants
in such suit. And such bonds shall be equal liens upon the property
as assessments represented by such bonds, without priority of one
over the other to the extent of the several assessments to the several
lots and parcels of land.
13. In all cases of special assessments in local sewerage im-
provements or sewerage disposal works, of any kind, against any
property, person or corporation whatsoever, where any such assess-
ments have failed to be valid in whole or in part for want of form,
or of sufficient informality or irregularity, or non-conformance with
the charter, ordinances or provisions of law governing such assess-
ments, the city council or trustees, or other authorized bodies or
board shall be and they are hereby authorized to re-assess such
special taxes or assessments and to enforce their collection in ac-
cordance with the provisions of law existing at the time the re-
assessment was made; and it is further provided that whenever, for
any cause, mistake or inadvertence, the amount assessed shall not
be sufficient to pay the costs of sewerage improvement made and
enjoined on the property, or on the owners of property in the local
assessment district where the same is made, that it shall be lawful
and the city council or trustees, or other authorized body or board
is hereby directed and authorized to make re-assessment upon all
the property in said local assessment district to pay for such im-
provements, such re-assessment to be made and collected in accord-
ance with the provisions of law or ordinances existing at the time
of the levy.
14. Nothing shall be construed as repealing or modifying any
existing laws and methods for cities of the first or second class or
that are organized under special or local laws, to make improvements
as herein provided for, but shall be construed as additional and con-
current power and authority. Any city whose charter provides for
the issuance of bonds for local improvements payable only from the
proceeds of special assessments, is hereby authorized to issue such
bonds in the manner and in the effect provided in this section, and
the owner of any bonds shall look only to the fund provided by
such assessment for the principal and interest of such bonds.
15. The holder of any bond issued under the authority of this
chapter shall have no claim therefor against the city, town or village
986
CITIES AND VILLAGES
Tit. 13
by which the same is issued in any event, except for the collection
of the special assessment made, for the work of improvement for
which said bond was issued, but this remedy in case of non-payment
shall be confined to the enforcement of such assessment. A copy
of this subdivision shall be plainly written, printed or engraved upon
the face of each bond so issued.
16. In the construction of a sewer or sewerage system under
the provisions of this chapter, no sewer or sewerage system which
shall be laid, placed or constructed parallel to any water main, water
pipe or conduit, shall be laid, placed or constructed within at least
six feet of such water main, water pipe or conduit: Provided,
however, That this provision of this chapter shall not apply to place
or places where said sewer or sewer system shall have to cross either
under or over any such water pipe, work or conduit.
Historical: Laws 1905, 33 4, Sec. 12.
Assessment of Benefits: An assess-
ment made under this section should
be made with reference to the front-
age of the lots and lands and the ben-
efits to be derived to the abutting
property by reason of the sewer im-
provement; the number of front feet
of lots and lands is not the sole
controlling fact for consideration in
the levy of a special assessment.
Blackwell v. Village of Coeur d'Alene
(1907) 13 Ida. ...; 90 Pac. 353.
Contest of Proceedings: A property
owner desiring to contest the collec-
tion or levy of a sewer assessment,
mu«t make his protest or initiate his
proceedings within the time required
by this section, or he will be precluded
from thereafter doing so, except in
cases where the board of trustees or
council acts without jurisdiction.
lb.
Redemption of Property: Any prop-
erty owner may redeem his property
from the lien of the assessment by
paying the whole thereof, and at the
same time paying all interest which
has accrued up to the time of the
payment of the assessment; the re-
demptioner need not pay interest to
the date of maturity of the final pay-
ment if he redeems prior to that time.
lb.
Rights of Bondholder: In case mu-
nicipal authorities fail or neglect to
collect sewer district assessment or
the property owner refuses or neglects
to pay the same, the warrant or bond-
holder may compel the municipal au-
thorities to act by writ of mandate,
or may proceed in the ordinary way
to foreclose his lien through the Dis-
trict Court in the same manner as he
would foreclose any other mortgage
or lien; the claim or lien is a charge
in rem only and is not enforcible
against the person of the owner but
only against the property. lb.
Committee to Supervise Construction Work.
Sec. 2354. All sewerage improvement, or the construction of
sewerage disposal works, as contemplated in this chapter, shall be
made and done under the supervision of the sewer committee who
are authorized to receive bids for the construction and making of
the same, and to enter into such contract or contracts as may be
necessary to have such work or improvements completed as soon,
and in such a manner, as may be consistent with the proper pro-
cedure. All contracts for such work or improvements shall provide
that the same shall be completed in all things with strict accordance
with the plans and specifications for such improvements, as shall
be provided for by said committee, its engineers or surveyors. No
contract herein provided for shall go into effect, in so far as the
committee or city, town or village are concerned, to be binding upon
it or them, until the assessment herein provided for shall be con-
firmed ; and in the event the assessment or the assessment rolls herein
provided for shall not be confirmed, then such contracts shall be
of no further force or effect.
Historical: Laws 1905, 334, Sec. 13.
Ch. 14. SEWER CONSTRUCTION BONDS. 987
Committee to Turn Over System.
Sec. 2355. Whenever and as soon as the sewer system herein pro-
vided for is, in the judgment of the committee, ready for use, the
committee shall turn the said sewer system and disposal works over
to the mayor and city council, or town and village trustees, as the case
may be for the purpose of maintaining, operating and conducting the
said sewer system and disposal works, and thereafter the power and
authority hereby given to the sewer committee to build, keep, con-
duct and maintain said sewer system and disposal works therein,
shall be exercised by said council or trustees. The committee shall
turn over the sewer system to said city, town, or village, and all
property pertaining thereto, together with all the books, profiles, pa-
pers, maps, and accounts relating to the building, construction or pur-
chase thereof, as the case may be, and the city council or trustees
shall thereupon take possession and charge of, as well the manage-
ment, conducting and maintaining the same, and in so doing, it may
alter, improve, and extend such works from time to time as the
growth of the city, town, or village, or the wants and conveniences
of the inhabitants thereof, may require, and the committee may turn
over a completed portion or portions of such work to the council or
trustees before the final completion thereof by it, and as often and as
fast as such portion is turned over to the council or trustees, they
must accept the same and conduct and maintain it accordingly.
Historical: Laws 1905, 334, Sec. 14.
Maps and Plans to Be Kept.
Sec. 2356. The committee shall cause accurate profiles, maps,
plans, and specifications to be made of the lines of sewerage as actu-
ally built and constructed, so as to show the location of the branches,
nye branches, manholes, lampholes, flushes and flushing tanks, the
depth of the sewer, the size of the pipe used in connection therewith,
and any other information that may be of value and convenience for
future reference or information for the city, town, or village, or its
officer or officers.
Historical: Laws 1905, 3 3 4, Sec. 15.
Quarterly Statements of Committee.
Sec. 2357. The committee shall cause a quarterly statement in
detail of its receipts and disbursements to be made and signed by its
chairman and clerk, and filed with the city clerk, who shall preserve
the same among the files of the city, town, or village office, which
statement shall be received and acted upon by the council or trustees;
and said committee shall file with said clerk, to be acted upon by the
said council or trustees, a full, true and correct statement quarterly
of all the property, implements, and material in its possession and
pertaining to the sewer system, together with the condition and value
thereof.
Historical: Laws 1905, 334, Sec, 16.
Regulation of System by City.
Sec. 2358. Upon the turning over of the said sewerage system, or
any part thereof, by the said committee to the said council or trus-
988
CITIES AND VILLAGES
Tit. 13
tees, said city, town or village shall have power to pass ordinances
fixing the tolls, rents, rates, rules, and regulations for the use of
such sewer and sewerage system, where same is used by persons resid-
ing or not residing within the district, or persons residing without
the corporate lines of said city, town, or village, who may use the same
or any part thereof, or through whose property the same may pass
and who may desire the use thereof.
Historical: Laws 1905, 33 4, Sec. 17.
Same: Powers of City.
Sec. 2359. Said cities, towns, or villages shall have the power to
pass any and all ordinances for the enforcement of the provisions of
this chapter, or for the future use, care and operation in any man-
ner of said sewer or sewerage system, or sewerage disposal work or
works, providing penalties not inconsistent with the laws of the
State of Idaho for the enforcement of such rules, ordinances and reg-
ulations concerning or connected therewith.
Historical: Laws 1905, 334, Sec. 18.
Validating Prior Assessments and Bonds.
Sec. 2360. All acts of whatsoever kind and nature done and per-
formed as well as all bonds or other evidence of indebtedness here-
tofore issued or ordered issued, or assessments for sewer improve-
ments made, by cities, towns, or villages of the State of Idaho under
and by virtue of "an act entitled an act to authorize and empower
cities, towns, and villages, within the State of Idaho to construct,
maintain and operate a sewerage system and sewerage disposal works,
appointing a committee therefor, and defining and regulating their
powers and duties ; providing for the levying of a special assessment
of such works and the expenses connected therewith, and provid-
ing for the oenalty of non-compliance therewith/' approved the
20th day of February, 1903, are, and the same shall be, hereby le-
galized, validated and confirmed in every particular, form or respect.
Historical: Laws 1905, 33 4, Sec. 19.
The act referred to in this section is
Laws 1903, 26, which is superseded by
the act embraced in this chapter.
CHAPTER 15.
INSTALLMENT PAYMENT OF IMPROVEMENT ASSESSMENTS.
Section
2361. Application to pay assessment
in installments.
Applications to be kept.
Lien of assessments.
2362.
2363.
2364.
Issuance, sale and redemption
of bonds.
2365. Collection of installments.
2366. Accounts to be kept: Interest
and sinking- funds.
Section
2367. Same; Entries of payments.
2368. Obligations no part of limited
indebtedness.
2 369. Bonds to be redeemed serially.
2370. Other laws unaffected.
2371. Application to previous assess-
ments.
Application to Pay Assessment in Installments.
Sec. 2361. Whenever, in any incorporated city, town or village
within this State, having a population of one thousand or more, ac-
cording to the last official census made by the State or general Govern-
Ch. 15. INSTALLMENT PAYMENT OF ASSESSMENTS 989
ment, the common council, board of trustees, or other competent
authority of such city, shall have proceeded to improve any street,
or part of street, or to lay any sewer, within the corporate limits
thereof, and shall have assessed the cost of such improvement or
sewer to the property benefited thereby, or liable therefor, accord-
ing to the provisions of the charter of such city, it shall be lawful for
the owner of any property so assessed for such an improvement or
sewer, at any time within ten days after notice of such assessment is
first published, to file with the auditor, clerk, or other city officer, who
by the provisions of the charter thereof, keeps the records of such
city, a written application to pay said assessments in installments;
and such written application shall state that the said applicant and
property owner does hereby waive all irregularities or defects, juris-
dictional or otherwise, in the proceedings to improve the street, or
lay the sewer for which said assessment is levied, and in the appor-
tionment of the cost therefor. Said application shall contain a pro-
vision that the said applicant and property owner agrees to pay said
assessment in ten annual installments, with interest at the same rate
on all of said assessments which have not been paid as that expressed
in the bond issued to pay for such improvement. Said application
shall also contain a statement by lots or blocks, or other convenient
description, of the property of the applicant assessed for such im-
provement or sewer. No application as aforesaid, shall be received
and filed by the auditor, clerk, or other officer, if the amount of such
assessment with any previous assessment for street improvement or
sewers assessed against the same property and remaining unpaid, shall
equal or exceed the valuation of said property, as shown by the last tax
roll of the county in which it is situated : Provided, That the bonds
herein authorized to be issued shall not be issued unless the total
amount due from all persons who shall file applications for permission
to pay assessments in installments as in this chapter provided, (after
deducting all applications which are by the terms of this section re-
quired to be rejected) shall aggregate the sum of one thousand dollars.
The majority of the owners of the property so assessed may select
a competent person to inspect such improvement under the direction
of the city engineer of said city. If an inspector be so selected by such
owners of property so assessed, he shall be paid out of the funds
available for such street improvements or sewers, the sum of three
dollars per diem for time actually engaged in such work of inspection.
Historical: Laws 1905. 297, Sec. 1.
Applications to Be Kept.
Sec. 2362. The auditor, clerk or other officer who is charged with
keeping the records of such city, town or village, shall keep all such
applications as are specified in the preceding section in convenient
form for examination. The applications received for each street im-
provement and each sewer shall be separate, and he shall also enter in
a book kept for that purpose, under separate heads for each street im-
provement and each sewer, the date of filing of each application, the
name of the applicant, a description of the property and the amount
of the assessment as shown in the application.
Historical: Laws 1905, 297, Sec. 2.
990 CITIES AND VILLAGES Tit. 13
Lien of Assessments.
Sec. 2363. After the expiration of the time for filing application
for the payment of assessments for improvement of streets or laying
of sewers by installments, as provided in Section 2361, the auditor,
clerk, or other officer shall enter, in a docket kept for that purpose,
under separate heads for each street or sewer by name or number, a
description of each lot or parcel of land or other property against
which such assessment is made, or which bears or is chargeable with
the cost of such improvement or sewer, with the name of the owner
and the amount of such unpaid assessment. Such docket shall stand
thereafter as a lien docket, as for taxes assessed and levied in favor
of such city, and for the amounts of such unpaid assessment therein
docketed, with interest on said unpaid assessment at the rate of not
to exceed eight per cent per annum, against each such lot or parcel
of land or other property, until such assessments and interest are paid
in the manner hereinafter provided; and all unpaid assessments and
interest shall be and remain a lien on each lot or parcel of land or
other property, respectively, in favor of such city, town or village,
and such lien shall have priority over all other liens and encumbrances
whatsoever.
Historical: Laws 1905, 297, Sec. 3.
Issuance, Sale and Redemption of Bonds.
Sec. 2364. When in any city, town or village (within the terms of
this chapter), such bond lien docket shall be made up as hereinafter
provided, as to the assessments for the improvement of streets or the
laying of sewers, such city, town or village, shall, by ordinance, au-
thorize the issuance of its bonds in convenient denominations not ex-
ceeding one thousand dollars each, and in all equal to the total amount
of unpaid assessments, for such street improvement and sewers, and
for which applications to pay under the provisions of this chapter
have been filed, as shown by said bond lien docket; and such bonds
shall, by the terms thereof mature in ten years from the date thereof,
and be payable in gold coin of the United States of America, and bear
interest, not to exceed eight per cent per annum, payable semi-annu-
ally, said interest to be evidenced by coupons attached to said bonds :
Provided, Said bonds shall mature serially, one tenth thereof during
each year, and the right to take up and cancel one-tenth of said bonds
upon the payment of the face value thereof with accrued interest to
date of payment, at any semi-annual date, at or after one year from
the date of such bond or bonds, shall be, and hereby is, vested in the
city, town or village issuing such bonds. Notice stating that certain
bonds are to be taken up and cancelled as aforesaid, and that the in-
terest thereon shall cease at the interest payment period next fol-
lowing, shall be published in a newspaper printed and published and
of general circulation in the county where such bonds are issued, not
less than twice during the month preceding the semi-annual period:
Further "provided, That if said bonds are made payable at a bank in
a state or city without the State of Idaho, it shall be the duty of the
city treasurer to mail a marked copy of the paper containing said no-
tice forthwith to said bank; and after said semi-annual period, in-
terest upon the bonds designated in such notice shall cease. Such
Ch. 15. INSTALLMENT PAYMENT OF ASSESSMENTS 991
bonds before issuance shall be signed by the mayor, president, or other
executive head of such city, town or village, countersigned by its aud-
itor, clerk, or other recording officer, and authenticated by the seal
of such city, town or village attached thereto, and shall be registered
consecutively by number and denomination of each in a book to be
kept by the auditor, clerk, or other recording officer of such city, town
or village, to be known and designated as 'The Improvement Bond
Register." Each of such bonds, whether issued for the improvement
of streets, or the laying of sewers, shall have distinctly and plainly
inscribed or printed on the face thereof the registered number of such
bond and the words "Improvement Bonds," with the name of the city,
town or village, issuing the same. Such bonds shall be advertised for
sale and sold for the highest price obtainable, but for not less than
par and accrued interest; and the proceeds thereof shall be paid by
the purchaser to the treasurer of such city, town or village, and the
par value thereof credited to the respective street improvement and
sewer fund, for which said bonds are issued ; and the accrued interest
and premium accruing from the sale of said bonds shall be credited
to the general fund of said city, town or village, the fund from which
interest is paid on street and sewer warrants, or to the improve-
ment bond sinking fund, as the common council, board of trustees or
other competent authorities shall direct.
Historical: Laws 1905, 297, Sec. 4.
Collection of Installments.
Sec. 2365. Thereafter there shall be due and payable annually,
for ten consecutive years, to the treasurer, city clerk, tax collector,
or other proper officer of such city, town or village, by the owner
of each lot or parcel of land assessed for the improvement of any
street or the laying of any sewer, whose application to pay the cost of
such improvement or sewer by installments has been filed as provided
in Section 2361, ten per cent of the cost of such improvement or
sewer assessed against the property of such owner, as appears by the
bond lien docket described in Section 2363, with the amount of one
year's interest, at not to exceed eight per cent per annum on unpaid
assessments or installments. The first payment aforesaid shall be
due and payable at the expiration of one year from the date of said
assessment in the bond lien docket, and subsequent payments at the
expiration of each year thereafter. Should such owner or owners
neglect or refuse to pay the sum or sums aforesaid as the same shall
become due and payable, for a period of twenty days, then the same
shall be collected in the same manner and with the same penalties
as delinquent street or sewer assessments are collected in such city,
town or village. It shall be the duty of the auditor, clerk, or other
recording officer charged with keeping the records of such city, town
or village, when the installments and interest on any assessment in
the bond lien docket are due, to make the proper extensions of such
installments and interest on said bond lien docket, and to turn the
same over to the tax collector, treasurer, or other proper officer of
said city, town or village, whose duty it shall be to notify the owner
or owners of property that the installments aforesaid are due and
payable, but a failure of such owner or owners to receive such notice
shall not be taken or held to prevent the collection of the same as
992 CITIES AND VILLAGES Tit. 13
herein provided. The treasurer of such city, town or village shall
issue a receipt to the person or persons paying said installments and
interest, and shall file duplicates of said receipts with the auditor,
clerk or other recording officer, and when the treasurer, clerk, tax col-
lector or other proper officer, whose duty it is to collect taxes, returns
said bond lien docket, said auditor, clerk or other recording officer
shall make the proper entries on said bond lien docket, showing the
amount of each payment and the date thereof: Provided, however,
That at any time after the issuance of such bonds any owner at the
time being of any such lot or parcel of land, or other property against
which such assessment is made and lien docketed, may pay into the
treasury of such city, town or village, the whole amount of such as-
sessment and for which such lien is docketed, together with the full
amount of interest and cost accrued thereon to the next semi-annual
interest date after such payment, and, upon producing to the auditor,
clerk or other recording officer of such city, town or village, the re-
ceipt of the treasurer or other proper tax collector thereof (in which
receipt shall be not only stated the amount of such payment, but also
a description of the lot or parcel of land or other property, upon which
such payment is made), such auditor, clerk or other recording officer,
shall enter in such lien docket, opposite the entry of the lien therein,
the fact of such payment and the date thereof, and that the lien there-
of is discharged.
Historical: Laws 190 5, 2 9 7, Sec. 5.
Accounts to Be Kept : Interest and Sinking Funds.
Sec. 2366. The treasurer of any such city, town or village, receiv-
ing any funds accruing by virtue of this chapter, shall keep such funds
and the account thereof separate and apart from the other funds of
such city, town or village. The amount of such funds paid on account of
installments, and interest on unpaid installments, shall be paid to the
credit of funds to be known and designated as "Improvement Bond
Sinking Fund" and "Improvement Bond Interest Fund" respectively.
The amount placed to the credit of the "Improvement Bond Sinking
Fund," shall, from time to time, under the direction of the common
council, board of trustees or other competent authorities, be deposited
in such bank as will pay the highest rate of interest, or be invested in,
or used for the purchase of, improvement bonds of such city, town or
village at par. In the purchase of improvement bonds the accrued
interest thereon shall be paid out of the improvement bond interest
fund, and all interest received b ythe treasurer on account of coupons
due shall be placed to the credit of the improvement bond interest
fund. Interest due on improvement bonds shall be paid out of the
improvement bond interest fund. All bonds purchased by a city, town,
or village, shall be held by the treasurer thereof as a sinking fund,
and shall be disposed of by direction of the common council, board of
trustees or other competent authority, when required for the redemp-
tion of bonds previously issued as they shall become due and payable.
Historical: Laws 1905, 2 97, Sec. 6.
Same : Entries of Payments.
Sec. 2367. Entries of payments of installments, interest, and cost
Ch. 15. INSTALLMENT PAYMENT OF ASSESSMENTS 993
made under the provisions of this chapter, shall be made in the lien
docket, aforesaid as the same shall be received, with the date thereof,
and such payments made and entered in said lien docket shall be
and operate as a discharge of such lien to the amount of such
payment, and from the date thereof.
Historical: Laws 1905, 297, Sec. 7.
Obligations No Part of Limited Indebtedness.
Sec. 2368. No obligation incurred by any city, town or village in
this State by virtue of this chapter shall be deemed or taken to be
within or any part of the limitations by law as to indebtedness by
such city, town or village.
Historical: Laws 1905, 297, Sec. 8.
Bonds to Be Redeemed Serially.
Sec. 2369. Bonds issued under the provisions of this chapter shall
be redeemed serially, beginning with the number one, and the notice
provided for in Section 2364, shall give therein the numbers of the
bonds which will be redeemed, and the time and place at which such
redemption will be made ; and after such time so fixed for redemption
no interest shall accrue or become payable on such bonds so notified
for redemption.
Historical: Laws 1905, 2 97, Sec. 9.
Other Laws Unaffected.
Sec. 2370. Nothing in this chapter shall be construed as repealing
or modifying any existing laws prescribing the method by means of
which cities, towns or villages (having more than one thousand in-
habitants as defined by this chapter) whether organized under spe-
cial charters, local laws, or general incorporating acts, may make im-
provements and lay sewers, but this chapter shall be construed as ad-
ditional and confirmed authority.
Historical: Laws 1905, 297, Sec. 10.
Application to Previous Assessments.
Sec. 2371. Any city, town or village within the classes described in
this Chapter, which may have heretofore levied special assessments
for the purpose of street improvements or for the laying of sewers,
if such assessments be not delinquent and remain unpaid when this
chapter shall become a law, may take advantage of the provisions of
this chapter by giving notice in the manner by its charter provided for
making special assessments, and said notice shall be in substantial
compliance with the provision of Section 2361.
Historical: Laws 1905, 2 97, Sec. 11.
TITLE 14
IRRIGATION DISTRICTS
Chapter
1. Organization of district.
2. Election of directors.
3. Powers and duties of the board of
4. Issuance, confirmation and sale of
bonds.
5. Levy and collection of assess-
ments.
Chapter
6. Construction work and acquire-
ment of property.
.'. Changing boundaries and consoli-
dation.
£. Miscellaneous provisions.
Xote: This title is based on a similar California statute known as the
"Wright Act", which in its present form may be found in Henning's Gen-
eral Laws, 559. The first act in this State on the subject is Laws 1895, 183,
which was superseded by Laws 1897, 146. The latter act was amended,
and re-enacted as amended, by Laws 1899, 408; and repealed by Laws 1903.
150, which is, as amended by Laws 1907, 484, the basis of this title.
CHAPTER 1.
ORGANIZATION OF DISTRICT.
Section
237 2. Who
2373.
2374.
2375.
may propose organiza-
tion.
Petition for organization.
Procedure on petition.
Notice of election: Qualifica-
tions of voters
Section
237G Conduct of election.
2377. Canvass of votes: Completion
of organization.
Who May Propose Organization.
Sec. 2372. Whenever fifty, or a majority of the holders of title,
or evidence of title, to lands susceptible of one mode or irrigation from
a common source and by the same system of works, desire to provide
for the irrigation of the same, or when for other reasons they desire
to organize the proposed territory into one district, they may propose
the organization of an irrigation district under this title: Provided,
Said holders of title or evidence of title shall hold such title or evi-
dence of title to at least one-fourth part of the total area of the land
in the proposed district, which will be assessable for the purposes of
the district. The equalized county assessment roll next preceding the
presentation of a petition for the organization of an irrigation dis-
trict shall be sufficient evidence of title for the purpose of this title,
but other evidence may be received, including receipts or other evi-
dence of the rights of entrymen on lands under any law of the
United States or of this State, and such entrymen shall be competent
signers of such petition, and the lands on which they have made such
entries shall, for the purposes of said petition, be considered as owned
by them.
Historical: Laws 1903, 150, Sec. 1;
amended Laws 1907, 484, Sec. 1.
California Legislation: See Hen-
ning's Gen. Laws, 559, Sec. 1.
Constitutionality: This act is a re-
enactment of the district iaw of 1899.
and is substantially the same as the
Wright law of California and is con-
stitutional. Nampa etc. Irr. Dist. v.
Brose (1905) 11 Ida. 474; 83 Pac. 499.
Ch. 1. ORGANIZATION OF DISTRICT 995
Petition for Organization.
Sec. 2373. A petition shall be first presented to the board of county
commissioners of the county in which the greatest proportion of the
proposed district is situated, signed by the required number of hold-
ers of title or evidence of title to the required area of such proposed
district, evidenced as above provided, which petition shall set forth
and describe, with the degree of certainty required by law in a tax roll,
all the lands proposed to be included in said district, and shall state
whether it is proposed to purchase irrigation works already in opera-
tion or to construct new works, or as the case may be, and shall pray
that the same be organized into an irrigation district. The petition,
together with all maps, cross sections and papers filed therewith, shall,
at all proper hours, be open to public inspection at the office of the
clerk of the board of county commissioners between the date of their
said filing and the date of the final hearing thereon.
Historical: Laws 1903, 150, Sec. 2,
and last sentence of Sec. 3; amended
Laws 1907, 484, Sec. 1.
California Legislation: Similar
with additional provisions: Henning's
Gen. Laws 5 5 9, Sec. 2.
Cited: Nam pa etc. Irr. Dist. v.
Brose (1905) 11 Ida. 474; 83 Pac. 499.
Procedure on Petition.
Sec. 2374. If it be proposed by said petition to construct new works
for the irrigation of said lands, or to purchase works only partially
completed and not yet in operation, the petitioners must accompany
the petition with a map of the proposed district. Said map shall show
the location of the proposed canal or other works by means of which
it is intended to irrigate the proposed district, and of all the canals
situated within the boundaries of the proposed district: Provided,
That canals that only pass through said lands and which do not in fact
irrigate any of the same need not be shown. If said water supply be
from natural streams, the flow of said stream or streams shall be
stated in terms of cubic feet per second. If the water supply for said
district is to be gathered by storage reservoirs, said map shall show
the location of said proposed reservoirs, and shall give their capacity
in acre feet. Said map shall be drawn to a scale of two inches to
the mile. Cross sections of the proposed canal, and all canals existing
within the boundaries of said proposed district, and shown on said
map, and of all proposed dams and embankments, shall be given in
sufficient number to show the contemplated mode of construction,
and the capacity shall be given in cubic feet per second of the pro-
posed and said existing canals. Such cross sections shall be drawn
to a scale of ten feet to the inch, and said map and cross sections, to-
gether with an estimate of the cost of such works, shall be certified
to by a well known and competent irrigation engineer. The petition-
ers must also accompany the petition with a bond, to be approved
by the said board of county commissioners, in double the amount of
the probable cost to the county of organizing such district, condi-
tioned that the bondsmen will pay all said costs, in case said organi-
zation be not effected. Such petition may be filed with the clerk of
the board of county commissioners at any time, and on such filing said
clerk shall publish a general notice that (giving the first name on
the petition) and others have filed a petition for the organization of
an irrigation district. If it be proposed in said petition to construct
996 IRRIGATION DISTRICTS Tit. 14
a new canal system, such notice shall state that fact and give the num-
bers of the sections in which the lands are situated which it is pro-
posed to include in said district, but if it is proposed to purchase a
canal already in operation, the notice shall state that fact and give
the name by which such canal system is generally known, and shall
state that the lands covered by said canal system are the lands pro-
posed to be included in such district. The notice shall further state
the time at which such petition will be presented to the board of
county commissioners, which time shall be during a regular meeting
of said board or a special meeting called for that purpose, and such
notice shall be published two weeks before the day on which the
same is to be presented, and if any portion of such proposed district
be within another county or counties, then said notice shall be pub-
lished in a newspaper published in each of said counties. When such
petition is presented, the said board shall set a time for a hearing
upon the same, which time shall not be less than four nor more than
eight weeks from the date of presentation. A notice of the time of
such hearing shall be published by said board, at least three weeks
before the time of such hearing, in a newspaper published within
each of the counties in which any part of said district is situated.
A copy of such petition and all maps and other papers filed with the
same shall be filed in the office of the State Engineer at least four
weeks before the date set for such hearing. It shall be the duty of
the State Engineer to examine such petition, maps and other papers,
and, if he deem it necessary, to further examine the proposed district,
the works proposed to be purchased, or the location of the works
to be constructed, and he shall prepare a report upon the matter in
such form as he deems advisable, and submit the same to the board
of county commissioners at the meeting set for the hearing of said
petition. Whenever the State Engineer shall report to the board of
county commissioners against the organization of such district, said
board of county commissioners shall refuse to further consider such
petition unless it be requested in writing so to do by three-fourths
of the land owners in said proposed district, such ownership to be de-
termined as provided in Section 2372, and at the time set for said hear-
ing the said board may, on receiving an adverse report from the
State Engineer, adjourn the proceedings for two weeks for the pur-
pose of enabling the petitioners to file a request for such further
proceedings. In any case, the petitioners may amend such plan of
irrigation at such hearing to meet the approval of the State Engineer
or as they may find advisable, and when they shall have determined
to proceed with the matter, said board may adjourn such hearing
from time to time, not exceeding four weeks in all, and on the final
hearing may make such changes in the proposed boundaries as they
may find proper, and shall make an order on their records describ-
ing the lands which they shall have determined to include in said
district, and stating that such lands will be organized into an irriga-
tion district if the vote of electors thereafter to be taken on the
proposition shall be favorable to such organization: Provided, That
any person whose lands are susceptible of irrigation from the same
source may, in the discretion of the board, upon application by him,
have such lands included in said district. Such board shall also make
Ch. 1. ORGANIZATION OF DISTRICT 997
an order dividing the district into three divisions of as nearly equal
size as may be practicable which shall be numbered first, second and
third; and one director, who shall be an elector and resident in the
division, shall be elected from each division by the district at large.
Historical: Laws 1907, 48 4, Sec. 1;
amending, by addition of Sec. 2A, Laws
1903, 150.
Notice of Election: Qualifications of Voters.
Sec. 2375. Said board shall then give notice of an election to be
held in such proposed district for the purpose of determining whether
or not the same shall be organized under the provisions of this title.
Such notice shall describe the lands in said district with the cer-
tainty required in an ordinary deed and shall state the name of
the proposed district as designated by the board of commissioners,
and shall state that a map showing the lands in said district is on
file in the office of the board of county commissioners, which map,
if not previously made as required herein, shall be made by the peti-
tioners after the determination of said commissioners of the question
of what lands shall be included in the proposed district, and if previ-
ously made, lands added to said district or deducted therefrom by
the board may be indicated thereon. Said notice shall be published
for four weeks prior to such election, in a newspaper published
within each of said counties as aforesaid. Such notice shall require
the electors to cast ballots which shall contain the words "Irrigation
District. Yes," or "Irrigation District No," or words
equivalent thereto, and also the name of one person from each such
division for director of said district. No person shall be entitled to
a vote at any election held under the provisions of this title unless
he shall possess all the qualifications required of electors under the
general laws of the State, and be a holder of land and a resident in
the proposed district: Provided, That when it is proposed in said
petition to build new irrigation works, all persons who possess the
qualifications of electors under the general laws of the State and
residing within any county in which said district or any part thereof
is situated, and competent to sign said petition, shall be permitted to
vote at all elections, and hold office in said district, until such irriga-
tion works are complete and in operation.
Historical: Laws 1907, 484, Sec. 1;
amending, by addition of Sec. 2B,
Laws 1903, 150.
California Legislation: See Hen-
ning-'s Gen. Laws, 561, Sec. 6.
Conduct of Elections.
Sec. 2376. Such election shall be conducted as nearly as practicable
in accordance with the general laws of the State: Provided, No
particular form of ballot shall be required, and that the provisions
of the election laws as to the form and distribution of ballots shall
not apply. At the time of making said order, said board of county
commissioners shall establish as many election precincts not exceed-
ing three, as may be necessary and define the boundaries thereof,
which boundaries, when the district is divided into three precincts,
shall be the same as the division boundaries above provided for,
and which said precincts may thereafter be changed by the board
998 IRRIGATION DISTRICTS Tit. 14
of directors of such district except in case of three precincts. Said
board shall appoint a registrar for each precinct so established, who
shall have the same powers and shall perform the same duties
and receive the same compensation as registrars under the general
election laws of the State, but there shall be added to the usual
elector's oath the following words : "And I am a resident and holder
of land within the boundaries of the Irrigation District,"
or the following words : "And I am a resident of this county and
a holder of land within the boundaries of the —..Irrigation
District." Said board shall also appoint three- judges of election
for each such election precinct who shall perform the same duties
as near as may be as judges of election under the general laws of
the State.
Historical: Laws 1903, 15 0, Sec. 3;
amended Laws 1907, 484, Sec. 1.
Omitting the iast sentence which has
Cross Reference: General election
laws: Title 3. Duties of registrars:
Sees. 393-401. Elector's oath: Sec.
been transferred to Sec. 2373. 396. Duties of judges and clerks.
California Legislation: See Hen- Sees. 414-438.
ning's Gen. Laws, 5 61, Sec. 6. '
Canvass of Votes : Completion of Organization.
Sec. 2377. Immediately after any election for voting upon the or-
ganization of an irrigation district, the judges of said election shall
forward the official results of said election to the clerk of said board
of county commissioners. The said board of county commissioners
shall meet within ten days after said returns are received, and shall
proceed to canvass the votes cast thereat, and if upon such canvass
it appears that two-thirds of the votes cast are "irrigation District
.. Yes," the said board shall, by order entered on its minutes,
declare such territory duly organized as an irrigation district, under
the name and style theretofore designated, and shall declare the
persons receiving respectively the highest number of votes for such
several offices to be duly elected to such offices. No action shall be
commenced or maintained, or defense made affecting the validity of
such organization after two years from and after the making and
entering of said order. Said board shall cause a copy of such order,
duly certified, to be immediately filed for record in the office of the
county recorder of each county in which any portion of such lands
are situated. If it shall appear, however, that more than one-third
of said votes are "Irrigation District... .....No," then a record of
that fact shall be duly entered upon the minutes of said board, and
all proceedings in regard to the organization of said district shall
be void, and the expenses properly incurred thereunder may be col-
lected on the bond provided for in Section 2374. From and after
the date of such filing of said order of the board of county commis-
sioners, the organization of such district shall be complete, and the
officers thereof shall be entitled to enter immediately upon the duties
of their respective offices, unon qualifying according to law, and shall
hold such offices, respectively, until their successors are elected and
qualified. The board of directors so elected shall meet within thirty
days after their election and elect a president, and appoint a secre-
tary and treasurer, who shall perform the duties imposed upon such
officers under this title. All officers of the district, except as above
Ch. 2.
ELECTION OF DIRECTORS
999
provided, must be residents thereof. Such treasurer shall execute
an official bond in the sum of five thousand dollars, to be approved
by the board of directors of the district: Provided, That when the
amount of money in the hands of said treasurer exceeds the sum of
five thousand dollars, said board of directors shall require an addi-
tional bond in a sum at least double the amount of money in the
hands of said treasurer in excess of said five thousand dollars.
Historical: Laws 190 7, 2 84, Sec. 1;
amending, by adding Sec. 3A, Laws
1903, 150.
California Legislation: See Hen-
ning's Gen. Laws, 561, Sees. 9', 10.
CHAPTER 2.
ELECTION OF DIRECTORS.
Section
2378. Election, term of office, qualifi-
cations and bond of directors.
2379. Notice of election: Judges:
Registration and oath.
2380. Conduct of election: Canvass
of returns: Filling vacancies.
Section
2381. Voting and count of ballots.
2382. Disposal of ballots.
2383. Informalities disregarded
Postponement of canvass.
2384. Statement of result.
Election, Term of Office, Qualifications and Bond of Directors.
Sec. 2378. On the second Tuesday of December following the or-
ganization of any district an election shall be held at which shall be
elected three directors by the electors of the district at large. The
terms of the office of directors shall be three years. The directors
shall, immediately after the first regular election following feuch
organization, be selected by lot so that one shall hold his office for
the term of one year, one for the term of two years, and one for
the term of three years, and an election shall be held in each district
on the second Tuesday in December of each year thereafter, at which
one director shall be elected for a term of three years, or until his
successor is elected and qualified. Such director must be a qualified
elector and a resident of the division of the director whom he is to
succeed in office. Within ten days after receiving the certificates of
election hereinafter provided for, said officer shall take and subscribe
the official oath, and file the same in the office of the board of directors,
and execute the bond hereinafter provided for. Each member of
said board of directors shall execute an official bond in the sum of
five thousand dollars, which said bonds shall be approved by the
judge of the probate court of said county where such organization
was effected, and shall be recorded in the office of the county re-
corder thereof and filed with the secretary of said board. All official
bonds provided for in this title shall be in the form prescribed by
law for the official bond of county officers.
Historical: Laws 1903, 150, Sec. 4.
Omitting the proviso relating to the
1904 election of directors in districts
organized under the 18 99 law.
California Legislation: See Hen-
ning's Gen. Laws, 561, Sec. 7.
Cross Reference: Form of official
bonds: Sees. 288, 292.
Notice of Election : Judges : Registration and Oath.
Sec. 2379. The secretary of the district shall give notice of all
elections in said district subsequent to the organization thereof, by
posting the same in three public places in each such precinct and
1000 IRRIGATION DISTRICTS Tit. 14
in the office of said board, at least four weeks before the day of such
election, which notices shall state the time of said election and the
polling place in each precinct; and the officer to be elected or other
question to be voted upon, as the case may be. At least ten days
before the holding of any such election, the board of directors shall
appoint three electors of each precinct judges of election therein
who shall constitute a board of election for such precinct. At least
four weeks before any such election said board of directors shall
appoint a registrar for each precinct of the district, except the pre-
cinct in which the office of the secretary of the board is located. In
the precinct in which his office is located, or where there is but one
voting precinct in the district, the secretary of the district shall act
as registrar. Such registrars shall be governed in the performance
of their duties by the general election laws of the State as far as
they are applicable; and must be at their places of registration, to
receive applications for registration, from nine o'clock a. m. to nine
o'clock p. m., on each of three Saturdays next preceding the date
of election. In addition to the usual elector's oath, the following
shall be added : "And I am a resident in, and holder of, land within
the boundaries of Irrigation District," or the following
words: "And I am a resident of this county and a holder of land
within the boundaries of the Irrigation District." No elec-
tion for any purpose shall be held in any irrigation district without
such regstration, and only those persons duly registered shall be
allowed to vote thereat.
Historical: Laws 190 3, 150, Sec. 5; I trars: Sec. 393-401. Electors' oath:
amended Laws 1907, 484, Sec. 1. Sec. 396.
Cross Reference: Duties of regis-
Conduct of Election: Canvass of Returns: Filling Vacancies.
Sec. 2380. The said judges shall elect a chairman who may ad-
minister all oaths required in the progress of an election, and appoint
judges and clerks, if during the progress of an election any judge
or clerk ceases to act. Any member of the board of election, or
any clerk thereof, may administer and certify oaths required to be
administered during the progress of the election. The board of elec-
tion of each precinct must, before opening the polls, appoint two
clerks to act as clerks of election. Before opening the polls, each
member of the board and each clerk must take and subscribe an
oath to faithfully perform the duties imposed upon them by law.
Any elector of the precinct may administer and certify such oath.
The time of opening and closing the polls, the manner of conducting
the election, canvassing and announcing the result, the keening of
tally lists and the making and certifying said result, and the dis-
position of the ballots after the election, shall be the same as near
as may be as provided for election under the general election law
of the State: Provided, That the returns shall be delivered to the
secretary of the district, and that no list, tally paper or certificate
returned from any election, shall be set aside or rejected for want
of form if it can be satisfactorily understood. The board of directors
must meet at its usual place of meeting on the first Monday after
each election to canvass the returns, and they shall proceed in the
Ch. 2.
ELECTION OF DIRECTORS
1001
same manner and with like effect, as near as may be, as the board
of county commissioners in canvassing the returns of general elec-
tions, and when they shall have declared the result, the secretary
shall make full entries in his records in like manner as is required
of the county recorder in general elections. The board of directors
must declare elected the person or persons having the highest num-
ber of votes given for each office. The secretary must, immediately,
make out and deliver to such person or persons a certificate of elec-
tion signed by him and authenticated with the seal of the board. In
case of a vacancy in the office of director the vacancy shall be filled
by appointment by the remaining members of the board from the
division in which the vacancy occurred. An officer appointed to fill
a vacancy as above provided shall hold his office until the next regu-
lar election for said district, at which election a director shall be
elected for the remainder of the unexpired term.
Historical: Laws 1903, 150, Sec. 6;
amended Laws 1907, 484, Sec. 1.
Voting and Count of Ballots.
Sec. 2381. Voting may commence as soon as the polls are open
and may continue during all the time the polls remain open, and shall
be conducted as nearly as practicable in accordance with the pro-
visions of Title 3 of this Code relating to elections. As soon as the
polls are closed the judges shall open the ballot box and shall com-
mence counting the votes; and in no case shall the ballot box be
removed from the room in which the election is held until all the
ballots have been counted. The counting of ballots shall in all cases
be public. The ballots shall be taken out, one by one by the chair-
man of the board of election or one of the judges, who shall open
them and read aloud the name of each person contained thereon,
and the office for which every such person is voted for. Each clerk
shall write down each office to be filled, and the name of each person
voted for such office, and shall keep the number of votes by tallies
as they are read by such chairman or judge. The counting of the
votes shall continue without adjournment until all the votes have
been counted.
Historical: Laws 1903, 150, Sec. 7.
"Title 3 of this Code relating to elec-
tions", for "the act concerning 'elec-
tions and electors', approved Febru-
ary 25, 1891, and acts amendatory
and supplementary thereof."
California Legislation: See Hen-
ning's Gen. Laws, 566, Sec. 23.
Disposal of Ballots.
Sec. 2382. As soon as all the votes are read off and counted, a
certificate shall be drawn up on each of the papers containing the
poll list and tallies, or attached thereto, stating the number of votes,
each one voted for has received, and designating the office to fill
which he was voted for, which number shall be written in words and
figures at full length. Each certificate shall be signed by all the
members of the board of election and by both clerks. One of said
certificates, with the poll list and tally paper to which it is attached,
shall be retained by the chairman of the board of election, and pre-
served by him for at least six months. The ballots shall be strung
on a cord or thread by the said chairman, during the counting thereof,
in the order in which they are entered upon the tally list by the
1002
IRRIGATION DISTRICTS
Tit. 14
clerks; and said ballots, together with the other of said certificates
with the poll list and tally paper to which it is attached, shall be
sealed by the said chairman in the presence of the other of said
judges and clerks, and indorsed "Election returns of (naming pre-
cinct) precinct," and be directed to the secretary of the board of
directors, and shall be immediately delivered by said chairman, or
by other safe and responsible carrier designated by him, to said
secretary, and the ballots shall be kept unopened for at least six
months, and if any person be of the opinion that the vote of any
precinct has not been correctly counted he may appear on the day
appointed for the board of directors to open and canvass the re-
turns, and demand a recount of the precinct that is claimed to have
been incorrectly counted.
Historical: Laws 19 03, 150, See. 8.
Informalities Disregarded : Postponement of Canvass.
Sec. 2383. No list, tally paper or certificate returned from any
election, shall be set aside or rejected for want of form if it can be
satisfactorily understood. If, at the time of the meeting, the re-
turns of each precinct in which polls have been opened have been
received, the board of directors must then and there proceed to can-
vass the returns; but if all the returns have not been received, the
canvass must be oostponed from day to day until all the returns
have been received, or until six postponements have been had. The
canvass must be made in public and by opening the returns and
counting the vote of the district for each person voted for and de-
claring the result thereof.
Historical: Laws 1903, 15 0, Sec. 9.
Omitting- the sentence "The board
must meet at its usual place of meet-
ing- on the first Monday after each
election to canvass the returns" which
is covered bv Laws 1907, 484 (Sec.
2380).
Statement of Result.
Sec. 2384. The secretary of the board of directors must, as soon
as the result is declared, enter on the records of such board a state-
ment of such result, which statement must show :
1. The whole number of votes cast in the district and in each
voting precinct thereof.
2. The names of the person or persons voted for.
3. The office to fill which each person was voted for.
4. The number of votes given in each precinct to such person
or persons.
5. The number of votes given in the district for such person
or persons.
The board of directors must declare elected the person or persons
having the highest number of votes given for each office.
Historical: Laws 1903, 150, Sec. 10.
Omitting the clause: "In case of a
vacancy in the office of director the
vacancy shall be filled by appointment
by the board of county commission-
ers from the division in which the va-
cancy occurs", and the concluding
sentence relating to the term of office
of appointees, which are in conflict
with Sec. 6 as amended by Laws 1907,
484 (see Sec. 2380), providing for
filling vacancies by appointment of the
remaining directors. The clause re-
quiring the secretary to make out a
certificate of election is also omitted
because duplicated in Sec. 2380.
Ch. 3.
DIRECTORS — POWERS AND DUTIES
1003
CHAPTER 3.
POWERS AND DUTIES OF THE BOARD OF DIRECTORS.
Section
2385. Election of officers and meet-
ings of board.
2386. By-laws: Purchase and con-
demnation of property.
2387. Legal title to property: Ac-
tions.
2388. Conveyance of property: Ac-
tions.
2389. Compensation of directors and
officers.
Section
2390. Officers must not be interested
in contracts.
2 391. Special assessments: Elections.
2392. Power to incur debts.
2393. Report to State Engineer.
2394. Statement of financial condi-
tion.
2395. County commissioners to have
access to books.
Election of Officers and Meetings of Board-
Sec. 2385. On the first Tuesday in January next following their
election, the board of directors shall meet and organize as a board,
elect a president from their number and appoint a secretary and
treasurer, who shall each hold office during the pleasure of the board.
On the organization of the first board of directors of any such dis-
trict, they shall designate some place within the district as the office
of said board and said board shall hold a regular monthly meeting
in their office on the first Tuesday in every month, and such special
meetings as may be required for the proper transaction of business :
Provided, That all special meetings must be ordered by the president
or a majority of the board, the order must be entered of record, and
the secretary must give each member not joining in the order five
days' notice of such special meetings. The order must specify the
business to be transacted at such special meeting and none other
than that specified shall be transacted: Provided, further, That
whenever all members of the board are present, however called, the
same shall be deemed a legal meeting and any lawful business may
be transacted. All meetings of the board must be public, and a
majority shall constitute a quorum for the transaction of business;
but on all questions requiring a vote there shall be a concurrence
of at least a majority of the members of the board. All records of
the board shall be open to the inspection of any elector during busi-
ness hours.
Historical: Laws 1903, 150, Sec. 12;
amended Laws 1907, 484, Sec. 1.
California Legislation: See Hen-
ning's Gen. Laws, 562, Sees. 13, 14.
By-Laws: Purchase and Condemnation of Property.
Sec. 2386. Said board shall have the power to manage and conduct
the business and affairs of the district ; make and execute all necessary
contracts; employ and appoint such agents, officers and employees
as may be required, and prescribe their duties; and to establish
equitable by-laws, rules and regulations for the distribution and use
of water among the owners of said land as may be necessary and
just to secure the just and proper distribution of the same. Said
by-laws, rules and regulations must be printed in convenient form
for distribution throughout the district. The board and its agents
and employees shall have the right to enter upon any land to make
surveys, and may locate the necessary irrigation work and the line
of any canal or canals, and the necessary branches for the same,
1004 IRRIGATION DISTRICTS Tit. 14
on any lands which may be deemed best for such location. Said
board shall also have the right to acquire, either by purchase, con-
demnation or other legal means, all lands and water rights, and
other property necessary for the construction, use and supply, main-
tenance, repair and improvement of said canal or canals and works,
including canals and works constructed and being constructed by
private owners, lands for reservoirs for the storage of needful waters,
and all necessary appurtenances. In case of purchase, the bonds of
the district hereinafter provided for may be used to their par value
in payment. Said board may also construct the necessary dams,
reservoirs and works for the collection of water for said district;
and do any and every lawful act necessary to be done that sufficient
water may be furnished to each land owner in said district for irri-
gation purposes. The use of all water required for the irrigation
of the lands of any district formed under the provisions of this title,
together with the rights of way for canals and ditches, sites for
reservoirs, and all other property required in fully carrying out the
provisions of this title, is hereby declared to be a public use, subject
to the regulation and control of the State, in the manner prescribed
by law.
Historical: Laws 1907, 484, Sec. 1;
amending, by adding- Sec. 12A, Laws
1903, 150.
California Legislation: Similar in
part: Henning's Gen. Laws, 563, Sec.
15.
Legal Title to Property.
Sec. 2387. The legal title to all property acquired under the pro-
visions of this title shall immediately and by operation of law vest
in such irrigation district, and shall be held by such district in trust
for, and is hereby dedicated and set apart to, the uses and purposes
set forth in this title. Said board is hereby authorized and em-
powered to hold, use, acquire, manage, occupy and possess said prop-
erty as herein provided.
Historical: Laws 1903, 150, Sec. 13.
California Legislation: Same: Hen-
ning-'s Gen. Laws, 567, Sec. 29.
Conveyance of Property : Actions.
Sec. 2388. The said board is hereby authorized and empowered to
take conveyance or other assurances for all property acquired by it
under the uses and provisions of this title, in the name of such irri-
gation district, to and for the purposes herein expressed; and to
institute and maintain any and all actions and proceedings, suits at
law and in equity, necessary or proper in order to fully carry out
the provisions of this title, or to enforce, maintain, protect or pre-
serve any and all rights, privileges and immunities created by this
title, or acquired in pursuance thereof. In all courts, actions, suits
or proceedings the said board may sue, appear and defend, in person
or by attorneys, and in the name of such irrigation district.
Historical: Laws 1903, 150, Sec. 14. . other provisions: Henning's Gen.
California Legislation: Similar with Laws 563, Sec. 15.
Compensation of Directors and Officers.
Sec. 2389. The members of the board of directors shall each re-
ceive not more than three dollars per day for each day spent attend-
Ch. 3. DIRECTORS — POWERS AND DUTIES 1005
ing the meetings, or while engaged in official business under the order
of the board. The board shall fix the compensation to be paid to the
other officers named in this title to be paid out of the treasury of the
district: Provided, That said board shall, upon the petition of fifty,
or a majority of the freeholders within such district, submit to the
electors at any general election a schedule of salaries and fees to be
paid hereunder. Such petition must be presented to the board twenty
days prior to a general election, and the result of such election shall
be determined and declared in all respects as other elections are
determined and declared under this title.
Historical: Laws 1903, 15 0, Sec. 38.
California Legislation: Similar:
Henning-'s Gen. Laws, 577, Sec. 57.
Officers Must Not Be Interested in Contracts.
Sec. 2390. No director or any other officer named in this title
shall in any manner be interested, directly or indirectly, in any con-
tract awarded or to be awarded by the board, or in the profits to be
derived therefrom; and for any violation of this provision, such
officer shall be deemed guilty of a misdemeanor, and such conviction
shall work a forfeiture of his office, and he shall be punished by a
fine not exceeding five hundred dollars, or by imprisonment in the
county jail not to exceed six months, or by both such fine and im-
prisonment.
Historical: Laws 1903, 150, Sec. 39.
California Legislation: Same: Hen-
ning's Gen. Laws, 577, Sec. 58.
Special Assessments : Elections.
Sec. 2391. The board of directors may, at any time when in their
judgment it may be advisable, call a special election and submit, to
the qualified electors of the district, the question whether or not a
special assessment shall be levied for the purpose of raising money
to be applied to any of the purposes provided in this title. Such
election must be called upon the notice prescril^ed, and the same
shall be held, and the result thereof determined and declared in all
respects in conformity with the provisions of Section 2396. The
notice must specify the amount of money proposed to be raised, and
the purpose for which it is intended to be used. At such elections
the ballots shall contain the words "Assessment — Yes" or "Assess-
ment— No." If two-thirds or more of the votes cast are "Assess-
ment— Yes", the board shall immediately levy an assessment sufficient
to raise the amount voted. The assessment so levied shall be com-
puted and entered on the assessment roll by the secretary of the
board and collected at once, and in the same manner as other assess-
ments provided for herein ; and when collected, shall be paid into the
district treasury for the purposes specified in the notice of such
special election.
Historical: Laws 1903, 150, Sec. 40. i last sentence omitted: Henning's Gen.
California Legislation: Similar but I Laws, 577, Sec. 59.
Power to Incur Debts.
Sec. 2392. The board of directors, or other officers of the district,
1006
IRRIGATION DISTRICTS
Tit. 14
shall have no power to incur any debt or liability whatever, either
by issuing bonds or otherwise, in excess of the express provisions
of this title; and any debt or liability incurred in excess of such
express provisions shall be and remain absolutely void : Provided,
That for the purpose of organization or for any of the purposes of
this title, the board of directors may, before the collection of the
first assessment, incur an indebtedness not exceeding in the aggre-
gate the sum of two thousand dollars, and may cause warrants of
the district to issue therefor, bearing interest at seven per cent per
annum.
Historical: Laws 1903, 150, Sec. 41.
California Legislation: Similar:
Henning's Gen. Laws, 578, Sec. 61.
Report to State Engineer.
Sec. 2393. At least as often as once a year after organization, the
board of directors shall make a report to the State Engineer of the
condition of the work of construction, as to capacity, stability and
permanency, and whether or not the plan of irrigation formulated
under the provisions of this title is being successfully carried out,
and whether or not in the opinion of the board the funds available
will complete the proposed works. Upon the receipt of such report
by the State Engineer, he shall make such suggestions and recom-
mendations to such board of directors as he may deem advisable for
the best interest of the district.
Historical: Laws 1903, 150, Sec. 37.
Statement of Financial Condition.
Sec. 2394. On or before the first Tuesday of February of each
year the board of directors of each irrigation district organized under
this title, shall publish in at least one issue of some newspaper pub-
lished in the county or counties in which such district is situated,
a full, true and correct statement of the financial condition of said
district on the first Monday of the preceding January, giving a state-
ment of all liabilities and assets of the district on such first Monday
of January.
Historical: Laws 1903, 150, Sec. 57.
County Commissioners to Have Access to Books.
Sec. 2395. Any board of directors of any such irrigation district,
or the secretary thereof, shall at any time allow any member of the
board of county commissioners, when acting under the order of such
^oard, to have access to all books, records and vouchers of the district
which are in possession or control of said board of directors or said
secretary of said board.
Historical: Laws 1903, 150, Sec. 5 8.
CHAPTER 4.
ISSUANCE, CONFIRMATION AND SALE OF BONDS.
Section
2396. Plan of construction: Issu-
ance of bonds: Election.
Section
2397. Form of bonds: Contract with
United States.
Ch. 4.
BONDS
1007
Sectio
n
Section
2398.
Repayment of money advanced
by United States.
2403.
Same: Hearing and confirma-
tion.
2399.
Apportionment of benefits.
2404.
Sale of bonds.
2400.
Same: Hearing.
2405.
Payment of bonds and interest.
2401.
Confirmation of proceedings.
2406.
Redemption of bonds.
2402.
Same: Notice: Rules of pro-
cedure.
Plan of Construction: Issuance of Bonds: Election.
Sec. 2396. As soon as practicable after the organization of any
such district the board of directors shall, by a resolution entered
on its records, formulate a general plan of its proposed operations, in
which it shall state what constructed works or other property it
proposes to purchase and the cost of purchasing the same; and fur-
ther what construction work it proposes to do and how it proposes
to raise the funds for carrying out said plan. For the purpose of
ascertaining the cost of any such construction work, said board shall
cause such surveys, examinations and plans to be made as shall
demonstrate the practicability of such plan, and furnish the proper
basis for an estimate of the cost of carrying out the same. All such
surveys, examinations, maps, plans and estimates, shall be made
under the direction of a competent irrigation engineer and certified
by him. Said board shall then submit a copy of the same to the
State Engineer, and within ninety days thereafter the State Engi-
neer shall file a report upon the same with said board, which report
shall contain such matters as, in the judgment of the State Engineer,
may be desirable. Upon receiving said report said board of directors
shall proceed to determine the amount of money necessary to be
raised, and shall immediately thereafter call a special election, at
which shall be submitted to the electors of said district possessing
Ihe qualifications prescribed by this title, the question whether or
not the bonds of said district, or the right to enter into an obligation
with the United States in the manner hereinafter provided, in the
amount as determined, shall be authorized. Notice of such election
must be given by posting notices in three public places in each election
precinct in said district at least four weeks before the date of said
election, and the publication thereof for the same length of
time in some newspaper published in the district, and in case no
paper is published in the district, then in a paper published in each
county in which the district or any part thereof is located. Such
notice must specify the time of holding the election, the amount
of bonds proposed to be issued, and, in case such maps and estimates
have been made, it shall further state that copies thereof, and in
nil cases it shall state that said report of the State Engineer, are
en file and open to public inspection by the people of the district,
at the office of said board and at the office of the State Engineer at
the State Capitol. Said election must be held and the results thereof
determined and declared in all respects as nearly as practicable in
conformity with the provisions of this title governing the election
of officers: Provided, That no informalities in conducting such an
election shall invalidate the same if the election shall have been
otherwise fairly conducted. At such election the ballots shall contain
Vol. 1—33
1008
IRRIGATION DISTRICTS
Tit. 14
the words "Bonds — Yes" or "Bonds — No," or other words equivalent
thereto. If two-thirds of the votes cast are "Bonds — Yes," the board
of directors shall cause bonds in said amount to be issued; if more
than one-third of the votes cast at any bond election are "Bonds —
No," the result of such election shall be so declared and entered of
record. And whenever thereafter said board in its judgment deems
it for the best interest of the district that the question of the issuance
of bonds in said amount, or any other amount, shall be submitted
to the electors, it shall so declare of record in its minutes, and may
thereupon submit such questions to said electors in the same manner
and with like effect as at such previous election.
Historical: Laws 1903, 150, Sec. 15;
amended Laws 1907, 484, Sec. 1.
Additional Bond Issue: Where an
irrigation district has been regularly
organized and has had surveys, maps,
plans and estimates made in accord-
ance with the requirements of this
section, and a bond issue has been
made but the money raised thereon is
not sufficient for the completion of
the projected works, it is unnecessary
to make a new survey and additional
maps and plans as a prerequisite to
ordering and holding another election
authorizing a further bond issue. Pio-
neer Irrigation District v. Campbell
(1904) 10 Ida. 150; 77 Pac. 328.
Confirmation of Bond Issue: Pro-
ceedings for the confirmation of a
bond issue by an irrigation district
may be instituted before the issuance
of the bonds in order to procure a
judicial determination of their valid-
ity, and to facilitate their sale, Nampa
etc. Irr. Dist. v. Brose (1905) 11 Ida.
474; 83 Pac. 499.
Exclusion of Land From Plan: The
owners of land property included in
an irrigation district, may waive their
rights to obtain water from the gen-
eral district plan, and may obtain wa-
ter from other sources, and by means
of a different plan, where it is clearly
shown that no one residing in the dis-
trict is in any manner injured or pre-
judiced thereby, and in such case no
part of the bond issue can be ap-
portioned to the excluded land. lb.
Form of Bonds : Contract With United States.
Sec. 2397. The bonds authorized by any vote shall be designated
as a series and the series shall be numbered consecutively as author-
ized. The portion of the bonds of a series sold at any time shall be
designated as an issue, and each issue shall be numbered in its order.
The bonds of each issue shall be numbered consecutively, commenc-
ing with those earliest falling due, and they shall be designated as
eleven year bonds, twelve year bonds, etc. They shall be negotiable
in form and payable in money of the United States as follows, to-wit :
At the expiration of eleven years from each issue, five per cent of
the whole number of bonds of such issue; at the expiration of twelve
years, six per cent; at the expiration of thirteen years, seven per
cent; at the expiration of fourteen years, eight per cent; at the
expiration of fifteen years, nine per cent ; at the expiration of sixteen
years, ten per cent ; at the expiration of seventeen years, eleven per
cent; at the expiration of eighteen years, thirteen per cent; at the
expiration of nineteen years, fifteen per cent; at the expiration of
twenty years, sixteen per cent: Provided, That such percentages
may be changed sufficiently so that every bond shall be in an amount
of one hundred dollars or a multiple thereof, and the above provisions
shall not be construed to require any single bond to fall due in partial
payments. Interest coupons shall be attached thereto, and all bonds
and coupons shall be dated on January first or July first next follow-
ing the date of their authorization and they shall bear interest at
a rate of not to exceed seven per cent per annum, payable semi-
annually on the first day of January and July of each year. The
Ch. 4.
BONDS
1009
principal and interest shall be payable at the place designated therein.
Said bonds shall be each of the denomination of not less than one
hundred dollars nor more than one thousand dollars, and shall be
signed by the president and secretary, and the seal of the board of
directors shall be affixed thereto. Coupons attached to each bond
shall be signed by the secretary. Said bonds shall express on their
face that they were issued by the authority of this title, naming it,
and shall also state the number of the issue of which such bonds
are a part. The secretary and treasurer shall each keep a record of
the bonds sold, their number, the date of sale, the price received,
and the name of the purchaser. In case the money raised by the
sale of all the bonds be insufficient for the completion of the plans
and works adopted, and additional bonds be not voted, it shall be
the duty of the board of directors to provide for the completion of
said plan by levy of assessment therefor, in the manner hereinafter
provided. After such authorization of indebtedness shall have been
made by the voters evidenced by such bond election, the board of
directors may, instead of issuing bonds in the manner provided in
this title, enter into an obligation or contract with the United States
for the construction of the necessary works under the provisions of
an act of Congress entitled "An act appropriating the receipts from
the sale and disposal of public lands in certain States and Territories
to the construction of irrigation works for the reclamation of arid
lands," approved June 17, 1902, and the rules and regulations there-
under; or the board of directors may issue bonds for a portion of
the amount of indebtedness authorized by such bond election and
enter into an obligation or contract with the United States to the
extent of the remainder of such amount.
Historical: Laws 1907, 484, Sec. 1;
amending by adding Sec. 15A, Laws
1903, 150. "Title, naming it", insert-
ed for "act, stating its title and date
of approval", line 32, to conform to
Code description. "June" inserted for
"January" 17, 1902, to correctly
specify the act referred to. which
may be found in U. S. Comp. Stat.
(1905 Sup.) 349.
California Legislation: See Hen-
ning's Gen. Laws, 568, Sec. 31.
Eepayment of Money Advanced by United States.
Sec. 2398. Whenever any amount of money shall have been ad-
vanced by the United States for the construction of irrigation works,
contemplated under the provisions of this title, by the authority of
said act of Congress, the taxing powers of the district, as provided
in this title, shall be used to repay into the treasury of the United
States the amount of money so advanced in the manner contemplated
in this title, and as may be provided in such contract between the
directors of said district and the United States; and such levies and
assessments shall be made each year under the authority of the dis-
trict as will return to the treasury of the United States the amount
or proportion of such money advanced as may have been agreed to
in such contract. The works constructed under the provisions of
such contract with the United States shall be controlled and ad-
ministered by the district in accordance with the provisions of said
act of Congress and the regulations thereunder.
Historical: Laws 1907, 484, Sec. 1;
amending, by adding Sec. 15B, Laws
1903, 150.
1010
IRRIGATION DISTRICTS
Tit. 14
Apportionment of Benefits.
Sec. 2399. Whenever the electors shall have authorized an issue
of bonds as hereinbefore provided, the board of directors shall ex-
amine each tract or legal subdivision of land in said district, and
shall determine the benefits which will accrue to each of such tracts
or subdivisions from the construction or purchase of such irrigation
works ; and the cost of such works shall be apportioned or distributed
over such tracts or subdivisions of land in proportion to such benefits ;
and the amount so apportioned or distributed to each of said tracts
of subdivisions shall be and remain the basis for fixing the annual
assessments levied against such tracts or subdivisions in carrying
out the purposes of this title. Such board of directors shall make,
or cause to be made, a list of such apportionment or distribution,
which list shall contain a complete description of each subdivision
or tract of land of such district with the amount and rate per acre
of such apportionment or distribution of cost, and the name of the
owner thereof; or they may prepare a map on a convenient scale
showing each of said subdivisions or tracts with the rate per acre
of such apportionment entered thereon: Provided, That where all
lands on any map or section of a map are assessed at the same rate
a general statement to that effect shall be sufficient. Said list or
map shall be made in duplicate and one copy of each shall be filed
in the office of the State Engineer, and one copy shall remain in
the office of said board of directors for public inspection. Whenever
thereafter any assessment is made either in lieu of bonds, or any
annual assessment for raising the interest on bonds, or any portion
of the principal, or the expenses of maintaining the property of the
district, or any special assessment voted by the electors, it shall be
spread upon the lands in the same proportion as the assessment of
benefits, and the whole amount of the assessment of benefits shall
equal the amount of bonds or other obligations authorized at the
election last above mentioned.
Historical: Laws 1907, 484 Sec. 1;
amending, bv adding Sec. 15C, Laws
1903, 150.
Constitutionality: While this sec-
tion as it stood under the act of 1899,
of which the act of 1903 was a sub-
stantial re-enactment, was possibly
subject to constitutional objection in
that it required assessments to be
made according to acreage instead of
according to benefits, yet the section,
as amended, in connection with other
sections of the district law which re-
quire assessments to be made accord-
ing to benefits, and provide for pro-
ceedings to contest the question of
benefits, remove all constitutional ob-
jections. Pioneer Irr. Dist. v. Bradley
(1902) 8 Ida. 310; 68 Pac. 295.
Same : Hearing.
Sec. 2400. After the board shall have examined the lands in said
district, and before proceeding to make the assessment of benefits
and the list and apportionment as provided in the last preceding
section, they shall give notice to the owners of said lands that they
will meet at their office on a day to be stated in said notice for the
purpose of making such assessment and list and apportionment.
They shall, as far as practicable, give such notice by a postal card
mailed or delivered to each of said land owners, and the same shall
be mailed or delivered to land owners residing out of the county
where said office is located at least ten days before the dav fixed
for such meeting, and to such as reside in said county it shall be
Ch. 4.
BONDS
1011
so mailed or delivered at least six days before the time for such
meeting. For the purpose of giving notice to non-residents and such
owners as it is not reasonably practicable to notify personally or
by mail as aforesaid, the notice shall be published in some newspaper
published in the same county two weeks before the time of such
meeting. At such meeting the board shall proceed to hear all parties
interested who may appear, and they shall continue in session from
day to day until the assessment is completed. They shall hear all
evidence offered, including any maps or surveys which any owners
of lands may produce, and they may classify the lands in such way
that the assessment when completed shall be just and equitable. Any
person interested who shall fail to appear before the board shall
not be permitted thereafter to contest said assessment or any part
thereof except upon a special application to the court in the pro-
ceedings for confirmation of said assessment, showing reasonable
excuse for failing to appear before said board of directors. In case
any land owner makes objection to said assessment or any part
thereof before said board, and said objection is overruled by the
said board, and the land owner does not consent to the assessment
as finally determined, such objection shall, without further proceed-
ings, be regarded as appealed to the District Court and to be heard
at the said proceedings to confirm as aforesaid.
Historical: Laws 1907, 484, Sec. 1;
amending by adding Sec. 15D, Laws
1903, 150.
Confirmation of Proceedings.
Sec. 2401. The board of directors of the irrigation district shall
file in the District Court of the county in which their office is situated
a petition, praying in effect that the proceedings aforesaid may be
examined, approved and confirmed by the court. The petition shall
state generally that the irrigation district was duly organized and
the first board of directors elected, that due and lawful^rocee dings
were taken to issue bonds in an amount to be stated, and that said
assessment, list and apportionment were duly made and a copy of
said assessment, list and apportionment shall be attached to said
petition, but the petition need not state other facts showing such
nroceedings: Provided, That after the organization of the district
is complete, a petition may be filed for the confirmation of the pro-
ceedings so far, or after the authorization of any issue of bonds such
petition may be so filed, and where the procedure is by separate
petitions for the confirmation of different portions of said proceed-
ings, subsequent proceedings may be in the name of re-opening of
the same case, but shall not be considered as authorizing any re-
hearing of the matter theretofore heard and decided.
Historical: Laws 19 03, 150, Sec. 16;
amended Laws 1907, 484, Sec. 16.
Cited: Pioneer Irr. Dist. v. Camp-
bell (1904) 10 Ida. 159; 77 Pac. 328;
Nampa etc. Irr. Dist. v. Brose (1905)
11 Ida. 474; 83 Pac. 499.
Same : Notice : Rules of Procedure.
Sec. 2402. The court or judge shall fix the time for the hearing
of said petition, and shall order the clerk of the court to give and
publish a notice of the filing of said petition. The notice shall be
1012
IRRIGATION DISTRICTS
Tit. 14
given and published in a newspaper published in the same county
for four successive weeks. The notice shall state the time and place
fixed for the hearing of the petition, and the prayer of the petition,
and that any person interested in the subject matter of said petition
may, on or before the day fixed for the hearing thereof, demur to
or answer said petition. None of the pleadings in said matter need
be sworn to. Every material statement of the petition not contro-
verted by answer must be taken as true, and every person or party
failing to answer the petition shall be deemed to have admitted all
the material allegations of the petition. The rules of pleading and
practice provided by the Code of Civil Procedure which are not
inconsistent with this title are applicable to the special proceedings
herein provided for. A motion for a new trial, and all proceedings
in the nature of appeals or rehearing, may be had as in any ordinary
suit at law.
Historical: Laws 1903, 150, Sec. 17;
amended Laws 1907, 484, See. 1.
Sufficiency of Service: The con-
structive service by posting the ap-
plication authorized by this section, is
sufficient to confer jurisdiction; the
proceeding is one in rem. Nampa etc.
Irr. Dist. v. Brose (1905) 11 Ida. 474;
83 Pac. 499.
Same : Hearing and Confirmation.
Sec. 2403. Upon the hearing of such special proceedings, the court
shall examine all of the proceedings set up in the petition, and may
ratify, approve and confirm the same or any part thereof, and in
case of a petition to confirm said assessment, list, apportionment and
distribution, the court shall hear all objections either filed in said
proceedings or brought up from the hearing before the board of
directors as aforesaid, and for that purpose any person desiring to
be heard upon objections overruled by the board of directors, shall
state the substance of said objections and the ruling of the board
in his answer. The court shall disregard every error, irregularity
or omission which does not affect the substantial rights of any party,
and if the court shall find that said assessment, list and apportion-
ment are in any substantial matter erroneous or unjust, the same
shall not be returned to said board, but the court shall proceed to
correct the same so as to conform to this title and the rights of all
parties in the premises, and the final order or decree of the court
may approve and confirm such proceedings in part, and disapprove
other parts of said proceedings ; and in case the proceedings for the
organization of the district and the issue of bonds are approved,
the court shall correct all the errors in the assessment, apportionment
and distribution of costs as above provided, and render a final decree
approving and confirming all of the said proceedings. In case of
the approval of the organization of the district and the disapproval
of the proceedings for issuing bonds, the district shall have the right
to institute further proceedings for the issue of bonds de novo. _ The
costs of the special proceedings may be allowed and apportioned
among the parties thereto in the discretion of the court.
Historical: Laws 1903, 150, Sec. 19;
amended Laws 1907, 484, Sec. 1.
Proceedings for Confirmation: On
proceedings for the confirmation of
the organization of an irrigation dis-
trict and of the bonds issued by it. the
court may examine and determine the
legality and validity of, and approve
and confirm each and all of the pro-
ceedings for the organization of such
Ch. 4.
BONDS
1013
district from and including- the peti-
tion for its organization, together with
all other proceedings which may af-
fect the legality or validity of the
bonds, and the order for the sale
thereof. Nampa etc. Irr. Dist. v.
Brose (1905) 11 Ida. 474; 83 Pac. 499.
Sale of Bonds.
Sec 2404. The board may sell said bonds from time to time, in such
quantities as may be necessary and most advantageous, to raise money
for the construction of said canals and works, the acquisition of
said property and rights, and otherwise to carry out the object and
purposes of this title. Before making any sale the board shall, by
resolution, declare its intention to sell a specified amount of the
bonds, and if said bonds can then be sold at their face value and
accrued interest, they may be sold without advertisement, otherwise
said resolution shall state the day and hour and place of such sale,
and shall cause such resolutions to be entered on the minutes, and
notice of sale to be given by publication thereof at least four weeks
in three newspapers published in the State of Idaho, one of which
shall be a newspaper published in the county in which the office of
the board of directors is situated, if there be a newspaper published
in said county, and in other newspapers at their discretion. Said
notice shall state that sealed proposals will be received by the board
at their office for the purchase of the bonds until the day and hour
named in the resolution. At the time appointed the board shall
open the proposals and award the purchase of the bonds to the
highest responsible bidder, or may reject all bids; but in case no
bids are received, or all bids are rejected, at the time stated in the
advertisement, it shall not be again necessary to advertise the sale
of the same bonds, but they may be sold at any time until cancelled :
Provided, Said board shall in no event sell any of the said bonds
for less than the par or face value thereof and accrued interest.
If, for any reason, the duly authorized bonds of a district cannot be
sold, or if at any time it shall be deemed for the best interests of
the district to withdraw from sale all or any portion of an authorized
bond issue, the board of directors may, in their discretion, cancel
the same and they may levy assessments to the amount of the bonds
cancelled : Provided, That the revenue derived from said assessments
must be employed for the same purpose as was contemplated by the
bond authorization; but no levy shall be made to pay for work or
material, payment for which was contemplated by bonds which have
been authorized, until bonds to the amount of said assessment have
been cancelled. Assessments made in lieu of bonds cancelled shall
be collected in the same manner, and shall have the same force and
effect, as assessments levied under any provision of this title : Pro-
vided. That such assessment shall not, during any one year, exceed
ten per cent of the total bond issue authorized by such district, unless
a greater assessment shall be authorized by a majority vote of the
qualified electors of the district voting at a general election or a
special election called for that purpose, said special election to be
held in the manner provided in Section 2391.
Historical: Laws 1903, 150, Sec. 21;
amended Laws 1907, 484, Sec. 1.
California Legislation: See Hen-
ning's Gen. Laws, 559, Sec. 32.
Cited: Nampa etc. Irr. Dist. v.
Brose (1905) 11 Ida. 474; 82 Pac. 499.
1014
IRRIGATION DISTRICTS
Tit. 14
Payment of Bonds and Interest.
Sec. 2405. Said bonds and the interest thereon shall be paid by rev-
enue derived from the annual assessment upon the land in the district ;
and all the land in the district shall be and remain liable to be
assessed for such payment.
Historical: Laws 1903, 150, Sec. 2 2.
amended Laws 1907, 484, Sec. 1.
Redemption of Bonds.
Sec. 2406. Upon the presentation of the coupons due to the treas-
urer, he shall pay the same from the bond fund. Whenever, after
ten years from the issuance of said bonds, said fund shall amount
to the sum of ten thousand dollars, the board of directors may direct
the treasurer to pay such an amount of said bonds not due as the money
in said fund will redeem, at the lowest value at which they may be
offered for liquidation, after advertising for at least four weeks in
some newspaper published in the county, and in other newspapers
which said board may deem, advisable, for sealed proposals for the
redemption of said bonds. Said proposals shall be opened by the
board in open meeting, at a time to be named in the notice, and the
lowest bid for said bonds must be accepted: Provided, That no
bond shall be redeemed at a rate above par. In case the bids are
equal, the lowest numbered bond shall have the preference. In case
none of the holders of said bonds shall desire to have the same re-
deemed, as herein provided for, said money shall be invested by
the treasurer under the direction of the board, in United States bonds,
or the bonds or warrants of the state, or municipal or school bonds,
which shall be kept in said bond fund and may be used to redeem
said district bonds whenever the holders thereof may desire.
Historical: Laws 1903, 150, Sec. 32.
California Legislation: Similar:
Henning's Gen. Laws, 575, Sec. 52.
CHAPTER 5.
LEVY AND COLLECTION OF ASSESSMENTS.
Section
Section
2407.
Preparation of assessment
2412.
Payment of assessments.
book.
2413.
Delinquent list.
2408.
Notice of correction of assess-
ments.
2414.
Publication of delinquent
Sales.
list:
2409.
Board of correction.
2415.
Redemption: When and
how
2410.
Levy of assessment.
made.
2411.
Lien of assessment.
Preparation of Assessment Book.
Sec. 2407. The secretary of the board of directors shall be the
assessor of the district, and on or before August fifteenth of each
year shall prepare an assessment book containing a full and accurate
list and description of all the land of the district, and a list of the
persons who own, claim or have possession or control thereof, during
said year, giving the number of acres listed to each person. If the
name of the person owning, claiming, possessing or controlling any
tract of said land is not known, it shall be listed to "unknown owners.
Ch. 5. ASSESSMENTS 1015
Historical: Laws 1903, 150, Sec. 23.
Notice of Correction of Assessments.
Sec. 2408. On or before the first Monday in September of each
year, the secretary of the board must give notice of the time the
board of directors will meet to correct assessments, by publication
in a newspaper published in each of the counties comprising the
district. The time fixed for the meeting shall not be less than twenty
nor more than thirty days from the first publication of the notice.
In the meantime the assessment book must remain in the office of
the secretary for the inspection of all persons interested.
Historical: Laws 1903, 150, Sec. 2 4.
California Legislation: See Hen-
ning's Gen. Laws, 571, Sec. 37.
Board of Correction.
Sec. 2409. Upon the day specified in the notice required by the
preceding section for the meeting, the board of directors which is
hereby constituted a board of correction for that purpose, shall meet
and continue in session from day to day, as long as may be necessary,
not to exceed five days, exclusive of holidays, and may make such
changes in said assessment book as may be necessary to make it
conform to the facts. Within five days after the close of said session,
the secretary of the board shall have the corrected assessment book
complete.
Historical: Laws 1903, 150, Sec. 25.
California Legislation: Similar:
Henning's Gen. Laws, 571, Sec. 38.
Levy of Assessment.
Sec. 2410. At its regular meeting in October, the board of directors
shall levy an assessment upon the lands in said district upon the
basis, and in the proportion, of the list and apportionment of benefits
approved by the court as hereinbefore provided, which assessment
shall be sufficient to raise the annual interest on the outstanding
bonds. At the expiration of ten years after the issue of said bonds
of any issue, the board must increase said assessment, as may be
necessary from year to year, to raise a sum sufficient to pay the
principal of the outstanding bonds as they mature. The secretary
of the board must compute and enter in a separate column of the
assessment book the respective sums, in dollars and cents, to be paid
as an assessment on the property therein enumerated. When col-
lected, the assessment shall be paid into the district treasury, and
shall constitute a special fund, to be called "Bond fund of
Irrigation District." In case any assessment should be made for
the purpose contemplated by a bond authorization, it shall be entered
in a separate column of the assessment book in the same manner
as the bond fund ; and when collected shall constitute the "Construc-
tion Fund of Irrigation District."
Historical: Laws 1903, 150, Sec. 26; board" inserted before "must increase
amended Laws 1907, 484, Sec. 1. "The ' said assessment" to express the sense.
Lien of Assessment.
Sec. 2411. The assessment is a lien against the property assessed
1016 IRRIGATION DISTRICTS Tit. 14
from and after the first Monday in March of any year (the lien
for the bonds of any issue shall be a preferred lien to that of any
subsequent issue) and such lien is not removed until the assessments
are paid, or the property sold for the payment thereof.
Historical: Laws 1903, 15 0, Sec. 27.
Payment of Assessments.
Sec. 2412. On or before the first day of November the secretary
must deliver the assessment book to the treasurer of the district, who
shall within ten days publish a notice in a newspaper published in
each county in which any portion of the district may lie, that said
assessments are due and payable and will become delinquent at six
o'clock p. m. on the first Monday of January next thereafter, and also
the times and places at which the payment of the assessments may
be made, which notice shall be published for the period of two weeks.
The treasurer must attend at the times and places specified in the
notice, to receive assessments, which must be paid in lawful money of
the United States ; he must mark the date of payment of any assess-
ment in the assessment book opposite the name of the person paying,
and give a receipt to such person, specifying the amount of the as-
sessment and the amount paid with a description of the property
assessed. On the first Monday of January at six o'clock p. m. of each
year, all unpaid assessments for the preceding year are delinquent:
Provided, That if any person shall pay one-half of his assessments
before they become delinquent as aforesaid, the remaining one-half
shall not become delinquent until the first Monday in July at six
o'clock p. m. of each year.
Historical: Laws 1903, 150, Sec. 28; i California Legislation: Similar:
amended Laws 1907, 484, Sec. 1. Henning-'s Gen. Laws, 572, Sec. 41.
Delinquent List.
Sec. 2413. On or before the second Monday of January of each
year, said treasurer shall begin the preparation of a delinquent list
containing a description of all tracts of land upon which assessments
are delinquent and the amount of assessments against each such
tract and the name of the owner as shown on the assessment book, and
thereafter and on or before the second Monday of July, the treasurer
shall complete said delinquent list and shall properly certify the same
and prepare a duplicate thereof ; and deliver it to the secretary of the
district. If any such assessment becomes delinquent the treasurer
shall collect the same with the penalties added, as provided for delin-
quent county and State taxes.
Historical: Laws 1903, 150, Sec. 29;
amended Laws 1907, 484, Sec. 1.
Publication of Delinquent List: Sales.
Sec. 2414. During the first seven days of August the treasurer
must commence to publish the delinquent list and the publication shall
continue four weeks, and must contain the names of the persons and a
description of the property delinquent at the time, and the amount
of assessment and penalties, and the costs due opposite each name
and description. After said publication shall have been made for the
Ch. 5.
ASSESSMENTS
1017
first time, the treasurer shall collect twenty-five cents additional to
the assessments and penalties on each description of land published.
The treasurer must append and publish with the delinquent list a
notice that unless the assessments delinquent together with penalties
and costs are paid, the real property upon which said assessments are
made will be sold at public auction, at a time and place therein speci-
fied. The publication must be made in some newspaper published
in said district, if it can be so published, and if it can not be so pub-
lished, then in some newspaper published in the county in which the
office of the directors is situated; and if it can not be so published,
then by posting in not less than three public places in said district,
one of which shall be at the door of the office of said board. The time
of said sale shall be fixed for the first Tuesday in September, and the
place shall be at the office of said board of directors. The treasurer,
as soon as he has made the publication required, must file with the
secretary proof of such publication by affidavit and like proof of post-
ing, in case such notice was posted, as herein required. The treas-
urer must attend at the time and place specified in the notice, and
conduct the sale. The sale shall be conducted in all respects in the
manner provided for the sale of property for delinquent county and
State taxes, and may be postponed in the same manner, and the dis-
trict shall become the purchaser of the property in the cases when the
county would have become the purchaser of property at sales for
delinquent county and State taxes. The treasurer must retain in
his office a list of the property sold, stating name of owner as appears
by assessment roll, amount for which sold and date of sale, and file
a duplicate list with the recorder of the county in which the land is
situated. The treasurer shall execute a duplicate certificate of sale,
which shall contain the statements in substance required in certifi-
cates of sale in sales of county and State delinquent taxes, one of which
shall be delivered to the purchaser and the other shall be filed by the
treasurer in the office of the county recorder of the county in which
the land is situated. When the district is the purchaser the duplicate
certificate shall be filed with the secretary. Any irrigation district
as a purchaser of any land at any such delinquent tax sale, shall be
entitled to the same rights as a private purchaser, and 4he title so
acquired by the district, subject to the rights of redemption herein
provided, may be conveyed by deed, executed and acknowledged by
the president and the secretary of the board: Provided, That au-
thority to so convey must be conferred by resolution of the board,
entered on its minutes.
Historical: Laws 1903, 150, Sec. 30;
amended Laws 1907, 484, Sec. 1.
California Legislation: See Hen-
ning's Gen. Laws, 572, Sec. 42.
Cross Reference: Sales for delin-
quent State and county taxes: Sees.
1743-1769.
Redemption : When and How Made.
Sec. 2415. Redemption can be made at any time within one year
from the date of the sale. Redemption may be made by paying to
the treasurer the amount for which the property was sold, together
with ten per cent penalty and one per cent per month thereon. The
treasurer shall thereupon deliver to the person redeeming a certifi-
cate of redemption, stating the description of the land sold, the name
1018 IRRIGATION DISTRICTS Tit. 14
of the owner as it appeared on the assessment roll, and the amount
paid on such redemption, and shall note the redemption on his list
of sales. When such certificate of redemption shall be presented to
the county recorder where the land is situated, he shall mark the
property as redeemed in his record of such sales. The treasurer
must pay the amount received on such redemption to the person
holding the certificate of sale, upon presentation thereof with satis-
factory proof of ownership. When the district is purchaser, it may
assign any certificate of sale to any person, within one year after
the sale, upon receipt of the amount for which the property was sold
to the district, with interest from the date of sale. If no redemption
be made within a year after said sale, the treasurer shall, upon re-
quest, execute a deed to the holder of the certificate, which deed
shall recite and contain the matters required in deeds for property
sold for county and State taxes, and when so executed and delivered
shall have the same effect.
Historical: Laws 1903, 150, Sec. 31.
California Legislation: See Hen-
ning's Gen. Laws, 574, Sec. 47.
CHAPTER 6.
CONSTRUCTION WORK AND ACQUIREMENT OF PROPERTY.
Section
2416. Contracts for construction
work.
2417. Notice for bids dispensed
with.
2418. Payment of claims.
2419. Payment of expenses: Water
tolls.
Section
2420. Intersection with streets, rail-
roads, etc.
2421. Right of way over State lands.
2422. Right of eminent domain.
Contracts for Construction Work.
Sec. 2416. After adopting a plan for said canal or canals, storage
reservoirs, and works, the board of directors shall give notice, by
publication thereof not less than thirty days in one newspaper pub-
lished in each of the counties comprising the district, if a newspaper
is published therein, and in such other newspaper as they may deem
advisable, calling for bids for the construction of such work, or any
portion thereof. If less than the whole work is advertised, then
the portion so advertised must be particularly described in such
notice. Said notice shall set forth that plans and specifications can
be seen at the office of the board, and that the board will receive
sealed proposals therefor, and that the contract will be let to the
lowest responsible bidder, stating the time and place for opening
said proposals, which, at the time and place appointed, shall be
opened in public; and as soon as convenient thereafter the board
shall let said work, either in portions or as a whole, to the lowest
responsible bidder, or they may reject any and all bids and re-adver-
tise for proposals. Contracts for the purchase of the material shall
be awarded to the lowest responsible bidder. Any person or persons
to whom a contract may be awarded shall enter into a bond, with
good and sufficient sureties, to be approved by the board, payable
to said district for its use, for twenty-five per cent of the amount
Ch. 6. CONSTRUCTION WORK 1019
of the contract price, conditioned upon the faithful performance of
said contract. The work shall be done under the direction and to
the satisfaction of the engineer employed by the district, and ap-
proved by the board : Provided, That no contract of any kind shall
be let by said board of directors unless there is sufficient money in
the district treasury at the time such contract is let, available for
such payment, to fully pay for the work or material so contracted for.
Historical: Laws 1903, 150, Sec. 33.
California Legislation: Similar:
Henning's Gen. Laws, 5 75, Sec. 53.
Notice for Bids Dispensed With.
Sec. 2417. On the petition of fifty or a majority of the owners
of land in said district, to be determined as provided by Section 2372,
the board of directors may do any work mentioned in the preceding
section on behalf of the district, and it may use the construction
fund therefor; in such case they need not publish notice for bids as
provided in the last preceding section.
Historical: Laws 1907, 484, Sec. 1;
amending, by adding Sec. 33A, Laws
1903, 150.
Payment of Claims.
Ses. 2418. No claim shall be paid by the treasurer until allowed
by the board, and only upon a warrant signed by the president, and
countersigned by the secretary.
Historical: Laws 1903, 150, Sec. 34. additional provisions: Henning's Gen.
California Legislation: Same with ' Laws, 576, Sec. 54.
Payment of Expenses: Water Tolls.
Sec. 2419. The cost and expenses of purchasing and acquiring
property and constructing works and improvements to carry out
the formulated plan, shall be paid out of the construction fund. For
the purpose of defraying the expenses of the organization of the
district, and of the care, operation, management, repair and im-
provement of such portion of said canal and works as are completed
and in use, including salaries of officers and employees, the board
may either fix rates of tolls and charges for water against all persons
using said canal for irrigation or other purposes, or they may levy
assessments therefor or by both said tolls and assessments. The
procedure for levying and collection of assessments shall conform to
the provisions of this title relating to the payment of principal and
interest of bonds. All assessments and tolls shall be listed and carried
out in the regular assessment book and collected by the treasurer
at the time and in the manner of the regular annual assessment.
All special assessments are a lien on the lands assessed from the time
when they are ordered. The board of directors may order tolls for
water to be collected in advance. Whenever an assessment book or
toll book shall be delivered to the treasurer, the secretary shall charge
the treasurer with the total amount of the various amounts as carried
out in said books. On the second Monday of January in each year
the treasurer shall make a semi-annual settlement with the secretary,
and deliver to the secretary a statement in brief of all assessments
1020
IRRIGATION DISTRICTS
Tit. 14
delinquent at that time and account for all sums theretofore collected.
The treasurer shall make such settlements for tolls at such times
as may be ordered by the board. On the second Monday of July the
treasurer shall make final settlement with the secretary, and deliver
to the secretary a duplicate delinquent list and account for all sums
not shown on said delinquent list. The secretary shall then charge
the treasurer with the amount of said list and penalties added, and
upon receiving an affidavit of publication thereof he shall charge
the treasurer with twenty-five cents additional for each description
published. On the first Monday after the sale, the treasurer shall
make final settlement for assessments, by receiving credit for the
property sold to the district and accounting for all of the balance.
Historical: Laws 190 3, 15 0, Sec. 35;
amended Laws 1907, 484, Sec. 1.
California Legislation: Similar
through "other purposes", line 9, rest
omitted: Henning's Gen. Laws, 5 76,
Sec. 55.
Intersection with Streets, Railroads, Etc.
Sec. 2420. The board of directors shall have power to construct
the said works across any stream of water, water course, street,
avenue, highway, railway, canal, ditch or flume which the route of said
canal or canals may intersect or cross, in such a manner as to afford
security for life and property; but said board shall restore the same
when so crossed or intersected, to its former state as near as may
be, or in a sufficient manner not to have impaired unnecessarily its
usefulness; and every company whose railroad shall be intersected
or crossed by said work, shall unite with said board in forming said
intersections and crossings and grant the privileges aforesaid; and
if such railroad company and said board, or the owners and con-
trollers of said property, thing or franchise to be crossed, cannot
agree upon the amount to be paid therefor, or upon the points or
the manner of said crossings or intersections, the same shall be ascer-
tained and determined in all respects as herein provided in respect
to the taking of land.
Historical: Laws 1903, 15 0, Sec. 36.
Omitting the concluding clause rela-
tive to rights of way over State land,
which is embraced in the following
section.
California Legislation: Similar:
Henning's Gen. Laws, 576, Sec. 56.
Right of Way Over State Lands.
Sec. 2421. The right of way is hereby given, dedicated and set
apart, to locate, construct and maintain said works over and through
any of the lands which are now or may be the property of the State.
Historical: Laws 1903, 150, Sec. 36.
Concluding sentence of section.
Right of Eminent Domain.
Sec. 2422. All irrigation districts organized under the laws of the
State of Idaho shall have the right of eminent domain, with the power
by and through their boards of directors, to cause to be condemned
and appropriated in the name of and for the use of said districts,
all lands, water rights, reservoirs, canals and works constructed or
being constructed by private owners, and lands for reservoirs for
the storage of needful waters, and all necessary appurtenances and
Ch.7.
CHANGING BOUNDARIES
1021
other property necessary for the construction, use and supply, main-
tenance, repair and improvement of said canal or canals and works.
Said irrigation districts shall have the right by and through their
boards of directors to acquire by purchase or other legal means, any
or all of the property mentioned and referred to in this section. In
any action or proceeding for the condemnation of any property men-
tioned and referred to in this section, wherein said irrigation district
is a party, the plaintiff must, within six months after final judgment,
pay the sum of money assessed, or said judgment will be annulled.
Except as otherwise provided in this chapter, the provisions of the
laws of Idaho relative to the right of eminent domain, civil actions
and new trials and appeals, shall be applicable to, and constitute
the rules of practice in, condemnation proceedings by said irrigation
districts.
Historical: Laws 1907, 221, Sees. 1,
2, 3, 4.
CHAPTER 7.
CHANGING BOUNDARIES OF DISTRICT.
Section
Secti(
2423.
Petition for annexation of ad-
2430.
jacent land.
2431.
2424.
Guardians and administrators
2432.
may sign petition.
2433.
2425.
Notice of petition.
2434.
2426.
Hearing of petition.
2435.
2427.
Assessment against petition-
ers.
2436.
2428.
Order accepting or rejecting
2437.
petition.
2438.
2429.
Same: Overruling objections.
Election to determine change.
Order changing boundaries.
Order to be recorded.
Same: Record in minutes.
Exclusion of land from district.
Survey of land to be excluded.
Cost of survey.
Changes to be recorded.
Consolidation of districts.
Petition for Annexation of Adjacent Land.
Sec. 2423. The holder or holders of any title, or evidence of title,
representing one-half or more of any body of lands adjacent to the
boundary of an irrigation district, may file with the board of directors
of said district a petition in writing praying that said land may be
annexed. The petition shall describe the lands, and srTttll also de-
scribe the several parcels owned by the petitioners.
Historical: Laws 1903, 150, Sec. 44;
amended Laws 1907, 484, Sec. 1.
California Legislation: Similar with
additional provisions: Henning's Gen.
Laws, 583, Sec. 86.
Guardians and Administrators May Sign Petition.
Sec. 2424. A guardian, executor, or an administrator of an estate
who is appointed as such under the laws of this State, and who, as
such guardian, executor, or administrator, is entitled to the pos-
session of the lands belonging to the estate which he represents, may,
on behalf of his ward or the estate which he represents, upon being
thereunto authorized by the proper court, sign and acknowledge
the petition mentioned in this chapter for the change of boundaries
of the district.
Historical: Laws 1903, 150, Sec. 54.
"For the change of boundaries of the
district" inserted for "why the boun-
daries of the district should not be
changed", to better express the sense.
California Legislation: Similar:
Henning's Gen. Laws 585, Sec. 96.
1022
IRRIGATION DISTRICTS
Tit. 14
Notice of Petition.
Sec. 2425. The secretary must cause a notice of the filing of such
petition to be published three weeks in the manner of notices of
special elections. The notice shall state the filing of such petition,
and the names of the petitioners, a description of the lands mentioned
in the said petition, and the prayer of said petition, and it shall notify
all persons interested in or that may be affected by such change of
boundaries of the district, to appear at the office of said board, at
a time named in said notice, and show cause in writing, if any they
have, why the lands mentioned should not be annexed to said district.
The petitioners shall advance to the secretary sufficient money to pay
the estimated costs of all proceedings under this chapter.
Historical: Laws 1903, 150, Sec. 45;
amended Laws 1907, 484. Sec. 1.
California Legislation: Similar:
Henning's Gen. Laws, 581. Sec. 87.
Hearing of Petition.
Sec. 2426. The board of directors, at the time mentioned in said
notice or at such other time to which the hearing may be adjourned,
shall hear the petition and all the objections thereto, showing cause,
as aforesaid. The failure of any person to show cause as aforesaid
shall be taken as an assent on his part to a change of the boundaries
of the district as prayed for in said petition, or to such a change
thereof as will include a part of said lands.
Historical: Laws 1903, 150, Sec. 46;
amended Laws 1907, 484. Sec. 46.
California Legislation: Similar
with additional provision: Henning's
I ten. Laws, 584, Sec. 88.
Assessment Against Petitioners.
Sec. 2427. The board of directors may require, as a condition to
the granting of said petition, that the petitioners shall severally pay
to such district such respective sums, as nearly as the same can be
estimated, as said petitioners, or their grantors, would have been
required to pay to such district, had such lands been included in
such district, at the time the same was originally formed.
Historical: Laws 1903. 150, Sec. 47;
amended Laws 1907. 484, Sec. 1.
California Legislation: Similar:
Henning's Gen. Laws, 584, Sec. 89.
Order Accepting or Rejecting Petition.
Sec. 2428. The board of directors, if they deem it not for the best
interest of the district to include therein the lands mentioned in the
petition, shall order that the petition be rejected. But if they deem
it for the best interest of the district, and if no person interested
shall show cause why the proposed change be not made, or if having
shown cause, withdraws the same, the board may order, without any
plection, that the lands mentioned in said petition or some part thereof
be annexed to said district. The order shall describe the lands to
be annexed to said district and the board may cause a survey thereof
to be made if deemed necessary.
Historical: Laws 1903, 150, Sec. 48;
amended Laws 1907, 484. Sec. 1.
California Legislation: See Hen-
ning-'s Gen. Laws, 584, Sec. 90.
Same: Overruling Objections.
Sec. 2429. If any person interested shall show cause as aforesaid,
Ch. 7. CHANGING BOUNDARIES 1023
and shall not withdraw the same, and if the board of directors deem
it for the best interests of the district to include therein the lands
mentioned in the petition, or some part thereof, the board shall adopt
a resolution to that effect. The resolution shall describe the lands
which the board are of the opinion should be included within the
district.
Historical: Laws 1903, 150, Sec. 49; i California Legislation: Similar:
amended Laws 1907, 484, Sec. 1. Henning's Gen. Laws, 585, Sec. 91.
Election to Determine Change.
Sec. 2430. Upon the adoption of the resolution mentioned in the
last preceding section, the board shall order that an election be held
within said district to determine whether the boundaries of the dis-
trict shall be changed as mentioned in said resolution; and shall fix
the time at which such election shall be held. Notice thereof shall
be given and published, and such election shall be held, and all things
pertaining thereto conducted, in the manner prescribed by this title
in case of an election to determine whether bonds of the district shall
be issued. The ballots cast at said election shall contain the words
"For change of boundary," or "Against change of boundary," or
words equivalent thereto. The notice of election shall describe the
lands to be annexed to said district.
Historical: Laws 1903, 150, Sec. 50; i California Legislation: Similar:
amended Laws 1907, 484, Sec. 1. Henning-'s Gen. Laws, 585, Sec. 92.
Order Changing Boundaries.
Sec. 2431. If at such election a majority of all the votes cast at
said election shall be against such change of the boundaries of the
district, the board shall proceed no further in the matter. But if a
majority of such votes be in favor of such change, the board shall
thereupon order that the boundaries be changed in accordance with
said resolution. The order shall describe the land so annexed to
said district, and thereafter such land so annexed shall be subject
to such assessments from time to time as the board of directors shall
deem right under the circumstances, and such assessments^shall be
deemed to be assessments for benefits to said lands by reason of their
annexation to said district. Immediately after the recording of the
order annexing said lands to the district, the directors shall state
on their minutes to which division and election precinct in said dis-
trict the said lands so annexed shall be attached, and, if necessary,
the board shall make an order redividing the district into divisions
and election precincts, in the same manner and to like effect, as near
as may be, as provided for that purpose on the formation of a district.
Historical: Laws 1903, 15 0, Sec. 51; I California Legislation: See Hen-
amended Laws 1907, 484, Sec. 1. I ning's Gen. Laws, 585, Sec. 93.
Order to Be Recorded.
Sec. 2432. Upon a change of the boundaries of a district being
made, a copy of the order of the board of directors ordering such
change, certified by the president and secretary of the board, shall
be filed for record in the recorder's office of each county within which
are situated any of the lands of the district, and thereupon the dis-
trict shall be and remain an irrigation district, as fully and to every
1024 IRRIGATION DISTRICTS Tit. 14
intent and purpose, as if the lands which are included m the district
by the change of the boundaries as aforesaid, had been included
therein at the original organization of the district.
Historical: Laws 1903, 15 0, Sec. 52.
California Legislation: Same: Hen-
ning-'s Gen. Laws. 585, Sec. 94.
Same: Record in Minutes.
Sec. 2433. Upon the filing of the copies of the order, as in the last
preceding section mentioned, the secretary of the board shall record
in the minutes of the board, the petition aforesaid, and the said
minutes, or a certified copy thereof, shall be admissible in evidence,
with the same effect as the petition.
Historical: Laws 1903, 150, Sec. 53. i cept "of the board", line 2, omitted:
California Legislation: Same ex- ' Henning's Gen. Laws, 585, Sec. 95.
Exclusion of Land From District.
Sec. 2434. The holder or holders of any title to lands included
within the boundary of an irrigation district may file with the board
of directors of said district, a petition in writing, praying that the
boundaries of said district may be so changed as to exclude the said
lands described in said petition. The petition shall describe the
boundaries of the several parcels owned by the petitioners; if the
petitioners be the owners respectively of distinct parcels of land
such petition must also state that the lands described in said petition
are too high to be watered from water owned and controlled by said
irrigation district. Said petition must be acknowledged in the same
manner that conveyances of land are required to be acknowledged.
Historical: Laws 1905, 22 0, Sec. 1.
California Legislation: See Hen-
ning-'s Gen. Laws, 580, Sec. 75.
Survey of Land to Be Excluded.
Sec. 2435. The board of directors to whom such petition is pre-
sented, must cause the lands described in said petition to be surveyed
by a competent irrigation engineer, and if found to be too high to
receive any benefit from irrigation works of said district, said board
must make an order changing the boundaries of said district so as
to exclude the lands described in said petition.
Historical: Laws 1905, 220, Sec. 2.
Costs of Survey.
Sec. 2436. If upon a survey being made by order of the board of
directors of lands described in the petition, it is found that said lands
can be watered from irrigation works of said district, parties signing
said petition shall be liable to the irrigation district for the full
amount of costs incurred by said district in having the lands de-
scribed in said petition surveyed.
Historical: Laws 1905, 220, Sec. 3.
Changes to Be Recorded.
Sec. 2437. Upon a change of the boundaries of a district being
Ch. 7.
CHANGING BOUNDARIES
1025
made as provided in the three preceding sections, a copy of the order
of the board of directors ordering such change, certified by the presi-
dent and secretary of the board, shall be filed for record in the re-
corder's office of each county within which are situated any of the
lands of the district, and thereupon the district shall be and remain
an irrigation district as fully, and to every intent and purpose, as
if the lands which are excluded from the district by the change of
the boundaries as aforesaid had been excluded at the original or-
ganization of the district.
vision to the act from which the sec-
tion was taken.
Historical: Laws 1905, 220, Sec. 4.
"As provided in the three preceding
sections" inserted to confine the pro-
Consolidation of Districts.
Sec. 2438. Whenever the boards of directors of any two or more
irrigation districts which are contiguous, deem it for the best in-
terests of their respective districts that the same be consolidated
into a single district, such boards of directors may petition the board
of county commissioners for an order for an election, to vote upon
the question of such consolidation, which petition shall state in detail
the terms upon which such consolidation is proposed to be made.
Upon receiving such petitions said board of county commissioners
shall request the State Engineer to investigate the conditions of such
districts, and all questions affecting such proposed consolidation, and
he shall make a report of the result of such investigations to the
board of county commissioners, not more than ninety days after
such request is received. At the time said report upon the matter
is made, said board of county commissioners, if deemed advisable,
shall make an order fixing the time for an election in said districts
to vote upon the question of such proposed consolidation, which time
shall not be less than thirty nor more than sixty days after the date
of said report. Notice of said election shall be published as required
for notice of election in Section 2374 of this title ; and the said boards
of directors shall make all necessary arrangements for such ejection
in their respective districts as provided in this title for other elections.
The ballot shall be substantially as follows: "Consolidation —
Yes," "Consolidation — No." The said boards of directors shall can-
vass the returns of such election as provided in case of usual district
elections, and shall immediately thereafter transmit, by messenger
or registered mail, certified abstracts of the result of said election
in their respective districts to the clerk of the board of county com-
missioners. Within ten days after such returns are received by said
clerk, the said board of county commissioners shall meet and canvass
the same. If it appears that a majority of all the votes cast in each
of said districts is "Consolidation — Yes," said board shall make an
order, and enter the same of record in its minutes, establishing said
consolidated district, giving its boundaries and designation, and in
detail the terms under which the consolidation has been effected,
and dividing said consolidated district into three divisions, and shall
appoint some person qualified under this title, to act as director for
each of said divisions of said district until the next general election
for the election of officers, when a board of directors shall be elected
as provided in Section 2378: Provided, however, That the organiza-
1026
IRRIGATION DISTRICTS
Tit. 14
tion of such district shall not take effect until the first Tuesday
of the January following said order of its establishment.
If the date provided by law for the election of directors shall
come between the date of said order of the board of county com-
missioners and said first Tuesday of January, then in making such
order said board shall designate the board of directors of one of the
consolidated districts as a board to take charge of said election, and
a director shall in that case be elected for each said division of said
consolidated district, and in that case no appointment of directors
shall be made by said board of county commissioners. If, however,
upon such canvass by said board of county commissioners, it appears
that a majority of the votes cast in any district thus proposed to be
consolidated is "Consolidation — No," then a record of that fact shall
be entered in the same minutes of said board of county commission-
ers, and all the proceedings had under this section shall be void.
Historical: Laws 190 3, 150, Sec. 56.
CHAPTER 8.
MISCELLANEOUS PROVISIONS.
Section
2439. State lands included within
irrigation districts.
2 440. Navigation and mining indus-
tries not impaired.
2441. Publication of notices.
Section
2442. Other laws unaffected.
2 443. Existing districts to be
erned by this title.
gov-
State Lands Included Within Irrigation Districts.
Sec. 2439. No State lands included within any legally organized
irrigation district shall ever be assessed, nor shall any of the pre-
ceding sections relative to the levying and collecting of assessments
and taxes apply, but the State Board of Land Commissioners and
the State Engineer shall make a thorough examination as to the
benefits to accrue to such State lands by reason of the formation
of such irrigation district, and by reason of the acquiring of water
rights for said lands, and the State Board of Land Commissioners
is hereby empowered to enter into a contract with the board of
directors of such irrigation district, specifying by legal subdivisions
the land so benefited, the amount of benefit to accrue to each piece
of land, and such contracts shall provide that an annual payment
shall be made each year out of the general fund to said board of
directors, to be applied on the cost of constructing such irrigation
works within said district, until the full amount of such benefit is
paid; but the State Board of Land Commissioners shall have the
option to pay the full amount of such contract at any time, upon
any or all of such legal subdivisions: Provided, That said contract
shall be subject to said irrigation district and works being properly
managed and constructed, so that the benefits agreed upon shall
accrue to said lands: Provided, also, That the county recorder of
every county in which certificates of sale of any State lands for
irrigation district taxes have heretofore been filed or recorded, shall
cancel the same upon the records of said counties.
The amount of benefit so agreed upon shall be charged by the
Ch. 8. MISCELLANEOUS PROVISION 1027
State Board of Land Commissioners against said lands, and shall
be paid as follows : Before any such land shall be offered for sale,
the State Board of Land Commissioners shall cause said lands to be
appraised, showing (1) the value of the land without any water
right, ditches or other improvements effected or made by such dis-
trict, and (2) the value of the water right, ditches and other im-
provements, or the proportion thereof pertaining to such lands and
such legal subdivision, and said land shall be offered for sale and
sold with said water right, ditches and other improvements included.
Before the proceeds of such sale are deposited in the fund where
they properly belong, the amounts of money paid by the State, or
for which the State is held bound to pay. or such proportionate
amounts where said lands are sold to be paid for in installments,
shall be deducted from the said proceeds and placed in the general
fund of the State, to reimburse the State for expenditures so made :
Provided, That no reductions shall be made from said proceeds that
shall reduce the same below the appraised value of said lands, or
below the price of ten dollars per acre.
Historical: Laws 1903, 185, Sec. 59;
amended Laws 1905, 378, Sec. 1.
Navigation and Mining Industries Not Impaired.
Sec. 2440. Navigation shall never in any wise be impaired by the
operation of this title, nor shall any vested interest in or to any
mining water rights or ditches, or in or to any water or water rights,
or reservoirs or dams now used by the owners or possessors thereof
in connection with any mining industry, or by persons purchasing
or renting the use thereof, or in or to any other property now used
directly or indirectly in carrying on or promoting the mining in-
dustry, ever be affected by or taken under its provisions, save and
except that rights of way may be acquired over the same.
Historical: Laws 1903, 150, Sec. 42. ^
California Legislation: Same: Hen-
ning's Gen. Laws, 578, Sec. 64.
Publication of Notices.
Sec. 2441. Wherever in this title any notice is required to be given
by publication, it shall be satisfied by publishing the same in a weekly
newspaper the same number of times consecutively as the number
of weeks mentioned in the requirement. A ten days' notice shall
be satisfied by two such publications, a twenty days' notice by three,
and a thirty days' notice by five such publications.
Historical: Laws 1907, 484, Sec. 1;
amending, by adding Sec. 60A, Laws
1903, 150.
Other Laws Unaffected.
Sec. 2442. None of the provisions of this title shall be construed
as repealing or in anywise modifying the provisions of any other
act relating to the subject of irrigation or water distribution. Nothing
herein contained shall be deemed to authorize any person or persons
to divert the waters of any river, creek, stream, canal or ditch from
its channel, to the detriment of any person or persons having any
1028
IRRIGATION DISTRICTS
Tit. 14
interest in such river, creek, stream, canal or ditch, or the water
therein, unless previous compensation be ascertained and paid there-
for, under the laws of this State authorizing the taking of private
property for public uses.
Historical: Laws 1903, 150, Sec. 43.
Omitting "except as provided in sec-
tion 61 of this act." That section re-
pealed the 189 9 district law, which
is omitted from these Codes.
California Legislation: Same, omit-
ting- the first sentence: Henning's Gen.
Laws, 578, Sec. 65.
Existing Districts to Be Governed by This Title.
Sec. 2443. All irrigation districts heretofore organized under any
of the laws of this State shall hereafter be governed in all respects
by the provisions of this title.
Historical: Laws 1903, 150, Sec. 60.
TITLE 15
DRAINAGE DISTRICTS
Chapter
1. Organization of district.
2. Board of drainage commissioners.
3. Proceedings for assessment of
damage.
Chapter
4. Construction of drainage system.
5. Issuance of bonds and warrants.
6. Miscellaneous provisions.
CHAPTER 1.
ORGANIZATION OF DISTRICT.
Section
2444. Territory may be organized
into drainage district.
2445. Petition for formation of dis-
trict.
2446. Action on petition.
Section
2 44 7. District election.
2448. Qualifications of voters: Order
establishing district: Bond of
commissioners.
Territory May Be Organized Into Drainage District.
Sec. 2444. Any portion of a county requiring drainage, which con-
tains five or more inhabitants and freeholders therein, may be or-
ganized into a drainage district, and when so organized such district
and the board of commissioners hereinafter provided for, shall have
and possess the power herein conferred by law upon such district
and board of commissioners, and said district shall be known and
designated as "Drainage District No (here insert number), of
the County of (here insert the name of the county), of
the State of Idaho," and shall have the right to sue and be sued by
and in the name of its board of commissioners hereinafter provided
for, and shall have perpetual succession, and shall adopt and use a
seal. The commissioners hereinafter provided for and their suc-
cessors in office shall, from the time of the organization of such
drainage district, have the power, and it shall be their duty, to man-
age and conduct the business and affairs of the district, make and
execute all necessary contracts, employ and appoint such agents,
officers and employees as may be required, and prescribe their duties
and perform such other acts as hereinafter provided, or that may
hereafter be provided by law.
Historical: Laws 1903, 2 56, Sec. 1.
Comparative Legislation : See Wash-
ington: Bal. An. Code, Sec. 3715.
Petition for Formation of District.
Sec. 2445. For the purpose of the formation of such drainage dis-
trict, a petition shall be presented to the board of county commis-
sioners of the county in which said proposed district is located, which
petition shall set forth the object for the creation of said district,
shall designate the boundaries thereof, and set forth therein ap-
proximately the number of acres of land to be benefited by the
1030 DRAINAGE DISTRICTS Tit. 15
proposed drainage system, and shall also contain the names of all
the freeholders residing within said proposed district (so far as
known), and shall contain a brief description of the proposed system
of drainage, designating the point or points which shall be the outlet
or outlets for the drainage of said district, the route over which the
same is to be constructed, together with the proposed spurs or
branches, if any there may be, and the termini thereof ; and set forth
the further fact that the establishment of said district and the pro-
posed system of drainage will be conducive to either the public health,
convenience or welfare or increase the public revenue; or that the
establishment of said district and said system of drainage will be
of special benefit to the majority of the lands in acreage included
therein. Said petition shall be signed by such a number as own at
least a majority of the acreage in the proposed district, and shall
pray that the same be organized under the provisions of this title.
Said petitioners shall, at the time of the filing of said petition, file a
bond with said commissioners, running to the State of Idaho, in the
penal sum of five hundred dollars, with two or more sureties, to be
approved by the board of county commissioners, conditioned that
they will pay all costs in case said district, for any reason, shall not
be established.
Historical: Laws 1903, 256, Sec. 2; Comparative Legislation: See Wash-
amended Laws 1907, 98, Sec. 1. I ington: Bal. An. Code, Sec. 3716.
Action on Petition.
Sec. 2446. Such petition shall be presented at a regular or special
meeting of the board of county commissioners of said county, and
shall be published for at least three successive issues in some weekly
newspaper printed and published in said county, and nearest said
land ; and in case no such newspaper be printed or published in said
county, then in some newspaper of general circulation therein, before
the time at which the same is to be presented, together with a notice
stating the time of the meeting at which the same shall be presented.
When such a petition is presented for hearing, the board of county
commissioners shall hear the same, or may adjourn said hearing
from time to time not exceeding one month in all, and any person
or corporation may appear before said board of county commis-
sioners and make objections to the establishment of said district,
or the proposed boundary lines thereof, and upon the final hearing
said board of county commissioners shall make such changes in the
proposed boundaries as they may deem to be proper, and shall estab-
lish and define such boundaries, and shall ascertain and determine
the number of acres of land that will be benefited by said proposed
drainage system, the number of freeholders residing within said
boundaries of said proposed district, and shall find whether the pro-
posed drainage system will be conducive to either the public health,
welfare or convenience, or increase the public revenue, or be of special
benefit to the majority of the lands included within said boundaries
of the said proposed district so established by said board of county
commissioners: Provided, That no changes shall be made by said
board of county commissioners in said boundary lines so as to include
any territory outside of the boundaries described in said petition:
Provided, further, That any person or persons owning land within
Ch. 1. ORGANIZATION 1031
the proposed boundaries and who did not sign said petition, or any
person, persons or corporations owning land not included within the
proposed boundaries, may file a petition with the board of county
commissioners asking that the proposed boundaries be extended so
as to include other lands described therein; setting forth in said
petition the reasons therefor: Provided, hotvever, That no person,
persons or corporations not owning lands included within the pro-
posed boundaries, as originally petitioned for, shall have the right
to file such petition unless they ask therein to have their own lands
included within the proposed boundaries: Privided, further, That
any corporation owning land included within the boundaries described
in the original petition, may also petition the board of county com-
missioners for an extension of the proposed boundaries. In such
case the board of county commissioners shall give the right notice
as provided for in this section of the hearing of the original petition,
and the final hearing thereof may, in such case, be continued from
time to time for a period not exceeding sixty days, and if upon final
hearing the board of county commissioners deem it advisable and
for the best interests of all concerned, they may grant the prayer
of such petitioner or petitioners in whole or in part. Any district
may be established even though it is shown that an outlet for the
drainage thereof is without the county in which such district is lo-
cated, or without the boundaries of the State of Idaho, or is in any
other State or Territory, or is in a foreign country, and work for
the drainage of such district may be contracted for and performed
either entirely or partly within the limits of such district or said
State, or entirely or partly within the limits of any other State,
Territory or foreign country. And the said board of county com-
missioners of such county shall enter an order on the records of
their office setting forth all facts found by them upon the final hear-
ing of said petition, and which may be adduced by them from the
evidence on the final hearing thereof. ^
Historical: Laws 1903, 256, Sec. 2; Comparative Legislation: See Wash-
amended Laws 1907, 98, Sec. 2. I ington: Bal. An. Code, Sec. 3717.
District Election.
Sec. 2447. Upon the entry of the findings on the final hearing of
said petition as set forth in the last preceding section, said board of
county commissioners of said county, if they find said proposed drain-
age system will be conducive to either the public health, welfare or
convenience, or will increase the public revenue, or be of special
benefit to the majority in acreage of the lands included within said
boundaries, shall give notice of an election to be held in such proposed
drainage district for the purpose of determining whether the same
shall be organized under the provisions of this title as a drainage
district of the State of Idaho, and for the further purpose of choosing
at such election three commissioners who shall be known and designat-
ed "Drainage Commissioners" for said district proposed to be
organized, which said three commissioners shall, upon their election,
be the district authorities of said drainage district; and such notice
shall particularly describe the boundaries as established by the board
of county commissioners on its final hearing of said petition, and
shall state the name of such proposed drainage district, and approxi-
1032 DRAINAGE DISTRICTS Tit. 15
mately the number of acres of land in said district to be benefited
thereby, and the same shall be published for at least two weeks prior
to such election in a weekly newspaper printed and published within
the county within which said district is located, and in case no such
newspaper be printed or published therein, then in some newspaper
of general circulation therein, for two successive issues thereof, and
shall be posted for the same period in at least four public places
within the boundaries of said proposed district; such notice shall
designate the place within the proposed district where the election
shall be held, and require the voters to cast ballots which shall contain
the words "Drainage District — Yes," or "Drainage District — No,"
and also the names of the persons voted for for commissioners of
said drainage district. The board of county commissioners shall
also appoint two judges, one inspector, and two clerks for such elec-
tions, whose compensation shall be the same as in other elections
of county and State officers, and shall be a charge upon said district,
in case the same be established, and shall be paid in the same manner
as other expenses are paid which are incurred in the establishment
and construction of said improvement. In case said district be not
established, then all costs and expenses shall be collectible on the
bond hereinbefore provided for, and any person having a charge
against said district shall have a right of action thereon.
Historical: Laws 1903, 256, Sec. 4; i Comparative Legislation: See Wash-
amended Laws 1907, 98, Sec. 3. ington: Bal. An. Code, Sec. 3718.
Qualifications of Voters: Order Establising District: Bond of Commissioners.
Sec. 2448. Such election shall be held on the day designated in
such notice, and shall be conducted in accordance with the general
election laws of the State of Idaho, and at such election and all suc-
ceeding elections under this title, every natural person of legal age,
who is the bona fide owner of forty acres or a smaller tract of real
estate within the limits of such district as established by the board
of county commissioners, shall be entitled to one vote, and such
person shall be entitled to an additional vote for each forty acres
of real estate owned as aforesaid in excess of the first forty acres;
but if it be found that the foregoing provisions in this section as
to qualifications of voters are invalid, then such qualifications shall
be as follows : Every natural person of legal age who is a bona fide
owner of real estate within the limits of said district, as established
by said board of county commissioners shall be entitled to one vote.
The board of county commissioners shall meet on the Monday next
succeeding such election, and proceed to canvass the votes cast for it,
and if upon such canvass it appears that a majority of the votes cast
are for "Drainage District — Yes", the board shall have an order
entered upon their minutes, and declare such territory duly organized
as "Drainage District No. (here insert number), of (here insert
name of county) , of the State of Idaho," and shall declare the three
persons receiving respectively the highest number of votes to be
duly elected as a board of commissioners of such drainage district.
Said board shall cause a copy of said order, duly certified, to be filed
in the office of the Secretary of State, and from and after the date
of such filing, such organization shall be deemed complete, and sucli
board of commissioners so chosen at such election shall be entitled
Ch. 2.
BOARD OF COMMISSIONERS
1033
to enter upon the duties of their office, and upon qualifying as county
officers are required to qualify, and giving a bond to the State of
Idaho for the benefit of said drainage district, for the faithful per-
formance of their duties as such board of drainage commissioners,
in the penal sum of five thousand dollars, with two or more sureties,
to be approved by the board of county commissioners, shall hold
office until the next general election for the election of officers in
such drainage district, and until their successors are elected and
qualified. Each board of commissioners thereafter which may be
constituted either by appointment or election, shall enter into a like
bond and of like effect before entering upon their duties, which bond
shall be approved by the Judge of the District Court of the county
in which said district is located, and shall be filed in said Court.
Historical: Laws 1903, 2 56, Sec. 5;
amended Laws 1907, 98, Sec. 4.
Comparative Legislation: See Wash-
ington: Bai. An. Code, Sec. 3719.
CHAPTER 2.
BOARD OF DRAINAGE COMMISSIONERS.
Section
2452. Commissioners to have charge
of construction: Filling va-
cancies.
Section
2449. Election of board of commis-
sioners.
2450. Officers of board: District war-
rants.
2451. Compensation of commission-
ers.
Election of Board of Commissioners.
Sec. 2449. A general election for the election of a board of drain-
age commissioners of such district shall be held upon the first Tues-
day after the first Monday in December of each year thereafter, and
the term of office shall begin the second Monday of the following
January, and such election shall be held in accordance with the gen-
eral election laws of the State of Idaho for the election of county
and State officers, and the expenses thereof shall be defrayed by
said district, and the judges, clerks and inspectors of said election
shall each receive as compensation for the services rendered at such
election the sum of two dollars per day: Provided, That at least
thirty days' notice immediately preceding any such general election
shall be given thereof by the board of commissioners of such drainage
district, by posting the same in four public places within said district.
Said notice shall contain the names of two electors of said district
as judges of said election, and the name of one elector of said district
as inspector thereof, the same to be chosen by said board of com-
missioners. Said board of commissioners shall be a canvassing board
to canvass the vote of each election, and they shall meet the day
following such election and canvass said votes, and declare the result
thereof and issue certificates of election.
Historical: Laws 1903, 2 56, Sec. 6.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3720.
Officers of Board: District Warrants.
Sec. 2450. The board of commissioners of such district shall elect
1034 DRAINAGE DISTRICTS Tit. 15
one of their number chairman and one secretary, and shall keep
minutes of all their proceedings, and may issue warrants of such
district, in payment of claims of indebtedness against such district;
such warrants shall be in form and substance the same as county
warrants, or as near the same as may be practicable, and shall draw
the legal rate of interest from the date of their presentation to the
treasurer for payment, as hereinafter provided, and shall be signed
by the chairman and attested by the secretary of said board: Pro-
vided, That no warrants shall be issued by said board of commis-
sioners in payment of any indebtedness of such district for less than
the face or par value.
Historical: Laws 1903, 256, Sec. 25.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3739.
Compensation of Commissioners.
Sec. 2451. In performing their duties under the provisions of this
title, the board of drainage commissioners shall receive such com-
pensation as may be just and reasonable for all necessary services
actually performed, not exceeding two dollars per day, to be deter-
mined and allowed by the court upon presentation by said commis-
sioners, or either of them, of an itemized statement duly verified by
either or all of such board, that the same is just, reasonable, necessary
and that the services were actually performed, and that no part of
the same has ever been paid, and in case such services are rendered
by said board in the establishment or construction of said improve-
ment, or any extension thereof, the amount thereof so allowed by
the court shall be deemed to be a part of the cost of the construction
and establishment of said improvement, and in case such compensa-
tion to be allowed by the court shall be for services rendered by
said board in the repairing or maintenance of such improvement,
such allowance shall be added to the annual cost of maintenance of
such system: Provided, That any person interested therein may file
objections to the allowance asked for, either in whole or in part,
and such claims so filed shall not be passed upon or allowed by the
court until the expiration of thirty days from the filing thereof.
Said board of commissioners, or the member thereof presenting such
claim or allowance, shall, at the time of the filing thereof in the
court, post notices in at least four public places within said district,
which said notices shall set forth therein the fact that an application
for allowance has been filed in said court, giving the date of the
filing thereof, and the amount of the allowance applied for. and de-
mand that any and all persons having any interest therein shall file
objections in said court, if any they have, to the allowance of such
claims or any portion thereof, within thirty days from the filing of
such application for allowance, and the court shall hear said applica-
tion and the objections thereto, if any there be, made and filed, and
shall, in its discretion, make such allowance in such amount as it
may deem to be just in the premises, and the same shall be paid as
other claims against said district are paid.
Historical: Laws 1903, 256, Sec. 3 8.
"That the services" inserted before
"were actually performed," line 8, to
complete the sense.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3752.
Ch. 3.
ASSESSMENT OF DAMAGE
1035
Commissioners to Have Charge of Construction : Filling Vacancies.
Sec. 2452. Said board of drainage commissioners hereinbefore
provided for shall have the exclusive charge of the construction and
maintenance of all drainage systems which heretofore have been or
hereafter may be organized under the provisions of this title, and
shall be the executive officers thereof, with full power to bind such
districts by their acts in the performance of their duties as provided
by law. In case of vacancy or vacancies occurring in said board by
death, failure to elect, failure to qualify, or resignation of one or
more of the members thereof, such vacancy or vacancies shall be
filled at once, from among those qualified to vote, under this title
at elections held in said district, by the Judge of the District Court
of said county in which said district is located, and said ap-
pointee shall serve the unexpired term, or until the next gen-
eral election : Provided, That in counties where there may be more
than one District Judge, the Judge eldest in age shall make such
appointment.
Historical: Laws 1903, 256, Sec. 8;
amended Laws 1907, 98, Sec. 6.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3722.
CHAPTER 3.
PROCEEDINGS FOR ASSESSMENT OF DAMAGE.
Section
Section
2453.
Petition.
2459.
Payment of damages.
2454.
Employment of surveyors.
2460.
Assessment of benefits.
2455.
Summons.
2461.
Assessment to pay judgment of
2456.
Statutes governing- procedure.
dismissal.
2457.
Appeal.
2462.
Trial of issues by jury.
2458.
Dismissal of proceedings.
Petition. ^
Sec. 2453. Whenever it is desired to undertake the drainage of
any district, such district, by and through its board of commissioners,
shall file a petition in the District Court of the county in which said
district is located, setting forth therein the name of the drainage
district and the route and termini of said system, with a complete
description thereof, together with specifications for its construction,
with all necessary plats and plans thereof, together with the estimated
cost of such proposed improvement and the amount or proportion
of said cost which will be paid or assumed by such district ; and said
petition shall also show the names of the land owners whose lands
are to be benefited by such proposed improvement; the number of
acres owned by each land owner; and approximately the amount of
benefits per acre to be derived by each land owner set forth therein
from the construction of said proposed improvements, and that the
same will be conducive to either the public health, convenience or
welfare, or increase the value of said property for the purpose of
public revenue. Said petition shall further set forth the names of
the land owners through whose land the right of way is desired for
said imorovement, the amount of land necessary to be taken therefor,
a description of said land, an estimate of the value of said lands so
sought to be taken for such right of way, and the damages sustained
by any person or corporation interested therein, if any, by reason
1036
DRAINAGE DISTRICTS
Tit. 15
of such appropriation, irrespective of any benefits to be. derived by
such land owners by reason of the construction of said improvement ;
such estimate shall be made, respectively, to each person through
whose land said right of way is sought to be appropriated. Said
petition shall set forth as defendants therein all the persons or cor-
porations to be benefited by said improvement, and all persons or
corporations through whose land the right of way is sought to be
appropriated, and all persons or corporations having any interest
therein, as mortgagee or otherwise, appearing of record, and shall
set forth that said proposed system of drainage is necessary to drain
said lands described in said petition, and that all lands sought to be
appropriated for said right of way are necessary to be used as a
right of way in the construction and maintenance of said improve-
ments : Provided, however, That all maps, plats, field notes, surveys,
plans, specifications, or other data hereinbefore made, ascertained or
prepared under laws heretofore enacted on the subject of this title,
may be used under the provisions of this title.
Historical: Laws 1903, 2 56, Sec. 9;
amended Laws 1907, 98, Sec. 7.
Comparative Legislation: See Wash-
ing-ton: Bal. An. Code, Sec. 3723.
Employment of Surveyors.
Sec. 2454. In the preparation of the facts and data to be inserted
in said petition and filed therewith, for the purpose of presenting
the matter to the District Court, the board of commissioners of said
drainage district may employ one or more good and competent sur-
veyors and draughtsmen to assist them in compiling data required
to be presented to the court with said petition, as hereinbefore pro-
vided, and such legal assistance as may be necessary, with full power
to bind said district for the compensation of such assistants or em-
ployees employed by them, and such services shall be taxed as costs
in the suit.
Historical: Laws 1903, 2 5 6, Sec. 10.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3724.
Summons.
. Sec. 2455. A summons shall be issued stating briefly the objects
of the petition, and containing a description of the land, real estate,
premises, or property sought to be appropriated, and the namesof
the owners thereof, appearing of record, and of all those having
any interest appearing of record therein, and the names of those
who it is claimed will be benefited by such improvements, and stating
the name of the court wherein said petition is filed, the date of the
filing thereof, and a direction to the defendants to appear and answer
the petition within the same time and in the manner provided by
law in the case of civil actions, and service and return of said sum-
mons shall be had as provided by law in the case of civil actions.
Historical: Laws 1903, 256, Sec. 11;
amended Laws 1907, 98, Sec. 8.
Cross Reference: Summons in civil
actions: Sec. 4140.
mons: Sec. 4144.
Service of sum-
Statutes Governing Procedure.
Sec. 2456. The procedure in such cases shall be the same as that
Ch. 3. ASSESSMENT OF DAMAGE 1037
in the cases provided for in Title 7 of Part 3 of the Code of Civil
Procedure, being the title concerning eminent domain, except as in
this title otherwise provided. In addition to the matters set forth
in Section 5220 of Title 7 of Part 3 of the Code of Civil Procedure,
the court or jury shall find the amount of benefits per acre to be
derived by each of the land owners within said drainage district
from the construction of said improvements. In case jurors are
required, they shall be selected and summoned in the manner pro-
vided for the selection and summoning of persons to serve as jurors
in the District Court by Title 3 of Part 1 of the Code of Civil Pro-
cedure: Provided, That the parties to the proceedings may agree
upon a number of jurors less than twelve, such number to be not
less than three: Provided, further, That no person shall be com-
petent to act as a juror who is a resident of, or land owner in, the
drainage district which is seeking to appropriate the land in question.
Notice of pendency of the action may be filed for record in the same
office, and in the same manner and form, and with the same effect,
as set forth in Section 4142 of these Codes.
Historical: Laws 1903, 256, Sec. 12; erences changed to conform to these
amended Laws 1907, 98, Sec. 9. Ref- ' Codes.
Appeal.
Sec. 2457. Every person or corporation feeling himself or itself
aggrieved by the judgment for damages, or the assessments of bene-
fits, may appeal to the Supreme Court of this State, within thirty days
after the entry of the judgment, and such appeal shall bring before
the Supreme Court the propriety and justness of the amount of
damage or assessment of benefit in respect to the parties to the
appeal. Upon such appeal no bond shall be required and no stay
shall be allowed.
Historical: Laws 1903, 2 56, Sec. 13.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3727.
Dismissal of Proceeding's.
Sec. 2458. In case the plaintiff, the drainage district, shall not
prove a proper case to entitle it to judgment in its favor, the court
shall dismiss such proceedings, and in such case judgment shall be
rendered for the cost of said proceedings against said district, and
no further proceedings shall be had or done therein.
Historical: Laws 19 03, 256, Sec. 14; i Comparative Legislation: Sfje Wash-
amended Laws 1907, 98, Sec. 10. ington: Bal. An. Code, Sec. 3728.
Payment of Damages.
Sec. 2459. Any person or corporation claiming to be entitled to
any money ordered paid by the court, as provided in this title, may
apply to the court therefor, and upon furnishing evidence satisfactory
to the court that he be entitled to the same, the court shall make
an order directing the payment to such claimant of the portion of
such money as he or it may be found, entitled to ; but, if upon applica-
tion, the court or judge thereof shall decide that the title to the land,
real estate or premises specified in the application of such claimant
is in such condition as to require that an action be commenced to
1038 DRAINAGE DISTRICTS Tit. 15
determine the title of claimants thereto, it shall refuse . such order
until such action is commenced and the conflicting claims to such
land, real estate or premises be determined according to law.
Historical: Laws 1903, 2 5 6, Sec. 15.
Comparative Legislation: See Wash-
ington: Bai. An. Code, Sec. 3729.
Assessment of Benefits.
Sec. 2460. Upon the entry of the judgment upon the verdict of
the jury, the clerk of said court shall immediately prepare a tran-
script which shall contain a list of the names of all the persons and
corporations benefited by said improvement, and the amount of
benefit derived by each, respectively, and shall duly certify the
same, together with a list of the lands benefited by said improve-
ment belonging to each person and corporation, and shall file the
same with the auditor of the county, who shall immediately enter
the same upon the tax rolls of his office, as provided by law for the
entry of other taxes, against the land of each of the said persons
named in said list, together with the amounts thereof, and the same
shall be subject to the same interest and penalties in case of de-
linquency as in case of general taxes, and shall be collected in the
^ame manner as other taxes, and subject to the same right of re-
demption, and the lands sold for the collection of said taxes shall
be subject to the same right of redemption, as the sale of lands for
general taxes : Provided, That said assessment shall not become due
and payable except at such time or times, and in such amounts, as
may be designated by the board of commissioners of said drainage
district, which designation shall be made to the county auditor by
said board of commissioners of said drainage district, by serving
written notice upon the county auditor designating the time and
the amount of the assessment, said assessment to be in proportion
to the benefits to become due and payable, which amount shall fall
due at the time of the falling due of general taxes, and the amount
so designated shall be added by the auditor to the general taxes of
said person, persons or corporation, according to said notice, upon
the assessment rolls in his said office, and collected therewith: And
Provided further, That no one call for assessments by said commis-
sioners shall be in an amount to exceed twenty-five per cent of the
actual amount necessary to pay the costs of the proceedings, and
the establishment of said district and drainage system and the cost
of construction of said work.
Historical: Laws 19 03. 2 56, Sec. 16.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3730.
Assessment to Pay Judgment of Dismissal.
Sec. 2461. In the event of the dismissal of said proceedings and
the rendition of judgments against said district, as hereinbefore pro-
vided, said drainage commissioners shall levy a tax upon all the
real estate within said district, taking as a basis the last equalized
assessment of said real estate for State and county purposes, sufficient
to pay said judgment and the cost of levying said tax, and shall
cause said tax roll to be filed in the office of the clerk of the District
Ch. 4. CONSTRUCTION OF SYSTEM 1039
Court in which such judgment was rendered. If said tax is not
paid within sixty days after the filing of said tax roll, the court shall,
upon the application of any party interested, direct said real estate
to be sold in payment of said tax, said sale to be made in the same
manner and by the same officer as is or may be provided by law
for the sale of real estate for taxes for general purpose; and the
same right of redemption shall exist as in the sale of real estate for
the payment of taxes for general purposes.
Historical: Laws 1903, 256, Sec. 17.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3731.
Trial of Issues by Jury.
Sec. 2462. Upon the trial of any questions of issue by a jury under
the provisions of this title the court may, in its discretion, submit
all questions to be found by the jury in the form of separate findings,
or may submit to such jury separate forms of verdict on all such
questions to be found by the jury therein.
Historical: Laws 190 3, 2 56, Sec. 34.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3748.
CHAPTER 4.
CONSTRUCTION OF DRAINAGE SYSTEM.
Section
2463. Contract and bond for con-
struction.
2464. Change of route: Assessment
of damages.
2465. Payment for work.
2466. Connection by private drains.
Section
2 467. Connection of district with
lower district.
2468. Apportionment of cost of main-
tenance. •
2 469. Water course as part of sys-
tem.
Contract and Bond for Construction.
Sec. 2463. After the organization of any drainage district, the
commissioners of such drainage district shall proceed as soon as they
may deem expedient in the construction of said improvements; and
in carrying on said construction or any extensions thereof they shall
have full charge and management thereof, and shall have the power
to employ such assistance as they may deem necessary and purchase
all materials that may be necessary in the construction and carrying
on of the work of said improvements, and shall have power to let
the whole or any portion of said work to any responsible contractor;
and shall in such case enter into all agreements with such contractor
that may be necessary in the premises : Provided, That in case the
whole or any portion of said improvements is let to any contractor,
said commissioners shall require said contractor to give a bond in
double the amount of the contract price of the whole, or of the portion
of said works covered by said contract, with two or more sureties
to be approved by the board of commissioners of said drainage dis-
trict, and running to said district as obligee therein, conditioned
for the faithful and accurate performance of said contract by said
contractor, his executors, administrators or assigns, according to
the terms and conditions of said agreement, and shall cause said
Vol. 1 — 34
1040 DRAINAGE DISTRICTS Tit. 15
contractor to enter into a further additional bond in the same amount,
with two or more good and sufficient sureties to be approved by said
board of commissioners of said drainage district, in the name of
said district as obligee therein, conditioned that said contractor, his
executors, administrators or assigns, performing the whole or any
portion of said work under contract of said original contractor, shall
pay or cause to be paid all just claims for all persons performing
labor or rendering services in the construction of said work, or fur-
nishing materials, merchandise or provisions of any kind or char-
acter used by said contractor or sub-contractor, or any employee
thereof in the construction of said improvement. Provided, further,
That no sureties on said last mentioned bond shall be liable thereon
unless the persons or corporation performing said labor and fur-
nishing said materials, goods, wares, merchandise and provisions,
shall, within ninety days after the completion of said improvements,
file their claim, duly verified, that the amount is just and due and
remains unpaid, with the board of commissioners of said drainage
district.
Historical: Laws 1903, 256, Sec. 18; l Comparative Legislation: See Wash-
amended Laws 1907, 98, Sec. 11. I ington: Bal. An. Code, Sec. 3732.
Change of Route: Assessment of Damages.
Sec. 2464. The work on said improvement shall begin at a point
or at points to be determined by said commissioners, and said work
shall be completed with all expedition possible, and said board of
commissioners of such drainage district, or any contractor there-
under, shall have no power whatever to change such route or system
of improvements or the manner of doing the work therein so as to
make any radical changes in said improvements, without the written
consent of all the land owners to be benefited thereby, and of the
land owners who may be damaged thereby. In case any substantial
changes in said system of improvement, or the manner and con-
struction thereof, shall be deemed necessary by said board of com-
missioners at any time during the progress thereof, and the written
consent to such changes cannot be procured from said land owners,
then said commissioners, for and on behalf of said district, shall
file a petition in the District Court of the county within which said
district is located, setting forth therein the changes which they deem
necessary to be made in the plans or manner of the construction of
said improvement, and praying therein to be permitted to make
such changes, and upon the filing thereof the court shall cause a
summons to be served, setting forth the prayer of said petition under
the seal of the said court, which summons shall be served in the
same manner as the service of summons in the case of the original
petition, upon all the land owners or others having any lien or in-
terest therein appearing of record in said district, and any or all
of said parties so served may appear in said cause and submit their
objections thereto, and after the time for the appearance of all said
parties has exoired, the court shall oroceed to hear said petition at
once without further delay, and if it appears during the course of
said oroceedings that the property rights of any of said land owners
will be affected by such proposed change in said improvements, then
the court, after having passed upon all preliminary questions as in
Ch. 4. CONSTRUCTION OF SYSTEM 1041
the original proceedings, may call a jury to be impanelled in the
manner provided by Title 3 of Part 1 of the Code of Civil Procedure,
and upon the final hearing of said cause the jury shall return a
verdict finding the amount of damages, if any, sustained by all per-
sons and corporations, the same as upon the original petition, by
reason of such proposed change, and the amount of compensation
to be paid to any person or corporation therefor, and for any addi-
tional right of way that may be necessary to be appropriated.
Historical: Laws 1903, 256, Sec. 19; Comparative Legislation: See Wash-
amended Laws 1907, 98, Sec. 12. I ington: Bal. An. Code, Sec. 3733.
Payment for Work.
Sec. 2465. During the construction of said improvement said com-
missioners shall have the right to allow payment thereof in install-
ments as the work progresses, in proportion to the amount of work
completed : Provided, That no allowance or payment shall be made
for said work to any contractor or sub-contractor to exceed seventy-
five per cent of the proportionate amount of the work completed by
such contractor or sub-contractor, and twenty-five per cent of the
contract price shall be reserved at all times by said board of com-
missioners until said work is wholly completed, and shall not be paid
upon the completion of said work until ninety days have expired
for the presentation of all claims for labor performed and materials,
goods, wares, merchandise and provisions furnished or used in the
construction of said improvements. Upon the completion of said
work and the payment of all claims hereinbefore provided for accord-
ing to the terms and conditions of said contract, said commissioners
shall accept said improvement and pay the contract price therefor.
Historical: Laws 1903, 256, Sec. 20.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3734.
Connection by Private Drains.
Sec. 2466. Any person or corporation owning land within said
district shall have a right to connect any private drains or ditches
for the proper drainage of such land with said system, and in case
any person or corporation shall desire to drain such lands into said
system, and shall find it necessary, in order to do so, to procure the
right of way over the land of another, or others, and if consent
thereto can not be procured from such person or persons, then such
land owner may present in writing a request to the board of com-
missioners of said district, setting forth therein the necessity of
being able to connect his private drainage with said system, and
pray therein that said system be extended to such point as he may
designate in said writing, and immediately thereon said board of
commissioners shall cause a petition to be filed in the District Court,
for and in the name of said drainage district, requesting, in said
petition, that said system be extended as requested, setting forth
therein the necessity thereof and praying that leave be granted by
the board to extend the system in accordance with the prayer of
said petition, and the proceedings in such case, upon the presentation
of such petition and the hearing thereof, shall be, in all matters,
the same as in the hearing and presentation of the original petition
1042 DRAINAGE DISTRICTS Tit. 15
for the establishment of the original system of drainage in said
district, as far as applicable. The costs in such proceedings shall
be paid from the assessment of benefits to be made on the lands
of the person or persons benefited by such extension, and the assess-
ment and compensation for the right of way, damages and benefits,
and payment of damages and compensation, and the collection of
the assessments for benefits, shall be the same as in the proceedings
under the original petition, and the construction of the said extension
shall be made under the same provisions as the construction of the
original improvement ; and all things that may be done or performed
in connection therewith shall be, as near as may be applicable, in
accordance with the provisions already set forth herein for the estab-
lishment and construction of said original improvement: Provided,
That such petitioner or petitioners shall, at the time of filing such
petition by said drainage commissioners, enter into a good and
sufficient bond to said drainage district, in the full penal sum of five
hundred dollars with two or more sureties to be approved by the
court, conditioned for the payment of all costs in case the prayer
of said petition should not be granted, which bond shall be filed in
said cause.
Historical: Laws 1903, 2 5 6, Sec. 21.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3735.
Connection of District With Lower District.
Sec. 2467. In case of the establishment of a drainage district and
system of drainage under the provisions of this title above any other
district that may theretofore have been established, and above any
other system of drainage that may have theretofore been constructed
in said district, and in case said district to be established above may
desire to connect its drainage system with the lower or servient
district, the latter district shall be made a party to the proceedings
for the establishment of such system, and the petition to be filed
in the District Court for the establishment of the system of drainage
in said upper disrict shall, in addition to the facts hereinbefore
provided and required to be set forth therein, set forth the fact that
said lower system in said lower district is necessary to be used as
an outlet for the system of drainage of said upper district, and that
the same will be a sufficient outlet and will afford sufficient capacity
to carry the drainage of both said upper and lower districts; and
in case said system of said lower district will be required to be en-
larged by widening or deepening the same, or both, in order to give
sufficient outlet to said upper district and afford sufficient drainage
for said upper and lower districts, then the plans and specifications
for enlarging the system of said lower district shall be filed with
said petition in addition to the other data hereinbefore provided for
in this title. All the land owners in said lower district, or any person
claiming any interest therein as mortgagee or otherwise, shall be
made parties defendant in said petition, and the proceedings therein
as to the assessment of damages and compensation for land taken,
if any be necessary to be taken in enlarging said lower system, shall
be the same as in the establishment of systems of drainage in the
lower or servient district as hereinbefore provided for; but the jury,
Ch. 4.
CONSTRUCTION OF SYSTEM
1043
in addition to the facts to be found by them as provided for in the
establishment of a drainage system in the lower district, shall find
and determine whether said lower system, when improved according
to the plans and specifications filed with the said petition, will afford
sufficient drainage for both said upper and lower districts, which
finding shall be made by the jury before considering any other
question at issue in said proceedings, and in case said jury should
find that the system of said lower district when improved as pro-
posed in said petition would not be sufficient, then, in that case, said
finding shall terminate the proceedings, and no further proceedings
in said case shall be had, and the costs of said proceedings shall be
paid as costs in other proceedings, as hereinbefore provided for;
but in such case the finding of said jury shall not terminate the
objects of said upper district or operate to disorganize the same, but
said upper district may begin new proceedings for the establishment
of a system of drainage with some new outlet provided therein. All
costs for the enlarging or improving of said lower system that may
be required, shall be assessed to the land owners in the upper dis-
trict according to the benefits to be derived from the construction
of said entire system, and no additional cost shall be thrown upon
the lower district, and all compensation for taking any right of way
that may be necessary to be taken in enlarging said lower system,
and all damages occurring therefrom, if any, to the land owners of
said lower district, shall be ascertained and paid in the same manner
as hereinbefore provided for the adjustment of compensation and
damages in the establishment of drainage systems in lower districts.
Said lower district, by and through its board of commissioners, may
appear in said cause and show therein any injury it may sustain
as a district by reason of the additional cost of maintenance of >said
lower system as improved and enlarged, and such fact shall be de-
termined in said cause, and the jury shall find the amount of the
increased costs of maintenance per annum, which will be sustained
by said lower district by reason of said enlarging or improving of
the same, and judgment shall be rendered in favor of said lower
district against said upper district for such amount as found, and
the same shall be paid each year as the cost of construction is paid
as provided for in this title, and the amount so paid shall be held
by said lower district as an additional fund for the maintenance of
its said system, as improved and enlarged by said upper district.
Historical: Laws 1903, 256, Sec. 2 2.
The words "the latter district," in line
7, and "and no further proceedings,"
in line 38, are inserted to complete
the sense as indicated by the context.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3736.
Apportionment of Cost of Maintenance.
Sec. 2468. The board of commissioners of any drainage district
organized under the provisions of this title shall, on or before the
first day of January of each year, make an estimate of the cost of
maintenance of the drainage system constructed in such district,
which estimate shall include the costs of making any necessary re-
pairs that it might become necessary to make in the maintenance
of such system. Such estimate shall be made for the succeeding year,
1044
DRAINAGE DISTRICTS
Tit. 15
and the amount so estimated shall be certified by the board of com-
missioners to the auditor of the county in which such district is
located on or before said date, and the amount thereof shall be ap-
portioned to the land owners in such district benefited by said
improvement in proportion to the maximum benefits originally
assessed, and such amount shall be added to the general taxes of
such land owners and collected therewith.
Historical: Laws 1903, 2 56, Sec. 24.
Comparative Legislation: See Wash-
ing-ton: Bal. An. Code, Sec. 3738.
Water Course as Part of System.
Sec. 2469. The whole or any portion of any natural water course,
which drains any district established under this title, or the whole
or any portion of any ditch or drainage system already constructed
or partially constructed prior to the passage of this title, may be
improved and completed as a systemi under the provisions of this
title : Provided, That in the improvement of any natural water course
the rights of the public therein for the purpose of navigation shall
not be in any wise impaired.
Historical: Laws 1903, 256, Sec. 39;
amended Laws 1907, 98, Sec. 14.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3753.
CHAPTER 5.
ISSUANCE OF BONDS AND WARRANTS.
Section
2470. Issuance of bonds for con-
struction work.
2471. Form of bonds.
2472. Exchange of bonds for war-
rants.
2473. Assessment to liquidate bonds.
Section
2474. Payment of bonds.
2475. Assessment for payment of
coupons.
2476. Registration of bonds.
2477. Presentation of warrants for
payment.
Issuance of Bonds for Construction Work.
Sec. 2470. Upon the establishment of any drainage district under
the provisions of this title, and the establishment of a system of
drainage therein as provided for in this title, the board of commis-
sioners of such drainage district are hereby authorized to issue bonds
to pay for the total cost of the work and improvements incurred
or to be incurred, or of the part of the work and improvements
assumed or contracted for, or to be assumed or contracted
for, together with the costs of the organization of said dis-
trict and the establishment thereof, including damages as-
sessed and compensation made or to be made to land owners for
right of way, and the expenses and costs of the entire proceeding,
payable at a time not less than five years nor longer than twenty
years from the date thereof. Such commissioners may, at any time
thereafter, issue such bonds in the manner and form herein pre-
scribed for the purpose of funding any outstanding warrants or
obligations of such district. In case of such last named issue all the
outstanding warrants shall immediately become due and payable
UDon receipt of the money by the county treasurer from the sale
of said bonds, and upon a call of such outstanding obligations to be
Ch. 5. BONDS AND WARRANTS 1045
issued by him. Such call shall be made by said treasurer, immedi-
ately upon the receipt of the proceeds from| the sale of said bonds,
by publication for two successive weeks in the county paper author-
ized to do the county printing, and such warrants and outstanding
obligations shall cease to draw interest at the end of thirty days
after the date of the first publication : Provided, That no bonds shall,
under the provisions hereof, be sold for less than their par value.
Historical: Laws 1903, 256, Sec. 26; Comparative Legislation : See Wash-
amended Laws 1907, 98, Sec. 13. I ington: Bal. An. Code, Sec. 3740.
Form of Bonds.
Sec. 2471. Said bonds shall be numbered from one upwards, con-
secutively, and be in denominations of not less than one hundred
dollars nor more than one thousand dollars. They shall bear the
date of issue, shall be made payable to the bearer in not more than
twenty years nor less than five years from the date of their issue,
and bear interest at a rate not exceeding seven per cent per annum,
payable annually, with coupons attached for each interest payment.
The bonds and each coupon shall be signed by the chairman of the
board of drainage commissioners, and shall be attested by the sec-
retary of said board, and the seal of such district shall be affixed to
each bond, but not to the coupons.
Historical: Laws 1903, 2 56, Sec. 27.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3741.
Exchange of Bonds for Warrants.
Sec. 2472. Said bonds may be exchanged at not less than their
par value for an equal amount of the warrants of the district issuing
such bonds.
Historical: Laws 1903, 2 56, Sec. 2 8.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3742.
Assessment to Liquidate Bonds.
Sec. 2473. Five years before said bonds shall become due, the
drainage commissioner of such district issuing them are hereby
authorized and required, annually, to levy an assessment sufficient
to liquidate said bonds at maturity. Such assessment shall be col-
lected by the county assessor and ex-officio tax collector, and kept
as a separate fund for the sole purpose of liquidating said bonds in
accordance with the provisions of the following section.
Historical: Laws 1903, 2 56, Sec. 29; Comparative Legislation: See Wash-
amended Laws 1905, 227, Sec. 1. I ington: Bal. An. Code, Sec. 3743.
Payment of Bonds.
Sec. 2474. It shall be the duty of the treasurer of any county in
which there may be a district issuing bonds under the provisions
of this chapter, whenever he has upon hand two thousand dollars
of the special fund for the payment of said bonds, to advertise in
the newspaper doing the county printing, for the presentation to him
for payment of as many of the bonds issued under the provisions
of this chapter as he is able to pay with the funds in his hands, to
1046 DRAINAGE DISTRICTS Tit. 15
be paid in numerical order of said bonds, beginning with the bond
number one, until all of said bonds are paid : Provided, That thirty
days after the first publication of said notice of the treasurer calling
in any of said bonds, said bonds shall cease to bear interest, which
shall be stated in the notice.
Historical: Laws 1903, 2 5 6, Sec. 30.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3744.
Assessments for Payment of Coupons.
Sec. 2475. It shall be the duty of such drainage commissioners
annually to levy an assessment sufficient for the payment of the
coupons hereinbefore mentioned as they fall due. Said coupons shall
be considered for all purposes as warrants drawn upon the funds
of the district issuing bonds under the provisions of this title, and,
when presented to the county treasurer, and no funds are in the
treasury to pay said coupons, it shall be his duty to indorse said
coupons as presented for payment in the same manner as other
warrants upon the funds of said district are indorsed, and thereafter
said coupons shall bear interest at the samje rate as other warrants
so presented and unpaid.
Historical: Laws 1903. 2 5 6, Sec. 31.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 374...
Registration of Bonds.
Sec. 2476. Before the bonds are delivered to the purchaser they
shall be presented to the county treasurer, who shall register them
in a book kept for that purpose, and known as the bond register,
in which register he shall enter the number of each bond, the date
of issue, the maturity, amount and rate of interest, to whom and
when payable, and the proceeds derived from the sale of said bonds
shall in all cases be paid by the purchaser thereof to the county
treasurer.
Historical: Laws 1903, 25 6, Sec. 32.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3746.
Presentation of Warrants for Payment.
Sec. 2477. All warrants issued under the provisions of this title
shall be presented by the holders thereof to the county treasurer,
who shall indorse thereon the day of presentation for payment, with
the additional indorsement thereon in case of non-payment, that
they are not paid for want of funds; and no warrant shall draw
interest under the provisions of this title until it is so presented
and indorsed by the county treasurer. And it shall be the duty of
such treasurer, from time to time, when he has sufficient funds in
his hands for that purpose, to advertise in the newspaper doing the
county printing for the presentation to him for payment of as many
of the outstanding warrants as he may be able to pay: Provided,
That thirty days after the first publication of said notice of the
treasurer calling in any of said outstanding warrants, said warrants
shall cease to bear interest, which shall be stated in the notice. Said
Ch. 6. MISCELLANEOUS PROVISIONS 1047
notice shall be published two weeks consecutively, and said warrants
shall be called in and paid in the order of their indorsement.
Historical: Laws 1903, 256, Sec. 33.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3747.
CHAPTER 6.
MISCELLANEOUS PROVISIONS.
Section
2478. General Powers of drainage
districts.
2479. Cities may act as drainage dis-
tricts.
2480. Public lands subject to title.
Section
2481. Same: Assessments against
public lands.
2482. Fees for service of process.
2 483. District Court may enforce
title.
General Powers of Drainage Districts.
Sec. 2478. All drainage districts organized under the provisions of
this title shall have the right of eminent domain, with power by and
through their boards of commissioners, to cause to be condemned
and appropriated private property for the use of said corporation
in the construction and maintenance of a system of drainage, and
to make just compensation therefor; to employ engineers and such
other assistants as may be necessary ; to survey, plan, locate and esti-
mate the cost of the works necessary for the reclamation of the
lands of the district; to acquire and to hold by purchase, condemna-
tion or other legal means, the right of way and the right to take
material for the construction of all works necessary for the accom-
plishment of that object, including drains, canals, sluices, bulkheads,
water gates, levees and embankments; and to construct and -maintain
and keep in repair all works requisite and necessary to that end.
For the purpose of the drainage of any such district, the whole or
any portion of any natural water course or river, which drains such
district, may be diked, improved, enlarged, widened, deepened or
straightened, or any natural obstruction may be removed therefrom.
Said board of drainage commissioners shall have power to provide,
by contract, for the performance and payment of all or any portion
of the work requisite or necessary for the drainage of the lands in-
cluded within the limits of such district, or to enter into any contract
whereby all or any portion of the cost of such work shall be paid,
assumed or undertaken by such district, and to do all things requisite
or necessary for the drainage of said lands. Work for the drainage
of said lands may be performed either entirely or partly within the
limits of such district, or of the county in which such district is
located, or entirely or partly within or without the boundaries of
any other county, State, Territory or foreign county: Provided,
That the property or private corporations may be subjected to the
same rights of eminent domain as that of private individuals : Pro-
vided, further, That the said board of commissioners shall have power
to acquire by purchase all the real property necessary to make the
improvements herein provided for.
Historical: Laws 1903, 256, Sec. 7; I Comparative Legislation: See Wash-
amended Laws 1907, 98, Sec. 5. ington: Bal. An. Code, Sec. 3721.
1048 DRAINAGE DISTRICTS Tit. 15
Cities May Act as Drainage Districts.
Sec. 2479. Any town or city already incorporated, or which may
hereafter be incorporated, may exercise the functions of a drainage
district under the provisions of this title, or the whole of any portion
of any such town or city may be included with other territory in a
common district under the provisions for the establishment thereof
as provided for herein.
Historical: Laws 1903, 25 6, Sec. 23.
Comparative Legislation: See Wash-
ing-ton: Bal. An. Code, See. 3737.
Public Lands Subject to Title.
Sec. 2480. All State, county, school district or other lands belong-
ing to other public corporations requiring drainage shall be subject
to the provisions of this title, and such corporations, by and through
the proper authorities, shall be made parties in all proceedings herein
affecting said lands, and shall have the same rights as private per-
sons, and their lands shall be subject to the rights of eminent domain
the same as the lands of private persons or corporations.
Historical: Laws 1903, 256, Sec. 35.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3749.
Same : Assessments Against Public Lands.
Sec. 2481. In case lands belonging to the State, county, school dis-
trict, or other public corporations are benefited by any improvement
instituted under the provisions of this title, all benefits shall be
assessed against said lands, and the same shall be paid by the proper
authorities of such public corporations at the time, and in the same
manner, as assessments are called and paid in cases of private per-
sons, out of any general fund of such corporations.
Historical: Laws 1903, 256, Sec. 36.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3750.
Fees for Service of Process.
Sec. 2482. Fees for service of all process necessary to be served
under the provisions of this title, shall be the same as for like services
in other civil cases, or as is or may be provided by law.
Historical: Laws 1903, 2 56, Sec. 3 7.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3751.
District Court May Enforce Title.
Sec. 2483. The District Court may compel the performance of the
duties imposed by this title, and may, in its discretion, on proper
application therefor, issue its mandatory injunction for such purpose.
Historical: Laws 19 03, 2 56, Sec. 40.
Comparative Legislation: See Wash-
ington: Bal. An. Code, Sec. 3754.
CIVIL CODE
PART THIRD— CIVIL
CIVIL CODE
PRELIMINARY PROVISIONS.
Section
2600. Name of Code.
Name of Code.
Sec. 2600. Part Second of the Revised Codes shall be known as
the Civil Code of the State of Idaho, and whenever cited, enumerated,
referred to or amended, may be designated simply as the Civil Code,
adding, when necessary, the number of the section.
Historical: Rev. St. 1887, Sec. 2400. I 1872, Sec. 1; Deering's Code, ib.;
California Legislation: See Civ. Code I Kerr's Code, ib.
TITLE 1
PERSONS
Section
2601. Minors denned.
2 602. Unborn child an existing- per-
son.
Disaf-
2603. Contracts of minors:
firmance.
2604. Same: Contracts for neces-
saries.
2 60 5. Same: Contracts authorized by
statute.
Section
2606.
2607.
2608.
2609.
2610.
Contracts of idiots.
Contracts of insane persons.
Same: After adjudication of
incapacity.
Aliens: Rights to acquire land.
Same: Mining claims.
Minors Denned.
Sec. 2601. Minors are:
1. Males under twenty-one years of age ;
2. Females under eighteen years of age.
Historical: Rev. St. 1887, Sec. 2 4 05.
See 1 Ter. Ses. (1864) 515.
California Legislation: Same: Civ.
Code 1872, Sec. 25; Deering's Code,
ib.; Kerr's Code, ib.
Unborn Child as Existing Person.
Sec. 2602. A child conceived, but not yet born, is to be deemed an
existing person so far as may be necessary for its interests, in the
event of its subsequent birth.
Historical: Rev. St. 1887, Sec. 2406.
California Legislation : Same: Civ.
Code 1872, Sec. 29; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference :
posthumous children
Inheritance
Sec. 3064.
by
Contracts of Minors: Disaffirmance.
Sec. 2603. In all cases other than those specified in the next two
sections, the contract of a minor, if made whilst he is under the age
of eighteen, may be disaffirmed by the minor himself, either before
his majority or within a reasonable time afterwards ; or, in case of
his death within that period, by his heirs or personal representatives;
and if the contract be made by the minor whilst he is over the age
of eighteen, it may be disaffirmed in like manner upon restoring the
consideration to the party from whom it was received, or paying its
equivalent.
Historical: Rev. St. 1887, Sec. 2 407.
California Legislation: Different.
Civ. Code 1872, Sec. 35; similar as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Cross Reference: Minor may make
marriage settlement: Sec. 2693.
Same: Contracts for Necessaries.
Sec. 2604. A minor cannot disaffirm a contract otherwise valid,
to pay the reasonable value of things necessary for his support, or
that of his family, entered into by him wiien not under the care of
a parent or guardian able to provide for him or them.
PERSONS
1055
Historical: Rev. St. 188 7, Sec. 2408.
California Legislation: Same except
"or a person of unsound mind of
whatever degree" inserted after
"minor", line 1, and "or them", last
words, omitted: Civ. Code 1872, Sec.
36; same as amended: Deering's Code.
ib.; Kerr's Code, ib.
Same: Contracts Authorized by Statute.
Sec. 2605. A minor cannot disaffirm an obligation otherwise valid,
entered into by him under the express authority or direction of a
statute.
Historical: Rev. St. 1887, Sec. 2 409.
California Legislation: Same: Civ.
Code 1872, Sec. 37; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Minors may hold
and transfer stock in land and build-
ing corporations: Sec. 3055.
Contracts of Idiots.
Sec. 2606. A person entirely without understanding has no power
to make a contract of any kind but he is liable for the reasonable
value of things furnished to him necessary for his support or the
support of his family.
Historical: Rev. St. 188 7, Sec. 2 410.
California Legislation: See Civ.
Code 1872, Sec. 38; same as amended:
Deering's Code, ib.; Kerr's Code, ib.
Liability for Necessaries: A person
entirely without understanding has no
power to make a contract of any kind,
but is liable for the reasonable value
of necessaries furnished to him for
his support or for the support of his
family, Ratliff v. Baltzer's admr.
(19D7) 13 Ida. ...; 89 Pac. 71.
Contracts of Insane Persons.
Sec. 2607. A conveyance or other contract of a person of unsound
mind, but not entirely without understanding, made before rTis in-
capacity has been judicially determined, is subject to recission.
Historical: Rev. St. 1887, Sec. 2411.
California Legislation: Same except
"as provided in the chapter on recis-
sion of this Code" added: Civ. Code
1872, Sec. 39; Deering's Code, ib.;
Kerr's Code, ib.
Contracts of Insane Persons:
Where it is made to appear that a
person is insane upon one subject, his
contracts in regard to other matters
will be scrutinized closely by the court
when their validity and his competen-
cy to make them are questioned. Rat-
liff v. Baltzer's admr. (1907) 13 Ida.
. . .; 89 Pac. 71.
A conveyance or other contract
made by a person who is of unsound
mind but who is not entirely without
understanding, and before his inca-
pacity has been judicially determined
is not absolutely void but is only void-
able and subject to recission. Ib.
A contract made by a person of de-
fective mind but not entirely without
understanding, who comprehends the
full force and effect of such contract
and upon whom no fraud or decep-
tion has been practiced, will not be re-
scinded. Ib.
Same: After Adjudication of Incapacity.
Sec. 2608. After his incapacity has been judicially determined, a
person of unsound mind can make no conveyance or other contract,
nor delegate any power or waive any right until his restoration to
capacity. But a certificate from the medical superintendent or resi-
dent physician of the insane asylum to which such person may have
been committed, showing that such person had been discharged there-
from cured and restored to reason, shall establish the presumption
of legal capacity in such person from the time of such discharge.
Historical: Rev. St. 1887, Sec. 2 412.
California Legislation: Same in
Part: Civ. Code 18 72, Sec. 40; same
as amended: Deering's Code, ib.;
Kerr's Code, ib.
1056
PERSONS
Tit. 1
Aliens: Right to Acquire Land.
Sec. 2609. No person other than a citizen of the United States,
or one who has declared his intention to become such, nor any associ-
ation or corporation, except railway corporations, whose members
are not exclusively citizens of the United States, or persons who have
declared their intention to become such, shall hereafter acquire any
land, or title thereto, or interest therein, other than mineral lands,
or such as may be necessary for the actual working of mines and
the reduction of the products thereof: Provided, That no person
not eligible to becomje a citizen of the United States shall acquire
title to any land or real property within this State, except as here-
inafter provided: Provided, further, This section shall not prevent
the holders (whether aliens or non-residents, corporations or associa-
tions) of liens upon real estate, or any interest therein, heretofore
or hereafter acquired, from holding or taking a valid title to the
real estate in the enforcement of such lien ; nor shall it prevent any
such alien, association or corporation from enforcing any lien or
judgment for any debt or liability now existing, or which may be
hereafter created, nor from becoming a purchaser at any sale made
for the purpose of collecting or enforcing the collection of such debt
or judgment; nor from preventing widows or heirs who are aliens,
or who have not declared their intention to become citizens, from
holding lands by inheritance ; but all lands acquired as aforesaid shall
be sold within five years after the title thereto shall be perfected in
such alien, association or corporation, and in default of such sale,
within such time such real estate shall revert and escheat to the
State of Idaho. The provisions of this section shall not be construed
in any way to prevent or interfere with the ownership of mining
land, or land necessary for the working of mines or the reduction
of the products thereof.
Historical: Laws 1899. 70, Sec. 1;
re-enacting Laws 1890-91, 108, Sec. 1.
Cross Reference: Employment of
aliens on public works: Sees. 1457-
1460.
Cited: Buckley v. Fox (1902) 8 Ida.
248; 67 Pac. 659.
Same: Mining Claims.
Sec. 2610. Any person, whether citizen or alien (except as here-
inafter provided), natural or artificial, may take, hold and dispose
of mining claims and mining property, real or personal, tunnel rights,
mill sites, quartz mills and reduction works used or necessary or
proper for the reduction of ores, and water rights used for mining
or milling purposes, and any other lands or property necessary for
the working of mines or the reduction of the products thereof:
Provided, That Chinese, or persons of Mongolian descent not born
in the United States, are not permitted to acquire title to land or any
any real property under the provisions of this and the preceding
sections.
Historical: Laws 1899, 7 0, Sec. 2;
re-enacting Laws 1890-91, 118, Sec. 1.
Actions to Quiet Title: In an action
to quiet title to a mining claim, it is
not necessary to allege citizenship of
the plaintiff, as this need only be done
in actions in support of an adverse
claim or on application for a patent
under U. S. Rev. St. Sec. 2326. Buck-
ley v. Fox (1902) 8 Ida. 248; 67 Pac.
659.
TITLE 2
MARRIAGE
Chapter
1. The contract of marriage.
2. Divorce.
Chapter
3. Husband and wife.
CHAPTER 1.
THE CONTRACT OF MARRIAGE.
Article
1. Nature and validity of marriage
contract.
Article
2. Solemnization of marriage.
3. Licenses, certificates and records.
ARTICLE 1.
NATURE AND VALIDITY OF MARRIAGE CONTRACT.
Section
Section
2611.
What constitutes marriage.
2617.
2612.
Persons who may marry.
2618.
2613.
Proof of consent and consum-
mation.
2619.
2614.
When voidable.
2615.
Incestuous marriages.
2616.
Marriages of Caucasians with
negroes.
Polygamous marriages.
Release from contract for un-
chastity.
Recognition of foreign^ mar-
riages.
What Constitutes Marriage.
Sec. 2611. Marriage is a personal relation arising out of a civil
contract, to which the consent of parties capable of making it is
necessary. Consent alone will not constitute marriage; it must be
followed by a solemnization or by a mutual assumption of marital
rights, duties or obligations.
Historical: Rev. St. 1887, Sec. 2420.
9 Ter. Ses. (1877) 24, Sec. 1.
California Legislation: Same: Civ.
Code 1872, Sec. 55; Deering's Code,
ib.; similar as amended: Kerr's Code,
ib.
Persons Who May Marry.
Sec. 2612. Any unmarried male of the age of eighteen years or
upwards, and any unmarried female of the age of eighteen years
or upwards, and not otherwise disqualified, are capable of consenting
to and consummating marriage.
Historical: Rev. St. 1887, Sec. 2421.
(See 1 Ter. Ses. (1864) 613, Sec. 2);
amended act 15th Ter. Ses. (Laws
1888-89) 44.
California Legislation: Same except
"fifteen" for "eighteen", line 2: Civ.
Code 1872, Sec. 56; Deering's Code,
ib.; Kerr's Code, ib.
Proof of Consent and Consummation.
Sec. 2613. Consent to and subsequent consummation of marriage
may be manifested in any form, and may be proved under the same
general rules of evidence as facts in other cases.
1058
MARRIAGE
Tit. 2
Historical: Rev. St. 188 7, Sec. 2 42 2.
9 Ter. Ses. (1877) 24, Sec. 3.
California Legislation: Same: Civ.
Code 1872, Sec. 57; Deering's Code,
ib. ; different as amended: Kerr's Code]
ib.
When Voidable.
Sec. 2614. If either party to a marriage be incapable from physi-
cal causes of entering into the marriage state, or if the consent of
either be obtained by fraud or force, the marriage is voidable.
Historical: Rev. St. 188 7, Sec. 2423.
9 Ter. Ses. (1877) 24, Sec. 4.
California Legislation: Similar: Civ.
Code 1872, Sec. 58; same as amended:
Deering's Code, ib.; repealed: Kerr's
Code, ib.
Incestuous Marriages.
Sec. 2615. Marriages between parents and children, ancestors and
descendants of every degree, and between brothers and sisters of
the half as well as the whole blood, and between uncles and nieces,
or aunts or nephews, are incestuous, and void from the beginning,
whether the relationship is legitimate or illegitimate.
Cross Reference: Penalty for incest-
uous marriages: Sec. 6809.
Historical: Rev. St. 1887, Sec. 2424.
See 4 Ter. Ses. (1867) 71, Sec. 2.
iCalifornia Legislation: Same: Civ.
Code 1872, Sec. 59; Deering's Code,
ib. ; Kerr's Code, ib.
Marriages of Caucasians With Negroes.
Sec. 2616. All marriages of white persons with negroes or mulat-
toes are illegal and void.
Historical: Rev. St. 1887, Sec. 2425.
See 4 Ter. Ses. (1867) 71, Sec. 3.
California Legislation: Same: Civ.
Code 1872, Sec. 60; Deering's Code,
ib.; same except "mongolians" in-
serted after "negroes": Kerr's Code,
ib.
Polygamous Marriages.
Sec. 2617. A subsequent marriage contracted by any person dur-
ing the life of a former husband or wife of such person, with any
person other than such former husband or wife, is illegal and void
from the beginning unless : ( 1 ) The former marriage of either party
has been annulled or dissolved more than six months; or (2) such
former husband or wife was absent and not known to such person
to be living for the space of five successive years immediately pre-
ceding, or was generally reputed, and was believed by such person,
to be dead at the time such subsequent marriage was contracted;
in either of which cases the subsequent marriage is valid until its
nullity is adjudged by a competent tribunal.
Historical: Rev. St. 1887, Sec. 2 42 6.
(See 9 Ter. Ses. (1877) 24, Sec. 6);
amended Laws 1903, 10, Sec. 1.
California Legislation: Similar: Civ.
Code 1872, Sec. 61; as amended:
Deering's Code, ib.; as amended:
Kerr's Code, ib.
Cross Reference: Penalty for po-
lygamous marriages: Sec. 6806.
Release From Contract for Unchastity.
Sec. 2618. Neither party to a contract to marry is bound by a
promise made in ignorance of the other's want of personal chastity,
and either is released therefrom; by unchaste conduct on the part of
the other, unless both parties participate therein.
Ch. 1. Art. 2.
MARRIAGE CONTRACT — SOLEMNIZATION
1059
Historical: Rev. St. 1887, Sec. 2427.
California Legislation: Same except
'unless both parties participate there-
in", last line, omitted: Civ. Code 1872,
Sec. 62; Deering's Code, ib.; Kerr's
Code, ib.
Recognition of Foreign Marriages.
Sec. 2619. All marriages contracted without this State, which
would be valid by the laws of the country in which the same were
contracted, are valid in this State.
Historical: Rev. St. 188 7, Sec. 2 42 8.
4 Ter. Ses. (1867) 71, Sec. 5.
California Legislation: Same: Civ.
Code 1872, Sec. 63; Deering's Code,
ib.; Kerr's Code, ib.
ARTICLE 2.
SOLEMNIZATION OF MARRIAGE.
Section
Section
2620.
How solemnized.
2626.
2621.
Duty of persons officiating.
2627.
2622.
By whom solemnized.
2623.
Form of ceremony.
2628.
2624.
Examination of witnesses.
2625.
Certificate to parties.
Fees of officer.
Validity not affected by want
of authority.
Marriage certificate as evi-
dence.
How Solemnized.
Sec. 2620. Marriage must be solemnized, authenticated, and re-
corded as provided in this chapter, but non-compliance with its pro-
visions does not invalidate any lawful marriage.
Historical: Rev. St. 1887, Sec. 2429.
9 Ter. Ses. (1877) 24, Sec. 8.
California Legislation: Same except
"licensed" inserted before "sol-
emnized", line 1, and "article" for
"chapter", line 2: Civ. Code 1872, Sec.
68; Deering's Code, ib.; similar as
amended: Kerr's Code, ib.
Duty of Person Officiating.
Sec. 2621. All persons herein authorized to solemnize marriages
must ascertain and be assured of :
1. The identity of the parties ;
2. Their real and full names and places of residence;
3. That they are of sufficient age to be capable of contracting
marriage ;
4. If the male is under the age of eighteen or the female under
the age of eighteen years, the consent of the father, mother, or
guardian, if any such, is given, or that such non-aged person has
been previously but is not at the time married; and that the parties
applying for the rites of marriage, and making such contract, have
a legal right so to do.
Historical: Rev. St. 1887, Sec. 2 43 0.
9 Ter. Ses. (1877) 24, Sec. 9. "Eight-
een" inserted for "sixteen" in subd.
4, line 2, to conform to Laws 1888-89.
44 (Sec. 2612 ante) which amended
Rev. St. 1887, Sec. 2421, by raising
the age of capacity in females from
sixteen to eighteen years.
California Legislation: See Civ.
Code 1872, Sec. 72; similar as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
By Whom Solemnized.
Sec. 2622. Marriage mlay be solemnized by either a Justice of the
Supreme Court, District or probate judge, the Governor, a justice
1060
MARRIAGE
Tit. 2
of the peace, mayor, priest, or minister of the gospel of any de-
nomination.
Historical: Rev. St. 1887, Sec. 2 431.
1 Ter. Ses. (1864) 613, Sec. 4.
California Legislation: Same except
"county" for "probate", line 2; "the
Governor", line 2, omitted: Civ. Code
1872, Sec. 70; similar as amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Form of Ceremony.
Sec. 2623. No particular form for the ceremony of marriage is
required, but the parties must declare in the presence of the person
solemnizing the marriage that they take each other as husband and
wife.
Historical: Rev. St. 1887, Sec. 2 432.
See 1 Ter. Ses. (1864) 614, Sec. 6.
California Legislation: Same: Civ.
Code 1872, Sec. 71; Deering's Code,
ib.; Kerr's Code, ib.
Examination of Witnesses.
Sec. 2624. The person solemnizing the marriage may administer
oaths and examine the parties and witnesses for the purpose of
satisfying himself that the contracting parties are qualified under
the requirements of this chapter.
Historical: Rev. St. 1887, Sec. 2 433.
9 Ter. Ses. (1877) 24, Sec. 11.
California Legislation: See Civ.
Code 1872, Sec. 72; similar as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Certificate to Parties.
Sec. 2625. When a marriage has been solemnized, the person
solemnizing the same must give to each of the parties, if required,
a certificate thereof.
Historical: Rev. St. 1887, Sec. 2 436.
See 1 Ter. Ses. (1864) 614, Sec. 7.
California Legislation: See Civ.
Code 1872, Sec. 74; Deering's Code,
ib.; Kerr's Code, ib.
Fees of Officer.
Sec. 2626. The person solemnizing a marriage is for such service
entitled to receive from the parties married the sum of five dollars,
but may receive any other or greater sum voluntarily given by the
parties to such marriage.
Historical: Rev. St. 1887, Sec. 2 438.
9 Ter. Ses. (1877) 24, Sec. 16.
Disposition of Fees: Fees received
by the probate judge for solemnizing
marriages must be turned into the
county treasury, but any gratuities
given him by the parties over and
above the amount of the legal fee,
may be retained for his individual
use. Rhea v. Board of Commission-
ers (1906) 12 Ida. 455; 88 Pac. 89.
Validity Not Affected by Want of Authority.
Sec. 2627. No marriage solemnized by any person professing to
be a judge, justice, or minister, is deemed or regarded void, nor is
the validity thereof to be in any way affected on account of any
want of jurisdiction or authority: Provided, It be consummated
with a full belief on the part of the person so married, or either of
them, that they have been lawfully joined in marriage.
Historical: Rev. St. 1887, Sec. 2 43 9.
1 Ter. Ses. (1864) 615; Sec. 13.
Ch. 1. Art. 3.
MARRIAGE CONTRACT — LICENSES, ETC.
1061
Marriage Certificate as Evidence.
Sec. 2628. The original certificate, and record of marriage made
by the judge, justice or minister, as prescribed in this chapter, and
the record thereof by the recorder of the county, or a copy of such
record duly certified by such recorder, must be received in all courts
and places as presumptive evidence of the fact of such marriage.
Historical: Rev. St. 1887, Sec. 2440.
(1 Ter. Ses. (1864) 615, Sec. 14);
amended act 15th Ter. Ses. (Laws
1888-89) 44. "Recorder" for "probate
judge"; the recorder now records
marriages. See Sec. 2635 post.
ARTICLE 3.
LICENSES, CERTIFICATES AND RECORDS.
Section
2629.
2630.
2631.
2632.
1633.
Marriage license: Contents.
Same: Certificate and return.
Application for and issuance
of license.
Same: Administration of
oaths.
Minister or officer may sol-
emnize marriage.
Section
2634. Solemnization without license:
Penalty.
2635. Record of return of license.
2 63 6. Fees for issuing license.
2 637. Marriage books as evidence.
2 6 38. Penalty for false return.
2639. Disposition of penalties.
Marriage License: Contents.
Sec. 2629. The county recorder of any county in this State shall
have authority to issue marriage licenses to any parties applying
for the same who may be entitled under the laws of this State to
contract matrimony, authorizing the marriage of such parties, 'which
licenses shall be substantially in the following form :
Know all men by this certificate that any regularly ordained
minister of the gospel, authorized by the rites and usages of the
church or denomination of Christians, Hebrews, or religious body of
which he may be a member, or any judge or justice of the peace
or competent officer to whom this may come, he not knowing of
any lawful impediment thereto, is hereby authorized and empowered
to solemnize the rites of matrimony between , of
of the county of , and State of ,
and , of of the county of , State
of .____, and to certify the same to said parties, or either of
them, under his hand and seal, in his ministerial or official capacity,
and thereupon he is required to return his certificate in form fol-
lowing, as hereto annexed.
In testimony whereof I have hereunto set my hand and affixed
the seal of said county, at , this day of ,
A. D. 19
Historical: Laws 1899, 278, Sec. 1;
re-enacting Laws 1895, 166, Sec. 1.
"State of " inserted in form
Recorder.
to complete the description of the
domicile of the parties.
Same : Certificate and Return.
Sec. 2630. The form of certificate annexed to said license, and
therein referred to, shall be as follows :
I, , a , residing at ,
1062 MARRIAGE Tit. 2
in the county of , in the State of Idaho, do certify
that, in accordance with the authority on me conferred by the above
license, I did on this day of , in the
year A. D. 19 , at in the county of _..,
in the State of Idaho, solemnize the rights of matrimony between
, of , in the county of , of
the , and , of , of
the county of ,.of the , in the presence of
and
Witness my hand and seal at the county aforesaid, this day
of , A. D. 19
In the presence of [seal]
The license and certificate, duly executed by the minister or officer
who shall have solemnized the marriage authorized, shall be returned
by him to the office of the recorder who issued the same, within thirty
days from the date of solemnizing the marriage therein author-
ized; and a neglect to make such return shall be deemed a misde-
meanor, and the person whose duty it shall be to make such return,
who shall neglect to make such return within the time above specified,
shall, upon conviction thereof, be punished by a fine of not less than
twenty nor more than fifty dollars to be assessed by any justice of the
peace or other court having jurisdiction.
Historical: Laws 1899, 2 78, Sec. 2;
re-enacting Laws 1895, 166, Sec. 2.
Application for and Issuance of License.
Sec. 2631. Every county recorder who shall have personal knowl-
edge of the competency of the parties for whose marriage a license
is applied for, shall issue such license upon payment or tender to him
of his legal fee therefor; and if such recorder does not know of his
own knowledge that the parties are competent under the laws of the
State to contract matrimony, he shall take the affidavit in writing
of the person or persons applying for such license, and of other per-
sons as he may see proper, and of any persons whose testimony may
be offered ; and if it appear from the affidavit so taken that the par-
ties for whose marriage the license in question is demanded are
legally competent to marry, the recorder shall issue such license, and
the affidavits so taken shall be his warrant against any fine or for-
feiture for issuing such license. Any county recorder who shall issue
a license to marry to parties, one or both of whom shall not be, at the
time of marriage under such license, legally competent to marry, shall
be guilty of a misdemeanor, and, upon conviction thereof, shaH be
fined in the sum of one hundred dollars before any court having jur-
isdiction.
Historical: Laws 189 9, 2 7 8. Sec. 3:
re-enacting Laws 1895, 166, Sec. 3.
Same: Administration of Oaths.
Sec. 2632. The county recorder shall have power to administer
all oaths required or provided for in this article, and if any person
in any such affidavit shall wilfully and corruptly swear falsely to
Ch. 1. Art. 3. MARRIAGE CONTRACT — LICENSES, ETC. 1063
any material fact as to the competency of any person for whose
marriage the license in question refers, or concerning the procuring
or issuing of which such affidavit may be made, shall be guilty of
perjury, and, upon conviction thereof, shall be punished as provided
by statute in other cases of perjury.
Historical: Laws 1899, 2 78, Sec. 4; i Cross Reference: Punishment for
re-enacting Laws 1895, 166, Sec. 4. perjury: Sec. 6486.
Minister or Officer May Solemnize Marriage.
Sec. 2633. Any authorized minister or officer to whom any such
license, duly issued, may come, not having personal knowledge of
the incompetency of either party therein named to contract matri-
mony, may lawfully solemnize matrimony between them.
Historical: Laws 1899, 2 78, Sec. 5;
re-enacting Laws 1895, 166, Sec. 5.
Solemnization Without License: Penalty.
Sec. 2634. If any such minister or officer shall presume to solemn-
ize any marriage between parties without such a license, or with
knowledge that either party is legally incompetent to contract matri-
mony as is provided for by the laws of this State, he shall be deemed
guilty of a misdemeanor, and, upon conviction thereof, shall be pun-
ished by a fine of not less than fifty dollars nor more than two hun-
dred dollars before any court having jurisdiction.
Historical: Laws 1899, 278, Sec. 6; ^
re-enacting Laws 1895, 166, Sec. 6.
Record of Return of License.
Sec. 2635. The recorder shall record all such returns of marriage
licenses in a book to be kept for that purpose, within one month
after receiving the same. If any recorder shall neglect or refuse to
record within the said time any return to him made, he shall forfeit
one hundred dollars, to be recovered, with costs, by any person who
will prosecute for the same.
Historical: Laws 18 99, 2 78, Sec. 7;
re-enacting Laws 1895, 166, Sec. 7.
Fees for Issuing License.
Sec. 2636. The recorder of each county in this State shall be en-
titled to a fee of one dollar for each license issued, which fee he
shall demand and receive from the person applying for the same, and
he may refuse to issue any such license until such fee is paid to him;.
Said fee shall also include the payment for the service of recording
the license upon its return by the minister or officer solemnizing the
marriage for which it was issued.
Historical: Laws 1899, 2 78, Sec. 8;
re-enacting Laws 1895, 166, Sec. 8.
Marriage Books as Evidence.
Sec. 2637. The books of marriages and copies of entries therein,
certified by the recorder under his official seal, shall be evidence in
all courts.
1064
MARRIAGE
Tit. 2
Historical: Laws 1899, 27 8, Sec. 9;
re-enacting Laws 1895, 166, Sec. 9.
See 4 Ter. Ses. (1867) 71, Sec. 10.
Penalty for False Return.
Sec. 2638. If any person, authorized to solemnize marriage, shall
wilfully make a false return of any marriage or pretended marriage
to the recorder ; or, if the recorder shall wilfully record a false return
of any marriage, he shall be deemed guilty of a misdemeanor, and,
upon conviction thereof, shall be punished by a fine of not less than
one hundred dollars, and by imprisonment for not less than three
months.
Historical: Laws 1899, 278, Sec. 10;
re-enacting Laws 1895, 166, Sec. 10.
Disposition of Penalties.
Sec. 2639. All fines and penalties accruing under the provisions
of this article shall be paid into the county treasury for the use of
the common schools in the county where the offense was committed.
Historical: Laws 1899, 278. Sec. 11;
re-enacting Laws 1895, 166, Sec. 11.
CHAPTER 2.
DIVORCE.
Article
1. Annulment of marriage.
2. Grounds for and defenses against
divorce.
Article
3. Actions for divorce, custody of
children and disposition of prop-
erty.
ARTICLE 1.
ANNULMENT OF MARRIAGE.
Section
2640, Annulment of marriage:
Grounds.
26 41. Action to annul: Parties and
limitations.
Section
2642. Legitimacy of children.
2643. Custody of children.
2644. Conclusiveness of judgment.
Annulment of Marriage : Grounds.
Sec. 2640. A marriage may be annulled for any of the following
causes, existing at the time of the marriage :
1. That the party in whose behalf it is sought to have the mar-
riage annulled was under the age of legal consent, and such marriage
was contracted without the consent of his or her parents or guardian,
or persons having charge of him or her; unless, after attaining the
age of consent, such party for any time freely cohabits with the
other as husband or wife ;
2. That the former husband or wife of either party was living,
and the marriage with such former husband or wife was then in force ;
3. That either party was of unsound mind, unless such party,
after coming to reason, freely cohabited with the other as husband
or wife ;
4. That the consent of either party was obtained by fraud, unless
such party afterward, with full knowledge of the facts constituting
the fraud, freely cohabited with the other as husband or wife ;
Ch. 2. Art. 1. DIVORCE — ANNULMENT OF MARRIAGE
1065
5. That the consent of either party was obtained by force, unless
such party afterwards freely cohabited with the other as husband
or wife ;
6. That either party was, at the time of marriage, physically
incapable of entering into the married state, and such incapacity con-
tinues, and appears to be incurable.
Historical: Rev. St. 1887, Sec. 2450.
See 8 Ter. Ses. (1875) 639, Sec. 4.
California Legislation: Same except
the words beginning with "and such
marriage" and ending "him or her"
subd. 1, are omitted: Civ. Code 1872,
Sec. 82; same as amended: Deering's
Code, ib.; Kerr's Code, ib.
Action to Annul: Parties and Limitations.
Sec. 2641. An action to obtain a decree of nullity of marriage, for
causes mentioned in the preceding section, must be commenced within
the periods and by the parties as follows :
1. For causes mentioned in subdivision one ; by the party to the
marriage who was married under the age of legal consent, within
four years after arriving at the age of consent ; or by a parent,
guardian, or other person having charge of such non-aged male or
female, at any time before such married minor has arrived at the
age of legal consent ;
2. For causes mentioned in subdivision two; by either party
during the life of the other, or by such former husband or wife ;
3. For causes mentioned in subdivision three; by the party in-
jured, or relative or guardian of the party of unsound mind, at any
time before the death of either party ; >►
4. For causes mentioned in subdivision four; by the party in-
jured, within four years after the discovery of the facts constituting
the fraud ;
5. For causes mentioned in subdivision five; by the injured
party, within four years after the marriage ;
6. For causes mentioned in subdivision six; by the injured party,
within four years after the marriage.
Historical: Rev. St. 1887, Sec. 2451.
California Legislation: Similar: Civ.
Code 1872, Sec. 83; same as amended:
Deering's Code, ib.; Kerr's Code, ib.
Legitimacy of Children.
Sec. 2642. When a marriage is annulled on the ground that a
former husband or wife is living, or on the ground of insanity, chil-
dren begotten before the judgment are legitimate and succeed to the
estate of both parents.
Historical: Rev. St. 18 87, Sec. 2 452.
California Legislation: Same: Civ.
Code 1872, Sec. 84; Deering's Code,
ib.; similar as amended: Kerr's Code,
ib.
Custody of Children.
Sec. 2643. The court must award the custody of the children of a
marriage annulled on the ground of fraud or force to the innocent
parent, and may also provide for their education and maintenance
out of the property of the guilty party.
Historical: Rev. St. 1887, Sec. 2453.
California Legislation: Same: Civ.
Code 1872, Sec. 85; Deering's Code,
ib.; Kerr's Code, ib.
1066
MARRIAGE
Tit. 2
Conclusiveness of Judgment.
Sec. 2644. A judgment of nullity of marriage rendered is con-
clusive only as against the parties to the action and those claiming
under them.
Historical: Rev. St. 1887, Sec. 2 45 4.
California Legislation: Same: Civ.
Code 1872, Sec. 86; Deering's Code,
ib.; Kerr's Code, ib.
ARTICLE 2.
GROUNDS FOR AND DEFENSES AGAINST DIVORCE.
Section
2645. Dissolution of marriage.
2646. Effect of decree.
2647. Causes for divorce.
2648. Adultery.
2649. Extreme cruelty.
2650. Desertion.
2651. Wilful neglect.
Section
2652. Habitual intemperance.
2653. Continuation of cause.
2654. Denial of divorce.
2655. Collusion.
2656. Recrimination.
2657. Condonation.
2658. Limitations.
Dissolution of Marriage
Sec. 2645. Marriage is dissolved only:
1. By the death of one of the parties; or
2. By the judgment of a court of competent jurisdiction decree-
ing a divorce of the parties.
Historical: Rev. St. 1887, Sec. 2455.
California Legislation: Similar: Civ.
Code 1872, Sec. 90; same as amended:
Deering's Code, ib.; Kerr's Code, ib.
Effect of Decree.
Sec. 2646. The effect of a judgment decreeing a divorce is to re-
store the parties to the state of unmarried persons.
Historical: Rev. St. 188 7, Sec. 245 6.
California Legislation: Similar: Civ.
Code 1872, Sec. 91; same as amended:
Deering's Code, ib.; Kerr's Code, ib.
Causes for Divorce.
Sec. 2647. Divorces may be granted
for any of the following
causes :
1. Adultery;
2. Extreme cruelty;
3. Wilful desertion ;
4. Wilful neglect ;
5. Habitual intemperance ;
6. Conviction of a felony.
7. When either the husband or wife has become permanently
insane, as provided in Sections 4624 to 4628, inclusive, of the Code
of Civil Procedure.
Historical: Rev. St. 1887, Sec. 2457.
See 1 Ter. Ses. (1864) 616, Sec. 22.
Subdivision 7 is added on the au-
thority of Laws 1899, 232, Sec. 1, as
amended by Laws 1903, 332, Sec. 1
(Code Sec. 4624).
California Legislation: Same ex-
cept "must" for "may," line 1; Civ.
Code 1872, Sec. 92; same as amended:
Deering's Code, ib. ; Kerr's Code, ib.
Cross Reference: Divorces on the
ground of insanity: Sees. 4624-4628.
Adultery.
Sec. 2648. Adultery is the voluntary sexual intercourse of a mar-
ried person with a person other than the offender's husband or wife.
Ch. 2. Art. 2. DIVORCE — GROUNDS AND DEFENSES
1067
Historical: Rev. St. 18 87, Sec. 2 45 8.
California Legislation: Same: Civ.
Code 1872, Sec. 93; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Penalty for adul-
tery: Sec. 6807.
Extreme Cruelty.
Sec. 2649. Extreme cruelty is the infliction of grievous bodily in-
jury or grievous mental suffering upon the other by one party to the
marriage.
Historical: Rev. St. 188 7, Sec. 2 459.
California Legislation: Same: Civ.
Code 1872, Sec. 94; Deering's Code,
ib.; "wrongful" inserted before 'in-
fliction" as amended: Kerr's Code, ib.
Desertion.
Sec. 2650. Wilful desertion is the voluntary separation of one of
the married parties from the other with intent to desert.
Historical: Rev. St. 1887, Sec. 2 460.
California Legislation: Same: Civ.
Code 1872, Sec. 95; Deering's Code,
ib. ; Kerr's Code, ib.
What Constitutes Desertion: Where
the husband establishes a new home
and requests his wife to follow him
and furnishes her the means with
which to travel, and she declines to
take up her residence with him, the
husband is not guilty of desertion be-
cause he fails to support his wife
during her absence. Roby v. Roby
(1904) 10 Ida. 139; 77 Pac. 213.
Wilful Neglect.
Sec. 2651. Wilful neglect is the neglect of the husband to provide
for his wife the common necessaries of life, he having the ability
to do so, or it is the failure to do so by reason of idleness, profligacy
or dissipation.
Historical: Rev. St. 1887. Sec. 2461.
California Legislation: Same: Civ.
Code 1872, Sec. 105; Deering's Code,
ib.; Kerr's Code. ib.
Cross Reference: Penalty for ne-
glect of wife and children: Sec. 6781.
Habitual Intemperance.
Sec. 2652. Habitual intemperance is that degree of intemperance
from the use of intoxicating drinks which disqualifies the person a
great portion of the time from properly attending to business, or
which would reasonably inflict a course of great mental anguish upon
the innocent party.
Historical: Rev. St. 18 87, Sec. 2 462.
California Legislation: Same: Civ.
Code 1872, Sec. 106; Deering's Code,
ib.; Kerr's Code, ib.
Continuation of Cause.
Sec. 2653. Wilful desertion, wilful neglect or habitual intemper-
ance must continue for one year before either is a ground for divorce.
Historical: Rev. St. 1887. Sec. 2463.
California Legislation: Same: Civ.
Code 1872, Sec. 107; Deering's Code,
ib.: Kerr's Code, ib.
Desertion by Husband: Where a
husband first deserts his wife and re-
mains absent from her for a period
in excess of that prescribed by this
section, she may thereafter refuse to
live with him and can maintain an
action against him for a divorce, or
defeat an action brought by him
against her for such divorce. Stone-
burner v Stoneburner (1905) 11 Ida.
603; 83 Pac. 938.
Denial of Divorce.
Sec. 2654. Divorces must be denied upon showing:
1068
MARRIAGE
Tit. 2
1. Collusion; or
2. Condonation ; or
3. Recrimination ; or
4. Limitation and lapse of time.
Historical: Rev. St. 188 7, Sec. 2464.
California Legislation: Same except
"1. Connivance; or" inserted after
"showing," line 1; and "2, 3, 4, 5."
for "1, 2, 3, 4": Civ. Code 1872, Sec.
Ill; Deering's Code, ib.; Kerr's Code,
ib.
Cited: Stoneburner v. Stoneburner
(1905) 11 Ida. 603; 83 Pac. 938.
Collusion.
Sec. 2655. Collusion is an agreement between husband and wife
that one of them shall commit, or appear to have committed, or to be
represented in court as having committed, acts constituting a cause
of divorce for the purpose of enabling the other to obtain a divorce,
and is a bar to an action for such acts.
Historical: Rev. St. 1887, Sec. 2 465.
California Legislation: Same except
the last words, "and is a bar to ah
action for such acts," are omitted:
Civ. Code 1872, Sec. 114; Deering's
Code, ib.; Kerr's Code, ib.
Recrimination.
Sec. 2656. Recrimination is a showing by the defendant of any
cause of divorce against the plaintiff, in bar of the plaintiff's cause
of divorce.
Historical: Rev. St. 1887, Sec. 2466.
California Legislation: Same: Civ.
Code 1872, Sec. 122; Deering's Code,
ib. ; Kerr's Code, ib.
Recrimination a Defense: The de-
fense of recrimination constitutes a
complete bar to a divorce, where the
defendant shows a valid existing
cause of action for divorce against
the plaintiff. Stoneburner v. Stone-
burner (1905) 11 Ida. 603; 83 Pac.
938.
Condonation.
Sec. 2657. Condonation of a cause of divorce shown in the answer
as a recriminatory defense, is a bar to such defense when the con-
donee has fully performed the marital duties, and is without reproach
since the condonation, or if two years or more have elapsed after
the condonation.
Historical: Rev. St. 1887, Sec. 2 46 7.
California Legislation: Similar but
"three" for "two," last line, and addi-
tional clause: Civ. Code 1872,. Sec.
123; similar as amended: Deering's
code, ib. ; Kerr's Code, ib.
Limitations.
Sec. 2658. A divorce must be denied :
1. When the cause is adultery and the action is not commenced
within two years after the commission of the act of adultery, or
after its discovery by the injured party; or
2. When the cause is conviction of felony, and the action is not
commenced before the expiration of one year after a pardon or the
termination of the period of sentence ;
3. In all other cases when there is an unreasonable lapse of time
before the commencement of the action.
Historical: Rev. St. 1887, Sec. 2 4 68.
California Legislation: Same except
"five" for "one," year, Subd. 1, and
"after the commission of the offense
and" inserted after "time," Subd. 3:
Civ. Code 1872, Sec. 124; similar as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Ch. 2. Art. 3.
DIVORCE— ACTIONS
1069
ARTICLE 3.
ACTION FOR DIVORCE, CUSTODY OF CHILDREN AND DISPOSITION
OF PROPERTY.
Section
Section
2659.
Residence required of plaintiff.
2667.
Allowance from separate prop-
2660.
Domicile of parties.
erty withheld.
2661.
Not granted by default or con-
2668.
Allowance for support of chil-
fession.
dren.
2662.
Allowance of support and suit
2669.
Legitimacy of issue. -
money.
2670.
Disposition of community
2663.
Custody of children.
property and homestead.
2664.
Alimony for default of hus-
2671.
Same: Order for disposition.
band.
2672.
Same: Revision on appeal.
2665.
Same: Security.
2673.
Jurisdiction of actions.
2666.
Same: What property liable.
Note: Exclusion of witnesses: Sec.
ity: Sees. 4624-4628.
3861. Procedure in divorce for insan-
Residence Required of Plaintiff.
Sec. 2659. A divorce must not be granted unless the plaintiff has
been a resident of the State for six months next preceding the com-
mencement of the action.
Historical: Rev. St. 1887, Sec. 2 469.
8 Ter. Ses. (1875) 639, Sec. 3.
California Legislation : Same: Civ.
Code 1872, Sec. 128; Deering's Code,
ib.; "for one year and of the county
in which the action is brought three
months" for "for six months," as
amended: Kerr's Code, ib.
Removal From State: A resident of
this- State who removes to another
State and lives there for four years,
cannot commence a suit for divorce
within thirty days after returning to
this State. Strode v. Strode (1898) 6
Ida. 67; 52 Pac. 161. \
Domicile of Parties.
Sec. 2660. In actions for divorce the presumption of law that the
domicile of the husband is the domicile of the wife, does not apply.
After separation each may have a separate domicile, depending for
proof upon actual residence, and not upon legal presumptions.
Historical: Rev. St. 1887, Sec. 2470.
California Legislation: Same: Civ.
Code 1872, Sec. 129; Deering's Code,
ib.; Kerr's Code, ib.
Not Granted by Default or Confession.
Sec. 2661. No divorce can be granted upon the default of the
defendant, or upon the uncorroborated statement, admission or testi-
mony of the parties, or upon any statement or finding of fact made
by a referee; but the court must, in addition to any statement or
finding of the referee, require proof of the facts alleged, and such
proof, if not taken before the court, must be upon written questions
and answers.
Historical: Rev. St. 18 8 7, Sec. 2471.
See 8 Ter. Ses. (1875) 639, Sec. 8.
California Legislation: Similar: Civ.
Code 1872, Sec. 130; same as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Cited: Strode v. Strode (1898) 6
Ida. 67; 52 Pac. 161.
Allowance of Support and Suit Money.
Sec. 2662. While an action for divorce is pending, the court may,
in its discretion, require the husband to pay as alimony any money
necessary to enable the wife to support herself or her children, or to
prosecute or defend the action.
1070
MARRIAGE
Tit. 2
Historical: Rev. St. 1887, Sec. 2 472.
8 Ter. Ses. (1875) 639, Sec. 7.
California Legislation: Same: Civ.
Code 1872, Sec. 137; additional pro-
visions as amended: Deering's Code,
ib.; as amended: Kerr's Code, ib.
Allowance Pending Appeal: Where
an appeal has been taken from a judg-
ment in a divorce case, the District
Court still retains jurisdiction to make
orders directing the payment of costs,
expenses and attorneys' fees, neces-
sary in the preparation and perfection
of the appeal. Roby v. Roby (1903)
9 Ida. 371; 74 Pac. 957.
Custody of Children.
Sec. 2663. In an action for divorce the court may, before or after
judgment, give such direction for the custody, care and education of
the children of the marriage as may seem necessary or proper, and
may at any time vacate or modify the same.
Historical: Rev. St. 1887, Sec. 2473.
8 Ter. Ses. (1875) 639, Sec. 7.
California Legislation: Same: Civ.
Code 1872, Sec. 138; Deering's Code,
ib.; similar as amended: Kerr's Code,
ib.
Cited: In re Miller (1896) 4 Ida.
711; 43 Pac. 870.
Alimony for Fault of Husband.
Sec. 2664. Where a divorce is granted for an offense of the hus-
band, the court may compel him to provide for the maintenance of
the children of the marriage, and to make such suitable allowance
to the wife for her support as the court may deem just, having regard
to the circumstances of the parties respectively; and the court may,
from time to time, modify its orders in these respects.
Historical: Rev. St. 1887, Sec. 2 47 4.
I Ter. Ses. (1875) 639, Sec. 7.
California Legislation: Same except
'during her life or for a shorter
period" inserted after "support," line
4: Civ. Code 1872, Sec. 139; Deering's
Code, ib. ; Kerr's Code, ib.
Same : Security.
Sec. 2665. The court may require the husband to give reasonable
security for providing maintenance or making any payments required
under the provisions of this chapter, and may enforce the same by
the appointment of a receiver, or by any other remedy applicable
to the case.
Historical: Rev. St. 1887, Sec. 2475.
California Legislation : Same: Civ.
Code 1872, Sec. 140; Deering's Code,
ib.; Kerr's Code, ib.
Same: What Property Liable.
Sec. 2666. In executing the four preceding sections the court must
resort :
1. To the community property; then
2. To the separate property of the husband.
Historical: Rev. St. 188 7, Sec. 2 476.
California Legislation: Same except
'five" for "four", line 1: Civ. Code
1872, Sec. 141; Deering's Code, ib.
Kerr's Code, ib.
Allowance From Separate Property Withheld.
Sec. 2667. When the wife has a sufficient separate estate, or there
is community property sufficient to give her alimony or a proper
support, the court must withhold any allowance to her out of the
separate property of the husband.
Ch. 2. Art. 3.
DIVORCE — ACTIONS
1071
Historical: Rev. St. 1887, Sec. 2477.
California Legislation: Same except
"has either a" for "has a sufficient,"
line 1; "in its discretion may" for
"must," line 3; Civ. Code 1872, Sec.
142; Deering's Code, ib.; Kerr's Code,
ib.
Allowance for Support of Children.
Sec. 2668. The community property and the separate property
may be subjected to the support and education of the children in
such proportions as the court deems just.
Historical: Rev. St. 18 87, Sec. 2478.
California Legislation: Same: Civ.
Code 1872, Sec. 143; Deering's Code,
ib. ; Kerr's Code, ib.
Legitimacy of Issue.
Sec. 2669. When a divorce is granted for the adultery of the wife,
the legitimacy of children begotten of her before the commission of
the adultery is not affected; but the legitimacy of other children of
the wife may be determined by the court upon the evidence in the case.
Historical: Rev. St. 188 7, Sec. 2 47 9.
See 8 Ter. Ses. (1875) 639, Sec. 6.
California Legislation: Same: Civ.
Code 1872, Sec. 145; Deering's Code,
ib.; Kerr's Code, ib.
Disposition of Community Property and Homestead.
Sec. 2670. In case of the dissolution of the marriage by the decree
of a court of competent jurisdiction, the community property and the
homestead may be assigned as follows :
1. If the decree be rendered on the ground of adultery or ex-
treme cruelty, the community property must be assigned to the
respective parties in such proportions as the court, from all the facts
of the case and the condition of the parties, deems just ;
2. If the decree be rendered on any other ground than that of
adultery or extreme cruelty, the community property must be equally
divided between the parties ;
3. If a homestead has been selected from the community prop-
erty, it may be assigned to the innocent party, either absolutely or
for a limited period, subject in the latter case to the future disposition
of the court ; or it may be divided or be sold and the proceeds divided ;
4. If a homestead has been selected from the seoarate property
of either, it must be assigned to the former owner of such property,
subject to the power of the court to assign it for a limited period to
the innocent party.
Historical: Rev. St. 1887, Sec. 2 480.
See 8 Ter. Ses. (1875) 635, Sec. 12.
California Legislation: Different:
Civ. Code 1872, Sec. 146; same as
amended except "shall be" for "must
be" in Subds. 1, 2 and 4; Deering's
Code, ib.; Kerr's Code, ib.
Division of Poperty: A wife who
abandons her husband and home in
this State, takes up a separate resi-
dence in another State, procures a
decree of divorce on substituted ser-
vice in that State, and forms a new
community by another marriage, can-
not maintain an action thereafter in
this State for a division of the commu-
nity property. (Sullivan. C. J., dis-
sents.) Bedal v. Sake (1904) 10 Ida.
270; 77 Pac. 638.
Same : Order for Disposition.
Sec. 2671. The court, in rendering a decree of divorce, must make
such order for the disposition of the community property, and of the
homestead as in this chapter provided, and, whenever necessary for
Vol. 1—35
1072
MARRIAGE
Tit. 2
that purpose, may order a partition or sale of the property and a
division or other disposition of the proceeds.
Historical: Rev. St. 1887, Sec. 2 481.
See 8 Ter. Ses. (1875) 635, Sec. 12.
Comparative Legislation: See Civ.
Code 1872, Sec. 147; same as amend-
ed: Deering's Code, ib. ; Kerr's Code,
ib.
Same: Revision on Appeal.
Sec. 2672. The disposition of the community property, and of the
homestead, as above provided, is subject to revision on appeal in all
particulars, including those which are stated to be in the discretion
of the court.
Historical: Rev. St. 1887, Sec. 2 482.
See 8 Ter. Ses. (1875) 635, Sec. 12.
California Legislation : Similar: Civ.
Code 1872, Sec. 148; same as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Jurisdiction of Actions.
Sec. 2673. Exclusive original jurisdiction of all actions and pro-
ceedings under this chapter is in the District Court, and the Judge
thereof at chambers may make all necessary orders for temporary
alimony and support, and the expenses of the action and the custody
of children and property during the pendency of the action.
Historical: Rev. St. 188 7, Sec. 2 48 3.
See 8 Ter. Ses. (1875) 639, Sec. 1.
Cited: In re Miller (1896) 4 Ida.
711; 43 Pac. 870.
CHAPTER 3.
HUSBAND AND WIFE.
Section
2674. Mutual obligations.
2675. Head of family.
2676. Separate property of wife.
2677. Same: Management.
2678. Same: Marriage settlements
not affected.
267 9. Separate property of husband.
2680. Community property.
26 81. Inventory of wife's property.
2682. Same: Effect.
2683. Earnings of wife living sep-
arate from husband.
2684. Liability for ante-nuptial
debts.
Note: Sole traders: Sees. 5850-5860.
Section
2685. Same: Wife's liability.
2686. Husband's control of com-
munity property.
2687. Curtesy and dower abolished.
2688. Support of infirm husband.
2 68 9. Property rights governed by
chapter.
2 6 90. Formalities required of mar-
riage settlements.
2691. Same: Record.
2692. Same: Effect of record.
2693. Same: Minor may make set-
tlement.
Mutual Obligations.
Sec. 2674. Husband and wife contract toward each other obliga-
tions of mutual respect, fidelity and support.
Historical: Rev. St. 1887, Sec. 2 49 3.
California Legislation : Same: Civ.
Code 1872, Sec. 155; Deering's Code,
ib.; Kerr's Code, ib.
Head of Family.
Sec. 2675. The husband is the head of the family. He may choose
any reasonable place or mode of living, and the wife must conform
thereto.
Ch. 3.
HUSBAND AND WIFE
1073
Historical: Rev. St. 1887, Sec. 2494.
California Legislation: Same: Civ.
Code 1872, Sec. 156; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Law v. Spence (1897) 5 Ida.
244; 48 Pac. 282.
Separate Property of Wife.
Sec. 2676. All property of the wife owned by her before marriage,
and that acquired afterwards by gift, bequest or descent, or that
which she shall acquire with the proceeds of her separate property,
shall remain her sole and separate property, to the same extent and
with the same effect, as the property of a husband similarly acquired.
Historical: Rev. St. 1887, Sec. 2 495.
(see 4 Ter. Ses. (1867) 65, Sec. 1);
amended Laws 1903, 345, Sec. 1.
California Legislation: Similar: Civ.
Code 2872, Sec. 162; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Bassett v. Beam (1894) 4
Ida. 106; 36 Pac. 501. Dernham &
Kaufman v. Rowley (1896) 4 Ida.
753; 44 Pac. 643. Bank of Commerce
v. Baldwin (1906) 12 Ida. 202; 85
Pac. 497.
Same : Management.
Sec. 2677. During the continuance of the marriage, the wife has
the management, control and absolute power of disposition of her
separate property, and may bargain, sell and convey her real and
personal property, and may enter into any contract with reference
to the same, in the same manner, and to the same extent, and with
like effect, as a married man may in relation to his real and personal
property: Provided, That the husband shall be bound by such con-
tracts to no greater extent or effect than his wife under similar cir-
cumstances would be bound by his contracts.
Historical: Laws 1903, 345, Sec. 2.
Cross Reference: Married women
may transfer stock held by them in
corporations: Sec. 2748. May hold
stock in homestead corporation: Sec.
2849. May hold and transfer stock
in land and building corporations:
Sec. 3055. Capacity of married wo-
men to sue and be sued: Sec. 4093.
Cited: Grice v. Wood worth (1904)
10 Ida. 459; 80 Pac. 812.
Application of Section: This section
and the act of which it is a part re-
fers only to the separate property of
the wife, and the management and
control thereof, and does not em-
power a married woman to bind her-
self personally for the payment of a
debt that was not contracted for her
own use, or for the use and benefit
of her separate estate, or in connec-
tion with the control and manage-
ment thereof, or in conducting busi-
ness connected therewith. Bank of
Commerce v. Baldwin (1906) 12 Ida.
202; 85 Pac. 497.
Creation of Liability: In order for
a married woman to create a charge
against her separate estate for a debt
not contracted for her use, nor for
the benefit of such separate property,
it must be made a charge in rem by
mortgage or pledge of the property or
in some manner known to the law as
constituting a lien upon property;
such a charge cannot be created by
a mere representation of the woman
that she owns a certain amount, class
or character of property. Ib.
Repeal: The act of which this sec-
tion is a part expressly repeals Rev.
St. Sees. 2498 and 2499. Sec. 2499
provided for the appointment of a
trustee in case of mismanagement by
the husband. Decisions under the re-
pealed Sec. 2498, which gave the hus-
band the management and control of
the separate property of the wife
during coverture, except in the sale
or the creation of liens on the same,
were as follows: The separate prop-
erty of the wife could be pledged for
the debts of the husband only by an
instrument in writing signed by both
husband and wife and duly acknowl-
edged. Dernham & Kaufman v. Row-
ley (1896) 4 Ida. 753; 44 Pac. 643.
But the purchaser of property from
a married woman was estopped in a
suit for the purchase price to inter-
pose the defense that the contract of
sale was not made in the prescribed
manner where he used and consumed
the property. Karlson v. Hanson &
Karlson, etc. Co., (190 4) 10 Ida. 361;
78 Pac. 1080.
The section was held to refer only
to the voluntary creation of liens or
incumbrances and did not preclude a
married woman from contracting for
the erection of improvements on her
separate property and thereby sub-
jecting the same to liability to a lien.
Bassett v. Beam (1894) 4 Ida. 106; 36
Pac. 501.
1074
MARRIAGE
Tit. 2
Same: Marriage Settlements Not Affected.
Sec. 2678. Nothing in the two preceding sections contained shall
invalidate, alter or change any marriage settlement now made or to
be made hereafter.
Historical: Laws 1903, 345, Sec. 4.
Separate Property of Husband.
Sec. 2679. All property owned by the husband before marriage,
and that acquired by gift, bequest, devise or descent is his separate
property.
Cited: Kneen v. Halin (1899) 6
Ida., 621; 5 9 Pac. 14; Kaiis.^n v.
Hanson & Karlson etc. Co. (1904) 10
Ida. 361; 78 Pac. 1080.
Historical: Rev. St. 188 7, Sec. 2 496.
See 4 Ter. Ses. (1867) 65, Sec. 1.
California Legislation: Same except
"with the rents, issues and profits
thereof" inserted after "descent," line
2: Civ. Code 1872, Sec. 163; Deering's
Code, ib.; Kerr's Code, ib.
Community Property.
Sec. 2680. All other property acquired after marriage by either
husband or wife, including the rents and profits of the separate prop-
erty of the husband and wife, is community property, unless by the
instrument by which any such property is acquired by the wife it is
provided that the rents and profits thereof be applied to her sole
and separate use; in which case the management and disposal of
such rents and profits belong to the wife, and they are not liable for
the debts of the husband.
Historical: Rev. St. 188 7, Sec. 2 497.
See 4 Ter. Ses. (1867) 6 5, Sec. 2.
California Legislation: Similar in
part: Civ. Code 1872, Sec. 164; Deer-
ing's Code, ib.; as amended: Kerr's
Code, ib.
Cross Reference: Community
property defined: Sec. 3060.
Cited: Dernham & Kaufman v.
Rowlev (18 96) 4 Ida. 753; 4 4 Pac.
643; Kneen v. Halin (1899) 6 Ida.
621; 59 Pac. 14.
Application: This section is not
limited to a community created in
this State or to one composed of per-
sons, who, having- been married else-
where, come within the State, and be-
come domiciled here, but protects a
non-resident wife of a man who
comes into this state and acquires
propertv here. Jacobson v. Bunker
Hill etc. Co (1891) 3 Ida. 126; 26
Pac. 396.
Construction With Sec. 4479: This
section must be construed with Sec.
4479 under which the rents, issues
and profits of the separate property
of the wife are exempt from execu-
tion against the husband. Thorn v.
Anderson (1900) 7 Ida. 421; 63 Pac.
592.
What Constitutes Community
Property: Property purchased in
the name of the wife partly with
funds of her separate estate and
partly with money borrowed during
the existence of the community, is
the separate property of the wife to
the extent of which funds of her sep-
arate estate were used, and commu-
nity property to the extent to which
the borrowed money was used, in its
purchase. N. W. etc. Bank v.
Rauch (1900) 7 Ida. 152; 61 Pac.
516. And the husband cannot encum-
ber such of the property as was
purchased with the money borrowed
during coverture. Ib.
Property conveyed to the wife dur-
ing coverture and occupied by the
husband and wife as a residence, is
presumed to be community property
in the absence of any showing that
it is the separate property of the wife.
Stowell v. Tucker (1900) 7 Ida. 312;
62 Pac. 1033.
Mining property held under a grant
from the United States may be com-
munity property. Jacobsen v. Bunk-
er Hill etc. Co. (1891) 3 Ida. 126; 26
Pac. 396.
Actions Concerning Community
Property: A complaint to recover
community property which alleges
that the property was acquired during
coverture, and was the community
property of the parties, is sufficient
without further stating that ^ the
property was not obtained by "gift,
bequest, devise, or descent." Ib.
In an action against a wife to fore-
Ch. 3.
HUSBAND AND WIFE
1075
close a mortgage on community
property where the husband, being a
necessary party to such action, is not
served with process, the judgment, be-
ing void as to the husband, is also
void as to the wife. Vermont Loan &
Trust Co. v. McGregor (1897) 5 Ida.
510; 51 Pac. 104.
In an action to foreclose a mort-
gage, where it appears from the
pleadings that the notes and mort-
gage were executed by both husband
and wife, the presumption is that
the premises were community proper-
ty unless the record discloses that
such premises were the separate
property of either the husband or the
wife. lb.
In an action to foreclose a mort-
gage, executed by husband and wife,
failure to allege that the mortgaged
property or any part thereof is the
separate estate of the wife, or that
the debts were created for the bene-
fit of her separate estate, raises a
presumption that said debts are debts
of the husband, and that such prop-
erty is community property. Strode
v. Miller (1900) 7 Ida. 16; 59 Pac.
893.
In an action upon an account by a
married woman, the fact that the ac-
count sued upon is community prop-
erty is a proper defense. Holton v.
Sand Point Lbr. Co. (1901) 7 Ida.
573; 64 Pac. 889.
Inventory of Wife's Property.
Sec. 2681. A full and complete inventory of the separate personal
property of the wife may be made out and signed by her, acknowl-
edged or proved in the manner required by law for the acknowledg-
ment or proof of a conveyance of real property by an unmarried
woman, and recorded in the office of the recorder of the county in
which the parties reside.
Historical: Rev. St. 1887, Sec. 2500.
4 Ter. Ses. (1867) 65, Sec. 3.
California Legislation: Same: Civ.
Code 1872, Sec. 165; Deering's Code,
ib.; Kerr's Code, ib.
Same : Effect.
Sec. 2682. The filing of the inventory in the recorder's office is
notice and prima facie evidence of the title of the wife.
Historical: Rev. St. 1887, Sec. 2501.
See 4 Ter. Ses. (1867) 65, Sec. 5.
California Legislation: Same except
"primary" for "prima facie": Civ.
Code 1872, Sec. 166; same as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Earnings of Wife Living Separate From Husband.
Sec. 2683. The earnings and accumulations of the wife and of
her minor children living with her or in her custody, while she is
living separate from her husband are the separate property of
the wife.
Historical: Rev. St. 1887, Sec. 2 5 02.
California Legislation : Same: Civ.
Code 1872, Sec. 169; Deering's Code,
ib.; Kerr's Code, ib.
Cited:. Bassett v. Beam (18 95) 4
Ida. 106; 36 Pac. 501; Dernham &
Kaufmann v. Rowley (1896) 4 Ida.
753; 44 Pac. 643.
Liability for Ante-Nuptial Debts.
Sec. 2684. The separate property of the husband is not liable for
the debts of the wife contracted before the marriage.
Historical: Rev. St. 1887, Sec. 2 503.
See 4 Ter. Ses. (1867) 65, Sec. 13.
California Legislation: Same: Civ.
Code 1872, Sec. 170; Deering's Code,
ib.; Kerr's Code, ib.
Same : Wife's Liability.
Sec. 2685. The separate property of the wife is not liable for the
debts of her husband, but is liable for her own debts contracted be-
fore or after marriage.
1076
MARRIAGE
Tit. 2
Historical: Rev. St. 1887, Sec. 2 504.
4 Ter. Ses. (1867) 65, Sec. 9.
California Legislation: Same: Civ.
Code 1872, Sec. 171; Deering's Code,
ib.; similar with additional provisions
as amended: Kerr's Code, ib.
Liability for Debts: A married wo-
man may contract debts after her
marriage and subject her separate
property to liability therefor. Bassett
v. Beam (1894) 4 Ida. 106; 36 Pac.
501.
Same — Debts of Husband: In or-
der to charge the separate property
of the wife with liability for a debt,
it must be alleged and proven that
the debt was incurred for the use or
benefit of her separate property, or
was contracted by her for her own
use and benefit; debts contracted by
the husband for his own benefit, or
for the use of his family, cannot sub-
ject the separate property of the
wife to liability therefor. Dernham &
Kaufmann v. Rowley (1896.) 4 Ida.
753; 44 Pac. 643; Holt v. Girdley
(1900) 7 Ida. 416; 63 Pac. 188.
Husband's Control of Community Property.
Sec. 2686. The husband has the management and control of the
community property, with the like absolute power of disposition
(other than testamentary) as he has of his separate estate; but
such power of disposition does not extend to the homestead or that
part of the common property occupied or used by the husband and
wife as a residence.
Historical: Rev. St. 1887, Sec. 250 5.
See 4 Ter. Ses. (1867) 65. Sec. 9; 13
Ter. Ses. (Feb. 5, 1885) 137, Sec. 1.
The act of the 4th session gave the
husband the entire management and
control and absolute power of dispo-
sition of the common property. The
act of the 13th session required the
joinder of the wife in the conveyance
of any property of a married person
occupied as a residence or homestead,
or any common property of the hus-
band and wife.
California Legislation: Same
through "estate," line 3, rest omitted:
Civ. Code 1872, Sec. 172; Deering's
Code, ib. ; as amended: Kerr's Code,
ib.
Cross Reference: Testamentary
power over community property: Sec.
5713. Assignment of community
property on dissolution of marriage,
Sec. 2670.
Control by Husband: The - action
of a wife in voluntarily separating
from her husband with the intention
of suing for a division of the com-
mon property, does not change the
character of that property so as to
divest the husband of the right to
dispose thereof under this section, and
a sale made by the husband in good
faith and for an adequate consider-
ation after such separation, is as
valid as if no separation had taken
place. Ray v. Ray (1874) 1 Ida. 566.
Where community property is not
a homestead nor occupied as a resi-
dence, the husband may convey the
same without his wife's signature, and
the validity of such conveyance is not
affected by the joinder of the wife
therein and her acknowledgment
thereto being defectively taken. Wil-
son v. Wilson (1899) 6 Ida. 597; 57
Pac. 708.
Same — Disposition of Residence:
The homestead occupied by husband
and wife as a residence is common
property of the marital community,
and the husband alone cannot convey
or encumber it, so long as it con-
tinues to be the residence of himself
and wife, but it is in his power to
change its character as a residence at
any time without the consent or the
co-op aration of the wife. Law v.
Spence (1897) 5 Ida. 244; 48 Pac.
282.
Curtesy and Dower Abolished.
Sec. 2687. No estate is allowed the husband as tenant by curtesy
upon the death of his wife, nor is any estate in dower allotted to the
wife upon the death of her husband.
Historical: Rev. St. 1887, Sec. 2 506.
4 Ter. Ses. (1867) 65, Sec. 10.
California Legislation: Same: Civ.
Code 1872, Sec. 173; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Inheritance of
husband and wife from each other:
Sec. 5 702. Devolution of community
property: Sec. 5713.
Support of Infirm Husband.
Sec. 2688. The wife must support the husband out of her separate
Ch. 3.
HUSBAND AND WIFE
1077
property when he has no separate property, and they no community
property, and he from infirmity is not able or competent to support
himself.
Historical: Rev. St. 1887, Sec. 2507.
California Legislation : Same: Civ.
Code 1872, Sec. 176; similar as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Property Rights Governed by Chapter.
Sec. 2689. The property rights of husband and wife are governed
by this chapter, unless there is a marriage settlement containing
stipulations contrary thereto.
Historical: Rev. St. 1887, Sec. 2508.
See 4 Ter. Ses. (1867) 65, Sec. 15.
California Legislation: Same: Civ.
Code 1872, Sec. 177; Deering's Code,
ib.; Kerr's Code, ib.
Formalities Required of Marriage Settlements.
Sec. 2690. All contracts for marriage settlements must be in writ-
ing, and executed and acknowledged or proved in like manner as
conveyances of land are required to be executed and acknowledged
or proved.
Historical: Rev. St. 1887, Sec. 2509.
4 Ter. Ses. (1867) 65, Sec. 16.
California Legislation: Same except
"as a grant of land is" for "as con-
veyances of land are": Civ. Code
1872, Sec. 178; Deering's Code, ib.;
Kerr's Code, ib.
Same : Record. *
Sec. 2691. When such contract is acknowledged or proved, it must
be recorded in the office of the recorder of every county in which any
real estate may be situated which is granted or affected by such
contract.
Historical: Rev. St. 1887, Sec. 2510.
See 4 Ter. Ses. (1867) 65, Sec. 17.
California Legislation: Same: Civ.
Code 1872, Sec. 179; Deering's Code,
ib.; Kerr's Code, ib.
Same: Effect of Record.
Sec. 2692. The recording or non-recording of such contract has
a like effect as the recording or non-recording of a conveyance of
real property.
Historical: Rev. St. 188 7, Sec. 2511.
See 4 Ter. Ses. (1867) 65, Sec. 18.
California Legislation: Same except
"grant" for "conveyance," line 2:
Civ. Code, 1872, Sec. 180; Deering's
Code, ib. ; Kerr's Code, ib.
Cross Reference: Effect of record
of conveyance: Sec. 3159.
Same: Minor May Make Settlement.
Sec. 2693. A minor capable of contracting marriage may make a
valid marriage settlement.
Historical: Rev. St. 1887, Sec. 2512.
See 4 Ter. Ses. (1867) 65, Sec. 20.
California Legislation: Same: Civ.
Code 1872, Sec. 181; Deering's Code,
ib.; Kerr's Code, ib.
TITLE 3
PARENT AND CHILD
Chapter
1. Children by birth.
I Chapter
2. Adoption.
CHAPTER 1.
CHILDREN BY BIRTH.
Section
2694. Allowance to parent for sup-
port.
2695. Reciprocal duties of support.
2696. Liability of parents for child's
necessaries.
Section
2697. Wages of minors.
2698. Custody of children after sep-
aration of parents.
2699. Legitimization of issue by
marriage.
Allowance to Parent for Support.
Sec. 2694. The proper court may direct an allowance to be made
to the parent of a child, out of its property for its past or future
support and education, on such conditions as may be proper, when-
ever such direction is for its benefit.
Historical: Rev. St. 18 87, Sec. 2 530.
California Legislation: Same: Civ.
Code 1872, Sec. 201; Deering's Code,
ib.; Kerr's Code, ib.
Reciprocal Duties of Support.
Sec. 2695. It is the duty of the father, the mother and the child
or children of any poor person who is unable to maintain himself
or herself by work, to maintain such poor person to the extent of
his or her ability. Whenever any person shall apply for aid to any
county within this State under its indigent laws, and it shall at any
time appear to the county commissioners that said poor person has
a father, mother, child or children who is able to maintain him or
her, but fails so to do, it shall be the duty of the said commissioners
to furnish all necessary aid and to bring a civil suit against such
father, mother, child or children to recover the amount so expended,
in the name of the county. The promise of an adult child to pay for
necessaries previously furnished to such parents is binding.
Historical: Rev. St. 1887, Sec. 2 531,
amended Laws 1897, 52, Sec. 1; re-
enacted Laws 1899, 301, Sec. 1.
Liability of Parent for Child's Necessaries.
Sec. 2696. If a parent neglects to provide articles necessary for
his child who is under his charge, according to his circumstances, a
third person may in good faith supply such necessaries, and recover
the reasonable value thereof from the parent.
Historical: Rev. St. 1887, Sec. 2532.
California Legislation: Same: Civ.
Code 1872, Sec. 207; Deering's Code,
ib.; Kerr's Code, ib.
Ch. 2.
ADOPTION
1079
Wages of Minors.
Sec. 2697. The wages of a minor employed in service may be paid
to him, unless, within thirty days after the commencement of the
service, the parent or guardian entitled thereto gives the employer
notice that he claims such wages.
Historical: Rev. St. 1887, Sec. 2533.
California Legislation: Same: Civ.
Code 1872, Sec. 212; similar as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Cross Reference: Wages of minor
children living with wife who is sep-
arated from her husband belong to
wife: Sec. 2683.
Custody of Children After Separation of Parents.
Sec. 2698. When a husband and wife live in a state of separation,
without being divorced, any court of competent jurisdiction, upon
application of either, if an inhabitant of this State, may inquire into
the custody of any unmarried minor child of the marriage, and may
award the custody of such child to either, for such time and under
such regulations as the case may require. The decision of the court
must be guided by the welfare of the child.
Historical: Rev. St. 1887, Sec. 2534.
California Legislation: Same except
"by the rules prescribed in Sec. 2 46"
for "by the welfare of the child",
last words: Civ. Code 1872, Sec. 214;
Deering's Code, ib. ; Kerr's Code, ib.
Cited: In re Miller (18 96) 4 Ida.
711; 43 Pac. 870.
Legitimization of Issue by Marriage. *
Sec. 2699. A child born before wedlock becomes legitimate by the
subsequent marriage of its parents.
Historical: Rev. St. 1887, Sec. 2535.
9 Ter. Ses. (1877) 24, Sec. 21.
California Legislation: No such pro-
vision in Civ. Code 1872; same: Deer-
ing's Code, Sec. 215; Kerr's Code, ib.
Cross Reference: Legitimacy of
children where marriage is annulled:
Sec. 26 42; in case of divorce for adul-
tery of wife: Sec. 266 9.
CHAPTER 2.
ADOPTION.
Section
Section
2700.
Minors may be adopted.
2705.
2701.
Restrictions as to comparative
2706.
age.
2707.
2702.
Consent of husband and wife
necessary.
2708.
2703.
Consent of parents of child.
2709.
2704.
Consent of child.
Proceedings on adoption.
Order of adoption.
Effect of adoption.
Release of child's parents from
obligation.
Adoption of illegitimate child.
Minors May Be Adopted.
Sec. 2700. Any minor child may be adopted by any adult person,
in the cases and subject to the rules prescribed in this chapter.
Historical: Rev. St. 18 87, Sec. 2 545.
10th Ter. Ses. (1879) 8, Sec. 1.
California Legislation: Same: Civ.
Code 1872, Sec. 221; Deering's Code,
ib.; Kerr's Code, ib.
Restrictions as to Comparative Age.
Sec. 2701. The person adopting a child must be at least fifteen
years older than the person adopted.
1080
PARENT AND CHILD.
Tit. 3
Historical: Rev. St. 1887, Sec. 2 546.
10 Ter. Ses. (1879) 8, Sec. 2.
California Legislation : Same :
through "adopted": Civ. Code 1872,
Sec. 222; as amended: Deering's Code,
ib.; Kerr's Code, ib.
Consent of Husband and Wife Necessary.
Sec. 2702. A married man, not lawfully separated from his wife,
cannot adopt a child without the consent of his wife; nor can a
married woman, not thus separated from her husband, without his
consent, provided the husband or wife, not consenting, is capable
of giving such consent.
through "wife", line 2: Civ. Code
1872, Sec. 223; same as amended.
Deering's Code, ib.; Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 2547.
10 Ter. Ses. (1879) 8, Sec. 3.
California Legislation: Same
Consent of Parents of Child.
Sec. 2703. A legitimate child cannot be adopted without the con-
sent of its parents, if living, nor an illegitimate child without the
consent of its mother, if living, except that consent is not necessary
from a father or mother deprived of civil rights, or adjudged guilty
of adultery, or of cruelty, and for either cause divorced, or adjudged
to be an habitual drunkard, or who has been judicially deprived of
the custody of the child on account of cruelty or neglect. If it can
be shown satisfactorily to the judge that the parent or parents have
abandoned it, or ceased to provide for its support, then it may be
adopted by the written consent of its legal guardian. If no guardian
then of its nearest relative. If no relative then by the consent of
some person appointed by the judge to act in the proceedings as the
next friend to such child.
Historical: Rev. St. 1887, Sec. 2548.
Act Feb. 5, 1887; see 10 Ter. Ses.
(1879) 8, Sec. 4.
California Legislation: Same
through first sentence: Civ. Code 1872,
Sec. 224; as amended: Deering's Code,
ib.; Kerr's Code, ib.
Consent of Child.
Sec. 2704. The consent of a child, if over the age of twelve years,
is necessary to its adoption.
Code 1872, Sec. 225; Deering's Code,
ib.; Kerr's Code, ib
Historical: Rev. St. 1887, Sec. 2549.
10 Ter. Ses. (1879) 8, Sec. 5.
California Legislation: Same: Civ.
Proceedings on Adoption.
Sec. 2705. The person adopting a child, and the child adopted,
and the other persons, if within or residents of the county, whose
consent is necessary, must appear before the probate judge of the
county where the person adopting resides, and the necessary consent
must thereupon be signed, and an agreement be executed by the
person adopting, to the effect that the child shall be adopted and
treated in all respects as his own lawful child should be treated. But
if the parent or guardian of the child, or either of them, is a non-
resident of the county where the application is made, such non-
resident parent or guardian may execute his consent in writing, and
acknowledge the same before any officer authorized by the laws of
this State to take acknowledgments of deeds, which consent being
filed in the court where the application is made, is deemed a sufficient
appearance on the part of such non-resident.
Ch. 2.
ADOPTION
1081
Historical: Rev. St. 1887, Sec. 2 550.
10 Ter. Ses. (1879) 8, Sec. 6; amend-
ed 13 Ter. Ses. (1885) 25, Sec. 1.
California Legislation: Similar
through first sentence, rest omitted:
Civ. Code 1872, Sec. 226; similar as
amended: Deering's Code, ib.; fur-
ther amended: Kerr's Code, ib.
Order of Adoption.
Sec. 2706. The judge must examine all persons appearing before
him pursuant to the last section, each separately, and if satisfied
that the interests of the child will be promoted by the adoption, he
must make an order declaring that the child shall thenceforth be
regarded and treated in all respects as the child of the person
adopting.
Historical: Rev. St. 188 7, Sec. 2551.
10 Ter. Ses. (1879) 8, Sec. 7.
California Legislation: Same: Civ.
Code 1872, Sec. 227; Deering's Code,
ib.; similar with additional provi-
sion as amended: Kerr's Code, ib.
Effect of Adoption.
Sec. 2707. A child, when adopted, may take the name of the person
adopting, and the two thenceforth sustain towards each other the
legal relation of parent and child, and have all the rights and are
subject to all the duties of that relation. '
Historical: Rev. St. 1887, Sec. 2552.
10 Ter. Ses. (1879) 8, Sec. 8.
California Legislation: Same except
"takes" for "may take", line 1: Civ.
Code 1872, Sec. 228; similar as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Release of Child's Parents From Obligation.
Sec. 2708. The parents of an adopted child are, from the time of
the adoption, relieved of all parental duties towards, and all responsi-
bilities for, the child so adopted, and have no right over it.
Historical: Rev. St. 1887, Sec. 2553.
10 Ter. Ses. (1879) 8, Sec. 9.
California Legislation: Same: Civ.
Code 1872, Sec. 229; Deering's Code,
ib.; Kerr's Code, ib.
Adoption of Illegitimate Child.
Sec. 2709. The father of an illegitimate child, by publicly acknowl-
edging it as his own, receiving it as such, with the consent of his
wife, if he is married, into his family, and otherwise treating it as
if it were a legitimate child, thereby adopts it as such; and such
child is thereupon deemed for all purposes legitimate from the time
of its birth. The foregoing provisions of this chapter do not apply
to such an adoption.
Historical: Rev. St. 1887, Sec. 2554.
10 Ter. Ses. (1879) 8, Sec. 10.
California Legislation: Same: Civ.
Code 1872, Sec. 230; Deering's Code,
ib.; Kerr's Code, ib.
TITLE 4
CORPORATIONS
Chapter
1. General provisions.
2. Railroad corporations.
3. Bridge, ferry, flume and boom
corporations.
4. Telegraph, telephone and electric
power corporations.
Water and canal corporations.
Homestead corporations.
Insurance companies.
Secret fraternal insurance soci-
ties.
Mutual co-operative insurance
companies.
5.
6.
7.
Chapter
10. Livestock insurance companies.
11. Surety and fidelity companies.
12. Guaranty, title and trust compa-
nies.
13. Banking corporations.
14. Religious, social and benevolent
corporations.
15. Institutions of learning.
16. Agricultural fair companies.
17. Gas corporations.
18. Land and building corporations.
CHAPTER 1.
GENERAL PROVISIONS.
Article
1. Articles of incorporation.
2. By-laws.
3. Directors.
4. Meetings and elections.
5. Stock and stockholders.
6. Assessments on stock.
7. Powers of corporations.
Article
8. Corporate records.
9. Right of repeal.
10. Sale of franchise on execution.
11. Annual statement and license fee.
12. Miscellaneous provisions.
13. Foreign corporations.
Note: Constitutional provisions governing corporation: Const. Art. 11.
Dissolution of corporations: Sees. 5185-5191. Criminal frauds in manage-
ment of corporations: Sees. 7114-7128.
ARTICLE 1.
ARTICLES OF INCORPORATION.
Section
2710. Corporations classified.
2711. Private corporations: How
formed.
2712. Purposes for which authorized.
2713. Articles of incorporation.
2714. Same: Contents.
2715. Same: For railroad, wagon
road, telephone or telegraph.
2716. Subscribers to articles.
2717. Capital required of railroads,
etc.
Section
2718. Same: Affidavit of subscrib-
tion.
2719. Certificate of incorporation.
2720. Copy of articles as evidence.
2721. Record of articles by Secretary
of State.
2722. Stockholders and members.
2723. Articles to be filed where real
property is located.
Corporations Classified.
Sec. 2710. Corporations are either public or private. Public cor-
porations are formed or organized for the government of a portion of
the State; all other corporations are private.
Ch. 1. Art. 1.
GENERAL PROVISIONS — ARTICLES
1083
. Historical: Rev. St. 188 7, Sec. 2575.
California Legislation: Similar: Civ.
Code 1872, Sec. 284; same as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Cross Reference: The term cor-
porations" includes associations and
joint stock companies having- or ex-
ercising any of the powers or privi-
leges of corporations: Const. Art. 11,
Sec. 16.
Private Corporations: How Formed.
Sec. 2711. Private corporations may be formed by the voluntary
association of any three or more persons in the manner prescribed
in this title : Provided, One such person must be a bona fide resident
of this State.
Historical: Rev. St. 1887, Sec. 2 576;
amended Laws 1899, 404, Sec. 1;
amended Laws 1907, 540, Sec. 1.
California Legislation: See Civ.
Code 1872, Sec. 285; as amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Purposes for Which Authorized.
Sec. 2712. Private corporations may be formed for any purpose
for which individuals may lawfully associate themselves.
Historical: Rev. St. 1887, Sec. 2577.
California Legislation: Different:
Civ. Code 1872, Sec. 286; same as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Articles of Incorporation.
Sec. 2713. The instrument by which a private corporation
formed is called " Articles of Incorporation."
is
Code 1872, Sec. 289; Deering's Code,
Code, ib.; Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 25 78.
California Legislation: Same: Civ.
Same : Contents.
Sec. 2714. Articles of incorporation must be prepared setting
forth :
1. The name of the corporation.
2. The purpose for which it was formed.
3. The place where its principal business is to be transacted.
4. The term for which it is to exist, not exceeding fifty years.
5. The number of its directors or trustees: Provided, At any
time during the existence of the corporation, the number of directors
may be increased, in corporations for profit, by amendment of the
articles of incorporation by a majority of the stockholders thereof,
to any number not exceeding fifteen, who must be stockholders of
the corporation, which amendment, when adopted, must be filed in
the manner provided for the filing of original articles of incorpora-
tion, and thereupon said amendment shall be and become in force
and effect as if originally provided in the original articles of incor-
poration.
6. The amount of its capital stock and the number of shares into
which it is divided.
7. If there is a capital stock, the amount actually subscribed,
and by whom.
8. Any corporation organized or existing, or hereafter organized
or existing, under the laws of this State, may, instead of electing its
entire board of directors annually, as now required by law, provide
in its articles of incorporation, or by amendment to its articles of
1084
CORPORATIONS
Tit. 4
incorporation, for the election of one-third of the number of its di-
rectors for a term of one year, one-third therefor for a term of two
years, and one-third thereof for a term of three years, and thereafter
at each succeeding annual meeting of the stockholders, one-third there-
of for a term of three years.
Historical: Rev. St. 1887, Sec. 2579
(see 1 Ter. Ses. (1864) 543, Sec. 2):
amended Laws 1905, 161, Sec. 1.
California Legislation: Same, omit-
ting- Subd. 8 and the proviso to Subd.
5: Civ. Code 1872, Sec. 290; as amend-
ed: Deering-'s Code, ib. ; further
amended: Kerr's Code, ib.
Same : For Railroad, Wagon Road, Telephone or Telegraph.
Sec. 2715. The articles of incorporation of any railroad, wagon
road, telephone or telegraph organization must also state :
1. The kind of road, telephone or telegraph intended to be con-
structed.
2. The place from and to which it is intended to be run, and all
the intermediate branches : Provided, That this subdivision shall
not apply to railroad, telegraph or telephone corporations.
3. The estimated length of the road, telephone or telegraph line.
4. Every such corporation may provide in its articles of incor-
poration the number of directors which shall constitute a quorum
for the transaction of business, and that every decision by a majority
of such quorum of the board shall be valid as a corporate act.
5. That all the meetings of the board of directors may be held
at the principal office of the corporation in this State, or at such other
place or places within or without this State for the transaction of
any business of the corporation as the directors may, by resolution
or by the by-laws, provide.
6. That at least one member of the board of directors shall be
a resident of this State, and that no other qualification as to residence
of the directors shall be necessary.
7. That the articles of incorporation of any such corporation
now existing, or that may hereafter be organized under the laws of
this State, may be amended in any respect conformable to the laws
of this State by a vote representing at least a majority of the out-
standing capital stock thereof, at a stockholders' meeting called for
that purpose, as provided by Section 2724 of this Code: Provided,
That the original purposes of the corporation shall not be altered nor
shall the capital stock be diminished to an amount less than fifty per
cent in excess of the indebtedness of the corporation : And, Provided,
further, That the personal or individual liability of the holder of
fully paid capital stock for assessments, or for obligations of the cor-
poration, shall not be changed without the consent of all the stock-
holders.
8. That stockholders shall not be individually liable for the debts
of the corporation.
9. That railroad corporations organized and existing, or hereafter
organized and existing, under the laws of this State, shall be subject
to all the duties imposed by the terms of this section, and shall have
and possess all the powers and privileges conferred by the laws under
which said corporations were organized, or which are contained in
their articles of incorporation.
Ch. 1. Art. 1.
GENERAL PROVISIONS — ARTICLES
1085
Historical: Rev. St. 1887, Sec. 25 80;
amended Laws 1905, 161, Sec. 2. The
proviso to Subd. 2 is inserted on the
authority of Laws 1907, 472, which
provides that "the articles of incor-
poration of railroad, telegraph and
telephone corporations need not
specify the points between which the
works are to be built nor the inter-
mediate branches thereof." The sub-
division is in force as to wagon roads.
California Legislation: Same
through Subd. 3 except "telephone"
omitted throughout, other provisions
different: Civ. Code 1872, Sec. 291;
Deering's Code, ib.; Kerr's Code, ib.
Subscribers to Articles.
Sec. 2716. The articles of incorporation must be subscribed by
three or more persons, one of whom must be a bona fide resident of
this State, and acknowledged by each before some officer authorized
to take and certify acknowledgments of conveyances of real property.
Historical: Rev. St. 1887, Sec. 2581;
amended Laws 1905, 161, Sec. 3.
California Legislation: Similar: Civ.
Code 1872, Sec. 292; as amended
Deering's Code, ib. ; as amended:
Kerr's Code, ib.
Capital Required of Railroads, Etc.
Sec. 2717. Each intended railroad, wagon road or telegraph cor-
poration, before filing articles of incorporation, must have actually
subscribed to its capital stock for each mile of the contemplated work,
the following amount, to-wit:
1. One thousand dollars per mile of railroads;
2. One hundred dollars per mile of telegraph lines ; *
3. Three hundred dollars per mile of wagon roads.
Historical: Rev. St. 1887, Sec. 2 5 82.
California Legislation: Same except
"corporation named in Section 291"
for "railroad, wagon road or tele-
graph corporation" line 1: Civ. Code
1872, Sec. 293; Deering's Code, ib.;
Kerr's Code, ib.
Same: Affidavit of Subscription.
Sec. 2718. Before the Secretary of State or the recorder of the
county issues to any such corporation a certificate of the filing of
articles of incorporation, there must be filed in his office an affidavit
of the president, secretary or treasurer named in the articles, that
the amount of the capital stock thereof required by law has been
actually subscribed.
Historical: Rev. St. 188 7, Sec. 2 58 3.
California Legislation: Similar: Civ.
Code 1872, Sec. 295; Deering's Code,
ib. ; Kerr's Code, ib.
Certificate of Incorporation.
Sec. 2719. Upon filing the articles of incorporation in the office
of the county recorder of the county in which the principal business
of the company is to be transacted, and a copy thereof, certified by
the county recorder, with the Secretary of State, and filing the affi-
davit mentioned in the last section, when such affidavit is required,
the Secretary of State or such county recorder must issue to the
corporation, over his official seal, a certificate that a copy of the
articles, containing the required statement of facts, has been filed
in his office; and thereupon the persons executing the articles and
their associates and successors shall be a body politic and corporate,
by the name stated in the articles, and for the term of fifty years,
unless it is in the articles of incorporation otherwise stated, or by the
law otherwise specially provided.
1086
CORPORATIONS
Tit. 4
Historical: Rev. St. 18 8 7, Sec. 2584.
California Legislation: Similar: Civ.
Code 1872, Sec. 296; similar as amend-
ed but "county clerk" for "county re-
corder": Deering's Code, ib.; further
amended: Kerr's Code, ib.
Cross Reference: Term of existence
of homestead corporations: Sec. 2845.
Record of articles and certificate of
incorporation of mutual co-operative
insurance companies: Sec. 2906.
Copy of Articles as Evidence.
Sec. 2720. A copy of any articles of incorporation filed in pursu-
ance of this title and certified by the Secretary of State, or the recorder
of the proper county, must be received in all courts and other places
as prima facie evidence of the facts therein stated.
Historical: Rev. St. 18 8 7, Sec. 2 585.
See 1 Ter. Ses. (1864) 543, Sec. 3.
California Legislation: Similar: Civ.
Code 1872, Sec. 297; as amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Record of Articles by Secretary of State.
Sec. 2721. All articles of incorporation hereafter filed in the office
of the Secretary of State, and certificates of increase and decrease in
the capital stock thereof, together with certificates of all other changes
in said articles of incorporation provided by law, shall be recorded
by the Secretary of State in books provided therefor, which books
shall be properly indexed : Provided, however, That this section shall
not be construed to require the recording of foreign articles of in-
corporation.
Historical: Laws 190 7, 555, Sec. 1.
Stockholders and Members.
Sec. 2722. The owners of shares in a corporation which has a capi-
tal stock are called stockholders. If a corporation has no capital
stock, the corporators and their successors are called members.
Historical: Rev. St. 1887, Sec. 2 586.
California Legislation : Same: Civ.
Code 1872, Sec. 298; Deering's Code,
ib.; Kerr's Code, ib.
Articles to Be Filed Where Real Property Is Located.
Sec. 2723. No corporation formed under the provisions of this title
shall purchase, locate or hold property in any county of this State
without filing a certified copy of its articles of incorporation in the
office of the county recorder of the county in which such property is
situated, within sixty days after such purchase or location is made.
Any corporation failing to comply with the provisions of this section
must not, while so in default, maintain or defend any action or pro-
ceeding in relation to such property.
Historical: Rev. St. 1887, Sec. 2 587.
Omitting- "and every corporation now
in existence must, within ninety days
after the passage of this title file a
certified copy," etc.. as now obsolete.
California Legislation: No such
provision in the Civ. Code 1872; simi-
lar as amended: Deering's Civ. Code,
Sec. 299; Kerr's Code, ib.
ARTICLE 2.
BY-LAWS.
Section
2724. By-laws to be adopted.
2725. Provision for election of
rectors.
di-
Section
2726. Contents of by-laws.
2727. Book of by-laws: Amendment
of by-laws.
Ch. 1. Art. 2.
GENERAL PROVISIONS — BY-LAWS
1087
By-Laws to Be Adopted.
Sec. 2724. Every corporation formed under this title must, within
one month after filing articles of incorporation, adopt a code of by-laws
for its government not inconsistent with the laws of Congress and of
this State. The assent of stockholders representing a majority of all
the subscribed capital stock, or a majority of the members, if there
be no capital stock, is necessary to adopt by-laws, if they are adopted
at a meeting called for that purpose; and if such meeting be called,
two weeks' notice of the same, by advertisement in some newspaper
published in the county in which the principal place of business of
the corporation is located, or, if none be published therein, then in a
paper published at the capital of the State, must be given by order
of the acting president. The written assent of the holders of two-
thirds of the stock subscribed, or of two-thirds of the members, if
there be no capital stock, shall be effectual to adopt a code of by-laws
without a meeting for that purpose.
Historical: Rev. St. 188 7, Sec. 2588.
California Legislation: See Civ.
Code 1872, Sec. 301; similar as
amended: Deering-'s Code, ib.; Kerr's
Code, ib.
Provision for Election of Directors.
Sec. 2725. The directors of corporations must be elected annually
by the stockholders or members, except that they may be classified
and elected for the terms provided for in the articles of incorporation
of said corporation as permitted by Section 2714, and if no provision
is made in the by-laws for the time of the election of directors, the
election must be held on the first Tuesday in June. Notice of the
meeting of stockholders for the election of directors must be given
by an advertisement thereof for two weeks in some newspaper pub-
lished in the county in which the principal place of business of the
corporation is located, or, if none be published therein, then in a news-
paper published at the capital of the State.
Historical: Rev. St. 1887, Sec. 258 9
(see 1 Ter. Ses. (1864) 543, Sec. 5);
amended Laws 1905, 161, Sec. 4.
California Legislation: See Civ.
Code 1872, Sec. 302; Deering-'s Code,
ib.; as amended: Kerr's Code, ib.
Contents of By-Laws.
Sec. 2726. A corporation may, by its by-laws, where no other pro-
vision is specially made, provide, among other things:
1. The time, place and manner of calling and conducting its
meetings ;
2. The number of stockholders or members constituting a quorum ;
3. The mode of voting by proxy;
4. The time of the annual election of directors, and the mode
and manner of giving notice thereof, in addition to that prescribed
by Section 2724 ;
5. The duties and compensation of officers ;
6. The manner of election, and the term of office, of all officers
other than the directors;
7. The time and place of holding meetings of the board of di-
rectors, either within or without this State ;
8. Suitable penalties for violation of by-laws, not exceeding in
any case one hundred dollars for any one offense.
1088
CORPORATIONS
Tit. 4
Historical: Rev. St. 188 7, Sec. 2 5 90;
amended Laws 1905, 161, Sec. 5.
California Legislation: Similar: Civ.
Code 1872, Sec. 303; as amended:
Deering's Code, ib. ; further amended:
Kerr's Code, ib.
Cross Reference: By-laws of home-
stead corporation: Sec. 2846.
Book of By-Laws: Amendment of By-Laws.
Sec. 2727. All by-laws adopted must be certified by a majority
of the directors and the secretary of the corporation, and copied in
a legible hand in some book kept in the principal office of the cor-
poration in this State, to be known as the "Book of By-Laws," and
no by-laws shall take effect until so copied, and the book shall be
open to the inspection of the public during office hours of each day
except holidays. The by-laws may be repealed or amended, or new
by-laws may be adopted at the annual meeting, or at any meeting
of the stockholders or members called for that purpose by the di-
rectors, by a vote representing two-thirds of the subscribed stock,
or two-thirds of the members when there is no capital stock, or the
power to repeal and amend the by-laws, and adopt new by-laws, may,
by a similar vote at any such meeting, be delegated to the board of
directors. This power, when so delegated, may be revoked by a
similar vote at any regular meeting of the stockholders or members.
Whenever any amendment or new by-law is adopted, it shall be
copied in the book of by-laws with the original by-laws, and im-
mediately after them, and shall not take effect until so copied. If
any by-laws be repealed, the fact of repeal, with the date of the
meeting at which the repeal was enacted, must be stated in the said
book, and until so stated the repeal must not take effect.
Historical: Rev. St. 188 7. Sec. 2591;
amended Laws 1907, 571, Sec. 1.
California Legislation: See Civ.
Code 1872, Sec. 304; similar as
amended: Deering's Code, ib.; fur-
ther amended: Kerr's Code, ib.
Cited: Mapleton Bank v. Standrod
(1902) 8 Ida. 740; 71 Pac. 119.
ARTICLE 3.
DIRECTORS.
Section
2728.
2729.
2730.
2731.
Constitution and powers of
board of directors.
Election of directors.
Same: How conducted.
Organization and officers of
board.
Section
2732.
2733.
Prohibitions respecting divi-
dends and capital.
Removal of directors.
Constitution and Powers of Board of Directors.
Sec. 2728. The corporate powers, business and property of all
corporations formed under this title, must be exercised, conducted
and controlled by a board of not less than three nor more than
fifteen directors, to be elected from among the holders of the stock,
or when there is no capital stock, then from among the members
of such corporation. At least one of the directors must, in all cases,
be a citizen and actual bona fide resident within this State : Provided,
That the articles of incorporation or amended articles of incorpora-
tion of any railroad, wagon road, telephone or telegraph organization
may fix the numbers of members who shall constitute a quorum of
the board of directors, who shall have all the powers of the full board.
Directors of corporations for profit must be holders of the stock
Ch. 1. Art. 3.
GENERAL PROVISIONS — DIRECTORS
1089
thereof in an amount to be fixed by the by-laws. Directors of all
other corporations must be members thereof. Unless a majority is
present and acting, no business performed, or act done, by the board
of directors is valid as against the corporation: Provided, That a
quorum of the board of directors of any railroad, wagon road, tele-
phone or telegraph corporation, as fixed by its articles of incorpora-
tion, may have and exercise all the powers of the board of directors.
Whenever a vacancy occurs in the board of directors, unless other-
wise provided by the by-laws, such vacancy must be filled by the board
or by a quorum thereof.
The board of directors of any railroad, wagon road, telephone or
telegraph organization may appoint an executive committee of its
members equal in number to a quorum of the board, and such com-
mittee shall have all the powers, rights and privileges of the board
of directors, and may meet at such times and places as the board
of directors may by resolution or by the by-laws prescribe, and the
acts of such committee shall be in all matters be valid as against
the corporation.
Historical: Rev. St. 188 7, Sec. 2 592;
amended Laws 1905, 161, Sec. 6.
California Legislation: See Civ.
Code 1872, Sec. 305; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Election of Directors.
Sec. 2729. At the first meeting of the stockholders held after the
organization of the corporation, or at such subsequent meeting as
may be called and held for such purpose, directors must be elected
to hold their offices for one year and until their successors are elected
and qualified; except that they may be classified and elected for the
terms provided for in the articles of incorporation, or, if no such
provision is made in the articles of incorporation of such corpora-
tions, then the board of directors shall be elected for one year.
Historical: Rev. St. 1887, Sec. 2593.
amended Laws 1905, 161, Sec. 7.
California Legislation: See Civ.
Code 1872. Sec. 306; as amended:
Deering's Code, ib.; repealed 1889.
Same : How Conducted.
Sec. 2730. All elections of directors must be by ballot, and the
vote of the stockholders representing a majority of the subscribed
capital stock, or of a majority of the members, if there be no capital
stock, is necessary to a choice. If there be capital stock in the cor-
poration, each stockholder shall have the right to vote in person
or by proxy for the number of shares of stock owned by him for as
many persons as there are directors or managers to be elected, or to
cumulate said shares, and give one candidate as many votes as the
number of directors multiplied by the number of his shares of stock
shall equal, or to distribute them on the same principle among as
many candidates as he shall think fit; and such directors shall not
be elected in any other manner.
Historical: Rev. St. 188 7, Sec. 2 594
(see 1 Ter. Ses. (1864) 543, Sec. 5);
amended Laws 1907, 540, Sec. 2.
California Legislation: Similar
through first paragraph, rest omitted:
Civ. Code 1872, Sec. 307; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Cross Reference: Stockholders may
vote in person or by proxy for the
number of shares owned by them for
1090
CORPORATIONS
Tit. 4
as many persons as there are direct-
ors or managers to be elected, or may
cumulate the shares in favor of one
or more candidates: Const. Art. 11
Sec. 4.
Organization and Officers of Board.
Sec. 2731. Immediately after their election, the directors must
organize by the election of a president, who must be one of their
number, a secretary, and a treasurer. They must perform the duties
enjoined upon them by law and by the by-laws of the corporation.
A majority of the directors, or in the case of any railroad, wagon
road, telephone or telegraph organization, a quorum of the board
of directors, as fixed by the articles of incorporation, is a sufficient
number to form a board for the transaction of business, and every
decision of such a quorum or of a majority of the directors forming
such board, made when duly assembled, is a valid corporate act, as
though made by a majority of all of the directors of the corporation.
Historical: Rev. St. 18 87, Sec. 2595;
amended Laws 1905, 161, Sec. 8.
California Legislation: Similar: Civ.
Code 1872, Sec. 30 8; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Sparks v. Lower Payette
Ditch Co. (1892) 3 Ida. 306; 29 Pac.
134.
Prohibitions Respecting Dividends and Capital.
Sec. 2732. The directors of corporations must not make dividends,
except from the surplus profits arising from the business thereof;
nor must they divide, withdraw, or pay to the stockholders, or any
of them, any part of the capital stock; nor must they reduce or in-
crease the capital stock, except as in this title specially provided.
For a violation of the provisions of this section, the directors, under
whose administration the same may have occurred (except those
who may have caused their dissent therefrom to be entered at large
in the minutes of the directors at the time, or, when not present,
when the same did occur) are, in their individual and private ca-
pacity, jointly and severally liable to the corporation, and to the
creditors thereof, in the event of dissolution, to the full amount of
the capital stock so divided, withdrawn, paid out or reduced. There
may, however, be a division and distribution of the capital stock of
any corporation which remains after the payment of all its debts,
upon its dissolution or the expiration of its term of existence.
Historical: Rev. St. 1887, Sec. 2596.
See 1 Ter. Ses. (1864) 543, Sec. 13.
California Legislation: Similar: Civ.
Code 1872, Sec. 309; Deering's Code,
ib.; similar with additional provisions
as amended: Kerr's Code, ib.
Removal of Directors.
Sec. 2733. No director can be removed from office unless by a
vote of the stockholders holding two-thirds of the capital stock, or
of two-thirds of the members, where there is no capital stock, at a
general meeting held after previous notice of the time and place,
and of the intention to propose such removal. Meetings of stock-
holders or members for this purpose may be called by the president,
or by a majority of the directors, or by members or stockholders
holding at least one-half of the votes. Such call must be in writing
and addressed to the secretary, who must thereupon give notice of
the time, place and object of the meeting, and by whose order it is
called. If the secretary refuses to give the notice, or if there is
Ch. 1. Art. 4. GENERAL PROVISIONS — MEETINGS AND ELECTIONS 1091
none, the call may be addressed directly to the members or stock-
holders, and be served as a notice, in which case it must specify the
time and place of meeting. The notice must be given in the manner
provided in Section 2724 of this title, unless other express provision
has been made therefor in the by-laws. In case of removal, the va-
cancy may be filled by election at the same meeting.
Historical: Rev. St. 1887, Sec. 2597.
California Legislation: Similar: Civ.
Code 1872, Sec. 310; Deering's Code,
ib. ; as amended: Kerr's Code; ib.
ARTICLE 4.
MEETINGS AND ELECTIONS.
Section
2740. Meetings by consent.
2741. Same: Business wfrich may be
transacted.
2742. Place of holding meetings.
2743. Manner of calling meetings.
2744. Change of place of business.
Section
2734. Justice of the peace may call
meeting.
2735. Quorum, proxies and adjourn-
ments.
2736. Representation of stock of
minors and estates.
2737. Adjourned elections.
2738. Judicial review of elections.
2739. Liability for false certificates
and reports.
Justice of the Peace May Call Meeting.
Sec. 2734. Whenever from any cause, there is no person authorized
to call or to preside at a meeting of a corporation, any justice of
the peace of the county where such corporation is established, may,
on written application of three or more of the stockholders, or of
the members thereof, issue a warrant to one of the stockholders or
members, directing him to call a meeting of the corporation, by giv-
ing the notice required, and the justice may in the same warrant
direct such person to preside at such meeting until a secretary is
chosen and qualified, if there is no officer present legally authorized
to preside thereat.
"other" inserted before "officer" line
9; Civ. Code 1872, Sec. 311; Deering's
Code, ib.; additional provision as
amended: Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 25 98.
See 6 Ter. Ses. (1871) 51, Sec. 1.
California Legislation: Same except
"clerk" for "secretary," line 8, and
Quorum, Proxies and Adjournments.
Sec. 2735. At all elections or votes had for any purpose, there
must be a majority of the subscribed capital stock, or of the mem-
bers, when there is no capital stock, represented either in person,
or by proxy, in writing. Every person acting therein in person,
or by proxy, or by representative, must be a member thereof, or a
bona fide stockholder, having stock in his own name on the stock
books of the corporation, at least ten days prior to the election. Any
vote or election had otherwise than in accordance with the provisions
of this title, is voidable at the instance of absent stockholders or
members, and may be set aside by petition to the District Court of
the county where the same was held or to the Judge of said court
at his chambers. Any regular or called meeting of the stockholders
or members may adjourn from day to day, or from time to time,
if from any reason there is not present a majority of the subscribed
stock or members, or no election or majority vote had. Such ad-
1092
CORPORATIONS
Tit. 4
journment and the reasons thereof shall be recorded in the journal
of proceedings of the board of directors.
Historical: Rev. St. 1887, Sec. 2 599.
California Legislation: Similar: Civ.
Code 1872, Sec. 312; as amended:
Deering-'s Code, ib.; further amended:
Kerr's Code, ib.
Representation of Stock of Minors and Estates.
Sec. 2736 The shares of stock of an estate of a minor or insane
person may be represented by his guardian, and of a deceased person
by his executor or administrator.
Historical: Rev. St. 188 7, Sec. 2 600.
See 1 Ter. Ses. (1864) 543, Sec. 11.
California Legislation: Similar: Civ.
Code 1872, Sec. 313; same as amend-
ed: Deering's Code, ib. ; Kerr's Code,
ib.
Adjourned Elections.
Sec. 2737. If from any cause an election does not take place on
the day appointed in the by-laws, it may be held on any day there-
after, as may be provided for in such by-laws, or to which such
election may be adjourned or ordered by the directors. If an election
has not been held at the appointed time, and no adjourned or other
meeting for the purpose has been ordered, a meeting may be called
by the stockholders, as provided in Section 2733 of this title.
Historical: Rev. St. 188 7, Sec. 2 601.
See 1 Ter. Ses. (1864) 543. Sec. 6.
California Legislation: Similar: Civ.
Code 1872, Sec. 314; Deering's Code,
ib.; as amended; Kerr's Code, ib.
Judicial Review of Elections.
Sec. 2738. Upon the application of any person, or body corporate,
aggrieved by any election held by any corporate body, or any pro-
ceedings relating to any such election, the District Judge of the
district in which such election is held, must proceed forthwith sum-
marily to hear the allegations and proofs of the parties, or otherwise
inquire into the matters of complaint, and thereupon confirm the
election, order a new one, or direct such other relief in the premises
as accords with right and justice. Before the proceedings are had
under this section, five days' notice thereof must be given to the
adverse party, or to those to be affected thereby, if found within
the State.
Historical: Rev. St. 188 7, Sec. 2 6 02.
California Legislation: Similar: Civ.
Code 1872, Sec. 315; as amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Liability for False Certificates and Reports.
Sec. 2739. Any officer of a corporation, who wilfully gives a cer-
tificate, or willfully makes an official report, public notice, or entry
in any of the records or books of the corporation, concerning the
corporation or its business, which is false in any material representa-
tion, is liable for all the damages resulting therefrom to any person
injured thereby; and if two or more officers unite or participate in
the commission of any of the acts herein designated, they are jointly
and severally so liable.
Historical: Rev. St. 1887, Sec. 2603.
California Legislation: Similar: Civ.
Code 1872, Sec. 316; as amended:
Deering's Code, ib. ; Kerr's Code, ib.
Cross Reference: Making^ a false
report a misdemeanor: Sec. 7121.
Ch. 1. Art. 4. GENERAL PROVISIONS — MEETINGS AND ELECTIONS 1093
Meetings by Consent.
Sec. 2740. When all the stockholders or members of a corporation
are present at any meeting, however called or notified, and sign a
written consent thereto on the record of such meeting, the doings
of such meeting are as valid as if had at a meeting legally called
and notified.
Historical: Rev. St. 18 87, Sec. 2 604.
California Legislation: Same: Civ.
Code 1872, Sec. 317; Deering's Code,
ib.; Kerr's Code, ib.
Same : Business Which May Be Transacted.
Sec. 2741. The stockholders or members of such corporation, when
so assembled, may elect officers to fill all vacancies then existing, and
may act upon such other business as might lawfully be transacted
at regular meetings of the corporation.
Historical: Rev. St. 18 87, Sec. 2 605.
California Legislation : Same: Civ.
Code 1872, Sec. 318; Deering's Code,
ib.; Kerr's Code, ib.
Place of Holding Meetings.
Sec. 2742. All meetings of the stockholders and members of the
corporation shall be held at the office of the corporation at its princi-
pal place of business within this State. Meetings of the board of
directors of the corporation, or of its executive committee, may be
held at the principal place of business of the corporation in this State":
Provided, That when so provided for in the articles of incorporation,
or amended articles of incorporation, or by the by-laws, or by reso-
lution of the board of directors, meetings of the board of directors
and of the executive committee may be held for the transaction of
any business of the corporation, at any place outside of this State,
or elsewhere within this State, than at its principal place of business.
Historical: Rev. St. 1887, Sec. 2606;
amended Laws 1905, 161, Sec. 9.
California Legislation: See Civ.
Code 1872, Sec. 319; Deering's Code,
ib.; Kerr's Code, ib.
Manner of Calling Meetings.
Sec. 2743. When no provision is made in the by-laws for regular
meetings of the directors, and the mode of calling special meetings,
all meetings must be called by special notice in writing, to be given
by the secretary to each director, if within the State, on the order
of the president, or if there be none, on the order of two directors.
Historical: Rev. St. 1887, Sec. 2607.
California Legislation: Similar: Civ.
Code 1872, Sec. 320; Deering's Code,
ib.; Kerr's Code, ib.
Change of Place of Business.
Sec. 2744. Every corporation that has been or may be created
under the general laws of this State, may change its principal place
of business from one place to another within this State. Before
such change is made, the consent, in writing, of the holders of two-
thirds of the capital stock, or of two-thirds of the members, when
there is no capital stock, must be obtained and filed, notice of such
intended removal or change must be published, at least once a week,
for three successive weeks, as provided in Section 2724, giving the
name of the county where it is situated, and that to which it is in-
tended to remove.
1094
CORPORATIONS
Tit. 4
Historical: Rev. St. 1887, Sec. 2 608.
California Legislation: No such
provision in Civ. Code 1872; similar:
Deering-'s Code, Sec. 321; as amended:
Kerr's Code, Sec. 321a.
ARTICLE 5.
STOCK AND STOCKHOLDERS.
Section
2 745. Personal liability of stockhold-
ers.
2746. Issuance of certificates.
274 7. Transfer of shares.
Section
2 748. Same: By married woman.
2 749. Same: By non-resident stock-
holders.
Xote: Increase or diminution of capital stock: Sec. 2773.
Personal Liability of Stockholders.
Sec. 2745. Each stockholder of a corporation is individually and
personally liable for its debts and liabilities to the full amount unpaid
upon the par or face value of the stock or shares owned by him. Any
creditor of the corporation may institute actions against any of its
stockholders jointly or severally, and in such action the court must
determine the amount unpaid upon the stock held or owned by each
defendant, and a several judgment must be entered against him for
a sum not exceeding such amount. Nothing in this title must be
construed to render any stockholder individually or personally liable,
as such stockholder, for debts or liabilities of the corporation, either
at the suit of a creditor or for assessments or calls, to an amount
exceeding the balance unpaid upon his stock, or the difference be-
tween the amount that has been actually paid upon his stock and
the par or face value thereof, except when so liable on the ground of
fraud or misrepresentation, or concealment, or for neglect or miscon-
duct as an officer, agent, stockholder or member of the corporation. No
corporation shall issue any stock as paid up, in whole or in part, or
credit any amount, assessment or call as paid upon any of its stock,
except for money, property, labor or services actually received by
the corporation, or actually paid upon the indebtedness of the cor-
poration as provided in this section, to the full value of the amount
credited upon such stock. If any stockholder of any insolvent cor-
poration pays the full amount unpaid upon the stock held by him,
as above denned, upon the overdue debts of the corporation, incurred
while he was such stockholder, he is relieved from any further per-
sonal liability upon his stock, but not from any liability for fraud,
neglect or misconduct. The liability of each stockholder is determined
by the amount of stock or shares owned by him at the time the debt
or liability was incurred by the corporation; and such liability is
not released or discharged by any subsequent transfer of stock.
When such liability does not arise upon contract it shall be deemed
to be incurred when judgment thereof is obtained against the cor-
poration. The term stockholder, as used in this section, applies not
only to such persons as appear by the books of the corporation to be
such, but also to every equitable owner of stock, although the same
appears on the books in the name of another; and, also, to every
person who has advanced the installments or purchase money, or
subscribed for stock, in the name of a minor, so long as the latter
remains a minor ; and, also, to every guardian of trustee who volun-
Ch. 1. Art. 5.
GENERAL PROVISIONS — STOCK
1095
tarily invests any trust funds in the stock. Trust funds in the hands
of a guardian or trustee are not liable under the provisions of this
section, by reason of any such investment; nor is the person for
whose benefit such investment is made responsible in respect to the
stock until he becomes competent and able to control the same; but
the responsibility of the guardian or trustee making the investment
continues until that period, or while the investment continues. Stock
held as collateral security, or by a trustee who is not the beneficial
owner, or in any other reresentative capacity without a beneficial
interest, does not make the holder thereof a stockholder within the
meaning of this section, except in the cases above mentioned, so as to
charge him with the debts or liabilities of the corporation, but the
pledgor, or person, or estate represented is to be deemed the stock-
holder, as respects such liability. Members of corporations not or-
ganized for profit and having no capital stock are not individually
or personally liable for its debts or liabilities, unless such liability
is imposed by the by-laws of the corporation, and then only to the
extent so imposed; any such liability may be enforced, to the extent
imposed by the by-laws, by joint or several actions against members,
as before provided. The liability of each stockholder of a corpora-
tion not formed under the laws of this State, but doing business
within the State, is the same as the liability of stockholders of cor-
porations organized under the laws of this State.
All corporations doing business in this State, whether organized
under the laws of this State or some other State, desiring to avail
themselves of the provisions of this section, shall cause to be written
or printed after the corporate name, on its stock certificates, letter
and bill heads, and all its official documents the word "limited" ; also,
after the corporate signature to all official or public documents the
word "limited."
Historical: Rev. St. 1887, Sec. 26 09
(see 1 Ter. Ses. (1864) 543, See. 16);
amended Laws 1890-91, 172, Sees. 1,
2; re-enacted Laws 1899, 115, Sees.
1, 2.
California Legislation: Same: Civ.
Code 1872, Sec. 322; Deering's Code,
ib.; repealed, 1905.
Cross Reference: Counties and mu-
nicipal corporations not to become
stockholders in corporations: Const.
Art. 12, Sec. 4. Stockholders not in-
dividually liable over amount of stock
owned by them: Const. Art. 11, Sec.
17. Liability of stockholders in banks:
Sec. 2979.
Application to Existing Corpora-
tions— Constitutionality: The liability
of a shareholder in a corporation un-
der this section and the following-
sections, which provide for an assess-
ment against the stock of a corpora-
tion, is substantially the same as the
liability imposed upon shareholders
by the corporation act of 1875 (Rev.
Laws 1874-75, p. 618) except that by
this section, and the sections provid-
ing for an assessment, an additional
remedy to the remedy by action au-
thorized by the former act, is given.
Consequently these provisions of the
Revised Statutes are not, as applied
to pre-existing corporations, an un-
constitutional impairment of the con-
tract rights of the shareholders in
such corporations. Sparks v. Lower
Payette Ditch Co. (1892) 3 Ida. 306;
29 Pac. 134.
Same — Insolvent Corporations:
Stockholders in a corporation are not
liable to creditors under this section
as amended, where the corporation
became insolvent and went out of
business prior to the enactment of the
amendment, but their liability is gov-
erned by the terms of the original
section prior to the amendment. Aul-
bach v. Dahler (1896) 4 Ida. 654; 43
Pac. 322.
Liability to Assessment: This sec-
tion refers to the personal liability of
stockholders, and not to the liability
of stock to assessments made neces-
sary, not only to carry out the pur-
poses for which the corporation was
created, but to preserve its property.
Hall v. Eagle Rock & Willow Creek
Water Co. (18 97) 5 Ida. 551; 51 Pac.
110.
1096
CORPORATIONS
Tit. 4
Issuance of Certificates.
Sec. 2746. All corporations for profit must issue certificates for
stock when fully paid up, signed by the president and secretary, and
may provide, in their by-laws, for issuing certificates prior to the
full payment, under such restrictions and for such purposes as their
by-laws may provide.
Historical: Rev. St. 1887. Sec. 2 610.
California Legislation: Same: Civ.
Code 1872, Sec. 323; Deering's Code,
ib.; similar as amended: Kerr's Code,
ib.
Cross Reference: Corporations pro-
hibited from issuing- stocks or bonds
except for labor done, services per-
formed or money or property actually
received: Const. Art. 11, Sec. 9.
Transfer of Shares.
Sec. 2747. Whenever the capital stock of any corporation is di-
vided into shares, and certificates therefor are issued, such shares
of stock are personal property, and may be transferred by indorse-
ment by the signature of the proprietor, or his attorney, or legal
representative, and delivery of the certificate; but such transfer is
not valid except between the parties thereto, until the same is so
entered upon the books of the corporation as to show the name of
the parties by and to whom transferred, the number and designation
of the shares, and the date of the entry. Corporations may, by
by-laws, provide that no transfer of their stock shall be made upon
their books until all indebtedness to the corporation of the person
in whose name the stock stands, whether for assessments, calls or
otherwise, is paid.
Historical: Rev. St. 188 7, Sec. 2611.
California Legislation: Similar
through first sentence: Civ. Code
1872, Sec. 324; Deering's Code, ib.;
as amended: Kerr's Code, ib.
Shares Are Personalty: Certificates
of shares of stock in an incorporated
canal or ditch company are personal
property. Watson v. Molden (1905)
10 Ida. 570; 79 Pac. 503.
Transfer — Necessity of Registration:
The liability of stockholders of a cor-
poration to creditors imposed by Rev.
St. Sec. 2 609, is not affected by sale
of the stock, unless the transfer is en-
tered on the books of the corporation
as prescribed by this section. Aulbach
v. Dahler (1896) 4 Ida. 654; 43 Pac.
322.
Same : By Married Woman.
Sec. 2748. Shares of stock in corporations, held or owned by a
married woman, may be transferred by her, her agent or attorney,
without the signature of her husband, in the same manner as if such
married woman were a feme sole. All dividends payable upon any
shares of stock of a corporation held by a married woman, may be
paid to such married woman, her agent or attorney, in the same
manner as if she were unmarried, and it is not necessary for her
husband to join in a receipt therefor ; and any proxy or power given
by a married woman touching any shares of stock of any corporation,
owned by her, is valid and binding without the signature of her
husband, the same as if she were unmarried.
Historical: Rev. St. 188 7, Sec. 2612.
California Legislation: Same: Civ.
Code 1872, Sec. 325; Deering's Code,
ib.; similar as amended: Kerr's Code,
ib.
Cited: Bassett v. Beam (1894) 4
Ida. 106; 36 Pac. 501.
Same: By Non-Resident Stockholders.
Sec. 2749. When shares of stock in a corporation are owned by
Ch. 1. Art. 6.
GENERAL PROVISIONS — ASSESSMENTS
1097
a non-resident of the State, the president, secretary or directors of
the corporation, before entering any transfer of the shares on its
books, or issuing certificate therefor to the transferee, may require
satisfactory evidence that the non-resident owner was alive at the
date of the transfer, and if such satisfactory evidence be not fur-
nished, may require a bond of indemnity, with two sureties, satis-
factory to the officers of the corporation, or approved by the Judge
of the District Court of the district in which the principal office of
the corporation is situate, conditioned to protect the corporation
against any liability to the heirs or legal representatives of the owner
of the shares, in case of his or her death before the transfer; and
if such evidence or bond be not furnished when required, as herein
provided, neither the corporation nor any officer thereof is liable
for refusing to enter the transfer on the books of the corporation.
Historical: Rev. St. 1887, Sec. 2 613.
California Legislation: Similar: Civ.
Code 1872, Sec. 326; similar as
amended: Deering's Code, ib.; as fur-
ther amended: Kerr's Code, ib.
ARTICLE 6.
ASSESSMENTS ON STOCK.
Section
Sectio
2750.
Directors may levy assess-
2759.
ments.
2760.
2751.
Limitation on assessments.
2761.
2752.
Same: Previous uncollected
2762.
assessments.
2763.
2753.
Order levying- assessment.
2764.
2754.
Notice of assessment.
2765.
2755.
Same: Publication.
2766.
2756.
Delinquent notice.
2767.
2757.
Same: Additional require-
ments.
2768.
2758.
Same: Publication.
>n
Delinquent stock may be sold.
Conduct of sale.
Purchaser.
Corporation may purchase.
Same: Effect of purchase.
Postponement of sale.
Defective proceeding's.
Actions to recover stock sold.
Proof of publication.
Collection of assessment by
action.
Directors May Levy Assessments.
Sec. 2750. The directors of any corporation formed or existing
under the laws of this State, after one-fourth of its capital stock
has been subscribed, may, for the purpose of paying expenses, con-
ducting business or paying debts, levy and collect assessments upon
the subscribed capital stock thereof, in the manner and form, and
to the extent, herein provided.
Historical: Rev. St. 1887, Sec. 2614.
California Legislation: Similar: Civ.
Code 1872, Sec. 331; same as amend-
ed except "provided herein" for
"herein provided", last words: Deer-
ing's Code, ib. ; Kerr's Code, ib.
Cited: Sparks v. Lower Payette
Ditch Co. (1892) 3 Ida. 306; 29 Pac.
134.
Unlawful Assessment — Action: In
an action against a corporation for
Limitation on Assessments.
Sec. 2751. No one assessment must exceed ten per cent of the
amount of the capital stock named in the articles of incorporation,
except in the cases in this section otherwise provided as follows :
the wrongful selling of stock of a
shareholder, the burden is on the cor-
poration to show a compliance with
this section before attempting to as-
sess and sell the plaintiff's stock, by
showing that one-fourth of its stock
had been subscribed, and the com-
plaint in such an action is not de-
murrable for failure to allege that
one-fourth of the stock had not been
subscribed. Corcoran v. Sonora etc.
Co. (1902) 8 Ida. 651; 71 Pac. 127.
1098
CORPORATIONS
Tit. 4
1. If the whole capital of a corporation has not been paid up,
and the corporation is unable to meet its liabilities or to satisfy the
claims of its creditors, the assessment may be for the full amount
unpaid upon the capital stock; or if a less amount is sufficient, then
it may be for such a percentage as will raise that amount ;
2. The directors of railroad corporations may assess the capital
stock in installments of not more than ten per centum per month,
unless in the articles of incorporation it is otherwise provided:
3. The directors of fire insurance corporations may assess such
a percentage of the capital stock as they deem proper.
Historical: Rev. St. 18 8 7, Sec. 2 615.
California Legislation: Similar: Civ.
Code 1872, Sec. 332; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Sparks v. Lower Payette
Ditch Co. (1892) 3 Ida. 306; 29 Pac.
134.
Same: Previous Uncollected Assessment.
Sec. 2752. No assessment must be levied while any portion of a
previous one remains unpaid, unless:
1. The power of the corporation has been exercised in accordance
with the provisions of this title for the purpose of collecting such
previous assessment;
2. The collection of the previous assessment has been en-
joined; or,
3. The assessment falls within the provisions of one of the sub-
divisions of the last preceding section.
Historical: Rev. St. 18 87, Sec. 2616.
California Legislation: Similar: Civ.
Code 1872, Sec. 333; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Sparks v. Lower Payette
Ditch Co. (1892) 3 Ida. 306; 29 Pac.
134.
Order Levying Assessment.
Sec. 2753. The order levying an assessment must specify the
amount thereof, when, to whom and where payable ; fix the day subse-
quent to the full term of publication of the assessment notice, on
which the unpaid assessments will be delinquent, not less than thirty
or more than sixty days from the time of making the order levying
the assessment; and a day for the sale of delinquent stock, not less
than fifteen nor more than sixty days from the day the stock is de-
clared delinquent.
Historical: Rev. St. 1887, Sec. 2617.
California Legislation: Similar: Civ.
Code 1872, Sec. 334; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Corcoran v. Sonora etc. Co.
(1902) 8 Ida. 651; 71 Pac. 127.
Notice of Assessment.
Sec. 2754. Upon the making of the order the secretary must cause
to be published a notice thereof, in the following form :
(Name of corporation in full. Location of principal place of
business.) Notice is hereby given that at a meeting of the directors
held on the (date) an assessment of (amount) per share was levied
upon the capital stock of the corporation, payable (when, to whom,
and where) . Any stock upon which this assessment remains unpaid on
the (day fixed) will be delinquent, and advertised for sale at public
auction, and unless payment is made before, will be sold on the (day
Ch. 1. Art. 6.
GENERAL PROVISIONS — ASSESSMENTS
1099
appointed) to pay the delinquent assessment, together with costs
of advertising and expenses of sale. (Signature of secretary with lo-
cation of office.)
Historical: Rev. St. 1887, Sec. 2618.
California Legislation: Same: Civ.
Same : Publication.
Code 1872, Sec. 335; Deering's Code,
ib.; Kerr's Code, ib.
Sec. 2755. The notice must be published once a week, for four
successive weeks, in some newspaper of general circulation published
at the place designated in the articles of incorporation as the principal
place of business, and also in some newspaper published in the
county in which the works of the corporation are situated, if situated
in a different county and a paper be published therein. If there be
no newspaper published in the place designated as the principal place
of business of the corporation, then the publication must be made in
some other newspaper of the county, if there be one, and if there be
none, then in a newspaper published at the capital of the State.
Historical: Rev. St. 1887, Sec. 2 619.
California Legislation: Similar: Civ.
Code 18 72, Sec. 3 36; different as
amended
Code, ib.
Deering's Code, ib.; Kerr's
Delinquent Notice.
Sec. 2756. If any portion of the assessment mentioned in the no-
tice remains unpaid on the day specified therein for declaring the
stock delinquent, the secretary must, unless otherwise ordered by the
board of directors, cause to be published in the same papers in which
the notice heretofore provided for was published, a notice substan-
tially in the following form:
(Name in full. Location of principal place of business.)
Notice: — There is delinquent upon the following described stock
on account of assessment levied on the (date), (and assessments pre-
vious thereto, if any), the several amounts set opposite the names
of the respective shareholders as follows: (names, number of cer-
tificate, number of shares, amount.) And in accordance with law, so
many shares of each parcel of such stock as may be necessary, will
be sold at the (particular place), on the (date), at (the hour) of such
day, to pay delinquent assessments thereon, together with the cost of
advertising and expenses of the sale. (Name of secretary, with loca-
tion of office).
Code 1872, Sec. 337; Deering's Code,
ib.; Kerr's Code, ib.
Historical: Rev. St. 18 87, See. 26 20.
California Legislation: Similar: Civ.
Same: Additional Requirements.
Sec. 2757. The notice must specify every certificate of stock, the
number of shares it represents and the amount due thereon, except
when certificates may not have been issued to parties entitled thereto,
in which case the number of shares and amount due thereon must be
stated.
Historical: Rev. St. 1887, Sec. 2621.
California Legislation: Same except
"together with the fact that certifi-
cates for such shares have not been
issued" inserted after "thereon", line
4; Civ. Code 1872, Sec. 338; Deering's
Code, ib.; Kerr's Code, ib.
1100
CORPORATIONS
Tit. 4
Same : Publication.
Sec. 2758. The notice, when published in a daily paper, must be
published for ten days, excluding Sundays and legal holidays, previ-
ous to the day of sale. When published in a weekly paper, it must be
published in each issue for two weeks previous to the day of sale.
The first publication of all delinquent sales must be at least fifteen
days prior to the day of sale.
Historical: Rev. St. 1887, Sec. 2622.
California Legislation: Same except
'legal", line 2, omitted: Civ. Code
1872, Sec. 339; Deering's Code, ib.
Kerr's Code, ib.
Delinquent Stock May Be Sold.
Sec. 2759. By the publication of the notice the corporation ac-
quires jurisdiction to sell and convey a perfect title to all of the
stock described in the notice of sale, upon which any portion of the
assessment or costs of advertising remains unpaid at the hour ap-
pointed for the sale, but must sell no more of such stock than is nec-
essary to pay the assessment due and costs of advertising and sale.
Historical: Rev. St. 188 7, Sec. 2 62 3.
California Legislation: Same except
"advertising and", last line, omitted:
Civ. Code 1872, Sec. 340; Deering's
Code, ib.; Kerr's Code, ib.
Cross Reference: Sale of stock of
homestead corporation for delinquen-
cy: Sec. 2847.
Conduct of Sale.
Sec. 2760. On the day, at the place, and at the time, appointed in
the notice of sale, the secretary must, unless otherwise ordered by the
board of directors, sell, or cause to be sold at public auction to the
highest bidder, for cash, so many shares of each parcel of the de-
scribed stock as may be necessary to pay the assessment and charges
thereon, according to the terms of sale; if payment is made before
the time fixed for sale, the party paying is only required to pay the
actual cost of advertising in addition to the assessment.
Historical: Rev. St. 18
California Legislation :
7, Sec. 2624. Code 1872, Sec. 341; Deering's Code,
Same: Civ. ib.; Kerr's Code, ib.
Purchaser.
Sec. 2761. The person offering at such sale to pay the assessment
and costs for the smallest number of shares or fraction of a share, is
the highest bidder, and the stock purchased must be transferred to
him on the stock books of the corporation on payment of the assess-
ment and costs.
Historical: Rev. St. 18
California Legislation:
7, Sec. 2625.
Same: Civ.
Code, 1872, Sec. 342; Deering's Code,
ib. ; Kerr's Code, ib.
Corporation May Purchase.
Sec. 2762. If at the sale of stock, no bidder offers the amount of
the assessment and costs and charges due, the same may be bid in
and purchased by the corporation, through the secretary, president
or any director thereof, at the amount of the assessment, charges and
costs due; and said amount must be credited as paid in full on the
books of the corporation, and entry of the transfer of the stock to
the corporation made. While the stock remains the property of the
corporation it is not assessable, nor must any dividend be declared
Ch. 1. Art. 6.
GENERAL PROVISIONS — ASSESSMENTS
1101
thereon, but all assessments and dividends must be apportioned upon
the stock held by the stockholders of the corporation.
Historical: Rev. St. 15
California Legislation:
37, Sec. 2626. Code 1872, Sec. 343; Deering's Code,
Similar: Civ. ib.; Kerr's Code, ib.
Same: Effect of Purchase.
Sec. 2763. All purchases of its own stock made by any corpora-
tion, vest the legal title to the same in the corporation ; and the stock
so purchased is held subject to the control of the stockholders, who
may make such disposition of the same as they deem fit, in accordance
with the by-laws, on vote of a majority of all the remaining shares.
Whenever any portion of the capital stock of a corporation is held
by the corporation, it shall not be voted upon, but a majority of the
remaining shares is a majority of the stock for all purposes of elec-
tion or voting.
Historical: Rev. St. 188 7, Sec. 2 62 7.
California Legislation: Similar: Civ.
Code 1872, Sec. 344; Deering's Code,
ib.; Kerr's Code, ib.
Postponement of Sale.
Sec. 2764. The dates fixed in any notice of assessment or notice of
delinquent sale, published as aforesaid, may be extended from time
to time for not more than thirty days, by order of the directors, en-
tered on the records of the corporation ; but no such order is effectual
unless notice of such extension or postponement is appended to, and
published with, the notice to which the order relates.
Historical: Rev. St. 188 7, Sec. 2628.
California Legislation: Similar: Civ.
Code 1872, Sec. 345; Deering's Code,
ib. ; Kerr's Code, ib.
Defective Proceedings.
Sec. 2765. No assessment is invalidated by a failure to make
publication of the notices, nor by the non-performance of any act re-
quired in order to enforce the payment of the same; but in case of
any substantial error or omission in the course of proceedings for
collection, all previous proceedings except the levying of assessment,
are void, and publication must begin anew.
Historical: Rev. St. 18 87, Sec. 262 9.
California Legislation: Similar: Civ.
Code 1872, Sec. 346; Deering's Code,
ib.; Kerr's Code, ib.
Actions to Recover Stock Sold.
Sec. 2766. No action must be sustained to recover stock sold for
delinquent assessments, upon the ground of irregularity, in the as-
sessment, irregularity or defect in the notice of sale or in its publi-
cation, or defect or irregularity in the sale, unless the party seeking
to maintain such action first pays or tenders to the corporation, or
the party holding the stock sold, the sum for which the same was
sold, together with all subsequent assessments which may have been
paid or may be due thereon, and interest on such sums from the time
they were paid ; and no such action must be sustained unless the same
is commenced within six months after such sale was made.
Historical: Rev. St. 1887, Sec. 2630.
California Legislation: Similar: Civ.
Code 1872, Sec. 347; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Corcoran v. Sonora etc.
(1902) 8 Ida. 651; 71 Pac. 127.
Co.
1102
CORPORATIONS
Tit. 4
Proof of Publication.
Sec. 2767. The publication of notice required by this title may be
proved by the affidavit of the printer, publisher, foreman or princi-
pal clerk of the newspaper in which the same was published; and
the affidavit of the secretary or auctioneer is prima facie evidence of
the time and place of sale, of the quantity and particular description
of the stock sold, and to whom, and for what price, and of the fact
of the purchase money being paid. Such affidavit must be filed in
the office of the corporation, and copies of the same, certified by the
secretary thereof, are prima facie evidence of the facts therein stated.
Certificates of files and records of the corporation in his office, signed
by the secretary, and under the seal of the corporation, are prima
facie evidence of their contents.
Historical: Rev. St. 1887, Sec. 2 631.
California Legislation : Similar: Civ.
Code 1872, Sec. 348; as amended:
Deering's Code, ib. ; Kerr's Code, ib.
Collection of Assessment by Action.
Sec. 2768. On the day specified for declaring the stock delinquent,
or at any time subsequent thereto, and before the sale, the board of
directors may elect to waive further proceedings by sale, and may
elect to proceed by action to recover the amount of the assessment
and the costs and expenses already incurred, or any part or portion
thereof.
Historical: Rev. St. 11
California Legislation :
37, Sec. 2632. Code 1872, Sec. 349; Deering's Code,
Similar: Civ. ib. ; Kerr's Code, ib.
ARTICLE 7.
POWERS OF CORPORATIONS.
Section
2769. Enumeration of powers.
2770. Limitation on powers.
2771. Misnomer in written instru-
ments.
2772. When to commence business:
Attack on organization.
Section
2 7 73. Increasing and diminishing
capital stock.
2774. Limitation on acquisition of
real property.
Enumeration of Powers.
Sec. 2769. Every corporation, as such, has power:
First. Of succession, by its corporate name, for the period lim-
ited ; and when no period is limited, perpetually ;
Second. To sue and be sued, in any court, as a natural person
may ;
Third. To make and use a common seal, and alter the same at
pleasure ;
Fourth. To purchase, hold and convey such real and personal
estate as the purposes of the corporation may require, not exceed-
ing the amount limited by this title;
Fifth. To appoint such subordinate officers or agents as the bus-
iness of the corporation may require, and to allow them suitable
compensation ;
Sixth. To make by-laws not inconsistent with any existing law,
for the management of its business and property, the regulation of
its affairs, and for the transfer of its stock;
Ch. 1. Art. 7.
GENERAL PROVISIONS — POWERS
1103
Seventh. To admit stockholders or members, and to sell their
stock or shares for the payment of assessments or installments ;
Eighth. To enter into any contracts or obligations essential, nec-
essary or proper to the transaction of its ordinary affairs, or for the
purposes of the corporation.
Historical: Rev. St. 188 7, Sec. 2 633.
See. 1 Ter. Ses. (1864) 543, Sec. 4.
California Legislation: Similar: Civ.
Code 1872, Sec. 354; Deering-'s Code,
ib. ; Kerr's Code, ib.
Venue of Actions: A domestic cor-
poration has the same right as a res-
ident defendant to have a trial in the
county where its principal place of
business is located. Easley v. New
Zealand Ins. Co. (1894) 4 Ida. 205;
38 Pac. 405.
Limitation on Powers.
Sec. 2770. No corporation shall emit paper money or create or
issue bills, notes or other evidences of debt, upon loans or otherwise,
for circulation as money.
Historical: Rev. St. 1887, Sec. 2634.
1 Ter. Ses. (1864) 543, Sec. 15.
California Legislation: Same except
"emit paper money or" omitted: Civ.
Code 1872, Sec. 356; DeeHing's Code,
ib.; Kerr's Code, ib.
Misnomer in Written Instruments.
Sec. 2771. The misnomer of a corporation in any written instru-
ment does not invalidate the instrument, if it can be reasonably as-
certained from it what corporation is intended.
Historical: Rev. St. 1887, Sec. 2635.
California Legislation: Same: Civ.
Code 1872, Sec. 357; Deering's Code,
ib.; Kerr's Code, ib.
When to Commence Business : Attack on Organization.
Sec. 2772. If a corporation does not organize and commence the
transaction of its business or the construction of its works within
one year from the date of its incorporation its corporate powers
cease. The due incorporation of any company, claiming in good faith
to be a corporation under this title, and doing business as such,
or its right to exercise corporate powers, shall not be inquired into,
collaterally, in any private suit to which such de facto corporation may
be a party; but such inquiry may be had at the suit of the people of
the State, on the information of the prosecuting attorney of the
county of the principal place of business of the corporation.
Historical: Rev. St. 18 87, Sec. 2636.
California Legislation: Similar: Civ.
Code 1872, Sec. 358; Deering's Code,
ib. ; as amended: Kerr's Code, ib.
Cited: Postal Tel. Cable Co. v. Ore-
gon Short Line Ry. Co. (1900) 104
Fed. Rep. 623.
Increasing and Diminishing Capital Stock.
Sec. 2773. Every corporation may increase or diminish its capital
stock as in this section provided :
First. By a majority vote of the directors there may be called
a meeting of the stockholders, to be convened for the purpose of in-
creasing or diminishing the capital stock;
Second. Personal notice of the time and place of such meeting,
and of the object thereof, must be served on each stockholder at least
thirty days prior to the date of such proposed meeting, or, in lieu
thereof, the notice must be published at least once a week in a news-
Vol. 1 — 36
1104
CORPORATIONS
Tit. 4
paper published in the county where the principal business is located,
for at least thirty days ;
Third. The notice must also contain the amount to which it is
proposed to increase or diminish the capital stock ;
Fourth. The capital stock must in no case be diminished to an
amount less than the indebtedness of the corporation or the esti-
mated cost of the works it may be the object or purpose of the cor-
poration to construct.
Fifth. At least two-thirds of the entire capital stock must vote
in favor of such increase or diminution before the same is effected;
Sixth. A certificate signed and verified by the chairman and
secretary of the meeting, must be made, showing a strict compliance
with all the requirements of this section, the amount to which the
capital stock has been increased or diminished, the amount of stock
represented at the meeting, and the vote by which the object was ac-
complished;
Seventh. Said certificate must be subscribed by a majority of
the directors, and duplicates made, one to be filed in the office of the
county recorder and one in the office of the Secretary of State, as pro-
vided for original articles of incorporation, and thereupon the capital
stock is so increased or diminished.
Historical: Rev. St. 1887, Sec. 2 63 7.
(See 1 Ter. Ses. (1864) 543, Sees. 20,
21 and 22); amended Laws 1907, 540,
Sec. 3.
California Legislation: Similar: Civ.
Code 1872, Sec. 359; as amended:
Dec ring's Code, ib.; further amend-
ed: Kerr's Code, ib.
Cross Reference: Fictitious in-
crease of stock prohibited and no in-
crease shall be made without consent
of persons holding majority of stock
obtained at a meeting held after
thirtv days' notice given in pursuance
of law: Const. Art. 11, Sec. 9.
Limitation on Acquisition of Real Property.
Sec. 2774. No corporation must acquire or hold any more real
property than may be reasonably necessary for the transaction of
its business, or the construction of its works, except such right of way
or other property as it may acquire under the laws of Congress, or
as may be otherwise specially provided. A corporation may acquire
real property, as provided in the Code of Civil Procedure, when
needed for any of the uses and purposes there mentioned.
Historical: Rev. St. 18 87, Sec. 26 38.
California Legislation: See Civ.
Code j 872, Sec. 360; similar as
amended: Deering's code ib.; as fur-
ther amended: Kerr's Code, ib.
Cto<=s Reference: Condemnation of
property: Sees. 5210-5229.
ARTICLE 8.
CORPORATE RECORDS.
Section
2775. Records required to be kept.
Section
2776. Same
book.
Stock and transfer
Records Required to Be Kept.
Sec. 2775. All corporations for profit are required to keep a record
of all their business transactions ; a journal of all meetings of their
directors, members, or stockholders, with the time and place of hold-
ing the same, whether regular or special, and if special, their object,
Ch. 1. Art. 9.
GENERAL PROVISIONS — REPEAL
1105
how authorized, and the notice thereof given. The record must em-
brace every act done or ordered to be done; who were present, and
who absent, and, if requested by any director, member, or stock-
holder, the time must be noted when he entered the meeting- or ob-
tained leave of absence therefrom. On a similar request, the ayes
and noes must be taken on any proposition, and a record thereof
made. On similar request, the protest of any director, member, or
stockholder, to any action or proposed action, must be entered in full
— all such records to be open to the inspection of any director, mem-
ber, stockholder, or creditor of the corporation.
Parol Evidence Prohibited: A cor-
poration cannot prove by parol evi-
dence facts which are required by
this section to be shown in its jour-
nal. Corcoran v. Sonora etc. Co.
(1902) 8 Ida. 651; 71 Pac. 127.
Historical: Rev. St. 188 7, Sec. 263 9.
Calif ornia Legislation: Same: Civ.
Code 1872, Sec. 377; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Refusal to per-
mit inspection a misdemeanor: Sec.
7122.
Cited: Mapleton Bank v. Standrod
(1902) 8 Ida. 740; 71 Pac. 119.
Same: Stock and Transfer Book.
Sec. 2776. In addition to the records required to be kept by the
preceding section, corporations for profit must keep a book, to be
known as the ''Stock and Transfer Book," in which must be kept a
record of all stock ; the names of the stockholders or members, alpha-
betically arranged; installments paid or unpaid; assessments levied
and paid or unpaid ; a statement of every alienation, sale, or transfer
of stock made, the date thereof, and by and to whom ; and
all such other records as the by-laws prescribe. Corporations for re-
ligious and benevolent purposes must provide in their by-laws for
such records to be kept as may be necessary. Such stock and trans-
fer book must be kept open to the inspection of any stockholder, mem-
ber, or creditor.
Historical: Rev. St. 188 7, Sec. 2 6 40.
California Legislation: Same: Civ.
Code 1872, Sec. 378; Deering's Code,
ib. ; Kerr's Code, ib.
Cross Reference: Refusal to per-
mit inspection a misdemeanor: Sec.
7122.
Right to Inspection: Tbe stock and
transfer book is not subject to the in-
spection of private creditors of stock-
holders or the public generally, but
by "any stockholder, member or cred-
itor (of the corporation)". Maple-
ton Bank v. Standrod (1902) 8 Ida.
740; 71 Pac. 119.
ARTICLE 9.
RIGHT OF REPEAL.
Section
2777. Legislature may amend or re-
peal title.
Legislature May Amend or Repeal Title.
Sec. 2777. The Legislature may at any time amend or repeal this
title or any chapter, article or section thereof, and dissolve all cor-
porations created thereunder; but such amendment or repeal does
not, nor does the dissolution of any such corporation, take away or
impair any remedy given against any such corporation, its stock-
holders or officers, for any liability which has been previously in-
curred.
1106
CORPORATIONS
Tit. 4
Historical: Rev. St. 188 7, Sec. 26 41.
California Legislation: Same except
"this part or" inserted before "this ti-
tle"; Civ. Code 1872, Sec. 384; Deer-
ing's Code, ib.; Kerr's Code. ib.
ARTICLE 10.
SALE OF FRANCHISE OX EXECUTION
Section
2778. Franchise may be levied upon.
2779. Purchaser to conduct business.
2780. Actions by purchaser.
Section
2781. Effect of sale on corporation.
2782. Redemption from sale.
2783. Place of sale.
Franchise May Be Levied Upon.
Sec. 2778. For the satisfaction of any judgment against a corpo-
ration authorized to receive tolls, its franchise and all the rights and
privileges thereof, may be levied upon and sold under execution in
the same manner and with like effect as any other property.
Historical: Rev. St. 1887, Sec. 2 642.
California Legislation: Same except
"organize for profit" for "authorized
to receive tolls", line 2: Civ. Code
1872, Sec. 388; same as amended:
Deering's Code, ib.; similar as fur-
ther amended: Kerr's Code, ib.
Purchaser to Conduct Business.
Sec. 2779. The purchaser at the sale must receive a certificate of
purchase of the franchise, and be immediately let into possession
of all property necessary for the exercise of the powers and the re-
ceipt of the proceeds thereof, and must thereafter conduct the busi-
ness of such corporation, with all its powers and privileges, and sub-
ject to all its liabilities, until the redemption of the same as herein-
after provided.
Historical: Rev. St. 1887, Sec. 2 6 43.
California Legislation: Same: Civ.
Code 1872, Sec. 389; Deering's Code,
ib.; Kerr's Code, ib.
Actions by Purchaser.
Sec. 2780. The purchaser or his assignee is entitled to recover
any penalties imposed by law and recoverable by the corporation for
an injury to the franchise or property thereof, or for any damages,
or other cause, occurring during the time he holds the same, and may
use the name of the corporation for the purpose of any action neces-
sary to recover the same. A recovery for damages, or any penalties
thus had, is a bar to any subsequent action by or on behalf of the cor-
poration for the same.
Historical: Rev. St. 18
California Legislation:
7, Sec. 2644.
Same: Civ.
Code 1872, Sec. 390; Deering's Code,
ib.; Kerr's Code, ib.
Effect of Sale on Corporation.
Sec. 2781. The corporation whose franchise is sold, as in this
title provided, in all other respects retains the same powers, is bound
to discharge the same duties, and is liable to the same penalties and
forfeitures as before such sale.
Historical: Rev. St. 1887, Sec. 2645.
California Legislation: Same except
'article" for "title", line 2: Civ. Code
1872, Sec. 391; Deering's Code, ib.;
similar as amended: Kerr's Code. ib.
Ch. 1. Art. 11.
GENERAL PROVISIONS — LICENSE FEE
1107
Redemption From Sale.
Sec. 2782. The corporation may, at any time within one year
after such sale, redeem the franchise by paying or tendering to the
purchaser thereof the sum paid therefor, with ten per cent interest
thereon, but without any allowance for the toll which he may in the
meantime have received ; and upon such payment or tender, the fran-
chise and all the rights and privileges thereof revert and belong
to the corporation, as if no such sale had been made.
Historical: Rev. St. 1887, Sec. 2646.
California Legislation: Same: Civ.
Code 1872, Sec. 392; Deering's Code,
ib. ; different as amended
Code, ib.
Kerr's
Place of Sale.
Sec. 2783. The sale of any franchise under execution must be
made in the county in which the corporation has its principal place
of business.
Historical: Rev. St. 188 7, Sec. 2647.
California Legislation: Similar: Civ.
Code 1872, Sec. 393; as amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
ARTICLE 11.
ANNUAL STATEMENT AND LICENSE FEE.
Section
2784. Annual statement of corpora-
tions.
2785. Annual license fee.
Section
2786. Payment of license fee:
alties.
Pen-
Annual Statement of Corporations.
Sec. 2784. Every corporation organized or formed under, by or
pursuant to the laws of this State, whether now existing or hereafter
created, and every foreign corporation, joint stock company or as-
sociation now doing business in this State, or that may hereafter do
business in this State, except fire, marine, fire and marine, life, acci-
dent, life and accident, surety companies and mining corporations
owning mines which are not productive, being worked or operated,
shall, during the month of June of each year, and on or before the
first day of July of each year, furnish to the Secretary of State, upon
blanks to be supplied by him, a correct statement, sworn to by one
of the officers of the corporation, or managing agent or authorized
attorney in fact in this State of any foreign corporation, joint stock
company or association, before an officer duly authorized to admin-
ister oaths, setting forth the name of the corporation, joint stock
company or association ; the location of its principal office, the names
of the president, secretary and treasurer with the postoffice address
of each, date of annual election of directors and officers of such cor-
poration, joint stock company or association, the amount of author-
ized capital stock, the number of shares, the par value of each share,
the amount of capital stock subscribed, the amount of capital stock
issued and the amount of capital stock paid up. Every foreign cor-
poration, joint stock company or association shall include in such
statement the names and postoffice addresses of its managing agent
and attorneys in fact in this State.
Historical: Laws 1907, 235, Sec. 1.
1108
CORPORATIONS
Tit. 4
Annual License Fee.
Sec. 2785. Every such corporation, joint stock company or associ-
ation, foreign as well as domestic, shall pay an annual license fee in
proportion to the amount of its authorized capital stock as follows,
to-wit :
1. If such capital stock shall not exceed five thousand dollars, an
annual license fee of ten dollars.
2. If such capital stock shall exceed five thousand dollars, and
shall not exceed ten thousand dollars, an annual license fee of twelve
dollars and fifty cents.
3. If such capital stock shall exceed ten thousand dollars, and
shall not exceed twenty-five thousand dollars, an annual license fee
of fifteen dollars.
4. If such capital stock shall exceed twenty-five thousand dol-
lars, and shall not exceed fifty thousand dollars, an annual license fee
of twenty-two dollars and fifty cents.
5. If such capital stock shall exceed fifty thousand dollars, and
shall not exceed one hundred thousand dollars, an annual license fee
of thirty-seven dollars and fifty cents.
6. If such capital stock shall exceed one hundred thousand dol-
lars, and shall not exceed two hundred and fifty thousand dollars, an
annual license fee of fifty-two dollars and fifty cents.
7. If such capital stock shall exceed two hundred and fifty thou-
sand dollars, and shall not exceed five hundred thousand dollars, an
annual license fee of seventy-five dollars.
8. If such capital stock shall exceed five hundred thousand dol-
lars, and shall not exceed one million dollars, an annual license fee
of ninety dollars.
9. If such capital stock shall exceed one million dollars, and
shall not exceed two million dollars, an annual license fee of one
hundred thirty dollars.
10. If such capital stock shall exceed two million dollars, an an-
nual license fee of one hundred fifty dollars.
The amount of the capital stock of every corporation, joint stock
company or association, shall be determined by its articles of incor-
poration, or amendments or supplementary articles of incorpora-
tion, charter, declaration, report or statement filed with the Secretary
of State as in this article provided: Provided, That this section
shall not apply to any foreign corporation formed or organized for
any educational, literary, scientific, religious or charitable purpose.
Historical: Laws 1907, 235, Sec. 2.
Cross Reference: Water users' as-
sociations exempt from annual fran-
chise tax: Sec. 2842. License fees of
surety companies: Sec. 2942.
Payment of License Fee : Penalties.
Sec. 2786. On or before the fifteenth day of July of each year,
the Secretary of State shall file with the State Treasurer a statement
showing the amount of the license fee due as ascertained in the fore-
going manner from the different corporations hereinbefore referred
to. Within thirty days thereafter every such corporation shall pay
or cause to be paid to the State Treasurer the license fee hereinbefore
mentioned. Any such corporation failing or refusing to render
such statement, or to amend the same when required to do so by the
Ch. 1. Art. 12. GENERAL PROVISIONS — MISCELLANEOUS
1109
Secretary of State in case the same shall be incomplete, irregular or
unsatisfactory, or to pay such license fee, for more than twenty days
after the time specified, or any corporation, joint stock company or
association doing business in this State contrary to this article, shall
be liable to a fine of one hundred dollars to be recovered together
with any license fee due, by an action at law in the name of the
State, to be instituted by any prosecuting attorney at the request of
the Secretary of State. The annual license fee required by this sec-
tion shall be paid in advance for the fiscal year beginning July first
of each year, and in case new corporations are formed or enter the
State during the fiscal year, the first year's fee shall be proportionate
to such fraction of a year.
Historical: Laws 1907, 235, Sec. 3.
ARTICLE 12.
MISCELLANEOUS PROVISIONS.
Section
2790. Same.
2 791. Application of chapter.
Section
2787. Directors are trustees on dis-
solution.
2788. Extending term of existence.
2789. Continuation of existing cor-
porations.
Directors Are Trustees on, Dissolution.
Sec. 2787. Unless other persons are appointed by the court, the
directors or managers of the affairs of such corporation at the time
of its dissolution, are trustees of the creditors and stockholders, or
members, of the corporation dissolved, and have full power to settle
the affairs of the corporation.
Historical: Rev. St. 1887, Sec. 26 48.
See 1 Ter. Ses. (1864) 543, Sec. 23.
California Legislation: Same: Civ.
Code 1872, Sec. 400; Deering's Code,
ib. Similar as amended: Kerr's Code,
ib.
Extending Term of Existence.
Sec. 2788. Every corporation formed for a period less than fifty
years may, at any time prior to the expiration of the term of its cor-
porate existence, extend such term to a period not exceeding fifty
years from its formation. Such extension may be made at any meet-
ing of the stockholders or members called by the directors expressly
for considering the subject, if voted by stockholders representing
two-thirds of the capital stock, or by two-thirds of the members;
or may be made upon the written assent of that number of stock-
holders or members. A certificate of the proceedings of the meeting
upon such vote, or upon such assent, must be signed by the chairman
and secretary of the meeting of a majority of the directors and be
filed in the office of the county recorder, where the original articles of
incorporation were filed, and a certified copy thereof in the office of
the Secretary of State, and thereupon the term of the corporation
shall be extended for the specified period.
Historical: Rev. St. 1887, Sec. 2649.
California Legislation: See Civ.
Code 1872, Sec. 401; similar as
amended: Deering's Code, ib.; fur-
ther amended: Kerr's Code, ib.
Continuation of Existing Corporations.
Sec. 2789. Any existing corporation formed under any law of
1110
CORPORATIONS
Tit. 4
this State may continue under this chapter, or under the provisions
of any subsequent chapter particularly applicable thereto, by the
unanimous vote of all its directors, or its election so to continue may
be made at any annual meeting of the stockholders, or members or
at any meeting called by the directors expressly for considering the
subject, if voted by stockholders representing a majority of the
capital stock, or by a majority of the members, or may be made by
the directors upon the written consent of that number of such stock-
holders or members. A certificate of the action of the directors,
signed by them and their secretary, when the election is made by their
unanimous vote or upon the written consent of the stockholders or
members, or a certificate of the proceedings of the meeting of the
stockholders or members, when such election is made at any such
meeting, signed by the chairman and secretary of the meeting and
a majority of the directors, must be filed in the office of the recorder
of the county where the original articles of incorporation are filed,
and a certified copy thereof must be filed in the office of the Secretary
of State, and thereafter the corporation must continue its existence
under the provisions of this title, which are applicable thereto; and,
must possess all the rights and powers, and be subject to all the ob-
ligations, restrictions and limitations prescribed thereby.
Historical: Rev. St. 1887, Sec. 2650.
This provision of the Revised Statutes
has been left unchanged, although it
applies only to corporations organ-
ized prior to the taking effect of the
Revised Statutes. This chapter hav-
ing been in force continuously since
that date, all corporations formed
since then come within its provisions.
California Legislation: Different:
Civ. Code 1872, Sec. 402; repealed
1874.
Estoppel to Assert Xon- Compli-
ance: Where a corporation organized
prior to the passage of the Revised
Statutes, commenced levying assess-
ments immediately after such pas-
sage, and continued so to do for a
period of eight years, with the acqui-
escence of its stockholders, a stock-
holder could not defeat an assessment
levied by the corporation after the
lapse of such a time, on the ground
that it had not complied with this
section. Hall v. Eagle Rock etc. Co.
(1897) 5 Ida. 551; 51 Pac. 110.
Same.
Sec. 2790. No corporation formed or existing before twelve
o'clock noon, of June 1, 1887, is affected by the provisions of this
title unless such corporation elects to continue its existence under it
as provided in the last section, but the laws under which such corpo-
rations were formed and exist are applicable to all such corporations,
and are repealed subject to the provisions of this section.
Historical: Rev. St. 1887, Sec. 26 51.
"June 1. 1887" inserted for "the day
upon which this title takes effect".
The Revised Statutes took effect on
June 1, 1887.
Application of Chapter.
Sec. 2791. The provisions of this chapter are applicable to every
corporation, unless such corporation is exempted from its operation,
or unless a special provision is made in relation thereto inconsistent
with some provision in this chapter, in which case the special provi-
sion prevails.
Historical: Rev. St. 1887, Sec. 2652.
California Legislation: Same except
"title" for "chapter", lines 1 and 4,
and "excepted" for "exempted", line
2: Civ. Code 1872, Sec. 403; Deer-
ing's Code, ib.; Kerr's Code, Sec.
403(a).
Ch. 1. Art. 13. GENERAL PROVISIONS — FOREIGN CORPORATIONS 1111
ARTICLE 13.
FOREIGN CORPORATIONS.
Section
2792. Filing of articles and designa-
tion of agent.
Filing of Articles and Designation of Agent.
Sec. 2792. Every corporation not created under the laws of this
State must, before doing business in this State, file with the county
recorder of the county in this State in which is designated its prin-
cipal place of business in this State, a copy of the articles of incor-
poration of said corporation, duly certified to by the Secretary of
State of the State in which said corporation was organized, and a
copy of such articles of incorporation duly certified by such county
recorder, with the Secretary of State, paying to the latter the same
fees as are provided by law to be paid for filing original articles of
incorporation. Such corporation must also within three— months
from the time of commencement to do business in this State, desig-
nate some person in the county in which the principal place of busi-
ness of such corporation in the State is conducted, upon whom pro-
cess issued by authority of or under any law of this State may be
served, and within the time aforesaid must file such designation in the
office of the Secretary of State, and in the office of the clerk of the
District Court for such county, and a copy of such designation certi-
fied by either of said officers, must be evidence of such appointment.
It is lawful to serve on such person so designated any process issued
as aforesaid, and such service must be deemed a valid service thereof.
Such notice and designation of agent on whom process may be served,
shall run from the time of filing the same as herein provided, until
his successor is appointed by such filing, or said office becomes vacant
by resignation filed by such agent in the office in which his appoint-
ment is filed, or by his death, or removal from such county, and in
case of such vacancy said corporation shall, within sixty days there-
after, refill said office as herein provided.
No contract or agreement made in the name of, or for the use or
benefit of, such corporation prior to the making of such filings as first
herein provided, can be sued upon or enforced in any court of this
State by such corporation. Such corporation cannot take or hold title
to any realty within this State prior to making such filings, and
any pretended deed or conveyance of real estate to such corporation
prior to such filings shall be absolutely null and void. Any and
all officers, agents and representatives of said corporation, or persons
claiming to be officers or agents of the same, who shall make or at-
tempt to make any contract or agreement, or contract any indebted-
ness, in the name of such corporation, or for its use and benefit, be-
fore such original filings are made, or while such corporation is in
default upon filing a reappointment as hereby provided, shall be, joint-
ly and severally, personally liable upon and for all such contracts and
agreements as principal contractors.
Every such corporation which fails to comply with the provisions
of this section shall be denied the benefit of the statutes of the State
limiting the time for the commencement of civil actions, and any
limitations in such statutes shall only run in favor of any such cor-
1112
CORPORATIONS
Tit. 4
poration during such time as such person duly designated, as afore-
said, upon whom such service can be made, shall be within the State :
Provided, That foreign corporations complying with the provisions
of this section shall have all the rights and privileges of like domes-
tic corporations, including the right to exercise the right of eminent
domain, and shall be subject to the laws of the State applicable to
like domestic corporations.
Historical: Rev. St. 1887, Sec. 265 3.
(See 10 Ter. Ses. (1879) 3, Sec. 5);
amended Laws 1903, 49, Sec. 1.
Omitting- "and every such corporation
now doing business within this State
must within three months after the
taking effect of this act", as now ob-
solete.
California Legislation: See Civ.
Code 1872, Sec. 403, note, Sec. 1;
Deering's Code, ib.; repealed 1905.
iCross Reference: Foreign corpora-
tions not to do business within the
State without having one or more
known places of business and an au-
thorized agent on whom process may
be served: Const. Art. 11, Sec. 10. Ap-
pointment of agent for service of
process by insurance companies: Sec.
2883. Foreign assessment life insur-
ance companies to designate Insur-
ance Commissioner as agent for ser-
vice of process: Sec. 2886. Foreign
fraternal life insurance companies to
make like designation. Sec. Sec. 2893.
Designation of agent by surety com-
panies: Sec. 2 939.
Application: A foreign corporation
that manufactures farm machinery
in another State and sells the same
to citizens of this State on orders
taken by a foreign agent, subject to
its approval, and ships machinery in-
to the State to the purchaser, is en-
gaged in interstate commerce and
need not comply with the provisions
of this section. Belle City Manufac-
turing Co. v. Frizzell (190 5) 11 Ida.
1; 81 Pac. 58.
Effect of Non-Compliance: A for-
eign corporation which fails to com-
ply with the requirements of this sec-
tion, cannot maintain a suit in any of
the courts of the State for breach or
violation of a contract entered into
during the time the corporation has
failed to comply therewith. Katz v.
Herrick (1906) 12 Ida. 1; 86 Pac.
873.
The fact that this statute points out
certain penalties against non-comply-
ing foreign corporations but does not
specifically declare contracts entered
into in violation of the statute to be
void, does not indicate that the con-
tracts of non-complying foreign cor-
porations are to be deemed valid. Ib.
Venue of Actions: By complying
with this section and designating an
agent for the service of process, a
foreign corporation obtains the same
rights as a citizen so far as the venue
of an action against it is concerned,
but no superior rights, and it may
therefore be sued in a justice's court
of the precinct in which an injury to
property committed by it occurs, al-
though the residence of the agent
whom it designates is in another
county. Webster v. Oregon Short
Line Ry. (1898) 6 Ida. 312; 55 Pac.
661.
A foreign corporation which com-
plies with the requirements of the
statute is entitled to a trial within
the county where its principal place of
business is located, the same as is a
domestic corporation. (Overruled,
post.) Easley v. New Zealand Ins. Co.
(1894) 4 Ida. 205; 38 Pac. 405.
Foreign corporations doing business
in this State do not acquire, by com-
plying with this section and desig-
nating an agent for service of pro-
cess, a fixed residence in this State
so as to be entitled to be sued in the
county in which such agent resides,
but such corporations are, for the
purpose of jurisdiction, non-residents
of the State and may be sued in the
District Court in any county desig-
nated in the complaint. (Easlev v.
Ins. Co. 4 Ida. 205; 38 Pac. 405; over
ruled). Boyer v. No. Pac. Ry. (1901)
8 Ida. 74; 66 Pac. 826.
Proof of Service: Proof of service
of summons on a foreign corporation
by delivery of a copy to the president,
without showing any designation by
the corporation of the president as its
agent for the service of process, is
fatally defective. Applington v. G. V.
B. Mining Co. (1898) 6 Ida. 216; 55
Pac. 241.
CHAPTER 2.
RAILROAD CORPORATIONS.
Article
1. General provisions and powers of
railroads.
2. Construction of road.
Article
3. Operation of road.
4. Conditional sales and
equipment.
leases of
Ch. 2. Art. 1.
RAILROADS — POWERS
1113
ARTICLE 1.
GENERAL PROVISIONS AND POWERS OF RAILROADS.
Section
2793. Election of directors.
2794. Issuance of bonds.
2795. Same: Sinking fund: Conver-
sion into stock.
2796. Enumeration of powers.
2 79 7. Purchase, sale and fruaranty
of securities.
Section
2798. Bridging- navigable streams.
2 799. Construction of extensions and
branches.
2 800. Consolidation, sales and leases.
2 801. Extensions into the State.
2802. Application and construction
of preceding sections.
Note: Railroad transportation and express companies are common car-
riers, and all railroads are public highways, and subject to legislative con-
trol: Const. Art. 11, Sec. 5. Equal rights guaranteed and discrimination
prohibited: Const. Art. 11. Sec. 6.
Election of Directors.
Sec. 2793. Directors of railroad corporations may be elected at a
meeting of the stockholders other than the annual meeting,-^ a ma-
jority of the fixed capital stock may determine, or as the by-laws may
provide; notice thereof to be given as provided for notices of meet-
ings to adopt by-laws in Chapter 1 of this title.
Historical: Rev. St. 18 87, Sec. 2663.
California Legislation: Same except
'in Article 2, Chapter 1, Title 1 of this
part" for "in Chapter 1 of this title",
last line: Civ. Code 1872, Sec. 454;
Deering's Code, ib.; Kerr's Code, ib.
Issuance of Bonds.
Sec. 2794. Railroad corporations may borrow, on the credit of
the corporation, and under such regulations and restrictions as the
directors thereof may impose, such sums of money as may be neces-
sary for constructing and completing their railroad, and may issue
and dispose of bonds or promissory notes therefor, in denominations
of not less than five hundred dollars, and at a rate of interest not ex-
ceeding ten per cent per annum, and may also issue bonds or prom-
issory notes, of the same denomination and rate of interest, in pay-
ment of any debts or contracts for constructing and completing their
road, with its equipments and all else relative thereto. The amount
of bonds or promissory notes issued for such purposes must not
exceed, in all, the amount of their capital stock; and to secure the
payment of such bonds or notes, they may mortgage their corporate
property and franchise.
Historical: Rev. St. 1887, Sec. 266 4.
California Legislation: Same except
"by unanimous concurrence", insert-
ed after "thereof", line 3: Civ. Code
1872, Sec. 456; similar as amended:
Deering's Code, ib.; further amended:
Kerr's Code, ib.
Same : Sinking Fund : Conversion Into Stock.
Sec. 2795. The directors must provide a sinking fund, to be spe-
cially applied to the redemption of such bonds on or before their ma-
turity, and may also confer on any holder of any bond or note issued,
for money borrowed or in payment of any debt or contract for the
construction and equipment of such road, the right to convert the
principal due or owing therein into stock of such corporation, at
any time within eight years from the date of such bonds, under such
regulations as the directors may adopt.
1114
CORPORATIONS
Tit. 4
Historical: Rev. St. 1887, Sec. 2665. Civ. Code 1872, Sec. 457-; Deering's
California Le°islation: Same except Code, ib.; Kerr's Code, ib.
"so" inserted before "issued", line 3:
Enumeration of Powers.
Sec. 2796. Every railroad corporation has power:
First. To cause such examination and surveys to be made as may
be necessary to the selection of the most advantageous route for the
railroad; and for such purposes their officers, agents, and employees
may enter upon the lands or waters of any person, subject to liability
for all damages which they do thereto ;
Second. To receive, hold, take, and convey, by deed or otherwise,
as a natural person, such voluntary grants and donations of real
estate and other property which may be made to it to aid and en-
courage the construction, maintenance, and accommodation of such
railroad ;
Third. To purchase, or by voluntary grants or donations to re-
ceive, enter, take possession of, hold, and use all such real estate and
other property as may be necessary for the construction and main-
tenance of such railroad, and for all stations, depots, and other pur-
poses necessary to successfully work and conduct the business of
the road;
Fourth. To lay out its road, not exceeding nine rods wide, and
to construct and maintain the same, with a single or double track,
and with such appendages and adjuncts as may be necessary for the
convenient use of the same : Provided, That any such railroad corpo-
ration may take and hold any right of way or other property, of
whatever width or extent that it may acquire under the laws of
Congress ;
Fifth. To construct its road across, along or upon any stream of
water, water course, navigable stream, street, avenue or highway,
or across any railway, canal, ditch or flume which the route of its
road intersects, crosses or runs along, in such manner as to afford
security for life and property; but the corporation must restore the
stream or water course, road, street, avenue, highway, railroad, canal,
ditch or flume thus intersected to its former state of usefulness as
near as may be, or so that the railroad shall not unnecessarily im-
pair its usefulness or injure its franchise;
Sixth. To cross, intersect, join or unite its railroad with any
other railroad, either before or after construction, at any point upon
its route, and upon the grounds of such other railroad corporation
with the necessary turnouts, sidings and switches, and other conven-
iences in furtherance of the objects of its connections; and every
corporation whose railroad is, or shall be hereafter, intersected by
any new railroad, must unite with the owners of such new railroad in
forming such new intersections and connections, and grant facilities
therefor. And if the two corporations cannot agree upon the amount
of compensation to be made therefor, or the points or the manner
of such crossings, intersections and connections, the same must be
ascertained and determined as is provided in the Code of Civil Pro-
cedure ;
Seventh. To purchase lands, timber, stone, gravel or other ma-
terials to be used in the construction and maintenance of its road,
Ch. 2. Art. 1.
RAILROADS — POWERS
1115
and all necessary appendages and adjuncts, or acquire them in the
manner provided in the Code of Civil Procedure for the condemna-
tion of lands; and to change the line of its road in whole or in part
whenever a majority of the directors so determine, as is provided
hereinafter, but no such change must vary the general route of such
road as contemplated in its articles of incorporation ;
Eighth. To carry persons and property on their railroad and
receive tolls or compensation therefor ;
Ninth. To erect and maintain all necessary and convenient
buildings, stations, depots, fixtures and machinery for the accommo-
dation and use of their passengers, freight and business ;
Tenth. To regulate the time and manner in which passengers
and property shall be transported, and the tolls and compensation to
be paid therefor within the limits prescribed by law, and subject to
alteration, change or amendment by the Legislature at any time ;
Eleventh. To regulate the force and speed of their locomotives,
cars, trains, or other machinery used and employed on tJTeir road,
and to establish, execute, and enforce all needful and proper rules
and regulations for the management of its business transactions
usual and proper for railroad corporations.
Historical: Rev. St. 18 8 7, Sec. 2666.
California Legislation: Similar: Civ.
Code 1872, Sec. 465; Deering's Code,
ib.; additional provision as amended:
Kerr's Code, ib.
Cross Reference : Condemnation pro-
ceedings: Sees. 5210-5229.
Purchase, Sale and Guaranty of Securities.
Sec. 2797. Any railroad corporation, whether chartered by, or
organized under, the laws of this State or of the Territory of Idaho,
or of the United States, or of any other State or Territory, may take,
purchase, hold, sell, and dispose of, or guarantee the payment of,
the bonds and securities of any other railroad corporation whose
line of railroad is continuous of, or by lease, traffic contract, or oth-
erwise connected with, its own line.
Historical: Laws 1890-91, 16. Sec. 1;
re-enacted Laws 1899, 10, Sec. 1.
Bridging Navigable Streams.
Sec. 2798. Any railroad corporation heretofore duly organized
and incorporated under the laws of this State, or of the United States,
or of any other State or Territory, or which may hereafter be duly in-
corporated and organized under the laws of this State, or of the
United States, or of any other State or Territory, and authorized to
do business in this State and to construct and operate railroads
therein, shall have, and hereby is given, the right to build and con-
struct, possess and own, bridges across the navigable streams and
waters within this State, over or across which the projected line or
lines of railway of such railroad corporation, or either of them, will
run : Provided, That said bridges are to be constructed in good faith
for the purpose of being made a part of the constructed line of said
railroad, or a part of any of the line thereof to be constructed and in
course of construction, and to be used by such railroad corporation
as a part of its line of railroad so constructed, or to be constructed,
1116 CORPORATIONS Tit. 4
for the more convenient, expeditious and safe operation thereof : And
provided further, That such bridges shall be so constructed as to not
interfere with, impede or obstruct the navigation of such stream or
navigable waters, and shall comply with, and be subject to, the Acts
of Congress relating to navigable streams, and the rules and regula-
tions of the executive departments.
Historical: Laws 1899, 20, Sec. 1;
re-enacting Laws 1890-91, 32, Sec. 1.
Construction of Extensions and Branches.
Sec. 2799. Any railroad corporation chartered by or organized
under the laws of this State, or of any State or Territory, or under
the laws of the United States, and authorized to do business in this
State, may extend its railroad from any point named in its charter
or articles of incorporation, or may build branch roads, either from
any point on its line of road or from any point on the line of any
other railroad connecting, or to be connected, with its road, the use
of which other road between such points and the connection with
its own road, such corporation shall have secured by lease or agree-
ment for a term of not less than ten years from its date. Before mak-
ing any such extension, or building any such branch road, such corpo-
ration shall, by resolution of its directors or trustees, to be entered
in the record of its proceedings, designate the route of such pro-
posed extension or branch by indicating the place from and to which
said railroad is to be constructed, and the estimated length of such
railroad, and the name of each county in this State through or into
which it is constructed or intended to be constructed, and file a copy
of such record, certified by the president and secretary, in the office
of the Secretary of State, who shall indorse thereon the date of filing
thereof and record the same. Thereupon such corporation shall have
all the rights and privileges to make such extension or build such
branch, and receive aid thereto, which it would have had if it had
been authorized in its charter or articles of incorporation.
Historical: Laws 1899, 81, Sec. 1;
re-enacting Laws 1890-91, 124, Sec. 1.
Consolidation, Sales and Leases.
Sec. 2800. Any such railroad corporation may consolidate its
stock, franchises and property with any other railroad corporation,
whether within or without the State, when such other railroad cor-
poration does not own any competing line of railroad, upon such
terms as may be agreed upon, and become one corporation, by any
name selected, which, within this State, shall possess all of the powers,
franchises, and immunities, including the right of further consolida-
tion with other corporations under this section, and be subject to all
the liabilities and restrictions such as such corporations peculiarly
Dossess, or were subject to at the time of consolidation by the laws
then in force applicable to them or either of them. Articles stating
the terms of consolidation shall be approved by each corporation by
a vote of the stockholders owning a majority of the stock, in person or
by proxy, at the regular annual meeting thereof, or a special meeting
called for that purpose in the manner provided by the by-laws of the
respective consolidating corporations, or by the consent, in writing,
Ch. 2. Art. 1.
RAILROADS— POWERS
1117
of such stockholders annexed to such articles; and a copy thereof,
with a copy of the records of such approval or such consent, and ac-
companied by lists of their stockholders and the numbers of shares
held by each, duly certified by the respective presidents and secre-
taries, with the respective corporate seals of such corporations affixed,
shall be filed for record in the office of the Secretary of State before
any such consolidation shall have any validity or effect.
Any railroad corporation whose line is wholly or in part within
this State, whether chartered by or organized under the laws of this
State, or of any other State or Territory, or of the United States,
may lease or purchase and operate the whole or any part of the rail-
road or any other railroad corporation, together with the franchises,
powers, immunities and all other property or appurtenances apper-
taining thereto; (or any railroad company may sell or lease the
whole or any part of its railroads or branches within or without this
State, constructed, or to be constructed, together with all_property
and rights, privileges and franchises pertaining thereto, to~any rail-
road company organized or existing pursuant to the laws of the
United States or of this State, or of any other state or Terri-
tory of the United States) ; and all such purchases or leases hereto-
fore made or entered into are for all intents and purposes hereby rat-
ified and confirmed: Provided, That in no case shall the capital
stock of the company formed by such consolidation exceed the sum
of the capital stock of the companies so consolidated, at the par value
thereof, nor shall any bonds or other evidences of debt be issued as
a consideration for or in connection with such consolidation.
Historical: Laws 1890-91. 124, Sec.
2; re-enacted Laws 1899, 81, Sec. 2;
amended Laws 1901, 214, Sec. 1.
Cross Reference: Domestic rail-
road or other corporations consolidat-
ing with foreign corporations do not
thereby become foreign corporations:
Const. Art. 11, Sec. 14.
Extensions Into the State.
Sec. 2801. Any railroad corporation chartered by or organized
under the laws of the United States, or of any State or Territory,
whose constructed railroad shall reach or intersect the boundary line
of this State at any point, may extend its railroad into the State from
any such point or points to any place or places within this State, and
may build branches from any point on such extension. Before mak-
ing such extension, or building any such branch road, such corpora-
tion shall, by resolution of its directors or trustees, to be entered in
the record of its proceedings, designate the route of such proposed ex-
tension or branch by indicating the place from and to which such ex-
tension or branch is to be constructed, and the estimated length of such
extension or branch, and the name of each county in this State through
or into which it is constructed or intended to be constructed, and file
a copy of such record, certified by the president and secretary, in the
office of the Secretary of State, who shall indorse thereon the date of
filing thereof and record the same. Thereupon such corporation shall
have all the rights and privileges to make such extension, or
build such branch, and receive such aid thereto as it would have had
had it been authorized so to do by articles of incorporation duly filed
in accordance with the laws of this State. It shall be the duty of
railroad companies, when intersecting or crossing any other rail-
1118
CORPORATIONS
Tit. 4
road in this State, to so arrange their sidetracks or switches that
cars or freight may be readily transferred from one track to the
other at the option of the shipper.
Historical: Laws 1899, 81, Sec. 3;
re-enacting Laws 1890-91, 124, Sec. 3.
Application and Construction of Preceding Sections.
Sec. 2802. The three preceding sections shall not apply to any
corporations before such corporations shall have filed an acceptance
of the provisions of the State Constitution, as provided in Section 7,
of Article 11, of the Constitution, nor shall anything in said sections
contained ever be so construed as to exempt any railroad property
from taxation.
Historical: Laws 189 9, 81, Sees. 4,
5; re-enacting Laws 1890-91, 124, Sees.
4, 5. Rewritten in combination.
ARTICLE 2.
CONSTRUCTION OF ROAD.
Section
2803. Map and profile.
2804. Altering location.
2805. Time for commencing and com-
pleting construction.
2806. Crossings and intersections.
Section
2 807. Use of streets: Consent of au-
thorities.
2 808. Crossing other railroads and
highways.
Map and Profile.
Sec. 2803. Every railroad corporation in this State must, within
a reasonable time after its road is finally located, cause to be made
a map and profile thereof, and of the land acquired for the use
thereof, and the boundaries of the several counties through which the
road may run, and file the same in the office of the Secretary of State ;
and also like maps of the parts thereof located in different counties,
and file the same in the office of the recorder of the county in which
such parts of the road are, there to remain of record forever. The
maps and profiles must be certified by the chief engineer, the acting
president and secretary of such company, and copies of the same, so
certified and filed, be kept in the office of the secretary of the corpora-
tion, subject to examination by all parties interested.
Historical: Rev. St. 18 8 7, Sec. 26 6 7.
California Legislation: Same except
"clerk" for "recorder", line 6: Civ.
Code 1872, Sec. 466; Deering's Code,
ib.; Kerr's Code, ib.
Altering Location.
Sec. 2804. If, at any time after the location of the line of the rail-
road and the filing of the maps and profiles thereof, as provided in
the preceding section, it appears that the location can be improved,
the directors may, as provided in subdivision 7, of Section 2796, alter
or change the same, and cause new maps and profiles to be filed, show-
ing such changes, in the same offices where the originals are on file, and
may proceed, in the same manner as the original location was ac-
quired, to acquire and take possession of such new line, and must sell
or relinquish the lands owned by them for the original location within
Ch. 2. Art. 2.
RAILROADS — CONSTRUCTION
1119
five years after such change. No new location as herein provided,
must be run so as to avoid any points named in their articles of incor-
poration.
Historical: Rev. St. 188 7, Sec. 2668.
California Legislation: Similar: Civ.
Code 1872, Sec. 467; Deering's Code,
ib.; Kerr's Code, ib.
Time for Commencing and Completing Construction.
Sec. 2805. Every railroad corporation must, within two years
after filing its original articles of incorporation, begin the construc-
tion of its road, and must every year thereafter complete and put in
full operation at least five miles of its road, until the same is fully
completed; and upon its failure so to do, for the period of one year,
its right to extend its road beyond the point then completed is for-
feited.
Historical: Rev. St. 18 8 7, Sec. 266 9.
California Legislation: Same: Civ.
Code 1872, Sec. 468; Deering's Code,
ib. ; additional provisions as amended:
Kerr's Code, ib.
Crossings and Intersections.
Sec. 2806. Whenever the track of one railroad intersects or
crosses the track of another railroad, whether the same be a street
railroad, wholly within the limits of a city or town, or other railroad,
the rails of either or each road must be so cut and adjusted as to
permit the passage of the cars on each road with as little obstruction
as possible ; and in case the persons or corporations owning the rail-
roads cannot agree as to the compensation to be made for cutting
and adjusting the rails, the condemnation of the right of way over the
one for the use of the other road may be had in proceedings under
the Code of Civil Procedure, and the damages assessed and the
right of way granted as in other cases.
Historical: Rev. St. 18 87, Sec. 2 6 70.
California Legislation: Same except
"Title 7, Part 3" before "Code of Civil
Procedure"; Civ. Code 1872. Sec. 469;
Deering's Code, ib. ; Kerr's Code, ib.
Cross Reference : Condemnation pro-
ceedings: Sees. 5210-5229.
Use of Streets: Consent of Authorities.
Sec. 2807. No railroad corporation must use any street, alley, or
highway, or any of the land or water within any incorporated city
or town, unless the right to so use the same is granted by a two-thirds
vote of the town or city authority from which the right must ema-
nate.
Historical: Rev. St. 18 87, Sec. 2 671.
California Legislation : Same: Civ.
Code 1872, Sec. 470; Deering's Code,
ib. ; Kerr's Code, ib.
Cross Reference: Railroads not to
be constructed within municipal cor-
porations without the consent of the
local authorities: Const. Art. 11, Sec.
11.
Crossing Other Railroads and Highways.
Sec. 2808. Whenever the track of such railroad crosses a railroad
or highway, such railroad or highway may be carried under, over,
or on a level with the track as may be most expedient ; and in cases
where an embankment or cutting necessitates a change in the line of
such railroad or highway, the corporation may take such additional
1120
CORPORATIONS
Tit. 4
lands and materials as are necessary for the construction of such
road or highway on such new line. If such other necessary lands
cannot be had otherwise, they may be condemned as provided in the
Code of Civil Procedure; and when compensation is made therefor,
the same becomes the property of the corporation.
Historical: Rev. St. 188 7, Sec. 2 672.
California Legislation: Same except
"material" for "materials", line 6,
and "Title 7, Part 3" for "the" before
"Code", line 9: Civ. Code 1872, Sec.
472; Deering's Code, ib.; Kerr's Code,
ib.
Cross Reference: Condemnation pro-
ceedings: Sees. 5210-5229. Intersec-
tions at railroad crossings: Sec. 2801.
ARTICLE 3.
OPERATION OF ROAD.
Section
2809. Checking baggage.
2810. Accommodations for passen-
gers and freight.
2811. Refusal to accept passengers or
freight.
2 812. Accommodations to be suffi-
cient.
2813. Printed rules and regulations.
2814. Erection and maintenance of
fences.
2815. Same: Liability for damages.
2 816. Crossings and cattle guards.
2817. Claim for damages.
Section
2 818. Recovery of attorney's fees.
2819. Book of descriptions of stock
killed.
2820. Disposal of carcass.
2821. Bell or whistle to be sounded.
2822. Ejection of passengers.
2823. Report of delayed trains.
2 824. Same: Notice at stations.
2 82 5. Same: Failure to give notice a
misdemeanor.
282 6. Same: Punishment of corpora-
tion.
Checking Baggage.
Sec. 2809. A check must be affixed to every package or parcel of
baggage when taken for transportation by any agent or employe of
a railroad corporation, and a duplicate thereof given to the passen-
ger or person delivering the same in his behalf; and if such check is
refused on demand, the railroad corporation must pay to such pas-
senger the sum of twenty dollars to be recovered in an action for
damages ; and no fare or toll must be collected or received from such
passenger, and if such passenger has paid his fare the same must be
returned by the conductor in charge of the train; and on producing
the check, if his baggage is not delivered to him by the agent or em-
ploye of the railroad corporation, he may recover the value thereof
from the corporation.
Historical: Rev. St. 188 7, Sec. 2 674.
California Legislation: Same: Civ.
Code 1872, Sec. 479; Deering's Code,
ib.; Kerr's Code, ib.
Accommodations for Passengers and Freight.
Sec. 2810. Every such corporation must start and run their cars
for the transportation of persons and property, at such regular times
as they shall fix by public notice, and must furnish sufficient accom-
modations for the transportation of all such passengers and prop-
erty as, within a reasonable time previous thereto, offer or is offered
for transportation at the place of starting, at the junction of other
railroads and at siding and stopping places established for receiving
and discharging way passengers and freight; and must take, trans-
port and discharge such passengers and property at, from and to such
places, on the due payment of toll, freight or fare therefor.
Ch. 2. Art. 3.
RAILROADS — OPERATION
1121
Historical: Rev. St. 1887, Sec. 2675.
California Legislation: Same: Civ.
Code 1872, Sec. 481; Deering's Code,
ib.; similar as amended: Kerr's Code,
ib.
Cross Reference: Equal transporta-
tion rights guaranteed and discrimina-
tions prohibited: Const. Art. 11, Sec. 5.
Refusal to Accept Passengers or Freight.
Sec. 2811. In case of refusal by such corporation or its agents
so to take and transport any passengers or property, or to deliver the
same at the regular appointed places, such corporation must pay to
the party aggrieved all damages which are sustained thereby, with
costs of suit.
Historical: Rev. St. 1887, Sec. 2676.
California Legislation: Same: Civ.
Code 1872, Sec. 482; Deering's Code,
ib. ; Kerr's Code, ib.
Accommodations to be Sufficient.
Sec. 2812. Every railroad corporation must furnish on the inside
of its passenger cars, sufficient room and accommodations for all
passengers to whom tickets are sold for any one trip, and for all per-
sons presenting tickets entitling them to travel thereon; and when
fare is taken for transporting passengers on any baggage, wood,
gravel or freight car, the same care must be taken and the same re-
sponsibility is assumed by the corporation as for passengers on pas-
senger cars.
Historical: Rev. St. 18 87, Sec. 2677.
California Legislation: Same: Civ.
Code 1872. Sec. 483; Deering's Code,
ib.; Kerr's Code, ib.
Printed Rules and Regulations.
Sec. 2813. Every railroad corporation must have printed and con-
spicuously posted on the inside of its passenger cars its rules and
regulations regarding fare and conduct of its passengers ; and in case
any passenger is injured on or from the platform of a car, or on any
baggage, wood, gravel or freight car, in violation of such printed
regulations, or in violation of positive verbal instructions or injunc-
tions given to such passenger in person by any officer of the train, the
corporation is not responsible for damages for such injuries, unless
the corporation failed to comply with the provisions of the preceding
section.
Code 1872, Sec. 484; Deering's Code,
ib. ; Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 2678.
California Legislation: Same: Civ.
Erection and Maintenance of Fences.
Sec. 2814. Railroad corporations must make and maintain a good
and sufficient fence on either or both sides of their track or property,
whenever the line of their road at any time passes through or along,
or abuts upon, or is contiguous to, private property, or enclosed land
in the actual possession of another. Railroad corporations paying to
the owner of the land through or along which their road is located,
an agreed price, for making and maintaining such fence, or paying
the cost of such fence with the award of damages allowed for the right
of way for such railroad, are relieved and exonerated from all claims
for damages arising out of the killing or maiming any animals of
persons who thus fail to construct and maintain such fence; and the
owners of such animals are responsible for any damages or loss which
1122
CORPORATIONS
Tit. 4
may accrue to such corporation from such animals being upon their
railroad track, resulting from the non-construction of such fence, un-
less it is shown that such loss or damage occurred through the negli-
gence or fault of the corporation, its officers, agents, or employes.
Historical: Rev. St. 188 7, Sec. 2679.
There is some little doubt as to wheth-
er or not this section was intended to
be repealed by the following section.
In view of the peculiar language of the
repealing clause of the act from which
the following section is taken (See
Laws 3 907, 324, Sec. 5), and the fact
that there does not seem to be any
irreconcilable conflict between the sec-
tions, it was thought best to preserve
this section, and leave to the Legisla-
ture the duty of repealing it specifi-
cally, if such is its muent.
California Legislation: Similar: Civ.
Code 1872, Sec. 486; Deering's Code,
ib.; Kerr's Code, ib.
Object of Section: This statute is
a general police regulation, designed
not merely for the benefit of the ad-
joining owners, but for the protection
of property in domestic animals gen-
erally and for the safety of passen-
gers who would be exposed to peril by
collision with cattle coming upon the
track. The company is under a gen-
eral obligation to the public and not
a limited obligation to adjoining land
owners, and, when in default for not
complying with the provisions of this
statute, it is liable for injuries to cat-
tle unlawfully upon the adjoining lands
and coming therefrom upon its tracks.
Johnson v. Oregon Short Line Ry.
Co. (1900) 7 Ida. 355; 63 Pac. 112.
Duty to Fence: Railroads must make
and maintain good and sufficient
fences on both sides of their tracks
where they pass through private land,
whether the owner has fenced his land
or not. Patrie v. O. S. L. Ry. (1899)
6 Ida. 448; 56 Pac. 82. The words,
"private property", include a home-
stead entry and the road must be
fenced when it passes along lands oc-
cupied under such an entry. Johnson
v. O. S. L. Ry. (1900) 7 Ida. 355; 63
Pac. 112.
Same: Liability for Damages.
Sec. 2815. Every railroad company operating any steam or elec-
tric railroad in this State, shall erect and maintain lawful fences not
less than four feet high on each side of its road, where the same
passes through, along or adjoining enclosed or cultivated fields or
enclosed lands, with proper and necessary openings and gates therein,
and farm crossings; and also construct and maintain cattle guards
at all highway crossings where fences are required as aforesaid,
suitable and sufficient to prevent horses, cattle, mules or other ani-
mals from getting on the railroad.
Until such fences, openings, gates, farm crossings and cattle
guards shall be duly made and maintained, such corporation shall be
liable to pay all damages which shall be done by its agents, engines
or cars, to horses, cattle, mules or other animals on said road, or by
reason of any horse, cattle, mule or other animals escaping from or
coming upon said lands, fields or enclosures occasioned in either case
by the failure to construct or maintain such fences or cattle guards,
regardless of whether the persons operating or in charge of such en-
gines or cars were negligent or not. But after such fences, gates,
farm crossings and cattle guards shall be duly made and maintained,
such corporation shall not be liable for any such damages unless neg-
ligently or wilfully done.
If any corporation aforesaid fail, neglect or refuse for and during
the period of three months after the completion of its road through
or along the fields or enclosures hereinbefore named, to erect and
maintain any fence, opening gates, farm crossings or cattle guards
as herein required, and after having received not less than thirty
days' notice requiring them so to do, then the owner of such fields
or enclosures may erect and maintain such fences, opening gates,
farm crossings and cattle guards, and shall thereupon have a right
Ch. 2. Art. 3.
RAILROADS — OPERATION
1123
to sue and recover from such corporation in any court of competent
jurisdiction, the full value of the same: Provided, That no recovery
can be had on account of stock injured or killed which came upon
said highway by reason of failure to keep such gates closed.
Historical: Laws 1907, 32 4, Sec. 1.
See historical note to preceding sec-
tion.
Constitutionality: The statute which
this section repealed (Rev. St. Sec.
2680) was held unconstitutional be-
cause it made the railroad liable for
killing- an animal without any proof
of negligence or of violation of stat-
utory duty. Catril v. Union Pac. Ry.
Co. (1889) 2 Ida. 576; 21 Pac. 416;
Jones v. O. S. L. Ry. (1899) 6 Ida.
441; 56 Pac. 76.
Crossings and Cattle Guards.
Sec. 2816. It shall be the duty of every railroad company whose
line runs through or across any desert or other unoccupied territory,
to keep and maintain suitable crossings and cattle guards, wjierever
any public highway or publicly traveled road crosses the same, and
to place gates at convenient intervals not exceeding four miles apart,
for the crossing of the same wherever there are no roads within such
distances.
Historical: Laws 1907, 324, Sec. 2.
Claim for Damages.
Sec. 2817. Any person claiming damages under the two preceding
sections must serve notice of their claim in writing and signed by
such person, or by his authorized agent, upon the nearest station
agent of such railroad company, within thirty days after the alleged
damage is done, and all suits for such damages must be commenced,
and summons served therein, within six months after service of such
notice.
Historical: Laws 1907, 3 24, Sec. 3.
Recovery of Attorneys' Fees.
Sec. 2818. In all suits under the three preceding sections, if the
plaintiff recover any damages, he shall also be entitled to recover
reasonable attorneys' fees not exceeding ten per cent upon the amount
recovered, together with his costs of suit.
Historical: Laws 1907, 32 4, Sec. 4.
Book of Descriptions of Stock Killed.
Sec. 2819. Every railroad company must keep a book at a prin-
cipal station in each county into or through which its road runs, to
be designated by the company, and a notice of the station so desig-
nated must be filed with the recorder of the county in which the sta-
tion is located; and every such company must cause to be entered in
said book, within fifteen days after the killing or maiming of any
animal, a description as nearly as may be of such animal, its color,
age, marks and brands, and keep said book subject to public inspec-
tion. Should any company fail to keep such book, or to file such no-
tice in the manner herein provided, or to enter therein such descrip-
tion of any animal maimed or killed, for a period of fifteen days
thereafter, such company is liable to the owner of such animal for
twice the value thereof.
1124 CORPORATIONS Tit. 4
Historical: Rev. St. 1887, Sec. 2681.
Cited: Jones v. Oregon S. L. Ry.
(1899) 6 Ida. 441; 56 Pac. 76.
Disposal of Carcass.
Sec. 2820. In case of maiming or killing any cattle, sheep or hog,
the body of the animal belongs to the company, unless the owner elects,
within twelve hours, to take the same in satisfaction or reduction of
damages. The company may proceed to take care of and preserve
the body of such animal, and must, unless taken by the owner, take
off enough of the hide to show distinctly any brands on such animal,
also both ears, including the hide between the ears, and in such way as
to keep the ears together and the pieces of hide so taken off, and the
ears of each animal, must be attached together and preserved for at
least three months for inspection at the station house nearest to the
place where such killing or maiming occurred. For every failure
so to keep any such pieces of hide and ears for inspection, the com-
pany, in addition to the damages to the owner, forfeits one hundred
dollars, to be recovered in an action in the name of the State, in any
court of competent jurisdiction, one-half to be paid into the school
fund of the county, and the residue to the informer.
Historical: Rev. St. 1887, Sec. 2682;
amended act 15th Ter. Ses. (Laws
1888-89) 45.
Bell or Whistle to be Sounded.
Sec. 2821. A bell of at least twenty pounds weight must be placed
on each locomotive engine, and be rung at a distance of at least eighty
rods from the place where the railroad crosses any street, road or
highway, and be kept ringing until it has crossed such street, road,
or highway; or a steam whistle must be attached, and be sounded,
except in cities, at the like distance, and be kept sounding at inter-
vals until it has crossed the same, under a penalty of one hundred
dollars for every neglect, to be paid by the corporation operating the
railroad, which may be recovered in an action prosecuted by the pros-
ecuting attorney of the proper county, for the use of the State. The
corporation is also liable for all damages sustained by any person,
and caused by its locomotives, trains, or cars, when the provisions of
this section are not complied with.
Historical: Rev. St. 1887, Sec. 268 3. Code 1872, Sec. 486; Deering's Code,
California Legislation: Same: Civ. ' ib-> Kerr's Code, lb.
Ejection of Passengers.
Sec. 2822. If any passenger refuses to pay his fare, or to exhibit
or surrender his ticket, when reasonably requested so to do, the con-
ductor and employes of the corporation may put him and his baggage
out of the cars, using no unnecessary force, at any usual stopping
place, or near any dwelling house, on stopping the train.
Historical: Rev. St. 1887, Sec. 268 4. I Code 18 72, Sec. 487; Deering's Code,
California Legislation: Same: Civ. 1D- Kerr's Code, ib.
Report of Delayed Trains.
>ort oi ueiayea Trains.
Sec. 2823. All railway corporations operating in the State of
Ch 2. Art. 4.
RAILROADS — CONDITIONAL SALES
1125
Idaho shall, upon the arrival of delayed passenger trains at the first
division terminal within the confines of this State, notify by telegraph
every station on the line of the road within this State, how much the
said passenger train is delayed. Upon the arrival of the said delayed
passenger train at each succeeding division terminal, or station where
train dispatchers are located, it shall be the duty of the dispatcher or
telegraph operator at each terminal or office to notify every telegraph
station on the line of the road, not yet reached by such train, how
much the said train is delayed.
Historical: Laws 1907, 34 7, Sec. 1
Same: Notice at Stations.
Sec. 2824. Every operator, agent or person in charge of the tele-
graph station, shall post a notice in a conspicuous place in the station
or waiting room, and when such telegraph station is connected by
telephone with the central telephone exchange in any town or city,
he shall promptly notify such central exchange how late the delayed
train is running.
Historical: Laws 190 7, 3 4 7, Sec. 2.
Same: Failure to Give Notice a Misdemeanor.
Sec. 2825. Every operator, dispatcher, agent, or person in charge
of a telegraph station, who shall fail, neglect or refuse to post such
notice correctly, or to advise such telephone exchange promptly, shall
be deemed guilty of a misdemeanor and, upon conviction thereof, shall
be fined not to exceed twenty-five dollars for each offense.
Historical: Laws 190 7, 347, Sec. 3.
Same : Punishment of Corporation.
Sec. 2826. Any railway corporation that shall violate the provi-
sions of the three preceding sections shall be deemed guilty of a mis-
demeanor and, upon conviction thereof, shall be fined not to exceed
one hundred dollars for each offense.
Historical: Laws 1907, 3 47, Sec. 4.
ARTICLE 4.
CONDITIONAL SALES AND LEASES OF EQUIPMENT.
Section
2827. Lien of vendor or lessor.
2828. Same: Record of contract.
Section
2829. Prior contracts not affected.
Lien of Vendor or Lessor.
Sec. 2827. In any contract for the sale of railroad or street rail-
way equipment or rolling stock, it shall be lawful to agree that the
title to the property sold or contracted to be sold, although possession
thereof may be delivered immediately, or at any time or times sub-
sequently, shall not vest in the purchaser until the purchase price shall
be fully paid, or that the seller shall have and retain a lien thereon
for the unpaid purchase money. And in any contract for the leasing
or hiring of such property, it shall be lawful to stipulate for a con-
ditional sale thereof at the termination of such contract, and that
1126
CORPORATIONS
Tit. 4
the rentals or amounts to be received under such contract, may, as
paid, be applied and treated as purchase money, and that the title to
the property shall not vest in the lessee or bailee until the purchase
price shall have been paid in full, and until the terms of the contract
shall have been fully performed, notwithstanding delivery to and
possession by such lessee or bailee: Provided, That no such contract
shall be valid as against any subsequent judgment creditor, or any
subsequent bona fide purchaser for value and without notice, unless:
(1) The same shall be evidenced by an instrument executed by the
parties and duly acknowledged by the vendee or lessee or bailee, as
the case may be, or duly proved before some person authorized by law
to take acknowledgment of deeds, and in the same manner as deeds
are acknowledged or proved; (2) such instrument shall be filed for
record in the office of the Secretary of State; (3) each locomotive,
engine or car so sold, leased or hired, or contracted to be sold, leased
or hired as aforesaid, shall have the name of the vendor, lessor or
bailor plainly marked on each side thereof, followed by the word
"owner" or "lessor" or "bailor" as the case may be.
Historical: Laws 1905, 15 4, Sec. 1.
Same: Record of Contract.
Sec. 2828. The contracts herein authorized shall be recorded by
the Secretary of State in a book of records to be kept for that pur-
pose. And on payment in full of the purchase money, and the per-
formance of the terms and conditions stipulated in any such contract,
a declaration in writing to that effect may be made by the vendor,
lessor or bailor, or his or its assignee, which declaration may be made
on the margin of the record of the contract, duly attested, or it may
be made by a separate instrument, to be acknowledged by the vendor,
lessor or bailor, or his or its assignee, and recorded as aforesaid.
And for such services the Secretary of State shall be entitled to a fee
of two dollars for recording each of said contracts and each of said
declarations, and a fee of one dollar for noting such declaration on
the margin of the record.
Historical: Laws 190 5, 154, Sec. 2.
Prior Contracts Not Affected.
Sec. 2829. This article shall not be held to invalidate or affect in
any way any contract of the kind referred to in the first section
hereof, made prior to the third day of May, 1905, and any such con-
tract theretofore made may, upon compliance with the provisions of
this article, be recorded as herein provided.
Historical: Laws 1905, 15 4, Sec. 3.
"Made prior to the third day of May,
1905," inserted for "heretofore made".
The act contained no emergency
clause, and the eighth session, of the
Legislature adjourned March 4th,
1905, which would make the act ef-
fective May 3d, 1905.
CHAPTER 3.
BRIDGE, FERRY, FLUME AND BOOM CORPORATIONS.
Section
2830. License to take tolls.
2831. When franchise ceases.
Section
2832. Application to individuals.
Ch. 4.
TELEGRAPH, ETC., CORPORATIONS
1127
License to Take Tolls.
Sec. 2830. When a corporation is formed for the construction and
maintenance of a bridge, ferry, flume or boom, or for two or more
of said purposes, it must not take tolls on or for the same until au-
thority is granted therefor by the boards of county commissioners
of the county or counties where the flume or abutments, landings or
anchorages are situate. But after such authority is granted it may
demand and receive such tolls as it is so authorized to take, and may,
when necessary, secure the right of way for its flume, and the nec-
essary chutes, raceways, landings, abutments, and anchorages under
the provisions of the Code of Civil Procedure.
Cross Reference: Grant of authority
to take toll: Sec. 1015. Condemnation
proceedings: Sees. 5210-5229^
Historical: Rev. St. 1887, Sec. 2694.
California Legislation: Similar in
part: Civ. Code 1872, Sec. 528; Deer-
ing's Code, ib.; similar as amended:
Kerr's Code, ib.
When Franchise Ceases.
Sec. 2831. Every such corporation ceases to be a body corporate:
First. If, within one year from filing its articles of incorporation
it has not commenced the construction of its bridge, flume, or boom,
as the case may be, and if within two years from such filing its bridge
or boom is not completed ;
Second. If, when the bridge or boom of such corporation is de-
stroyed, it is not reconstructed and ready for use within two years
thereafter ;
Third. If the ferry of any such corporation is not in running or-
der within four months after authority to take tolls thereon is ob-
tained, or if at any time thereafter it ceases, for a like term consec-
utively, to perform the duties imposed by law.
Historical: Rev. St. 1887, Sec. 2 6 95.
California Legislation : Different:
Civ. Code 1872, Sec. 529; Deering's
Code, ib.; as amended: Kerr's Code, ib.
Application to Individuals.
Sec. 2832. When a bridge, ferry, flume, or boom is operated or
owned by a natural person, this chapter is applicable to such person
in like manner as it is applicable to corporations.
Historical: Rev. St. 1887, Sec. 2696.
California Legislation: Similar: Civ.
Code 1872, Sec. 531; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 4.
TELEGRAPH, TELEPHONE AND ELECTRIC POWER CORPORATIONS.
Section
2833. Right to use highways.
2834. Injury to company's property.
2835. Penalty for malicious injury.
2836. Transfer of rights and fran-
chises.
Section
2837. Rights of way for electric pow-
er companies.
Right to Use Highways.
Sec. 2833. Telegraph and telephone corporations may construct
lines of telegraph or telephone along and upon any public road or
highway, along or across any of the waters or lands within this State,
1128
CORPORATIONS
Tit. 4
and may erect poles, posts, piers, or abutments for supporting the
insulators, wires, and other necessary fixtures of their lines in such
manner and at such points as not to incommode the public use of the
road or highway, or interrupt the navigation of the waters.
Historical: Rev. St. 18 87, Sec. 2 700.
California Legislation: Same except
"telephone" corporations omitted: Civ.
Code 1872, Sec. 536; Deering's Code,
ib. ; similar as amended: Kerr's Code,
ib.
Cross Reference: Corporations have
the right to construct and maintain
lines of telegraph and telephone and
connect the same with other lines:
Const. Art. 11, Sec. 13.
Cited: O. S. L. Ry. Co. v. Postal Tel.
Cable Co. (1901) 111 Fed. Rep. 842.
Injury to Company's Property.
Sec. 2834. Any person who injures or destroys, through want of
proper care, any necessary or useful fixture of any telegraph or tel-
ephone corporation, is liable to the corporation for all damages sus-
tained thereby.
Historical: Rev. St. 1887, Sec. 2 701.
California Legislation: Same except
'telephone" corporations omitted: Civ.
Code 1872, Sec. 537; Deering's Code,
ib.; similar as amended: Kerr's Code,
ib.
Penalty for Malicious Injury.
Sec. 2835. Any person who wilfully or maliciously does any injury
to any telegraph or telephone property mentioned in the preceding
section, is liable to the corporation for one hundred times the amount
of actual damages sustained thereby, to be recovered in any court of
competent jurisdiction.
Historical: Rev. St. 18 8 7, Sec. 2 7 02.
California Legislation : Same except
"telephone" corporations omitted: Civ.
Code 1872, Sec. 538; Deering's Code,
ib. ; same as amended; Kerr's Code, ib.
Cross Reference: Criminal liability
for injuring telegraph or telephone
property: Sec. 7136.
Transfer of Rights and Franchises.
Sec. 2836. Any telegraph or telephone corporation may, at any
time, with the consent of the persons holding two-thirds of the issued
stock of the corporation, sell, lease, assign, transfer, or convey, any
rights, privileges, franchises, or property of the corporation, except
its corporate franchise.
Historical: Rev. St. 1887, Sec. 2 703.
California Legislation: Same except
"telephone" corporations omitted: Civ.
Code 1872, Sec. 540; Deering's Code,
ib.; same as amended; Kerr's Code, ib.
Rights of Way for Electric Power Companies.
Sec. 2837. Any person, company, or corporation, incorporated
or that may hereafter be incorporated under the laws of this State
or of any State or Territory of the United States, and doing business
in this State, for the purpose of supplying, transmitting, delivering,
or furnishing electric power or electric energy by wires, cables, or
any other method or means, shall have and is hereby given the right
to erect, construct, maintain, and operate all necessary lines upon,
along and over any and all public roads, streets and highways, except
within the limits of incorporated cities and towns and across the right
of way of any railroad or railroad corporation, together with poles,
piers, arms, cross-arms, wires, supports, structures and fixtues, for
Ch. 5.
WATER CORPORATIONS
1129
the purposes aforesaid, or either of them, in such manner and at such
places as not to incommode the public use of the road, highway,
street, or railroad, or to interrupt the navigation of water, together
with the right to erect, construct, maintain and operate upon said
electric power line a telephone line to be used only in connection with
the said electric energy and power line : Provided, That the corpora-
tion, company or person exercising the right of way herein and
hereby granted, shall first apply to the board of county commissioners
for permission to construct in the manner provided by law, and to
acquire a right of way, and shall give to the county into or through
which the right of way herein and hereby granted is exercised, a bond,
with surety to be approved by the board of county commissioners, in
the sum of five thousand dollars, conditioned to hold the said county
harmless from any and all liability on account of the erection, con-
struction, maintenance, or operation of the said electric line or lines :
Provided, further, That nothing in this section shall be construed to
mean the right to occupy public roads for any railroad or car line of
any kind.
Historical: Laws 1903, 343, Sec. 1.
Cross Reference: Obtaining author-
ity for stringing electric wires over
highways: Sec. 192 7.
CHAPTER 5.
WATER AND CANAL CORPORATIONS.
Section
2838. Contracts for municipal water
supply.
2839. Fixing water rates.
2840. Right of way granted.
2841. Works not to obstruct high-
ways.
Section
2842. Water users associations: Ex-
emption from taxes.
2843. Same: Record of articles and
subscriptions.
2844. Annual report of irrigation
companies.
Contracts for Municipal Water Supply.
Sec. 2838. No corporation formed to supply any city or town with
water must do so unless previously authorized by an ordinance of the
authorities thereof, or unless it is done in conformity with a contract
entered into between the city or town and the corporation. Contracts
so made are valid and binding in law, but do not take from the city
or town the right to regulate the rates for water, nor must any ex-
clusive right be granted. No contract or grant must be made for a
term exceeding fifty years.
Historical: Rev. St. 1887, Sec. 2710.
California Legislation: Similar: Civ.
Code 1872, Sec. 548; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Boise City Artesian Hot &
Cold Water Co. v. Boise City (1903)
123 Fed. Rep. 232.
Application to Individuals: This sec-
tion and the two following sections
apply only to corporations furnishing
water to cities, etc., and have no ap-
plication to contracts between an in-
dividual and a city for furnishing such
water, and an individual who so con-
tracts, is not obliged to furnish the
city, water free of charge for fire pur-
poses, as is provided in case of cor-
porations by the next session. Jack
v. Village of Grangeville (1903) 9 Ida.
291; 74 Pac. 969.
Actions — Pleading: In an action to
compel a water company to furnish
a city with free water in case of fire,
the complaint must set forth the ordi-
nance and contract by which the com-
pany is authorized to supply water to
the city. (Sullivan, J., dissents.) Boise
City v. Artes. H. & C. W. Co. (1895)
4 Ida. 351; 39 Pac. 562.
1130 CORPORATIONS Tit. 4
Fixing Water Rates.
Sec. 2839. All persons, companies, or corporations supplying water
to towns and cities, must furnish pure, fresh and healthful water to
the inhabitants thereof for family use, business houses, lawns and all
domestic purposes so long as their supply permits, without distinc-
tion of person, upon demand in writing therefor, under such reasonable
rules and regulations as the person, company, or corporation supply-
ing water, may, from time to time, establish, and at such rates as es-
tablished in the manner hereinafter specified; and must also furnish
water to the extent of its means in case of fire, or other great ne-
cessity, at reasonable rates established in the manner hereinafter
specified.
The rates to be charged for water must be determined by com-
missioners to be selected as follows : Two by the town or city author-
ities, or when there are no town or city authorities, then by the board
of county commissioners of the county, the two said commissioners so
selected to be taxpayers of such town or city; said town or city au-
thorities must, within ten days after the appointment of the two com-
missioners so selected, give notice in writing to said person, company,
or corporation supplying water, of the appointment of such commis-
sioners and the names of each, and within thirty days thereafter two
other commissioners, taxpayers of said town or city, must be selected
by the person, company or corporation supplying water, and in case
a majority of the four commissioners so selected cannot agree on the
rates to be fixed, they must select a fifth commissioner, who must also
be a taxpayer of such town or city, and if they cannot agree upon a
fifth commissioner, then the probate judge of the county, must, within
ten days after notice to him by said commissioners, that they are un-
able to agree upon a fifth commissioner, select a fifth commissioner
qualified as aforesaid. The decision of a majority of the commission-
ers thus selected must fix and determine the rates to be charged for
water for all the uses and purposes heretofore specified, for the ensu-
ing three years from the date of such decision, and until new rates are
established as herein provided. The decision of such commissioners so
selected must be made within ninety days from the date such board
of water commissioners is complete: Provided, That any person,
company, or corporation supplying water, and failing or refusing
within the time above specified to appoint such commissioners so re-
quired of them, shall forfeit the sum of one hundred dollars per day
for every day thereafter and until such commissioners are appointed :
Provided, further, That nothing in this section contained shall relieve
said town or city authorities from their duty to appoint the commis-
sioners herein specified within a reasonable time after the granting
of a franchise to any person, company, or corporation to supply water
as aforesaid: Provided, further, That said commissioners shall re-
reive a reasonable compensation for their services in establishing such
water rates, one-half of said sum to be paid by the town or city, and
one half by such person, company, or corporation supplying water:
Provided, further, That said commissioners shall be empowered to
incur any other expense that may be necessary to aid them in estab-
lishing such water rates, and one-half of such expense shall be paid by
the city or town, and the other half by such person, company, or cor-
poration supplying water.
Ch. 5.
WATER CORPORATIONS
1131
Historical: Rev. St. 1887, Sec. 2 711;
amended Laws 1905, 192, Sec. 1;
amended Laws 1907, 555, Sec. 1.
California Legislation: Similar in
part: Civ. Code 1872, Sec. 549; as
amended: Deering's Code, ib.; as
amended: Kerr's Code ib.
Amendment: This section, prior to
the amendment of 1905, required wa-
ter companies to furnish water in case
of fire or other great necessity, free of
charge. The following decisions con-
strue the section prior to amendment.
'Cited: Boise City v. Artes. H. & C.
W. Co. (1895, 4 Ida. 351; 39 Pac. 562;
Jack v. Village of Grangeville (1903)
9 Ida. 291; 74 Pac. 969; Spotswood v.
Morris (1906) 12 Ida. 360; 85 Pac.
1094.
Constitutionality: The provisions of
this section requiring water companies
to furnish cities with free water for
fire purposes, are constitutional. Boise
City v. Artes. H. & C. W. Co. (1895)
4 Ida. 351; 39 Pac. 562.
Not Retroactive: The provision of
this section requiring water companies
to furnish free water in case of fire,
cannot be made to apply to a corpora-
tion having a pre-existing contract for
the supply of water to a city, under
which it was entitled, to charge for
such water. Bellevue Water Co. v.
City of Bellevue (1893) 3 Ida. 739; 35
Pac. 693.
Free Water to Cities: Under the
provisions of this section, water com-
panies must furnish, free of charge,
water for street sprinkling purposes,
flushing sewers, etc., as this statute
was taken from California and has
been so construed by the courts of that
State. Boise City Water Co. /. Boise
City (1903) 123 Fed. Rep. 232.
Right of Way Granted.
Sec. 2840. Any corporation created under the provisions of this
title for the purposes named in this chapter, subject to the reasonable
rules and directions of the city or town authorities as to the mode or
manner of using such right of way within the city or town, and sub-
ject to the reasonable rules and directions of the board of county com-
missioners as to the mode and manner of using any right of way out-
side the corporate limits of such city or town, may use so much of the
streets, alleys and ways in any city or town, or the public roads and
highways within the county, as may be necessary for the laying of
pipes for conducting water to its consumers, or the building and main-
taining of ditches, canals, pipes, flumes and aqueducts in conducting
water from outside points to the corporate limits of said city or town.
Historical: Rev. St. 18 8 7, Sec. 2712;
amended Laws 1905, 192, Sec. 2.
California Legislation: Similar in
part: Civ. Code 1872, Sec. 550; Deer-
ing's Code, ib.; repealed 1905.
Cited: Boise City v. Artesian H. &
C. W. Co. (1895) 4 Ida. 351; 39 Pac.
562; Jack v. Village of Grangeville
(1903) 9 Ida. 291; 74 Pac. 969.
Works Not to Obstruct Highways.
Sec. 2841. All water works must be so laid and constructed as
not to obstruct public highways.
Historical: Rev. St. 188 7, Sec. 2 713,
last clause of section. The first por-
tion rdating to construction and re-
pair of bridges is superseded by Laws
1899, 380, Sec. 25 (See Code Sec.
3310).
California Legislation: See Civ.
Code 1872, Sec. 551; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Jack v. Village of Grange-
ville (1903) 9 Ida. 291; 74 Pac. 969.
Water Users' Associations: Exemption From Taxes.
Sec. 2842. Any water users' association which is organized in
conformity with the requirements of the United States under the
Reclamation act of June 17, 1902, and which, under its articles of in-
corporation, is authorized to furnish water only to its stockholders,
shall be exempt from the payment of any incorporation tax, and from
the payment of any annual franchise tax; but shall be re-
quired to pay, as preliminary to its incorporation, only a fee of
1132 CORPORATIONS Tit. 4
twenty dollars for the filing and recording of its articles of incorpora-
tion and the issuance of certificate of incorporation.
Historical: Laws 1905, 3 73, Sec. 3.
The reclamation act may be found in
U. S. Comp. Stat. (1905 Sup.) 349.
Cross Reference: License fees of
corporations: Sec. 2 785.
Same : Record of Articles and Subscriptions.
Sec. 2843. It shall be the duty of the county recorders of counties
in which water users' associations are organized, to provide record
books containing printed forms of the articles of incorporation and
stock subscriptions to the stock of water users' associations organized
in conformity with the requirements of the United States under the
Reclamation act, and to use such books for recording stock subscrip-
tions of such associations ; and the charges for the recording thereof
shall be made on the basis of the number of words actually written
therein and not for the printed form.
Historical: Laws 19 05, 3 73, Sec. 4.
Annual Report of Irrigation Companies.
Sec. 2844. It shall be the duty of any corporation owning or con-
trolling any canal or irrigation works for the distribution of water
under a sale of rental thereof in this State, to file, before the first
Monday in January in each year, in the office of the county recorder
of every county in which said company distributes water under such
sale or rental, upon a blank form to be prepared and furnished by him
upon application, and a duplicate copy thereof with the State Engi-
neer, a statement showing the condition of the business of said cor-
poration on December 31st, of the preceding year, which statement
shall include the following:
First. A general description of the property of the company.
Second. A statement of its cost and estimated present value.
Third. The total amount and the character of all indebtedness of
the company, including a list of all perpetual water rights sold and
outstanding and their respective dates of execution, and the amount
received from such sales.
Fourth. The amount due to said company and from what sources.
Fifth. The income of the company during the preceding calen-
dar year and from what sources.
Sixth. The expenditures by the company during the same period
and for what purposes.
Seventh. The total area of land watered from its works during
the preceding season; that part of said area having no water rights
attached being given separately.
Eighth. The number of acres of land under said ditch susceptible
of irrigation.
Ninth. The capacity of its works and the quantity of water car-
ried during the said season as nearly as known.
Tenth. The amounts of recorded appropriations and the date of
each.
Said statement shall be sworn to by the proper official of said
corporation. If the proper official, or principal accounting officer of
said corporation shall neglect or refuse to file the statement herein
required, the said recorder shall notify him of such failure, and if for
Ch. 6.
HOMESTEAD CORPORATIONS
1133
thirty days after said notification he still neglects or refuses to file
such statement, he shall be guilty of a misdemeanor, and shall be sub-
ject to a fine of not exceeding three hundred dollars, or to imprison-
ment in the county jail of his county for not more than six months,
or to both such fine and imprisonment. Said statement required to
be filed under this section shall be kept on file in the office of said re-
corder and shall be open to inspection.
Historical: Laws 1899, 380, Sec. 35.
CHAPTER 6.
HOMESTEAD CORPORATIONS.
and term of exis-
Section
2845. Definition
fence.
2846. Requirements as to by-laws.
2847. Sale of delinquent stock.
2848. Limitation on indebtedness.
2849. Minors and married women
may be stockholders.
Section
2850. Limitations on real estate hold-
ings.
Winding up of corporation.
Payment of premiums.
Publication of annual finan-
cial statement.
Same: Publication at capital.
2851.
2852.
2853.
2854.
Definition and Term of Existence.
Sec. 2845. Corporations organized for the purpose of acquiring
lands in large tracts, paying off incumbrances thereon, improving
and subdividing them into homestead lots or parcels, and distributing
them among the shareholders, and for the accumulation of a fund for
such purposes, are known as homestead corporations, and must not
have a corporate existence for a longer period than ten years.
Historical: Rev. St. 18 87, Sec. 272 0.
California Legislation: Same: Civ.
Code 1872, Sec. 557; Deering's Code,
ib.; Kerr's Code, ib.
Requirements as to By-Laws.
Sec. 2846. Such corporations must specify in their by-laws the
times when the installments of the capital stock are payable, the
amount thereof, and the fines, penalties, or forfeitures incurred in
case of default. A printed copy of the articles of incorporation and
by-laws must be furnished to any shareholder on demand.
Historical: Rev. St. 1887, Sec. 2 721.
California Legislation: Same: Civ.
Code 1872, Sec. 558; Deering's Code,
ib.; Kerr's Code, ib.
Sale of Delinquent Stock.
Sec. 2847. Whenever any shares of stock are declared forfeited
by resolution of the board of directors, the directors may advertise
the same for sale, giving the name of the subscriber and the number
of shares by notice of not less than three weeks, published at least
once a week in a newspaper of general circulation in the city, town,
or county where the principal place of business of such corporation
is located. Such sale must be made at auction, under the direction of
the secretary of the company. The corporation may be a bidder, and
the shares may be disposed of to the highest bidder for cash. No de-
fect, informality, or irregularity in the proceedings respecting the
sale invalidates it, if notice is given as herein provided. After the
sale is made, the secretary must, on receipt of the purchase money,
1134
CORPORATIONS
Tit. 4
transfer to the purchaser the shares sold, and after deducting from
the proceeds of such sale all installments then due, and all ex-
penses and charges of sale, must hold the residue subject to the order
of the delinquent subscriber.
Historical: Rev. St. 18!
California Legislation:
7, Sec. 2722.
Same: Civ.
Code 1872, Sec. 559; Deering's Code,
ib.; Kerr's Code, ib.
Limitation on Indebtedness.
Sec. 2848. Homestead corporations may borrow money for the
purposes of the corporation not exceeding at any one time one- fourth
of the aggregate amount of shares or parts of shares actually paid in,
and the income thereof ; no greater rate of interest must be paid there-
for than twelve per cent per annum. For the purpose of completing the
purchase of lands intended to be divided and distributed, they may bor-
row on the security of their shares on the land thus purchased, or
that owned by the corporation at the time of procuring the loan, any
sum of money which, together with the interest contracted to become
due thereon, will not exceed ninety per cent of the unpaid amount
subscribed by the shareholders; but no loan must be made to the
corporation for a term extending beyond that of its existence.
Historical: Rev. St. 1887, Sec. 2 723.
California Legislation: Same: Civ.
Code 1872, Sec. 560; Deering's Code,
ib.; Kerr's Code, ib.
Minors and Married Women May Be Stockholders.
Sec. 2849. Such shares of stock in homestead corporations as may
be acquired by children, the cost of which, and the deposits and as-
sessments on which are paid from the personal earnings of the chil-
dren, or with gifts from persons other than their male parents, may
be taken and held for them by their parents or guardians. Married
women may hold such shares as they acquire with their personal earn-
ings, or those of their children, voluntarily bestowed therefor, or from
property bequeathed or given to them by persons other than their hus-
bands.
Historical: Rev. St. 1887, Sec. 2 724.
California Legislation: Same: Civ.
Code 1872, Sec. 561; Deering's Code,
ib.; Kerr's Code, ib.
Limitations on Real Estate Holdings.
Sec. 2850. Homestead corporations must not purchase and sell, or
otherwise acquire and dispose of, real property or any interest there-
in, or any personal property for the sole purpose of speculation or
profit. Nor must any such corporation at any one time own or hold,
in trust or otherwise, for its purposes, real property or any interest
therein, which in the aggregate exceeds in cash value the sum of fifty
thousand dollars. For any violation of the provisions of this section,
corporations forfeit their corporate rights and powers. On the ap-
plication of any citizen to a court of competent jurisdiction, such for-
feiture may be adjudged, and the judgment carries with it costs of
proceedings.
Historical: Rev. St. 1887, Sec. 2 725.
California Legislation: Same except
"two hundred" for "fifty" thousand
dollars, line 6: Civ. Code 1872, Sec.
5 62; Deering's Code, ib.; Kerr's Code,
ib.
Ch. 6.
HOMESTEAD CORPORATIONS
1135
Winding Up of Corporation.
Sec. 2851. Except for the purpose of winding up and settling its
affairs, every homestead corporation must terminate at the expira-
tion of the time fixed for its existence in the articles of incorporation,
or when dissolved as provided in this title. No dividend of funds
must be made on termination of its corporate existence until its
debts and liabilities are paid ; and upon the final settlement of the af-
fairs of the corporation, or upon the termination of its corporate ex-
istence, the directors, in such manner as they may determine, must
divide its property among its shareholders in proportion to their re-
spective interests, or upon the application of a majority- in interest of
•the stockholders, must sell and dispose of any or all real estate of the
corporation upon such terms as may be most conducive to the inter-
ests of all the stockholders, and must convey the same to the pur-
chaser, and distribute the proceeds among the shareholders of* may,
at any time, when best for the interests of all the shareholders, cause
the lands of the corporation to be subdivided into lots and distributed,
by sale for premiums at auction or otherwise, among the share-
holders.
Historical: Rev. St. 188 7, Sec. 2 726.
California Legislation: Same except
'part" for "title", line 4: Civ. Code
1872, Sec. 563; Deering's Code, ib.
Kerr's Code, ib.
Payment of Premiums.
Sec. 2852. Such premiums on lots may be made payable at the
time they are bid off, and if not so paid on any lot of land, the direc-
tors may immediately offer the same for sale again. If made payable
at a future day, and any shareholder fails to pay his bid on the day
the same is made due and payable, the directors may advertise and
sell the shares of stock representing the lots of land on which the pre-
miums remain unpaid, in the manner provided in the by-laws for the
sale of shares on account of delinquent installments and premiums.
Historical: Rev. St. 18 87. Sec. 272 7.
California Legislation: Same: Civ.
Code 1872, Sec. 564; Deering's Code,
ib.; Kerr's Code, ib.
Publication of Annual Financial Statement.
Sec. 2853. The actual financial condition of all homestead corpo-
rations must, by the directors thereof, be published annually in a
newspaper published at the principal place of business of the corpo-
ration, for four weeks, if published in a weekly, and two weeks if pub-
lished in a daily, paper. The statement must be made up to the end
of each year, and must be verified by the oath of the president and
secretary, showing the items of property and liabilities.
Historical: Rev. St. 1887, Sec. 2728.
California Legislation: Same: Civ.
Code 1872, Sec. 565; Deering's Code,
ib.; Kerr's Code, ib.
Same: Publication at Capital.
Sec. 2854. In any case in which a publication is required, and no
newspaper is published at the principal place of business, the publi-
cation may be made in a paper published at the capital of the State.
Historical: Rev. St. 1887, Sec. 272 9.
California Legislation: Same except
"in an adjoining county" for "at the
capital of the State"; Civ. Code, 1872,
Sec. 5 66; Deering's Code, ib. : Kerr's
Code, ib.
Vol. 1 — 37
1136
CORPORATIONS
Tit. 4
CHAPTER 7.
INSURANCE COMPANIES.
Article
1. Capital stock, property holdings
and dividends.
2. Financial statements, license taxes
and examination of companies.
Article
3. Issuance of policies.
4. Miscellaneous provisions.
Xote: The appointment, qualifications, salary and general duties of the
Insurance Commissioner are provided for in the Pol. Code, Sees. 161-169.
ARTICLE 1.
CAPITAL STOCK. PROPERTY HOLDINGS AXD DIVIDEXDS.
Section
2855. Capital required of insurance
companies.
2856. Same: Foreign companies.
2857. Completion of capital stock.
2858. When capital must be paid up.
2859. Certificate of paid up capital.
Section
2860. Limitation on real estate hold-
ings.
2 861. Payment of dividends.
2862. Investment of funds of fire
companies.
2863. Limitations on dividends.
Capital Required of Insurance Companies.
Sec. 2855. It shall be unlawful for any fire, marine, inland, life or
health or casualty insurance company, incorporated by or under, or or-
ganized pursuant to, the laws of any foreign government or of any
State or Territory of the United States or for any person or persons,
directly or indirectly, to take any risks or transact any business of fire,
marine, inland, life, health or casualty insurance in this State, unless
possessed of an actual paid up capital or assets of not less than one
hundred thousand dollars.
Historical: Laws 1901. 165, Ch. 2.
Sec. 7.
Same: Foreign Companies.
Sec. 2856. No company incorporated by or organized under the
laws of any other State or government, shall transact business in
this State unless it is possessed of the actual amount of capital re-
quired of any company organized by the laws of this State, or, if it
be a mutual company, of surplus equal in amount thereto, and the
same is invested in bonds of the United States, or of this State, or
in interest paying bonds, when they are at or above par, of the State
in which the company is located, or of some other State, or in county,
municipal or school district bonds in either or both of said States,
or in notes or bonds secured by mortgages on unencumbered real es-
tate within this or the State where such company is located, worth
double the amount loaned thereon ; such interest bearing bonds, notes
and bonds secured by mortgages to be worth in the aggregate one
hundred thousand dollars.
Historical: Laws 1901, 165, Ch. 2,
Sec. 6; amended Laws 1903, 253, Sec.
1; amended Laws 1905, 255. Sec. 1.
Completion of Capital Stock.
Sec. 2857. After the certificate of incorporation of an insurance
Ch. 7. Art. 1.
INSURANCE — CAPITAL STOCK, ETC.
1137
company is issued, as provided in Chapter 1 of this title, the direc-
tors named in the articles of incorporation must proceed in the man-
ner specified in their by-laws, or if none, then in such manner as
they may by order adopt, to open books of subscription to the capital
stock then unsubscribed, and to secure subscriptions to the full
amount of the fixed capital; to levy assessments and installments
thereon, and to collect the same, as in this title provided.
Historical: Rev. St. 1887, Sec. 2 740.
California Legislation: Similar: Civ.
Code 1872, See. 414; Deering's Code,
ib.; Kerr's Code, ib.
When Capital Must Be Paid Up.
Sec. 2858. The entire capital stock of every fire insurance corpo-
ration must be paid up in cash within twelve months from the filing
of the articles of incorporation, and no policy of insurance rfHist be
issued or risk taken until twenty-five per cent of the whole capital
stock is paid up.
Historical: Rev. St. 188 7, Sec. 2 745.
California Legislation: Same except
'or marine" inserted after "fire", line
1: Civ. Code 1872. Sec. 424: Deering's
Code, ib. ; Kerr's Code, ib.
Certificate of Paid Up Capital.
Sec. 2859. The president and a majority of the directors must,
within thirty days after the payment of the twenty-five per cent of
the capital stock, and also within thirty days after the payment of the
last installment or assessment of the capital stock limited and fixed,
prepare, subscribe and swear to a certificate setting forth the amount
of the fixed capital and the amount thereof paid up at the times re-
spectively in this section named, and file the same in the office of the
county recorder of the county where the principal place of business
of the corporation is located.
ecuted, with the Insurance Commis-
sioner" added: Civ. Code 1872, Sec.
425; Deering's Code, ib.; Kerr's Code,
ib.
Historical: Rev. St. 1887, Sec. 2 746.
California Legislation: Same except
"clerk" for "recorder", line 8, and
"and a duplicate thereof similarly ex-
Limitation on Real Estate Holdings.
Sec. 2860. No insurance corporation must purchase, hold or con-
vey real estate, except as hereinafter set forth, to-wit:
First. Such as is requisite for its accommodation in the con-
venient transaction of its business, not exceeding in value thirty
thousand dollars;
Second. Such as is conveyed to it, or to any person for it, by way
of mortgage or in trust or otherwise, to secure or provide for the
payment of loans previously contracted, or for moneys due;
Third. Such as is purchased at sales upon deeds of trust or judg-
ments obtained or made for such loans or debts;
Fourth. Such as is conveyed to it in satisfaction of debts pre-
viously contracted in the course of its dealings;
All such real estate, so acquired, which is not requisite for the ac-
commodation of such corporation in the transaction of its business,
must be sold and disposed of within five years after such corporation
acquired title to the same.
1138
CORPORATIONS
Tit. 4
Historical: Rev. St. 1887, Sec. 2 741.
California Legislation : Same except
"one hundred and fifty thousand" for
"thirty thousand", subd. 1, also addi-
tional provisions: Civ. Code 1872, Sec.
415; Deering's Code, ib.; amended:
Kerr's Code, ib.
Payment of Dividends.
Sec. 2861. The directors of every insurance corporation, at such
times as their by-laws provide, must make, declare and pay to the
stockholders dividends of so much of the net profits of the corporate
business and interest on capital invested, as to them appears advisa-
ble; but the moneys received, and notes taken for premium on risks
which are undetermined and outstanding at the time of making the
dividend, must not be treated as profits nor divided except as pro-
vided in this chapter.
Historical: Rev. St. 1887, Sec. 2 743.
California Legislation: Same except
"in Chapter 2 of this title" for "in
this chapter", last words: Civ. Code
1872, Sec. 417; Deering's Code ib,;
Kerr's Code, ib.
Investment of Funds of Fire Companies.
Sec. 2862. Every fire insurance corporation may, by its board of
directors or as the by-laws direct, invest its funds in loans upon real
or personal property, or in the purchase of stocks, bonds, or other se-
curities, but no loan must be made on the stock of the corporation
as security.
Historical: Rev. St. 188 7, Sec. 2 748.
California Legislation: Same except
"and marine" inserted after "fire",
line 1: Civ. Code 1872, Sec. 427; dif-
ferent as amended: Deering's Code,
ib.; repealed 1905.
Limitations on Dividends.
Sec. 2863. No corporation transacting fire insurance business un-
der the laws of this State, must make any dividends except from
profits remaining on hand after retaining unimpaired :
First. The entire subscribed capital stock;
Second. All the premiums received or receivable on outstanding
risks;
Third. A sum sufficient to pay all losses reported or in the course
of settlement, and all liability for expenses and taxes.
Historical: Rev. St. 1887, Sec. 2750.
California Legislation: Similar but
including marine insurance: Civ.
Code 1872, Sec. 429; as amended:
Deering's Code, ib. ; further amended:
Kerr's Code, ib.
ARTICLE 2.
FINANCIAL STATEMENTS, LICENSE TAXES AXD EXA3HXATIOX OF
COMPAXIES.
Section
2864. Annual statement of condition
of company.
28 65. Same: Contents.
2866. Publication of financial state-
ment.
Section
2 867. Annual statement of premi-
ums: Tax.
2868. Inquiries as to condition of
companies.
2869. Impairment of assets.
Annnual Statement of Condition of Company.
Sec. 2864. It shall be the duty of the president, or the vice presi-
dent and secretary of every insurance company doing business in this
Ch. 7. Art. 2. INSURANCE — FINANCIAL STATEMENTS, ETC. 1139
State, annually, on or before the first day of April of each year, to
prepare, under oath, and deposit with the Insurance Commissioner
a full, true and complete statement of the condition of said company
on the last day of the month of December preceding.
Historical: Laws 1901, 165, Ch. 2, I Cited: Idaho Mut. etc. Ins. Co. v.
Sec. 2. I Myer (1904) 10 Ida. 294; 77 Pac. 628.
Same : Contents.
Sec. 2865. The annual statement required by the preceding sec-
tion shall exhibit the following items and facts :
1. The name of the company, and where located.
2. The names and residences of the officers of the company doing
business in the State.
3. The amount of the capital stock or assets of the company.
4. The amount of capital stock paid up.
5. The property or assets held by the company, viz: The real
estate owned by such company; the amount of cash on hand and de-
posited in banks to the credit of the company; the amount of cash
in the hands of agents ; the amount of cash in course of transmission ;
the amount of loans secured by first mortgage on real estate, with
the rate of interest thereon ; the amount of all bonds and other loans
with the rate of interest thereon; all other securities, their descrip-
tion and value.
6. The liabilities of such company, specifying the losses adjusted
and due; losses adjusted and not due; losses unadjusted; losses in
suspense and the cause thereof; losses resisted and in litigation; the
amounts due banks or other creditors; the amount of money bor-
rowed by the company ; the rate of interest theron and how secured ;
the net value of all policies in force, calculated as per the combined
experience table of mortality, at four per cent interest, and all other
claims against the company, describing the same.
7. Net surplus over all liabilities.
8. The income of the company during the preceding year, stating
the amount received for premiums, specifying separately health, life,
fire, marine or inland premiums, deducting reinsurance; the amount
received for interest and from all other sources.
9. The expenditures during the preceding year, specifying the
amount of losses paid during said term; the amount paid for return
premiums.
10. The amount of risk written during the preceding year.
Historical: Laws 1901, 165, Ch. 2, i Cited: Idaho Mut. etc. Ins. Co. v.
Sec. 3. I Myer (1904) 10 Ida. 294; 77 Pac. 628.
Publication of Financial Statement.
Sec. 2866. Every company, corporation, association or society
transacting the business of life insurance within the State of Idaho,
shall publish, or cause to be published soon after the first of Jan-
uary, and prior to the first of April, in some paper published in the
Capital, a statement showing the exact conditions of its affairs on the
last day of the month of December, preceding.
Historical: Laws 1901, 165, Ch. 2, | first portion comprises Sees. 2881 and
Sec. 20. Final clause of section; the 2869.
1140
CORPORATIONS
Tit. 4
Annual Statement of Pemiums : Tax.
Sec. 2867. All insurance companies now doing business in this
State, or that may hereafter do business in this State, under the pro-
visions of this chapter, must file with the Insurance Commissioner
annually, on or before the fifteenth day of April of each year, a state-
ment under oath stating the amount of all premiums received by said
company during the year ending December 31st preceding in this
State, and the amount actually paid policy holders during the same
time, and shall pay into the State Treasury a tax of two per centum
on all such premiums collected, less the amount of all losses actually
paid policy holders, and premiums returned. The Commissioner shall
file such vertified statement and schedule in his office and certify the
amount of gross receipts, less amount of losses actually paid policy
holders, and premiums returned as aforesaid to the State Treasurer.
Within thirty days thereafter such insurance company shall pay or
cause to be paid into the State Treasury a tax of two per centum, or
two per centum upon all such gross receipts, less such amounts of
losses actually paid policy holders and premiums returned in the State
of Idaho, which payment, when made, shall be in lieu of all taxes upon
the personal property of such company, and the shares of stock or as-
sets therein. Any organization failing or refusing to render such
statement and to pay the required tax of two per centum thereon for
more than thirty days after the time so specified, shall be liable to a
fine of one hundred dollars for each additional day of delinquency, and
the taxes may be collected by distraint, and a fine recovered by an
action to be instituted by the Attorney General in the name of the
State, in any court of competent jurisdiction, and the Commissioner
shall revoke the license and authority of such delinquent company
until such payment of taxes and fine, should any be imposed, is fully
paid, and notice thereof is given to the Insurance Commissioner:
Provided, That all real property, if any, of such company, shall be
listed, assessed and taxed the same as real property of like character
of individuals.
Historical: Laws 1901, 165, Ch. 2,
Sec. 13. The three concluding words
"by said company" are omitted as
meaningless.
Application to Mutual Companies:
A mutual co-operative insurance com-
pai y organized under Laws 1903, 74,
need not pay the annual license and
taxes required bv this section. Idaho
Mut. etc. Ins. Co. v. Myers (1904) 10
Ida. 294: 77 Pac. 628.
Inquiries as to Condition of Companies.
Sec. 2868. The Insurance Commissioner may address inquiries to
any insurance corporation or association doing business in this State,
or to any officer thereof, in relation to its doings or conditions or any
other matter connected with the transactions. It shall be the duty of
every corporation or officer so addressed to properly reply, in writing,
to such inquiries. Whenever the Commissioner shall deem it expe-
dient so to do, or when five responsible persons shall file with him
written charges against any such corporation, alleging that any state-
ment or return filed by it with such Commissioner is false, or that
its affairs are in an unsound condition, he shall, in person, or by
someone to be appointed by him for that purpose, not an officer or
agent of, or in any manner interested in, any insurance corporation
doing business in this State, except as a policy holder, examine into
Ch. 7. Art. 3.
INSURANCE — POLICIES
1141
its affairs and conditions. It shall be the duty of the corporation,, its
officers or agents, to cause its books to be opened for inspection, and
to pay all reasonable expense of and compensation for such exam-
ination upon the certificate and the requisition therefor of said Com-
missioner, which expense, however, shall not exceed five dollars a
day during the time of the examination, and five cents per mile for
traveling by the most direct route in going and coming from the
place where such examination took place; but no corporation exam-
ined shall, directly or indirectly, pay, by way of gift, gratuity or
otherwise, any other or further sum to said Commissioner or exam-
iner for services, extra services, or for purposes of legislation or on
any other pretense whatever. Any Commissioner, examiner, officer,
clerk or employee of any insurance company violating any provision
of this section shall be guilty of a misdemeanor.
Whenever it shall appear to the Commissioner, from his own ex-
amination or the report of the person appointed by him, that the con-
dition of any company examined is unsound, he shall revoke the
certificate granted such company, and cause a notification thereof
to be published in a daily paper at the Capital, and mail a copy
thereof to each agent of the company, and the agent or agents thereof,
after such notice, shall be required to discontinue doing business for
such company.
The Commissioner shall, in like manner and upon like conditions,
examine insurance corporations applying for admission to transact
business in this State, and if the affairs or conditions of any such
corporation do not fully meet with the requirements of the law, he
shall withhold his certificate: Provided, however, That a certificate
from the insurance commissioner of any State who has recently ex-
amined the affairs of said company shall be accepted as evidence as
to the condition of the company.
Historical: Laws 1901, 165, Ch. 2,
Sec. 17.
Impairment of Assets.
Sec. 2869. No association or society shall be admitted or permitted
to do business within the State of Idaho, if it shall appear to the sat-
isfaction of the Insurance Commissioner, after examination or other
evidence, that its assets or capital stock, or membership is seriously
impaired or decreasing.
Historical: Laws 1901, 165, Ch. 2,
Sec. 20. Middle clause of section; the
first part is contained in Sec. 2881, and
the last part in Sec. 2866.
ARTICLE 3.
ISSUANCE OF POLICIES.
Section
2870. Insurance against fire.
2871. Issuing- insurance when losses
equal capital.
2872. Execution of policies.
2873. Maximum risks: Re-insurance.
2874. Total loss: Return of un-
earned premium.
2875. Risks to be written in author-
ized companies.
Section
2876. Agents must produce certifi-
cate.
2877. Transacting business without
certificate: Penalty.
2878. Policies to be countersigned by
resident agents.
28 79. Same: Penalty for violation.
2880. Discrimination prohibited.
2881. Assessment policies must be so
stamped.
1142 CORPORATIONS Tit. 4
Insurance Against Fire.
Sec. 2870. Every corporation formed for fire insurance may make
insurance on all insurable interests within the scope of its articles
of incorporation, and may cause itself to be re-insured.
Historical: Rev. St. 188 7, Sec. 2 7 47.
California Legislation: Same except
"fire or marine insurance or both" for
"fire insurance", line 1: Civ. Code
1872, Sec. 426; Deering's Code,
ib.; Kerr's Code, ib.
Issuing Insurance When Losses Equal Capital.
Sec. 2871. If any insurance corporation is under liabilities for
losses to an amount equal to its capital stock, and the president or
directors, after knowing the same, make any new or further insur-
ance, the estates of all who make such insurance or assent thereto,
are severally and jointly liable for the amount of any loss which
takes place under such insurance.
Historical: Rev. St. 1887, Sec. 2744. i Code 1872, Sec. 418; Deering's Code,
California Legislation: Same: Civ. ib.; Kerr's Code, ib.
Execution of Policies.
Sec. 2872. All policies made by insurance corporations must be
subscribed by the president or vice president, or in case of the death,
absence or disability of those officers, by any two of the directors,
and countersigned by the secretary of the corporation. All such
policies are as binding and obligatory upon the corporation as if ex-
ecuted over the corporate seal.
Historical: Rev. St. 1887, Sec. 2742, I Code 1872, Sec. 416; Deering's Code,
California Legislation: Same: Civ. ib.; Kerr's Code, ib.
Maximum Risks : Reinsurance.
Sec. 2873. No fire, marine or inland insurance company doing
business in this State shall expose itself to any loss on any one risk,
to an amount exceeding ten per cent of its paid up capital, unless the
excess shall be reinsured by such company in some other solvent
insurance company.
Historical: Laws 1901, 165, Ch. 2,
Sec. 10.
Total Loss: Return of Unearned Premium.
Sec. 2874. In the event of the total destruction of any insured
property, on which the total amount or agreed loss shall be less than
the total amount insured thereon, the insurance company or com-
panies shall return to the insured, the unearned insurance premium
for the excess of the insurance over the appraised or agreed loss, to
be paid at the same time and in the same manner as the loss shall
be paid.
Historical: Laws 1901, 165, Ch. 2,
Sec. 11.
Risks to Be Written in Authorized Companies.
Sec. 2875. All fire insurance risks covering property in this State
must be written in companies authorized to do business in this State,
and only through their licensed agents residing or doing business in
this State (reinsurance excepted). Any company violating this sec-
tion will be liable to a fine of one hundred dollars, and its license will
Ch. 7. Art. 3. INSURANCE — POLICIES 1143
be revoked for a period of one year. Each annual statement, when
filed, must have the certificate of the president, secretary or manager
that this section has not been violated.
Historical: Laws 1901, 165, Ch. 2,
Sec. 12.
Agents Must Procure Certificates.
Sec. 2876. It shall not be lawful for any person to act within this
State as an agent or otherwise in soliciting or receiving applications
for insurance of any kind whatever, or in any manner to aid in the
transaction of the business of any insurance company, incorporated
in this State or out of it, without first procuring a certificate of
authority from the Insurance Commissioner. ^
Historical: Laws 1901, 165, Ch. 2, I Cited: Idaho Mut. etc Ins. Co. v.
Sec. 1. I Myer (1904) 10 Ida. 294; 77 Pac. 628.
Transacting Business Without Certificate: Penalty.
Sec. 2877. Any person or agent transacting an insurance business
without the certificate herein required, or after such certificate shall
have been withdrawn or revoked, shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined in any sum not exceeding
one hundred dollars, or imprisoned in the county jail not exceeding
six months, or punished by both such fine and imprisonment.
Historical: Laws 1901, 165, Ch. 2,
Sec. 18. "Punished" inserted before
"by both", etc., to complete the sense.
Policies to be Countersigned by Resident Agents.
Sec. 2878. No insurance company or association not incorporated
under the laws of this State, authorized to transact the business of
fire, accident, surety, liability or workmen's collective insurance, shall
make, write, place, or cause to be made, written or placed any policy,
duplicate policy or contract of insurance of any kind or character,
or any general or floating policy, upon property situated or located in
this State, except after the said risk has been approved in writing
by an agent who is a resident of the community in which said risk
is located, and being a regularly licensed and duly commissioned agent
to transact insurance business therein, who shall countersign all pol-
icies so issued, and receive the commission thereon when the premium
is paid. Nothing in this section shall be construed to prevent any
such insurance company or association, authorized to transact busi-
ness in this State, from issuing policies at its principal or department
offices covering property in this State: Provided, That such policies
are issued upon application procured and submitted to such com-
panies by duly authorized agents who are residents of the county and
State in which said property is located, which agents shall counter-
sign all policies so issued and receive the commission thereon when
paid. No provision in this section is intended to or shall apply to
direct insurance covering the rolling stock of railroad corporations
or property in transit while in the possession and custody of common
carriers, nor the property of such common carriers used or employed
in their business as common carriers of freight, merchandise or pas-
sengers.
1144 CORPORATIONS Tit. 4
Historical: Laws 1901, 138, Sec. 1.
Same: Penalty for Violation.
Sec. 2879. Any insurance company or association wilfully violat-
ing or failing to observe and comply with the provisions of the pre-
ceding section, shall be subject to and liable to pay a penalty of five
hundred dollars for each violation thereof, and for each failure to
observe and comply with the provisions of said section. Such penalty
may be collected and recovered in an action brought in the name of
the State in any court having jurisdiction thereof. Any insurance
company or association which shall neglect or refuse for thirty days
after such judgment in any such action to pay and discharge the
amount of such judgment, shall have its authority to transact busi-
ness in this State revoked by the State Treasurer, and such revoca-
tion shall continue at least one year from date thereof, nor shall any
insurance company or association, whose authority to transact busi-
ness in this State shall have been so revoked, be again authorized or
permitted to transact business herein until it shall have paid the
amount of any such judgment, and shall have filed in the office of
the State Treasurer a certificate signed by its president or other chief
officer, to the effect that the terms and obligations of the provisions
of this and the preceding section are accepted by it, as a part of the
conditions of its right and authority to transact business in this
State.
Historical: Laws 1901, 138, Sec. 2.
Discrimination Prohibited.
Sec. 2880. No insurance corporation or company subject to the
provisions of this chapter shall make any discrimination in favor of
individuals of the same occupation and expectation of life, and such
corporation or company shall not make any contract for insurance,
or agreement as to such contract, other than that which is available
to each and every applicant for insurance, of the same occupation
and expectation of life, to such corporation, company, or any agent
thereof. No such corporation or company or agent thereof shall pay
or allow, or offer to pay or allow, as an inducement to any person to
insure, any rebate of premium, or any special favor or advantage
whatever in the dividends to accrue thereon, either by way of ser-
vices rendered or to be rendered by the applicant for insurance, as an
adviser to the company or as a member of an advisory board or other
similar board or body, or for service rendered, or to be rendered, of
any kind or nature, or any other inducement whatever. Any person
who shall so contract with such company or corporation or any agent
thereof, or who shall receive any such favor or advantage, shall be
deemed an agent or solicitor of insurance within the meaning of
this chapter.
A violation of the provisions of this section shall constitute a
misdemeanor, and, upon conviction, shall subject the party offending
to the payment of a fine of not more than three hundred dollars, or
to imprisonment in the county jail for a period not exceeding six
months, or to both such fine and imprisonment, and, if it shall appear
to the satisfaction of the Insurance Commissioner that any corpora-
tion is issuing policies or making contracts that are in violation of
Ch. 7. Art. 4. INSURANCE — MISCELLANEOUS PROVISIONS
1145
this section, he shall revoke the authority of such corporation to do
business in this State.
Any such insurance corporation or company, or the agents of such
corporation or company, shall, upon demand, in writing by the In-
surance Commissioner, furnish him with the form or forms of all
insurance policies, the form or forms of all contracts for insurance,
and the form or forms of all other paper or papers pertaining to any
contact for insurance, or the maintenance of the same, issued, used,
or intended or authorized to be issued or used, by said corporation or
company or by its agents or representatives, in and about the busi-
ness of life insurance carried on by said corporation or company, and
upon a failure on the part of such corporation or company, or its
agents or representatives, to comply with such demand within a
period of fifteen days after service of the same, the Insurance Com-
missioner shall revoke the authority of such corporation or company
to do business in this State. Service of such demand upon an agent
of said corporation or company within this State, or a deposit of the
same in the postoffice, registered and addressed to the home, or re-
puted home, office of such corporation or company, shall be sufficient
service thereof.
Historical: Laws 1901, 165, Ch. 2,
Sec. 19; amended Laws 1903, 253, Sec.
2; amended Laws 1905, 255, Sec. 1.
Assessment Policies Must Be So Stamped.
Sec. 2881. Every policy or certificate issued to a resident of the
State of Idaho, by any corporation therein, transacting the business
of life insurance upon the assessment plan, or admitted into this
State under the laws of Idaho, shall print in bold type (in red ink)
in every policy or certificate issued upon the life or lives of the citi-
zens of Idaho, making one of the principal lines near the top thereof,
the words, "Issued upon the assessment plan," and the words, "As-
sessment plan," shall be conspicuously printed (in red ink) in or upon
every application, circular, card, advertisement and other printed doc-
ument issued, circulated or caused to be circulated by such corpora-
tion within this State.
Historical: Laws 1901, 165, Ch. 2,
Sec. 20. First half of section, omit-
ting- "from and after the passage of
this act" as now obsolete; the last half
of the section comprises Sees. 2869
and 2866.
ARTICLE 4.
MISCELLANEOUS PROVISIONS.
Section
2882. Companies must file articles
and by-laws.
2883. Appointment of agent for ser-
vice of process.
2884. Venue of actions: Service of
process.
Section
2885. Failure to satisfy judgments:
Revocation of authority.
2886. License of assessment life com-
panies.
2887. Same: Fees.
2888. Fees of Commissioner.
Companies Must File Articles and By-Laws.
Sec. 2882. Each life, health, fire, marine, inland or casualty in-
surance company, shall file with the Insurance Commissioner its acts
of incorporation and all amendments thereto, and a copy of its by-
1146 CORPORATIONS Tit. 4
laws, together with the names and residences of each of its officers
and directors, all of which shall be certified under the hands of the
president and secretary of such company.
Historical: Laws 1901, 165, Ch. 2,
Sec. 4.
Appointment of Agent for Service of Process.
Sec. 2883. Any insurance company not incorporated or organ-
ized under the laws of this State, desiring to transact business in
this State, shall file with the Insurance Commissioner of this State
a written instrument of power of attorney, duly signed and sealed, ap-
pointing and authorizing some person who shall be a resident of this
State, to acknowledge or receive service of process, and upon whom
process may be served for and in behalf of such company in all pro-
ceedings that may be instituted against such company in any court
of this State, or any court of the United States in this State, and
consenting that service of process upon any agent or attorney ap-
pointed to accept service under the provisions of this section, shall
be taken and held to be as valid as if served upon the company, and
such instrument shall further provide that the authority of such
attorney shall continue until revocation of his appointment is made
by such company, by filing a similar instrument with the said Insur-
ance Commissioner, whereby another person shall be appointed as such
attorney.
Historical: Laws 1901, 165, Ch. 2,
Sec. 5.
Venue of Actions: Service of Process.
Sec. 2884. Suits may be instituted and prosecuted against any fire,
marine, inland, life or health insurance company in any county where
loss occurs, or where the policy holder instituting such suit resides,
and the process in any such suit may be served upon any person in
this State, holding a power of attorney for such company.
Historical: Laws 1901, 165, Ch. 2,
Sec. 8.
Failure to Satisfy Judgments: Revocation of Authority.
Sec. 2885. Should any life, health, fire, marine or inland insurance
company fail to pay off and satisfy any execution that may lawfully
issue, or any final judgment, against said company, within thirty
days after the officer holding such execution has demanded payment
thereof from the duly authorized officer, agent or attorney of such
company in this State or out of it, such officer shall immediately
certify such demand and failure to the Insurance Commissioner, and
thereupon the Commissioner shall forthwith declare null and void
the certificate of authority issued by him to such company, and such
company shall be prohibited from transacting any business in this
State until "said execution shall be fully satisfied and discharged,
and until such Commissioner shall renew his certificate of authority
to such company.
Historical: Laws 1901, 165, Ch. 2,
Sec. 9.
Ch. 7. Art. 4. INSURANCE — MISCELLANEOUS provisions 1147
License of Assessment Life Companies.
Sec. 2886. Companies or associations organized under the laws of
any other State of the United States, carrying on the business of
life or casualty insurance on the assessment or natural premium plan,
and having cash assets of the sum of not less than one hundred
thousand dollars, invested as required by the laws of this State reg-
ulating other insurance companies, shall be licensed by the Insurance
Commissioner to do business in this State, and be subject only to
the provisions of this chapter: Provided, however, That such com-
pany or association shall first file with the Commissioner a certified
copy of its charter; a written agreement appointing the Insurance
Commissioner and his successor in office to be its true and lawful
attorney upon whom all lawful process in any action or proceeding
against it may be served ; a certificate under oath of its president and
secretary that it is paying, and for the twelve months next preceding
has paid, the maximum amount named in its policies or certificates
in full ; a statement under oath of its president and secretary of its
business for the year ending December 31st preceding; a certified
copy of its constitution and by-laws ; a copy of its policy and applica-
tion; a certificate from the proper authority in its home state that
said company or association is legally entitled to do business in such
home State, and has at least one hundred thousand dollars surplus
assets subject to its indebtedness. It shall be the duty of the Insur-
ance Commissioner to issue a license to any company or association
complying with the provisions of this chanter, and every such com-
pany or association shall annually thereafter, before such license is
renewed, file with the Insurance Commissioner, on or before the first
day of May, a statement under oath of its president and secretary,
or like officers, of its business ending December 31st of the year pre-
ceding.
Historical: Laws 1901, 165, Ch. 2,
Sec. 15.
Same : Fees.
Sec. 2887. Every such company or association shall pay to the In-
surance Commissioner, for the use of the State, the following fees :
For filing copy of its charter, ten dollars; for filing statement pre-
liminary to its admission, ten dollars; for filing each annual state-
ment after admission, ten dollars; and for each agent's certificate
of authority, three dollars.
Historical: Laws 1901, 165, Ch. 2,
Sec. 16.
Fees of Commissioner.
Sec. 2888. The Commissioner shall collect from each accident,
health, fire, marine, inland, casualty or fidelity company, transacting
business in this State, an annual license of fifty dollars; for filing
certified copies of its articles of incorporation, ten dollars; for filing
annual statement, ten dollars ; for each fire agent's certificate of
authority, three dollars — said fire agents' certificates are transferable
to successors in office for their unexpired term; from each life insur-
ance Company an annual license of fifty dollars ; for filing a certified
1148
CORPORATIONS
Tit. 4
copy of its articles of incorporation, ten dollars; for filing each an-
nual statement, ten dollars; for each agent's certificate of authority,
five dollars. Said fees are payable at the time of filing the first
statement, and, with the exception of the fee for filing the articles of
incorporation, annually thereafter at the time of filing the annual
statement in April of each year, and before the Commissioner shall
issue his certificate of authority.
Blank licenses shall be signed and issued by the State Auditor to
the Insurance Commissioner from time to time as required, and
charged to him. The Insurance Commissioner shall make monthly
reports on the first of each month to the Auditor of the number of
licenses issued by him. The money derived from the sale of licenses,
and for filing or for other fees under this chapter, shall be paid into
the general fund of the State.
Historical: Laws 1901, 165, Ch. 2,
Sec. 14; amended Laws 1903, 253, Sec.
3.
CHAPTER 8.
SECRET FRATERNAL INSURANCE SOCIETIES.
Section
2889. Definition: Government: Ben-
efit fund: Beneficiaries.
2 8 90. Associations already formed to
comply.
2891. Foreign associations.
2892. Association to make reports:
Contents.
2 893. Service of process on associ-
ation.
28 94. Permit to do business: How
obtained.
2895. How incorporated.
2896. Associations shall not employ
agents.
Section
2 897. Contract of beneficiary to pay
dues.
2898. Benefits exempt from attach-
ment and execution.
2899. Place of meeting of governing
body.
2900. False statements in applica-
tion for insurance or benefit.
2901. Failure to make report or ap-
point agent.
2902. Agent of non-complying soci-
ety guilty of misdemeanor.
2903. Fees for report .
2904. Application of chapter.
Note: A similar act may be found in Iowa Ann. Code (1897) Sees. 1822
et seq.
Sec. 2889. A fraternal beneficiary association is hereby declared
to be a corporation, society or voluntary association, formed or organ-
ized and carried on for the sole benefit of its members and their
beneficiaries, and not for profit. Each association shall have a lodge
system, with ritualistic form of work and representative form of
government, and shall make provision for the payment of benefits
in case of death, and may make provision for the payment of benefits
in case of sickness or temporary or permanent physical disability,
either as a result of disease, accident or old age. Provided* That
the period in life at which payment of physical disability benefits on
account of old age commences, shall not be under seventy years, sub-
ject to compliance with its constitution and laws. The fund from
which the payment of such benefits shall be made, and the fund from
which the expenses of such association shall be defrayed, shall be
derived from assessments or dues collected from its members. Pay-
ments of death benefits shall be to the families, heirs, blood relatives,
affianced husband or affianced wife of, or persons dependent upon,
Ch. 8. SECRET INSURANCE SOCIETIES 1149
the member. Such associations shall be governed by this chapter,
and shall be exempt from the provisions of the insurance laws of this
State, and shall not pay a corporation or other tax, and no law here-
inafter passed shall apply to them unless they be expressly desig-
nated therein. Such fraternal beneficial association may create,
maintain, disburse and apply reserve or emergency funds in accord-
ance with its constitution or by-laws.
Historical: Laws 1901, 165, Ch. 3,
Sec. 1.
Associations Already Formed to Comply.
Sec. 2890. All such associations coming within the description
set forth in the preceding section, organized under the laws of this
or any other State, Province or Territory, and now doing business
in this State, may continue such business : Provided, That they here-
after comply with the provisions of this chapter regulating annual
reports, and the designation of the Commissioner of Insurance as the
person upon whom process may be served, as hereinafter provided.
Historical: Laws 1901, 165 Ch. 3,
Sec. 2.
Foreign Associations.
Sec. 2891. Any such association coming within the description
set forth in Section 2889, organized under the laws of any other
State, Province or Territory, and now doing business in this State,
shall be admitted to do business in this State when it shall have filed
with the Commissioner of Insurance a duly certified copy of its
charter and articles of association, and a copy of its constitution or
laws, certified to by its secretary or corresponding officer, together
with an appointment of the Commissioner of Insurance of this State
as a person upon whom process shall be served as hereinafter pro-
vided : Provided, That such association shall be shown to be author-
ized to do business in the State, Province or Territory in which it is
incorporated or organized, in case the laws of such State, Province
or Territory shall provide for such authorization ; and in case the laws
of such State, Province or Territory do not provide for any formal
authorization to do business on the part of any such association, then
such association shall be shown to be conducting its business within
the provisions of this chapter, for which purpose the Commissioner
of Insurance of this State may personally, or by some person to be
designated by him, examine into the condition of affairs, character
and business methods, accounts, books and investments of such asso-
ciation at its home office, which examination shall be at the expense
of such association, and shall be made within thirty days after de-
mand thereof, and the expense of such examination shall be limited
to fifty dollars ; Provided, Such person appointed to examine into the
affairs of any fraternal beneficiary association shall not be a member
of, or in any wise connected with, said fraternal beneficiary asso-
ciation.
Historical: Laws 19 01, 165, Ch. 3,
Sec. 3.
1150 CORPORATIONS Tit. 4
Association to Make Reports: Contents.
Sec. 2892. Every such association doing business in this State
shall, on or before the first day of March of each year, make and file
with the Commissioner of Insurance of this State a report of its
affairs and operations during the year ending on the 31st day of
December immediately preceding, which annual report shall be in
lieu of all other reports required by any other law. Such report shall
be upon blank forms to be provided by the Commissioner of Insur-
ance, or may be printed in pamphlet form, and shall be verified,
under oath, by the duly authorized officers of such association, and
shall be published, or the substance thereof, in the annual report of
the Commissioner of Insurance under a separate part entitled "Fra-
ternal Beneficiary Associations," and shall contain answers to the
following questions :
1. Number of certificates issued during the year, or members
admitted.
2. Amount indemnity effected thereby.
3. Number of losses or benefit liabilities incurred.
4. Number of losses or benefit liabilities paid.
5. The amount received from each assessment for the year.
6. Total amount paid members, beneficiaries, legal representa-
tives or heirs.
7. Number and kind of claims for which assessments have been
made.
8. Number and kind of claims compromised or resisted and brief
statement of reasons.
9. Does association charge annual or periodical dues or admis-
sion fees.
10. How much on each thousand dollars, annually or per capita,
as the case may be.
11. Total amount received, from what source, and the disposi-
tion thereof.
12. Total amount of salaries paid to officers.
13. Does association guarantee in its certificate fixed amount
to be paid regardless of amount realized from assessments, dues, ad-
mission fees and donations.
14. If so, state amount guaranteed, and the security of such
guarantee.
15. Has the association a reserve or emergency fund.
16. If so, how is it created and for what purpose, the amount
thereof, and how invested.
17. Has the association more than one class.
18. If so, how many, and the amount of indemnity in each.
19. Number of members in each class.
20. If voluntary, so state and give date of organization.
21. If organized under the laws of this State, under what law
and at what time; giving chapter and year and date of passage of
the act.
22. If organized under the laws of any other State, Province or
Territory, state such fact and date of organization, giving chapter
and year and date of passage of the act.
Ch. 8. SECRET INSURANCE SOCIETIES 1151
23. Number of certificate of beneficiary membership lapsed dur-
ing the year.
24. Number in force at the beginning and end of year; if more
than one class number in each class.
25. Names and addresses of its president, secretary and treas-
urer, or corresponding officers.
The Commissioner of Insurance is authorized and empowered to
address any additional inquiries to any such association in relation
to the matter embraced in such report, and such officers of such asso-
ciation as the Commissioner of Insurance may require shall promptly
reply in writing, under oath, to all such inquiries.
Historical: Laws 1901, 165, Ch. 3,
Sec. 4.
Service of Process on Association.
Sec. 2893. Each such association now doing or hereafter admitted
to do business within this State, not having its principal office in
this State, and not having organized under the laws of this State,
shall appoint, in writing, the Commissioner of Insurance and his
successors in office to be its true and lawful attorneys upon whom
all lawful process in any action or proceeding against it may be
served, and in such writing shall agree that any lawful process
against it, which is served on said attorney shall be of the same legal
force and validity as if served upon the association, and that the
authority shall continue in force so long as any liability remains out-
standing in this State. Copies of such certificate, certified by said
Commissioner of Insurance, shall be deemed sufficient evidence there-
of, and shall be admitted in evidence with the same force and effect
as the original thereof might be admitted. Service upon such attor-
ney shall be deemed sufficient service upon such association. When
legal process against any such association is served upon said Com-
missioner of Insurance, he shall immediately notify the association
of such service by letter, prepaid and directed to its secretary or
corresponding officer, and shall, within two days after such service,
forward in the same manner a copy of the process served on him to
such officer. The plaintiff in such process so served shall pay the
Commissioner of Insurance, at the time of such service, a fee of three
dollars, which shall be recovered by him as part of the taxable costs,
if he prevails in the suit. The Commissioner of Insurance shall keep
a record of all process served upon him, which record shall show the
day and hour when such service was made and by whom made.
Historical: Laws 19 01, 165, Ch. 3,
Sec. 5.
Permit to Do Business: How Obtained.
Sec. 2894. The Commissioner of Insurance of this State shall,
upon the application of any association having the right to do busi-
ness within this State, as provided by this chapter, issue to such asso-
ciation a permit, in writing, authorizing such association to do busi-
ness within this State, for which certificate and all proceedings in
connection therewith such association shall pay to said Commissioner
of Insurance the fee of five dollars.
1152 CORPORATIONS Tit. 4
Historical: Laws 1901, 165, Ch. 3,
Sec. 6.
How Incorporated.
Sec. 2895. Fraternal beneficial associations shall be incorporated
in manner as now is or may be hereinafter provided by law.
Historical: Laws 19 01, 16 5, Ch. 3,
Sec. 7.
Association Shall Not Employ Agents.
Sec. 2896. Such association shall not employ paid agents in solic-
iting or procuring members except in the organization or building up
of subordinate bodies, or granting members inducements to procure
new members.
Historical: Laws 1901, 165, Ch. 3,
Sec. 8.
Contract of Beneficiary to Pay Dues.
Sec. 2897. No contract between a member and his beneficiary,
and the beneficiary, or any other person for him, by which said ben-
eficiary or any person for him, shall pay such members's assessments
and dues, or either of them, shall give the beneficiary a vested right
in the benefit certificate or in the benefit, or deprive the member of
the right to change the name of the beneficiary or revoke the certifi-
cate, if any, issued by the association : Provided, That such change or
revocation be done by written or printed notice to the association
in the manner and form provided by law.
Historical: Laws 19 01, 165, Ch. 3,
Sec. 9.
Benefits Exempt From Attachment and Execution.
Sec. 2898. The money or other benefit, charity, relief or aid
already paid or to be paid, provided or rendered by any association
authorized to do business under this chapter, shall not be liable to
attachment or execution by trustee, garnishee or other process, and
shall not be seized, taken, appropriated or applied by any legal or
equitable process, or by the operation of law, to pay any debt or lia-
bility of a certificate holder of any beneficiary named in the certifi-
cate, or any person who may have rights thereunder.
Historical: Laws 1901, 165, Ch. 3,
Sec 10.
Place of Meeting" of Governing Body.
Sec. 2899. Any such association organized under the laws of this
State may provide for the meeting of its legislative or governing body
in any other State, Province or Territory wherein such association
shall have subordinate bodies, and all business transacted at such
meetings shall be as valid in all respects, as if such meetings were
held within this State, and when the laws of any such association
provide for the election of its officers by votes to be cast in its sub-
ordinate bodies the vote so cast in the subordinate bodies in any
other State, Province or Territory, shall be as valid as if cast within
this State.
Historical: Laws 1901, 165, Ch. 3,
Sec. 11.
Ch. 8. SECRET INSURANCE SOCIETIES 1153
False Statements in Application for Insurance or Benefit.
Sec. 2900. Any person, officer, member or examining physician,
who shall knowingly or wilfully make any false or fraudulent state-
ment or representation in or with reference to any application for
membership, or for the purpose of obtaining any money or benefit
in any association transacting business under this chapter, shall be
guilty of a misdemeanor, and, upon conviction shall be punished by
a fine of not less than one hundred dollars nor more than five hundred
dollars, or by imprisonment in the county jail for not less than thirty
days nor more than one year, or by both, in the discretion of the
court, and any person who shall wilfully make any false statement
of any material fact or thing in a sworn statement as to the death
or disability of a certificate holder in any such association, for the
purpose of procuring payment of a benefit named in the certificate
of such holder, and any person who shall wilfully make any false
statement in any verified report or declaration, under oath required
or authorized by this chapter, shall be guilty of perjury, and shall
be proceeded against and punished as provided by the statutes of
this State.
Historical: Laws 1901, 165, Ch. 3, Cross Reference: Punishment for
Sec. 12. I perjury: Sec. 6486.
Failure to Make Report or Appoint Agent.
Sec. 2901. Any such association refusing or neglecting to make
the report, as provided in this chapter, or to appoint the Commis-
sioner of Insurance as its true and lawful attorney for the purpose
of this chapter, shall be excluded from doing business within this
State. Said Commissioner of Insurance must, within sixty days after
failure to make such report, or in case any such association shall
exceed its power, or conduct its business fraudulently, or shall fail
to comply with any of the provisions of this chapter, give notice, in
writing, to the Attorney General, who shall immediately commence
an action against any such association to enjoin the same from carry-
ing on any business. And no injunction against such association
shall be granted by any court except on the application of the At-
torney General at the request of the Commissioner of Insurance.
No such association so enjoined shall have authority to continue to
do business until such report shall be made, or overt act or violation
complained of shall have been corrected, and until the cost of such
action be paid by it : Provided, The court shall find that such associ-
ation was in default as charged; whereupon the Commissioner of
Insurance shall reinstate such association, as not until then shall such
association be allowed to again do business in this State. Any officer,
agent or person acting for any association or subordinate body
thereof within this State, while such association shall be enjoined
or prohibited from doing business pursuant to this chapter, shall be
deemed guilty of a misdemeanor, and, on conviction thereof, shall
he punished by a fine of not less than twenty-five dollars nor more than
two hundred dollars, or by imprisonment in the county jail for not
less than thirty days nor more than one year, or by both such fine
and imprisonment, in the discretion of the court.
Historical: Laws 1901, 165, Ch. 3,
Sec. 13.
1154
CORPORATIONS
Tit. 4
Agent of Non-Complying Society Guilty of Misdemeanor.
Sec. 2902. Any person who shall act within this State as an offi-
cer, agent, or otherwise for any association which shall have failed,
neglected or refused to comply with, or shall have violated any of
the provisions of this chapter, or shall have failed or neglected to
procure from the Commissioner of Insurance a proper certificate of
authority to transact business as provided bjr this chapter, shall be
subject to the penalty provided in the last preceding section for the
misdemeanor therein specified.
Historical:
Sec. 14.
Laws 1901, 165, Ch. 3.
Fees for Report.
Sec. 2903. Every society to which this chapter is applicable shall
pay to the Insurance Commissioner for filing annual statement as
provided by this chapter, twenty-five dollars.
Historical :
Sec. 15.
Laws 1901, 165, Ch. 3,
Application of Chapter.
Sec. 2904. This chapter shall not apply to any grand or subordi-
nate lodge of the order of Free and Accepted Masons, Independent
Order of Odd Fellows as they now exist, nor to similar orders or
secret societies, nor to fraternal societies whose subordinate or na-
tional bodies pay nothing but funeral or weekly sick benefits, nor to
any organization conducted solely for benevolent and charitable pur-
poses, whose members are employed by one corporation or institu-
tion, or by more than one similar corporation or institution, or whose
membership is confined to one trade, art or profession.
Historical: Laws 1901, 165, Ch. 3,
Sec. 16.
CHAPTER 9.
MUTUAL CO-OPERATIVE INSURANCE COMPANIES.
Section
2905. Organization: Corporate styie.
2906. Filing, approval, and recording
of articles.
2 907. Obligation of members.
2 908. Corporate meetings.
2909. Directors: Election and va-
cancies.
2910. Officers: Election, bond and
duties.
2 911. Agents and employees.
2 912. By-laws.
2913. Collection of assessments:
Actions against company.
2 914. Admission of foreign corpora-
tions.
Note: Prior legislation, superseded by the act contained in this chapter.
is as follows: Laws 1891, 167; Laws 1899. 111.
Organization: Corporate Style.
Sec. 2905. Any number of persons residing in this State who own
Sectioi
2915.
2916.
2917.
2918.
2919.
2920.
2921.
2922.
2923.
2924.
Policies: Amounts and how
issued.
Assessments: How made.
Payment of losses.
Arbitration- of losses.
Withdrawal of member.
Powers of corporations.
Annual statements.
Certificate of authority.
Unauthorized transaction
business.
Acceptance of chapter.
of
Ch. 9.
MUTUAL CO-OPERATIVE SOCIETIES
1155
personal or real property of not less than one hundred thousand dol-
lars in value, which they desire to have insured, may associate them-
selves together for the purpose of mutual co-operative insurance
against loss by fire, lightning, tornadoes, cyclones, windstorms and the
fidelity of persons, and form an incorporated company for such pur-
poses and issue policies. Such companies shall embody the words,
"Mutual Co-operative," in their name.
Historical: Laws 1903, 7 4, Sec. 1.
License Fee Not Required: A mu-
tual co-operative company organized
under this and the following sections,
need not pay the license fee and taxes
required by the general insurance law
of 1901. Idaho Mut. etc. Ins. Co. v.
Myer (1904) 10 Ida. 294; 77 Pac. 628.
Filing, Approval and Recording" of Articles.
Sec. 2906. The articles of incorporation of such company shall be
filed with the Insurance Commissioner for examination. If by"*him
found to be in accordance with the provisions of this chapter, and the
name of such company is not similar to the name of any other insur-
ance company organized in this State, he shall thereupon deliver to
such company a certified copy of the articles of incorporation, upon
which, on being recorded in the office of the recorder of the county
where the principal office of such company shall be located, and a
copy thereof, certified by the county recorder, filed with the Secre-
tary of State, the Secretary of State must then issue to the corpora-
tion, over his official seal, a certificate that a copy of the articles con-
taining the required statement of facts has been filed in his office;
and thereupon the persons executing the articles, and their associates
and successors, shall be entitled to transact business and issue poli-
cies of insurance under the corporate name stated in the articles, and
for the term of fifty years, unless it is in the articles of incorporation
otherwise stated, or by law otherwise specially provided. A copy of
any articles of incorporation filed in pursuance of this chapter, and
certified by the Secretary of State, must be received in all courts
and elsewhere as prima facie evidence of the facts therein stated.
Historical: Laws 1903, 7 4, Sec. 2.
Cited: Idaho Mut. etc. Ins. Co. v.
Myer (1904) 10 Ida. 2 94; 77 Pac. 6 2 8.
Obligation of Members.
Sec. 2907. All persons and corporations, municipal or otherwise,
who effect insurance in any company organized under the provisions
of this chapter, shall thereby become members of such company, and
shall continue so to be during the period that their insurance is in
force and no longer. All persons so insured shall give their obligation
to such company, in an application binding themselves, their heirs,
executors, administrators, successors or assigns, to pay all legal
assessments made upon them by such company. They shall also, at
the time of effecting insurance, pay such an amount in cash as is
provided for in the by-laws, but no company shall organize or trans-
act business that does not provide for a reasonable amount of cash
to be paid down at the time the insurance is taken, in proportion to
the risk that is to be carried. The application of any corporation or
municipality for insurance in any company, shall be signed by the
officer or officers authorized to sign ordinary contracts of such cor-
porations or municipalities.
1156 CORPORATIONS Tit. 4
Historical: Laws 1903, 74, Sec. 3.
Corporate Meetings.
Sec. 2908. An annual meeting of such company for the purpose of
electing directors as provided in the articles of incorporation, shall
be held in each year at the principal office of such company, of which
all members shall be notified in such manner and form as the by-laws
shall provide. Special meetings may be held by order of the presi-
dent, upon the written request of a majority of all directors, with a
like notice. Each member may vote by ballot for as many persons
as there are directors to be elected.
Historical: Laws 19 03, 74, Sec. 4.
Directors: Election and Vacancies.
Sec. 2909. The number of directors shall be not less than six or
more than twelve. Of those elected at the time of the organization
of such company, one-third shall be elected for one year, one-third
for two years and one-third for three years. At each annual meet-
ing thereafter a number equal to one-third of the whole number of
directors shall be elected for three years, or until their successors are
elected and qualified. Such directors are to manage the affairs of
the company. Vacancies in the board of directors may be filled by
the remaining directors, and such board of directors, or a majority
of them, when legally convened at the principal office of the company,
shall be competent to exercise all the powers granted by this chapter.
Historical: Laws 1903, 74, Sec. 5.
Officers : Election, Bond and Duties.
Sec. 2910. Immediately after their election the directors must or-
ganize by electing a president and a vice president, who shall be of
their number, a secretary and a treasurer. They shall perform the
duties enjoined upon them by law and by the by-laws of the corpora-
tion. Such officers shall receive such compensation and give such
bonds as the by-laws provide or the board of directors determine.
The board of directors shall have power, by two-thirds vote, to re-
move any officer for just cause. They shall also fill any vacancies
that may occur from any cause.
Historical: Laws 1903, 74, Sec. 6.
Agents and Employees.
Sec. 2911. The directors of such company may appoint agents,
clerks, adjusters and other employes, allowing them such compensa-
tion and exacting from them such bonds as the directors may deem
proper. The board of directors may appoint an executive committee
to whom they may delegate the minor powers and authority vested in
such board.
Historical: Laws 1903, 74, Sec. 7.
By-Laws.
Sec. 2912. The members of such company or the board of direc-
tors, as may be provided in the articles of incorporation, shall make
such by-laws not inconsistent with this chapter as they deem neces-
Ch. 9. MUTUAL CO-OPERATIVE SOCIETIES 1157
sary for the management of such company. All amendments of the
by-laws shall be furnished to the members in such manner, form and
time as the by-laws shall provide.
Historical: Laws 1903, 74, Sec. 8.
Collection of Assessments: Action Against Company.
Sec. 2913. If any member of such company, for a space of thirty
days after the written or printed notice of assessments has been
mailed to him or her, postpaid, and directed to the postoffice as stated
in the application for insurance, or as the same may have been there-
after changed to and recorded with the company, shall neglect to pay
the sum assessed, such company may sue for and recover such amount
and costs. Suits at law may be brought against such company by a
member or members thereof for loss sustained if payment i^ with-
held after such loss becomes due. The officer or officers of such com-
pany who shall wilfully neglect or refuse to perform the duties im-
posed upon them by the provisions of this chapter, shall be liable in
their individual capacity to the persons sustaining such loss.
Historical: Laws 19 03, 7 4, Sec. 9.
Cited: Idaho Mut. etc. Ins. Co. v.
Myer (1904) 10 Ida. 294; 77 Pac. 628.
Admission of Foreign Corporations.
Sec. 2914. It shall be lawful for such companies to insure property
only within this State until such time as such company shall have
at least five million dollars at risk, and then the board of directors
may determine in what State or States, other than the State of Idaho,
it shall do business and apply for admittance to such other State or
States. Any mutual co-operative insurance company organized un-
der the law of any other State similar in form and in substance to this
chapter, may be admitted to do business in this State by the in-
surance department of the State, upon making a showing that it is le-
gally incorporated under the laws of its own State, and has com-
plied with the conditions of such laws, and has at least five million
dollars of insurance in force, and the proper insurance commissioner
of such State shall certify that he believes such company solvent, do-
ing a good business, officered by men of integrity and standing, and
that it is entitled to the confidence of the public, and upon such com-
pany procuring a request and application for membership of one hun-
dred persons, citizens of this State having property that they desire
to have insured, and paying a fee of twenty-five dollars to the Insur-
ance Commissioners of this State: Provided, always, That the in-
surance commissioner and the laws of the State where such company
applying for admission is domiciled, shall grant to the mutual co-
operative companies of this State, organized under this or similar
laws, like rights and privileges under in substance the same rules and
restrictions.
Historical: Laws 1903, 74, Sec. 10.
Cited: Idaho Mut. etc. Ins. Co. v.
Myer (1904) 10 Ida. 294; 77 Pac. 628.
Policies: Amounts and How Issued.
Sec. 2915. Such companies may issue policies on all kind of in-
1158 CORPORATIONS Tit. 4
surable real and personal property as herein provided against loss or
damage by fire, lightning, tornado, cyclone and windstorm, and the
fidelity of persons, for any length of time as may be determined upon
by such company in its by-laws. It shall not issue policies on any
one risk or hazard to exceed one thousand dollars until there is three
hundred thousand dollars insurance in force, when policies of two
thousand dollars may be issued; or issue policies for more than two
thousand dollars on any one risk until there is one million dollars in-
surance in force, when policies of three thousand dollars may be is-
sued; or issue policies for more than three thousand dollars on any
one risk until there is two million dollars insurance in force, when
policies may be issued in the discretion of the company: Provided,
No real property shall be insured for more than three-fourths its
value. Should the amount of insurance decrease below any of the
figures above enumerated, the amount of the policy must be corre-
spondingly reduced upon its renewal or within three months from the
time that the amount of insurance falls below the foregoing figures.
All policies shall be signed by the president and secretary, and each
policy holder shall be furnished with the by-laws of the company.
Should the amount of insurance of any company created under this
chapter decrease below one hundred thousand dollars, the president
of such company shall at once call a meeting of the members to con-
sider the matter of disorganizing.
Historical: Laws 190 3, 7 4, Sec. 11.
Assessments : How Made.
Sec. 2916. All assessments shall be determined by proper classi-
fication and rating of the property insured, so that each member will
be assessed according to the greater or less risk of the property in-
sured to the hazard insured against. An assessment may be made
on the members, due and payable within thirty days thereafter, to
enable the company to provide for losses and expenses necessary in
the conducting of its business, whenever the board of directors so de-
termine. No assessment shall be made on a member for liabilities
incurred prior to his or her membership. Any member may be ex-
cluded from the benefits of insurance during all the time in which he
or she may be in default of payment of an assessment, and the ac-
ceptance of such assessment after the same has become delinquent,
shall not in any manner make the company liable for any loss or
damage that may have occurred during the period that such policy
was suspended. Any member shall not be liable directly to any other
member for such other member's loss or damage, but the liability of
a member shall be solely and exclusively through the channel and
process of an assessment, and the amount of such assessment shall
be only his pro rata share in proportion to the amount of insurance
carried and rate on the same of all losses and expenses, making rea-
sonable allowances and deductions for uncollectible and unpaid as-
sessments.
Historical: Laws 19 03. 74. Sec. 12.
Payment of Losses.
Sec. 2917. Losses shall become due and payable in sixty days after
Ch. 9. MUTUAL CO-OPERATIVE SOCIETIES 1159
their adjustment. Said adjustment shall be made within sixty days
after losses occur.
Historical: Laws 1903, 7 4, Sec. 13.
Arbitration of Losses.
Sec. 2918. In the event of a dispute between the company and a
member respecting whether there has been a loss, and the adjustment
of the same, the matter shall, at the request of the company, or such
member, be submitted to arbitrators, one of whom shall be selected by
the company and one by the member, and such two so chosen shall
select a third, all of whom shall be disinterested, and shall take and
subscribe an oath to that effect. A decision of a majority shall be
final and binding on all parties.
Historical: Laws 1903, 7 4, Sec. 14. /
Cited: Idaho Mut. etc. Ins. Co. v.
Myer (1904) 10 Ida. 294; 77 Pac. 628.
Withdrawal of Member.
Sec. 2919. Any member of such company may withdraw there-
from at any time by giving the company notice thereof in writing,
and paying his or her share of all claims or liabilities for losses or
expenses then existing against the company, surrendering his or her
policy, and paying such cancellation fee as may be provided, not
exceeding one dollar as the board of directors may provide, in case
the sum collected at the time the member takes out insurance is such
as to justify for a reasonable short rate return premium, and the
action of the board of directors in that respect shall be final ; but no
member, his or her heirs, executors, administrators or assigns can
avoid liability to such company for their pro rata share of the unpaid
claims against the company accruing while a member. Such com-
pany may, for good and sufficient reasons apparent to it, cancel any
policy by giving the member notice to that effect and releasing him
or her from further assessments, and thereupon such member shall
send in his or her policy to the company.
Historical: Laws 190 3, 7 4, Sec. 15.
Cited: Idaho Mut. etc. Ins. Co. v.
Myer (1904) 10 Ida. 294; 77 Pac. 628.
Powers of Corporations.
Sec. 2920. Such companies shall be deemed bodies corporate with
succession, and shall possess the usual powers and privileges, and be
subject to the usual duties, of corporations within the limitations of
this chapter, and such corporations may purchase, own, hold, lease, en-
cumber and convey such real estate severally or jointly with others as
may be necessary for their present and prospective use as offices and
place of business.
Historical: Laws 1903, 74, Sec. 16.
Cited: Idaho Mut. etc. Ins. Co. v.
Myer (1904) 10 Ida. 294; 77 Pac. 628.
Annual Statements.
Sec. 2921. It shall be the duty of the president and secretary to
prepare annually, under oath, a full and complete statement of the
1160 CORPORATIONS Tit. 4
condition of the company on the 31st day of December each year, and
present the same at the annual meeting of the members.
Historical: Laws 1903, 74, Sec. 17.
Cited: Idaho Mut. etc. Ins. Co. v.
Myer (1904) 10 Ida. 294; 77 Pac. 628.
Certificate of Authority.
Sec. 2922. It shall be the duty of such company to file an annual
statement with the proper insurance department of this State not
later than the 31st day of January of each year, on a blank furnished
by said insurance department. Such department, if it thinks neces-
sary, or one deputized by it, having no interest in an insurance com-
pany and unprejudiced, may make an examination into the affairs of
such company, and for such purposes shall have access to all the
books and files of the company, and may examine the officers and other
witnesses under oath. If such company is doing business in accord-
ance with and under the provisions of this chapter, and is solvent and
properly managed, the insurance department shall furnish such com-
pany and its authorized agents a certificate stating that such company
has complied with the provisions of this chapter, and is authorized to
do business for the ensuing year unless such certificate is sooner re-
voked. If, upon such examination, it shall appear to the department
that the condition of such company does not justify it continuing in
business, it must apply to the District Court of the county where the
principal office of such company is located, for an order requiring
such company to show cause why it should not be closed. For exam-
ining the company's annual report and issuing certificate it shall be
paid $ and for each agent's certificate $
Historical: Laws 1903, 74, Sec. 18.
Cited: Idaho Mut. etc. Ins. Co. v.
Myer (1904) 10 Ida. 294; 77 Pac. 628.
Unauthorized Transaction of Business.
Sec. 2923. It shall not be lawful for such company or agent to do
business without authority given them by the insurance department.
Any person who shall act or attempt to act for or on behalf of any
such company in any capacity as agent, officer or otherwise, in the
procuring or attempting to procure or solicit business without said
company having first complied with the provisions of this chapter
(except soliciting the original signatures to the articles of incorpora-
tion and applications for membership necessary to organize a com-
pany) , shall, on conviction thereof, be found guilty of a misdemeanor,
and be fined in any sum not exceeding five hundred dollars or com-
mitted to the county jail not exceeding six months, or punished by both
such fine and imprisonment.
Historical: Laws 1903, 74, Sec. 19.
Cited: Idaho Mut. etc. Ins. Co. v.
Myer (1904) 10 Ida. 294; 77 Pac. 628.
Acceptance of Chapter.
Sec. 2924. Any mutual insurance company now doing business in
this State under any of the provisions of the law thereof, with the
written consent of a majority of the members, may accept the con-
Ch. 10.
LIVESTOCK INSURANCE COMPANIES
1161
ditions of this chapter and thereupon be governed by it. Before such
company shall be entitled to the benefits of this chapter, it shall file
with the insurance department its articles of incorporation and by-
laws and record a certified copy thereof as provided in Section 2906.
Historical: Laws 1903, 74, Sec. 20.
Cited: Idaho Mut. etc. Ins. Co. v.
Myer (1904) 10 Ida. 294; 77 Pac. 628.
CHAPTER 10.
LIVESTOCK INSURANCE COMPANIES.
Section
2932. Fees payable to Commissioner.
2 933. Levy of assessments.
2 934. Reserve fund and investment
of same.
2935. Compliance by existing corpo-
rations.
2 936. Corporation may join associa-
tion.
2937. Foreign corporations.
Section
2925. Incorporation: Articles and
by-laws.
2926. Amount of insurance to be sub-
scribed.
2927. Limit on valuation of prop-
erty.
292 8. Withdrawal of members.
2929. Annual meeting.
2930. Annual report to Insurance
Commissioner.
2931. Investigation and revocation of
license.
Incorporation: Articles and By-Laws.
Sec. 2925. Any ten or more persons, residents of this State, who
may desire to form a company or association for the purpose of
mutual protection of the members thereof against loss of livestock by
death from disease, lightning, tornadoes, cyclones, accidents and every
other casual or accidental cause, shall make and subscribe written
articles of incorporation in triplicate, and acknowledge the same be-
fore any officer authorized to take the acknowledgment of deeds, and
file one of such articles in the office of the recorder of the county in
which the principal place of business of the company is intended to be
located, a second in the office of the Secretary of State, and retain the
third in the possession of the company. Said articles shall state the
corporate name of the company, the object for which the same shall
be formed, the time of its existence, not to exceed fifty years, the
number of trustees, and their names, who shall manage the affairs
of the company for such length of time, not less than two or more
than six months, as may be designated in said articles, and the name
of the city, or town and county, in which the principal place of busi-
ness of the company is to be located. Upon the filing of said articles
with the Insurance Commissioner of this State, together with a
statement certified under the oath of the president and secretary show-
ing the amount of insurance and number of risks pledged upon its
books, and that it has otherwise complied with the provisions of this
chapter, the Insurance Commissioner shall grant such company or as-
sociation a certificate of authority to do business. Amendments may
be made to the articles of incorporation by supplemental articles exe-
cuted and filed the same as the original articles. Trustees of any such
company shall adopt such by-laws as they may deem proper for the
government of its affairs, and said by-laws shall also provide for the
liability of its members for the payment of losses and expenses : Pro-
1162
CORPORATIONS
Tit. 4
vided, That such liability shall not be less than a sum equal to one
annual premium or more than a sum equal to five times the amount
of one annual premium, and such liability, when so determined by the
by-laws, shall be the entire liability of each member.
Historical: Laws 1905, 150, Sec. 1.
"Recorder" inserted for "auditor",
line 8, to conform to other corporation
laws.
Comparative Legislation: See Wash-
ington: Laws 1905, 66, Sec. 1.
Amount of Insurance to Be Subscribed.
Sec. 2926. No policy of insurance shall be issued by such com-
pany or association until no less than two hundred thousand dollars
of insurance has been subscribed and entered upon its books.
Historical: Laws 1905, 150. Sec. 2.
Comparative Legislation: See Wash-
ington: Laws 1905, 67, Sec. 2.
Limit on Valuation of Property.
Sec. 2927. No policy of insurance shall be issued for more than
three-fourths of the estimated cost value of the property insured.
Historical: Laws 1905, 150, Sec. 3.
Comparative Legislation: See Wash-
ing-ton: Laws 1905, 67, Sec. 3.
Withdrawal of Members.
Sec. 2928. Any member of such company or association may with-
draw and be released from all liability as a member, by surrendering
his policy of insurance in such company or association, and by giving
five days' notice in writing of his intention to withdraw, and paying all
obligations, dues and assessments due or pending at the time of his
withdrawal ; but the liability of members for their pro rata shares of
the losses of such company or association shall not cease until the fore-
going conditions have been complied with.
Historical: Laws 1905, 150, Sec. 4.
Comparative Le&islation: See Wash-
ington: Laws 19 0 5, 67, Sec. 4.
Annual Meeting.
Sec. 2929. Every company or association organized or operating
under the provisions of this chapter, shall hold an annual meeting of
its members, at which each member shall be entitled to vote on the
election of trustees.
Historical: Laws 19 05, 150, Sec. 5.
Comparative Legislation: See Wash-
ington: Laws 1905, 67, Sec. 5.
Annual Report to Insurance Commissioner.
Sec. 2930. It shall be the duty of the president and secretary of
such company or association doing business under the provisions of
this chapter, on or before the 15th day of January of each year, to
prepare and file in the office of the Insurance Commissioner of this
State a statement, certified under the oath of the said president and
secretary, exhibiting the following facts to them :
First. The amount of property at risk on the 31st day of Decern-
Ch. 10. LIVESTOCK INSURANCE COMPANIES 1163
ber next preceding the day of the report; the amount of risks added
during the previous year; the amount of risks cancelled, withdrawn
or terminated during the year, and the largest amount of insurance
carried on any single risk.
Second. The amount of cash received with applications, whether
paid to agents or officers for insurance during the year; the amount
received from assessments during the year ; the amount received from
all other sources, and the total income.
Third. The amount paid for losses during the year; the amount
paid officers and trustees ; the amount paid office help ; the amount paid
agents; the amounts of all other expenditures and the total expendi-
tures.
Fourth. The total amount of cash on hand; the amount and na-
ture of all other assets, and the total assets.
Fifth. The amount of losses reported during the year and unpaid ;
the amount and nature of all other liabilities, and the total liabilities.
No such company or association shall use or exhibit for advertis-
ing purposes any other financial statement, that the one referred to
in this section, or a copy thereof.
Historical: Laws 1905, 150, Sec. 6.
Comparative Legislation: See Wash-
ington: Laws 1905, 67, Sec. 6.
Investigation and Revocation of License.
Sec. 2931. When it shall appear to the Insurance Commissioner,
from its annual report, or otherwise, that the solvency of any mutual
company or association doing business under this chapter is impaired,
or that the provisions of this chapter are being violated, he shall im-
mediately make examination of such company or association, and for
that purpose he shall have access to all books or papers of the com-
pany or association, and shall have power to administer oaths and
to examine the various officers thereof as to all matters pertaining to
the business of such company or association, and also such other wit-
nesses as may be material or important. If the unpaid losses of the
company shall amount to twenty-five cents on each one hundred dol-
lars of insurance actually in force, or if the laws of the State are being-
violated by the company or association, the Commissioner shall order
the laws complied with, and all losses to be paid within sixty days.
If such company or association shall fail to comply with such require-
ments within sixty days, the Commissioner shall revoke its license to
do business until all liabilities shall have been paid in full, and the
laws are complied with in all respects. Whenever the Commissioner
shall make an examination as provided for in this section, he shall
make a written report of such examination, together with a sworn
statement of the expense of such examination, which amount and no
more shall be collected from such examined company or association,
and file the same in his office. Should any company or association issue
a policy of insurance without a license from the insurance department
of this State, or after the license of such company or association has
been suspended or revoked, it shall be liable for a penalty of one hun-
dred dollars for each offense: Provided, however, That the Insur-
ance Commissioner shall have no power or authority to refuse a live-
stock insurance company or association a license to do business in this
1164 CORPORATIONS Tit. 4
State, if such company or association is solvent and has fully com-
plied with the laws of this State: Provided further, That such In-
surance Commissioner shall have no authority to revoke or suspend
the license of any association or corporation transacting the business
of a mutual livestock insurance, if such association or corporation is
solvent, and complies with the provisions of this chapter.
Historical: Laws 1905, 150, Sec. 7.
Comparative Legislation: See Wash-
ington: Laws 1905, 68, Sec. 7.
Fees Payable to Commissioner.
Sec. 2932. Each insurance company or association doing business
under this chapter shall pay to the Insurance Commissioner:
For filing articles of incorporation, ten dollars.
For annual license to do business in this State, ten dollars.
For filing each annual statement, ten dollars.
For annual license of each agent or solicitor of such company, two
dollars.
Historical: Laws 1905, 150, Sec. 8.
Comparative Legislation: See Wash-
ing-ton: Laws 1905, 69, Sec. 8.
Levy of Assessments.
Sec. 2933. All assessments levied shall be at the rate of fifteen
per cent of the amount of annual premiums charged by stock insur-
ance companies as set forth in rate book number four of the issues
of 1900, or the special rate books used by said companies : Provided,
Any association or company operating under the provisions of this
chapter may, in the discretion of the trustees, accept cash premiums
for the term of the policy, or premiums payable in installments evi-
denced by promissory notes in lieu of assessments levied upon its
members.
Historical: Laws 19 05, 150, Sec. 9.
Comparative Legislation: See Wash-
ington: Laws 1905, 69, Sec. 9.
Reserve Fund and Investment of Same.
Sec. 2934. Any such association may create a reserve fund for the
benefit of its members and invest the same in State, county, school
or city bonds or warrants, in the State of Idaho, or may loan the same
on real estate, such loans in no case to exceed fifty per cent of the
assessed valuation of such real estate, and the interest thus earned,
when not used on account of the operating expenses of the associa-
tion, shall be added to and become a part of such reserve fund.
Historical: Laws 1905, 15 0. Sec. 10.
Comparative Legislation: See Wash-
ington: Laws 1905, 69, Sec. 10.
Compliance by Existing Corporations.
Sec. 2935. Any association heretofore organized in whole or in
part in accordance with the provisions of this chapter shall, upon
compliance with all of the provisions of this chapter that shall not
have been heretofore complied with, be authorized to do business
Ch. 11. Art. 1. SURETY AND FIDELITY COMPANIES
1165
under this chapter to the same extent and in the same manner as
though hereafter organized.
Historical: Laws 1905, 150, Sec. 11.
Comparative Legislation: See Wash-
ington: Laws 1905, 69, Sec. 11.
Corporation May Join Association.
Sec. 2936. The term "persons," as used in this chapter, shall be
held to include corporations, and any such corporation may become
a member of any association or corporation organized under this
chapter.
Historical: Laws 1905, 150, Sec. 12.
Comparative Legislation: See Wash-
ing-ton: Laws 1905, 69, Sec. 12.
Foreign Corporations.
Sec. 2937. Any corporation authorized by the laws of any other
State to do the kind of business hereby authorized, may engage in
business in this State upon compliance with the provisions of law
authorizing foreign corporations of like character to do business in
this State.
Historical: Laws 1905, 15 0, Sec. 13.
CHAPTER 11.
SURETY AND FIDELITY COMPANIES.
Article
1. Provisions applicable to both sure-
ty and fidelity companies.
Article
2. General surety companies.
3. Fidelity companies.
ARTICLE 1.
PROVISIONS APPLICABLE TO BOTH SURETY AND FIDELITY COMPANIES.
Section
2938. Application of article.
2939. Conditions precedent to doing
business.
2 940. Certificate of authority.
2941. Reimbursement for premium
paid by officers.
Section
2942. Filing- and license fees.
2 943. Notice to county recorders.
2 944. Failure to pay judgment for-
feits authority.
Application of Article.
Sec. 2938. This article shall apply to all surety companies doing
business in this State, whether organized for the purpose of issuing
surety, guaranty or indemnity bonds, guaranteeing the fidelity of
persons in private offices, employment or positions of trust, and con-
tracts, or for acting as surety on any such bonds, or whether acting
as surety on bonds as provided in Section 2947.
Historical: Laws 1905. 394, Sec. 3.
This article embraces the whole of
the 1905 law, which specifically
amended laws 1899, 337, but, as in-
dicated by the foregoing section, ap-
plied equally to Laws 1899, 187. The
object of the 1905 law was to bring
both forms of surety companies under
the same rules as to qualifications, and
to subject both to the jurisdiction of
the Insurance Commissioner. Article
2 of this chapter includes the remain-
ing sections of the general surety com-
pany law (1899, 337) while Article
3 includes the sections which are left
of the fidelity insurance law (1899,
1166
CORPORATIONS
Tit. 4
187). The sections of the latter law
omitted from Article 3 are inconsis-
tent with, or covered by, the provi-
Conditions Precedent to Doing Business.
sions of this article, and are therefore,
by the terms of this section, super-
seded.
Sec. 2939. Every such company must be authorized under the laws
of the State where incorporated, and under its charter or articles of
incorporation, to become surety upon such bond, undertaking, obliga-
tion, recognizance or guaranty; must have a fully paid-up and safely
invested and unimpaired capital of at least two hundred and fifty
thousand dollars; must have good available assets exceeding its lia-
bilities, which liabilities for the purpose of this chapter shall be taken
to be its capital stock, its outstanding debts, and a premium reserve
at the rate of fifty per centum of the current annual premiums on
such outstanding bonds, undertakings, recognizances and obligations
of like character in force.
Such company must, before beginning to do business in this State,
file with the Secretary of State a certified copy of its charter or arti-
cles of incorporation, and must also designate an agent resident
within this State upon whom process may be served, in compliance
with the statutes of this State relating to foreign corporations doing
business within this State. Such company shall, at the time of filing
its charter or articles or incorporation with the Secretary of State,
make application, in writing to the State Insurance Commissioner,
to be authorized to do business in this State under this chapter, and
shall pay the fee hereinafter provided and shall, at the time of such
application, and also, on or before the 30th day of April of each year,
file with the State Insurance Commissioner a statement, verified
under oath, made up to December 31st preceding, stating the amount
of its paid-up cash capital, particularizing each item of investment,
the amount of premiums upon existing bonds, undertakings, recog-
nizances and obligations of like character in force upon which it is
surety, the amount of liability for unearned portions thereof esti-
mated at the rate of fifty per centum of the current annual premiums
on each such bond, undertaking, recognizance and obligation in force
and stating the amount of its outstanding obligations of all kinds.
Such company, if it be organized under the laws of any other
State shall, before any certificate of authority to do business in this
State shall issue, deposit with the Treasurer of this State, money,
bonds or other securities to be approved by the Insurance Commis-
sioner, to the actual value of not less than twenty-five thousand dol-
lars. Said money, bonds or other securities so deposited, shall be
for the benefit of the holders of the obligations of such company, to
remain with said Treasurer in trust to answer any default of said
company as surety upon any such obligation, established by final judg-
ment, upon which execution may lawfully be issued against said com-
pany, such company, however, at all times to have the right to collect
the interest, dividends and profits upon such securities, and from time
to time to withdraw such securities or portions thereof, substituting
therefor others of equally good character and value, to the satisfac-
tion of said Commissioner, and such securities shall not be sold under
any process against such company until after forty days notice to
said company specifying the date, place and manner of such sale,
Ch. 11. Art. 1.
SURETY AND FIDELITY COMPANIES
1167
and the process under which and the purposes for which it is to be
made, accompanied by a copy of such process. The State of Idaho
shall be held responsible for the safety of all deposits made under the
provisions of this section. Such company shall not be permitted to
withdraw from the State Treasurer such deposit of moneys, bonds or
other securities, for a period of one year after discontinuing business
within this State, or while any suit is pending or any judgment
against said company in this State shall remain unpaid. Said deposit
shall at all times be maintained at said sum of twenty-five thousand
dollars or more, and for a failure, for a period of forty days after
notice by the Insurance Commissioner, given by registered letter ad-
dressed to the president of said company at its home office, to replen-
ish and so maintain the same, the authority of said company to do
business in this State shall be revoked by the Insurance Commissioner.
Historical: Laws 18 99, 33 7, Sec. 2;
amended Laws 1905, 394, Sec. 1. Omit-
ting the provision requiring surety
companies doing business in the State
at the time of the passage of the act
to deposit securities on or before April
30, 190 5, such provision being now
obsolete.
Certificate of Authority.
Sec. 2940. The State Insurance Commissioner, upon due proof that
such company possesses the qualifications specified in this article,
and that it has in all things complied with the laws of this State
relating to surety companies or applicable thereto, shall issue to such
company a certificate authorizing said company to do business until
and including April 30th, thence next ensuing, and thereafter such
certificate shall issue on April 30th as hereinbefore provided, for a
period of one year. Said certificate shall be evidence of the author-
ity of such company to do business in this State, and to become and to
be accepted as sole surety on all private bonds and contracts, and on
all bonds, undertakings, recognizances and obligations required or
permitted by law, of the charter, ordinances, rules or regulations of
any municipality, board, body, organization or public officer and of
the solvency and credit of such company for all authorized purposes
and its sufficiency as such surety.
Historical: Laws 1899. 337, Sec. 3;
amended Laws 1905, 3 94, Sec. 1, first
part of section. The last part com
prises the following section.
Reimbursement for Premiums Paid by Officers.
Sec. 2941. Any judge, court or officer, whose duty it is to pass
upon the account of any assignee, trustee, receiver, guardian, execu-
tor, administrator or other fiduciary required by law to give bond
or undertaking as such, and whenever such assignee, receiver, trustee,
guardian, executor, administrator or other fiduciary, has given bond
or undertaking with a surety company or companies as surety or
sureties thereon, as herein provided, shall allow, in the settlement of
the account of such assignee, receiver, trustee, guardian, executor,
administrator or other fiduciary a reasonable premium subject to
the limitations hereinafter provided, paid to any such company or
companies for becoming his surety on such bond or undertaking. In
all other cases, where, by the provisions of this chapter a corporate
surety or guarantor is given or required, except notaries public, the
premium to be paid to any such company or companies for becoming
Vol. 1 — 38
1168 CORPORATIONS Tit. 4
such surety or guarantor shall be paid out of the general funds of
the divisions of government by or for which the person giving such
bond or undertaking was appointed or elected: Provided, however,
that the premium shall in no case exceed in the aggregate one-half of
one per cent per annum on the amount of such bond or undertaking:
Provided, also, That such company or companies have complied, and
shall continue to comply, with the laws of this State relative to such
companies.
Historical: Laws 1899, 337, Sec. 3; part of section; the first part corn-
amended Laws 394, 1905, Sec. 1. Last I prises the preceding section.
Filing and License Fees.
Sec. 2942. All surety companies doing business in this State shall
pay fifty dollars to the State Insurance Commissioner at the time of
filing their articles of incorporation with the Secretary of State, and
shall take a receipt therefor, in duplicate, and file such duplicate with
the Secretary of State. Such companies shall likewise pay to the
Insurance Commissioner, annually in advance, a license fee of fifty
dollars, on or before April 30th of each year, and no certificate of
authority to do business for such year shall be issued unless such
annual fee be paid. License money so collected shall be paid by the
Insurance Commissioner to the State Treasurer, and a receipt therefor
taken, in duplicate, one to be filed with the State Auditor, and the
other preserved in the office of such Insurance Commissioner. All
moneys so paid shall be placed to the credit of the general fund.
Historical: Laws 18 9 9, 337, Sec. 8;
amended Laws 1905, 394, Sec. 1.
Notice to County Recorders.
Sec. 2943. Whenever any surety company, not organized under the
laws of the State of Idaho, shall have complied with the laws of this
State as in this chapter and as otherwise by law provided, it shall
be the duty of the Insurance Commissioner of this State, on the first
day of the next succeeding month, to send to the county recorder of
each county in this State, a notice, stating that such surety company
has complied with the laws of this State, and is authorized to write
risks of the kind and character authorized in its certificate of author-
ity, to do business, stating therein in general terms, the risks author-
ized to be written by such company. Such notice shall be issued by
said Insurance Commissioner over his signature and seal of office,
and shall be received in evidence as a sufficient justification of such
surety, and of its authority to do business in this State until the end
of the insurance year in which the same may have been issued, or
until notice be given of withdrawal from, or of cancellation of its
license to do business in, this State. Such certificate shall be kept on
file in the office of the county recorders of the respective counties, sub-
ject to inspection as other public records, and any party interested
may have certified copies thereof which shall be admissible in evi-
dence with like effect as the original. If any company shall withdraw
from this State, or if its license be cancelled, the Insurance Commis-
sioner shall give notice of such withdrawal from the State or can-
cellation of license to do business, forthwith, by mailing a certificate
Ch. 11. Art. 2.
SURETY COMPANIES
1169
of such fact to the county recorder of each county of the State, and
also by sending notice to each agent resident within the State author-
ized to do business for said company, as shown by the records of his
office, at the address shown in his said records. The certificates of
authority to be sent monthly as in this section provided, shall include
in one certificate all companies which have been authorized to do
business during the preceding month, and may also include all com-
panies which have withdrawn, or whose certificate of authority may
have been cancelled during such month, and, unless deemed for the
public interest that notice be given forthwith, all notices of with-
drawal from the State, and also all notices of cancellation of licenses
to do business, may be made part of such monthly certified statement,
and copies thereof sent to agents of such company, and county re-
corders at the first of the month only in lieu of sending such notice
forthwith. This section shall not be held to require notice- of cancel-
lation of an agent's authority to do business, except only in cases of
withdrawal from the State, and cancellation of license as herein
mentioned.
Historical: Laws 1899. 3 37, Sec. 9;
amended Laws 1905, 394, Sec. 1.
Failure to Pay Judgment Forfeits Authority.
Sec. 2944. If any surety company doing business under this chap-
ter shall neglect or refuse, for a period of ninety days, to pay any final
judgment rendered against it upon any bond or undertaking made
or guaranteed by it under the provisions of this chapter, it shall for-
feit all right to do business in this State and its certificate of author-
ity shall be revoked: Provided, If any appeal from said judgment
shall be taken within said ninety days, accompanies by an undertaking
as is provided in cases of appeals under the general statutes of this
State, then and in that case such period of ninety days shall begin to
run from the date of the remittitur from the Supreme Court affirming
said judgment in whole or in part, shall be filed in the District Court.
Historical: Laws 1899, 3 37, Sec. 12;
amended Laws 1905, 394, Sec. 1.
ARTICLE 2.
GENERAL SURETY COMPANIES.
Section
2945. Bonds
by
may be executed
surety companies.
2946. Release of surety.
2947. Agreement for protection of
surety.
Section
2948. Expense of bond as costs.
2949. Companies must comply with
acts of Congress.
2950. Company estopped to plead ul-
tra vires.
Bonds May Be Executed by Surety Companies.
Sec. 2945. Whenever any bond, undertaking, recognizance or other
obligation is by law, or by the charter, ordinances, rules or regulations
of any municipality, board, body, organization, court, judge or public
officer required or permitted to be made given, tendered or filed with
surety or sureties, and whenever the performance of any act, duty or
obligation, or the refraining from any act, is required or permitted
to be guaranteed, such bond, undertaking, obligation, recognizance
1170
CORPORATIONS
Tit. 4.
or guaranty may be executed by a surety company qualified as in this
chapter provided. Such execution by such company of such bond,
undertaking, obligation, recognizance or guaranty, shall be in all re-
spects a full and complete compliance with every requirement of
every law, charter, ordinance, rule or regulation that such bond,
undertaking, obligation, recognizance or guaranty shall be executed
by one surety or by one or more sureties, or that such sureties shall
be residents or householders, or free holders, or either or both, or
possess any other qualification. All courts, judges, heads of depart-
ments, boards, bodies, municipalities, and public officers of every
character, shall accept and treat such bond, undertaking, obligation,
recognizance or guaranty, when so executed by such company, as con-
forming to, and fully and completely complying with, every such
requirement of every such law, charter, ordinance, rule or regulation.
Historical: Laws 1899. 33 7, Sec. 1.
"In this chapter" inserted in place of
"hereinafter" provided, at end of first
sentence. The provisions of the pre-
ceding article supersede the provisions
of the 1899 act as to qualifications of
corporate sureties.
Cited: Gatward v. Wheeler (1904)
10 Ida. 66; 77 Pac. 23.
Justification of Company Sureties:
When an undertaking on appeal from
a justice court is excepted to, the ap-
pellant may, in lieu of a justification
of sureties, file the undertaking of a
surety company, but such undertaking
must be accompanied with documen-
tary evidence showing prima facie
that such surety company has qual-
ified to do business in this State by
complying with the requirements of
this act, and that the execution of
such undertaking has been authorized
by the surety company, executed by
agents or officers authorized to exe-
cute it, and notice of filing such un-
dertaking and evidence must be given
the respondent. Numbers v. Rockv
Mt. Bell Tel. Co. (1900) 7 Ida. 408;
63 Pac. 381.
Release of Surety.
Sec. 2946. The surety or the representative of any surety, upon
the bond of any trustee, committee, guardian, assignee, receiver, ex-
ecutor, or administrator, or other fiduciary, may apply by petition
to the court wherein such bond is directed to be filed or which may
have jurisdiction of such trustee, committee, guardian, assignee, re-
ceiver, executor or administrator, praying to be relieved from further
liability as such surety, for the acts or omissions of the trustee, com-
mittee, guardian, assignee, receiver, executor or administrator, or
other fiduciary, which may occur after the date of the order reliev-
ing such surety to be granted as herein provided for, and to require
such trustee, committee, guardian, assignee, receiver, executor, or
administrator, or other fiduciary, to show cause why he should not
account and said surety be relieved from such further liability as
aforesaid and said principal be required to give a new bond. There-
upon, upon filing of said petition, said court shall issue such order re-
turnable at such time and place and to be served in such manner as
said court shall direct, and may restrain such trustee, committee,
guardian, assignee, receiver, executor or administrator or other fi-
duciary from acting except in such manner as it may direct to pre-
serve the trust estate. Upon the return of such order to show cause,
if the principal in the bond account in due form of law and file a new
bond duly approved, then said court must make an order releasing
said surety filing the petition as aforesaid, from liability upon the
bond for any subsequent act or default of the principal. In default
of said principal thus accounting and filing such new bond, said Court
Ch. 11. Art. 2. SURETY COMPANIES 1171
shall make lan order directing such trustee, committee, guardian,
assignee, receiver, executor, or administrator, or fiduciary to account
in due form of law within thirty days, and that if the trust fund or
estate shall be found or made good and paid over or properly secured,
such surety shall be discharged from any and all further liability as
such for the subsequent acts or omissions of the trustee, committee,
guardian, assignee, receiver, executor, or administrator, or fiduciary,
after the date of the surety being so relieved or discharged, and dis-
charging such trustee, committee, guardian, assignee, receiver, exec-
utor or administrator, or fiduciary.
Historical: Laws 1899, 337, Sec. 4.
Agreement for Protection of Surety.
Sec. 2947. It shall be lawful for any party of whorcfa bond, un-
dertaking, or other obligation is required, to agree with his surety
or sureties for the deposit of any or all moneys and assets for which
such surety or sureties are or may be held responsible, with a bank,
savings bank, safe deposit or trust company, authorized by law to do
business as such, or other depository approved by the court, or a
judge thereof, if such deposit is otherwise proper, for the safe keep-
ing thereof, and in such manner as to prevent the withdrawal of such
moneys and assets or any part thereof, without the written consent
of such surety or sureties or an order of the court, or a judge thereof,
made on such notice to such surety or sureties as such court or judge
may direct.
Historical: Laws 1899, 337, Sec. 5.
Expense of Bond as Costs.
Sec. 2948. Any receiver, assignee, guardian, trustee, committee,
executor, administrator or curator, or other fiduciary, required by law
or the order of any court or judge to give a bond or other obligation
as such, may include as a part of the lawful expense of executing his
trust, such reasonable sum paid a company authorized under the laws
of this State so to do, for becoming his surety on such bond as may be
allowed by the court in which, or a judge before whom, he is required
to account, not exceeding one per centum per annum on the amount
of such bond. In all actions and proceedings a party entitled to re-
cover disbursements therein shall be allowed and may tax and
recover such sum paid such company for executing any bond, recog-
nizance, undertaking, stipulation or other obligation therein, not ex-
ceeding, however, one per cent on the amount of the liability upon
such bond, recognizance, undertaking, stipulation, or other obliga-
tion during each year the same has been in force.
Historical: Laws 1899, 33 7, Sec. 6.
Companies Must Comply With Acts of Congress.
Sec. 2949. Such surety companies only as have complied with the
provisions of sections two, three, four and five of the act of Congress,
approved August 13th, 1894, entitled: "An act relative to recogniz-
ances, stipulations, bonds, and undertakings and to allow certain
corporations to be accepted as surety thereon" shall be permitted to
1172
CORPORATIONS
Tit. 4
do business in this State, and no certificate under Section 2940 shall
issue, until a compliance with the provisions of said sections of said
act of Congress is shown. And said surety companies must also file
with the annual statement prescribed by Section 2939 evidence that
their authority to do business has not been revoked under the pro-
visions of said act of Congress.
Historical: Laws 1899, 337, Sec. 7.
The act of Congress referred to in
the section may be found in U. S.
Comp. St. (1901) Vol. 2, p. 2315. The
sections indicated require the appoint-
ment of resident agents for service of
process; the deposit of a copy of
charter and statement of assets and
liabilities with the Attorney General
of the United States, who shall issue
a certificate of authority; the sub-
sequent filing of quarterly statements
with the Attorney General, and fix the
federal jurisdiction of suits against the
company.
Surety Company Estopped to Plead Ultra Vires.
Sec. 2950. Any company giving any bond or recognizance under
this article shall be estopped, in any proceeding to enforce the liabil-
ity which it shall have assumed to incur, to deny its corporate power
to execute such instrument or assume such liability.
Historical: Laws 1899, 337, Sec. 11.
ARTICLE 3.
FIDELITY COMPANIES.
Section
2 957. Corporations charged with a
public use.
2 958. Cost of bond not to be deduct-
ed from wages.
2 959. Applicant to be furnished with
copy of bond.
2960. Application of article to indi-
viduals.
Section
2951. Companies subject to article.
2952. Persons deemed agents of
companies.
2953. Acting for unauthorized com-
pany: Penalty.
2954. Acceptance of unauthorized
company as surety: Penalty.
2955. Refusal to grant bond: State-
ment of reasons.
2956. Same: Revocation of authority
for non-compliance.
Companies Subject to Article.
Sec. 2951. Any corporation organized or controlled under the laws
of this State, or of any State or Territory within the United States
of America, or of any municipality of such State or Territory, or of
any foreign government, sovereignty or municipality, for the pur-
pose of issuing surety, guaranty or indemnity bonds, guaranteeing
the fidelity of persons in private office, employments or positions of
trust and contracts, or for acting as surety on any such bonds, are
subject to the provisions hereinafter contained.
is superseded by Laws 1905, 394. See
Art. 1 of this chapter and the note to
Sec. 2938. This section is otherwise re-
tained in order to identify the com-
panies subject to this article.
Historical: Laws 1899, 187, Sec. 1;
re-enacting Laws 1893. 36, Sec. 1;
"And subject to the provisions herein-
after contained" inserted for "shall
file with the Secretary of State a cer-
tified copy of its articles", etc., which
Persons Deemed Agents of Companies.
Sec. 2952. Any person who solicits business for or in behalf of
such corporation, or makes or transmits for any person other than
himself, any application for a guaranty, or security, or who adver-
Ch. 11. Art. 3.
FIDELITY COMPANIES
1173
tises or otherwise gives notice that he will receive or transmit the
same, or who shall receive or deliver a contract of guaranty of secur-
ity, or who shall examine or investigate the character of any appli-
cant for a guaranty or security, for any person or persons other than
himself, or who shall refer any applicant for a guaranty or security
to such corporation, whether any of said acts shall be done at the in-
stance or request, or by the employment of such corporation or other
corporation or person, or any person who shall issue indemnifying
bonds or contracts, whose solvency and compliance with his said
bonds or obligations is guaranteed directly or indirectly by any cor-
poration, shall be held to be the agent of the corporation, so far as
relates to all the liabilities and penalties prescribed by this article.
Historical: Laws 1899, 18 7, Sec. 8;
re-enacting Laws 1893, 86, Sec. 8.
Acting for Unauthorized Company: Penalty.
Sec. 2953. Any person performing any of the acts or things men-
tioned in the preceding section for any such corporation without said
corporation having first complied with the provisions of this chapter,
and having received the certificate of authority from the Insurance
Commissioner, as provided in Section 2940, shall be deemed guilty of
a misdemeanor, and for conviction thereof for the first offense shall
be fined in any sum not less than one thousand dollars, and not more
than two thousand dollars, and imprisoned in the county jail for a
period of three months, and for each subsequent offense, such person
shall be fined in any sum not less than two thousand dollars, and con-
fined in the county jail for a period of six months.
Historical: Laws 1899, 187, Sec. 9;
re-enacting- Laws 1893, 86, Sec. 9.
"Insurance Commissioner" inserted
for "Secretary of State" to conform
to Laws 1905, 394, Sec. 1 (See Sec.
2940), which supersedes Sec. 7 of the
act referred to in the section from
which this section is taken.
Acceptance of Unauthorized Company as Surety : Penalty.
Sec. 2954. Any persons or association of persons, or corporation,
who shall accept any corporation created for the purposes, or either of
them, mentioned in Section 2951, without such corporation having
previously complied with the provisions and requirements of this
chapter, and having received from the Insurance Commissioner the
certificate of authority provided for in Section 2940, shall forfeit as
a penalty the sum of one thousand dollars, to be recovered by suit in
the name of the State in any court of competent jurisdiction.
Historical: Laws 18 99, 187, Sec. 10;
re-enacting Laws 1893, 86, Sec. 10.
"Insurance Commissioner" inserted
for "Secretary of State",
preceding- section.
See note to
Refusal to Grant Bond: Statement of Reasons.
Sec. 2955. When any such corporation shall cancel or refuse to
grant a bond of guaranty or indemnity, or shall notify the employer
of the person whose fidelity is guaranteed, or to be guaranteed, that'
said corporation will no longer guarantee or be security or become
guaranty of security for the fidelity of said person, or when said cor-
poration has once guaranteed the fidelity of any person, or acted as
security therefor, and on application refuses to do so again, it shall
1174
CORPORATIONS
Tit. 4
furnish such person a full statement in writing, of the facts upon
which the action of the corporation is based, and if such action be
based in whole, or in part, on information, all such information to-
gether with the name or names of the informants with their places
of residence. Such corporation failing or refusing to furnish such
written statement within thirty days after a request therefor, shall
be liable to the person injured in the sum of one thousand dollars, in
addition to all other damages caused thereby, which may be sued for
and recovered in any court of competent jurisdiction.
Historical: Laws 1899, 187, Sec. 11;
re-enacting- Laws 1893, 86, Sec. 11.
Same: Revocation of Authority for Non-Compliance.
Sec. 2956. If any corporation shall fail or refuse to comply with
the provisions of the preceding section, the Insurance Commissioner
shall revoke the certificate of authority issued to such corporation.
Historical: Laws 1899, 187, Sec. 12;
re-enacting Laws 1893, 86, Sec. 12.
"Insurance Commissioner" for "Sec-
retary of State" to conform to Laws
1905, 394. See note to Sec. 2938.
Corporations Charged With a Public Use.
Sec. 2957. Corporations controlled for the purpose mentioned in
Section 2951, are hereby declared to be charged with a public use.
Historical: Laws 1899, 187. Sec. 13;
re-enacting Laws 1893, 86, Sec. 13.
Cost of Bond Not to Be Deducted from Wages.
Sec. 2958. It shall be unlawful for any railroad or other corpora-
tion doing business within this State, to collect or retain from the
wages of the persons in their employ, the cost of such guaranty or
security, and such employees shall be permitted to select such guar-
anty or surety company or companies or individuals, complying with
the provisions of this chapter, and such employees shall be permitted
to pay the premiums of their bonds, freely and voluntarily.
Historical: Laws 1899, 187, Sec. 14;
re-enacting Laws 1893, 86, Sec. 14.
Applicant to Be Furnished With Copy of Bond.
Sec. 2959. Any corporation, company or individual complying with
the provisions of this chapter, issuing such bonds of indemnity, guar-
anty, or security, shall furnish the applicant with a true and complete
copy of the original bond, furnished the corporation, company or in-
dividual to whom the bond was issued.
Historical: Laws 1899, 187, Sec. 15;
re-enacting Laws 1893, 86, Sec. 15.
Application of Article to Individuals.
Sec. 2960. Nothing contained in this article shall be construed to
apply to any citizen or person of this State offering or becoming
surety, upon bonds or otherwise, for any other citizeh or person
without compensation to him or herself
Historical: Laws 1899, 187, Sec. 16;
re enacting Laws 1893, 86, Sec. 16.
Ch. 12.
TITLE AND TRUST COMPANIES
1175
CHAPTER 12.
GUARANTY, TITLE AND TRUST COMPANIES.
Section
2 964. Capital deemed security.
2 965. Executors may deposit securi-
ties.
2966. Court may direct deposit.
2967. Court may examine officers.
Section
2961. Powers and rights of compa-
nies.
2962. Enlargement of powers of ex-
isting corporations.
2963. Capital required.
Powers and Rights of Companies.
Sec. 2961. Companies incorporated under the provisions of this
chapter shall have the power and right :
1. To furnish abstracts of title to real estate; to guarantee the
title, and to make insurance of every kind pertaining to^er connected
with titles to real estate, and to make, execute and perfect such and
so many contracts, agreements, policies and other instruments as may
be required therefor;
2. To receive and hold on deposit and in trust and as security
estate, real and personal, including the notes, bonds, obligations of
estates, individuals, companies and corporations, and the same to
purchase, collect, adjust and settle, sell and dispose of, in any man-
ner with or without proceedings in law or equity, and for such price,
and on such terms as may be agreed on between them and the parties
contracting with them ;
3. To act as trustee, assignee, receiver, guardian, executor, ad-
ministrator, and to take, accept and execute trusts of every descrip-
tion not inconsistent with the laws of this State or of the United
States, and the president or secretary of any such company may take
the oath necessary to qualify it to act in such capacity, and such com-
pany shall be bound thereby; and to receive deposits of money and
other personal property and to issue their obligations therefor; to
invest their funds in and to purchase real and personal securities,
and to loan money on real and personal security ;
4. To act as fiscal or transfer agent of any State, municipality,
body politic or corporation, and in such capacity to receive and dis-
tribute money, transfer, register and countersign certificates of stocks,
bonds, or other evidences of indebtedness, and to receive and manage
any sinking fund thereof on such terms as may be agreed upon;
5. To take, receive and hold any and all such pieces of real prop-
erty as may have been or may hereafter be the subject of any insur-
ance made by such companies under the powers conferred by their
charter, and the same to grant, bargain, sell, convey and dispose of
in any such manner as they see proper;
6. To purchase and sell real estate and take charge of the same.
7. To become security for the payment of all damages that may
be assessed and directed to be paid for lands taken in the building
of any railway, or for the purposes of any railway, or for the open-
ing of streets or roads or for any purpose whatsoever where land or
property is authorized by law to be taken;
8. To become security upon any writ of error or appeal, or in
any proceeding instituted in any court in this State, in which security
may be required.
1176
CORPORATIONS
Tit. 4.
Historical: Laws 1901, 26, Sec. 1; of which this is an amendment", in
amended Laws 1907, 545, Sec. 1. the first paragraph.
"Chapter" inserted for "act, or the act
Enlargement of Powers of Existing Corporations.
Sec. 2962. Any company heretofore incorporated under the act
of which this and the preceding sections are amendments, may exer-
cise any or such portion of the additional powers or privileges granted
by the preceding section, as it may desire, by filing with the recorder
of the county of its principal place of business, a resolution of its
shareholders, certified by its secretary, passed at any regular or
special meeting thereof, adopting the provisions of this and the pre-
ceding sections, or such portion thereof as it may desire, and filing
a copy thereof, certified by such county recorder, with the Secretary
of State and the Bank Commissioner.
Historical: Laws 1907, 545, Sec. 2;
amending by addition Laws 1901, 26.
Capital Required.
Sec. 2963. Before exercising any of the powers hereby conferred,
each such corporation shall have a paid up capital of not less than
twenty-five thousand dollars, an affidavit of which fact, made by the
treasurer thereof, shall be filed in the office of the Secretary of State,
and a copy of such affidavit certified under the seal of the office of the
Secretary of State shall be evidence of compliance with the require-
ments hereof.
Historical: Laws 1901, 26, Sec. 2.
Capital Deemed Security.
Sec. 2964. Whenever such companies shall receive and accept the
office or appointment of assignees, receivers, guardians, executors,
administrators, or be directed to execute any trust whatever, or
engage in the compiling of abstracts, the capital of the said company
shall be taken and considered as the security required by the law
for the faithful performance of their duties as aforesaid, and shall be
absolutely liable in case of any default whatever.
Historical: Laws 1901, 26, Sec. 3.
Executors May Deposit Securities.
Sec. 2965. Any executors, administrator, guardian or trustee, hav-
ing the custody or control of any bonds, stocks, securities or other
valuables belonging to others, shall be authorized to deposit the same
for safe keeping with said companies.
Historical: Laws 1901, 26, Sec. 4.
Court May Direct Deposit.
Sec. 2966. Every court into which moneys may be paid by parties,
or be brought by order or judgment, may, by order, direct the same
to be deposited with any such corporation.
Historical: Laws 1901, 26, Sec. 5.
Court May Examine Officers.
Sec. 2967. Whenever any court shall appoint said companies, as-
signees, receivers, guardians, executors, administrators, or to exe-
Ch. 13. Art. 1.
BANKS — ORGANIZATION, ETC.
1177
cute any trust whatever, the said court may, in its discretion, examine
the officers of said company under oath or affirmation, as to the man-
ner in which its investments are made, and the security afforded to
those by or for whom its engagements are held.
Historical: Laws 1901, 26, Sec. 6.
CHAPTER 13.
BANKING CORPORATIONS.
Article Article
1. Organization, internal manage- 3. Supervision of banks by the Com-
ment and right to do business. missioner.
2. Transaction of banking business.
ARTICLE 1.
ORGANIZATION, INTERNAL MANAGEMENT AND RIGHT TO DO BUSINESS.
Section
2 976. Transfer of stock: Purchase by
bank.
Stock book.
Ownership of real estate.
Liability of stockholders.
Directors: Qualifications and
oath.
Dividends and surplus.
Foreign bank denned.
Same: Capital required.
Same: Penalties.
2977.
2978.
2979.
2980.
2981.
2982.
2983.
2984.
Section
2968. Definition of banks and bank-
ing.
2969. Persons and corporations sub-
ject to chapter.
2970. How incorporated: Capital re-
quired.
2 9 71. Who are prohibited from bank
ing.
2972. Banks to comply with this
chapter.
2973. Capital: When to be paid in.
2974. Same: Sale of delinquent
stock.
2975. When authorized to do busi-
ness.
Definition of Banks and Banking.
Sec. 2968. Any person, firm, association, copartnership, company,
corporation or foreign bank, (except national banks), having a place
of business within this State where credits are opened by the deposit
or collection of money or currency, subject to be paid or remitted
upon draft, check or order, or where money is advanced or loaned
on stocks, bonds, bullion, bills of exchange or promissory notes, or
where stocks, bonds, bullion, bills of exchange or promissory notes
are received for discount or for sale, shall be regarded as a bank or
banker, and as doing a banking business under the provisions of this
chapter.
Historical: Laws 1905, 175, Sec. 7.
Persons and Corporations Subject to Chapter.
Sec. 2969. Any individual, firm or partnership, company, corpora-
tion or foreign bank, holding itself out to the public as receiving
money on deposit, and whether evidenced by certificate, promissory
note or otherwise, shall be considered as doing a banking business,
and be subject to the provisions of this chapter as to such banking
business : Provided, That nothing in this chapter shall, in any man-
ner, abridge or affect the powers or privileges granted to trust com-
panies doing a banking business, within the meaning of this chapter,
1178
CORPORATIONS
Tit. 4
and organized under and complying with, or which may hereafter
organize under and comply with Chapter 12 of this title : Provided,
further, That the banking department of such trust companies shall be
subject to such regulations, examinations and reports, as are required
under this chapter, of other corporations doing a banking business.
"the act of the Legislature of the
State of Idaho, entitled", etc.
Historical: Laws 1905, 17 5, Sec. 30.
"Chapter 12 of this title" inserted for
How Incorporated: Capital Required.
Sec. 2970. Banking corporations may be formed under the gen-
eral incorporation laws of this State, for the purpose of conducting
and carrying on a banking business, and also to establish offices of
loan and deposit to be known as savings banks, or to establish banks
having departments for both classes of business, upon the terms and
conditions and subject to the liabilities prescribed in this chapter.
No banking corporation shall have less than five directors, and every
such corporation shall, before it transacts any banking business, file
with the Bank Commissioner a certified copy of its articles of incor-
poration. It shall be unlawful for any corporation, partnership, firm
or individual, except as hereinafter provided, to transact a banking
business, unless such corporation, partnership, firm or individual has
property of cash value as follows: In cities, villages and communi-
ties having a population of less than two thousand inhabitants, ten
thousand dollars; in cities, villages and communities having a popu-
lation of less than three thousand and more than two thousand,
twenty thousand dollars; in cities having a population of less than
five thousand and more than three thousand, twenty-five thousand
dollars; in cities having a population of less than ten thousand and
more than five thousand, thirty thousand dollars; in cities having a
population of ten thousand and less than twenty-five thousand, fifty
thousand dollars; in cities of over twenty-five thousand population,
one hundred thousand dollars. Such property shall be in money,
commercial paper, bank furniture, fixtures, or the necessary bank
building, including the lot or lots on which the building is situated, *
which said lot or lots shall be unencumbered.
Historical: Laws 1905, 175, Sec. 8.
Who Are Prohibited from Banking.
Sec. 2971. No individual, firm or corporation shall do a banking
business in this State, until he or they shall have furnished to the
Bank Commissioner evidence satisfactory to him that such individual,
firm or corporation has invested, or has for investment, in such bank-
ing business, an amount of capital equal to that required by the pre-
ceding section of corporations formed thereunder, and shall have re-
ceived from such Commissioner a certificate authorizing him or them
to do business, as required in Section 2975 for corporations.
Historical: Laws 1905, 175, Sec. 29.
Omitting- the clause "not now engaged
in banking in this State" as obsolete
for the reasons stated in the note to
the following section.
Banks to Comply With This Chapter.
Sec. 2972. No person or corporation, except national banks, shall
Ch. 13. Art. 1.
BANKS — ORGANIZATION, ETC.
1179
carry on a banking business, except on compliance with the provi-
sions of this chapter.
clause is now obsolete as Sec. 4 3 of
the act required all pre-existing banks
to "conform to, and in all respects
comply with, the provisions of this
act" within one year after the same
should take effect, and the act has
now been in effect for over three years.
Historical: Laws 1905, 175, Sec. 9.
Omitting the proviso which has been
made an independent section. See Sec.
3009. Omitting further the clause
"and banks and trust companies or-
ganized in this State established prior
to the taking effect of this act". That
Capital: When to Be Paid In.
Sec. 2973. At least fifty per cent of the capital of every bank here-
after formed shall be paid in before such bank shall be authorized
to commence business, and the remainder of the capital of such bank
shall be paid in monthly installments of at least ten per cent each
on the whole of the capital, payable at the end of each succeeding
month from the time it shall be authorized to commence business, and
the payment of each installment shall be certified to the Bank Com-
missioner, under oath, by the president, cashier or treasurer of each
bank: Provided, That where an amount is paid in, equal to the re-
quirements prescribed in Section 2970, the subscription for the bal-
ance shall be subject to the direction of the stockholders and directors,
and the payment of such subscription subject to the directors.
Historical: Laws 1905, 17 5, Sec. 10.
Same : Sale of Delinquent Stock.
Sec. 2974. When any stockholder, or his assignee, shall fail to pay
any installment on his stock when the same is required by the preced-
ing section to be paid, the directors of such bank may sell the delin-
quent stock of such delinquent stockholder at public sale, having first
given the delinquent stockholder twenty days notice, personally or
by mail, at his last known address. If no bidder can be found who
will pay for such delinquent stock the amount due thereon, with costs
incurred, the amount previously paid on such delinquent stock shall
be forfeited to the bank, and such stock shall be sold as the directors
may order within six months from the time of such forfeiture, and
if not sold it shall be cancelled and held as unissued capital stock of
the bank. If sold before cancellation, any surplus over the amount
due on such stock to said bank, less all costs incurred thereon, with
interest for the time delinquent, shall be returned to the original
stockholder, his heirs or assigns. If such cancellation shall reduce the
paid capital of the bank below the minimum required by law, the said
paid capital shall, within thirty days thereafter, be increased to the
required amount by original subscription, in default of which a re-
ceiver may be applied for by the Bank Commissioner to close up the
business of the bank.
Historical: Laws 1905, 175, Sec. 11.
When Authorized to Do Business.
Sec. 2975. When any bank hereafter formed shall notify the Bank
Commissioner that at least fifty per cent of its capital has been paid
in, the Commissioner shall examine into the condition of such bank,
and if, upon examination, it appears that such bank is lawfully enti-
tled to commence business, the Commissioner shall, within thirty days
1180 CORPORATIONS Tit. 4
after receiving such notice, give to such bank a certificate, under his
hand and official seal, that it has complied with all the provisions of
the law and is duly authorized to transact a banking business : Pro-
vided, That no bank shall transact any business except such as is nec-
essarily preliminary to its organization, until it has been authorized
by the Bank Commissioner to commence the business of banking.
Historical: Laws 1905, 175, Sec. 12.
Transfer of Stock: Purchase by Bank.
Sec. 2976. The shares of stock of such incorporated bank shall be
deemed personal property, and shall be transferred on the books of
the bank in such manner as the by-laws thereof shall direct. But
no such bank shall accept, as collateral, or be the purchaser of, its own
capital stock, except in cases where the taking of such collateral, or
such purchase, shall be necessary to prevent loss upon a debt pre-
viously contracted in good faith, and in such case such stock must be
sold by the bank within twelve months from the time it was acquired.
Historical: Laws 1905, 175, Sec. 13.
Stock Book.
Sec. 2977. A book shall be provided and kept by every bank, in
which shall be entered the names and residences of the stockholders
thereof, the number of shares held by each, the time when such per-
son became a stockholder, and also all transfers of stock, stating the
time when made, the number of shares, and by whom transferred.
In all actions, suits and proceedings said book shall be prima facie
evidence of the facts therein stated.
Historical: Laws 1905, 175, Sec. 14.
Ownership of Real Estate.
Sec. 2978. Any bank under the laws of this State may purchase,
hold and convey real estate for the following purposes and no other :
1. Such real estate as shall be necessary for the convenient trans-
action of its business, including with its banking offices other prem-
ises in the same building to rent as a source of income, but which
shall not exceed in cost to such bank fifty per cent of its paid-in capi-
tal, surplus and undivided profits.
2. Such real estate as shall be purchased by or conveyed to it in
satisfaction or on account of debts previously contracted in the
course of its business.
3. Such real estate as it shall purchase at sale under judgments,
decrees or mortgage foreclosure under securities held by it.
Historical: Laws 1905, 17 5, Sec. 16.
Omitting- "hereafter formed" as obso-
lete. See note to Sec. 2972.
Liability of Stockholders.
Sec. 2979. The stockholders of every incorporated bank shall be
liable to the creditors of such bank to the amount of their stock at
the par value thereof, in addition to the stock held by them ; but per-
sons holding stock as administrators, executors, guardians or trustees,
or as collateral security, or in pledge, shall not be personally liable
Ch. 13. Art. 1. BANKS — ORGANIZATION, ET^ 1181
as stockholders, but the assets and funds in the hands of such trustee
constituting the trust shall be liable to the same extent as the testa-
tor or intestate, ward or person interested in such trust fund would
be if living or competent to act, and the person pledging such stock
shall be deemed a stockholder and liable under this section. Such
liability may be enforced by an action at law or suit in equity by any
such bank in process of liquidation, or by any receiver or other person
succeeding to the legal rights of such bank.
Historical: Laws 1905, 175, Sec. 15.
Directors: Qualifications and Oath.
Sec. 2980. Every director of such incorporated bank must be the
owner, in his own right, of stock therein to the amount of at least
five hundred dollars par value. He shall take and subscribe an oath
that he will faithfully and diligently perform the duties of such office,
and will not knowingly violate, or permit to be violated, any provision
of this chapter. Such oath shall be transmitted to the Bank Com-
missioner and filed in his office.
Historical: Laws 1905, 17 5, Sec. 17.
Dividends and Surplus.
Sec. 2981. The directors of any incorporated bank may declare a
dividend of so much of the net profits of the bantf after providing for
all expenses, interest and taxes accrued or due from such bank, as
they shall deem just and expedient; but before any such dividend is
declared, not less than one-tenth of the net profits of the bank for
the preceding half year, or for such period as is covered by the divi-
dend, shall be carried to a surplus, until such surplus shall amount to
twenty per cent of its paid capital.
Historical: Laws 19 05, 175, Sec. 18.
Foreign Bank Defined.
Sec. 2982. In construing this chapter the term "foreign bank"
and "foreign banker" shall be deemed to include:
1. Every corporation not organized under the laws of the State
of Idaho, doing a banking business, except a national bank.
2. Every unincorporated company, partnership or association
of two or more individuals organized under or pursuant to the laws of
another State or county, doing a banking business authorized by this
chapter.
3. Every other incorporated company, partnership or association
of two or more individuals doing a banking business authorized by this
chapter, if the members thereof owning a majority interest therein
or entitled to more than half the profits thereof or who would, if it
was dissolved, be entitled to more than one-half the net assets thereof,
are not residents of this State.
4. Every non-resident of this State doing a banking business
authorized by this chapter in his own name and right only.
Historical: Laws 1905, 175, Sec. 46.
Same: Capital Required.
Sec. 2983. Every foreign bank or foreign banker heretofore hav-
1182
CORPORATIONS
Tit. 4
ing established or hereafter establishing an office in this State, shall
have and at all times maintain, at every such office, a capital not less
in amount than that required by this chapter for the organization of
a State bank, at the time when and place where such office was or shall
be opened, and no such foreign bank or foreign banker shall set forth
on the stationery of such bank or banker, or in any manner advertise,
a greater capital, surplus and undivided profits than are actually
maintained at any such bank within this State : Provided, That everj
foreign bank and every foreign banker, shall be subject to all provi-
sions of this chapter to the same extent as banks or bankers organ-
ized or doing a banking business under or by virtue of the laws of this
State.
Historical: Laws 1905, 17 5, Sec. 4 4.
Same : Penalties.
Sec. 2984. Every foreign bank or foreign banker, and every officer,
agent or employee thereof, violating any of the provisions of the
chapter shall, for each violation, forfeit and pay to the State of Idaho
the sum of one thousand dollars, and shall, in addition thereto, be
subject to all of the penalties provided for in this chapter. Said for-
feiture may be recovered in an action by the Attorney General in the
name of the State of Idaho, in the District Court of the county where
such bank or branch bank shall be located.
Historical: Laws 1905, 175, Sec. 45.
ARTICLE 2.
TRAXSACTION OF BANKING BUSINESS.
Section
Section
2985.
Receiving deposits when in-
2991.
Savings banks and trust com
solvent.
panies.
2986.
Accounts of persons under dis-
2992.
Same: Investment of funds.
abilities.
2993.
Same: Interest on deposits.
2987.
Limitations on unsecured
2994.
Same: Accounts of persons un
loans.
der disability.
2988.
Certified checks.
2995.
Accounts: How kept.
2989.
Loans to officers.
2996.
Existing investments.
2990.
Depositors are preferred cred-
2997.
Disposition of unclaimed de
itors.
posits.
Receiving Deposits When Insolvent.
Sec. 2985. The owners or officers of any bank who shall fraudu-
lently and with intent to cheat and defraud any person, receive any
deposit knowing that such bank is insolvent, shall be deemed guilty of
a felony, and punished, upon conviction therefor, by a fine not ex-
ceeding one thousand dollars, or by imprisonment in the State Peni-
tentiary not exceeding two years, or by both such fine and impris-
onment, at the discretion of the court.
Historical: Laws 19 05, 175, Sec. 19.
Cross Reference: Officers receiving
deposits when the bank is insolvent
are guiltv of misdemeanor:
7119.
Sec.
Accounts of Person Under Disabilities.
Sec. 2986. When any minor, married woman or other person un-
Ch. 13. Art. 2. banks — transaction of business 1183
der disability, shall make a deposit in any bank in his or her own
name, such bank may pay such money on a check or order of such
person, the same as in other cases, and such payment shall be in
all respects valid in law.
Historical: Laws 1905, 175, Sec. 20.
Limitations on Unsecured Loans.
Sec. 2987. The total liability to any bank of any person or per-
sons, or of any company, corporation or firm, for money loaned, in-
cluding in the liabilities of the company or firm the liabilities of the
several members thereof, except special partners, shall at no time ex-
ceed fifty per cent of the aggregate capital, surplus and undivided
profits of such bank; but the discount of bills of exchange drawn in
good faith against actual existing values, and the discount of com-
mercial or business paper actually owned by the persons negotiating
the same, shall not be considered as money borrowed : Provided, how-
ever, That the foregoing limitations shall not apply to loans upon
real estate or other collateral securities representing actual value,
or loans made on warehouse receipts and bills of lading.
Historical: Laws 1905, 175, Sec. 21.
Certified Checks. /
Sec. 2988. No owner, officer, agent, clerk or employee of a bank
shall certify a check unless the amount thereof actually stands to the
credit of the drawer on the books of the bank, and any person who
shall wilfully violate this provision, shall, on conviction thereof, be
deemed guilty of a felony and be punished by a fine not exceeding one
thousand dollars. Any such check so certified by a duly authorized
person shall be a good and valid obligation of the bank in the hands
of an innocent holder.
Historical: Laws 19 05, 175, Sec. 2 2.
Loans to Officers.
Sec. 2989. No partnership, firm or individual transacting a bank-
ing business in this State shall be permitted to carry any note or ob-
ligations of any such partnership or firm or individual or any mem-
bers of such partnership or firm, as a part of the assets of the bank.
And no officer or employee of any corporation transacting a banking
business in this State, shall be permitted to loan to himself any of the
funds of the bank upon his own note or obligation, without having
first obtained the approval of a majority of the board of directors
of the bank, or of an executive board or discounting committee selected
by a majority of the board of directors, such selection to be recorded
in the minutes, and the approval of the loan, if obtained, shall be
made a part of the records of the bank. And if the directors of any
incorporated bank shall knowingly permit any of the officers, direc-
tors or employees of such bank to borrow the funds of such bank in an
excessive and dishonest manner, or in a manner incurring great risk
of loss to such bank, every director who participated in and assented
to the same, shall be held liable in his personal and individual ca-
pacity for all damage which the association, the bank, its shareholders,
1184 CORPORATIONS Tit. 4
or any other person, shall have sustained in consequence of such vio-
lation.
Historical: Laws 1905, 175, Sec. 31.
Depositors Are Preferred Creditors.
Sec. 2990. In the event of insolvency or bankruptcy of any person,
firm, co-partnership or corporation maintaining, operating or con-
ducting a bank or a banking department or doing business within the
meaning of this chapter, depositors of such bank or banking depart-
ment shall have a first and prior lien on all the assets of such bank or
banking department, and in the distribution of such assets or the
proceeds thereof, the same shall first be applied to satisfy the amount
due such depositors; and if any person, firm, co-partnership or cor-
poration, maintains, operates or conducts one or more branch or sub-
ordinate banks, or more than one bank or banking departments, or
does a banking business within the meaning of this chapter at more
than one place, the depositors of any such bank or subordinate bank
or banking department shall have a first and prior lien upon all the
assets of such bank, branch or subordinate bank or banking depart-
ment where such deposit was made or credit extended, and in the dis-
tribution of such assets or the proceeds thereof, the same shall first
be applied to satisfy the amount due such depositors.
Historical: Laws 1905, 175, Sec. 47.
Savings Banks and Trust Companies.
Sec. 2991. Any bank which shall designate its business as that of
a savings bank, and any trust company existing under the laws of
this State, shall have power to carry on the business of banking, as
prescribed and limited in this chapter, and may receive money on sav-
ings deposits, and such deposits shall be repaid to the depositor and
his lawful representatives when required, at such time or times and
with such interest as the regulations of the bank from time to time
prescribe. A pass book shall be issued to each savings depositor, con-
taining the rules and regulations prescribed by the bank, governing
such deposits, in which shall be entered each deposit made by and
each payment made to such depositor. And no payment made to such
depositor, and no payment or check against any such savings ac-
count, shall be made unless accompanied by and entered in the pass
book issued therefor, except for good cause and assurance satisfactory
to the bank officers ; but nothing in this section shall prevent savings
banks from issuing time certificates of deposit, or certificates of de-
posit specially issued subject to the rules and regulations governing
savings deposits.
Historical: Laws 1905. 175, Sec. 23.
Same : Investment of Funds.
Sec. 2992. It shall be lawful for any savings bank, and for any
other institution with a savings department to invest its savings de-
posits formed pursuant to the provisions of this chapter, to invest its
capital and the money deposited in such bank as follows and not oth-
erwise :
Ch. 13. Art. 2. BANKS — TRANSACTION OF BUSINESS 1185
1. In bonds or interest bearing notes or certificates of the United
States.
2. In bonds or interest bearing evidences of indebtedness of this
State.
3. In bonds or warrants of any city, town, county, school district
or irrigation district of this State, issued pursuant to authority of law ;
but not exceeding fifty per cent of the assets of any savings bank
shall consist of bonds or warrants of any one city, or town, county,
school district or irrigation district.
4. In bonds or warrants of any State in the Union, or any city,
town, county, school or irrigation district of any such State, that has
not for three years previous to such investment being made, defaulted
in payment of the interest on its legal funded debt. But not exceed-
ing fifty per cent of the assets of any such bank shall be invested in
the bonds of any one State or of any county or municipality outside of
this State.
5. In notes or bonds secured by mortgage to such savings bank,
or by mortgage or by deed of trust to any trust company under the
laws of this State, upon unencumbered real estate worth at least
double the amount loaned thereon. Whenever buildings are included
in the valuation of any real estate upon which a loan shall be made
by such savings bank, they shall be insured by the, borrower for the
benefit of such savings bank in some reliable company, and such policy
of insurance shall be assigned to such savings bank, and it shall be
lawful for such savings bank to renew such policy of insurance from
year to year in case the borrower neglects to do so, and to charge the
same to him.
6. In real estate, subject to the provisions of Section 2978, except
that no savings bank hereafter established shall have more than fifty
per cent of its capital invested in the lot and building in which the
business of such savings bank may be carried on.
7. In dealing in exchange by purchasing and selling sight and
time drafts and notes.
8. While awaiting oppportunity for judicious investment of the
funds deposited with such savings bank, to loan the moneys so de-
posited uron well secured commercial paper, or upon the security of
stocks and other securities, not exceeding eighty per cent of the cash
market value thereof.
Historical: Laws 1905, 175, Sec. 24.
Same: Interest on Deposits.
Sec. 2993. It shall be the duty of the board of directors of such
savings bank, from time to time, to regulate the interest allowed de-
positors, and to pay the same at regular stated periods.
Historical: Laws 1905, 175, Sec. 25.
Same: Accounts of Persons Under Disability.
Sec. 2994. When any deposit is made in any savings bank by any
person being a minor, married woman, or other person under disa-
bility, such bank may pay to such person such sums as may be due to
him or her, as in the case of other persons, and such payment shall
be in all respects valid in law.
1186
CORPORATIONS
Tit. 4
Historical: Laws 1905, 175, Sec. 26.
Accounts: How Kept.
Sec. 2995. Any bank combining the business of a commercial bank
and a savings bank shall keep separate books of account for each
kind of business : Provided, That all receipts, investments and trans-
actions relating to each kind of business shall be governed by the pro-
visions and restrictions herein specifically provided for the respective
kinds of banks.
Historical: Laws 19 05, 17 5, Sec. 2 7.
Existing Investments.
Sec. 2996. Nothing in this chapter shall be construed to affect the
legality of the investments heretofore made, or of transactions here-
tofore had, pursuant to any provisions in force when such investments
were made or transactions had, nor to change any investments for
those named in this chapter.
and the date of the adoption of these
Codes, were, at the time when made,
governed by the provisions of this
chapter, and consequently only valid,
under this section, if valid when made.
Historical: Laws 1905, 175, Sec. 28.
This section is left unchanged, al-
though it applies only to investments
made prior to the taking effect of
the original act, on March 6th, 1905.
Investments made between that date,
Disposition of Unclaimed Deposits.
Sec. 2997. The president of every savings bank, saving and loan
society and every other bank depository, society or institution in
which deposits of money are made, whether any interest or dividend
is paid or agreed to be paid thereon or not, must, within fifteen days
after the first day of January of every odd numbered year, return to
the Bank Commissioner of this State a sworn statement snowing the
amount placed to the credit, the last known place of residence or post-
office address, and the fact of death, if known to said president of ev-
ery depositor who has not made a deposit therein or withdrawn there-
from any part of his deposit or any part of the interest dividends there-
on, for a period of ten years next preceding. Said president must give
notice of these deposits in one or more newspapers published in or
nearest the town, city, or village where said bank, society or other in-
stitution, or its principal place of business is situated, at least once a
week for four successive weeks, the cost of such publication to be
paid out of such unclaimed deposits. This section does not apply to
any deposit made by or in the name of a person known to the presi-
dent to be living, or which, with the accumulation thereon, is less than
fifty dollars. The Bank Commissioner must incorporate in his sub-
sequent report each return made to him as provided in this section.
Any president of any of the institutions mentioned in this section
who neglects or refuses to make the sworn statement required here-
in is guilty of a misdemeanor.
After the publication of the notice above provided for has been
completed for the term of six monhts, said banking institution shall
pay over to the State Treasurer, for the benefit of the school fund, all
moneys covered by said notices and unclaimed at said time.
Historical: Laws 1907, 554, Sees.
1, 2.
Ch. 13. Art. 3. banks — supervision 1187
ARTICLE 3.
SUPERVISION OP BANKS BY THE COMMISSIONER.
Section
2 998. Reserve required by banks.
2999. Reports of banks.
3000. Report of commissioner.
3001. Examination of banks.
3002. Examination of officers.
3003. Pees for examination.
3004. Impairment of capital.
Note: The appointment, qualifications, salary, and general duties of the
Bank Commissioner are provided for in Pol. Code, Sees. 189-194.
Section
3305. Liquidation of banks.
3006. Compensation of receivers.
3007. Accounting for funds.
3008. Records of Commissioner: Se-
crecy.
S009. Application of article.
3010. Duties of Attorney General.
Reserve Required of Banks.
Sec. 2998. Every bank doing business under this chapter shall
have on hand at all times, in available funds, not less than fifteen per
cent of its demand liabilities; but one-half of such sum may consist
of balances due them from good solvent banks.
Historical: Laws 1905, 175, Sec. 32.
Reports of Banks.
Sec. 2999. Every bank shall make at least two ryeports each year
to the Bank Commissioner, according to forms to be prescribed by
him, verified by the owners, president, manager or cashier, which
shall exhibit in detail and under appropriate heads, the resources and
liabilities of the bank on any past day by the Bank Commissioner
specified, and shall be transmitted to the Bank Commissioner within
ten days of the receipt of a request therefor from him ; and the bank
making such reports shall cause an abstract of the same to be pub-
lished, within thirty days from date of call, in some newspaper pub-
lished in the city or town where such bank is situated, and, if no
newspaper is published therein, then in some newspaper published in
the county ; and shall furnish to the Bank Commissioner proof of such
publication. The Bank Commissioner shall also have the power to
call for special reports from any bank whenever, in his judgment, the
same are necessary in order to obtain a full knowledge of its condi-
tion: Provided, That such special reports shall not be called for
more than three times in any one year.
Historical: Laws 1905, 17 5, Sec. 33.
Report of Commissioner.
Sec. 3000. The Bank Commissioner shall receive and place on file
in his office the reports required to be made by banks under this chap-
ter; prepare and furnish on demand, to all the banks required to re-
port, blank forms for such statements or reports as may be by law
required of them; make, on or before the first day of December of
each year, a report to the Governor of this State, containing a copy of
the published abstract of the last report furnished by each bank under
his jurisdiction ; and any other proceedings had or done by him under
this chapter, snowing generally the condition of the banking busi-
ness of this State; and such other matters in connection with such
general banking business as, in his opinion, may be of interest to the
public, with a detailed statement, verified by his oath, of all moneys,
1188
CORPORATIONS
Tit. 4
fees, etc., received by him during the same period, and shall publish
at least two hundred and fifty copies of such report in pamphlet form
for distribution.
Historical: Laws 1905. 175, Sec. 34.
Omitting the proviso which related to
the Commissioner's report for the year
1905, as now obsolete.
Cross Reference: Reports of offi-
cers: Sec. 279.
Examination of Banks.
Sec. 3001. It shall be the duty of the Bank Commissioner, when
he shall deem it necessary, and at least once in each year, without pre-
vious notice, to visit and make complete report and examination of the
affairs of each bank falling within the provisions of this chapter, and
file in his office a report of the same; and for this purpose he shall
have authority to demand and inspect all books, papers, moneys, notes,
bonds or evidences of debt of such bank.
Historical: Laws 19 05. 17 5, Sec. 35.
Examination of Officers.
Sec. 3002. The Bank Commissioner shall have authority to exam-
ine on oath the officers, agents, clerks, owner or owners of any bank,
touching the matters which he is by this chapter directed to examine
into, and any wilful false swearing in any such examination shall be
deemed to be perjury and punished as such.
Historical: Laws 1905, 17 5, Sec. 36.
Cross Reference: Punishment for
perjury: Sec. 6486.
Fees for Examination.
Sec. 3003. The Bank Commissioner shall collect from each bank,
for each complete examination of its condition, an amount regulated
according to the capital, surplus, undivided profits and assets of said
bank, divided as to capital, surplus and undivided profits, and as to the
total assets, according to the following schedule, to-wit :
For all banks having a capital, surplus and undivided profits
amounting to ten thousand dollars and less than twenty-five thousand
dollars, fifteen dollars.
Twenty-five thousand dollars and under fifty thousand dollars,
twenty dollars.
Fifty thousand dollars and under seventy-five thousand dollars,
twenty-five dollars.
Seventy-five thousand dollars and undergone hundred thousand
dollars, thirty dollars.
One hundred thousand dollars and under one hundred fifty thou-
sand dollars, thirty-five dollars.
One hundred fifty thousand dollars and under two hundred thou-
sand dollars, forty dollars.
Two hundred thousand dollars and under two hundred fifty thou-
sand dollars, forty-five dollars.
Two hundred fifty thousand dollars and under five hundred thou-
sand dollars, fifty-five dollars.
Five hundred thousand dollars and upward, sixty-five dollars.
Ch. 13. Art. 3. BANKS— SUPERVISION 1189
Together with the following additional charge according to the
total assets of each bank as shown at the time of examination :
Under fifty thousand dollars, fifteen dollars.
Fifty thousand dollars and under one hundred thousand dollars,
twenty dollars.
One hundred fifty thousand dollars and under two hundred fifty
thousand dollars, twenty-five dollars.
Two hundred fifty thousand dollars and under three hundred fifty
thousand dollars, thirty dollars.
Three hundred fifty thousand dollars and under five hundred thou-
sand dollars, thirty-five dollars.
Five hundred thousand dollars and under seven hundred fifty thou-
sand dollars, thirty-five dollars.
Seven hundred fifty thousand dollars and under one million dol-
lars, forty dollars.
One million dollars and under one million five hundred thousand
dollars, forty-five dollars.
One million five hundred thousand dollars and under two million
dollars, fifty-five dollars.
Two million dollars and under three million dollars, sixty-five dol-
lars.
And all banks with total assets over three million'dollars, seventy-
five dollars.
Provided, however, That no bank shall be required to pay for
for more than one examination during any one year.
Historical: Laws 1905, 175, Sec. 37.
Impairment of Capital.
Sec. 3004. Whenever it shall appear from a report or examination
of any bank, after having been authorized to do or continue business
under the provisions of this chapter, that the capital of such bank is
reduced by impairment or otherwise below the amount required by
Section 2970, it shall be the duty of the Commissioner to require such
bank to make good the deficiency; and to give effect to such requisi-
tion, he shall have power to examine any such bank to ascertain the
amount of such impairment or reduction of capital and whether the
deficiency has been made good in compliance with his requisition;
and if such bank shall neglect, for six months after such requisition
has been made, to make good the deficiency so appearing or found to
exist, the same shall be cause for proceedings provided for in the fol-
lowing section.
Historical: Laws 190 5, 175, Sec. 38.
Liquidation of Banks.
Sec. 3005. If the Bank Commissioner, on examination of the af-
fairs of any bank governed by this chapter, shall find that such bank
has been guilty of violating its charter or the provisions of this chap-
ter, he shall, by an order addressed to the bank so offending, direct
the discontinuance of such illegal practices ; and if such bank shall re-
fuse or neglect to comply with such order, or whenever such Commis-
sioner has reasonable cause to consider such bank insolvent, he may
immediately apply, in his official capacity, to the District Court of
1190 CORPORATIONS Tit. 4
the county in which such bank has its principal place of business, for
the appointment of a receiver for such bank, who, if he be appointed,
shall proceed to administer the assets of the bank in accordance with
law. Should it appear that the Commissioner in any such case has
proceeded maliciously or without reasonable cause, he shall be held
liable to such bank on his official bond for any damages resulting
therefrom, including all expenses and costs of such proceedings, and,
in addition, the Commissioner shall, upon conviction, be deemed guilty
of a felony, and punished by a fine not exceeding one thousand dol-
lars, or by imprisonment in the State penitentiary not exceeding two
years, or by both such fine and imprisonment, at the discretion of
the court.
Historical: Laws 190 5, 175, Sec. 3 9.
Compensation of Receivers.
Sec. 3006. Receivers provided for in this chapter shall receive such
compensation as shall be allowed by the court, but in no event to ex-
ceed the fees allowed executors and administrators in the adminis-
tration of an estate.
Historical: Laws 1905, 175, Sec. 4 0.
Cross Reference: Fees of executors
and administrators: Sec. 5586.
Accounting for Funds.
Sec. 3007. The Bank Commissioner shall, at the close of each
month, pay into the State Treasury all sums of money received by
him during such month as fees or from any other official source con-
nected with his department.
Historical: Laws 19 05, 175, Sec. 41.
Records of Commissioner: Secrecy.
Sec. 3008. The Bank Commissioner shall keep proper books of
records of all acts, matters and things done by him under the provi-
sions of this chapter as records of his office. Neither he nor his assis-
tants shall disclose to any person any fact or information obtained in
the course of business of the department, except so far as this chap-
ter makes it their duty to make public records and publish the same ;
and any violation of this provision shall subject the offender to pros-
ecution for felony in any court of competent jurisdiction, and, upon
conviction therefor, to punishment by a fine not exceeding one thou-
sand dollars, with imprisonment in the county jail until the same is
paid; and such conviction shall subject the offender to a forfeiture of
his office or employment.
Historical: Laws 1905, 17 5, Sec. 4 2.
Application of Article.
Sec. 3009. The foregoing provisions of this article, so far as ap-
plicable, shall govern and apply to State banks, private banks and for-
eign banks, receiving deposits.
Historical: Laws 1905, 175, Sec. 9.
proviso; the first portion of the sec-
tion constitutes Sec. 2972. Rewritten
to conform to the sectioning of this
chapter instead of the original act.
Ch. 14.
RELIGIOUS, ETC., CORPORATIONS
1191
Duties of Attorney General.
Sec. 3010. The Attorney General of the State shall conduct all
actions, suits or proceedings begun by the Bank Commissioner under
the authority of this chapter.
Historical: Laws 1905, 175, Sec. 48.
CHAPTER 14.
RELIGIOUS, SOCIAL AND BENEVOLENT CORPORATIONS.
Section
Section
3011.
Formation of corporations.
3020.
3012.
Additional requirements of ar-
3021.
ticles.
3022.
3013.
Power to hold property.
3023.
3014.
Same: Additional property.
3015.
Mortgage of property.
3024.
3016.
Provisions of by-laws.
3025.
3017.
Death benefit associations.
3026.
3018.
Corporation sole.
3019.
Execution of articles.
Contents of articles.
Powers of corporation sole.
Same.
Execution of deeds and other
instruments.
Articles as evidence.
Successor as corporation sole.
Title in abeyance pending ap-
pointment.
Formation of Corporations.
Sec. 3011. Any number of persons associated together for any
purpose, where pecuniary profit is not their object, may, in accordance
with the rules, regulations or discipline of such association, elect di-
rectors, the number thereof to be not less than three nor more than
eleven, and may incorporate themselves as provided in this title.
Historical: Rev. St. 1887, Sec. 2 76 0.
California Legislation: Similar: Civ.
Code 1872, Sec. 593; as amended:
Deering's Code, ib.; further amend-
ed: Kerr's Code, ib.
Additional Requirements of Articles.
Sec. 3012. In addition to the requirements of Chapter 1, the arti-
cles of incorporation of any such association must set forth the hold-
ing of the election for directors, the time and place where the same
was held, that a majority of the members of such association were
present and voted at such election, and the result thereof; which facts
must be verified by the officers conducting the election.
Historical: Rev. St. 1887, Sec. 2 761.
California Legislation: Same except
'Section 290" for "Chapter 1", line 1,
and "such" omitted after "any", line
2: Civ. Code 1872, Sec. 5 94; Deer-
ing's Code, ib.; Kerr's Code, ib.
Power to Hold Property.
Sec. 3013. All such corporations may hold all the property of the
association owned prior to incorporation or acquired thereafter in any
manner, and transact all business relative thereto ; but no such corpo-
ration must own or hold more real estate than may be necessary for
the business and objects of the association.
Historical: Rev. St. 1887, Sec. 2762.
California Legislation: Same with
additional provision: Civ. Code 1872,
Sec. 595; additional provisions as
amended: Deering's Code, ib.; fur-
ther amended: Kerr's Code, ib.
Same : Additional Property.
Sec. 3014. In addition to that provided for in the preceding sec-
1192
CORPORATIONS
Tit. 4
tion, Masons, Odd Fellows, and pioneer incorporated associations may
hold such real estate as may be necessary to carry out their charita-
ble purposes, or for the establishment and endowment of institutions
of learning connected therewith.
Historical: Rev. St. 188 7, Sec. 2763.
California Legislation: Same with
additional provisions: Civ. Code 1872,
Sec. 596; as amended: Deering's
Code, ib. ; Kerr's Code, ib.
Mortgage of Property.
Sec. 3015. Religious, social or benevolent corporations, through
their directors or trustees, may mortgage or sell real property held
by them whenever a majority of the members of the said corporation
present at the meeting called as herein provided may so direct by
their votes: Provided, That notice of the meeting at which the in-
tended vote on the proposition will be taken be published in three
newspapers of general circulation, at least once in each of the three
weeks immediately preceding the meeting: Provided, further, The
newspapers shall be published in the county in which the said real
property is located, or in the judicial district in which the property
is located if there be not three newspapers in the county.
Historical: Rev. St. 1887, Sec. 2764;
amended Laws 1899, 436, Sec. 1;
amended Laws 1903, 342, Sec. 1.
Provisions of By-Laws.
Cited: Portneuf Lodge v. Western
etc. Saving Co. (1899) 6 Ida. 673; 59
Pac. 362.
Sec. 3016. Corporations organized for purposes other than for
profit may in their by-laws, ordinances, constitutions, or articles of
incorporation, in addition to the provisions in Chapter 1, provide for:
First. The qualifications of members, mode of election, and terms
of admission to membership ;
Second. The fees of admission and dues to be paid to their treas-
ury by members;
Third. The expulsion and suspension of members for miscon-
duct or non-payment of dues ; also, for restoration to membership ;
Fourth. Contracting, securing, paying, and limiting the amount
of their indebtedness;
Fifth. Other regulations not repugnant to the laws of the State
and consonant with the objects of the corporation.
laws" for ''to the laws", subd. 5: Civ.
Code 1872, Sec. 599; similar as
amended: Deering's Code, ib. ; further
amended: Kerr's Code, ib.
Historical: Rev. St. 1887 Sec. 2765.
California Legislation: Same except
"Title 1 of this part" for "Chapter 1",
line 3, and "to the Constitution or
Death Benefit Associations.
Sec. 3017. Associations may be formed for the purpose of paying
to the nominee of any member, a sum upon the death of said member
not exceeding three dollars for each member of such association. No
such association must exceed in number one thousand persons. It may
upon the death of each member, levy an assessment upon each mem-
ber living at the time of the death, not exceeding three dollars for
each member, and collect the same, and pay the same to the nominee
of such deceased; and may also provide for the payment of such an-
nual payments by members as may be deemed best. Such annual
Ch. 14. RELIGIOUS, ETC., CORPORATIONS 1193
assessment upon any one member must not be raised above the an-
nual assessment established at the time such member joined such
association. Such association, by its name, may sue and be sued, and
may loan such funds as it may have on hand, and may own sufficient
real estate for its business purposes, and such other real estate as it
may be necessary to purchase on foreclosure of its mortgages : Pro-
vided, Such real estate so obtained through foreclosure shall be sold
and conveyed within five years from the day title is obtained, unless
the District Court of the proper District shall, upon petition and good
cause shown, extend the time.
Historical: Rev. St. 188 7, Sec. 2 766.
Corporation Sole.
Sec. 3018. Incorporations may be formed for acquiring, holding
and disposing of church or religious society property, for the benefit
of religion, for works of charity and for public worship, in the man-
ner hereinafter provided in this chapter.
Historical: Laws 1899, 236, Sec. 1;
re-enacting Laws 1895, 24, Sec. 1. *»
Execution of Articles.
Sec. 3019. Any person being the archbishop, bishop, president,
trustee in trust, president of stake, overseer, presiding elder, rabbi
or clergyman, of any church or religious society, who shall have been
duly chosen, elected or appointed, in conformity with the constitu-
tion, canons, rights, regulation or discipline of said church or relig-
ious society, and in whom shall be vested the legal title to the prop-
erty of such church or religious society, may make and subscribe
written articles of incorporation in duplicate, and acknowledge the
same before some officer authorized to take acknowledgments, and file
one of such articles in the office of the Secretary of State and retain
possession of the other.
Historical: Laws 1895, 2 4, Sec. 2;
re-enacted Laws 1899, 236, Sec. 2;
amended Laws 1903, 302, Sec. 1.
Contents of Articles.
Sec. 3020. The articles of incorporation shall specify:
First. The name assumed by the corporation and by which it shall
be known;
Second. The object of said corporation ;
Third. The estimated value of the property at the time of mak-
ing the articles of incorporation;
Fourth. The title of person making such articles.
Historical: Laws 189 9, 236, Sec. 3;
re enacting- Laws 1895, 24, Sec. 3.
Powers of Corporation Sole.
Sec. 3021. Upon making and filing for record articles of incorpor-
ation as herein provided, the person subscribing the same and his
successor in office, by the name or title specified in the articles, shall
thereafter be deemed and is hereby created, a body politic and a
1194 CORPORATIONS Tit. 4
corporation sole, with continual perpetual succession, and shall have
power to acquire and possess, by donation, gift, bequest, devise or
purchase, and to hold and maintain, property, real, personal, and
mixed, and to grant, sell, convey, rent, or otherwise dispose of the
same as may be necessary to carry on or promote the objects of the
corporation; and shall have authority to borrow money and to give
written obligations therefor, and to secure the payment thereof by
mortgage or other lien, upon real or personal property, when nec-
essary to promote said objects.
Historical: Laws 18 95, 2 4, Sec. 4;
re-enacted Laws 1899, 236, Sec. 4;
amended Laws 1903, 302, Sec. 2.
Same.
Sec. 3022. Such corporations shall have the power to contract and
to be contracted with, to sue and be sued, plead and be pleaded in all
courts of justice, and to have and use a common seal by which all
deeds and acts of such corporation shall pass and be authenticated.
Historical: Laws 1899, 236, Sec. 5;
re-enacting- Laws 1895, 24, Sec. 5.
Execution of Deeds and Other Instruments.
Sec. 3023. All deeds and other instruments of writing shall be
made in the name of the corporation, and signed by the person rep-
resenting the corporation in the official capacity designated in the
articles of incorporation, and be sealed with the seal of the corpora-
tion, an impression of which seal shall be filed in the office of the
Secretary of State.
Historical: Laws 1895, 2 4, Sec. 6;
re-enacted Laws 1899, 236, Sec. 6;
amended Laws 1903, 302, Sec. 3.
Articles as Evidence.
Sec. 3024. The articles of incorporation, or a certified copy of the
ones filed and recorded in the office of the Secretary of State, shall
be evidence of the existence of such corporation.
Historical: Laws 1899, 236, Sec. 7;
re-enacting Laws 1895, 24, Sec. 7.
Successor as Corporation Sole.
Sec. 3025. In the event of the death or resignation of any such
archbishop, bishop, president, trustee in trust, president of stake,
overseer, presiding elder, rabbi or clergyman, or of his removal there-
from, by the person or body having the authority to remove him
when such person is at the time a corporation sole, his successor in
office as such corporation sole, shall be vested with the title to any
and all property held by his predecessor, as such corporation sole, with
like power and authority over the same, and subject to all the legal
liabilities and obligations thereto. Such successor shall file in the
office of the county recorder of each county wherein any of said real
property is situated a certified copy of his commission, certificate, or
letter of election or appointment.
Historical: Laws 1903, 302, Sec. 4;
adding Sec. 8 to Laws 1899, 236.
Ch. 15.
INSTITUTIONS OF LEARNING
1195
Title in Abeyance Pending Appointment.
Sec. 3026. In case of death, resignation or removal of any such
archbishop, bishop, president, trustee in trust, president of stake,
overseer, presiding elder, rabbi or clergyman, who, at the time of
his death, resignation or removal, was holding the title to trust prop-
erty, for the use or benefit of any church or religious society, and not
incorporated as a corporation sole, the title to any and all such prop-
erty held by him, of every nature and kind, shall not revert to the
donor nor vest in the heirs of such deceased person, but shall be
deemed to be in abeyance after such death, resignation or removal,
until his successor is duly appointed to fill such vacancy, and, upon
the appointment of such successor, the title to all the property held by
his predecessors shall, at once, without any act or deed, vest in the
person appointed to fill such vacancy.
Historical: Laws 1903, 302, Sec. 5;
adding Sec. 9 to Laws 1899, 236.
CHAPTER 15.
INSTITUTIONS OF LEARNING.
Section
3027. Who may form corporations.
3028. Articles of incorporation.
302 9. Number of directors.
3030. Certificate of Secretary of
State.
3031. Amendment of articles.
3032. Powers of corporations.
Section
3033. Election of directors or trus-
tees.
3034. Powers of directors.
3035. Religious tests prohibited.
30 36. Corporations for private gain
prohibited.
Who May Form Corporations.
Sec. 3027. Any number of persons not less than five, may form a
corporation to found, establish and maintain a college, academy, sem-
inary or other institution of learning, by executing and filing articles
of incorporation in the manner provided by law for private corpora-
tions.
Historical: Laws 1899, 169, Sec. 1;
re-enacting Laws 1893, 14, Sec. 1.
Articles of Incorporation.
Sec. 3028. The articles of incorporation shall set forth :
First. The name of the corporation ;
Second. The purposes for which it is formed;
Third. The place where the institution is to be located;
Fourth. The number of its directors or trustees, and the names
and addresses of those who are first appointed.
Historical: Laws 1899, 169, Sec. 2;
re-enacting Laws 1893, 14, Sec. 2.
Number of Directors.
Sec. 3029. The number of directors or trustees shall not be less than
five, nor more than eighteen, a majority of whom shall be residents
of the State of Idaho.
Historical: Laws 1899, 169, Sec. 3;
re-enacting Laws 1893, 14, Sec. 3.
1196 CORPORATIONS Tit. 4
Certificate of the Secretary of State.
Sec. 3030. When the articles of incorporation are filed as provided
in Section 3027, the Secretary of State shall issue a certificate over the
Great Seal of the State, stating that a copy of the articles of incor-
poration has been filed in his office containing the necessary state-
ment of facts.
Historical: Laws 1899, 16 9, Sec. 4;
re-enacting Laws 1893, 14, Sec. 4.
Amendment of Articles.
Sec. 3031. The articles of incorporation may be altered or amended
in any particular except as to the purposes for which the corporation
is formed, and such alteration or amendment shall have effect
from and after the time of filing a certificate of the same, executed
by at least two-thirds of the directors or trustees, in the same man-
ner as the original articles are filed. When such alteration or amend-
ment changes the name, the Secretary of State shall issue a certificate
stating the fact.
Historical: Laws 1899, 169, Sec. 5;
re-enacting- Laws 1893, 14, Sec. 5.
Powers of Corporations.
Sec. 3032. Such corporation shall have power of perpetual succes-
sion, and in addition to the powers granted by law to other private
corporations, shall have power to take by purchase, gift, grant, devise
or bequest, and to hold for the use of such corporation, any real or
personal property whatsoever, and to sell, convey, mortgage or other-
wise use the same as may be considered most conducive to the inter-
ests of such institution; but no such corporation must own or hold
more real estate than may be necessary for the business and objects
of the corporation, and such corporation shall have no power to divert
any gift, grant, bequest or devise from the specific purpose designated
by the donor.
Historical: Laws 1899, 169, Sec. 6;
re-enacting Laws 1893, 14, Sec. 6.
Election of Directors or Trustees.
Sec. 3033. Such corporation shall by its by-laws provide for the
election of directors or trustees, in such manner, at such times and
places, for such periods, and from such persons, as may be considered
most conducive to its interests : Provided, A majority of such direc-
tors or trustees shall be bona fide residents of the State of Idaho.
Historical: Laws 1899. 16 9, Sec. 7;
re-enacting Laws 1893, 14, Sec. 7.
Powers of Directors.
Sec. 3034. The directors shall have the control of the affairs and
property of the corporation, and may appoint and fix salaries of
president, principal and professors, tutors and other teachers, and
such other officers and agents as they may deem necessary, and re-
move them at pleasure ; and may prescribe the course of study and the
discipline to be observed in the institution, or any department thereof,
and may grant such literary honors and degrees as are usually
Ch. 16.
AGRICULTURAL FAIR CORPORATIONS
1197
granted by like institutions, and give suitable diplomas in testimony
thereof.
Historical: Laws 18 9 9, 16 9, Sec. 8;
re-enacting- Laws 1893, 14, Sec. 8.
i
Religious Tests Prohibited.
Sec. 3035. No religious test whatever shall be required of any ap-
plicant for admission into any institution of learning existing under
the provisions of this chapter.
Historical: Laws 1899, 16 9, Sec. 9;
re-enacting- Laws 1893, 14, Sec. 9.
Corporations for Private Gain Prohibited.
Sec. 3036. No corporation whose purpose is private gain shall ever
be incorporated or continued in existence by virtue of the provisions
of this chapter.
Historical: Laws 1899, 169, Sec. 10;
re-enacting Laws 1893, 14, Sec. 10.
CHAPTER 16.
AGRICULTURAL FAIR CORPORATIONS.
Section
3037. Power to hold real estate.
3038. Limitation on indebtedness.
3039. Not to be conducted for profit.
Section
3040. County
commissioners
contribute to fairs.
may
Power to Hold Real Estate.
Sec. 3037. Agricultural fair corporations may purchase, hold, or
lease any quantity of land, not exceeding in the aggregate one hun-
dred and sixty acres, with such buildings and improvements as may
be erected thereon, and may sell, lease, or otherwise dispose of the
same at pleasure. This real estate must be held for the purpose of
erecting buildings and other improvements thereon, to promote and
encourage agriculture, horticulture, mechanics, manufactories, stock
raising, and general domestic industry.
Historical: Rev St. 188 7, Sec. 2775.
California Legislation: Same except
"manufactures" for "manufactories",
line 7; Civ. Code 1872, Sec. 620; Deer-
ing's Code, ib.; Kerr's Code, ib.
Limitation on Indebtedness.
Sec. 3038. Such corporation must not contract any debts or liabil-
ities in excess of the amount of money in the treasury at the time
of contract, except for the purchase of real property, for which they
may create a debt not exceeding five thousand dollars, secured by
mortgage on the property of the corporation. The directors who vote
therefor are personally liable for any debt contracted or incurred in
violation of this section.
Historical: Rev. St. 18 8 7, Sec. 2 776.
California Legislation: Same: Civ.
Code 1872, Sec. 621; Deering's Code,
ib.; Kerr's Code, ib.
Not to Be Conducted for Profit.
Sec. 3039. Agricultural fair corporations are not conducted for
profit, and have no capital stock or income other than that derived
1198
CORPORATIONS
Tit. 4
from charges to exhibitors and fees for membership, which charges,
together with the term of membership and the mode of acquiring the
same, must be provided for in their by-laws. Such fees must never
be greater than to raise sufficient revenue to discharge the debt for
the real estate and the improvements thereon, and to defray the cur-
rent expenses of fairs.
Historical: Rev. St. 188 7, Sec. 2 77 7.
California Legislation: Same: Civ.
Code 1872, Sec. 622; Deering's Code,
ib.; Kerr's Code, ib.
County Commissioners May Contribute to Fairs.
Sec. 3040. The board of county commissioners of any county in
this State, in which there is a regularly organized agricultural fair
association, or any other corporation or company having for its ob-
ject the exhibition of live stock and agricultural products of their
county or the State, may, in their discretion, appropriate annually
out of the county treasury, any sum not exceeding in amount one-half
of one mill on every dollar of taxable property in said county, as
shown by the assessment roll of the preceding year of said county, to
be paid to the trustees or managers of such association, to assist in
defraying the expenses of such fair: Provided, None of the moneys
so appropriated shall be used in defraying expenses of races of any
character, nor for the payment of purses for said races. But no ap-
propriation can be made in any year in which a fair is not held, nor
can any appropriation be made to more than one such corporation
in any one year. Appropriations made under this section shall be paid
out of the current expense fund.
Historical: Rev. St. 1887, Sec. 2 778;
amended Laws 1905, 35 0, Sec. 1.
CHAPTER 17.
GAS CORPORATIONS.
Section
3041. Consent of municipality must
be obtained.
30 42. Duty to furnish gas on appli-
cation.
Section
3043. Same: Applicant must defray
expenses.
3044. Right to inspect meters.
3045. Discontinuance of supply.
Consent of Municipality Must Be Obtained.
Sec. 3041. No corporation hereafter formed must supply any city
or town with gas, or lay down mains or pipes for that purpose in the
streets or alleys thereof, without permission from the city or town
authorities.
Historical: Rev. St. 1887, Sec. 2787.
California Legislation: Similar: Civ.
Code 1872. Sec. 628; Deering's Code,
ib.; repealed 1905.
Duty to Furnish Gas on Application.
Sec. 3042. Upon the application in writing of the owner or occu-
pant of any building or premises distant not more than one hundred
feet from any main of the corporation, and payment by the applicant
of all money due from him, the corporation must supply gas as re-
quired for such building or premises, and can not refuse on the ground
of any indebtedness of any former owner or occupant thereof, unless
the applicant has undertaken to pay the same. If, for the space of
Ch. 18.
LAND AND BUILDING CORPORATIONS
1199
ten days after such application, the corporation refuses or neglects
to supply the gas required, it must pay to the applicant the sum of
fifty dollars as liquidated damages, and five dollars a day as liquid-
ated damages, for every day such refusal or neglect continues there-
after.
Historical: Rev. St. 188 7, Sec. 2788.
California Legislation: Same: Civ.
Code 1872, Sec. 629; Deering's Code,
ib.; similar but applies also to elec-
tricity: Kerr's Code, ib.
Same : Applicant Must Defray Expenses.
Sec. 3043. No corporation is required to lay a service pipe where
serious obstacles exist to laying it, unless the applicant, if required,
deposits in advance with the corporation, a sum of money sufficient
to pay the cost of laying such service pipe, or his proportion thereof.
Historical: Rev. St. 1887, Sec. 2 789.
California Legislation : Same: Civ.
Code 1872, Sec. 630; Deering's Code,
ib.; Kerr's Code, ib.
Right to Inspect Meters. —
Sec. 3044. Any agent of a gas corporation, exhibiting written
authority signed by the president or secretary thereof for such pur-
pose, may enter any building or premises lighted with gas supplied by
such corporation, to inspect the gas meters therein, to ascertain the
quantity of gas supplied or consumed. Every owner or occupant of
such buildings who hinders or prevents such entry or inspection must
pay to the corporation the sum of fifty dollars as liquidated damages.
Historical: Rev. St. 188 7, Sec. 2 790.
California Legislation: Same: Civ.
Code 1872, Sec. 631; Deering's Code,
ib.; similar applying also to electric-
ity: Kerr's Code, ib.
Discontinuance of Supply.
Sec. 3045. All gas corporations may shut off the supply of gas
from any person who neglects or refuses to pay for the gas supplied,
or the rent for any meter, pipes, or fittings provided by the corpora-
tion as required by his contract; and for the purpose of shutting off
the gas in such case, any employee of the corporation may enter the
building or premises of such person, between the hours of eight
o'clock in the forenoon and six o'clock in the afternoon of any day,
and remove therefrom any property of the corporation used in sup-
plying gas.
Historical: Rev. St. 1887, Sec. 2791.
California Legislation: Same: Civ.
Code 1872, Sec. 632; Deering's Code,
ib. ; similar but also applies to elec-
tricity: Kerr's Code, ib.
CHAPTER 18.
LAND AND BUILDING CORPORATIONS.
Section
30 46. Organization.
3047. Power to borrow money.
3048. Purchase of real estate:
Buildings and loans.
3049. Insurance of members.
3050. Power to hold real estate.
3051. Contents of by-laws.
Section
3052. Annual statement.
J!05 3. Liability of shareholders.
3054. Consolidation and transfer of
assets.
3055. Married women and minors as
members.
Vol. 1 — 39
1200
CORPORATIONS
Tit. 4
Organization.
Sec. 3046. Corporations organized for the erection of buildings
and making other improvements on real property, may raise funds
in shares not exceeding two hundred dollars each, payable in period-
ical installments. Such bodies are known as land and building cor-
porations, and may be organized with or without a capital stock.
Historical: Rev. St. 1887, Sec. 2 796.
California Legislation: Similar: Civ.
Code 1872, Sec. 639; same as amend-
ed: Deering's Code, ib. ; repealed 18 91.
Usury Not Authorized: There is no
provision in this chapter which au-
thorizes a building- and loan associa-
tion to extort usurious rates of in-
terest from its debtors. Fidelity Sav-
ings Assn. v. Shea (1899) 6 Ida. 405;
5 5 Pac. 1022.
Power to Borrow Money.
Sec. 3047. Any such corporation may borrow money for the pur-
pose of carrying out its objects, and may give as security therefor its
shares or mortgages upon its real estate.
Historical: Rev. St. 188 7, Sec. 2 79 7.
California Legislation: Same except
'mortgage" for "mortgages," line 3:
Civ. Code 1872, Sec. 640; Deering's
Code, ib. ; see Kerr's Code, Sec. 641.
Purchase of Real Estate: Buildings and Loans.
Sec. 3048. Any such corporation may purchase real estate and
erect buildings for its members, and make loans to its members for
the purpose of aiding them in acquiring and improving real estate.
Such loans must in all cases be secured on such real estate.
Historical: Rev. St. 18 87, Sec. 2 798.
California Legislation: Same: Civ.
Code 1872, Sec. 641; Deering's Code,
ib.; See Kerr's Code, Sec. 640.
Insurance of Members.
Sec. 3049. Such corporation may insure, in some life insurance
company, the lives of its members and debtors. In case of the death
of a debtor or member so insured, the amount recovered on the pol-
icy, must be applied to extinguish the indebtedness, including the
premium paid, and the residue, if any, must be paid to the legal rep-
resentative of the decedent.
Historical: Rev. St. 1887, Sec. 2 799.
California Legislation: Same except
"incorporated under the laws of this
State" inserted after "company", line
2: Civ. Code 1872, Sec. 6 42; Deer-
ing's Code, ib.; repealed 1891.
Power to Hold Real Estate.
Sec. 3050. Any such corporation may purchase, hold, and convey
real estate, as follows:
First. The lot and building in which the business of the corpora-
tion is carried on, the cost of which must not exceed twenty thousand
dollars ;
Second. Such as may, from time to time, be necessary to supply
the wants of members, the cost of which held unallotted to the mem-
bers thereof at any one time, must not exceed the sum of fifty thous-
and dollars;
Third. Such as has been mortgaged, pledged, or conveyed to it
in trust, to secure money loaned or to secure the purchase price
thereof in pursuance of the regular business of the corporation.
Ch. 18.
LAND AND BUILDING CORPORATIONS
1201
Historical: Rev. St. 1887, Sec. 2800.
California Legislation: Same except
"one hundred" for "fifty" thousand
dollars, subd. 2: Civ. Code 1872, Sec.
643; Deering's Code, ib.; repealed
1891.
Contents of By-Laws.
Sec. 3051. The by-laws of such corporation must specify the
amount of the periodical subscriptions or payments to be made by
each member, the time and manner in which such payments are to be
made; the fines and forfeitures for default; the time and manner of
election of directors and other officers, and their terms of office ; the
manner in which real estate may be distributed, allotted or sold to
its members ; the terms and conditions upon which loans may be made
to its members, and by them repaid to the corporation; the manner
in which a person may become, and cease to be, a member; the con-
ditions on which members may withdraw from the corporation, and
the provisions for the payment to withdrawing members of the sums
of money due them, arising from subscriptions or payments, and the
proportion of the profits such withdrawing members may receive on
withdrawal. ""
Code 1872, Sec. 644; Deering's Code,
ib.; repealed 1891.
Historical: Rev. St. 1887, Sec. 2801.
California Legislation: Same: Civ.
Annual Statement.
Sec. 3052. The secretary of any such corporation must, once in each
year during the existence of the corporation, prepare a full and ex-
plicit statement of the financial affairs thereof, comprising a balance
sheet, statements of receipts and expenditures, profit and loss, and
assets and liabilities, which must be audited and verified by two com-
petent persons (not directors) elected by the general body of share-
holders, and be countersigned by the president and secretary. A
copy of such statement must be printed and circulated among the
members, and must appear immediately after the annual meeting of
the corporation, daily at least one week, or weekly at least four
weeks, in one or more newspapers published at the place of business
of the corporation.
Historical: Rev. St. 1887, Sec. 2802.
California Legislation: Same except
'the principal" inserted before "busi-
ness", next to last line: Civ. Code
1872, Sec. 645; Deering's Code, ib.;
see Kerr's Code, Sec. 6 44.
Liability of Shareholders.
Sec. 3053. Every present and past member of such corporation
is personally liable for such proportion of all its debts and liabilities,
incurred during his membership, as the number of shares subscribed
by him bears to the whole number of subscribed shares ; but no past
member is liable for such contribution if more than one year elapsed
since he ceased to be a member before suit is commenced, nor for any
debt or liability contracted after the time at which he ceased to be
a member, nor unless it appears to the court that the corporation is
unable to satisfy such debts and liabilities; nor must any contribu-
tion be required from any member or past member exceeding the
amount unpaid on the shares in respect to which it is liable.
Historical: Rev. St. 1887, Sec. 2803.
California Legislation: Similar: Civ.
Code 1872, Sec. 646; repealed 1874.
1202
CORPORATIONS
Tit. 4
Consolidation and Transfer of Assets.
Sec. 3054. Any two or more such corporations may unite and be-
come incorporated in one body, with or without any dissolution or
division of the funds of such corporation, or either of them; or any
such corporation may transfer its engagements, funds and property
to any other such corporation upon such terms as may be agreed
upon by two-thirds of the members of each of such bodies present
at general meetings of the members, convened for the purpose by
notice stating the object of the meeting, sent through the postoffice
to every member, and by general notice appearing daily at least one
week, or weekly at least two weeks, in some newspaper published at
the place of the principal business of the corporation; but no such
transfer can prejudice any right of any creditor of either corporation.
Historical: Rev. St. 1887, Sec. 2804.
California Legislation: Same: Civ.
Code 1872, Sec. 647; Deering's Code,
ib.; repealed 1891.
Married Women and Minors as Members.
Sec. 3055. Married women and minors may be admitted as mem-
bers, and may take and hold shares in such corporations, and may exe-
cute all necessary instruments, and give all necessary acquittances,
and sell and transfer their shares in like manner as other members.
Historical: Rev. St. 1887, Sec. 2805.
California Legislation : Same: Civ.
Code 1872, Sec. 648; repealed 1874.
See Kerr's Code, Sec. 543.
TITLE 5
PROPERTY AND OWNERSHIP
Chapter
1. General provisions.
2. Estates in real property.
Chapter
3. Rights and obligations of owners.
4. Personal property.
CHAPTER 1.
GKENEKAL PROVISIONS.
Section
3056. Real property defined.
3057. Personal property defined.
3058. Who may own property.
305 9. Interests in common.
3060. Community property defined.
3061. Future interests: When vested.
3062. Contingent interests.
306 3. Alternative future interests.
3064. Inheritance by posthumous
children.
Section
3065. Transfer and devolution of fu-
ture interests.
3066. Possibilities.
3067. Suspension of power of alien-
ation.
3068. Future interests defeated.
3069. Same: Not defeated.
3070. Same: Premature determina-
tion of precedent estate.
Real Property Defined.
Sec. 3056. Real property or real estate consists of:
1. Lands, possessory rights to land, ditch and water rights, and
mining claims, both lode and placer;
2. That which is affixed to land ;
3. That which is appurtenant to land.
Historical: Rev. St. 1887, Sec. 2825.
California Legislation: Similar: Civ.
Code 1872, Sec. 658; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Real property de-
fined: Sec. 16.
Cited: Welch v. Garrett (1897) 5
Ida. 639; 51 Pac. 405; Hall v. Black-
man (1902) 8 Ida. 272; 68 Pac. 19;
Johnson v. Hurst (1904) 10 Ida. 308;
77 Pac. 784; Boise Irr. etc. Co. v.
Stewart (1904) 10 Ida. 38; 77 Pac. 25,
321.
What Constitutes Real Estate:
Ditches and water rights are real es-
tate under the provisions of this sec-
tion. Ada County Farmers' Irr. Co.
v. Farmers' Canal Co. (1898) 5 Ida.
793; 51 Pac. 990.
A hotel building- affixed to land, and
held and conveyed as real estate, with
the land upon which it stands, is real
estate within the meaning of this sec-
tion, and its character as such cannot
be changed by the attempted execu-
tion of a chattel mortgage purporting
to cover the building apart from the
land. Beeler v. C. C. Merc. Co. (1902)
8 Ida. 644; 70 Pac. 943.
Personal Property Defined.
Sec. 3057. Every kind of property that is not real is personal.
Historical: Rev. St. 1887, Sec. 2826.
California Legislation: Same: Civ.
Code 1872, Sec. 663; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Personal property
defined: Sec. 16.
1204
PROPERTY AND OWNERSHIP
Tit. 5
Who May Own Property.
Sec. 3058. Any person, whether citizen or alien, may take, hold,
and dispose of property, real or personal.
Historical: Rev. St. 1887, Sec. 2827.
California Legislation : Same except
"and" inserted before "hold" and "and
dispose of" omitted: Civ. Code 1872,
Sec. 671; same but "within this State"
added: Deering's Code, ib.; Kerr's
Code, ib.
Cross Reference: Limitations on
alien ownership: Sec. 3609.
Interests in Common.
Sec. 3059. Every interest created in favor of several persons in
their own right, is an interest in common, unless acquired by them
in partnership, for partnership purposes, or unless declared in its
creation to be a joint interest, or unless acquired as community prop-
erty.
Historical: Rev. St. 1887, Sec. 2828.
California Legislation: Same except
'as provided in Section 683" inserted
after "interest",
1872, Sec. 686;
Kerr's Code, ib.
line 4: Civ. Code
Deering's Code, ib.;
Community Property Denned.
Sec. 3060. Community property is property acquired by husband
and wife, or either, during marriage, when not acquired as the sep-
arate property of either.
Historical: Rev. St. 1887, Sec. 2829.
California Legislation: Same: Civ.
Code 1872, Sec. 687; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Community prop-
erty defined: Sec. 2680.
Future Interests: When Vested.
Sec. 3061. A future interest is vested when there is a person in
being who would have a right, defeasible or indefeasible, to the im-
mediate possession of the property upon the ceasing of the immediate
or precedent interest.
Historical: Rev. St. 1887, Sec. 2 830.
California Legislation: Same except
"intermediate" for "immediate"; Civ.
Code 1872, Sec. 694; Deering's Code,
ib.; Kerr's Code, ib.
Vesting of Future Estate: Where a
will devises property to the testator's
widow for life, with remainder to the
testator's son, the title to the property
vests immediately in the son upon the
death of the testator. Coats v. Har-
ris (1904) 9 Ida. 458; 75 Pac. 243.
Contingent Interests.
Sec. 3062. A future interest is contingent whilst the person in
whom, or the event upon which, it is limited to take effect remains
uncertain.
Historical: Rev. St. 1887, Sec. 2 831.
California Legislation: Same: Civ.
Code 1872, Sec. 695; Deering's Code,
ib.; Kerr's Code, ib.
Alternative Future Interests.
Sec. 3063. Two or more future interests may be created to take
effect in the alternative ; so that if the first in order fails to vest, the
next in succession shall be substituted for it, and take effect accord-
ingly.
Historical: Rev. St. 1887, Sec. 2832. Code 1872, Sec. 696; Deering's Code,
California Legislation: Same: Civ. ib- Kerr's Code, ib.
Ch. 1.
GENERAL PROVISIONS
1205
Inheritance by Posthumous Children.
Sec. 3064. When a future interest is limited to successors, heirs,
issue or children, posthumous children are entitled to take in the
same manner as if living at the death of their parent.
Code 1872, Sec. 698; Deering's Code,
ib.; Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 2833.
California Legislation: Same: Civ.
Transfer and Devolution of Future Interests.
Sec. 3065. Future interests pass by succession, will and transfer
in the same manner as present interests.
Historical: Rev. St. 1887, Sec. 2834.
California Legislation: Same: Civ.
Code 1872, Sec. 699; Deering s Code,
ib.; Kerr's Code, ib.
Possibilities.
Sec. 3066. A mere possibility, such as the expectancy of an heir
apparent, is not to be deemed an interest of any kind.
Historical: Rev. St. 1887, Sec. 2835.
California Legislation: Same: Civ.
Code 1872, Sec. 700; Deering's Code,
ib.; Kerr's Code, ib.
Suspension of Power of Alienation.
Sec. 3067. The absolute power of alienation cannot be suspended
by any limitation or condition whatever, for a longer period than
during the continuance of the lives of the persons in being at the
creation of the limitation or condition, except in the single case of
contingent remainder in fee authorized in Section 3072.
Historical: Rev. St. 1887, Sec. 2836.
California Legislation: Same except
"mentioned in Section 772" for the
words beginning with "contingent
remainder": Civ. Code 1872, Sec. 715;
Deering's Code, ib.; Kerr's Code, ib.
Future Interests Defeated.
Sec. 3068. A future interest, depending on the contingency
of the death of any person without successors, heirs, issue or children,
is defeated by the birth of a posthumous child of such person capable
of taking by succession.
Historical: Rev. St. 1887, Sec. 2837.
California Legislation: Same: Civ.
Code 1872, Sec. 739; Deering's Code,
ib.; Kerr's Code, ib.
Same: Not Defeated.
Sec. 3069. No future interest can be defeated or barred by any
alienation or other act of the owner of the intermediate or precedent
interest, nor by any destruction of such precedent interest by for-
feiture, surrender, merger, or otherwise.
Historical: Rev. St. 1887, Sec. 28 38.
California Legislation: Same with
additional clause: Civ. Code 1872, Sec.
741; Deering's Code, ib.; Kerr's Code,
ib.
Same: Premature Determination of Precedent Estate.
Sec. 3070. No future interest, valid in its creation, is defeated by
the determination of the precedent interest before the happening
of the contingency on which the future interest is limited to take
effect; but should such contingency afterwards happen, the future
interest takes effect in the same manner and to the same extent as
if the precedent interest had continued to the same period.
1206
PROPERTY AND OWNERSHIP
Tit. 5
Historical: Rev. St. 1887, Sec. 2839.
California Legislation: Same: Civ.
Code 1872, Sec. 742; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 2.
ESTATES IN REAL PROPERTY.
i
Power of appointment.
Termination of tenancy at will.
Same: Rights of landlord.
Right of re-entry.
Summary proceedings: Where
provided for.
Action for real property: No-
tice unnecessary.
Limitation of Future Estates.
Sec. 3071. A future estate may be limited by the act of the party
to commence in possession at a future day, either without the inter-
vention of a precedent estate, or on the termination, by lapse of time
or otherwise, of a precedent estate created at the same time.
Section
Section
3071.
Limitation of future estates.
3077.
3072.
Successive remainders in fee.
3078.
3073.
Limitation of successive life es-
3079.
tates.
3080.
3074.
Remainders upon successive
life estates.
3081.
3075.
Contingent remainders.
3082.
3076.
Rule in Shelly*s case abolished.
Historical: Rev. St. 1887, Sec. 2850.
California Legislation: Same: Civ.
Code 1872, Sec. 767; Deering's Code,
ib.; Kerr's Code, ib.
Successive Remainders in Fee.
Sec. 3072. A contingent remainder in fee may be created on a
prior remainder in fee, to take effect in the event that the persons to
whom the first remainder is limited die under the age of twenty-one
years, or upon any other contingency by which the estate of such
persons may be determined before they attain majority.
Historical: Rev. St. 1887, Sec. 2851.
California Legislation: Same: Civ.
Code 1872, Sec. 772; Deering's Code,
ib.; Kerr's Code, ib.
Limitation of Successive Life Estates.
Sec. 3073. Successive estates for life cannot be limited, except to
persons in being at the creation thereof, and all life estates subse-
quent to those of persons in being are void; and upon the death of
those persons the remainder, if valid in its creation, takes effect in
the same manner as if no other life estate had been created.
Historical: Rev. St. 1887, Sec. 2852.
California Legislation: Similar: Civ.
Code 1872, Sec. 774; same as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Remainders Upon Successive Life Estates.
Sec. 3074. No remainder can be created upon successive estates for
life, provided for in the preceding section, unless such remainder is
in fee; nor can a remainder created upon such estate in a term for
years, unless it is for the whole residue of such term.
Historical: Rev. St. 1887, Sec. 2853.
California Legislation: Same except
'provided for in the preceding sec-
tion" omitted: Civ. Code 1872, Sec.
775; same as amended: Deering's
Code, ib.; Kerr's Code, ib.
Contingent Remainder.
Sec. 3075. A remainder may be limited on a contingency which,
in case it should happen, will operate to abridge or determine the
Ch. 2.
ESTATES
1207
precedent estate ; and every such remainder is to be deemed a condi-
tional limitation.
Historical: Rev. St. 1887, Sec. 2854.
California Legislation: Same: Civ.
Code 1872, Sec. 778; Deering's Code,
ib.; Kerr's Code, ib.
Rule in Shelley's Case Abolished.
Sec. 3076. When a remainder is limited to the heirs, or heirs of
the body, of a person to whom a life estate in the same property is
given, the persons who, on the termination of the life estate, are the
successors or heirs of the body of the owner for life, are entitled to
take by virtue of the remainder, so limited to them, and not as mere
successors of the owner for life.
Historical: Rev. St. 1887, Sec. 2855.
California Legislation: Same: Civ.
Code 1872, Sec. 779; Deering's Code,
ib.; Kerr's Code, ib.
Power of Appointment.
Sec. 3077. A general or special power of appoinment does not
prevent the vesting of a future estate limited to take efiect in case
such power is not executed.
Historical: Rev. St. 1887, Sec. 2856.
California Legislation: Same: Civ.
Code 1872, Sec. 781; Deering's Code,
ib.; Kerr's Code, ib.
Termination of Tenancy at Will.
Sec. 3078. A tenancy or other estate at will, however created, may
be terminated by the landlord giving notice in writing to the tenant,
in the manner prescribed by the Code of Civil Procedure, to remove
from the premises within a period of not less than one month, to be
specified in the notice.
Historical: Rev. St. 188 7, Sec. 2 85 7.
California Legislation: Same except
"Section 1162 of" inserted after "by",
line 3: Civ. Code 1872, Sec. 789; Deer-
ing's Code, ib.; Kerr's Code, ib.
Cross Reference: Service of notice
on tenant: Sec. 5094.
Same: Rights of Landlord.
Sec. 3079. After such notice has been served, and the period spec-
ified by such notice has expired, but not before, the landlord may
re-enter, or proceed according to law to recover possession.
Historical: Rev. St. 1887, Sec. 2 858.
California Legislation: Same: Civ.
Code 1872, Sec. 790; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Proceedings for
recovery of possession: Sees. 5091-
5109.
Right of Re-Entry.
Sec. 3080. Whenever the right of re-entry is given to a grantor
or a lessor in any grant or lease, or otherwise, such re-entry may be
made at any time after the right has accrued, upon three days' notice
as provided in the Code of Civil Procedure.
Historical: Rev. St. 1887, Sec. 2 859.
California Legislation: Same except
"Sections 1161 and 1162, Code" for
"the Code", line 4: Civ. Code 1872,
Sec. 791; Deering's Code, ib.; Kerr's
Code, ib.
Cross Reference: Service of notice:
Sec. 5094.
Summary Proceedings: Where Provided For.
Sec. 3081. Summary proceedings for obtaining possession of real
1208
PROPERTY AND OWNERSHIP
Tit. 5
property forcibly entered, or forcibly and unlawfully detained, are
provided for in the Code of Civil Procedure.
Historical: Rev. St. 1887, Sec. 2860.
California Legislation: Same except
"Sections 1159 to 1175, both inclusive,
of" inserted after "in", line 3: Civ.
Code 1872, Sec. 792; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Summary pro-
ceedings: Sees. 5091-5109.
Action for Real Property: Notice Unnecessary.
Sec. 3082. An action for the possession of real property, leased or
granted, with a right of re-entry, may be maintained at any time, in
the District Court, after the right to re-enter has accrued, without
notice.
Historical: Rev. St. 1887, Sec. 2861.
California Legislation: Same except
"without the notice prescribed in 791"
for "without notice", last words: Civ.
Code 1872, Sec. 793; Deering's Code,
ib. ; similar as amended: Kerr's
Code, ib.
CHAPTER 3.
EIGHTS AND OBLIGATIONS OF OWNERS.
Section
3083. Rights of grantees against
grantor's tenants.
3084. Remedies of lessor against les-
see's assignee.
3085. Remedies of lessee against les-
sor's assignee.
3086. Recovery of rent on lease for
life.
3087. Same: Recovery after death.
3088. Actions by reversioners.
Rights of Grantees Against Grantor's Tenants.
Sec. 3083. A person to whom any real property is transferred or
devised, upon which rent has been reserved or to whom such rent is
transferred, is entitled to the same remedies for recovery of rent, for
non-performance of any of the terms of the lease, or for any waste
or cause of forfeiture, as his grantor or devisor might have had.
Civ. Code 1872, Sec. 821; Deering's
Code, ib.; Kerr's Code, ib.
Section
3089.
Change in terms of lease.
3090.
Removal of fixtures by tenant.
3091.
Ownership of street by abut-
ter.
3092.
3093.
Right to lateral and subjacent
support.
Duties of tenant for life.
3094.
Monuments and fences.
Historical: Rev. St. 1887, Sec. 2 8 75.
California Legislation: Same except
"any" inserted before "such", line 2:
Remedies of Lessor Against Lessee's Assignee.
Sec. 3084. Whatever remedies the lessor of any real property has
against his immediate lessee for the breach of any agreement in the
lease, or for recovery of the possession, he has against the assignees
of the lessee, for any cause of action accruing while they are such as-
signees, except where the assignment is made by way of security for
a loan, and is not accompanied by possession of the premises.
Historical: Rev. St. 1887, Sec. 2 876.
California Legislation: Same
through "lessee", line 4, except "as-
signs" for "assignees", rest omitted:
Civ. Code 1872, Sec. 822; same as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Remedies of Lessee Against Lessor's Assignee.
Sec. 3085. Whatever remedies the lessee of any real property may
Ch. 3.
RIGHTS OF OWNERS
1209
have against his immediate lessor, for the breach of any agreement in
the lease, he may have against the assigns of the lessor, and the as-
signs of the lessee may have against the lessor and his assigns, except
upon covenants against incumbrances or relating to the title or pos-
session of the premises.
Historical: Rev. St. 1887, Sec. 2877.
California Legislation: Same: Civ.
Code 1872, Sec. 823; Deering's Code,
ib.; Kerr's Code, ib.
Recovery of Rent on Lease for Life.
Sec. 3086. Rent due upon a lease for life may be recovered in the
same manner as upon a lease for years.
Historical: Rev. St. 1887, Sec. 2878.
California Legislation: Same: Civ.
Code 1872, Sec. 824; Deering's Code,
ib.; Kerr's Code, ib.
Same : Recovery After Death.
Sec. 3087. Rent dependent on the life of a person may be recovered
after as well as before his death.
Historical: Rev. St. 1887, Sec. 2 879.
California Legislation: Same: Civ.
Code 1872, Sec. 825; Deering's Code,
ib.; Kerr's Code, ib.
Action by Reversioners.
Sec. 3088. A person having an estate in fee, in remainder or re-
version, may maintain an action for any injury done to the inheri-
tance, notwithstanding an intervening estate for life or years, and
although, after its commission, his estate is transferred, and he has
no interest in the property at the commencement of the action.
Historical: Rev. St. 1887, Sec. 2 8 80.
California Legislation: Same: Civ.
Code 1872, Sec. 826; Deering's Code,
ib.; Kerr's Code, ib.
Change in Terms of Lease.
Sec. 3089. In all leases of lands or tenements, or of any interest
therein, from month to month, the landlord may, upon giving notice
in writing at least fifteen days before the expiration of the month,
change the terms of the lease, to take effect at the expiration of the
month. The notice, when served upon the tenant, shall of itself
operate and be effectual to create and establish, as a part of the lease,
the terms, rent, and conditions specified in the notice, if the tenant
shall continue to hold the premises after the expiration of the month.
Historical: Rev. St. 1887, Sec. 28 81.
California Legislation: No such pro-
vision in Civ. Code 1872; same: Deer-
ing's Civ. Code, Sec. 827; Kerr's Code,
ib.
Removal of Fixtures by Tenant.
Sec. 3090. A tenant may remove from the demised premises, any
time during the continuance of his term, anything affixed thereto
for the purposes of trade, manufacture, ornament, or domestic use,
if the removal can be effected without injury to the premises, unless
the thing has, by the manner in which it is affixed, become an inte-
gral part of the premises.
Historical: Rev. St. 1887, Sec. 2 882.
What Constitutes Fixtures: Proper-
ty consisting of a front and
back bar, ice chest, etc., placed in a
saloon building by a tenant and fast-
ened to the wall and floor, constitute
trade fixtures and may be removed by
the tenant during the continuance of
1210
PROPERTY AND OWNERSHIP
Tit. 5
his term. Bush v. Havird (1906) 12
Ida. 352; 86 Pac. 529.
Time for Removal: Trade fixtures
must be removed by the tenant during
the continuance of his term; the right
to remove them is lost after a surren-
der of possession by the tenant, or
eviction by the landlord by summary
proceedings. lb.
Ownership of Street by Abutter.
Sec. 3091. An owner of land bounded by a road or street, is pre-
sumed to own to the center of the way, but the contrary may be
shown.
Historical: Rev. St. 1887, Sec. 2 883.
California Legislation: Same: Civ.
Code 1872, Sec. 831; Deering's Code,
ib.; Kerr's Code, ib.
Right to Lateral and Subjacent Support.
Sec. 3092. Each coterminous owner is entitled to the lateral and
subjacent support which his land receives from the adjacent land,
subject to the right of the owner of the adjoining land to make
proper and usual excavations on the same for purposes of construc-
tion, on using ordinary care and skill, and taking reasonable precau-
tions to sustain the land of the other, and giving previous reasonable
notice to the other of his intention to make such excavation.
Historical: Rev. St. 1887, Sec. 2884.
California Legislation : See Civ.
Code 1872, Sec. 832; same as amend-
ed except "adjoining" for "adjacent",
line 2: Deering's Code, ib.; Kerr's
Code, ib.
Duties of Tenant for Life.
Sec. 3093. The owner of a life estate must keep the buildings and
fences in repair from ordinary waste, and must pay the taxes and
other annual charges, and a just proportion of extraordinary assess-
ments benefiting the whole inheritance.
Historical: Rev. St. 1887, Sec. 2885.
California Legislation: Same: Civ.
Code 1872, Sec. 840; Deering's Cod%
ib.; Kerr's Code, ib.
Monuments and Fences.
Sec. 3094. Coterminous owners are mutually bound equally to
maintain :
1. The boundaries and monuments between them;
2. The fences between them, unless one of them chooses to let his
land lie without fencing, in which case, if he afterwards encloses it,
he must refund to the other the just proportion of the value, at that
time, of any division fence made by the latter.
Historical: Rev. St. 1887, Sec. 2 886.
California Legislation: Same: Civ.
Code 1872, Sec. 841; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Erection, mainte-
nance and repair of partition fences:
Sees. 1264-1275.
CHAPTER 4.
PERSONAL PROPERTY.
Section
3095. Conflict of laws.
Section
3096. Transfer and devolution of
things in action
Conflict of Laws.
Sec. 3095. If there is no law to the contrary in the place where
Ch. 4.
PERSONAL PROPERTY
1211
personal property is situated, it is deemed to follow the person of its
owner and is governed by the law of his domicile.
Historical: Rev. St. 1887, Sec. 2 890.
California Legislation: Same: Civ.
Code 1872, Sec. 946; Deering's Code,
ib.; Kerr's Code, ib.
Transfer and Devolution of Things in Action.
Sec. 3096. A thing in action arising out of the violation of a right
of property, or out of an obligation, may be transferred by the owner.
Upon the death of the owner it passes to his personal representatives,
except where, in the cases provided in the Code of Civil Procedure,
it passes to his devisees or successor in office.
Historical: Rev. St. 1887, Sec. 2 891.
California Legislation: Same: Civ.
Code 1872, Sec. 954; Deering's Code,
ib.; Kerr's Code, ib.
TITLE 6
TRANSFERS
Chapter
1. Transfers in general.
2. Transfer of real property.
3. Acknowledgments.
Chapter
4. Recording transfers.
5. Unlawful transfers.
Note: Transfers by succession are provided for in Sees. 5700-5717 of the
Code of Civil Procedure and transfers by will in Sees. 5752-5760 of that
Code.
CHAPTER 1.
TRANSFERS IN GENERAL.
Section
3097. Transfer of possibilities.
30 98. Right of re-entry is transfer-
able.
309 9. Transfer of disseizee.
3100. Oral transfers.
3101. Transfer in writing: How des-
ignated.
Section
3102. Words of inheritance not re-
quired.
3103. Grant effective on death with-
out heirs.
3104. Co-interests deemed to be in
common,
Transfer of Possibilities.
Sec. 3097. A mere possibility not coupled with an interest can-
not be transferred.
Historical: Rev. St. 1887, Sec. 290 0.
California Legislation: Same: Civ.
Code 1872, Sec. 1045; Deering's Code,
ib.; Kerr's Code, ib.
Right of Re-Entry is Transferable.
Sec. 3098. A right of re-entry or of re-possession for breach of
condition subsequent, can be transferred.
Historical: Rev. St. 1887, Sec. 2901.
California Legislation: Same: Civ.
Code 1872, Sec. 1046; Deering's Code,
ib.; Kerr's Code, ib.
Transfer by Disseizee.
Sec. 3099. Any person claiming title to real property in the ad-
verse possession of another, may transfer it with the same effect as
if in actual possession.
Historical: Rev. St. 1887, Sec. 2902.
See 1 Ter. Ses. (1864) 528, Sec. 33.
California Legislation : Same: Civ.
Code 1872, Sec. 1047; Deering's Code,
ib.; Kerr's Code, ib.
Oral Transfers.
Sec. 3100. A transfer may be made without writing, in every
case in which a writing is not expressly required by statute.
Historical: Rev. St. 1887, Sec. 2903.
California Legislation : Same: Civ.
Code 1872, Sec. 1052; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Transfers re-
quired to be in writing: Sees. 6007-
6008.
Ch. 2.
OF REAL PROPERTY
1213
Transfer in Writing: How Designated.
Sec. 3101. A transfer in writing is called a grant, or conveyance,
or bill of sale.
Historical: Rev. St. 188 7, Sec. 2 904.
California Legislation: Same except
"or conveyance, or bill of sale" omit-
ted: Civ. Code 1872, Sec. 1053; addi-
tional provision as amended: Deer-
ing's Code, ib.; Kerr's Code, ib.
Words of Inheritance Not Required.
Sec. 3102. Words of inheritance or succession are not requisite
to transfer a fee in real property.
Historical: Rev. St. 1887, Sec. 2 905.
See 1 Ter. Ses. (1864) 528, Sec. 43.
California Legislation: Same: Civ.
Code 1872, Sec. 1072; Deering's Code,
ib.; Kerr's Code, ib.
Grant Effective on Death Without Heirs.
Sec. 3103. Where a future interest is limited by a grant to take
effect on the death of any person without heirs, or heirs of his body,
or without issue, or in equivalent words, such words must be taken
to mean successors, or issue living at the death of the person named
as ancestor.
Historical: Rev. St. 1887, Sec. 2906.
See 1 Ter. Ses. (1864) 528, Sec. 44.
California Legislation: Same: Civ.
Code 1872, Sec. 1071; Deering's Code,
ib.; Kerr's Code, ib.
Co-Interests Deemed to Be in Common.
Sec. 3104. Every interest in real estate granted or devised to two
or more persons, other than executors or trustees, as such constitutes
a tenancy in common, unless expressly declared in the grant or de-
vise to be otherwise.
Historical: Rev. St. 1887, Sec. 2907.
1 Ter. Ses. (1864) 528, Sec. 42.
CHAPTER 2.
TRANSFER OF REAL PROPERTY.
Section
3105. Conveyance: How made.
3106. Conveyance of homestead.
3107. Conveyance by married
woman.
3108. Same: Non-resident husband.
3109. Same: Power of attorney.
3110. Conveyance by attorney in
fact.
3111. Easements pass with property.
3112. Fee presumed to pass.
3113. Acquisition of subsequent title
by grantor.
3114. Conclusiveness of conveyance:
Bona fide purchasers.
Section
3115. Unauthorized grant by life ten-
ant.
3116. Defeat of grant on condition
subsequent.
3117. Grant on condition precedent.
3118. Grant of rents, reversions or
remainders.
3119. Grant of land bounded by
highway.
3120. Covenants implied from
"grant".
3121. Incumbrance defined.
3122. Lineal and collateral warran-
ties abolished.
Conveyance: How Made.
Sec. 3105. A conveyance of an estate in real property may be made
by an instrument in writing, subscribed by the party disposing of the
same, or by his agent thereunto authorized by writing.
1214
TRANSFERS
Tit. 6
Historical: Rev. St. 188 7, Sec. 2 92 0.
See 1 Ter. Ses. (1864) 528, Sec. 1.
California Legislation: Similar: Civ.
Code 1872, Sec. 1091; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Transfers of real
property must be in writing: Sees.
6007, 6008.
Cited: First Natl. Bank of Lewis-
ton v. Williams (189 0) 2 Ida. 670; 23
Pac. 552.
Conveyance of Homestead.
Sec. 3106. No estate in the homestead of a married person, or in
any part of the community property occupied as a residence by a mar-
ried person can be conveyed or incumbered by act of the party, un-
less both husband and wife join in the execution of the instrument
by which it is so conveyed or incumbered, and it be acknowledged by
the wife as provided in Chapter 3 of this Title.
Historical: Rev. St. 188 7, Sec. 2 921.
See 13 Ter. Ses. (1885) 137, Sees, 1,
2, 3, 4.
California Legislation: See Civ.
Code 1872, Sec. 1242; Deering's Code,
ib.; Kerr's Code, ib.
Cited: N. W. & Pac. Hypotheek Bk.
v. Rauch (1898) 5 Ida. 752; 51 Pac.
76 4; First Natl. Bk. of Hailey v. Glenn
(1904) 10 Ida. 224; 77 Pac. 623;
Kurdy v. Rogers (1904) 10 Ida. 416;
79 Pac. 195.
Disposition of Homestead: The
homestead occupied by husband and
wife as a residence is common prop-
erty of the marital community, and
the husband cannot convey or encum-
ber it so long as it continues to be the
residence of himself and wife, with-
out the consent of the wife in such
conveyance, but it is in his power to
change its character as a residence
at any time without the consent or co-
operation of the wife, and to then
convev the same. Law v. Spence
(1897) 5 Ida. 244; 48 Pac. 282.
Disclaimer by Husband: In an ac-
tion against husband and wife relat-
ing to a water right appurtenant to
real estate occupied by them as a res-
idence, a disclaimer filed therein by
the husband does not affect the rights
of the wife. Stowall v. Tucker (1900)
7 Ida. 312; 62 Pac. 1033.
Purchase Money Mortgages: Where
a mortgage is executed by the hus-
band on public land prior to making
final proof and payment therefor, and
the purchase money is paid from the
sum realized from the mortgage, the
land is not community property at the
time of the execution of the mortgage,
and the mortgage lien is prior to any
right of the wife, although she did not
join in the mortgage. Kneen v. Halin
(1899) 6 Ida. 621; 59 Pac. 14.
Estoppel Against Wife: Where a
husband and wife enter into an oral
contract for the sale of their home-
stead, and the purchaser takes pos-
session thereof and pays the purchase
price and makes valuable improve-
ments with the full knowledge and
consent of the wife, the purchaser is
entitled to a decree of conveyance, on
the principle of estoppel, notwith-
standing the provisions of this sec-
tion. (Ailshie, J., dissents.) Grice v.
Woodworth (1904) 10 Ida. 459; 80
Pac. 912.
Conveyance by Married Woman.
Sec. 3107. No estate in the real property of a married woman
passes by any grant or conveyance purporting to be executed or ac-
knowledged by her, unless the grant or instrument is acknowledged
by her in the manner prescribed in Chapter 3 of this Title, and her
husband, if a resident of the State, joins with her in the execution
of such grant or conveyance.
Historical: Rev. St. 1887, Sec. 2 92 2.
See 8 Ter. Ses. (1875) 596, Sees. 2
and 3; also see 1 Ter. Ses. (1864) 528,
Sec. 2; 4 Ter. Ses. (1867) 138, Sees.
1, 2.
California legislation : Similar: Civ.
Code 1872, Sec. 1093; Deering's Code,
ib.; different: Kerr's Code, ib.
Cited: N. W. & Pac. Hypotheek Bk.
v. Rauch (1898) 5 Ida. 752; 51 Pac.
764; Grice v. Woodworth (1904) 10
Ida. 459; 80 Pac. 912.
Same : Non-Resident Husband.
Sec. 3108. If her husband has not been a bona fide resident of the
State at any time within the year next preceding her conveyance, a
married woman may convey her separate real property, or any inter-
Ch. 2.
OF REAL PROPERTY
1215
est therein, by an instrument in writing, subscribed and acknowledged
by her in the manner required by Chapter 3 of this Title.
Historical: Rev. St. 1887, Sec. 292 3.
See 8 Ter. Ses. (1875) 596, Sees. 2, 3;
4 Ter. Ses. (1867) 138, Sees. 1, 2.
If
Same : Power of Attorney.
Sec. 3109. A power of attorney of a married woman, authorizing
the execution of an instrument transferring an estate in her separate
real property, has no validity for that purpose until acknowledged by
her in the manner provided in Chapter 3 of this Title, and her hus-
band, if a resident of the State, join therein. But if her husband has
not been a bona fide resident of the State at any time within one year
next preceding the execution of the power, she may execute the same
alone, as in the last section provided for the excution by her of con-
veyances when her husband is a non-resident.
Historical: Rev. St. 188 7, Sec. 2 924.
California Legislation: Similar in
part: Civ. Code 1872, Sec. 1094; Deer-
ing's Code, ib.; different as amended
Kerr's Code, ib. ^
Conveyance By Attorney in Fact.
Sec. 3110. When an attorney in fact executes an instrument trans-
ferring an estate in real property, he must subscribe the name of his
principal to it, and his own name as attorney in fact.
Historical: Rev. St. 188 7, Sec. 2 92 5.
California Legislation: Same: Civ.
Code 1872, Sec. 1095; Deering's Code,
ib.; Kerr's Code, ib.
Easements Pass With Property.
Sec. 3111. A transfer of real property passes all easements at-
tached thereto, and creates in favor thereof an easement to use other
real property of the person whose estate is transferred, in the same
manner and to the same extent as such property was obviously and
permanently used by the person whose estate is transferred, for the
benefit thereof, at the time when the transfer was agreed upon or
completed.
Historical: Rev. St. 188 7, Sec. 2926.
California Legislation: Same: Civ.
Code 1872, Sec. 1104; Deering's Code,
ib.; Kerr's Code, ib.
Fee Presumed to Pass.
Sec. 3112. A fee simple title is presumed to be intended to pass
by a grant of real property unless it appears from the grant that a
lesser estate was intended.
Historical: Rev. St, 188 7, Sec. 2 927.
See 1 Ter. Ses. (1864) 528, Sec. 43.
California Legislation: Same: Civ.
Code 1872, Sec. 1105; Deering's Code,
ib.; Kerr's Code, ib.
Acquisition of Subsequent Title by Grantor.
Sec. 3113. Where a person purports by proper instrument to con-
vey or grant real property in fee simple, and subsequently acquires
any title or claim of title thereto, the same passes by operation of
law to the grantee or his successors.
Historical: Rev. St. 1887, Sec. 2 928.
See 1 Ter. Ses. (1864) 528, Sec. 32.
California Legislation: Same: Civ.
Code 1872, Sec. 1106; Deering's Code,
ib.; Kerr's Code, ib.
1216
TRANSFERS
Tit. 6
Conclusiveness of Conveyance: Bona Fide Purchasers.
Sec. 3114. Every grant or conveyance of an estate in real property
is conclusive against the grantor, also against every one subsequently
claiming under him, except a purchaser or incumbrancer, who in
good faith, and for a valuable consideration, acquires a title or lien
by an instrument that is first duly recorded.
Historical: Rev. St. 1887, Sec. 2 92 9.
California Legislation: Same except
'or conveyance", line 1, omitted: Civ.
Code 1872, Sec. 1107; Deering's Code,
ib.; Kerr's Code, ib.
Unauthorized Grant by Life Tenant.
Sec. 3115. A grant made by the owner of an estate for life or
years, purporting to transfer a greater estate than he could law-
fully transfer, does not work a forfeiture of his estate, but passes to
the grantee all the estate which the grantor could lawfully transfer.
Historical: Rev. St. 1887, Sec. 2930.
California Legislation: Same: Civ.
Code 1872, Sec. 1108; Deering's Code,
ib.; Kerr's Code, ib.
Defeat of Grant on Condition Subsequent.
Sec. 3116. Where a grant is made upon condition subsequent, and
is subsequently defeated by the non-performance of the condition,
the person otherwise entitled to hold under the grant must reconvey
the property to the grantor or his successors, by grant duly acknowl-
edged for record.
Historical: Rev. St. 1887, Sec. 2 931.
California Legislation: Same: Civ.
Code 1872, Sec. 1109; Deering's Code,
ib.; Kerr's Code, ib.
Grant on Condition Precedent.
Sec. 3117. An instrument purporting to be a grant of real prop-
erty, to take effect upon condition precedent, does not pass the estate
upon the performance of the condition. Such instrument is an exec-
utory contract for the conveyance of the property. Upon compliance
with the condition, the grantee is entitled to a grant or conveyance,
from the grantor or his successors, for the property, duly acknowl-
edged for record.
Historical: Rev. St. 1887, Sec. 2932.
California Legislation: Similar: Civ.
Code 1872, Sec. 1110; different as
amended:
Code, ib.
Deering's Code, ib.; Kerr's
Grant of Rents, Reversions or Remainders.
Sec. 3118. Grants of rents or of reversions or of remainders are
good and effectual without attornments of the tenants ; but no tenant
who, before notice of the grant, has paid rent to the grantor, must
suffer any damage thereby.
Historical: Rev. St. 18 87, Sec. 2 933.
1 Ter. Ses. (1864) 528, Sec. 47.
California Legislation: Same: Civ.
Code 1872, Sec. 1111; Deering's Code,
ib. ; Kerr's Code, ib.
Grant of Land Bounded by Highway.
Sec. 3119. A transfer of land, bounded by a highway, passes the
title of the person whose estate is transferred to the soil of the high-
way in front, to the center thereof, unless a different intent appears
from the grant.
Ch. 2.
OF REAL PROPERTY
1217
Historical: Rev. St. 188 7, Sec. 2 934.
California Legislation: Same
through "thereof", line 3, rest omit-
ted: Civ. Code 1872, Sec. 1112; same
as amended: Deering's Code, ib.;
Kerr's Code, ib.
Covenants Implied from "Grant."
Sec. 3120. From the use of the word "grant" in any conveyance
by which an estate of inheritance, possessory right, or fee simple is
to be passed, the following covenants, and none other, on the part of
the grantor, for himself and his heirs, to the grantee, his heirs and
assigns, are implied, unless restrained by express terms contained
in such conveyance :
1. That previous to the time of the execution of such conveyance,
the grantor has not conveyed the same estate, or any right, title, or
interest therein, to any person other than the grantee ;
2. That such estate is at the time of the execution of such con-
veyance free from incumbrances done, made, or suffered by the
grantor, or any person claiming under him. Such covenants may be
sued upon in the same manner as if they had been expressly inserted
in the conveyance.
Historical: Rev. St. 18 87, Sec. 2 93 5.
See 1 Ter. Ses. (1864) 528, Sec. 50.
California Legislation: Same except
"possessory right", line 2, omitted:
Civ. Code 1872, Sec. 1113; Deering's
Code, ib. ; Kerr's Code, ib.
Implied Covenants: The word
"grant" in a conveyance is a covenant
that the estate so conveyed is, at the
time of the execution thereof, free
from encumbrances done, made or suf-
fered by the grantor or any person
claiming under him, but is not a war-
ranty of title or a covenant of quiet
enjoyment against encumbrances.
Warren v. Stoddart (1899) 6 Ida. 692;
59 Pac. 540.
Incumbrance Defined.
Sec. 3121. The term "incumbrances" includes taxes, assessments,
and all liens upon real property.
Historical: Rev. St. 1887, Sec. 2 936.
California Legislation : Similar with
additional provisions: Civ. Code 1872,
Sec. 1114; same as amended: Deer-
ing's Code, ib.; Kerr's Code, ib.
Lineal and Collateral Warranties Abolished.
Sec. 3122. Lineal and collateral warranties, with all their inci-
dents, are abolished ; but the heirs and devisees of every person who
has made any covenant or agreement in reference to the title of, in,
or to any real property, are answerable upon such covenant or agree-
ment to the extent of the land descended or devised to them, in the
cases and in the manner prescribed by law.
Historical: Rev. St. 188 7, Sec. 2 93 7.
1 Ter. Ses. (1864) 528, Sec. 49.
California Legislation: Same: Civ.
Code 1872, Sec. 1115; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 3.
ACKNOWLEDGMENTS.
Section
3123. By whom taken.
3124. Same: Continued.
3125. Same: Outside of State.
3126. Same: Outside United States.
3127. Acknowledgments before dep-
uties.
Section
3128. Requisites for acknowledg-
ment .
3129. Acknowledgment by married
woman.
3130. Certificate of acknowledgment.
3131. Same: Form.
1218
TRANSFERS
Tit. 6
Section
3132. Same: Acknowledgment by
corporation.
3133. Same: Acknowledgment by at-
torney.
3134. Authentication of certificate.
3135. Certificate by justice: Authen-
tication.
3136. Proof of execution.
3137. Identity of witness must be
known or proven.
313 8. Proof of identity of grantor.
3139. Proof of instrument by hand-
writing.
3140. Same: What evidence must
prove.
taking
Section
3141. Certificate of proof.
3142. Authority of officers
proof.
3143. Correction of defective certifi-
cate.
3144. Action to prove instrument.
3145. Judgment entitles instrument
to record.
3146. Prior instruments not affected.
3147. Same: Record of such instru-
ments.
3148. Same: Record as notice.
By Whom Taken.
Sec. 3123. The proof or acknowledgment of an instrument may be
made at any place within this State, before a Justice or Clerk of the
Supreme Court.
Historical: Rev. St. 1887, Sec. 295 0.
See 1 Ter. Ses. (1864) 528, Sec. 4.
California Legislation: Same: Civ.
Code 1872, Sec. 1180; "or a judge of
a superior court" added as amended:
Deering's Code, ib.; Kerr's Code, ib.
Cross Reference: Judicial officers
may take acknowledgments: Sec. 3913.
Cited: Bunnell & Eno etc. Co. v.
Curtis (1897) 5 Ida. 652; 51 Pac. 767.
Same : Continued.
Sec. 3124. The proof or acknowledgment of an instrument may
be made in this State within the city, county or district for which
the officer was elected or appointed, before either :
1. A judge or clerk of a court of record ; or,
2. A county recorder; or,
3. A notary public ; or,
4. A justice of the peace.
Historical: Rev. St. 1887, Sec. 2951.
See 1 Ter. Ses. (1864) 528, Sec. 4.
California Legislation: Similar: Civ.
Code 1872, Sec. 1181; as amended:
Deering's Code, ib.; as further
amended: Kerr's Code, ib.
Same: Outside of State.
Sec. 3125. The proof or acknowledgment of an instrument may
be made without this State, but within the United States, and within
the jurisdiction of the officer, before either:
1. A justice, judge or clerk of any court of record of the United
States ; or,
2. A justice, judge or clerk #f any court of record of any State
or Territory; or,
3. A commissioner appointed by the Governor of this State for
that purpose ; or,
4. A notary public ; or,
5. Any other officer of the State or Territory where the acknowl-
edgment is made, authorized by its laws to take such proof or acknowl-
edgment.
Historical: Rev. St. 18 87, Sec. 2952.
See 1 Ter. Ses. (1864) 528, Sec. 4.
California Legislation: Same except
"or Territory" omitted, subds. 2, 5;
Civ. Code 1872, Sec. 1182; Deering's
Code, ib.; Kerr's Code, ib.
Ch. 3.
ACKNOWLEDGMENTS
1219
Same: Outside United States.
Sec. 3126. The proof or acknowledgment of an instrument may
be made without the United States, before either:
1. A Minister, Commissioner or Charge d'Affairs of the United
States, resident and accredited in the country where the proof or ac-
knowledgment is made ; or,
2. A Consul or Vice-Consul of the United States resident in the
country where the proof or acknowledgment is made ; or,
3. A judge of a court of record of the country where the proof
or acknowledgment is made ; or,
4. Commissioners appointed for such purposes by the Governor
of the State pursuant to statute ; or,
5. A notary public.
Historical: Rev. St. 1887, Sec. 2 95 3.
1 Ter. Ses. (1864) 528, Sec. 4.
California Legislation: Same except
"special statutes" for "statute", subd.
4: Civ. Code 1872, Sec. 1183; similar
as amended: Deering's Code, ib.;
Kerr's Code, ib. v
Acknowledgments Before Deputies.
Sec. 3127. When any of the officers mentioned in the four pre-
ceding sections are authorized by law to appoint a deputy, the ac-
knowledgment or proof may be taken by such deputy, in the name
of his principal.
Historical: Rev. St. 18 87, Sec. 2 95 4.
California Legislation: Same: Civ.
Code 1872, Sec. 1184; Deering's Code,
ib.; Kerr's Code, ib.
Requisites for Acknowledgment.
Sec. 3128. The acknowledgment of an instrument must not be
taken, unless the officer taking it knows, or has satisfactory evidence,
on the oath or affirmation of a credible witness, that the person mak-
ing such acknowledgment is the individual who is described in, and
who executed, the instrument; or, if executed by a corporation, that
the person making such acknowledgment is the president or sec-
retary of such corporation.
Historical: Rev. St. 18 87, Sec. 2 955.
See 1 Ter. Ses. (1864) 528, Sec. 6.
California Legislation: Same: Civ.
Code 1872, Sec. 1185; Deering's Code,
ib.; similar as amended: Kerr's Code,
ib.
Duty of Officer: An officer taking
an acknowledgment is not required to
see the person sign the instrument nor
to witness the instrument, but is re-
quired to ascertain whether or not the
party acknowledges the instrument as
his or her obligation or contract, and
as having been executed by him or
her. First Natl. Bk. of Hailey v.
Glenn (1904) 10 Ida. 224; 77 Pac. 623.
Acknowledgment by Married Woman.
Sec. 3129. The acknowledgment of a married woman to any in-
strument in writing shall be taken and certified to in the same man-
ner and form as that of a single person, and must be substantially
in the form prescribed by Section 3131.
Historical: Laws 1907, 5, Sec. 1.
Repeal: This section repeals Rev.
St. Sees. 2956 and 2960. The re-
pealed sections provide that "the ac-
knowledgment of a married woman
to an instrument purporting to be ex-
ecuted by her, must not be taken, un-
less she is made acquainted by the of-
ficer with the contents of the instru-
ment on an examination without the
hearing of her husband; nor certified,
unless she thereupon acknowledges to
the officer that she executed the in-
strument, and that she does not wish
1220
TRANSFERS
Tit. 6
to retract such execution", and pre-
scribe a corresponding- form of cer-
tificate:
Decisions construing- the repealed
sections are as follows:
2956 — Cited: Christenson v. Hol-
lingsworth (18 98) 6 Ida. 87; 53 Pac.
211.
Conveyance of Husband: A convey-
ance of common property occupied by
husband and wife is invalid, where
none of the requirements of this sec-
tion are complied with by the officer
taking the acknowledgment. Wilson
v. Wilson (1899) 6 Ida. 597; 57 Pac.
708.
Sufficiency of Acknowledgment : A
certificate of acknowledgment which
shows that the acknowledgment of
the husband was taken separate and
apart from the wife, and that the
wife's acknowledgment was not taken
separate and apart from the husband,
is void. Co-op. Sav. & Loan Assoc, v.
Green (1897) 5 Ida. 661; 51 Pac. 770.
Where the contents of an instru-
ment are explained to a married wo-
man and she states that it is all right
with her if it is with her husband, and
that whatever he does or says is all
right, the notary is justified in attach-
ing his certificate of acknowledgment
thereto. First Natl. Bk. of Hailey v.
Glenn (1904) 10 Ida. 224; 77 Pac. 623.
Validity of Certificate: Where a
certificate of acknowledgment is regu-
lar in form, its validity will be sus-
tained in the absence of clear and
convincing proof that the provisions
of this section were not complied
with. Gray v. Law (1899) 6 Ida. 559;
57 Pac. 435.
2960 — Cited: Co-op. etc. Assoc, v.
Green (1897) 5 Ida. 660; 51 Pac. 770;
Gray v. Law (1899) 6 Ida. 559; 57
Pac. 435; First Natl. Bk. of Hailey v.
Glenn (1904) 10 Ida. 224; 77 Pac. 623.
Substantial Compliance Sufficient:
The certificate of acknowledgment
need not follow the exact words of the
statute, but it is sufficient if it sub-
stantially complies therewith. Chris-
tensen v. Hollingsworth (1898) 6 Ida.
87; 53 Pac. 211; N. W. & Pac. Hypo-
theek Bk. v. Rauch (1898) 5 Ida. 752;
51 Pac. 764; Curtis v. Bunnell etc. Co.
(1898) 6 Ida. 298; 55 Pac. 659.
A certificate stating that the notary
apprised the wife of the contents of
the instrument, of her rights, and of
the effect of signing the same, and
that she did then freely and voluntar-
ily, separate and apart from her hus-
band, sign and acknowledge said in-
strument, is sufficient. N. W. & Pac.
Hypotheek Bk. v. Rauch (1898) 5
Ida. 752; 51 Pac. 754.
Certificate of Acknowledgment.
Sec. 3130. An officer taking the acknowledgment of an instru-
ment must endorse thereon a certificate substantially in the forms
hereinafter prescribed.
Historical: Rev. St. 1887, Sec. 295 7.
See 1 Ter. Ses. (1864) 528, Sec. 5.
California Legislation: Same: Civ.
Code 1872, Sec. 1188; similar as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Impeachment of Certificate: A no-
tary may not testify to any fact tend-
ing to impeach a certificate of ac-
knowledgment made by him. First
Natl. Bk. of Hailey v. Glenn (1904) 10
Ida. 224; 77 Pac. 623.
Same : Form.
Sec. 3131. The certificate of acknowledgment, unless it is other-
wise in this chapter provided, must be substantially in the following
form :
State of Idaho, County of , ss.
On this .....day of , in the year of , before me
(here insert the name and quality of the officer), personally ap-
peared , known to me (or proved to me on the oath of
.), to be the person whose name is subscribed to the within
instrument, and acknowledged to me that he (or they) executed the
same.
Historical: Rev. St. 1887, Sec. 2 95 8.
See 1 Ter. Ses. (1864) 528, Sec. 8.
California Legislation: Same except
"article" for "chapter", line 2: Civ.
Code 1872, Sec. 1189; Deering's Code,
ib.; additional provision as amended:
Kerr's Code, ib.
Same : Acknowledgment by Corporation.
Sec. 3132. The certificate of acknowledgment of an instrument
Ch. 3.
ACKNOWLEDGMENTS
1221
executed by a corporation, must be substantially in the following
form:
State of Idaho, County of , ss.
On this day of ..., in the year _., before me
(here insert the name and quality of the officer,) personally appeared
, known to me (or proved to me on the oath of )
to be the president (or the secretary) of the corporation that execu-
ted the instrument and acknowledged to me that such corporation
executed the same.
Historical: Rev. St. 188 7, Sec. 2 95 9.
California Legislation: Same: Civ.
Code 1872, Sec. 1190; Deering's Code,
ib.; similar with additional provision:
Kerr's Code, ib.
Same: Acknowledgment by Attorney.
Sec. 3133. The certificate of acknowledgment by an attorney in
fact, must be substantially in the following form:
State of Idaho, County of , ss. x
On this day of..... , in the year , before me, (here
insert the name and quality of the officer) personally appeared
, known to me (or proved to me on the oath of ) to be
the person whose name is subscribed to the within instrument as the
attorney in fact of , and acknowledged to me that he sub-
scribed the name of thereto as principal, and his own name
as attorney in fact.
Historical: Rev. St. 1887, Sec. 2961. i Code 1872, Sec. 1192; Deering's Code,
California Legislation: Same: Civ. iD> Kerr's Code, ib.
Authentication of Certificate.
Sec. 3134. Officers taking and certifying acknowledgments or
proof of instruments for record, must authenticate their certificates
by affixing thereto their signatures, followed by the names of their
offices ; also their seals of office, if by the laws of the Territory, State,
or country where the acknowledgment or proof is taken, or by au-
thority of which they are acting, they are required to have official
seals.
Historical: Rev. St. 1887, Sec. 2 962.
See 1 Ter. Ses. (1864) 528, Sec. 5.
California Legislation: Same except
"Territory", line 4, omitted: Civ.
Code 1872, Sec. 1193; Deering's Code,
ib.; Kerr's Code, ib.
Certificate by Justice: Authentication.
Sec. 3135. The certificate of proof or acknowledgment, if made
before a justice of the peace, when used in any county other than that
in which he resides, must be accompanied by a certificate under the
hand and seal of the recorder of the county in which the justice re-
sides, setting forth that such justice, at the time of taking such proof
or acknowledgment, was authorized to take the same, and that the
recorder is acquainted with his handwriting, and believes that the
signature to the original certificate is genuine.
Historical: Rev. St. 18 87, Sec. 2963.
California Legislation : Same except
'clerk" for "recorder": Civ. Code 1872,
Sec. 1194; Deering's Code, ib.; Kerr's
Code, ib.
1222
TRANSFERS
Tit. 6
Proof of Execution.
Sec. 3136. Proof of the execution of an instrument, when not ac-
knowledged, may be made either :
1. By the parties executing it, or either of them; or,
2. By a subscribing witness; or,
3. By other witnesses in the cases hereinafter mentioned.
Historical: Rev. St. 188 7, Sec. 2 964.
See 1 Ter. Ses. (1864) 528, Sec. 10.
California Legislation : Same except
"in cases mentioned in Section 1198"
for "in the cases hereinafter men-
tioned", subd. 3: Civ. Code 1872, Sec.
1195; Deering's Code, ib.; Kerr's
Code, ib.
Identity of Witness Must Be Known or Proven.
Sec. 3137. If by a subscribing witness, such witness must be per-
sonally known to the officer taking the proof, to be the person whose
name is subscribed to the instrument, as a witness, or must be proved
to be such, by the oath of a credible witness.
Historical: Rev. St. 1887, Sec. 2 965;
1 Ter. Ses. (1864) 528, Sec. 11.
California Legislation : Same: Civ.
Code, 1872, Sec. 1196; Deering's Code,
ib.; Kerr's Code, ib.
Proof of Identity of Grantor.
Sec. 3138. The subscribing witness must prove that the person
whose name is subscribed to the instrument as a party, is the person
described in it, and that such person executed it, and that the witness
subscribed his name thereto as a witness.
Historical: Rev. St. 1887, Sec. 2 966.
See 1 Ter. Ses. (1864) 528, Sec. 12.
California Legislation: Same: Civ.
Code 1872, Sec. 1197; Deering's Code,
ib.; Kerr's Code, ib.
Proof of Instrument by Handwriting.
Sec. 3139. The execution of an instrument may be established by
proof of the handwriting of the party and of a subscribing witness,
if there is one, in the following cases :
1. When the parties and all the subscribing witnesses are dead;
or,
2. When the parties and all the subscribing witnesses are non-
residents of the State ; or,
3. When the place of their residence is unknown to the party
desiring the proof, and cannot be ascertained by the exercise of due
diligence ; or,
4. When the subscribing witness conceals himself or cannot be
found by the officer, by the exercise of due diligence, in attempting
to serve the subpoena or attachment ; or,
5. In case of the continued failure or refusal of the witness to
testify for the space of one hour, after his appearance.
Historical: Rev. St. 1887, Sec. 2 967.
See 1 Ter. Ses. (1864) 528, Sec. 14.
California Legislation: Same: Civ.
Code, 1872, Sec. 1198; Deering's Code,
ib.; Kerr's Code, ib.
Same : What Evidence Must Prove.
Sec. 3140. The evidence taken under the preceding section, must
satisfactorily prove to the officer the following facts:
1. The existence of one or more of the conditions mentioned
therein ; and,
Ch. 3.
ACKNOWLEDGMENTS
1223
2. That the witness testifying knew the person whose name
purports to be subscribed to the instrument as a party, and is well
acquainted with his signature, and that it is genuine; and,
3. That the witness testifying personally knew the person who
subscribed the instrument as a witness; and is well acquainted with
his signature, and that it is genuine ; and,
4. The place of residence of the witness.
Historical: Rev. St. 188 7, Sec. 2968.
See 1 Ter. Ses. (1864) 528, Sec. 15.
California Legislation: Same with
additional subdivision: Civ. Code
1872, Sec. 1199; same as amended:
Deering's Code, ib.; Kerr's Code, ib.
Certificate of Proof.
Sec. 3141. An officer taking proof of the execution of any instru-
ment must, in his certificate indorsed thereon or attached thereto,
set forth all the matters required by law to be done or known by him,
or proved before him on the proceeding, together with the names of
all the witnesses examined before him, their places of residence re-
spectively, and the substance of their testimony.
Historical: Rev. St. 1887, Sec. 2969.
California Legislation: Same: Civ.
Code 1872, Sec. 1200; Deering's Code,
ib.; Kerr's Code, ib.
Authority of Officers Taking Proof.
Sec. 3142. Officers authorized to take the proof of instruments,
are authorized in such proceedings:
1. To administer oaths or affirmations, as prescribed in the Code
of Civil Procedure;
2. To employ and swear interpreters ;
3. To issue subpoenas, as prescribed in the Code of Civil Pro-
cedure ;
4. To punish for contempt as prescribed in the Code of Civil
Procedure.
The civil damages and forfeiture to the party aggrieved are pre-
scribed in the Code of Civil Procedure for a witness disobeying a
subpoena.
Historical: Rev. St. 1887, Sec. 2 970.
See 1 Ter. Ses. (1864) 528, Sees. 16
and 17.
California Legislation: Similar: Civ.
Code 1872, Sec. 1201; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Issuance of sub-
poena: Sec. 6036. Civil damages and
forfeiture for disobedience: Sec. 6042.
Punishment for contempt: Sees. 5155-
5168.
Correction of Defective Certificate.
Sec. 3143. When the acknowledgment or proof of the execution
of an instrument is properly made, but defectively certified, any party
interested may have an action in the District Court to obtain a judg-
ment correcting the certificate.
Historical: Rev. St. 1887, Sec. 2 971.
California Legislation : Same: Civ.
Code 1872, Sec. 1202; Deering's Code,
ib.; "Superior" for "District" Court
as amended: Kerr's Code, ib.
Application: This section refers to
all defective certificates of acknowl-
edgment, whether made by a married
or single person. Bunnell & Eno Inv.
Co. v. Curtis (1897) 5 Ida. 652; 51
Pac. 767.
Time for Correction: Where a cer-
tificate of acknowledgment or a decla-
ration of homestead is fatally defec-
tive, the homestead claimant can have
the same reformed after a sale of the
homestead on execution, so as to pre-
serve the homestead for the claimant
as against the execution purchaser.
Burbank v. Kirby (1898) 6 Ida. 210;
55 Pac. 295.
1224
TRANSFERS
Tit. 6
Action to Prove Instrument.
Sec. 3144. Any person interested under an instrument entitled
to be proved for record, may institute an action in the District Court
against the proper parties to obtain a judgment proving such instru-
ment.
Historical: Rev. St. 1887, Sec. 2972.
California Legislation : Same: Civ.
Code 1872, Sec. 1203; Deering's Code,
ib. ; "Superior" for "District" Court
as amended: Kerr's Code, ib.
Judgment Entitles Instrument to Record.
Sec. 3145. A certified copy of the judgment in a proceeding insti-
tuted under either of the two preceding sections, showing the proof
of the instrument, and attached thereto, entiles such instrument to
record, with like effect as if acknowledged.
Historical: Rev. St. 1887, Sec. 2973.
California Legislation : Same: Civ.
Code 1872, Sec. 1204; Deering's Code,
ib.; Kerr's Code, ib.
Prior Instruments Not Affected.
Sec. 3146. The legality of the execution, acknowledgment, proof,
form, or record of any conveyance or other instrument made before
this Code goes into effect, executed, acknowledged, proved, or re-
corded, is not affected by anything contained in this chapter, but de-
pends for its validity and legality upon the laws in force when the act
was performed.
Historical: Rev. St. 1887, Sec. 2974.
See 1 Ter. Ses. (1864) 528, Sec. 41.
California Legislation: Same: Civ.
Code 1872, Sec. 1205; Deering's Code,
ib.; Kerr's Code, ib.
Same : Record of Such Instruments :
Sec. 3147. All conveyances of real property made before this Code
goes into effect, and acknowledged or proved, according to the laws
in force at the time of such making and acknowledgment or proof,
have the same force as evidence, and may be recorded in the same
manner and with like effect, as conveyances executed and acknowl-
edged in pursuance of this chapter.
Historical: Rev. St. 1887, Sec. 2975.
See 1 Ter. Ses. (1864) 528, Sec. 40.
California Legislation: Same: Civ.
Code 1872, Sec. 1206; Deering's Code,
ib. ; Kerr's Code, ib.
Same : Record as Notice.
Sec. 3148. Any instrument affecting the title to real property
which heretofore or on or before sixty days after the adjournment of
the Legislature of the State of Idaho for 1909, is copied into the
proper book of record, kept in the office of any county recorder, im-
parts notice of its contents to subsequent purchasers and incum-
brancers, notwithstanding any defect, omission, or informality in the
execution of the instrument, or in the certificate of acknowledgment
thereof; but nothing herein affects the rights of previous purchasers
or incumbrancers. Duly certified copies of the record of any such
instrument may be read in evidence with like effect as copies of an
instrument duly acknowledged and recorded, provided it be first
shown that the original instrument was genuine.
Ch. 4.
RECORDING TRANSFERS
1225
Historical: Rev. St. 1887, Sec. 2976;
amended Laws 1907, 28, Sec. 1. "1909"
inserted for "1907". This is a general
curative provision, common to many
codes, and should be made to refer
to the present Code, rather than to the
laws of 1907. Hence the change.
California Legislation : Similar:
Deering's Civ. Code, Sec. 1207; as
amended: Kerr's Code, ib.
Cited: Bunnell & Eno Inv. Co. v.
Curtis (1897) 5 Ida. 652; 51 Pac. 767.
CHAPTER 4.
RECORDING TRANSFERS.
Section
3149. What may be recorded.
Recording judgments.
United States patents.
Notices of location.
Acknowledgment necessary to
authorize record.
Power must be recorded be-
fore conveyance by attorney.
3155. Recorder's fees to be indorsed.
3156. Place of record.
3150.
3151.
3152.
3153.
3154.
Section
3157. When deemed recorded.
3158. Books of record.
3159. Record as notice.
3160. Unrecorded conveyance void.
3161. Conveyance defined.
3162. Revocation of power tc^be re-
corded.
3163. Unrecorded instruments valid
between parties.
Note: For books of record, manner of recording, and indexes, see Sees.
2061-2078. Fees of recorder: Sec. 2124.
What May Be Recorded.
Sec. 3149. Any instrument or judgment affecting the title to or
possession of real property may be recorded under this chapter.
Code 1872, Sec. 1158; Deering's Code,
ib.; Kerr's Code, ib.
Historical: Rev. St. 1887, Sec. 2 990.
California Legislation : Same: Civ.
Recording Judgments.
Sec. 3150. Judgments affecting the title to or possession of real
property, authenticated by the certificate of the clerk of the court in
which such judgments were rendered, may be recorded without ac-
knowledgment or further proof.
Historical: Rev. St. 1887, Sec. 2991.
California Legislation: Same: Civ.
Code 1872, Sec. 1159; Deering's Code,
ib.; additional provision as amended:
Kerr's Code, ib.
United States Patents.
Sec. 3151. Letters patent from the United States executed and
authenticated pursuant to existing law, may be recorded without
further proof.
Historical: Rev. St. 1887, Sec. 2992.
California Legislation: Similar: Civ.
Code 1872, Sec. 1160; as amended:
Deering's Code, ib.; Kerr's Code, ib.
Notices of Location.
Sec. 3152. Certificates and notices of location authorized by law,
with the affidavits attached, may be recorded without acknowledg-
ment or further proof.
Historical: Rev. St. 1887, Sec. 2 993.
California Legislation: See Kerr's
Civ. Code, Sec. 1159.
Acknowledgment Necessary to Authorize Record.
Sec. 3153. Before an instrument may be recorded, unless it is
1226
TRANSFERS
Tit. 6
otherwise expressly provided, its execution must be acknowledged
by the person executing it, or if executed by a corporation, by its
president or secretary, or proved, and the acknowledgment or proof
certified in the manner prescribed by Chapter 3 of this Title: Pro-
vided, That if such instrument shall have been executed and acknowl-
edged in any other State or Territory of the United States, or in any
foreign country, according to the laws of the State, Territory or
country wherein such acknowledgment was taken, the same shall be
entitled to record, and a certificate of acknowledgment indorsed upon
or attached to any such instrument purporting to have been made
in any such State, Territory or foreign country, shall be prima facie
sufficient to entitle the same to such record.
Historical: Rev. St. 1887, Sec. 2 9 94;
amended Laws 1907, 6, Sec. 1. The
amendment consisted in adding- the
proviso.
California Legislation : See Civ.
Code 1872, Sec. 1161; Deering's Code,
ib.; as amended: Kerr's Code, ib.
Power Must Be Recorded Before Conveyance by Attorney.
Sec. 3154. An instrument executed by an attorney in fact must
not be recorded until the power of attorney authorizing the execution
of the instrument is filed for record in the same office.
Historical: Rev. St. 1887, Sec. 2995.
California Legislation: Same: Civ.
Code 1872, Sec. 1163; repealed 1874.
Recorder's Fees to Be Indorsed.
Sec. 3155. The recorder must in all cases indorse the amount of his
fee on the instrument recorded, and on the record thereof.
Historical: Rev. St. 1887, Sec. 2996.
California Legislation: See Civ.
Code 1872, Sec. 1172; Deering's Code,
ib.; Kerr's Code, ib.
Place of Record.
Sec. 3156. Instruments entitled to be recorded must be recorded
by the county recorder of the county in which the real property
affected thereby is situated.
Historical: Rev. St. 1887, Sec. 299 7.
See 1 Ter. Ses. (1864) 528, Sec. 23.
California Legislation: Same: Civ.
Code 1872, Sec. 1169; Deering's Code,
ib.; Kerr's Code, ib.
When Deemed Recorded.
Sec. 3157. An instrument is deemed to be recorded when, being
duly acknowledged, or proved and certified, it is deposited in the re-
corder's office with the proper officer for record.
Historical: Rev. St. 1887, Sec. 2998.
California Legislation: Similar: Civ.
Code 1872, Sec. 1170; same as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Books of Record.
Sec. 3158. Grants and conveyances absolute in terms, are to be
recorded in one set of books, and mortgages in another.
Historical: Rev. St. 188 7, Sec. 2999.
California Legislation: Same except
'and conveyances" omitted: Civ. Code
1872, Sec. 1171; Deering's Code, ib.;
Kerr's Code, ib.
Ch. 4.
RECORDING TRANSFERS
1227
Record as Notice.
Sec. 3159. Every conveyance of real property, acknowledged or
proved, and certified, and recorded as prescribed by law, from the
time it is filed with the recorder for record, is constructive notice of
the contents thereof to subsequent purchasers and mortgagees.
Historical: Rev. St. 1887, Sec. 3000.
See 1 Ter. Ses. (1864) 528, Sec. 24.
California Legislation: Same: Civ.
Code 1872, Sec. 1213; Deering's Code,
ib.; additional provision as amended:
Kerr's Code, ib.
Unrecorded Conveyance Void.
Sec. 3160. Every conveyance of real property other than a lease
for a term not exceeding one year, is void as against any subsequent
purchaser or mortgagee of the same property, or any part thereof,
in good faith and for a valuable consideration, whose conveyance is
first duly recorded.
Historical: Rev. St. 1887, Sec. 30 01.
See 1 Ter. Ses. (1864) 528, Sec. 25.
California Legislation: Same: Civ.
Code 1872, Sec. 1214; Deering's Code,
ib.; similar as amended: Kerr's Code,
ib.
Bona Fide Purchasers: One who
has notice or knowledge of a previous
sale of real property, or who has no-
tice or knowledge of such facts and
circumstances as would lead a rea-
sonably prudent man to discover that
a previous sale had been made, is not
a purchaser in good faith within the
meaning of this section: but one who
purchases vacant property and pro-
cures an abstract of title which fails
to show a previous conveyance, be-
cause the same was not recorded, and
pays the purchase price without any
knowledge of such previous convey-
ance, is a purchaser in good faith, and
is entitled to the property as against
the holder of the prior unrecorded
deed. Froman v. Madden (1907) 13
Ida ; 88 Pac. 894.
Conveyance Defined.
Sec. 3161. The term "conveyance,, as used in this chapter, em-
braces every instrument in writing by which any estate or interest
in real property is created, alienated, mortgaged or incumbered, or
by which the title to any real property may be affected, except wills.
Historical: Rev. St. 1887, Sec. 3002.
See 1 Ter. Ses. (1864) 528, Sec. 35.
California Legislation : Same except
"Sections 1213 and 1214" for "this
chapter," line 1: Civ. Code 1872, Sec.
1215; Deering's Code, ib.; Kerr's Code
ib.
Revocation of Power to Be Recorded.
Sec. 3162. No instrument containing a power to convey or execute
instruments affecting real property, which has been recorded, is re-
voked by any act of the party by whom it was executed, unless the
instrument containing such revocation is also acknowledged or proved,
certified and recorded in the same office in which the instrument con-
taining the power was recorded.
Historical: Rev. St. 1887, Sec. 3 003.
See 1 Ter. Ses. (1864) 528, Sec. 27.
California Legislation: Same: Civ.
Code 1872, Sec. 1216; Deering's Code,
ib.; Kerr's Code, ib.
Unrecorded Instruments Valid Between Parties.
Sec. 3163. An unrecorded instrument is valid as between the par-
ties thereto and those who have notice thereof.
Historical: Rev. St. 18 87, Sec. 3004.
See 1 Ter. Ses. (1864) 528, Sec. 23.
California Legislation: Same: Civ.
Code 1872, Sec. 1217; Deering's Code,
ib.; Kerr's Code, ib.
1228
TRANSFERS
Tit. 6
CHAPTER 5.
UNLAWFUL TRANSFERS.
Section
3164. Fraudulent conveyances of
land.
3165. Grantee must be privy to fraud.
3166. Power of revocation: When
deemed executed.
3167. Same.
3168. Fraudulent transfers of per-
sonalty.
Section
316 9. Transfers in fraud of creditors.
317 0. Same: Delivery and change of
possession.
3171. Fraud is a question of fact.
3172. Title of purchaser not im-
paired.
Xote: Restrictions on sales of goods in bulk: Sees. 3332-3335.
Fraudulent Conveyances of Land.
Sec. 3164. Every instrument, other than a will, affecting an es-
tate in real property, including every charge upon real property, or
upon its rents or profits, made with intent to defraud prior or subse-
quent purchasers thereof, or incumbrancers thereon, is void as
against every purchaser or incumbrancer, for value, of the same
property, or the rents or profits thereof.
Historical: Rev. St. 1887, Sec. 3015.
See 1 Ter. Ses. (1864) 540, Sec. 1.
California Legislation: Same Civ.
Code 1872, Sec. 1227; Deering's Code,
ib.; Kerr's Code, ib.
Grantee Must Be Privy to Fraud.
Sec. 3165. No instrument is to be avoided under the last section,
in favor of a subsequent purchaser or incumbrancer having notice
thereof at the time his purchase was made, or his lien acquired, un-
less the person in whose favor the instrument was made was privy
to the fraud intended.
Historical: Rev. St. 1887, Sec. 3016.
See 1 Ter. Ses. (1864) 540, Sec. 2.
California Legislation: Same: Civ.
Code 1872, Sec. 1228; Deering's Code,
ib. ; Kerr's Code, ib.
Power of Revocation : When Deemed Executed.
Sec. 3166. Where a power to revoke or modify an instrument af-
fecting the title to, or the enjoyment of, an estate in real property,
is reserved to the grantor, or given to any other person, a subsequent
grant of, or charge upon, the estate, by the person having the power
of revocation, in favor of a purchaser or incumbrancer for value,
operates as a revocation of the original instrument, to the extent of
the power, in favor of such purchaser or incumbrancer.
Historical: Rev. St. 1887, Sec. 3017.
See 1 Ter. Ses. (1864) 540, Sec. 4.
California Legislation: Same: Civ.
Code 1872, Sec. 1229; Deering's Code,
ib. ; Kerr's Code, ib.
Same.
Sec. 3167. Where a person having the power of revocation within
the provisions of the last section, is not entitled to execute it until
after the time at which he makes such a grant or charge as is de-
scribed in that section, the power is deemed to be executed as soon
as he is entitled to execute it.
Ch. 5.
UNLAWFUL TRANSFERS
1229
Historical: Rev. St. 1887, Sec. 3018.
See 1 Ter. Ses. (1864) 540, Sec. 5.
California Legislation: Same: Civ.
Code 1872, Sec. 1230; Deering's Code,
ib.; Kerr's Code, ib.
Fraudulent Transfers of Personalty.
Sec. 3168. All deeds of gift, all conveyances and all transfers or
assignments, verbal or written, of goods, chattels or things in action,
made in trust for the use of the person making the same, are void
as against the creditors, existing or subsequent, of such person.
Historical: Rev. St. 1887, Sec. 3019.
1 Ter. Ses. (1864) 540, Sec. 11.
California Legislation: See Civ.
Code 1872, Sec. 1231; Deering's Code,
ib.; Kerr's Code, ib.
Void Transfers: An assignment in
trust to secure a certain creditor by
permitting him to keep sufficient pro-
ceeds to pay his debts, accompanied
by a contemporaenous parol agree-
ment, that any excess of such pro-
ceeds above the amount sufficient to
pay the creditor shall belong to the
grantor, is void as against creditors of
the grantor. Johnson v. Sage (1896)
4 Ida. 758; 44 Pac. 641.
Valid Transfers: A conveyance
made by a decedent to his* daughter,
without intent to defraud and not in
trust, does not come under the pro-
visions of this section. Brown v. Per-
rault (1898) 5 Ida. 728; 51 Pac. 752.
Transfers in Fraud of Creditors.
Sec. 3169. Every transfer of property, or charge thereon made,
every obligation incurred, and every judicial proceeding taken, with
intent to delay or defraud any creditor or other person of his de-
mands, is void against all creditors of the debtor and their successors
in interest, and against any person upon whom the estate of the
debtor devolves in trust for the benefit of others than the debtor.
Historical: Rev. St. 1887, Sec. 30 20.
See 1 Ter. Ses. (1864) 540, Sec. 18.
California Legislation: Same: Civ.
Code 1872, Sec. 3439; Deering's Code,
ib.; Kerr's Code, ib.
Void Transfers: An assignment of
property made partly for the reason
that the assignor feels that his cred-
itors may levy on the proceeds of the
property, is void as against creditors
of the assignor. Johnson v. Sage
(1896) 4 Ida. 758; 44 Pac. 641. If a
transfer is made with intent to evade
payment of debts and such intent is
known to the transferee, such trans-
fer is void. Sears v. Lydon (1897) 5
Ida. 358; 49 Pac. 122.
Same — Evidence: Under this sec-
tion a great latitude of inquiry on the
issue of fraud is permissible, and any
facts which tend to prove an intent to
delay or defraud an creditor, are per-
tinent and proper. Harkness v. Smith
(1891) 3 Ida. 221; 28 Pac. 423.
Same : Delivery and Change of Possession.
Sec. 3170. Every transfer of personal property other than a thing
in action, and every lien thereon, other than a mortgage when al-
lowed by law, is conclusively presumed, if made by a person having
at the time the possession or control of the property, and not accom-
panied by an immediate delivery and followed by an actual and con-
tinued change of possession of the things transferred, to be fraudu-
lent, and therefore void, against those who are his creditors while
he remains in possession, and the successors in interest of such cred-
itors, and against any persons on whom his estate devolves in trust
for the benefit of others than himself, and against purchasers or
incumbrancers in good faith subsequent to the transfer.
Historical: Rev. St. 1887, Sec. 3021.
See 1 Ter. Ses. (1864) 540, Sec. 15.
California Legislation : Similar: Civ.
Code 1872, Sec. 3440; Deering's Code,
ib.; additional provisions as amended:
Kerr's Code, ib.
Cited: Brown v. Perrault (1898) 5
Ida. 728; 51 Pac. 752.
Application: Where the property is
not at the time of the sale in the pos-
session or under the control of the
vendor, this section has no applica-
1230
TRANSFERS
Tit. 6
tion. Cornwell v. Mix (1893) 3 Ida.
687; 34 Pac. 893.
Scope of Inquiry: The sole inquiry
in this case is whether there has been
an immediate delivery followed by ac-
tual and continued change of posses-
sion. No question of intent, bona
fides or notice is relevant. Harkness
v. Smith (1891) 3 Ida. 221; 28 Pac.
423.
Sufficiency of Delivery: No fixed
rule can be established as a test for
determining what the "immediate de-
livery" or "actual possession" required
by the statute mean, but the questions
are matters of fact to be determined
by the jury from the evidence in each
particular case. Simons v. Dalv
(1903) 9 Ida. 87; 72 Pac. 507. The
statute does not refer to the place
where the goods are situated, but to
actual and continual change of pos-
session, and does not require the goods
sold to be removed in all cases from
the place where situated when sold.
Hazard v. Cole (1869) 1 Ida. 276.
Where the property is at the time
of sale in the custody of a third per-
son, and the sale is made in good
faith, notice to the third person is
sufficient to constitute a delivery. Luf-
kins v. Collins (1886) 2 Ida. 150; 7
Pac. 95.
Where horses pledged to secure a
debt are at the time of the pledge in
the possession of a third person who
was to range the same for the winter,
and the pledger tells such third per-
son in the presence of all the parties,
to hold them for the pledgee, and such
person takes the horses to the range
and delivers them to the pledgee in
the spring, the latter paying for their
care during the winter, there is a suf-
ficient delivery and change of posses-
sion to satisfy the statute. Murphy
v. Braase (1893) 3 Ida. 544; 32 Pac.
208.
A worked on the ranch for B and
had a room in B's house in town. B
gave A a cream separator insettle-
ment of a debt. A removed the sep-
arator from the ranch to his room in
B's house. Held, that there was a
sufficient delivery and change of pos-
session. Rapple v. Hughes (1904) 10
Ida. 338; 77 Pac. 722.
Effect of Retaking: Where there is
an actual sale and delivery with
change of possession, the subsequent
act of the prior owner in wrongfully
taking possession of the property does
not defeat the purchaser's title as
against a subsequent purchaser.
Couch v. Montgomery (18 9 9) 6 Ida.
669; 5 9 Pac. 16. But where property,
without legal excuse, is replaced in
the same apparent relation to the
vendor after delivery, and there is no
manifest and continued change of
possession, the transfer is void. Hark-
ness v. Smith (1891) 3 Ida. 221; 28
Pac. 423.
Insufficient Delivery: Where the as-
signor retains the property under the
same control and management, the as-
signment is void as against creditors.
Johnson v. Sage (1896) 4 Ida. 758;
44 Pac. 641.
L sold a quantity of wheat to H
and M; before delivery or change of
possession thereof, and twenty days
after the sale, the wheat was levied
upon under an execution issued in an
action against L. Held, that the sale
to H and M was void as to creditors.
Hallett v. Parrish (1897) 5 Ida. 496;
51 Pac. 109.
Where a tenant holds personal
property on the demised premises for
his landlord and the latter assigns
the same to a third person, who
leaves it on the demised premises for
the tenant to hold until a certain day,
and the property is seized upon an
execution before that day, there is, at
the time of the execution, no such de-
livery and change of possession as
to vest title in the third person.
Coombs v. Collins (1899) 6 Ida. 536;
57 Pac. 310.
Seizure Under Attachment: An offi-
cer sued for wrongfully seizing prop-
erty under an invalid writ of attach-
ment, may protect himself from being
mulcted in exemplary damages, by
showing that the goods seized under
the writ were recently in the posses-
sion of the defendant, and that there
was no such change of possession as
is required bv this section. Sears v.
Lvdon (1897) 5 Ida. 358; 49 Pac. 122.
Fraud is a Question of Fact.
Sec. 3171. In all cases arising under the provisions of this title,
except, as otherwise provided in the last section, the question of fraud-
ulent intent is one of fact, and not of law; nor can any transfer or
charge be adjudged fraudulent solely on the ground that it was not
made for a valuable consideration.
Historical: Rev. St. 1887, Sec. 3022.
1 Ter. Ses. (1864) 540, Sec. 20.
California Legislation: Similar: Civ.
Code 1872; Sec. 3443; Deering's Code,
ib.; additional provisions as amend-
ed: Kerr's Code, ib.
Cited: Brown v. Perrault (18 98 5
Ida. 728; 51 Pac. 752.
Question of Fact: The determina-
tion of what constitutes immediate
change of possession and delivery is
purely a question of fact to be de-
Ch. 5.
UNLAWFUL TRANSFERS
1231
termined by the jury, or the court in
case a jury is waived, from all the
evidence in the particular case. Rap-
pie v. Hughes (1904) 10 Ida. 338; 77
Pac. 722.
The intent with which a transfer in
fraud of creditors is made, is not es-
tablished so much by attempting to
ascertain the actual intent in the mind
of the debtor, but rather by the facts
and circumstances under which the
transfer was made, and from which
the law imputes a fraudulent motive.
California etc. Min. Co. v. Manley
(1905) 10 Ida. 786; 81 Pac. 50.
Voluntary Transfers: A conveyance
made for a mere nominal considera-
tion, when attacked as fraudulent, will
be subjected to the rules applicable
to voluntary transfers. lb.
Title of Purchaser Not Impaired.
Sec. 3172. The provisions of this chapter do not in any manner
affect or impair the title of a purchaser for a valuable consideration
unless it appears that such purchaser had previous notice of the
fraudulent intent of his immediate grantor, or of the fraud render-
ing void the title of such grantor.
Historical: Rev. St. 1887, Sec. 3023.
1 Ter. Ses. (1864) 540, Sec. 21.
Bona Fide Transfers: The transfer
of stock by a married woman, as au-
thorized by Rev. St. Sec. 2612, al-
though procured by duress and coer-
cion on the part of her husband, is
good where the transferee is a bona
fide holder for value, without notice or
knowledge of such duress or coercion.
Bryan v. Montandon (1898) 6 Ida.
352; 55 Pac. 650.
Vol. 1 — 4 0
TITLE 7
HOMESTEADS
Chapter
1. General provisions.
2. Sale of the homestead on execu-
tion.
Chapter
3. Homestead of the head of a fam-
ily.
4. Homestead of other persons.
CHAPTER 1.
GENERAL PROVISIONS.
Section
3173. Definition of homestead.
From what property selected.
Same: From separate property
3174.
3175.
3176.
of wife.
Exemption from execution.
Section
3177.
3178.
3179.
3180.
Same: To what judgments sub-
ject.
Conveyance of homestead.
Abandonment of homestead.
Same: When effectual.
Xote: Proceedings in probate court for setting aside homestead: Sees.
5440-5453. Assignment of homestead on dissolution of marriage: Sec. 2670.
Definition of Homestead.
Sec. 3173. The word homestead as used in this title includes within
its meaning: The dwelling house in which the claimant resides, and
the land on which the same is situated and located as in this title pro-
vided ; also the proceeds thereof in the event of a voluntary sale, and
also the insurance thereon, if any, in the event of a loss.
Historical: Laws 1897, 10, Sec. 1;
re-enacted Laws 1899, 293, Sec. 1, in-
serting Sec. 3060 in Rev. St. 1887. The
insertion was unnecessary as the sec-
tion supersedes Rev. St. Sec. 3035,
which denned a homestead as "the
dwelling house in which the claim-
ant resides, and the land on which
the same is situated, selected as in this
title provided."
California Legislation: See Civ.
Code 1872, Sec. 1237; similar
through "provided" as amended:
Deering's Code, ib.; Kerr's Code, ib.
Exemption in Hotel: The fact that
the homestead is occupied in whole or
in part as a hotel, does not deprive it
of any of the immunities prescribed
by the statute, so long as it is used and
occupied by the owner as a home and
residence of himself and family, and
it is within the limitations of the
statute as to value. Kissel v. Clem-
ens (1899) 6 Ida. 444; 56 Pac. 84.
From What Property Selected.
Sec. 3174. If the claimant be married, the homestead may be
selected from the community property, or the separate property of
the husband, or with the consent of the wife from her separate prop-
erty. When the claimant is not married, but is the head of a family,
the homestead may be selected from any of his or her property.
Historical: Rev. St. 1887, Sec. 3036.
California Legislation: Different:
Civ. Code 1872, Sec. 1238; same as
amended except "within the meaning
of section twelve hundred and sixty-
one" inserted after "family": Deer-
ing's Code, ib.; Kerr's Code, ib.
Same : From Separate Property of Wife.
Sec. 3175. The homestead cannot be selected from the separate
Ch. 1.
GENERAL PROVISIONS
1233
property of the wife without her consent, shown by her making the
declaration of homestead.
Historical: Rev. St. 1887, Sec. 3037.
California Legislation: Similar: Civ.
Code 1872, Sec. 1239; same as amend-
ed except "or joining in making" in-
serted after "making," line 2; Deer-
ing's Code, ib.; Kerr's Code, ib.
Exemption From Execution.
Sec. 3176. The homestead is exempt from execution or forced sale,
except as in this title provided.
Cited: Wright v. Westheimer (1891)
3 Ida. 232; 28 Pac. 430.
Historical: Rev. St. 1887, Sec. 3038.
See 1 Ter. Ses. (1864) 575, Sec. 1.
California Legislation: Same: Civ.
Code 1872, Sec. 1240; Deering's Code,
ib.; Kerr's Code, ib.
Same : To What Judgments Subject.
Sec. 3177. The homestead is subject to execution or forced sale
in satisfaction of judgments obtained:
1. Before the declaration of homestead was filed for record, and
which constitute liens upon the premises ; or in an action in which an
attachment was levied upon the premises before the filing of such
declaration ;
2. On debts secured by mechanic's, laborer's or vendor's liens
upon the premises;
3. On debts secured by mortgages upon the premises, executed
and acknowledged by the husband and wife or by an unmarried
claimant ;
4. On debts secured by mortgages upon the premises, executed
and recorded before the declaration of homestead was filed for record.
Historical: Rev. St. 1887, Sec. 30 39.
See 1 Ter. Ses. (1864) 575, Sec. 2.
California Legislation: Similar: Civ.
Code 1872, Sec. 1241; as amended:
Deering's Code, ib. ; further amended:
Kerr's Code, ib.
Cited: Wright v. Westheimer (1891)
3 Ida. 232; 28 Pac. 430.
Lien Against Homestead: A judg-
ment lien is not divested by the act
of the defendant or his wife in sub-
sequently filing a declaration of home-
stead on the premises subject to the
lien. Smith v. Richards (1889) 2 Ida.
498; 21 Pac. 419.
Where a homestead is sold and the
proceeds invested in another home, an
attachment levied on the new home
prior to filing declaration of home-
stead covering the new home, is ef-
fectual to create a lien thereon. Wright
v. Westheimer (1891) 3 Ida. 232; 28
Pac. 430.
A mortgage lien cannot be defeated
by a declaration of homestead made
after the lien attaches. Law v. Spence
(1897) 5 Ida. 244; 48 Pac. 282.
Conveyance of Homestead.
Sec. 3178. The homestead of a married person cannot be conveyed
or incumbered unless the instrument by which it is conveyed or in-
cumbered is executed and acknowledged by both husband and wife.
Historical: Rev. St. 1887, Sec. 3 040.
See 1 Ter. Ses. (1864) 575, Sec. 2.
California Legislation: Same: Civ.
Code 1872, Sec. 1242; Deering's Code,
ib.; Kerr's Code, ib.
Rule of Evidence: This and the fol-
lowing sections are in the nature of
rules of evidence and are subject to
the same principles as the statute of
frauds, and the rules of equitable es-
toppel and waiver apply to oral sales
of the homestead. Grice v. Wood-
worth (1904) 10 Ida. 459; 80 Pac. 912.
Abandonment of Homestead.
Sec. 3179. A homestead can be abandoned only by a declaration
1234
HOMESTEADS
Tit. 7
of abandonment, or a grant or conveyance thereof, executed and ac-
knowledged :
1. By the husband and wife, if the claimant is married;
2. By the claimant, if unmarried.
Historical: Rev. St. 1887, Sec. 3041.
See 1 Ter. Ses. (1864) 575, Sec. 2.
California Legislation: Same except
"or conveyance", line 2, omitted: Civ.
Code 1872, Sec. 1243; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Wright v. Westheimer (1891)
3 Ida. 232; 28 Pac. 430; Bedal v. Sake
(1904) 10 Ida. 270; 77 Pac. 638. Grice
v. Woodworth (1904) 10 Ida. 459; 80
Pac. 912.
Ineffectual Conveyance: An attempt-
ed conveyance of a homestead made
by one spouse without the other join-
ing therein, is ineffectual to consti-
tute abandonment. Mellen v. McMan-
nis (1904) 9 Ida. 418; 75 Pac. 98.
Same : When Effectual.
Sec. 3180. A declaration of abandonment is effectual only from
the time it is filed in the office in which the homestead was recorded.
Historical: Rev. St. 1887, Sec. 3042.
California Legislation: Same: Civ.
Code 1872, Sec. 1244; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 2.
SALE OF THE HOMESTEAD ON EXECUTION.
Section
3181. Execution against homestead.
318 2. Application for apparisement.
3183. Filing of application.
3184. Notice of hearing.
318 5. Appointment of appraisers.
3186. Oath of appraisers.
3187. Appraisal.
3188. Report of appraisers.
Section
3189. Order setting aside exempt
portion.
3190. Order for sale of premises.
3191. Bid must exceed exemption.
3192. Disposal of proceeds of sale.
3193. Same: Exemption of proceeds.
3194. Compensation of appraisers.
3195. Costs of proceedings.
Execution Against Homestead.
Sec. 3181. When an execution for the enforcement of a judgment,
obtained in a case not within the classes before enumerated, is levied
upon the homestead, the judgment creditor may apply to the probate
judge of the county in which the homestead is situated for the ap-
pointment of persons to appraise the value thereof.
Historical: Rev. St. 1887, Sec. 3043.
See 1 Ter. Ses. (1864) 575, Sec. 3.
California Legislation: Same except
"in section 1241" inserted after
"enumerated," line 2, and "county"
for "probate," line 3; Civ. Code 1872,
Sec. 1245; similar as amended: Kerr's
Code, ib.
Application for Appraisement.
Sec. 3182. The application must be made upon a verified petition,
showing :
1. The fact that an execution has been levied upon the home-
stead ;
2. The name of the claimant ;
3. That the value of the homestead exceeds the amount of the
homestead exemption.
Historical: Rev. St. 1887, Sec. 3044.
See 1 Ter. Ses. (1864) 575, Sec. 3.
California Legislation: Same: Civ.
Code 1872. Sec. 1246; Deering's Code,
ib.; Kerr's Code, ib.
Ch. 2.
SALE ON EXECUTION
1235
Filing of Application.
Sec. 3183. The petition must be filed with the clerk of the probate
court.
Historical: Rev. St. 1887, Sec. 3045.
California Legislation : Same except
'county" for "probate": Civ. Code
1872, Sec. 1247; "superior court" as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Notice of Hearing.
Sec. 3184. A copy of the petition, with a notice of the time and
place of hearing, must be served upon the claimant, at least two days
before the hearing.
Historical: Rev. St. 1887, Sec. 3 046.
California Legislation: Same: Civ.
Code 1872, Sec. 1248; Deej^ng's Code,
ib.; Kerr's Code, ib.
Appointment of Appraisers.
Sec. 3185. At the hearing the judge may, upon proof of the service
of a copy of the petition and notice, and of the facts stated in the
petition, appoint three disinterested residents of the county to ap-
praise the value of the homestead.
Historical: Rev. St. 1887, Sec. 3047.
See 1 Ter. Ses. (1864) 575, Sec. 3.
California Legislation: Same: Civ.
Code 1872, Sec. 1249; Deering's Code,
ib.; Kerr's Code, ib.
Oath of Appraisers.
Sec. 3186. The persons appointed, before entering upon the per-
formance of their duties, must take an oath to faithfully perform the
same.
Historical: Rev. St. 1887, Sec. 3048.
California Legislation: Same: Civ.
Code 1872, Sec. 1250; Deering's Code,
ib.; Kerr's Code, ib.
Appraisal.
Sec. 3187. They must view the premises and appraise the value
thereof, and if the appraised value exceeds the homestead exemption,
they must determine whether the land claimed can be divided without
material injury.
Historical: Rev. St. 1887, Sec. 3049.
See 1 Ter. Ses. (1864) 575, Sec. 3.
California Legislation: Same: Civ.
Code 1872, Sec. 1251; Deering's Code,
ib.; Kerr's Code, ib.
Report of Appraisers.
Sec. 3188. Within ten days after their appointment they must
make to the judge a report in writing, which report must show the
appraised value and their determination upon the matter of a divi-
sion of the land claimed.
Historical: Rev. St. 1887, Sec. 3050.
See 1 Ter. Ses. (1864) 575, Sec. 3.
California Legislation: Same except
"fifteen" for "ten", line 1; Civ. Code
1872, Sec. 1252; Deering's Code, ib.;
Kerr's Code, ib.
Order Setting Aside Exempt Portion.
Sec. 3189. If, from the report, it appears to the judge that the land
claimed can be divided without material injury, he must, by an order,
direct the appraisers to set off to the claimant so much of the land,
including the residence, as will amount in value to the homestead ex-
1236
HOMESTEADS
Tit. 7
emption, and the execution may be enforced against the remainder
of the land.
Historical: Rev. St. 1887, Sec. 3051.
See 1 Ter. Ses. (1864) 575. Sec. 3.
California Legislation : Same: Civ.
Code 1872, Sec. 1253; Deering's Code,
ib.; Kerr's Code, ib.
Order for Sale of Premises.
Sec. 3190. If, from the report, it appear to the judge that the land
claimed exceeds in value the amount of the homestead exemption,
and that it cannot be divided, he must make an order directing its
sale under the execution.
Historical: Rev. St. 1887, Sec. 30 52.
1 Ter. Ses. (1864) 575, Sec. 3.
California Legislation : Same: Civ.
Code 1872, Sec. 1254; Deering's Code,
ib.; Kerr's Code, ib. *
Bid Must Exceed Exemption.
Sec. 3191. At such sale no bid must be received, unless it exceeds
the amount of the homestead exemption.
Historical: Rev. St. 188 7, Sec. 3053.
See 1 Ter. Ses. (1864) 575, Sec. 3.
California Legislation : Same: Civ.
Code 1872, Sec. 1255; Deering's Code,
ib.; Kerr's Code, ib.
Disposal of Proceeds of Sale.
Sec. 3192. If the sale is made, the proceeds thereof, to the amount
of the homestead exemption, must be paid to the claimant, and the
balance applied to the satisfaction of the execution.
Historical: Rev. St. 1887, Sec. 3054.
See 1 Ter. Ses. (1864) 575, Sec. 3.
California Legislation: Same: Civ.
Code 1872, Sec. 1256; Deering's Code,
ib.; Kerr's Code, ib.
Same: Exemption of Proceeds.
Sec. 3193. The money paid to the claimant is entitled for the
period of six months thereafter, to the same protection against legal
process and the voluntary disposition of the husband, which the law
gives to the homestead.
Historical: Rev. St. 1887, Sec. 3055.
See 1 Ter. Ses. (1864) 575, Sec. 3.
California Legislation : Same except
"for the period of six months there-
after" omitted and "all the" for "the
same", line 2: Civ. Code 1872, Sec.
1257; same as amended: Deering's
Code, ib.; Kerr's Code, ib.
Compensation of Appraisers.
Sec. 3194. The court must fix the compensation of the appraisers,
not to exceed five dollars per day each for the time actually engaged.
Historical: Rev. St. 1887, Sec. 3056.
California Legislation: Same: Civ.
Code 1872, Sec. 1258; Deering's Code,
ib.; Kerr's Code, ib.
Costs of Proceedings.
Sec. 3195. The execution creditor must pay the costs of these pro-
ceedings in the first instance ; but if the appraised value exceeds the
homestead exemption the amount so paid must be added as costs on
execution, and collected accordingly.
Historical: Rev. St. 1887, Sec. 3057.
California Legislation: Similar: Civ.
Code 1872, Sec. 1259; Deering's Code,
ib.; Kerr's Code, ib.
Ch. 3.
OF HEAD OF FAMILY
1237
CHAPTER 3.
HOMESTEAD OF THE HEAD OF A FAMILY.
Section
3196. Value of homestead.
3197. Head of family denned.
3198. Mode of selection.
Section
3199. Contents of declaration.
3200. Declaration must be recorded.
3201. Declaration of homestead.
Value of Homestead.
Sec. 3196. Homesteads may be selected and claimed:
1. Of not exceeding five thousand dollars in value by any head
of a family; ^»
2. Of not exceeding one thousand dollars in value by any other
person.
Historical: Rev. St. 1887, Sec. 305 8.
See 1 Ter. Ses. (186 4) 575, Sec. 1.
California Legislation: Same: Civ.
Code 1872, Sec. 1260; Deering's Code,
ib.; Kerr's Code, ib.
Head of Family Defined.
Sec. 3197. The phrase "head of a family," as used in this title
includes within its meaning :
First. The husband or wife when the claimant is a married
person ;
Second. Every person who has resided on the premises with
him or her and under his or her care and maintenance either:
1. His or her minor child, or the minor child of his or her de-
ceased wife or husband ;
2. A minor brother or sister, or the minor child of a deceased
brother or sister ;
3. A father, mother, grandfather or grandmother;
4. The father, mother, grandfather or grandmother of a deceased
husband or wife ;
5. An unmarried sister, or any other of the relatives mentioned
in this section who have attained the age of majority, and are unable
to take care of or support themselves.
Historical: Rev. St. 1887, Sec. 3059.
See 1 Ter. Ses. (1864) 575, Sec. 4.
California Legislation : Same: Civ.
Code 1872, Sec. 1261; similar as
amended: Deering's Code, ib.; fur-
ther amended: Kerr's Code, ib.
Cited: Mellen v. McMannis (1904) 9
Ida. 418; 75 Pac. 98.
Mode of Selection.
Sec. 3198. In order to select a homestead, the husband or other
head of a family, or in case the husband has not made such selection,
the wife, must execute and acknowledge, in the same manner as a
conveyance of real property is acknowledged, a declaration of home-
stead, and file the same for record.
Historical: Rev. St. 1887, Sec. 30 70.
See 1 Ter. Ses. (1864) 575. Sec. 1.
California Legislation: Similar: Civ.
Code 1872. Sec. 1262; same as amend-
ed: Deering's Code, ib.; Kerr's Code,
lb.
Cited: Wright v. Westheimer (1891)
3 Ida. 232; 28 Pac. 430; Law v. Spence
(1897) 5 Ida. 244; 48 Pac. 282.
Selection by Widow: A widow hav-
ing- children dependent on her for sup-
port, may exercise her homestead
right after the death of her husband,
during the course of administration
of his estate. Coughanour v. Hoff-
man's estate (1887) 2 Ida. 290; 13
Pac. 231.
Insufficient Declaration: A declara-
tion of homestead which is not ac-
knowledged and certified as required
1238
HOMESTEADS
Tit. 7
by statute, does not create a home-
stead right in the property. Burbank
v. Kirby (1898) 6 Ida. 210; 55 Pac.
295.
Contents of Declaration.
Sec. 3199. The declaration of homestead must contain :
1. A statement showing that the person making it is the head
of a family; or, when the declaration is made by the wife, showing
that her husband has not made such declaration, and that she there-
fore makes the declaration for their joint benefit ;
2. A statement that the person making it is residing on the prem-
ises, and claims them as a homestead ;
3. A description of the premises ;
4. An estimate of their actual cash value.
Historical: Rev. St. 1887, Sec. 3071.
See 1 Ter. Ses. (1864) 575, Sec. 1.
California Legislation: Similar: Civ.
Code 1872, Sec. 1263; same as amend-
ed: Deering's Code, ib.; similar as fur-
ther amended: Kerr's Code, ib.
Cited: Wright v. Westheimer (1891)
3 Ida. 232; 28 Pac. 430.
Sufficiency of Declaration: It is req-
uisite that a declaration of homestead
should contain substantially the state-
ments set forth in Section 3071 of the
Revised Statutes, and where the dec-
laration is made by the wife, the hus-
band living, it should state that the
husband "has not made such declara-
tion, and that she therefore makes the
declaration for their joint benefit".
Wilcox v. Deere (1897) 5 Ida. 545; 51
Pac. 98.
A declaration of homestead which
describes certain town lots, and also
one hundred sixty acres of farm land,
alleging that "on a portion of which
the claimant with family is residing",
is void for indeflniteness. Wilcox v.
Deere (1897) 5 Ida. 545; 51 Pac. 98.
A declaration of hom.estead which
states that the declarant is married
and that he actually resides on the
premises therein described with his
family, which consists of a wife and
two children, is sufficient, although it
does not expressly state that the de-
clarant is the head of a family. Mel-
len v. McMannis (1904) 9 Ida. 418;
75 Pac. 98.
Declaration Must Be Recorded.
Sec. 3200. The declaration must be recorded in the office of the
recorder of the county in which the land is situated.
Historical: Rev. St. 1887, Sec. 3072.
See 1 Ter. Ses. (1864) 575, Sec. 1.
California Legislation: Same: Civ.
Code 1872, Sec. 1264; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Wright v. Westheimer (1891)
3 Ida. 232; 2 8 Pac. 430; Burbank v.
Kirby (1898) 6 Ida. 210; 55 Pac. 295.
Declaration of Homestead.
Sec. 3201. From and after the time the declaration is filed for
record, the premises therein described constitute a homestead. If
the selection was made by a married person from the community
property ; the land, on the death of either of the spouses, vests in the
survivor, subject to no other liability than such as exists or has been
created under the provisions of this title; in other cases, upon the
death of the person whose property was selected as a homestead, it
shall go to his heirs or devisees, subject to the power of the probate
court to assign the same for a limited period to the family of the de-
cedent ; but in no case shall it be held liable for the debts of the owner,
except as provided in this title.
Historical: Rev. St. 1887, Sec. 30 73.
See 1 Ter. Ses. (1864) 575, Sec. 1.
California Legislation: Similar: Civ.
Code 1872, Sec. 1265; same as amend-
ed except "superior" for "probate",
line 8: Deering's Code, ib.; Kerr's
Code, ib.
Cited: Wright v. Westheimer (1891)
3 Ida. 232; 28 Pac. 430; Burbank v.
Kirby (1898) 6 Ida. 210; 55 Pac. 295.
Selection by Widow: The probate
court may set apart a homestead out
of the property of the husband after
his death, on the application of the
widow. Coughanour v. Hoffman's Es-
tate (1887) 2 Ida. 290; 13 Pac. 231.
Ch. 4.
OF OTHER PERSONS
1239
CHAPTER 4.
HOMESTEAD OF OTHER PERSONS.
Section
3202. Mode of selection.
3203. Declaration of homestead.
Section
32 04. Declaration to" be recorded.
3205. Effect of filing- declaration.
Mode of Selection,.
Sec. 3202. Any person other than the head of a family, in the
selection of a homestead, must execute and acknowledge, in the same
manner as a conveyance of real property is acknowledged, a declara-
tion of homestead. >*
Historical: Rev. St. 1887, Sec. 3085.
California Legislation: Same except
"grant" for "conveyance", line 3: Civ.
Code 1872, Sec. 1266; Deering's Code,
ib.; Kerr's Code, ib.
Declaration of Homestead.
Sec. 3203. The declaration must contain everything required by
the second, third and fourth subdivisions of the section prescribing
the declaration of a head of a family.
Historical: Rev. St. 1887, Sec. 3086.
California Legislation: Same except
"of Section 1263" for words follow-
ing "subdivisions": Civ. Code 1872,
Sec. 1267; Deering's Code, ib.; Kerr's
Code, ib.
Declaration to Be Recorded.
Sec. 3204. The declaration must be recorded in the office of the
county recorder of the county in which the land is situated.
Historical: Rev. St. 18 87, Sec. 3087.
California Legislation: Same: Civ.
Code 1872, Sec. 1268; Deering's Code,
ib.; Kerr's Code, ib.
Effect of Filing Declaration.
Sec. 3205. From and after the time the declaration is filed for
record, the land described therein is a homestead.
Historical: Rev. St. 1887, Sec. 3088.
California Legislation: Same: Civ.
Code 1872, Sec. 1269: Deering's Code,
ib.; Kerr's Code, ib.
Cited: Law v. Spence (1897) 5 Ida.
244; 48 Pac. 282.
TITLE 8
MINES AND MINING
Chapter
1. Location of lode mining claims.
2. Placer claims.
Chapter
3. Rights of way and easements for
development of mines.
4. Mining tunnels.
Note: The mining law follows in a general way the Colorado system, but
not closely enough to admit of detailed comparison. See Mill's An. St. Colo.
Vol. 2, Sees. 3152 et seq.
For the election and duties of the State Mine Inspector, see Sees. 199-209.
Statements by operators for protection of laborers: Sees. 1446-1448. Day's
work in mines: Sees. 1463-1465. Mining partnerships: Sees. 3361-3372. Sur-
vey and examination of mining claims in litigation: Sees. 4542-4543. Con-
tractors' and laborers' liens on mining claims, buildings, etc.: Sees. 5110-
5124.
CHAPTER 1.
LOCATION OF LODE MINING CLAIMS.
Section
3206. Dimensions of lode claims.
3207. Location monument and notice.
3208. Shaft must be sunk.
3209. Notice must be recorded.
3210. Record of additional certifi-
cate.
3211. Affidavit of performance of la-
bor.
3212. Location of abandoned claim.
3213. Notice must claim only one lo-
cation.
3214. Security to surface owners: In-
junction.
Section
3215. Appointment of deputy record-
ers.
3216. Affidavit of locators.
3217. Manner of recording notices:
Pees.
3218. Transmission of notice to coun-
ty recorder.
3219. Same: Transmission to depu-
ties.
3220. Seal of deputies: Limitation on
powers.
Dimensions of Lode Claims.
Sec. 3206. Mining claims hereafter located upon veins or lodes of
quartz, or other rock in place bearing any of the metals or other val-
uable deposits mentioned in Section 2320 of the Revised Statutes of
the United States, may extend to three hundred feet on each side of
the middle of the vein or lode: Provided, That when the locators
have set stakes, posts or monuments described in the following section,
to indicate the line of the vein, ledge or lode, such stakes, posts or mon-
uments must be taken, for the purpose of such location, to mark cor-
rectly the line thereof, and such line must not afterwards be changed
so as to affect rights acquired, or interfere with any locations made,
subsequent thereto.
Historical: Rev. St. 1887, Sec. 3100.
(11 Ter. Ses. (1881) 262, Sec. 1);
amended Laws 1895, 25, Sec. 1; re-
enacted Laws 1899, 237, Sec. 1.
Cited: Ambergris Min. Co. v. Day
(1906) 12 Ida. 108; 85 Pac. 109.
Location Monument and Notice.
Sec. 3207. The locator, at the time of making the discovery of such
Ch. 1.
LODE CLAIMS
1241
vein or lode, must erect a monument at such place of discovery, upon
which he must place his name, the name of the claim, the date of dis-
covery and distance claimed along the vein each way from such mon-
ument. Within ten days from the date of discovery, he must mark
the boundaries of his claim by establishing at each corner thereof and
at any angle in the. side lines, a monument, marked with the name of
the claim and the corner or angle it represents; also at the time of
so marking his boundaries, he must post at his discovery monument
his notice of location in which must be stated : First, the name of the
locator; second, the name of the claim; third, the date of discovery;
fourth, the direction and distance claimed along the ledge from the
discovery ; fifth, the distance claimed on each side of the middle of the
ledge; sixth, the distance and direction from the discovery monu-
ment to such natural object or permanent monument, if any such
there be, as will fix and describe in the notice itself the location of
the claim, and seventh, the name of the mining district, county and
State. When from any cause, a monument cannot be safely planted
at the true corner or angle, it may be placed as near thereto as practi-
cable, and so marked as to indicate the place of such corner or angle.
Monuments may be made of any such material or form as will readily
give notice, and when of posts or trees, they must be hewn and marked
upon the side facing towards the discovery, and must be at least four
inches square or in diameter. Monuments must be at least four feet
high above the ground, and trees must be so hewn as to readily attract
attention. At the time the locator so marks the boundaries of his
claim, he may do so in any direction that will not interfere with rights
or claims which existed prior to his discovery.
Historical: Rev. St. 188 7, Sec. 3101.
(See 11 Ter. Ses. (1881) 262, Sees. 2
and 3); amended Laws 1895, 25, Sec.
2; re-enacted Laws 1899. 237; Sec. 2;
amended Laws 1899, 440, Sec. 1.
Necessity of Discovery: A vein or
lode must be discovered before a valid
location can be made thereon; one
cannot locate a quartz claim on por-
phyry, granite, limestone or quartz-
ite unless he has previously discov-
ered a vein or lode. (Concur, op.) Am-
bergris Min. Co. v. Day (1906) 12 Ida.
108; 85 Pac. 109.
Location by Agent: An agent for
the locator may do the things re-
quired by this section in locating a
claim. Dunlap v. Pattison (1895) 4
Ida. 473; 42 Pac. 504.
Sufficiency of Notice: The location
notice must describe the claim by ref-
erence to some natural object or per-
manent monument which will identify
the claim and will furnish a reasona-
ble certainty that the locus of the
claim has not been, and cannot well
be, changed; the reference must be
such as will enable a skilled engineer
to identify the claim without refer-
ence to contiguous claims, the loca-
tion of which are uncertain, and the
courses and distances from the perma-
nent monument to the discovery
stakes or corner stakes, must be stated
with reasonable accuracy. Brown v.
Levan (1896) 4 Ida. 794; 46 Pac. 661.
A location which is tied to a natu-
ral object or permanent monument,
described as the mouth of Big Can-
yon, and which fixes the discovery
stake at 600 feet from such monu-
ment, without indicating the direction
from the point of discovery, is void.
Clearwater Short Line Ry. v. San
Garde (1900) 7 Ida. 106; 61 Pac. 137.
A located mining claim is a natural
object or landmark, or fixed object
which may be referred to in the loca-
tion notice. Morrison v. Regan (1902)
8 Ida. 291; 67 Pac. 955.
Where a location certificate contains
a reference to a land mark, it should
not be declared insufficient upon the
mere inspection of the certificate and
in the absence of evidence, unless it
clearly fails to identify the claim.
Morrison v. Regan (1902) 8 Ida. 291;
67 Pac. 955.
A location notice describing the
claim as "Commencing at this stake
and notice which is situated about 30 0
feet in a northwesterly direction from
the Minnesota mine; that it is an ex-
tension of the Red Jacket mine and
running thence along the vein or lode
in an easterly direction to a similar
stake and notice," is sufficient. lb.
1242
MINES AND MINING
Tit. 8.
Shaft Must Be Sunk.
Sec. 3208. Within sixty days after such location, the locator or his
assigns must sink a shaft upon the lode to the depth of at least ten feet
from the lowest part of the rim of such shaft to the surface, and of
not less than sixteen square feet area. Any excavation which shall
cut such vein ten feet from the lowest part of the rim of such shaft
and which shall measure one hundred and sixty cubic feet in extent
shall be considered a compliance with this provision. Any located
claim upon which work has been done in compliance with the above
requirements is not, unless abandoned, subject to relocation for a
period of ninety days from and after the date of location.
Historical: Laws 1899, 237, Sec. 3;
re-enacting Laws 1895, 25, Sec. 3.
Time Essential: The work required
to be done must be performed within
the time limited as a condition prec-
edent to the vesting of the title; a
neglect in this respect cannot be
cured by the performance of the
work after the time limited, but be-
fore the institution of an adverse
claim. Kramer v. Settle (1873) 1
Ida. 485.
Notice Must Be Recorded.
Sec. 3209. Within ninety days after the location of the claim the lo-
cator or his assigns must file for record in the office of the county
recorder of the county, or of the deputy recorder of the mining dis-
trict in which the claim is situated, a substantial copy of his notice of
location.
Historical: Laws 1899, 237, Sec. 4;
re-enacting Laws 1895, 25, Sec. 4.
Record of Additional Certificate.
Sec. 3210. If at any time the locator of any mining claim heretofore
or hereafter located, or his assigns, shall apprehend that his original
certificate was defective, erroneous, or that the requirements of the
law had not been complied with before filing, or shall be desirous of
changing the surface boundaries, or of taking any part of an over-
lapping claim which has been abandoned, or in case the original cer-
tificate was made prior to the passage of this law, and he shall be de-
sirous of securing the benefits of this chapter, such locator or his
assigns may file an additional certificate subject to the conditions of
this chapter, and to contain all that this chapter requires an original
certificate to contain : Provided, That such amended location does not
interfere with the existing rights of others at the time when such
amendment is made.
Historical: Laws 1899, 237, Sec. 5;
re-enacting Laws 1895, 25, Sec. 5.
Amended Locations: An amended
location may be made by any one
having authority to make the same,
and such authority need not be in
writing. Morrison v. Regan (1902)
8 Ida. 291; 67 Pac. 955.
The proviso of this section that
amended locations do not interfere
with the existing rights of others at
the time of amendment, only applies
to changes of boundaries or to cases
where part of ar overlapping claim
which has been abandoned is taken
in, and does not apply to amended
locations by which the surface
boundaries are not changed, or where
no part of an overlapping claim is
taken in. Morrison v. Regan (19 02)
8 Ida. 291; 67 Pac. 955.
An amended certificate may cure
a defective or erroneous original cer-
tificate and relates back to the date
of the original certificate, unless such
original is absolutely void, or where
the rights of others have intervened
between the date of the original and
amended locations. lb.
Ch. 1. LODE CLAIMS 1243
Affidavit of Performance of Labor.
Sec. 3211. Within sixty days after any time set or period allowed
for the performance of labor, or making improvements upon any lode
or placer claim, the person in whose behalf such work or improve-
ment is performed, or some person for him, must make and record
an affidavit in substance as follows:
State of Idaho, County of , ss.
Before me the subscribed, personally appeared .. ,
who being first duly sworn says that at least dollars worth
of work for improvements were performed or made upon
claim, situate in mining district, county of > , State
of Idaho : That such expenditure was made by, for, or at the expense
of , owner of said claim, for the purpose of holding
said claim ; all stakes, monuments or trees marking boundaries of said
claim are in proper place and positions.
Subscribed and sworn to before me this day of 19
The fee for administering the oath and recording the foregoing
affidavit, when taken before the county recorder or deputy mining
recorder, shall be fifty cents ; the fee for recording the same when the
oath is taken before any other officer authorized to administer oaths
shall be fifty cents.
Such affidavit, or a certified copy thereof in case the original is
lost, shall be prima facie evidence of the performance of such labor.
The failure to file such affidavit shall be considered prima facie evi-
dence that such labor has not been done.
Historical: Rev. St. 1887, Sec. 3101;
amended Laws 1899, 237, Sec. 6;
amended Laws 1899, 440, Sec. 2.
Location of Abandoned Claim.
Sec. 3212. The location of abandoned claims shall be done in the
same manner as if the location were of a new claim ; but the locator
may, instead of sinking a new discovery shaft, sink the original dis-
covery shaft ten feet deeper than it was at the time of his location, or
he may drive the open cut, or tunnel ten feet further along the course
of the lead, lode or vein, and must erect new posts or monuments.
Historical: Laws 1899, 237, Sec. 7;
re-enacting Laws 1895, 25, Sec. 7.
Notice Must Claim Only One Location.
Sec. 3213. No location notice shall claim more than one location,
whether the location is made by one or several locators, and if it pur-
port to claim more than one location it is absolutely void.
Historical: Laws 1899, 2 3 7, Sec. 8;
re-enacting Laws 1895, 25, Sec. 8.
Security to Surface Owners: Injunction.
Sec. 3214. When the right to mine is in any case separate from the
ownership or right of occupancy of the surface ground, the owners
or rightful occupants of the surface ground may demand satisfactory
security from the miners, and it be refused or not given, may en-
join such miners from working such ground until such security is
1244
MINES AND MINING
Tit. 8
given. The court granting the writ of injunction shall fix the amount
and nature of the security.
Historical: Laws 1899, 237, Sec. 10;
re-enacting- Laws 1895, 25, Sec. 10.
Appointment of Deputy Recorders.
Sec. 3215. For the convenience of prospectors and locators, the
county recorders of the several counties must appoint a deputy at
any place where they may deem it necessary, and at all places more
than twenty miles distant from an existing office, whenever ten or more
mining locators interested petition for the appointment of a deputy.
Upon failure of any recorder to appoint a deputy for ten days after
the petition in writing has been presented to him, the resident miners
in such district may appoint, temporarily, one of their number to act
as recorder for the district, whose record shall be as valid as if made
by the deputy, and must be entered by the recorder as hereinafter
required : Provided, That whenever at any time afterwards, the re-
corder has appointed a deputy for such district or place, the author-
ity of the person elected by the resident miners ceases.
Historical: Rev. St. 188 7, Sec. 3103, point another deputy to act in his
(see 11 Ter. Ses. (1881) 262, Sec. 4); place, and an affidavit sworn to be-
amended Laws 1895, 25, Sec. 9; re- fore the deputy so appointed by him
enacted Laws 1899, 237, Sec. 9. would be void. Van Buren v. McKin-
Appointment of Sub-Deputy: A le>' (1901) 8 Ida. 93; 6 6 Pac. 9 3 6.
deputy recorder has no power to ap-
Affidavit of Locators.
Sec. 3216. At or before the time of presenting a location notice for
record, whether it be for a quartz or placer claim, one of the locators
named in the same must make and subscribe an affidavit, in writing
on or attached to the notice, substantially in the following form, to-,
wit:
State of Idaho, County of , ss:
I, , do solemnly swear that I am a citizen of the United
States of America (or have declared my intentions to become such),
and that I am acquainted with the mining ground described in this
notice of location, and herewith called the ledge, lode or
claim ; that the ground and claim therein described or any part thereof
has not, to the best of my knowledge and belief, been located accord-
ing to the laws of the United States and of this State, or if so located,
that the same has been abandoned or forfeited by reason of the failure
of such former locators to comply in respect thereto with the re-
quirements of said laws, and (in the case of quartz claims) that I
have opened new ground to the extent or depth of ten feet as required
by the laws of Idaho.
Signature
Subscribed and sworn to before me this day of A. D. 19
Signature
Historical: Rev. St. 1887, Sec. 3104,
(see 11 Ter. Ses. (1881) 262, Sec. 5);
amended Laws 1895, 25, Sec. 13; re-
enacted Laws 1899, 237, Sec. 13.
Validity of Section: This section in
requiring an affidavit to a location
notice prescribes a reasonable regu-
lation and is not in conflict with the
United States Revised Statutes, Sec.
2322. Van Buren v. McKinley (1901)
8 Ida. 93; 66 Pac. 936.
Necessity of Affidavit: The affidavit
as required by this section is neces-
sarv to a valid location. lb.
Ch. 1.
LODE CLAIMS
1245
Who May Make Affidavit: An agent
or attorney in fact may locate a min-
ing claim for his principal and may
make the affidavit required by this
section. Dunlap v. Pattison (1895) 4
Ida. 473; 42 Pac. 504.
Manner of Recording Notices : Fees.
Sec. 3217. The location notice herein required to be recorded must
be recorded by the deputy appointed for the district, or the person
appointed for that purpose as above provided (when the legal fee
therefor is tendered) in a book kept for that purpose. Said book must
be indexed, with the names of all the locators arranged in alphabet-
ical order, according to the family or surname of each. The fee to be
tendered for making such record, administering the oath £o the loca-
tor and certifying the same, for indexing the names appearing on
the notice, and to include recording the notice by the recorder as here-
inafter required, and the annexing by said recorder, is two dollars,
which fee must be equally divided between the recorder and the
deputy or the person acting under an election as hereinbefore pro-
vided, and no other additional sum of money must be demanded or
received by either of them, for any services connected with the re-
cording of any location notice made pursuant to the requirements of
this chapter.
Historical: Rev. St. 1887, Sec. 3105,
(see 11 Ter. Ses. (1881) 262, Sec. 6);
amended Laws 1895, 25, Sec. 14; re-
enacted Laws 1899. 237, Sec. 14.
Transmission of Notices to County Recorder.
Sec. 3218. The deputy recorder of mining claims of each district,
or the person elected as hereinbefore provided to make the record in
case of the failure of the recorder to appoint a deputy, must, at least
once in each month, transmit to the recorder at the county seat, all
the notices of location filed with him for record and not previously
transmitted, which must at once be recorded by said recorder, in a
book to be kept in his office, to be known as the "Book of Mining
Claims." The names of all persons appearing in every notice of loca-
tion must be indexed by the recorder, said names being arranged in
said index in alphabetical order, according to the first letter of the sur-
name of said locators.
Historical: Rev. St. 1887, Sec. 3106,
11 Ter. Ses. (1881) 262, Sec. 7.
Same: Transmission to Deputies.
Sec. 3219. It shall be the duty of the county recorder of the sev-
eral counties of this State, within fourteen days after receiving them,
to transmit to the deputy mining recorder of the district wherein
the claims located are situated, all location notices, both quartz and
placer, which shall not have been already recorded in the office of
the deputy mining recorder. It shall be the duty of such deputy min-
ing recorder to record in his records all such notices received by him.
and he shall receive as compensation therefor from the recorder send-
ing them, one-half the fee authorized by law to be charged for the
recording of mining claims. After recording such notices the deputy
mining recorder shall return the same to the county recorder.
Historical: Laws 1903, 290, Sec. 1.
"Recorder" inserted for "clerk", line
8, to correctly express the sense.
1246
MINES AND MINING
Tit. 8
Seal of Deputies: Limitation on Powers.
Sec. 3220. The deputy recorders provided for in this chapter, are
not, by virtue of the provisions hereof, authorized to perform any
other than the special duties herein specified. They must keep an offi-
cial seal, and the records in their custody are public records, but the
seal of a deputy recorder must not be attached to any paper' except
for the purpose of authenticating certificates attached to transcripts
of the records in his custody as deputy recorder.
Historical: Rev. St. 1887, Sec. 3107;
11 Ter. Ses. (188D 262, Sec. 8.
CHAPTER 2.
PLACER CLAIMS.
Section
3221. Location of placer claim.
Section
3222. Monuments: Notice: Excava-
tion: Record of notice.
Location of Placer Claims.
Sec. 3221. Placer claims, as mentioned in Section 2329 of the Re-
vised Statutes of the United States, may be located for the purpose
of mining deposits and precious stones after the discovery of such
deposits.
Historical: Laws 1899, 237, Sec. 11;
re-enacting Laws 1895, 25, Sec. 11.
Monuments : Notice : Excavation : Record of Notice.
Sec. 3222. The locator of any placer mining claim located for the
purpose of mining placer deposits or precious stones, must, at the time
of making the location, place a substantial post or monument, as is
required in the location of quartz claims, at each corner of the loca-
tion, and must also post on one of the same a notice of location con-
taining the date of the location, the name of the locator, the name and
dimensions of the claim, the mining district (if any) and county in
which the same is situated ; and must also give the distance and direc-
tion from said post or monument to such natural object or permanent
monument, if any such there be, as will fix and describe in the notice
itself the location of the claim. Within fifteen days after making the lo-
cation, the locator must make an excavation upon the claim of not less
than one hundred cubic feet, for the purpose of prospecting the same.
Within thirty days after the location, the locator must file for record
in the office of the recorder of the county, or the deputy recorder of
the mining district in which the claim is situated, a substantial copy
of his copy of notice of location, to which must be attached an affi-
davit such as is required in case of quartz claims.
Historical: Laws 1895, 25, Sec. 12;
amended Laws 1897, 13. Sec. 1; re-
enacted Laws 1899, 237, Sec. 12.
Ch. 3.
WAYS AND EASEMENTS
1247
CHAPTER 3.
RIGHTS OF WAY AND EASEMENTS FOR THE DEVELOPMENT OF
MINES.
Section
32 23. Right of way for mining pur-
poses.
322 4. Same: For railroads, ditches
and tunnels.
32 2 5. Action to condemn right of
way.
3226. Issuance and service of sum-
mons.
3227. Appointment of commissioner.
322S. Oath, view and report of com-
missioners.
Secti
^229
323 0.
3231.
3232.
3233.
3234.
S235.
on
Setting aside report.
Rights upon payment of dam-
ages.
Appeal from commissioners'
award.
Trial on appeal.
Effect of appeal^ Bond and
deposit of damages.
Costs of appeal.
Costs of proceedings.
Right of Way for Mining Purposes.
Sec. 3223. The owner, locator, or occupant of a mining claim,
whether patented under the laws of the United States or held by loca-
tion or possession, may have and acquire a right of way for ingress
and egress, when necessary in working such mining claim, over and
across the lands or mining claims of others, whether patented or
otherwise.
Historical: Rev. St. 18 87, Sec. 3130.
See 9 Ter. Ses. (1877) 70, Sec. 1.
Cited: Baillie v.
138 Fed. Rep. 177.
Larson (1905)
Same: For Railroads, Ditches and Tunnels.
Sec. 3424. When any mine or mining claim is so situated, that for
the more convenient enjoyment of the same a road, railroad or tram-
way therefrom, or a ditch or canal to convey water thereto, or a
ditch, flume, cut or tunnel to drain or convey the waters or tailings
therefrom, or a tunnel or shaft, may be necessary for the better work-
ing thereof, which road, railroad, tramway, ditch, canal, flume, cut,
shaft or tunnel, may require the use or occupancy of lands or mining
grounds, owned, occupied or possessed by others than the person or
persons or body corporate, requiring an easement for any of the pur-
poses described, the owner, claimant or occupant of the mine or min-
ing claim first above mentioned, is entitled to a right of way, entry
and possession for all the uses and privileges for such road, railroad,
tramway, ditch, canal, flume, cut, shaft or tunnel, in, upon, through
and across such other lands or mining claims, upon compliance with
the provisions of this chapter.
Historical: Rev. St. 1887, Sec. 3131.
11 Ter. Ses. (1881) 266, Sec. 1.
Cited: Baillie v.
138 Fed. Rep. 177.
Larson (1905)
Action to Condemn Right of Way.
Sec. 3225. When the owner, claimant, or occupant of any mine or
mining claim desires to work the same, and it is necessary, to enable
him to do so successfully and conveniently, that he have a right of
way for any of the purposes mentioned in the foregoing sections, if
such right of way cannot be acquired by agreement with the claimant
or owner of the lands or claims over, under, through, across or upon
which he seeks to acquire such right of way, he may commence an
action in the District Court in and for the county in which such right
1248
MINES AND MINING
Tit. 8
of way, or some part thereof, is situated, by filing a verified complaint
containing- a particular description of the character and extent of the
right sought, a description of the mine or claim of the plaintiff, and of
the mine or claim and lands to be affected by such right of way or
privilege, with the name of the occupant or owner thereof. He may
also set forth any tender of compensation that he may have made,
and demand the relief sought.
Historical: Rev. St. 18 87, Sec. 3132,
(see 9 Ter. Ses. (1877^ 70, Sec. 3);
amended Laws 1899, 350, Sec. 1.
Cited: Baillie v
138 Fed. Rep. 177.
Larson (1905)
Issuance and Service of Summons.
Sec. 3226. Upon the filing of such complaint the clerk must issue
a summons as provided in other civil actions, and the same must be
served in the manner prescribed by law for service in ordinary actions.
Cited: Baillie v. Larson (1905)
138 Fed. Rep. 177.
Historical: Rev. St. 1887, Sec. 3133,
(see 9 Ter. Ses. (1877) 70, Sec. 4);
amended Laws 1899, 350, Sec. 2.
Cross Reference: Form of sum-
mons: Sec. 4140; service: Sec. 4144.
Appointment of Commissioners.
Sec. 3227. At any time after the service of the summons the plain-
tiff may upon ten days notice to the defendant, apply to the District
Court or the Judge thereof for the appointment of commissioners to
assess the damages resulting from the grant of such right of way. If
upon the hearing of such motion, and the affidavits and proofs offered
by the respective parties, the judge shall be of the opinion that the
plaintiff has made a prima facie case entitling him to the relief de-
manded in the complaint, or any part thereof, he shall appoint three
commissioners, who must be disinterested persons, residents of the
county, to assess the damages resulting to the claims, mines, or lands
of the defendant. But if such commissioners are not applied for and
appointed, or their award is not approved by the judge or court, or
if an appeal is taken from their award as hereinafter provided, the
action shall be tried and determined by the court, and the provisions
of the Code of Civil Procedure applicable thereto shall govern the pro-
ceedings therein as in other civil actions. Either party shall be enti-
tled to a jury trial and may move for a new trial and appeal as in
other cases.
Historical: Rev. St. 1887, Sec. 3134,
(see 9 Ter. Ses. (1877) 70. Sec. 5);
amended Laws 1899, 350, Sec. 3.
Cross Reference: Condemnation
proceedings in District Court: Sees.
5210-5229. New trials: Sees. 4438-
4445. Appeals: Sees. 4807-4826.
Cited: Baillie v. Larson (1905)
138 Fed. Rep. 177.
Oath, View and Report of Commissioners.
Sec. 3228. The commissioners so appointed must be sworn to
faithfully and impartially discharge their duties, and must proceed
without unreasonable delay to examine the premises and assess the
damages resulting from such right or privilege prayed for, and report
the amount of the same to the judge appointing them; and if such
right of way affects the property of more than one person or company,
such report must contain an assessment of damages to each company
or person.
Ch. 3.
WAYS AND EASEMENTS
1249
Historical: Rev. St. 188 7, Sec. 3135,
9 Ter. Ses. (1877) 70, Sec. 6.
Cited: Baillie v.
138 Fed. Rep. 177.
Larson (1905)
Setting Aside Report.
Sec. 3229. For good .cause shown, the judge may set aside the re-
port of such commissioners and appoint three other commissioners
whose duty shall be the same as above mentioned.
Historical: Rev. St. 1887, Sec. 3136.
9 Ter. Ses. (1877) 70, Sec. 7.
Cited: Baillie v
138 Fed. Rep. 177.
Larson (1905)
Eights Upon Payment of Damages. v
Sec. 3230. Upon the payment of the sum assessed as damages as
aforesaid, to the persons to whom it is awarded, or a tender thereof
to them, then the person petitioning as aforesaid, is entitled to the
right of way prayed for in his petition, and may immediately proceed
to occupy the same and erect thereon such works and structures, and
make therein such excavations, as may be necessary to the use and
enjoyment of the right of way so awarded.
Historical: Rev. St. 1887, Sec. 313 7.
9 Ter. Ses. (1877) 70, Sec. 8.
Cited: Baillie v.
138 Fed. Rep. 177.
Larson (1905)
Appeal From Commissioners' Award.
Sec. 3231. Appeals from the assessment of damages made by the
commissioners, may be made and prosecuted in the proper District
Court by any party interested, at any time within ten days after the
filing of the report of the commissioners. A written notice of such
appeal must be served upon the appellee in the same manner as sum-
mons is served in civil actions. The appellant must file with the
clerk of the court to which the appeal is taken, a bond with sureties
to be approved by the clerk in the amount of the assessment appealed
from in favor of the appellee, conditioned that the appellant will pay
any costs that may be awarded to the appellee, and abide any judg-
ment that may be rendered in the cause.
Historical: Rev. St. 1887, Sec. 3138.
9 Ter. Ses. (1877) 70, Sec. 9.
Cross Reference: Service of sum-
mons: Sec. 4144.
Cited: Baillie v. Larson (1905)
138 Fed. Rep. 177.
Trial On Appeal.
Sec. 3232. An appeal brings before the District Court the necessity
of the right of way or easement for the successful and convenient
working of the mining claim and the amount of damages ; and upon
such appeal the case must be tried anew, and either party is entitled
to a jury.
Historical: Rev. St. 18 8 7, Sec. 3139.
See 9 Ter. Ses. (1877) 70, Sec. 10.
Cited: Baillie v.
138 Fed. Rep. 177.
Larson (1905)
Effect of Appeal : Bond and Deposit of Damages.
Sec. 3233. The prosecution of an appeal from the award of the
commissioners or from the judgment of the District Court does not
hinder, delay or prevent the plaintiff from exercising all the rights
and privileges granted by the award or judgment, if he deposit with
the clerk of the District Court the full amount of the damages award-
ed or adjudged the defendant, and execute and deliver to the clerk
1250
MINES AND MINING
Tit. 8
a bond with sufficient sureties to be approved by the clerk,, in an
amount to be fixed by the Judge of the District Court, conditioned to
pay to the defendant any additional amount, over and above the
amount so deposited that the defendant may recover, and all costs to
which he may be entitled under the provisions of this chapter. At
any time after such deposit and before the final determination of the
action the defendant may, upon demand, receive from the clerk the
amount so deposited, but his acceptance of the same, or any part
thereof, shall bar any further prosecution of the appeal, and shall be
deemed an acquiescence and consent to the award and judgment, and
the defendant shall not be entitled to any costs subsequent to the
judgment.
Historical: Rev. St. 188 7, Sec. 3140
(see 9 Ter. Ses. (1877) 70, Sec. 11);
amended Laws 1899, 350, Sec. 4.
Cited: Baillie v
138 Fed. Rep. 177.
Larson (1905)
Costs of Appeal.
Sec. 3234. If the defendant recover judgment against the necessity
of the easement, or for fifty dollars more damages than the plaintiff
has tendered him as provided in the next section, or for fifty dollars
more damages than the commissioners or judgment of the District
Court awarded him, he shall recover the costs of the appeal, other-
wise he must pay all such costs.
Historical: Rev. St. 1887, Sec. 3141
(see 9 Ter. Ses. (1877) 70, Sec. 12);
amended Laws 1899, 350, Sec. 5.
Cited: Baillie v.
138 Fed. Rep. 177.
Larson (1905)
Costs of Proceedings.
Sec. 3235. The costs and expenses of proceedings under the pro-
visions of this chapter, except as herein otherwise provided, must be
paid by the party making the application : Provided, That if the ap-
plicant before the commencement of such proceedings, has tendered
to the parties owning or occupying the lands or mining claims, a sum
equal to or more than the amount of damages recovered, all of the
costs and expenses must be paid by the party or parties owning the
land or claims affected by such right of way, and who appeared and
resisted the claim of the applicants thereto.
Historical: Rev. St. 18 8 7, Sec. 3142.
9 Ter. Ses. (1877) 70, Sec. 13.
Cited: Baillie v.
138 Fed. Rep. 177.
Larson (1905)
CHAPTER 4.
MINING TUNNELS.
Section
3236. Right to cross located claims.
3237. Owner of intersected ciaim
may inspect tunnel.
3238. Title to ore taken from inter-
sected claim.
Section
3239. Burden of proof as to dis-
covered vein.
Right to Cross Located Claim.
Sec. 3236. Any person or company who has or who may hereafter
have a tunnel or cross-cut, the mouth of which is located upon his
own ground or upon ground in his lawful occupation, shall have the
Ch. 4.
MINING TUNNELS
1251
right to drive and continue the same through. and across any located
or patented claim in front of the mouth of the tunnel, but not to fol-
low or drive upon any vein belonging to the owner of such claim.
Historical: Laws 1899, 442, 'Sec. 1.
Comparative Legislation: See Colo.
Mill's An. Stat. Vol. 3, Sec. 3141a.
Constitutionality and Validity:
This act, in granting- to owners of
ground having a tunnel located
thereon, the right to run the same
through the claims of others on pay-
ment of actual damages, is not sub-
ject to the objection of depriving any
person of property without due pro-
cess of law. Baillie v. Larson (1905)
138 Fed. Rep. 177.
The enactment of this law is au-
thorized by United States Revised
Statutes, Sec. 2338, (U. S. Comp. St.
1901, p. 1436), providing that, as a
condition of sale of mineral lands,
the local legislature of any State may
prescribe rules for wooing mines,
involving easements, drainage and
other necessary means to their com-
plete development. lb.
Owner of Intersected Claim May Inspect Tunnel.
Sec. 3237. Each tunnel or cross-cut may be driven and worked for
the purpose of drainage and for the purpose of reaching and working
mining ground of the tunnel owner beyond the intersected claim.
The owner or owners of any vein or any claim or claims so intersected,
or his duly authorized agent, shall have the right to enter such tunnel
upon application to the owner or owners or person in charge of said
tunnel, without resorting to any process of law, for the purpose of
making a survey and inspecting such vein or veins as may be crossed
within the boundary lines of such intersected claim, and if the owner
or owners of such tunnel shall, by bulk-heading, damming back, or
in any manner, prevent the inspection or survey herein provided for,
or if such owner or owners shall in any manner prevent the natural
drainage of water from such intersected claim or claims without the
consent of the owner or owners thereof, it shall work a forfeiture of
all rights granted under the preceding section.
Historical: Laws 1899, 4 42, Sec. 2.
Comparative Legislation: See Colo.
Mill's An. Stat. Vol. 3, Sec. 3141b.
Title to Ore Taken From Intersected Claim.
Sec. 3238. If any ore, the property of the owner of the claim inter-
sected or crossed, be extracted in driving such tunnel, it shall be the
property of the owner of the vein from which it was taken and the
owner of the tunnel shall be liable for all actual damages or injury
done to the owner of the claim crossed by his tunnel.
Historical: Laws 18 99, 44 2, Sec. 3.
Comparative Legislation: See Colo.
Mill's An. Stat. Vol. 3, Sec. 3141c.
Burden of Proof as to Discovered Vein.
Sec. 3239. In all actions between the tunnel owner and others in-
volving the right to any vein discovered in such tunnel, the burden of
proving that the vein so discovered is not the property of the adverse
claimant in such action shall be on the tunnel owner.
Historical: Laws 18 99, 442, Sec. 4.
Comparative Legislation: See Colo.
Mill's An. Stat. Vol. 3, Sec. 3141d.
TITLE 9
WATER RIGHTS AND IRRIGATION
Chapter
1. General provisions.
2. Appropriation of water.
3. Distribution of water among- ap-
propriators.
4. Distribution to consumers.
Chapter
5. Fixing water rates.
6. Rights of way.
7. Maintenance and
ditches.
repair
of
Note: Two acts passed in 1881 were the basis of the irrigation law
of the State for a number of years. The act of Feb. 10, 1881, (Laws 1881,
267) regulated the appropriation of water, requiring the posting of notices
at the point of diversion and the recording of the same as in the case of
mining claims, and prescribing the manner of procuring rights
of way by proceedings before the county commissioners. The
act of Feb. 7 (Laws 1881, 273) regulated the distri-
bution of water through water masters whose election and duties were
therein provided for. The provisions of these two acts were substantially
perpetuated in the Rev. St. 1887, Civ. Code, Title 9 (Sees. 3155-3205). A
new act covering the appropriation of water and providing for fixing water
rates by the District Court was enacted in 1895 (Laws 1895, 174). This
act was in part re-enacted and in part repealed by the act of Feb. 25,
1899 (Laws 1899, 380) which added several new provisions to the law and
gave to the county commissioners jurisdiction to fix water rates. The
appropriation provisions of the 1899 law were repealed by Laws 1903, 223,
which, for the first time, departed from the old system of posting and re-
cording notices of appropriation, placing the matter in the hands of the
State Engineer. The act of 1903, with such sections of the 1899 and
earlier lavvs as are still in forCvi, comprise the subject matter of this title.
The present Idaho appropriation law is based on the statutes of Wyom-
ing and Colorado. The first twelve sections follow the "Wyoming System".
See Rev. St. Wyo. 1899, Sees. 917 et seq. Under the "Colorado System," for
the purpose of adjudicating the priority of rights to the use of water, the
courts have original jurisdiction. Mill's An. Stat. Colo. Vol. 1, page 149, Sec.
2 3 99. In this respect the Idaho law follows that of Colorado. Under the
Wyoming System such jurisdiction is vested in a board of control. Rev.
Stat. Wyo. 1899, Sees. 857 et seq.
Other provisions bearing on the irrigation laws may be found as fol-
lows. Appointment, qualifications, and general duties of the State Engi-
neer. Sees. 149-160. Carey Act lands: Sees. 1613-1642. Irrigation dis-
tricts: Sees. 2372-2443. Water and canal corporations and water users' as-
sociations: Sees. 2838-2844. Penal provisions of the irrigation law: Sees.
7144-7149.
CHAPTER 1.
GENERAL PROVISIONS.
Section
3240. Nature of property in water.
3241. Measurement of water.
3242. Right acquired by appropria-
tion.
3243. Appropriation must be for ben-
eficial purpose.
3244. Use of natural channels.
3245. Priority.
3246. Same: Waste, seepage and
spring waters.
Section
3247. Change in point of diversion.
3248. Change in course of ditch pro-
hibited when.
3249. Right of ditch owners to di-
vert water.
3250. Domestic purposes defined.
3251. Completion defined.
Ch. 1.
GENERAL PROVISIONS
1253
Nature of Property in Water.
Sec. 3240. Water being essential to the industrial prosperity of the
State, and all agricultural development throughout the greater por-
tion of the State depending upon its just apportionment to, and eco-
nomical use by, those making a beneficial application of the same,
its control shall be in the State, which, in providing for its use, shall
equally guard all the various interests involved. All the waters of
the State, when flowing in their natural channels, including the
waters of all natural springs and lakes within the boundaries of the
State are declared to be the property of the State, whose duty it shall
be to supervise their appropriation and allotment to those diverting
the same therefrom for any beneficial purpose, and the right to the
use of any of the waters of the State for useful or beneficial pur-
poses is recognized and confirmed; and the right to the use of any
of the public waters which have heretofore been or may hereafter be
allotted or beneficially applied, shall not be considered as being a
property right in itself, but such right shall become the complement
of, or one of the appurtenances of, the land or other thing to which,
through necessity, said water is being applied; and the right to
continue the use of any such water shall never be denied or pre-
vented from any other cause than the failure on the part of the
user thereof to pay the ordinary charges or assessments which may
be made to cover the expenses for the delivery of such water.
Historical: Laws 1901, 191, Sec. 9b.
Cross Reference: Use of water a
public use: Const. Art. 15, Sec. 1.
Rights to Ditches: Possessory
rights to ditches and to the use of
water may each have an existence in-
dependent of the other. A ditch may
be conveyed, reserving the water
right, or the water may be conveyed,
reserving the ditch. Ada Co. Farm-
ers' Irr. Co. v. Farmers' Canal Co.
(1898) 5 Ida. 793; 51 Pac. 990.
Xature of Water Right: The
clause of this section which provides
that the right of the water user shall
not be considered as being a property
right in itself but shall become a com-
plement, or one of the appurtenances,
of the land on which the water is ap-
plied, does not deprive or divest the
right to the use of water of any of
the qualities of elements of property
it otherwise might have. (Concur, op.
Sullivan, C. J., dissents.) Hard v.
Boise City Irr. etc. Co. (1904) 9 Ida.
589; 76 Pac. 331.
Measurement of Water.
Sec. 3241. A cubic foot of water per second of time shall be the
legal standard for the measurement of water in this State, and it
shall be the duty of the State Engineer to devise a simple, uniform
system for the measurement and distribution of water.
Historical
1, 21.
Laws 1899, 380, Sees.
Right Acquired by Appropriation.
Sec. 3242. The right to the use of the waters of rivers, streams,
lakes, springs, and of subterranean waters, may be acquired by ap-
propriation.
Historical: Laws 1899, 38 0, Sec. 2.
See Rev. St. 1887, Sec. 3155.
California Legislation: Similar: Civ.
Code 1872, Sec. 1410; Deering's Code,
ib.; Kerr's Code, ib.
Appropriation Must Be for Beneficial Purpose.
Sec. 3243. The appropriation must be for some useful or bene-
1254
IRRIGATION
Tit. 9
ficial purpose, and when the appropriator or his successor in interest
ceases to use it for such purpose, the right ceases.
Historical: Laws 18 99, 3 80, Sec.
3. Rev. St. 1887, Sec. 3156.
California Legislation: Same except
"such a purpose" for "such purpose":
Civ. Code 1872, Sec. 1411; Deering's
Code, ib.; Kerr's Code, ib.
Application to Use: Where persons
appropriated water sufficient to irri-
gate 480 acres of land in 1872, and
from that year until 1886 used the
water so appropriated in the irriga-
tion of only 200 acres of the land,
when they put into cultivation 150
acres more, their right to all the
water appropriated, so far as the same
was necessary to irrigate the entire
480 acres, was thereby preserved. Hall
v. Blackman (1902) 8 Ida. 272; 68
Pac. 19.
Use of Natural Channels.
Sec. 3244. The water appropriated may be turned into the chan-
nel of another stream and mingled with its water, and then reclaimed ;
but in reclaiming it the water already appropriated by another must
not be diminished.
Historical: Rev. St. 188 7, Sec. 3158.
California Legislation: Same: Civ.
Code 1872, Sec. 1413; Deering's Code,
ib.; Kerr's Code, ib.
Priority.
Sec. 3245.
right.
As between appropriators, the first in time is first in
Historical: Laws 1899, 380, Sec. 4.
Rev. St. 1887, Sec. 3159.
California Legislation: Same except
"the one first" for "the first": Civ.
Code 1872, Sec. 1414; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Right of priority
and preferences as between domestic,
irrigation and mining uses: Const. Art.
15, Sec. 3. Priority of right between
persons who have settled on land with
the view of receiving water for agri-
cultural purposes under a sale, rental
or distribution, is subject to reasona-
ble limitations as to the quantity of
water used and the time of use: Const.
Art. 15, Sec. 5.
Riparian Rights Repudiated: A
prior appropriator of water has a
right to the use thereof which is su-
perior to the claim of a riparian pro-
prietor not based upon appropriation
but on the doctrine of riparian rights.
(Berry, J., dissents.) Drake v. Ear-
hart (1890) 2 Ida. 750; 23 Pac. 541.
Priorities: The first appropriation
of water for useful or beneficial pur-
poses gives the prior right thereto,
and the right once vested will be pro-
tected and upheld unless abandoned.
Malad Valley Irr. Co. v. Campbell
(1888) 2 Ida. 411; 18 Pac. 52; Geert-
son v. Barrack (1892) 3 Ida. 344; 29
Pac. 42; Dunniway v. Lawson (1898)
6 Ida. 28; 51 Pac. 1032. The doctrine
of priority must be applied although
its application may be harsh and un-
just in the particular case. Kirk v.
Bartholomew (1892) 3 Ida. 367; 29
Pac. 40.
The right of a prior appropriator of
water to the use of the same to the
extent of his appropriation is not de-
feated by his having, through mistake,
used a portion of the water on land
belonging to another. Mahoney v.
Neiswanger (1899) 6 Ida. 750; 59 Pac.
561.
Extent of Right: One who first ap-
propriated all the waters of a creek,
and since the appropriation continual-
ly used the same for the purpose of
irrigating his lands, is entitled to all
of said waters, to the extent of the ca-
pacity of his ditches, necessary to the
proper irrigation of his lands, as
against subsequent locators. Hillman
v. Hardwick (1891) 3 Ida. 255; 28
Pac. 438.
Date of Priority: When two per-
sons as partners appropriated water
sufficient to irrigate 48X) acres of land,
owned by them as tenants in common,
in 1872, and actually irrigated 200
acres of land until 1886, when they
severed their interests, one taking the
uncultivated portion and the other the
cultivated, the rights of each to their
respective shares of the water appro-
priated by them jointly, dates from
1872. Hall v. Blackman (1902) 8 Ida.
272; 68 Pac. 19.
Where one settled on unsurveyed
lands and, during the year of such
settlement, opened up an old ditch
which had been constructed and used
by a previous settler, put in a head-
gate and conveyed waters of a stream
150 feet to and upon the lands claimed
by him, and in the following year ex-
Ch. 1.
GENERAL PROVISIONS
1255
tended the ditch so as to better dis-
tribute the water over his claim, the
water right so acquired dates from
the time when the water was actually
delivered upon the ground for the use
of which it was diverted, and the pri-
ority thereby acquired was not broken
by a subsequent sale of the claim,
ditch and water right, and transfer of
possession to the vendee. Brown v.
Newell (1906) 12 Ida. 166; 85 Pac.
385.
Protection of Right: Where the
prior appropriation and right to the
use of water is established, the ap-
propriator is entitled to have sufficient
of the unappropriated waters flow
down to his point of diversion to sup-
ply his right, and an injunction
against an interference therewith is
proper protective relief. Moe v. Har-
ger (1904) 10 Ida. 302; 77 Pac. 645.
Decree Establishing Priority :
Where priority of appropriation, the
amount of water appropriated and
the beneficial use thereof have been
established, the court, in its decree es-
tablishing such facts, cannot go fur-
ther and dictate the manner in which
the appropriator shall u^b the water,
so long as it is adapted to a benefi-
cial purpose. McGinness v. Stanfieid
(1898) 6 Ida. 372; 55 Pac. 1020.
Same: Waste, Seepage and Spring Waters.
Sec. 3246. All ditches now constructed or which may hereafter
be constructed for the purpose of utilizing seepage, waste or spring
water of the State, shall be governed by the same laws relating to
priority of right as those ditches, canals, and conduits constructed
for the purpose of utilizing the waters of running streams.
Historical: Laws 1899, 380, Sec. 23.
Change in Point of Diversion.
Sec. 3247. The person entitled to the use of water may change
the place of diversion, if others are not injured by such change; and
may extend the conduit by which the diversion is made to places
beyond that where the first use was made.
Historical: Laws 1899, 380, Sec. ll.«
See Rev. St. 1887, Sec. 3157.
California Legislation: Same except
"of water", line 1, omitted and "ditch,
flume, pipe or aqueduct" for "con-
duit": Civ. Code 1872, Sec. 1412;
Deering's Code, ib.; Kerr's Code, ib.
Change in Diversion or Use: A
person entitled to the use of water
may change the place of diversion or
place of use so long as others are not
injured by the change. Hard v. Boise
City Irr. etc. Co. (1904) 9 Ida. 589;
76 Pac. 331. But the change cannot
be made if others are injured thereby.
Walker v. McGinness (1902) 8 Ida.
540; 69 Pac. 1003; Hill v. Standard
Min. Co. (1906) 12 Ida. 223; 85 Pac.
907.
Extent of Right: The right to
change the place of diversion includes
cases in which the use of the water
amounts to its absorption, or is such as
to imply notice to subsequent appro-
priators that such change may rea-
sonably be expected, but excludes ap-
propriations to be used at a specific
place for the purpose of operating
machinery and other works, where the
water is used and then returned to
the stream practically undiminished
in quantity, when such change will
damage a subsequent appropriator.
Last Chance Min. Co. v. Bunker Hill
etc. Min. Co. (1892v 49 Fed. Rep. 430.
Transfer of Rights: Users of water
from a ditch or canal acquire a prop-
erty right therein which they may
transfer to other lands under such
ditch or canal, or may sell and trans-
fer to a purchaser who may also trans-
fer the same to other lands under the
ditch and canal, so long as the change
does not interfere with the rights of
others. (Sullivan, C. J., dissents.)
Hard v. Boise City Irr. etc. Co. (1904)
9 Ida. 589; 76 Pac. 331.
Change in Course of Ditch Prohibited When.
Sec. 3248. Whenever any ditch or canal has been constructed for
the purpose of conveying water and selling the same for irrigating
purposes, it is unlawful for the owner or owners of said ditch or
canal to change the line of said ditch or canal so as to prevent or in-
terfere with the use of water from said ditch or canal, by any one
1256
IRRIGATION
Tit. 9
who, prior to the proposed change, had used water for irrigating
purposes from said ditch or canal.
Historical: Rev. St. 188 7, Sec. 3189,
middle portion of section. The first
portion prescribed the priorities of
settlers in the use of water from a
ditch in a manner different from Laws
1899, 380, Sec. 20, (Code Sec. 3290),
and the remaining portion fixed the
duty of ditch owners in the furnishing
of water and their liability for failure
to do so, which are covered by Sees.
15, 18 of the act of 1899 (Code Sees.
3306, 7149).
Right of Ditch Owners to Divert Water.
Sec. 3249. The proprietors of any ditch, canal or conduit, or
other works for the carriage of water, whose right relative to the
quantity of water they shall be entitled to divert by means of such
works shall have been established by any decree of court, shall be
entitled to such quantity measured at the point of diversion, subject,
however, to all prior rights.
Historical: Laws 1899, 380, Sec. 32.
Domestic Purposes Denned.
Sec. 3250. The phrase "domestic purposes" as contained in this
title shall be construed to include water for the household, and a suf-
ficient amount for the use of domestic animals kept with and for
the use of the household.
Historical: Laws 1899, 380, Sec. 12.
First part of section; the remainder
is superseded by Laws 1903, 223.
Completion Defined.
Sec. 3251. By completion, is meant conducting the waters to the
place of intended use.
Historical: Laws 1899, 3 80, Sec. 7.
Rev. St. 1887, Sec. 3162.
California Legislation: Same: Civ.
Code 1872, Sec. 1417; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Sand Point Water & Light
Co. v. Panhandle etc. Co. (1905) 11
Ida. 405; 83 Pac. 347.
CHAPTER 2.
APPROPRIATION OF WATER.
Section
3252. Water rights acquired under
chapter.
3253. Application to appropriate wa-
ter.
3254. Same: Examination: Permit:
Commencement of work: Bond.
3255. Amended application and per-
mit.
325 6. Contest for cancellation of per-
mit.
3257. Proof of completion.
32 58. Engineer to report on work:
Issuance of certificate.
Section
3259. Appeal from Engineer's deci-
sion.
3260. Proof of application to bene-
ficial use.
3261. Issuance of license: Priority.
3262. Effect of license.
3263. Fees of Engineer.
3264. Abandonment: Change of
place of use.
3265. Protest against license: Ap-
peal from decision.
3266. State Engineer to examine
streams.
Water Rights Acquired Under Chapter.
Sec. 3252. All rights to divert and use the waters of this State for
beneficial purposes shall hereafter be acquired and confirmed under
Ch. 2.
APPROPRIATION
1257
the provisions of this chapter. And after the, passage of this title,
all the waters of this State shall be controlled and administered in
the manner herein provided. .
Historical: Laws 1903, 223, Sec. 41.
Omitting- the concluding clause which
repeals all conflicting legislation.
Cited: Sand Point Water & Light
Co. v. Panhandle etc. Dev. Co. (1905)
11 Ida. 405; 83 Pac. 347.
Repeal: This section repeals prior
appropriation acts which provided in
substance for the posting and record-
ing of a notice and the commence-
ment and completion of diversion
works within a reasonable time. For
the purpose of historical reference, the
following notes of decisions under the
old appropriation law are given:
Date of Appropriation: One who
posts and records his notice of in-
tention to appropriate water, and
within sixty days thereafter com-
mences work on his diversion works,
and continues the prosecution of the
same with reasonable diligence, is en-
titled to have his appropriation date
from the posting of notice, and his
right is prior and superior to the
rights of any subsequent appropriator
claiming either by posting notice and
compliance with the statute or by the
natural diversion and application of
the water. Sand Point Water & Light
Co. v. Panhandle etc. Co. (1905) 11
Ida. 405; 83 Pac. 347.
Mode of Appropriation: A person
desiring to appropriate water may do
so either by naturally diverting the
water and applying it to ^ beneficial
use, or he may pursue the statutory
method of posting and recording his
notice and commencing to prosecute
his work within the statutory time. lb.
Beneficial Application of Water:
The appropriator is entitled to a rea-
sonable time within which to get his
land in cultivation and to make ap-
plication of the water to the land, and
what constitutes a reasonable time is
a question of fact dependent upon the
circumstances in each particular case.
Conant v. Jones (1893) 3 Ida. 606; 32
Pac. 250.
A party who appropriated water to
run a sawmill, but failed, for fourteen
years after posting his notice, to erect
or put into operation such sawmill,
failed to proceed with reasonable dili-
gence and lost his right to the water
appropriated. Stickney v. Hanrahan
(1907) 7 Ida. 424; 63 Pac. 189.
Application to Appropriate Water.
Sec. 3253. For the purpose of regulating the use of the public
waters and of establishing by direct means the priority of right to
such use, any person, association or corporation hereafter intend-
ing to acquire the right to the beneficial use of the waters of any
natural streams, springs or seepage waters, or lakes or other public
waters in the State of Idaho, shall, before commencing the con-
struction, enlargement or extension or change in the point of diver-
sion of the ditch, canal, or other distributing works, or performing
any work in connection with said construction or proposed appropria-
ation or the diversion of any waters into a natural channel, make an
application to the State Engineer for a permit to make such appro-
priation.
Such application must set forth: (1) The name and postoffice
address of the applicant, (2) the source of the water supply, (3) the
nature of the proposed use, (4) the location and description of the
proposed ditch channel or other work and the amount of water to
be diverted and used, (5) the time required for the completion of
construction of such works, which in no case shall exceed five years
from the date of approval of the application, (6) the time required
for the complete application of the water to the proposed use, which
must be within four years after the date set for the completion of
such works.
The application shall be accompanied by a plan and map in du-
plicate of the proposed works for the diversion and application of
the water to a beneficial use, showing the character, location and
1258 IRRIGATION Tit. 9
dimensions of the proposed reservoirs, dams, canals, ditches, pipe
lines, and all other works proposed to be used by them in the diver-
sion of the water, and the area and location of the lands proposed to
be irrigated.
If such application is filed by a corporation it shall state (1) the
amount of its capital stock, how much thereof has been actually paid
in, and the names and places of residence of its directors, and (2)
the financial resources of the corporation or person making the ap-
plication, and the means by which the funds necessary to construct
the proposed works are to be provided. If for the generation of
power or any other purpose than irrigation or domestic use, the pur-
pose for which it is proposed to be used, the nature, location, char-
acter, capacity and estimated cost of the works, and whether the
water used is to be and will be returned to the stream, and if so, at
what point on the stream.
In case the proposed right of use is for agricultural purposes, the
application shall give the legal subdivisions of land proposed to be
irrigated, with the total acreage to be reclaimed as near as may be:
Provided, That no one shall be authorized to divert for irrigation pur-
poses more than one cubic foot of water per second for each fifty
acres of land to be so irrigated, unless it can be shown to the satisfac-
tion of the State Engineer that a greater amount is necessary : Provid-
ed, further, That the plan of irrigation submitted shall provide for the
distribution of water to within not more than one mile of each legal
subdivision of the land proposed to be reclaimed by the use of such
water: Provided, also, That in the case of all ditches designed to
have a capacity of ten cubic feet per second or less, such map show-
ing the location of such ditch, and the place of use of such water, or
the location of the lands to be irrigated, may be upon blanks fur-
nished by the State Engineer.
No permit shall issue under any application filed hereafter until
the applicant shall have deposited with the State Engineer a filing
fee of one dollar, if the quantity of water claimed is one cubic foot
or less per second, and if the quantity of water claimed is in excess
of one cubic foot per second, the fee to be so deposited by the ap-
plicant shall be increased ten cents for each additional cubic foot or
fraction thereof: Provided, That no filing fee shall be required in
the case of any application which is in effect a refiling of a previous
application upon which the required fee was paid at the time of the
original filing. The State Engineer shall make and keep in a suitable
book a record of all filing fees received in connection with applica-
tions for permits to appropriate public waters, and said record shall
set out: (1) The name of the applicant, (2) the number of the ap-
plication, (3) the quantity of water filed on, (4) the amount of the
fee received, and (5) the date of receipt of said fee.
Historical: Laws 1903, 223, Sec. 1;
amended Laws 1905, 357, Sec. 1.
Same: Examination: Permit: Commencement of Work: Bond.
Sec. 3254. On receipt of the application, which shall be of a form
prescribed by the State Engineer, it shall be the duty of that officer
to make an indorsement thereon of the date of its receipt, and to
Ch. 2. APPROPRIATION 1259
make a record of such receipt in some suitable book in his office. It
shall be his duty to examine said application and ascertain if it sets
forth all the facts necessary to show the location, nature and amount
of the proposed use. If upon such examination, the application is
found defective, it shall be the duty of the State Engineer to return
the same for correction within thirty days from the receipt of such
application, and the date of such return, with the reason therefor,
shall be indorsed on the application, and a record made thereof in a
book kept for recording the receipt of such applications. A like rec-
ord shall be kept of the date of the return of corrected applications,
but such corrected applications shall be returned to the State Engi-
neer within a period of sixty days from the date indorsed thereon by
the State Engineer: Provided, That if it be returned after such
period of sixty days, such corrected application shall be treated in
all respects as an original application. All applications which shall
comply with the provisions of this chapter and with the regulations
of the State Engineer's office shall be numbered consecutively, and
shall be recorded in a suitable book kept for that purpose, and it
shall be the duty of the State Engineer to approve all applications,
made in proper form, which contemplate the application of water
to a beneficial use.
The approval of an application shall be indorsed thereon, and a
record made of such indorsement in the State Engineer's office. The
application so indorsed shall constitute a permit, and shall be re-
turned to the applicant, and he shall be authorized, on receipt thereof,
to proceed with the construction of the necessary works for the di-
version of such water, and to take all steps required to apply the
water to a beneficial use and to perfect the proposed appropriation.
In his indorsement of approval on any application, the State Engi-
neer shall require that actual construction work shall be completed
within a period of five years from the date of such approval, and
that one-fifth of such work of construction shall be done within one-
half the period of time allowed for the completion of such works. He
may limit the application to a less period of time for the completion of
such works than is asked for, and likewise the perfecting of the pro-
posed right for a less period than is named in the application, and
such indorsement shall give the date when such work shall be com-
pleted, also the date when beneficial application of the water to be
diverted by such works shall be made for the purpose intended.
Any applicant feeling himself aggrieved by the indorsement made
by the State Engineer upon his application may appeal therefrom
to the District Court of the county in which the point of diversion
of the proposed appropriation shall be situated. Such appeal shall
be taken within sixty days from the return of the application by the
State Engineer, and shall be perfected when the applicant shall have
filed in the office of the clerk of such District Court a copy of the ap-
plication, certified by the State Engineer as a true copy, together
with the petition to such court, setting forth the appellant's reason
for appeal. Such appeal shall be heard and determined upon such
competent proof as shall be adduced by the appellant, and such like
proofs as shall be adduced by the State Engineer or some person duly
authorized in his behalf.
1260 IRRIGATION Tit. 9
The maps accompanying such applications must contain the name
of the propesed work, and, when it is possible, the number of the
permit. They must in addition, have the name or names of the ap-
plicant or applicants, and when the proposed works have a capacity
of more than twenty- five second feet, a certificate of the surveyor
giving the date of the survey, his name and postoffice address. It shall
be the duty of the State Engineer to examine these maps or plats, and
to ascertain if they agree with the description contained in the appli-
cation, and when found to agree, to approve the same, file one copy
in his office and return the other, approved, to the party filing them.
Every holder of a permit which shall be issued under the terms
and conditions of an application filed hereafter, appropriating twenty-
five cubic feet or less per second, must, within sixty days from the
date upon which said permit issues from the office of the State Engi-
neer, commence the excavation or construction of the works by which
he intends to divert the water, and must prosecute the work dili-
gently and uninterruptedly to completion, unless temporarily inter-
rupted through no fault of the holder of such permit by circum-
stances over which he has no control.
Every holder of a permit which shall be issued under the terms and
conditions of an application filed hereafter, appropriating more than
twenty-five cubic feet per second, must, within sixty days from the
date upon which the said permit issues from the office of the State
Engineer, file with the State Engineer a bond in an amount to be
fixed by the State Engineer, not exceeding ten thousand dollars, in
form and sufficiency of sureties to be approved by him, conditioned
upon faithfully carrying to completion the works of diversion as
specified in said permit; the amount of the bond to be fixed by the
State Engineer within the limits hereinbefore prescribed.
The holder of any permit who shall fail to comply with the pro-
visions of this section within the time or times specified, shall be
deemed to have abandoned all right under his permit.
Historical: Laws 1903, 223, Sec. 2;
amended Laws 1905, 357, Sec. 2.
Amended Application and Permit.
Sec. 3255. Whenever application has been made for a permit to
appropriate water for irrigation, or whenever a permit has been is-
sued and the applicant or permit holder desires to change the place of
intended use of the water or correct the description of the lands to
be irrigated, he shall file a request therefor with the State Engineer,
who shall thereupon note the application on the record of the origi-
nal application or permit, and shall issue a new permit, noting the
amendment therein, and specifying that it is issued as an amendment
to the original. The right to the use of water under the amended per-
mit shall date from the time of the original permit: Provided, An
additional amount of water is not asked for, and except where the
rights of others are adversely affected by such changes, in which
case it shall date from the filing of the application for the amendment.
Historical: Laws 1907, 314, Sec. 1.
Ch. 2. APPROPRIATION 1261
Contest for Cancellation of Permit.
Sec. 3256. If the holder of a permit, at the expiration of one-half
the time set for the completion of such works, shall not have com-
pleted at least one-fifth the work of construction as contemplated
in the application for such permit to construct such works, any per-
son or persons holding any permit for the diversion of waters from
the same stream (such permit post dating the permit for the diversion
of water through such unfinished works as aforesaid) may, on or af-
ter such date set for the doing of one-fifth of such work of construc-
tion, enter contest against such prior permit, and petition the State
Engineer to cancel the same. Such contestant shall file with the State
Engineer a petition in duplicate clearly setting forth the facts in re-
lation to the condition of the unfinished work under the permit which
is sought to be cancelled. Each copy of the petition shall be certified
to by a well known and competent engineer. Thereupon the State
Engineer shall file one copy of said petition in his office and imme-
diately forward the other copy by registered mail to the holder of the
permit which is sought to be cancelled by the petitioner, or, if said
permit be held in the names of two or more persons as shown by the
records of the office of the State Engineer, then such copy of such pe-
tition shall be forwarded by registered mail to the person whose name
first appears upon the records of the State Engineer's office as one of
the holders of the contested permit.
The person to whom such copy of such petition is sent must, with-
in sixty days from the date upon which such copy of such petition is
mailed from the office of the State Engineer, file with said State En-
gineer an affidavit to the effect that one-fifth of the work of con-
struction had been done under the contested permit at the time when
the contestant filed his petition with the State Engineer. Such affi-
davit must be supported by the certificate of a well known and com-
petent engineer to the effect that, in his opinion, the statements made
in such affidavit are true and correct.
If such affidavit and certificate be not filed in the office of the
State Engineer as hereinbefore required, the State Engineer shall
forthwith proceed to cancel such contested permit and shall cause
his order of cancellation to be spread upon the record cony of such
permit as shown by the records of his office: Provided, That if the
State Engineer be satisfied that the contestee has not received the
copy of contestant's petition, as hereinbefore required to be sent by
registered mail, then an examination of the works under the con-
tested permit shall be made by the State Engineer, or by some one
duly authorized by him to act in his stead, as hereinafter provided.
Upon receipt of the affidavit of the contestee and the certificate in
support of the same made by a well known and competent engineer
as hereinbefore required, the State Engineer, at the expense of the
contestant, shall make or cause to be made an examination of the
works under such contested permit, and if after such examination,
the State Engineer is satisfied that the allegations made in the con-
testant's petition are true and correct, he shall forthwith proceed to
cancel such contested permit, and shall cause his order of cancella-
tion to be spread upon the record copy of such permit as shown by
the records of his office, but if he be satisfied, after such examination,
1262 IRRIGATION Tit. 9
that the statements made in the contestee's affdavit are true and cor-
rect, then he shall deny the contestant's petition. Any construction
work done by the contestee after the filing of contestant's petition
with the State Engineer shall be disregarded by that official in ren-
dering his decision, and if he deem it necessary, he may require the
contestee to make affidavit setting forth the amount of money ex-
pended, the number of men employed, and the amount of work done
under the contested permit subsequent to the filing of the contestant's
petition.
Upon rendering his decision the State Engineer shall, by regis-
tered mail, notify the party against whom such decision may be.
Either of the parties feeling themselves aggrieved by the action of the
State Engineer may appeal therefrom to the District Court of the coun-
ty in which the point of diversion of the works in question is situated.
Such appeal shall be taken within sixty days from the receipt of
the notice of such action of the State Engineer, and if the petitioner
to such State Engineer shall file the appeal, the holder of the permit
in question shall be the defendant, and if the holder of such permit
which has been cancelled shall be the appellant, the party who pe-
titioned for such cancellation shall become the defendant in such ap-
peal, and such appeal shall be perfected when the appellant shall have
filed in the office of the clerk of such District Court, a copy of such
petition to the State Engineer, and a copy of the decision of such
Engineer, certified to by such Engineer as true copies, together with
the petition to such court setting forth the appellant's reason for
appeal.
Historical: Laws 1903, 223, Sec. 3;
amended Laws 1907, 532, Sec. 1.
Proof of Completion.
Sec. 3257. On or before the date set for the completion of works
for the diversion and application of water under any permit, the
holder of such permit, or his assigns, shall be prepared to submit
proof of the completion of such works to the State Engineer. Such
holder of such permit shall first notify the State Engineer that he is
prepared to submit such proof of completion of such works. Such no-
tice to the State Engineer shall be given by registered mail at least
sixty days before the date set for the completion of such works, and
shall be on a form furnished by such Engineer, and shall state (1)
the name of the person or corporation holding the permit under which
such works are constructed, (2) the postoffice address of such person
or the place of business of such corporation, (3) the number of such
permit, and the date set for the completion of such works under the
same, (4) the use for which said water is intended, (5) whether or
not such works will be fully completed on the date set for such com-
pletion, and the amount of water which such works are capable of con-
ducting to the place of intended use in accordance with the plans of
the same accompanying the application for such permit, (6) if for
irrigation, the amount and description of the lands for which said
water is available according to such plans. In case of all canals or
other works designed to divert and carry more than fifty cubic feet
per second of water, the facts set forth in such notice to the State
Ch. 2.
APPROPRIATION
1263
Engineer shall be certified to by a well known and competent irrigation
engineer.
Upon receipt of such notice by the State Engineer, he shall im-
mediately order its publication for a period of four weeks in some
newspaper designated by the person sending such notice and pub-
lished in the county in which such works are situated. Such pub-
lished notice shall also state the date when such proof of completion
shall be submitted to such Engineer, and the place where the same
shall be submitted, and such publication shall be at the expense of the
person making such proof.
Such person or persons establishing such proof of completion may
offer the affidavits of competent engineers in relation to the grades,
dimensions and capacity of such works, and the amount and location
of land to which water can be delivered for irrigation. The State En-
gineer may, in the case of canals designed to divert fifty cubic feet
per second or more, demand that profiles and cross-sections, showing
the grade and the finished condition of such works, be filed with him
in support of the claims which may be made in relation to the finished
condition of such works, by the person or persons holding such permit.
And in the case of works capable of diverting, on the date set for
such completion, the full amount of water for which such works were
intended, such State Engineer shall have authority to order the water
turned into such works for the purpose of measuring the same.
Historical: Laws 1903, 2 2 3, Sec. 4.
Constitutionality: This section does
not vest judicial power in the State
Engineer in violation of Const. Art. 5,
Sec. 2. Boise Irr. etc. Co. v. Stewart
(1904) 10 Ida. 38; 77 Pac. 25, 321.
Engineer to Report on Work: Issuance of Certificate.
Sec. 3258. On or before the date set for receiving such proof of
completion, the State Engineer shall make or cause to be made a full
inspection and examination of the works constructed, and shall make
or cause to be made a report on their condition, ascertaining and stat-
ing whether or not they conform to the terms of the application and
permit, and are capable of diverting the amount of water intended,
and he shall ascertain how much water such works are capable of
diverting and conducting to the place of intended use at the time
of such proof of completion. He shall issue a certificate to the holder
of such permit or his assigns, which certificate shall set forth (1) the
name of the holder of the permit under which the works were con-
structed, (2) the number of such permit, (3) the date of the applica-
tion for the same, (4) the postoffice address of such holder, (5) the
condition of such works, (6) the purpose for which they were con-
structed, (7) the quantity of water which can be diverted by the same
and conducted to the place of intended use, (8) and if such water is
to be used for irrigation, a description of the lands for which water
is made available by such works. The State Engineer shall file such
report, and make a record in books kept in his office for the purpose,
of all the facts in relation to the condition of such works, and their
capacity on the date of such proof of completion.
Whenever it shall be desired to enlarge or extend existing works,
or complete works not completed on the date set for such completion,
all applications for a permit to make such enlargement, extension or
Vol. 1 — 41
1264
IRRIGATION
Tit. 9
completion shall be filed with the State Engineer, the same as for
original construction, and the priority of all rights resulting from
such enlargement, extension or completion shall relate to such appli-
cation.
Historical: Laws 1903, 223, Sec. 5.
Constitutionality: This section does
not vest judicial power in the State
Engineer in violation of Const. Art. 5,
Sec. 2. Boise Irr. etc. Co. v. Stewart
(1904) 10 Ida. 38; 77 Pac. 25, 321.
Appeal From Engineer's Decision,.
Sec. 3259. Whenever any person or persons feel themselves ag-
grieved by the determination of the State Engineer in relation to the
question of completion of works constructed under a permit issued
by him, such person or persons may appeal to the courts : Provided,
That such appeal shall be taken within sixty days from the date of
the certificate relating to such completion by such Engineer, and
shall be perfected when the appellant shall have filed in the office of
the clerk of the District Court a copy of the certificate, certified by
the State Engineer as a true copy, together with the petition to such
court setting forth the appellant's reason for appeal. Such appeal
shall be heard and determined upon such competent proof as shall
be adduced by the appellant, and such like proofs as shall be ad-
duced by the State Engineer or some person authorized in his behalf.
Historical: Laws 1903, 223, Sec. 6.
Proof of Application to Beneficial Use.
Sec. 3260. On or before the date set for the beneficial use of
waters diverted under the provisions of this chapter, which in no case
shall be more than four years from the date set for the completion
of any canal or other works designed to divert and conduct the public
waters of the State to a place of use, or the date for the enlargement
or extension or the completion of works for such purpose, the person
or persons using such water shall submit proof that they
have used such water for the beneficial purpose for which the di-
version of such water was intended. Such user of such water shall first
notify the State Engineer that he is prepared to prove that such water
has been beneficially applied to the purpose for which it was intended.
Such notice to the State Engineer shall state (1) the name and post-
office address of such user, (2) the use to which such water has been
applied, (3) the amount used, (4) the place of such use, and, if for
irrigation, the description by legal subdivisions of the lands so irri-
gated, (5) the name of the canal or ditch or other works by which
such water is conducted to such place of use, (6) the relation or un-
derstanding upon which the right to take water from such works is
based. (7) the source of supply from which such water is diverted,
and, (8) the date of the priority which such user is prepared to es-
tablish. Such notice and such written proof as may be required to
be submitted by such user shall be upon forms furnished by the State
Engineer, and such statements shall be sworn to by such user and be
supported by the affidavits of two disinterested witnesses.
Upon receipt of such notice by the State Engineer, he shall order
Its publication in some newspaper designated by such user and pub-
lished in the county in which the major portion of such land is sit-
uated, for a period of four weeks, and shall fix a date when such proof
Ch. 2. APPROPRIATION 1265
shall be submitted and name a place where such proof will be re-
ceived. Such date shall be subsequent to the completion of such pub-
lication, and such Engineer shall, on or before the date set for such
final proof, examine, or cause to be examined, (1) the place where
such water is used, and, if the use is for irrigation, he shall ascertain
the area and location of the land irrigated and the nature of all the
improvements which have been made as a direct result of such use,
(2) the capacities of the ditches or canals or other means By which
such water is conducted to such place of use, and the quantity of
water which has been beneficially applied for irrigation or other pur-
poses. The State Engineer or the person making such examination
under the direction of such Engineer shall also, on the date set for
such final proof, receive the written statements made by the person
or persons submitting such proof, and the affidavits of the witnesses,
which statements and affidavits, together with a report of the inves-
tigation which he is instructed to make, shall be forwarded at once
to the State Engineer: Provided, That whenever several of such
final proofs shall be offered from the same locality, such Engineer
shall arrange, whenever practicable, to have such notices for publi-
cation combined, and to have such examinations made by the same
person and on the same date, as near as may be, with a view of min-
imizing the expense of taking such proofs, and such publication shall
be at the expense of the person or persons submitting such proof.
Historical: Laws 1903, 223, Sec. 7.
Issuance of License : Priority.
Sec. 3261. Upon receipt by the State Engineer of all the evidence
in relation to such final proof, it shall be his duty to carefully examine
the same, and if he is satisfied that the law has been fully complied
with and that the water is being used at the place claimed and for
the purpose for which it was originally intended, he shall issue to
such user or users a license confirming such use. Such license shall
be issued under the seal of the office of the State Engineer, and shall
state the name and postoffice address of such user, the purpose for
which such water is used, the quantity of water which may be used,
which in no case shall be an amount in excess of the amount that has
been beneficially applied. If such use is for irrigation, such license
shall give a description, by legal subdivisions, of the land which is
irrigated by such water. Such license shall bear the date of the ap-
plication for, and the number of, the permit under which the works
from which such water is taken were constructed ; the date of the
completion of such works ; the capacity of such works on such date of
completion ; the date when proof of beneficial use of such water was
made, and also the date of the priority of the right confirmed by such
license, which shall be the date of the application for the permit for
the construction of the works from which such water is taken, and
to which such right relates. All the licenses which relate to the same
permit and which bear the same date of priority shall be numbered
alike, and shall belong to the same class, and all the rights relating to
the same source of supply shall be numbered numerically in the order
of the priority of such rights : Provided, That whenever proof of the
beneficial application of water shall be offered subsequent to the date
1266 IRRIGATION Tit. 9
stated in the permit when such beneficial application shall be made,
such proof shall be taken, and if satisfactory to the State Engineer,
a license shall be issued by such Engineer the same as though such
proof had been made before such date fixed for such beneficial appli-
cation, but the priority of the right established by such proof shall not
date back to the date of the application for the permit to which such
right would relate under the provisions of this chapter, but shall
bear a date which shall be subsequent to the date of such application,
a time equal to the difference between the date set in such permit for
such beneficial application of such water and the date of such proof.
Historical: Laws 190 3, 223, Sec. 8.
Effect of License.
Sec. 3262. Such license shall be binding upon the State as to the
right of such licensee to use the amount of water mentioned therein,
and shall be prima facie evidence as to such right; and all rights to
water confirmed under the provisions of this chapter, or by any de-
cree of court, shall become appurtenant to, and shall pass with a con-
veyance of, the land for which the right of use is granted. The right
to continue the beneficial use of such waters shall never be denied nor
prevented for any cause other than the failure, on the part of the
user or holder of such right, to pay the ordinary charges or assess-
ments which may be made or levied to cover the expenses for the de-
livery or distribution of such water, or for other reasons set forth in
this title : Provided, That when water is used for irrigation, no such
license or decree of the court alloting such water shall be issued con-
firming the right to the use of more than one second foot of water for
each fifty acres of land so irrigated, unless it can be shown to the
satisfaction of the State Engineer in granting such license, and to the
court in making such decree, that a greater amount is necessary, and
neither such licensee nor any one claiming a right under such decree,
shall at any time be entitled to the use of more water than can be
beneficially applied on the lands for the benefit of which such right
may have been confirmed, and the right to the use of such water con-
firmed by such license shall always be held subject to the local or com-
munity customs, rules and regulations which may be adopted from
time to time by a majority of the users from a common source of
supoly, canal or lateral from which such water may be taken, when
such rules or regulations have for their object the economical use of
such water.
Historical: Laws 1903, 223, Sec. 9.
Fees of Engineer.
Sec. 3263. Upon the issuance of a certificate by the State Engi-
neer in relation to the completion of any canal, ditch or other works
constructed under the provisions of this chapter, a fee, to cover the
expense of the examination of such works, shall be paid to the State
Engineer by the person or persons submitting the proof of such com-
pletion. For all ditches or canals having a capacity of ten cubic feet
per second or less, such fee shall be five dollars. For all ditches or
canals having a capacity of more than ten cubic feet per second, such
Ch. 2. APPROPRIATION 1267
fee shall be at the rate of thirty cents for each second foot of such
capacity. For examining- the ditches and lands of the user at the time
of making final proof of the application of water, a fee of two dollars
shall be paid to the State Engineer, at the time of making such proof,
for each legal subdivision of forty acres or fraction thereof to which
such water may have been applied. For examining the ditches or
other works and the place where such water is used, when such use
is not for irrigation, a fee of five dollars shall be paid the State Engi-
neer at the time of making such examination and taking the ffroof of
such use: Provided, That in the case of water used for irrigation,
where two or more users whose lands join or who take water from
the same common lateral, join in the publication of the notice of their
intention to make such proof of application, a fee of one dollar for
each legal subdivision of forty acres or fraction thereof receiving such
water shall be paid to the State Engineer at the time of making such
proof. For making certified copies of any papers on file in his office,
the State Engineer shall charge a fee at the rate of twenty cents per
folio. All fees received by the State Engineer under the provisions of
this chapter shall be recorded in a fee book, and shall at once be
turned over to the State Treasurer and placed in the general fund of
the State.
Historical: Laws 1903, 223, Sec. 10;
amended Laws 1905, 174, Sec. 1.
Abandonment: Change of Plan of Use.
Sec. 3264. All rights to the use of water acquired under this chap-
ter or otherwise, shall be lest and abandoned by a failure, for the
term of five years, to apply it to the beneficial use for which it was
appropriated, and when any right to the use of water shall be lost
through non-use or abandonment, such right to such water shall re-
vert to the State and be again subject to appropriation under this
chapter: Provided, That any person owning any land to which
water has been made appurtenant either by a decree of the court or
under the provisions of this chapter, may voluntarily abandon the
use of such water in whole or in part on the land which is receiving
the benefit of the same, and transfer the same to their land. Such per-
son desiring to change the place of use of such water shall first make
application to the State Engineer, stating fully in such application the
reasons for making such transfer. Such application shall describe
the land, the use of the water on which is to be abandoned, and shall
describe the land to which it is desired to have such right transferred,
and if such water is to be conducted to such land through another
canal or lateral or from a different point of diversion than the one de-
scribed in the license or decree of the court confirming such right,
such facts shall be fully set out in such application, and, if the State
Engineer shall require it, a plat showing the location of such land
and ditches or canals or points of diversion shall be furnished by such
applicant, and upon receipt of such application, the State Engineer
shall examine the same and shall, provided no one shall be injured by
the transfer, issue to such applicant, under the seal of his office, a
certificate authorizing such transfer, which certificate shall state the
1268 IRRIGATION Tit. 9
name of the applicant, and shall contain a copy of the license or an
abstract of the decree confirming the right to the use of the water
upon the land from which it is desired to transfer such right, and a
description of the land to which such right is transferred. A fee of
one dollar shall be paid the State Engineer by such applicant for such
certificate of transfer issued by him, and such application shall be re-
corded by the State Engineer in a book for that purpose, and a
notice that such transfer has been authorized shall be sent by the State
Engineer to the water commissioner of the district in which such land
is situated, and such water commissioner shall notify the water mas-
ter of the stream furnishing water for the irrigation of such lands of
the transfer of such use, and such water master shall not thereafter
divert, on to the lands the water for which has been so abandoned,
any of such water, but shall divert such water from such stream so
that it may be used on the lands to which such right has been trans-
ferred : Provided, further, That any person or persons who are
owners by decrees of court or by appropriation of a water right, and
who have, with reasonable diligence, annually increased the beneficial
use of the water covered by such water right, or who do hereafter,
with reasonable diligence, annually increase the beneficial use of the
water held under such water right, shall not be subject to the penal-
ties of abandonment and loss by non-use of such water right, as pro-
vided in this section.
Historical: Laws 1903, 2 2 3, Sec. 11;
amended Laws 1905, 27, Sec. 1;
amended Laws 1907, 507, Sec. 1.
Protest Against License : Appeal From Decision.
Sec. 3265. Any person desiring to protest against the statements
made by the person or persons submitting proof of the beneficial ap-
plication of water in the published notice of their intention to submit
such proof, shall file a statement with the State Engineer on or before
the date set for such proof, stating clearly the reason for such pro-
test, and stating the reason, if any, why a license should not be issued
confirming the right claimed. Such protest shall be based solely upon
the statements in such notice and shall be sworn to by such protestant.
In issuing a license confirming any right to use water for bene-
ficial purposes, the State Engineer shall be governed in his actions
by the records relating to works from which such water is taken
which may be on file in his office, and by the reports of the examina-
tion of such works, the place where such water is used, and the ex-
tent of such use as made by such Engineer or his representative.
Such license may confirm such claim in whole or in part, or such
license may be refused, such determination depending upon the ex-
tent to which such claim is supported by such records, and such ex-
amination of the conditions relating to such use made on the ground
under the authority of such State Engineer. If the State Engineer
shall refuse to issue a license, the reasons for such refusal shall be
recorded in a book kept for the purpose : Provided, That any one feeling
himself aggrieved by the statements contained in the license issued by
the State Engineer, or his refusal to issue such license, may appeal
therefrom to the District Court of the county in which the place of use
Ch. 2. APPROPRIATION 1269
of the water claimed shall be situated. Such appeal shall be taken with-
in sixty days from the date of such license or the refusal to issue such
license, and shall be perfected when the appellant shall have filed in
the office of the clerk of such District Court a copy of the license, or,
if such license shall not have been issued, a copy of the statement
made by the State Engineer giving the reasons why such license was
not issued, a copy of the protests against the issuing of such license
filed in the State Engineer's office, and a copy of the report of the
examination of the place of use of such water made under the Author-
ity of the State Engineer, and of other documentary proof in rela-
tion to such use which may be filed in the office of such Engineer. Such
copies of licenses, reports, protests and other proof shall be certified
by the State Engineer as true copies. Such copies shall be filed in
the office of such clerk together with a petition to such court setting
forth the appellant's reason for appeal. Such appeal shall be heard
and determined upon such competent proof as shall be adduced by the
appellant, and such like proofs as shall be adduced by the State En-
gineer or some person duly authorized in his behalf.
Historical: Laws 19 03, 22 3, Sec. 12.
State Engineer to Examine Streams.
Sec. 3266. It shall be the duty of the State Engineer, or some
qualified assistant, to proceed, as soon as may be after the passage of
this chapter, to make an examination of the streams of the State (be-
ginning with those whose waters have not yet been allotted), and the
works diverting water therefrom, said examination to include the
measurement of the discharge of said streams and the carrying capac-
ity of the various ditches and canals diverting water therefrom; an
examination of the irrigated lands, and an approximate measurement
of the lands irrigated or susceptible of irrigation from the various
ditches and canals, which said observations and measurements shall
be reduced to writing and made a matter of record in his office, and
it shall be the duty of the State Engineer to make, or cause to be
made, a map or plat on a scale of not less than one inch to the
mile, showing, with substantial accuracy, the course of the stream,
the location of each ditch or canal diverting water therefrom, and
the legal subdivisions of land which have been irrigated, and he shall
also note on such map the lands which are susceptible of irrigation
from the ditches and canals already constructed. Such examination
shall be made as rapidly as oossible to include all the streams used for
irrigation in the State. The State Engineer shall indicate on such
map the lands the water rights for which have been adjudicated by
the courts, noting on each tract the number of the priority of such
rights, and whenever an application for a permit to appropriate water
from a stream shown on such map shall be allowed, such Engineer
shall indicate on such map the line of such canal or ditch or other
works, and indicate by appropriate colors the lands to be irrigated
by such works, and shall note thereon the number of such permit.
Whenever proof is made that water has been beneficially applied from
such works to any of such lands, and license shall be issued for the
same as in this chapter provided, the number of such license so issued
shall be at once noted on such map on the subdivision of such lands
1270
IRRIGATION
Tit. 9
to which such license shall relate, and all these and other facts relating
to the development of irrigation on such stream shall be carefully
posted on such map.
Historical: Laws 1903, 223, Sec. 33.
Constitutionality: It is the duty of
the State Engineer to examine streams
and diversion works, begining with
streams the waters of which have not
been adjudicated by decree of court.
The work to be done by the Engineer
under this section is to be paid for by
the State and is partly for the pur-
pose of making a permanent record
of the water appropriations and rights
to the use thereof. The section is
constitutional. Boise Irr. etc. Co. v.
Stewart (1904) 10 Ida. 38; 77 Pac.
25, 321.
CHAPTER 3.
DISTRIBUTION OF WATER AMONG APPR0PRIAT0RS.
Section
3268. Water divisions: Establish-
ment and boundaries.
3269. Water commissioners. Ap-
pointment and qualifications.
3270. Same: Duties.
3271. Same: Compensation.
3272. Same: Oath and bond.
3273. State Board of Irrigation.
3274. Creation of water districts.
3275. Appointment and duties of wa-
ter masters.
3276. Reports of water masters.
3277. Distribution of water.
Section
3278. When water master shall be-
gin work.
3279. Water master may employ as-
sistants.
3280. Compensation of water mas-
ters.
3281. Same: Payment and collection
from water users.
3282. Headgates and measuring de-
vices.
3283. Rules governing distribution of
water.
Water Divisions: Establishment and Boundaries.
Sec. 3268. For the purpose of administering and controlling the
public waters, the State of Idaho is hereby divided into three water
divisions denominated water division No. 1, water division No. 2,
water division No. 3.
Water division No. 1 shall consist of all lands within this State
drained by the Snake River and its tributaries as far west as Ameri-
can Falls, and all lands within this State drained by Bear River and
its branches, and by other streams flowing on the slope of the Salt
Lake Basin.
Water division No. 2 shall consist of all lands within this State
drained by Snake River and its tributaries on the south side from
Bruneau River and by the Snake River and its tributaries on the
north side from American Falls to and including the Malad River, also
all lands within this State drained by the streams flowing toward and
sinking near the northern edge of the Snake River plains, and the
lands in this State drained by the Salmon River and its tributaries
as far west as the South Fork of said river.
Water division No. 3 shall consist of all lands within this State
drained by the Snake River and its tributaries on the south side
from the mouth of the Bruneau River to and including the Owyhee
River, and by the Snake River and its tributaries on the north side
from the mouth of the Malad River to and including the Clearwater
River, excepting that portion of the water shed of the Salmon River
included in water division No. 2, and all that portion of the State
lying north of the water shed of said Clearwater River.
Ch. 3.
DISTRIBUTION AMONG APPROPRIATORS
1271
Historical: Laws 1903, 22 3, Sees. 13,
14, 15, 16.
Water Commissioners: Appointment and Qualifications.
Sec. 3269. There shall be appointed one water commissioner for
each of the water divisions by this chapter created, who shall be ap-
pointed by the Governor, with the consent of the Senate, and who
may be removed for cause. Said water commissioners shall each be
appointed to hold office for a period of six years, or until their suc-
cessors are appointed and shall have qualified, one commissioner re-
tiring and his successor being appointed each odd numbered year:
Provided, That the present commissioners shall hold office until the
expiration of their respective terms. Such water commissioners shall
possess such theoretical knowledge of the science of hydraulics as
will enable them to supervise the construction of such measuring de-
vices as may be necessary to place in any ditch, canal or stream for
the proper measurement of the water. They shall be acquainted with
the streams of their divisions and shall be capable of instructing the
water master who may be placed in charge of such streams in all mat-
ters in relation to the distribution of the water of such streams in
accordance with the priorities of the rights of those using such waters.
Historical: Laws 1903, 22 3, Sees. 17, commissioners, and to preserve the
18. Rewritten so as to omit the pro- terms of office of the present corn-
vision for the appointment of the first missioners.
Same : Duties.
Sec. 3270. Each commissioner shall reside in the water division
for which he is appointed. The commissioner of each water division
shall have immediate direction and control of the acts of the water
masters, and of the distribution of water from all the streams to the
canals diverting therefrom in his division, and shall perform such du-
ties as shall devolve upon him as a member of the Board of Irriga-
tion. He shall also, under the general supervision of the State Engi-
neer, execute the laws relative to the distribution of water in accord-
ance with the rights of priority of appropriation. He shall also, when
so directed by the State Engineer, receive proof of completion, and
make inspection and examination as provided in Section 3258 of this
title, of works for the diversion and application of water under any
permit, where the point of diversion of said works is located within
the boundaries of his division ; and he shall also, when so directed by
the State Engineer, receive proof of beneficial use of waters diverted
under the provisions of this title in cases where the majority of the
lands benefited by the diversion works in question lie within the
boundaries of his division.
Historical: Laws 1903, 22 3, Sec. 19;
amended Laws 1905, 357, Sec. 3.
Same : Compensation.
Sec. 3271. Each water commissioner shall be paid ten dollars per
day for every day actually consumed in the performance of his du-
ties as such water commissioner: Provided, That no commissioner
shall be employed in the duties of his office for more than one hundred
and eighty days during each year. For services performed as member
1272 IRRIGATION Tit. 9
of the Board of Irrigation he shall be paid by the State Treasurer,
upon warrants drawn by the State Auditor for the time actually
spent in performing his duties as a member of such board, as shown
by an itemized bill certified to by the State Engineer. For services per-
formed in supervising the distribution of the public waters of the
streams within his division, he shall be paid by the county in which
such duties are performed, and shall present a sworn statement to the
board of county commissioners, at a regular meeting of said board,
which statement shall show the time spent and the duties performed,
and the said board shall pay such bill by issuing to said commissioner
a warrant drawn on the current expense fund of the county.
Historical: Laws 1903, 2 2 3, Sec. 2 0.
Same : Oath and Bond.
Sec. 3272. Before entering upon the duties of his office each
water commissioner shall take and subscribe an oath before some
officer authorized by the laws of the State to administer oaths, to
faithfully perform the duties of his office, and shall file with the Sec-
retary of State said oath and his official bond in the penal sum of
five thousand dollars, with not less than two sureties to be approved
by the Governor of the State, and conditioned for the faithful dis-
charge of the duties of his office.
Historical: Laws 1903, 223, Sec. 21.
State Board of Irrigation.
Sec. 3273. There is hereby constituted a State Board of Irriga-
tion, composed of the State Engineer and the water commissioners of
the three water divisions. Said board shall have an office with the
State Engineer in the Capitol at Boise, and shall hold one meeting
each year for the transaction of such business as may come before
it, which meeting shall begin on the first Monday in March : Provided,
No meeting of said board shall exceed five days. The State Engineer
shall be ex-officio president of said board, and shall have the right to
vote on all questions coming before it, and a majority of all the mem-
bers of the said board shall constitute a quorum to transact business :
Provided, That all acts of said board shall be approved by a major-
ity of its members. The commissioner of water division No. 3 shall
be the secretary of the State Board of Irrigation, and it shall be his
duty to keep a full, true and complete record of the transactions of
said board. Such meeting of such State Board of Irrigation may be
held at any place in the irrigated portion of the State which may be
selected by the State Engineer for such meeting, and such Board of
Irrigation shall provide rules and regulations in relation to making
of proof of completion of works constructed under the provisions of
this title, and of the proof of application of the water as provided for
in this title, and shall also devise all needful rules for the distribution
of water from the streams in accordance with the priorities of the
rights of the users thereof. And such commissioners shall, on or
before the first day of December of each year, submit to the State
Engineer a report of work done by them in their districts, and shall
recommend such changes in the irrigation laws and rules and regula-
Ch. 3. DISTRIBUTION AMONG APPROPRIATORS 1273
tions governing the diversion of waters as would, in their judgment,
be beneficial to the people of the State.
Historical: Laws 19 03, 22 3, Sec. 22. (1903) meeting- of the board, as now
Omitting- the provision for the first I obsolete.
Creation, of Water Districts.
Sec. 3274. The Board of Irrigation shall divide the State into
water districts, said water districts to be so constituted as "to secure
the best protection to the claimants for water, and the most econom-
ical supervision on the part of the State. The water districts which
shall be first created are those which will embrace the streams whose
waters have already been allotted by the District Court, the distribu-
tion of which shall, by the provisions of this chapter, be under the
control of the water commissioners of the divisions in which such
stream or streams are situated. Other districts shall be created from
time to time as the appropriations and priorities thereof from the
streams of this State shall be confirmed or adjudicated: Provided,
That when any company or association owning irrigation works
whose water supply is not distributed under a sale or rental thereof,
shall petition the water commissioner to appoint a water master to
take charge of the distribution of the water from such works, such
water master shall be appointed, and he shall deliver to each user the
quantity of water to which he may be entitled ; and such water master
so appointed shall be paid for such services in the manner provided
in Sections 3279 and 3280 : Provided, In the case of a stream whose
waters have been allotted, when the distance between the extreme
points of diversion of such stream is not more than thirty miles, the
users of water from such stream may elect a water master to dis-
tribute the water of such stream, and fix his compensation therefor
in the manner provided in the following section for the election of
water masters.
Historical: Laws 1903, 223, Sec. 23;
amended Laws 1907, 532, Sec. 2.
Appointment and Duties of Water Masters.
Sec. 3275. For each water district created under the provisions of
this chapter, there shall be appointed, on or before the first day of
March of each year, one water master, who shall be appointed by the
commissioner of the division in which the water district is situated.
Each water master shall hold office for one year, or until his suc-
cessor is appointed and shall have qualified. The said water commis-
sioner may, at any time, remove any water master for failure to per-
form his duty as such water master, upon complaint in that respect
being made to him in writing.
Before entering upon the duties of his office, said water master
shall take and subscribe an oath before some officer authorized by
the laws of the State to administer oaths, to faithfully perform the
duties of his office, and shall file, with the clerk of the District Court
in the county in which said water master resides, said oath and his
official bond in the penal sum of five hundred dollars, with not less
than two sureites, to be approved by the judge of the probate court of
the county in which he resides, and conditioned for the faithful dis-
1274 IRRIGATION Tit. 9
charge of the duties of his office: Provided, That any vicinity or
neighborhood, the inhabitants of which use the waters of any ditch,
stream or spring for the purpose of irrigation, or have or claim a
common right to the waters of any ditch, stream or spring for such
purpose, provided the waters so claimed or used have not been al-
lotted to the individual users thereof, shall constitute a water district,
and a majority of such water users having such common right may,
annually on the third Monday of February at a meeting of such in-
habitants, elect a water master for such district whose duty it shall
be to superintend the distribution of such waters among those hav-
ing such common right, or accustomed to participate in such common
use. The water master of the district, or if there be no water master,
or upon his failure or neglect to do so, any six residents of the dis-
trict entitled to such common right, must give three days* public
notice of the time and place of such election, by placing printed or
written notices thereof in three of the most public places in the dis-
trict. Said meeting must be opened at ten o'clock in the forenoon, and
the majority of those present who are entitled to such common right
may organize the same and determine the manner of such election,
and whether the same shall be by ballot or otherwise.
The water master must execute to the county in which his dis-
trict is situated, and file in the office of the county recorder for the
benefit of any person who may be injured by his wanton or illegal
act or omission as such, a bond in the sum of five hundred dollars,
with two sufficient sureties which shall be approved by the judge of
the probate court of the county in which such district is situated, and
conditioned for the faithful and impartial discharge of his duties as
water master of his district, and any person so injured may have an
action on such bond in his own name for his actual damages. Such
water master may employ one or more deputies as authorized by
the inhabitants of his district claiming such common right as afore-
said, and he is liable for their wanton or illegal acts upon his official
bond, and before entering upon their duties the water master and
his deputies must take and subscribe an oath, before any magistrate,
to faithfully discharge the duties of their office, and they may receive
such compensation, to be paid in such manner, as may be agreed upon
with such users, and shall have the same power as the water masters
appointed by the water commissioners under the provisions of this
section. Said elected water master shall be under the direction and
authority of the said water commissioner.
Such water master and his deputies must regulate the distribution
of water among the several ditches of his district, and among the
several water users who are entitled and accustomed to the use
thereof, according to their respective rights and necessities, and
when the quantity of water is not sufficient to afford a full supply to
those entitled or accustomed to use the same, according to the usage
of the district, such water master and his deputies must regulate the
quantity used by each person, and the time at and during which
each person may use the same; and such customs or usage must be
upheld by the said water commissioners and by the courts of the
State, when such customs have for their object the economical dis-
tribution of the waters of such district: Provided, Nothing in this
Ch. 3.
DISTRIBUTION AMONG APPROPRIATORS
1275
section must be so construed as to interfere with the vested rights of
individuals, companies or corporations, or in any manner to interfere
with the rights of individuals, companies or corporations, to the use
and control of water, the right to the use of which is or may be their
private property.
Historical: Laws 190 3, 22 3, Sec. 2 4.
Duties of Water Master: The water
master cannot be required to go be-
yond the provisions of the decree to
ascertain whether or not the same is
supported by the findings or whether
there is a conflict between the find-
ings and decree, but he can look only
to the decree for his instructions as to
the amount of water to be distributed
to each claimant. Stethem v. Skinner
(1905) 11 Ida. 374; 82 Pac. 451.
Reports of Water Masters.
Sec. 3276. All water masters shall make reports to the water com-
missioner of their division as often as may be deemed necessary by
said commissioner. Said reports shall contain the following infor-
mation: The amount of water necessary to supply all the ditches,
canals and reservoirs of the district; the amount of water actually
coming into the district to supply such ditches, canals or reservoirs,
whether such supply is on the increase or decrease ; what ditches, ca-
nals and reservoirs are at times without their proper supply, and the
probability as to what the supply will be during the period before the
next report will be required, and such other information as the water
commissioner of the division may suggest. Said water commissioner
shall carefully file and preserve such reports, and shall from them
ascertain what ditches, canals and reservoirs are, and what are not,
receiving their proper supply of water, and if it shall appear that
in any district of that division, any ditch, canal or reservoir is re-
ceiving water whose priority post-dates that of the ditch, canal or res-
ervoir in another district as ascertained from his register, he shall
at once order such post-date ditch, canal or reservoir shut down, and
the water given to the elder ditch, canal or reservoir, his orders be"ng
directed at all times to the enforcement of priority of appropriation,
according to his tabulated statement of priorities, to the whole divi-
sion, and without regard to the district within which the ditches, ca-
nals or reservoirs may be located. The reports of water masters to
the water commissioners of irrigation shall be filed and kept in the
office of the State Engineer.
Historical: Laws 1903, 2 2 3, Sec. 2 5.
Distribution of Water.
Sec. 3277. It shall be the duty of said water master to divide the
water in the natural stream or streams of his district among the
several ditches taking water therefrom, according to the prior rights
of each respectively in whole or in part, and to shut and fasten, or
cause to be shut and fastened, under the direction of the water com-
missioner of his water district, the headgates of ditches heading in
any of the natural streams of the district, when, in times of scarcity
of water, it is necessary so to do by reason of priority of rights of
others taking water from the same stream or its tributaries.
Historical: Laws 19 03, 223, Sec. 26.
First part of section. The last half
which is penal in effect, constitutes
Sec. 7148a of the Penal Code.
1276 IRRIGATION Tit. 9
When Water Master Shall Begin Work.
Sec. £278. Said water masters shall not begin their work until
they have been called upon by two or more owners or managers of
ditches, or persons controlling ditches, in the several districts, by
application in writing, stating that there is a necessity for the use
of water, and they shall not continue performing services after the
necessity therefor shall cease.
Historical: Laws 19 03, 2 23, Sec. 2 7.
Water Master May Employ Assistants.
Sec. 3279. Said water master shall have power, in case of emer-
gency, with the approval of the water commissioner, to employ suit-
able assistants to aid him in the discharge of his duties, who shall
take the same oath as the water master, and shall obey
his instructions, and shall be entitled to not to exceed three
dollars per day for every day they are employed, to be paid upon cer-
tificates of the water commissioner in the same manner as provided
for the payment of water masters: Provided, That not more than
one assistant shall be appointed to each twenty miles of the stream
whose waters have been allotted.
Historical: Laws 19 03, 22 3, Sec. 2 8.
Compensation of Water Masters.
Sec. 3280. Water masters herein provided for, shall each be en-
titled to pay at the rate of not to exceed four dollars per day, for each
day he shall be actually employed in the duties of his office. Said
water master shall make up a sworn statement, which shall be ap-
proved by the water commissioner, and shall show the number of days
said water master has devoted to the distribution of such water, and
the number of days his assistant or assistants have devoted to the
same purpose, and such statement shall also show the volume of water,
stated in cubic feet per second, he has, by virtue of the allotment of
said waters, delivered to each user each day, and shall describe the
lands to which said water was so delivered. The pay for the services
of said water master and his assistants shall be a charge against the
land of the users to which said water was so delivered, the expense
for said services being first divided between all classes as to priority
of allotment or decree, in the proportion which the number of days
such water is received by all users in the same class of priority of
allotment or decree, bears to the whole number of days said water
master is engaged in distributing said water; the amount charged to
each user in the same class of priority of allotment or decree, bearing
the same proportion to the amount charged to all users in the same
class of priority of allotment or decree, as the volume of water deliv-
ered to each user bears to the whole amount delivered to all of like
class of priority of allotment or decree, by the said water master and
his assistants. This statement, which shall show the proper distri-
bution of the said expenses among the various users, shall be filed with
the auditor and recorder of the county or counties in which the said
water was delivered : Provided, That when any portion of the allotted
waters is distributed by said water master to the canal of any duly
organized canal company, the amount of the expense chargeable for
Ch. 3. DISTRIBUTION AMONG APPROPRIATORS 1277
such services shall be a charge against such canal, and the amount
of such charge to be paid by the county in the manner herein pro-
vided, shall be charged as a tax against such canal, which tax shall
be collected in the manner provided by law for the collection of other
taxes, and no canal in this State shall be exempt from the payment of
such tax.
Historical: Laws 190 3, 22 3, Sec. 29;
amended Laws 1907, 482, Sec. 1. -•
Same: Payment and Collection from Water-Users.
Sec. 3281. A bill, based upon such statement, for the services per-
formed by the said water master and his assistants, shall be presented
at a regular meeting of the board of county commissioners, who shall
order a warrant issued to said water master or his assistants on the
current expense fund of the county. The auditor and recorder of
said county shall add to the amounts charged to the land of the users,
and to such ditches to which said water was delivered, to the taxes
of said land or ditches as may be levied for the following year, which
shall be collected along with other taxes, and turned into the current
expense fund of the county.
Historical: Laws 1903, 2 2 3, Sec. 30.
"Levied" inserted before "for the fol-
lowing year" to complete the sense.
Headgates and Measuring Devices.
Sec. 3282. The appropriator of any of the public waters of the
State shall maintain, to the satisfaction of the water commissioner
of the district in which such appropriation is made, a substantial
headgate at the point where the water is diverted, which shall be of
such construction that it can be locket and kept closed by the water
master or other officer in charge; and such appropriator shall con-
struct and maintain, when required by the water commissioner, a
rating flume or other measuring device as near the head of such ditch
as is practicable, for the purpose of assisting the water master in
determining the amount of water that may be diverted into said ditch
from the stream. Plans for such rating flumes or other measuring
devices shall be furnished by the State Engineer. It shall also be
the duty of those taking water from a stream whose waters have been
allotted, to place at suitable intervals on said stream, under the direc-
tion of the water commissioner of the division in which such stream
is situated, suitable measuring devices, so that the flow of such stream
may be properly measured. If any user or appropriator of public
waters that may or may not have been allotted, should neglect or re-
fuse to put in such headgates or measuring devices as will provide
for the proper distribution of said water according to the rights of
the several parties entitled to the use thereof, after ten days' notice
to do so by the water commissioner, it shall be the duty of said com-
missioner to put in such headgates, flumes or measuring devices, at
the expense of the county where the expense is incurred, and said
water commissioner shall make up a sworn statement of the cost of
such headgates, flumes or measuring devices, which shall be presented
to the board of county commissioners at their first regular meeting
after the performance of such work, and said county commissioners
1278
IRRIGATION
Tit. 9
shall present a bill of costs to the owners of said ditch or ditches:
Provided. That if the owner of any such ditch shall refuse or neglect
for ten days after the presentation of such bill of costs to pay the
same, or any other charge made against such ditch or the owner
thereof under the provisions of this chapter, the water commissioner
shall order the headgate of such ditch closed and locked, and such
headgate shall remain closed and locked until such charge or charges
shall be paid.
Historical: Laws 1899, 22 3, Sec. 31.
Rules Governing Distribution of Water.
Sec. 3283. Such water commissioner shall, in the distribution of
water from the streams to the canals, be governed by this title and
the practices followed by the irrigators on the various streams and
under the various ditches in his division, where such practices have
for their object the economical use of the common water supply, but,
for the better discharge of his duties, he shall have full authority to
enforce such other regulations as may be devised by the Board of
Irrigation as will secure the equal and fair distribution of water, and
tend to reduce the waste or loss from seepage or evaporation during
irrigation to the minimum, or increase the efficiency of the quanti-
ties allotted to the irrigators.
Historical: Laws 1903. 223. Sec. 32.
CHAPTER 4.
DISTRIBUTION TO CONSUMERS.
Section
32 8 4. Appointment of water master.
3285. Injuring ditch or headgate.
328 6. Water companies to furnish
headgates and measuring de-
vices.
3287. Division of land into classes by
priority.
3288. Companies to deliver water as
agreed: Users from common
lateral.
Section
32 89. Company to furnish water on
demand.
3290. Application for water.
3291. Sale or rental constitutes a
dedication .
3292. Consumer's title not affected by
transfer of ditch.
3293. Liability for waste of water.
Appointment of Watermaster.
Sec. 3284. It shall be the duty of those owning or controlling any
ditch, canal or conduit to appoint a superintendent, or water master,
whose duty it shall be to measure the water from such ditch, canal or
conduit through the outlets of those entitled thereto, according to his
or her pro rata share.
Historical: Laws 1899, 38 0, Sec. 17.
Injuring Ditch or Headgate.
Sec. 3285. Any person who, without the consent of the water mas-
ter of the district, diverts any water from the ditch or channel where
it was placed, or caused, or left to run by the water master or his
deputies, or who shuts or opens any ditch, gate or dam with intent
so to divert any water, and thereby deprive any person of the use
of the same during any part of the time he is entitled to such use, or
Ch. 4.
DISTRIBUTION TO CONSUMERS
1279
who, without the consent of the water master, cuts any ditch or the
banks thereof, or breaks or destroys any gate or flume, is liable in a
civil action to any person injured thereby in three times the actual
damage sustained in consequence of any such wrongful act or acts.
Historical: Rev. St. 1887, Sec. 32 05.
11 Ter. Ses. (1881) 275. Omitting the
words "is guilty of a misdemeanor",
which are superseded by Laws 1899,
336, Sec. 3 (Code Sec. 7144b) defining
the same offense.
Water Companies to Furnish Headgates and Measuring Devices.
Sec. 3286. Any person, association or corporation delivering or
distributing water under any fixed annual charge or rental, shall pro-
vide the necessary gates and measuring devices to render possible
and practicable a measurement of the quantity of water being deliv-
ered to any consumer (or number of consumers using a common lat-
eral or distributing ditch) ; and the price charged for the annual
use of the water so distributed shall be in proportion to the quantity
of water delivered from the works of such person, association or cor-
poration. Such measuring devices shall be of such a character, and
provided with such gauges or scales, that the quantity of water be-
ing delivered at any time can be ascertained by inspection ; and shall
be of such general plan as shall meet with the approval of the State
Engineer, who shall inspect any such devices whenever possible to
ascertain their character, and he shall furnish such general informa-
tion and instructions to any consumer, or the water master of any
number of consumers of water, as may be necessary to enable him
to ascertain the quantity of water flowing through any such measur-
ing device.
Historical: Laws 1897, 127, Sec. 2.
Omitting the provisos; the first was
repealed by the general repealing
clause of Laws 1899, 408, Sec. 59; the
second was temporary in its applica-
tion, and the third, providing for the
publication of regulations and appeals
to the District Court, conflicts with
the scheme of control by the county
commissioners prescribed by Laws
1899, 380.
Division of Land Into Classes by Priority.
Sec. 3287. When any ditch, canal, or reservoir delivering or dis-
tributing water to several users, has one or more rights or priorities
by reason of enlargements made from time to time, the right of the
land being irrigated by such works shall be divided into classes ; rights
of the first class belonging to those lands reclaimed between the
dates of the first and second priorities or rights of such works ; rights
of the second class belonging to those lands reclaimed between the
dates of the second and third priorities of such works ; rights of any
other class being determined in like manner; but all the rights be-
longing to the same class shall be equal and subject alike to the reg-
ulations of their respective class.
Historical: Laws 1901, 191, Sec. 9a.
Companies to Deliver Water as Agreed: Users From Common Lateral.
Sec. 3288. Any person, association or corporation which may con-
tract to deliver a certain quantity of water to any party or parties,
shall deliver the same to such party or parties, together with a rea-
sonable and necessary allowance for loss by evaporation and seepage,
1280 IRRIGATION Tit. 9
at some convenient point on the main ditch, canal or reservoir of
said person, association or corporation, or on any branch or lateral
thereof belonging to the owner or owners of such ditch, canal or
reservoir. Where two or more parties take water from said ditch,
canal or reservoir at the same point, to be conveyed to their respec-
tive premises for any distance through the same lateral or distrib-
uting ditch, such parties shall, on or before April first of each year,
select some person to have charge during the succeeding season of
the distribution of water from such lateral, whose duty it shall be
to ascertain and see that the amount of water to which each of the
parties interested is entitled is properly apportioned and distributed.
It shall be his further duty to see that the said person, association
or corporation contracting to furnish such water shall deliver the
amount as provided in this section; and, in case of dispute between
such person and the said person, association or corporation as to the
quantity of water to be delivered, or the amount actually delivered,
the matter shall be referred to the State Engineer. The parties en-
titled to said water shall keep their ditches and laterals in good con-
dition for carrying and distributing the same. In case the parties
entitled to the use of water as in this section stated shall neglect or
refuse to perform the duties imposed upon them by this section,
they shall have no cause for damage against the person, association or
corporation furnishing said water for failure to properly furnish and
distribute the same.
The amount to be paid by said party or parties for the delivery
of said water, which amount may be fixed by contract, or may be as
provided by law, is a first lien upon the land for the irrigation of
which said water is furnished and delivered. But if the title to said
tract of land is in the United States or the State of Idaho, then the
said amount shall be a first lien upon any crop or crops which may
be raised upon said tract of land, which said lien shall be recorded
and collected as provided by law for other liens in this State. And
any mortgage or other lien upon such tracts of land that may here-
after be given, shall in all cases be subject to the lien for price of
water as provided in this section.
Historical: Laws 1895, 174, Sec. 17. i therefore retained, although opinions
This section was not included in or may differ as to whether it is still in
covered by Laws 1899, 380, and does force,
not seem to conflict therewith. It is
Company to Furnish Water on Demand.
Sec. 3289. Any person, company or corporation owning or con-
trolling any canal or irrigation works for the distribution of water
under a sale or rental thereof, shall furnish water to any person or
persons owning or controlling any land under such canal or irrigation
works for the purpose of irrigating such land or for domestic pur-
poses, upon a proper demand being made and reasonable security be-
ing given for the payment thereof: Provided, That no person, com-
pany or corporation shall contract to deliver more water than such
person, company or corporation has a title to, by reason of having
complied with the laws in regard to the appropriation of the public
waters of this State.
Ch. 4.
DISTRIBUTION TO CONSUMERS
1281
Historical: Laws 1899, 38 0, Sec. 19.
Cross Reference: Penalty for neg-
lect to deliver water: Sec. 7149.
Action to Compel Delivery: An ap-
plicant for the use of water who has
complied with the provisions of this
act and who is refused water, al-
though the company has sufficient un-
sold water to supply him, is entitled
to a writ of mandate to compel the
delivery of water. Bardsley v. Boise
Irr. Co. (1901) 8 Ida. 155; 67 Pac.
428. But the complaint must allege
a demand and must tender compen-
sation or security for the payment of
the charges for delivery: it is insuffi-
cient to allege that the plaintiff of-
fered to secure the payment of such
charges. lb.
Remedies of Water Company: This
section does not repeal Rev. St. Sec.
3203 (Code Sec. 3311), and a water
company which delivers water to a
consumer without demanding pre-
payment of the charges therefor, may
sue at law to recover the amount of
such charges already earned by it,
but cannot shut off the consumer's
water because he refuses to make
payment. Shelby v. Farmers' etc.
Ditch Co. (1905) 10 Ida. 723; 80 Pac.
222.
Application for Water.
Sec. 3290. Any person or persons owning or controlling land
which has or has not been irrigated from any such canal, shall on or
before January first of any year, inform the owner or person in con-
trol of such canal whether or not he desires the water from said canal
for the irrigation of land during the succeeding season, stating also
the quantity of water needed. In distributing water from any such
canal, ditch or conduit during any season, preference shall be given
to those applications for water for land irrigated from said canal the
preceding season, and a surplus of water, if any there be, shall be
distributed to the lands in the numerical order of the applications for
it. But no demand for the purchase of a so called "perpetual water
right", or any contract fixing annual charges or the quantity of
water to be used per acre, shall be imposed as a condition precedent
to the delivery of water annually as provided in this chapter ; but the
consumer of water shall be the judge of the amount and the duty of
the water required for the irrigation of his land; and the annual
charges to be made and to be fixed under the further provisions of this
title, shall hereafter be based upon the quantity of water delivered
to consumers, and shall not in any case depend upon the number of
acres irrigated by means of such amount of water delivered.
water for rental and distribution, and
in such case an applicant may enforce
the deliveery of water, although he did
not make his application prior to Jan-
uary 1st. Helphry v. Perrault (1906)
12 Ida. 451; 86 Pac. 417.
Historical: Laws 1899, 380, Sec. 20.
Cited: Bardsley v. Boise Irr. etc. Co.
(1901) 8 Ida. 155; 67 Pac. 428.
Application: This section has no
application to a case where all prior
applications for water have been sup-
plied and the ditch company still has
Sale or Rental Constitutes a Dedication.
Sec. 3291. Whenever any waters have been or shall be appropri-
ated or used for agricultural or domestic purposes under a sale,
rental or distribution thereof, such sale, rental or distribution shall be
deemed an exclusive dedication to such use upon the tract of land for
which such appropriation or use has been secured, and, whenever
such waters so dedicated shall have once been sold, rented or distrib-
uted to any person who has settled upon or improved land for agri-
cultural purposes with the view of receiving the benefit of such
water under such dedication, such person, his heirs, executors, ad-
ministrators, successors or assigns, shall not thereafter be deprived
of the annual use of the same when needed for agricultural or do-
1282
IRRIGATION
Tit. 9
mestic purposes upon the tract of land for which such appropriation
or use has been secured, or to irrigate the land so settled upon or im-
proved, upon payment therefor, and compliance with such equitable
terms and conditions as to the quantity used and times of use as may
be prescribed by law. "Domestic purposes" shall not be construed to
include any manner of land irrigation. Any person, association or
corporation violating any of the provisions of this section, shall be
liable for all damage to any party or parties injured thereby, which
damage shall be determined by the proper court.
Historical: Laws 1895, 174, Sec. 14.
This and the following- section are not
included in or covered by Laws 1899,
380. But they do not conflict with
any provision of that act and are
therefore retained.
Cross Reference: Similar provision:
Const. Art. 15, Sec. 4.
Conditions of Use — Determination:
The terms and conditions upon which
a person is to be entitled to the use of
water from a ditch or canal company
are to be determined by the courts.
Wilterding- v. Green (1896) 4 Ida.
773; 45 Pac. 134.
Consumer's Title Not Affected by Transfer of Ditch.
Sec. 3292. When any payment is made under the terms of a con-
tract, by means of which payment a perpetual right to the use of
water necessary to irrigate a certain tract of land is secured, said
water right shall forever remain a part of said tract of land, and the
title to the use of said water can never be affected in any way by any
subsequent transfer of the canal or ditch property or by any fore-
closure or any bond, mortgage or other lien thereon; but the owner
of said tract of land, his heirs or assigns, shall forever be entitled to
the use of the water necessary to properly irrigate the same, by com-
plying with such reasonable regulations as may be agreed upon, or
as may from time to time be imposed by law. And said payment for
said water right shall be a release of any bond or mortgage upon the
canal property of the person or company from whom such right is
purchased or their successors or assigns, to the amount of such water
right thus purchased and paid for, and said person or company from
whom such water right is purchased shall furnish to the party or
parties purchasing such right, a release, or a good and sufficient bond
for a release, from said mortgage, or bonded indebtedness to the
amount of the water right thus purchased.
Historical: Laws 18 9 5, 17 4, Sec. 16.
Liability for Waste of Wa+er.
Sec. 3293. No person entitled to the use of water from any such
ditch or canal, must, under any circumstances, use more water than
good husbandry requires for the crop or crops that he cultivates ; and
any person using an excess of water, is liable to the owner of such
ditch or canal for the value of such excess ; and in addition thereto, is
liable for all damages sustained by any other person, who would have
been entitled to the use of such excess of water, as fixed by this sec-
tion.
Historical: Rev. St. 1887, Sec. 3190.
11 Ter. Ses. (1881) 273.
Ch. 5.
FIXING WATER RATES
1283
Secti<
Dn
Section
3294.
Application to county commis-
sioners.
3297.
3295.
Setting- date for hearing.
3298.
3296.
Service of notice of hearing.
CHAPTER 5.
FIXING WATER RATES.
Conduct of hearing: Order:
Appeal.
Matters considered in fixing
rate.
Application to County Commissioners.
Sec. 3294. The county commissioners of each county now organized,
and of each county to be hereafter organized in this State, shall, at
their regular session in January of each year and at such other ses-
sions as they in their discretion may deem proper, hear and consider
all applications which may be made to them by any party or parties
interested in either furnishing or delivering for compensation, or by
any person or persons using or consuming, water for irrigation or
other beneficial purpose or purposes from any ditch, canal or conduit,
the whole or any part of which shall be in such county, which applica-
tion shall be supported by such affidavit as the applicant or applicants
may present, showing reasonable cause for such board of county
commissioners to proceed to fix a maximum rate of compensation for
water thereafter delivered from such ditch, canal or conduit within
such county: Provided, That when any ditch, canal or conduit shall
extend into two or more counties, the county commissioners of each
of such counties shall fix the maximum rate for water used in that
county.
Historical: Laws 1899, 380, Sec. 26.
Cross Reference: The Legislature
may provide the manner in which rea-
sonable maximum rates for the use
of water may be established: Const.
Art. 15, Sec. 6.
Setting Date for Hearing.
Sec. 3295. Every such board of county commissioners shall, upon
examination of such affidavit or affidavits, or from the oaths of wit-
nesses thereto, if they find that the facts sworn to show the applica-
tion to be in good faith, and that there are reasonable grounds to be-
lieve that unjust rates of compensation are, or are likely to be,
charged or demanded for water from such ditch, canal or conduit,
enter an order fixing a day not sooner than ten days thereafter, nor
later than twenty days (a special meeting may be called for that pur-
pose), when they will hear all parties interested in such water works
aforesaid, or in procuring water therefrom, for any of the said pur-
poses as well as all documentary or oral evidence or depositions taken
according to law, touching said ditch or other water works aforesaid,
and the cost of furnishing water therefrom.
Historical: Laws 189 9, 380, Sec. 2 7.
Service of Notice of Hearing.
Sec. 3296. At the time so fixed all persons interested as aforesaid,
on either side of the controversy, in lands which may be irrigated by
such ditch or other water works aforesaid, may appear by themselves
or by their agents or attorneys, and said commissioners shall then
proceed to take action in the matter of fixing such rates of compensa-
tion for the delivery of water: Provided, The applicant or appli-
1284 IRRIGATION Tit. 9
cants, if the application be made by a party or parties as aforesaid
desirous of procuring water, shall, within ten days from the time of
entering the said order fixing the hearing, cause a copy of such or-
der, duly certified, to be delivered to the owner or owners of such
ditch, canal or conduit or to the president, secretary, or agent of the
company, if it be owned by a corporation or association having such
officers; if any such owner cannot be found, a copy shall be left at
the usual place of business of the company of which he is such officer,
or at his residence if such company have no place of business. And if
such ditch or water works aforesaid shall be owned by several owners,
not being an incorporated company, it shall be sufficient to serve such
notice by delivering a copy to a majority of them. If the applicant
be the owner or party controlling such ditch, canal or conduit, such
notice shall be given by causing printed copies of such order in hand
bill form, in conspicuous type, to be posted securely in ten or more
places throughout the county and section watered by such ditch or
other water works aforesaid, if the water be used for irrigation. The
person or persons making such services or posting such printed
copies shall make affidavit of the manner in which the same has been
done, which affidavit shall be filed with the board of county commis-
sioners. Depositions mentioned in the preceding section to be used
before said commissioners shall be taken by any officer in the State
authorized by law to take depositions, upon reasonable notice being
given to the opposite party of the time and place of taking the same.
Historical: Laws 189 9, 380, Sec. 28.
Conduct of Hearing: Order: Appeal.
Sec. 3297. Said board of commissioners may adjourn or postpone
any hearing from time to time as may be found necessary ; but when
in session they shall hear and examine all legal testimony or proofs
offered by any party interested as aforesaid, as well as concerning the
original cost and present value of the works and structure of such
ditch, canal or conduit, as well as the cost and expense of maintaining
and operating the same, and all matters which may affect the estab-
lishment of reasonable maximum rates for water to be furnished and
delivered therefrom, and they may issue subpoenas for witnesses
which subpoenas shall be served in the same manner in which sub-
poenas are served in civil cases; and said board may also issue sub-
poenas for the production of all books and papers required before
them. The District Court of the proper county, or the Judge thereof in
vacation, may, in case of refusal to obey the subpoenas of the board
of county commissioners, compel obedience thereto, or punish for
refusal to obey after hearing, as in cases of attachment for contempt
of such District Court. Upon hearing and considering all the evi-
dence and facts and matters involved in the case, said board of county
commissioners shall enter an order describing the ditch, canal or
conduit, or other water works in question, with sufficient certainty,
and fixing a just and reasonable maximum rate of compensation for
water thereafter delivered from such ditch or other water works as
last aforesaid, within the county in which such commissioners act;
and such rate shall not be changed within one year from the time
when such rate shall be so fixed: Provided, That an appeal may be
Ch. 6.
RIGHTS OF WAY
1285
taken to the District Court from any act, order or proceeding of the
board by any person or corporation aggrieved thereby, as in other
cases under the general statute of the State of Idaho, governing ap-
peals from an order or proceeding of the board of county commis-
sioners.
Historical: Laws 18 99, 380, Sec. 29;
amended Laws 1905, 3, Sec. 1.
Cross Reference: Provisions gov-
erning appeaiS from county commis-
sioners: Sees. 1950-1953.
Appeal: This section expressly
confers jurisdiction upon the District
Court to hear appeals from orders of
boards of county commissio'n'ers fixing
water rates. Rust v. Stewart (19 01)
7 Ida. 558; 64 Pac. 222.
Matters Considered in Fixing Rate.
Sec. 3298. In fixing the rates at which water shall be furnished,
the board of commissioners shall take into consideration the cost of
the works, the expense of keeping the same in repair, and all other
conditions that affect the cost of delivering the same. Whenever it
shall appear to the board of county commissioners from com-
petent evidence that any consumer or consumers of water distrib-
uted through any ditch or canal, is entitled to the distribution or
use of any water therefrom, at not to exceed a proportionate amount
of the actual cost of maintenance and operation of said ditch or
canal, they shall, upon request of such person or persons so entitled,
fix the rate per cubic foot per second to be charged to such con-
sumer or consumers for the current year.
Historical: Laws 1989, 380, Sec. 30.
CHAPTER 6.
RIGHTS OF WAY.
Section
3299.
Rights of land owners
water.
to
3300.
Right to right of way.
3301.
Same.
3302.
Same: Over State lands.
Section
3303. Right of way for riparian pro-
prietors.
3304. Right of eminent domain.
3305. Right to cross ditches.
Rights of Land Owners to Water.
Sec. 3299. All persons, companies, and corporations, owning or
claiming any lands situated on the banks or in the vicinity of any
stream, are entitled to the use of the waters of such stream for the
purpose of irrigating the land so held or claimed.
Historical: Rev. St. 188 7, Sec. 3180.
California Legislation : See Civ.
Code 1872, Sec. 1422; Deering's Code,
ib.; repealed 1887.
Cited: (Dis. op.) Drake v. Earhart
(1890) 2 Ida. 750; 23 Pac. 541.
Riparian Rights Repucliatel : In
the dissenting opinion in Drake v.
Earhart, supra, Justice Berry cited
this section in support of the applica-
tion of the doctrine of riparian rights
to the irrigation law, but the majority
of the court, without citing this sec-
tion, declared in effect that the doc-
trine of riparian rights has no place
in the jurisprudence of this State.
Right to Right of Way.
Sec. 3300. When any such owners or claimants to land have not
sufficient length of frontage on a stream to afford the requisite fall
1286
IRRIGATION
Tit. 9
for a ditch, canal, or other conduit on their own premises for . the
proper irrigation thereof, or where the land proposed to be irrigated
is back from the banks of such stream, and convenient facilities oth-
erwise for the watering of said lands cannot be had, such owners or
claimants are entitled to a right of way through the lands of others,
for the purposes of irrigation : Provided, That in the making, con-
structing, keeping up, and maintenance of such ditch, canal or con-
duit, through the lands of others, the person, company, or corpora-
tion, proceeding under this section, and those succeeding to the in-
terests of such person, company, or corporation, must keep such
ditch, canal, or other conduit in good repair, and are liable to the
owners or claimants of the lands crossed by such work or aqueduct,
for all damages occasioned by the overflow thereof, or resulting from
any neglect or accident (unless the same be unavoidable) to such
ditch or aqueduct.
Historical: Rev. St. 18 8 7, Sec. 3181,
11 Ter. Ses. (1881) 269.
Same.
Sec. 3301. Where the owners of any spring, or the appropriators
thereof, or of any stream, desire to conduct the waters thereof to
any lands for purposes of irrigation, or to any city or town for the
use of the inhabitants thereof, or to any factory, or to any distant
place, with the intent to apply the same to a beneficial use, and to
accomplish such object it is necessary to cross with ditches, flumes
or other conduit, the lands owned or occupied by others than the
owners or appropriators of such spring or stream, the right of way
over and across the lands of others for conducting said water may
be acquired in the manner above provided.
Historical: Rev. St. 1887, Sec. 3185,
11 Ter. Ses. (1881) 271.
Same : Over State Lands.
Sec. 3302. The right of way over and upon any and all lands
owned or controlled by the State of Idaho is hereby granted to any
and all persons for the purpose of constructing and maintaining any
ditch, canal, conduit or other works for the diversion or carrying of
water for any beneficial use : Provided, That no property shall be
taken under the provisions of this section until a just compensation
shall be paid therefor, to be ascertained in the manner prescribed by
law for the taking of private property for a public use.
Historical: Laws 1899, 380, Sec. 13.
Cross Reference: Procurement of
right of way over State lands: Sec.
1635.
Condemnation of State Lands: This
section, taken in conjunction with Re-
vised Statutes, Sec. 5212, authorizes
an action in the District Court to con-
demn State lands for a public use.
Hollister v. State (1903) 9 Ida. 8; 71
Pac. 541.
Right of Way for Riparian Proprietors.
Sec. 3303. All persons, companies and corporations, owning or
having the possessory title or right to lands adjacent to any stream,
have the right to place in the channel or upon the banks or margin
of the same, rams or other machines for the purpose of raising the
Ch. 7.
MAINTENANCE OF DITCHES
1287
waters thereof to a level above the banks, requisite for the flow
thereof to and upon such adjacent lands; and the right of way over
and across the lands of others, for conducting said waters, may be
acquired in the manner prescribed in the following section.
Historical: Rev. St. 1887 Sec. 3184.
11 Ter. Ses. (1881) 2 71. "The follow-
ing section" inserted for "the last two
sections." Those sections were super-
seded by the following section.
Right of Eminent Domain.
Sec. 3304. In case of the refusal of the owners or claimants of
any lands, through which any ditch, canal or conduit is proposed to
be made or constructed, to allow passage thereof, the person or per-
sons desiring the right of way may proceed as in the law of emi-
nent domain.
Historical: Laws 1899, 380, Sec. 14.
Cross Reference: Law of eminent
domain: Sees. 5210-5229.
Right to Cross Ditches.
Sec. 3305. Any person, company, or corporation, owners of any
ditch, flume or other conduit, cannot lawfully deny to any other per-
son, company or corporation the right to cross their right of way
with another ditch, flume or conduit either upon a higher or lower
level, where the same can be done in a convenient and safe manner:
Provided, That such second person, company or corporation shall
be liable for all damages that may accrue from the construction of
such ditch, flume, or other conduit across the conduit of another.
Historical: Laws 1899, 380, Sec. 10.
last half of section. The first portion
applied only to appropriations made
prior to the law of 1899, and that law,
in so far as it relates to the subject of
appropriation, is repealed by the law
of 1903, 223. The portion of the sec-
tion retained is generalized, so as to
apply to "any person, company or cor-
poration" and all ditches, whereas it
referred strictly to "such" persons and
ditches, i. e. ditches existing prior to
the 1899 law. It did not seem feasible
to preserve the section in its literal,
restrictive form, and the principle is
thought applicable to all ditches.
CHAPTER 7.
MAINTENANCE AND REPAIR OF DITCHES.
Section
3306.
3307.
3308.
3309.
Ditches to be kept full.
Maintenance of ditch.
Maintenance of embankments.
Prevention of damage to oth-
ers.
Section
3310. Bridges over ditches.
3311. Repair of community ditches.
3311a. Change of lateral ditch.
Ditches to Be Kept Full.
Sec. 3306. Every person, company or corporation owning or con-
trolling any ditch, canal or conduit for the purpose of irrigation shall,
during the time from April first to the first day of November of
each year, keep a flow of water therein, sufficient to the requirements
of such persons as are properly entitled to the use of water there-
from: Provided, however, That when the public streams or other
natural water sources from which the water is obtained is too low
and inadequate for that purpose, then such ditch, canal or conduit
shall be kept with as full a flow of water therein as may be practic-
1288 IRRIGATION Tit. 9
able, subject, however, to the rights of priority from the streams or
other natural sources as provided by law.
Historical: Laws 18 99, 380, Sec. 15.
Maintenance of Ditch.
Sec. 3307. The owners or persons in control of any ditch, canal or
conduit used for irrigating purposes, shall maintain the same in good
order and repair, ready to deliver water by the first of April in each
year, and shall construct the necessary outlets in the banks of the
ditches, canals or conduits for a proper delivery of water to persons
having rights to the use of the water.
Historical: Laws 18 99, 38 0, Sec. 16.
Maintenance of Embankments.
Sec. 3308. The owner or owners of any irrigating ditch, canal or
conduit shall carefully keep and maintain the embankments thereof
in good repair, in order to prevent the water from wasting during
the irrigation season, and shall not at any time permit a greater quan-
tity of water to be turned into said ditch, canal or conduit than the
banks thereof will easily contain or than can be used for beneficial
or useful purposes; it being the meaning of this section to prevent
the wasting and useless discharge and running away of water.
Historical: Laws 189 9, 38 0, Sec. 22.
Cross Reference: Penalty for wast-
ing water: Sec. 7144.
Prevention of Damage to Others.
Sec. 3309. The owners or constructors of ditches, canals, works,
or other aqueducts, and their successors in interest, using and em-
ploying the same to convey the waters of any stream or spring,
whether the said ditches, canals, works or aqueducts be upon the
lands owned or claimed by them, or upon other lands, must carefully
keep and maintain the same, and the embankments, flumes, or other
conduits, by which such waters are or may be conducted, in good
repair and condition, so as not to damage or in any way injure the
property or premises of others.
Historical: Rev. St. 1887, Sec. 3186.
11 Ter. Ses. (1881) 271.
Bridges Over Ditches.
Sec. 3310. All owners of any ditch, canal, or conduit, or any other
means for conveying water, shall build substantial bridges not less
than sixteen feet wide, and with boards not less than two inches in
thickness (unless the same shall be on a county or State road, when
such boards shall not be less than three inches thick), at all places
where any county or State road crosses the same, or any road kept
open and used by any neighborhood of people for their benefit and
convenience. In case of neglect or refusal of such owners to build
such bridges as above required, after a notice of ten days being given
by the said board of county commissioners of the proper caunty, said
board shall proceed to the construction of the same, and shall collect
the cost thereof together with the costs of suit : Provided, That after
Ch. 7.
MAINTENANCE OF DITCHES
1289
said bridge shall have been constructed across any county or State
road in accordance with the provisions of this section, it shall there-
after be maintained at the public expense.
Historical: Laws 18 99, 3 80, Sec. 2 5.
Repair of Community Ditches.
Sec. 3311. Where a ditch is common property, or there is*a com-
mon right to the use of the water of a ditch without payment there-
for, and any labor or materials are necessary for the repair or clean-
ing of the ditch, or any gate or flume thereon or thereunto belonging,
the water master of the district may make a fair pro rata assess-
ment of labor or materials against the inhabitants of the district
claiming the use of such water, according to the benefits received by
each ; and if any person so assessed neglects or refuses, for the period
of three days after notice so to do from the water master or his
deputy, to furnish his just proportion of the necessary labor or ma-
terials, according to such assessment, he must pay his pro rata in
cash to be recovered, with costs, in an action by the water master in
his own name.
Historical: Rev. St. 18 87, Sec. 3203.
11 Ter. Ses. (1881) 275.
Remedy of Water Company: This
section is not repealed by Laws 1899,
380, and a water company which
delivers water to a consumer without
obtaining prepayment of the charges
therefor, cannot shut off the consum-
er's water because of his refusal to
pay such charges, but may maintain
an action to recover the amount of the
charges. Shelby v. Farmers' etc.
Ditch Co. (1905) 10 Ida. 723; 80 Pac.
222.
Change of Lateral Ditch.
Sec. 3311a. Where any lateral ditch has heretofore been, or may
hereafter be, constructed across the lands of another, the person or
persons owning or controlling the said land, shall have the right at
their own expense to change said lateral ditch to any other part of
said land, but such change must be made in such a manner as not to
impede the flow of the water therein, or to otherwise injure any per-
son or persons using or interested in such lateral ditch.
Historical: Laws 1907, 237, Sec. 4.
This section is also found in the Penal
Code, Sec. 7147.
TITLE 10
CONTRACTS AND OBLIGATIONS
Chapter
1. General provisions.
2. Sales.
Chapter
3. Sales of goods in bulk.
Note: Statute of frauds: Sees. 6009-6011.
CHAPTER 1.
GENERAL PROVISIONS.
Section
3312. Who may contract.
3313. Enforcement by beneficiary.
3314. Presumption of consideration.
3315. Want of consideration: Bur-
den of proof.
3316. Contracts may be oral.
3317. Contract not put in writing
through fraud.
3318. Corporate or official seal: How
affixed.
Section
3319. Distinction as to sealed instru-
ments abolished.
3320. Construction of conflicting
provisions.
3321. Limitations on right to sue.
3322. Debtor may demand receipt.
332 3. Objection to offer of perform-
ance.
Who May Contract.
Sec. 3312. All persons are capable of contracting, except minors,
persons of unsound mind, and persons deprived of civil rights.
Historical: Rev. St. 1887, Sec. 3220.
See 1 Ter. Ses. (1864) 515, Sec. 1.
California Legislation: Same: Civ.
Code 1872, Sec. 1556; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference:
contract by minor:
Contracts of insane
2606-2608.
Right to Contract: A married
woman is not "deprived of her civil
Disaffirmance of
Sees. 2603-2605.
persons: Sees.
liberty" within the meaning of this
section, so as to render her incapable
of contracting. Bassett v. Beam
(1894) 4 Ida. 106; 36 Pac. 501. This
section does not confer upon mar-
ried women the right to make any
and all contracts that may be made
by a feme sole. Dernham & Kauf-
mann v. Rowle (1896) 4 Ida. 753; 44
Pac. 643.
Enforcement by Beneficiary.
Sec. 3313. A contract, made expressly for the benefit of a third
person, may be enforced by him at any time before the parties
thereto rescind it.
Historical: Rev. St. 1887, Sec. 3221.
California Legislation : Same: Civ.
Code 1872, Sec. 1559; Deering's Code,
ib.; Kerr's Code, ib.
Presumption of Consideration.
Sec. 3314. A written instrument is presumptive evidence of a con-
sideration.
Historical: Rev. St. 1887, Sec. 3222.
California Legislation : Same: Civ.
Code 1872, Sec. 1614; Deering's Code,
ib. ; Kerr's Code, ib.
Ch. 1.
GENERAL PROVISIONS
1291
Want of Consideration: Burden of Proof.
Sec. 3315. The burden of showing a want of consideration suffi-
cient to support an instrument lies with the party seeking to invali-
date or avoid it.
Historical: Rev. St. 1887, Sec. 322 3.
California Legislation: Same: Civ.
Code 1872, Sec. 1615; Deering's Code,
ib.; Kerr's Code, ib.
Contracts May Be Oral.
Sec. 3316. All contracts may be oral, except such as are specially
required by statute to be in writing.
Historical: Rev. St. 1887, Sec. 322 4.
California Legislation : Same: Civ.
Code 1872, Sec. 1622; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Contracts re-
quired to be in writing: Sees. 6009-
6011.
Contract Not Put in Writing Through Fraud.
Sec. 3317. Where a contract, which is required by law to be in
writing, is prevented from being put into writing by the fraud of a
party thereto, any other party who is by such fraud led to believe
that it is in writing, and acts upon such belief to his prejudice, may
enforce it against the fraudulent party.
Historical: Rev. St. 1887, Sec. 3225.
California Legislation : Same: Civ.
Code 1872, Sec. 1623; Deering's Code,
ib.; Kerr's Code, ib.
Estoppel: Where defendant led
plaintiff to believe that he had signed
a written contract for an interest in
certain mining claims, and induced
plaintiff to purchase claims on which
he had options, and to otherwise ex-
pend money and time to carry out the
provisions of the greement, defend-
ant cannot assert in an action to en-
force the contract, that the contract
is void under the statute of frauds
because he did not in fact sign the
same. Ferguson v. Blood (1907) 152
Fed. Rep. 98.
Corporate or Official Seal: How Affixed.
Sec. 3318. A corporate or official seal may be affixed to an instru-
ment by a mere impression upon the paper or other material on which
such instrument is written.
Historical: Rev. St. 1887, Sec. 3226.
California Legislation : Same: Civ.
Code 1872, Sec. 1628; Deering's Code,
ib.; Kerr's Code, ib.
Distinction as to Sealed Instruments Abolished.
Sec. 3319. All distinctions between sealed and unsealed instru-
ments are abolished.
Historical: Rev. St. 1887, Sec. 32 27.
California Legislation : Same: Civ.
Code 1872, Sec. 1629; Deering's Code,
ib.; Kerr's Code, ib.
Construction of Conflicting Provisions.
Sec. 3320. Where a contract is partly written and partly printed,
or where part of it is written or printed under the special directions
of the parties, and with a special view to their intention, and the re-
mainder is copied from a form originally prepared without special
reference to the particular parties and the particular contract in
question, the written parts control the printed parts, and the parts
which are purely original control those which are copied from a form,
and if the two are absolutely repugnant, the latter must be so far
disregarded.
1292
CONTRACTS
Tit. 10
Historical: Rev. St. 18 8 7, Sec. 3228.
California Legislation: Same: Civ.
Code 1872, Sec. 1651; Deering's Code,
ib.; Kerr's Code, ib.
Limitations on Right to Sue.
Sec. 3321. Every stipulation or condition in a contract, by which
any party thereto is restricted from enforcing his rights under the
contract by the usual proceedings in the ordinary tribunals, or which
limits the time within which he may thus enforce his rights, is void.
stipulation in a building- contract to
submit differences to arbitrators
whose decision shall be final, is void.
Huber v. St. Joseph's Hospital (1905)
11 Ida. 631; 83 Pac. 768.
Historical: Rev. St. 1887, Sec. 3229.
California Legislation: Same except
"legal" inserted after "usual", line 3:
Civ. Code 1872, Sec. 1672; repealed
1874.
Stipulation for Arbitration: A
Debtor May Demand Receipt.
Sec. 3322. A debtor has a right to require from his creditor a
written receipt for any property delivered in performance of his ob-
ligation.
Historical: Rev. St. 1887, Sec. 3230.
California Legislation: Same: Civ.
Code 1872, Sec. 1499; Deering's Code,
ib.; Kerr's Code, ib.
Objection to Offer of Performance.
Sec. 3323. All objections to the mode of an offer of performance,
which the creditor has an opportunity to state at the time of the per-
son making the offer, and which could be then obviated by him, are
waived by the creditor if not then stated.
Historical: Rev. St. 1887, Sec. 3231.
California Legislation: Same: Civ.
Code 1872, Sec. 1501; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 2.
SALES.
Section
3324. Implied warranty of title.
3325. Warranty in sale by sample.
3326. Warranty of quality and quan-
tity.
332 7. Warranty of provisions.
Section
3328. Notice of election under op-
tion.
332 9. Delivery: Where to be made.
3333. Expense of transportation.
33 31. Seller as depositary.
Implied Warranty of Title.
Sec. 3324. One who sells or agrees to sell personal property as his
own, thereby warrants that he has a good and unincumbered title
thereto.
Historical: Rev. St. 1887, Sec. 32 45.
California Legislation: Same: Civ.
Code 1872, Sec. 1765; Deering's Code,
ib.; Kerr's Code, ib.
Warranty in Sale by Sample.
Sec. 3325. One who sells or agrees to sell goods by sample, thereby
warrants the bulk to be equal to the sample.
Historical: Rev. St. 1887, Sec. 32 46.
California Legislation: Same: Civ.
Code 1872, Sec. 1766; Deering's Code,
ib.; Kerr's Code, ib.
Warranty of Quality and Quantity.
Sec. 3326. One who sells any article to which there is affixed or
Ch. 3.
SALES IN BULK
1293
attached a statement or mark to express the quantity or quality
thereof, thereby warrants the truth thereof.
Historical: Rev. St. 18 87, Sec. 32 47.
California Legislation: Similar: Civ.
Code 1872, Sec. 1773; Deering's Code,
ib.; Kerr's Code, ib.
Warranty of Provisions.
Sec. 3327. One who makes a business of selling provisions for
domestic use, warrants by a sale thereof to one who buys for actual
consumption, that they are sound and wholesome.
Historical: Rev. St. 1887, Sec. 32 48.
California Legislation : Same: Civ.
Code 1872, Sec. 1775; Deering's Code,
ib.; Kerr's Code, ib.
Notice of Election Under Option.
Sec. 3328. When either party to a contract of sale has an option
as to the time, place, or manner of delivery, he must give the other
party reasonable notice of his choice; and if he does not give such
notice within a reasonable time, his right of option is waived.
Historical: Rev. St. 1887, Sec. 3 2 49.
California Legislation: Same: Civ.
Code 1872, Sec. 1756; Deering's Code,
ib.; Kerr's Code, ib.
Delivery: Where to Be Made.
Sec. 3329. Personal porperty sold is deliverable at the place
where it is at the time of the sale or agreement to sell, or if it
is not then in existence it is deliverable at the place where it is pro-
duced.
Historical: Rev. St. 18 87, Sec. 3250.
California Legislation: Same: Civ.
Code 1872, Sec. 1754; Deering's Code,
ib.; Kerr's Code, ib.
Expense of Transportation.
Sec. 3330. One who sells personal property must bring it to his
own door or other convenient place, for its acceptance by the buyer,
but further transportation is at the risk and expense of the buyer.
Historical: Rev. St. 18 87, Sec. 3251.
California Legislation: Same: Civ.
Code 1872, Sec. 1755; Deering's Code,
ib.; Kerr's Code, ib.
Seller as Depositary.
Sec. 3331. After personal property has been sold and until the
delivery is completed, the seller has the rights and obligations of a
depositary for hire, except that he must keep the property without
charge, until the buyer has had a reasonable opportunity to remove it.
Historical: Rev. St. 1887, Sec. 3252.
California Legislation: Same: Civ.
Code 1872, Sec. 1748; Deering's Code,
ib.; Kerr's Code, ib.
Duties of Seller: The seller of per-
sonal property is bound to keep the
same with at least ordinary care until
the delivery of possession of tho buy-
er, and is responsible for loss occur-
ring subsequent to the sale and prior
to the delivery, unless he shows that
such loss occurred without his fault.
Strong v. Morgan (1902) 8 Ida. 269;
67 Pac. 1123.
CHAPTER 3.
SALE OF GOODS IN BULK.
Section
33 32. Vendor to make statement of
indebtedness.
3333. Notice to creditors of vender.
Section
3334. False statement constitutes
perjury.
3335. Definition of sale in bulk.
1294 CONTRACTS Tit. 10
Vendor to Make Statement of Indebtedness.
Sec. 3332. It shall be the duty of every person who shall bargain
for or purchase any stock of goods, wares or merchandise in bulk,
for cash or credit, to demand and receive from the vendor thereof,
and if the vender be a corporation, then from a managing officer or
agent thereof, at least five days before the consummation of such bar-
gain or purchase, and at least five days before paying or delivering to
the vender any part of the purchase price or consideration therefor,
or any promissory note or other evidence of indebtedness therefor, a
written statement under oath containing the names and addresses of
all the creditors of said vender, together with the amount of indebt-
edness due or owing, or to become due or owing, by said vender to
each of such creditors, and if there be no such creditors a written
statement under oath to that effect ; and it shall be the duty of such
vender to furnish such statement at least five days before any sale or
transfer by him of any stock of goods, wares or merchandise in bulk.
Historical: Laws 1903, 11, Sec. 1. ington: Bal. An. Code (Sup.) Sec.
Comparative Legislation: See Wash- ' 3102.
Notice to Creditors of Vender.
Sec. 3333. After having received from the vender the written
statement under oath mentioned in the preceding section the vendee
shall, at least five days before the consummation of such bargain or
purchase, and at least five days before paying or delivering to the
vender any part of the purchase price or consideration therefor, or
any promissory note or other evidence of indebtedness for the same,
in good faith notify, or cause to be notified, personally or by wire or
by registered letter, each of the creditors of the vender named in
said statement, of the proposed purchase by him of such stock of
goods, wares or merchandise. Whenever any person shall purchase
any stock of goods, wares or merchandise in bulk, or shall pay the
purchase price or any part thereof, or execute or deliver to the vender
thereof, or to his order, or to any person for his use, any promissory
note or other evidence of indebtedness for said stock, or any part
thereof, without having first demanded and received from his vender
the statement under oath as provided in the preceding section, and
without having also notified or caused to be notified all of the cred-
itors of the vender named in such statement, as in this section pre-
scribed, such purchase, sale or transfer shall, as to any and all cred-
itors of the vender, be conclusively presumed fraudulent and void.
Historical: Laws 1903, 11, Sec. 2. r ington: Bal. An. Code (Sup.) Sec.
Comparative Legislation: See Wash- 3102.
False Statement Constitutes Perjury.
Sec. 3334. Any vender of a stock of goods, wares or merchandise
in bulk, who shall knowingly or wilfully make or deliver, or cause to
be made or delivered, any false statement, or any statement of which
any material portion is false, or shall fail to include the names of all of
his creditors in any such statement as is required in Section 3332, shall
be deemed guilty of perjury, and upon conviction thereof shall be pun-
ished accordingly.
Ch. 3.
SALES IN BULK
1295
Historical: Laws 1903, 11, Sec. 3.
Comparative Legislation: See Wash-
ington: Bal. An. Code (Sup.) Sec.
3102.
Cross Reference:
jury: Sec. 6486.
Penalty for per-
Definition of Sale in Bulk.
Sec. 3335. Any sale or transfer of a stock of goods, wares or mer-
chandise out of the usual or ordinary course of the business oivtrade
of the vendor, or whenever thereby substantially the entire business
or trade theretofore conducted by the vendor shall be sold or con-
veyed or attempted to be sold or conveyed to one or more persons,
shall be deemed a sale or transfer in bulk, in contemplation of this
chapter: Provided, That nothing contained in this chapter shall ap-
ply to sales by executors, administrators, receivers or any public
officer acting under judicial process.
Historical: Laws 1903, 11, Sec. 4.
Comparative Legislation: See Wash-
ington:
3102.
Bal. An. Code (Sup.) Sec.
Vol. 1—42
TITLE 11
PARTNERSHIP
Chapter
1. Special partnership.
Chapter
2. Mining- partnership.
CHAPTER 1.
SPECIAL PARTNERSHIP.
Section
3336. How formed.
3337. General and special partners.
3338. Certificate of partners.
3339. Same: Acknowledgment and
record.
3340. Affidavit of partners.
3341. When formed.
3342. Publication of certificate.
3343. Affidavit of publication.
3344. Renewal of special partnership.
3345. Authority of general partners.
3346. Authority of special partners.
3347. Loans by special partners.
3348. General partners may sue and
be sued.
3349. Withdrawal of capital.
Section
3350. Interest and profits.
33 51. Unauthorized withdrawal of
capital.
3352. Preferential transfer void.
3353. Liability of general partners.
3354. Liability of special partners.
3355. Same: Liability for uninten-
tional act.
3356. Defective creation not to en-
large liability.
3357. Special partnership becomes
general.
33 58. Admission of new special part-
ners.
3359. Dissolution of partnership.
3360. Use of special partner's name.
How Formed.
Sec. 3336. A special partnership may be formed by two or more
persons in the manner and with the effect prescribed in this chapter,
for the transaction of any business except banking or insurance.
Historical: Rev. St. 188 7, Sec. 3270.
13 Ter. Ses. (1885) 148, Sec. 1.
California Legislation: Same: Civ.
Code 1872, Sec. 2477: Deering's Code,
ib.; Kerr's Code, ib.
General and Special Partners.
Sec. 3337. A special partnership may consist of one or more per-
sons called general partners, and one or more persons called special
partners.
Historical: Rev. St. 1887, Sec. 3271.
13 Ter. Ses. C1885) 148, Sec. 2.
California Legislation: Same: Civ.
Code 1872, Sec. 2478; Deering's Code,
ib.; Kerr's Code, ib.
Certificate of Partners.
Sec. 3338. Persons desirous of forming a special partnership must
severally sign a certificate stating:
First. The name under which the partnership is to be conducted ;
Second. The general nature of the business intended to be trans-
acted ;
Ch. 1.
SPECIAL PARTNERSHIP
1297
Third. The names of all the partners, and their residences, speci-
fying which are general and which are special partners ; •
Fourth. The amount of capital which each special partner has
contributed to the common stock;
Fifth. The periods at which such partnership will begin and
end.
Historical: Rev. St. 1887, Sec. 3272,
13 Ter. Ses. (1885) 148, Sec. 3.
California Legislation: Same: Civ.
Code 1872, Sec. 2479
ib.; Kerr's Code, ib.
Deering's Code,
Same: Acknowledgment and Record.
Sec. 3339. Certificates under the last section must be acknowledged
by all the partners, before some officer authorized to take acknowl-
edgments of deeds, and recorded in the office of the recorder of the
county in which the principal place of business of the partnership is
situated, in a book to be kept for that purpose, open to public in-
spection; and if the partnership has places of business situated in
different counties, a copy of the certificate, certified by the recorder
in whose office it is recorded, must be recorded in like manner in the
office of the recorder in every such county. If any false statement is
made in any such certificate, all the persons interested in the partner-
ship are liable, as general partners, for all the engagements thereof.
Historical: Rev. St. 18 87, Sec. 32 73.
13 Ter. Ses. (1885) 148, Sec. 4.
California Legislation: Similar: Civ.
Code 1872, Sec. 2480; Deering's Code,
ib.; Kerr's Code, ib.
Affidavit of Partners.
Sec. 3340. An affidavit of each of the partners, stating that the
sums specified in the certificate of the partnership as having been
contributed by each of the special partners, have been actually and in
good faith paid, must be filed in the same office with the original cer-
tificate.
Historical: Rev. St. 1887, Sec. 32 74.
13 Ter. Ses. (1885) 148, Sec. 5.
California Legislation: Same except
"in lawful money of the United States"
inserted after "paid", line 4: Civ.
Code 1872, Sec. 2481; Deering's Code-
ib.; Kerr's Code, ib.
When Formed.
Sec. 3341. No special partnership is formed until the provisions of
the last five sections are complied with.
Historical: Rev. St. 188 7, Sec. 32 75.
13 Ter. Ses. (1885) 148, Sec 6.
California Jjestfslation : Same: Civ.
Code 1872, Sec. 2482; Deering's Code,
ib.; Kerr's Code, ib.
Publication of Certificate.
Sec. 3342. The certificate mentioned in this chapter or a state-
ment of its substance, must be published in a newspaper printed in
the county where the original certificate is filed, and if no newspaper
is there printed, then in a newspaper in this State published nearest
thereto. Such publication must be made once a week, for four suc-
cessive weeks, beginning within one month from the time of filing
the certificate. In case such publication is not so made, the partner-
ship must be deemed general.
1298
PARTNERSHIP
Tit. 11
Historical: Rev. St. 1887, Sec. 32 76.
13 Ter. Ses. (1885) 148, Sec. 7.
California Legislation: Same except
"week" for "month", line 6: Civ. Code
1872, Sec. 2483; Deering's Code, ib.;
Kerr's Code, ib.
Affidavit of Publication.
Sec. 3343. An affidavit of the making of the publication mentioned
in the preceding section made by the printer, publisher or chief clerk
of the newspaper in which such publication is made, may be filed with
the county recorder with whom the original certificate was filed, and is
presumptive evidence of the facts therein stated.
Historical: Rev. St. 1887, Sec. 3277.
13 Ter. Ses. (1885) 148, Sec. 8.
California Legislation: Same: Civ.
Code 1872, Sec. 2484; Deering's Code,
ib.; Kerr's Code, ib.
Renewal of Special Partnership.
Sec. 3344. Every renewal or continuance of a special partnership
must be certified, recorded, verified and published in the same manner
as upon its original formation.
Historical: Rev. St. 1887, Sec. 3278.
13 Ter. Ses. (1885) 148, Sec. 9.
California Legislation: Same: Civ.
Code 1872, Sec. 2485; Deering's Code,
ib. ; Kerr's Code, ib.
Authority of General Partners.
Sec. 3345. The general partners only have authority to transact
the business of a special partnership.
Historical: Rev. St. 1887, Sec. 32 79.
13 Ter. Ses. (1885) 148, Sec. 10.
California juegislation : Same: Civ.
Code 1872, Sec. 2489; Deering's Code,
ib.; Kerr's Code, ib.
Authority of Special Partners.
Sec. 3346. A special partner may at all times investigate the part-
nership affairs, and advise his partners or their agents, as to their
management.
Historical: Rev. St. 1887, Sec. 3280.
13 Ter. Ses. (1885) 148, Sec. 11.
California Legislation: Same: Civ.
Code 1872, Sec. 2490; Deering's Code,
ib.; Kerr's Code, ib.
Loans by Special Partners.
Sec. 3347. A special partner may lend money to the partnership, or
advance money for it, and take from it security therefor, and as to
such loans or advances has the same rights as any other creditor ; but
in case of the insolvency of the partnership, all other claims which he
may have against it must be postponed until all other creditors are
satisfied.
Historical: Rev. St. 1887, Sec. 3281.
13 Ter. Ses. (1885) 148, Sec. 12.
California Legislation: Same: Civ.
Code 1872, Sec. 2491; Deering's Code,
ib.; Kerr's Code, ib.
General Partners May Sue and Be Sued.
Sec. 3348. In all matters relating to a special partnership, its gen-
eral partners may sue and be sued alone, in the same manner as if
there were no special partners.
Ch. 1.
SPECIAL PARTNERSHIP
1299
Historical: Rev. St. 18 87, Sec. 3282.
13 Ter. Ses. (1885) 148, Sec. 13.
California Legislation: Same: Civ.
Code 1872, Sec. 2492; Deering's Code,
ib.; Kerr's Code, ib.
Withdrawal of Capital.
Sec. 3349. No special partner under any pretense may withdraw
any part of the capital invested by him in the partnership, dufSng its
continuance.
Historical: Rev. St. 1887, Sec. 32 83.
13 Ter. Ses. (1885) 148, Sec. 14.
California Legislation: Same: Civ.
Code 1872, Sec. 2493; Deering's Code,
ib.: Kerr's Code, ib.
Interest and Profits.
Sec. 3350. A special partner may receive such lawful interest
and such proportion of profits as may be agreed upon if not paid out
of the capital invested in the partnership by him, or by some other
special partner, and is not bound to refund the same to meet subse-
quent losses.
Historical: Rev. St. 1887, Sec. 328 4.
13 Ter. Ses. (1885) 148, Sec. 15.
California Legislation: Same: Civ.
Code 1872, Sec. 2494; Deering's Code,
ib.: Kerr's Code, ib.
Unauthorized Withdrawal of Capital.
Sec. 3351. If a special partner withdraws capital from the firm
contrary to the provisions of this chapter, he thereby becomes a gen-
eral partner.
Historical: Rev. St. 1887, Sec. 32 85.
13 Ter. Ses. (1885) 148, Sec. 16.
California Legislation: Same: Civ.
Code 1872, Sec. 2495; Deering's Code,
ib.; Kerr's Code, ib.
Preferential Transfer Void.
Sec. 3352. Every transfer of the property of a special partnership,
or of any partner therein, made after or in contemplation of the in-
solvency of such partnership or partner, with intent to give a prefer-
ence to any creditor of such partnership or partner, over any other
creditor of such partnership, is void against the creditors thereof ; and
every judgment confessed, lien created, or security given, in like man-
ner and with the like intent, is in like manner void.
Historical: Rev. St. 1887, Sec. 3286.
13 Ter. Ses. (1885) 148, Sec. 17.
California Legislation: Same: Civ.
Code 1872, Sec. 2496; Deering's Code,
in.; Kerr's Code, ib.
Liability of General Partners.
Sec. 3353. The general partners in a special partnership are liable
to the same extent as partners in a general partnership.
Historical: Rev. St. 1887, Sec. 3287.
13 Ter. Ses. (1885) 148, Sec. 18.
California Legislation: Same: Civ.
Code 1872, Sec. 2500; Deering's Code,
ib. ; Kerr's Code, ib.
Liability of Special Partners.
Sec. 3354. The contribution of a special partner to the capital of
the firm, and the increase thereof, is liable for its debts, but he is not
otherwise liable therefor, except as follows :
First. If he has willfully made or permitted a false or materially
defective statement in the certificate of the partnership, the affidavit
1300
PARTNERSHIP
Tit. 11
filed therewith, or the published announcement thereof, he is liable as
a general partner to all creditors of the firm;
Second. If he has willfully interfered with the business of the
firm, except as permitted in this chapter, he is liable in like man-
ner; or,
Third. If he has willfully joined in or assented to an act con-
trary to any of the provisions of this chapter, he is liable in like
manner.
Historical: Rev. St. 1887, Sec. 32 8 8.
13 Ter. Ses. (1885) 148, Sec. 19.
California Legislation: Same except
"Article 2 of" inserted before "this
chapter", subds. 2 and 3: Civ. Code
1872, Sec. 2501; Deering's Code, ib.;
Kerr's Code, ib.
Same: Liability for Unintentional Act.
Sec. 3355. When a special partner has unintentionally done any
of the acts mentioned in the last section, he is liable as a general part-
ner to any creditor of the firm who has been actually misled thereby
to his prejudice.
Historical: Rev. St. 1887, Sec. 32 89.
13 Ter. Ses. (1885) 148, Sec. 20.
California Legislation: Same: Civ.
Code 1872, Sec. 2502; Deering's Code,
ib.; Kerr's Code, ib.
Defective Creation Not to Enlarge Liability.
Sec. 3356. One who, upon making a contract with a partnership,
accepts from or gives to it a written memorandum of the contract,
stating that the partnership is special, and giving the names of the
special partners, cannot afterwards charge the persons thus named as
general partners upon that contract, by reason of an error or defect
in the proceedings for the creation of the special partnership, prior to
the acceptance of the memorandum, if an effort has been made by
the partners, in good faith, to form a special partnership in the man-
ner required by this chapter.
Historical: Rev. St. 1887, Sec. 32 90.
13 Ter. Ses. (1885) 148, Sec. 21.
California Legislation: Same except
"Article 1 of" inserted before "this
chapter", last words: Civ. Code, 1872,
Sec. 2503; Deering's Code, ib.; Kerr's
Code, ib.
Special Partnership Becomes General.
Sec. 3357. A special partnership becomes general if, within ten
days after any partner withdraws from it, or any new partner is
received into it, or a change is made in the nature of its business or
in its name, a certificate of such fact duly verified and signed by one
or more of the partners is not filed with the county recorder with
whom the original certificate of the partnership was filed, and notice
thereof published as is provided in this chapter for the publication
of the certificate.
Historical: Rev. St. 1887, Sec. 3291.
13 Ter. Ses. (1885) 148, Sec. 22.
California Legislation : Same except
"clerk and" inserted after "county",
line 5, and "Article 1 of" inserted be-
fore "this chapter", line 7: Civ. Code
1872, Sec. 2507; Deering's Code, ib.;
Kerr's Code, ib.
Admission of New Special Partners.
Sec. 3358. New special partners may be admitted into a special
partnership upon a certificate stating the names, residences and con-
Ch. 2.
MINING PARTNERSHIP
1301
tributions to the common stock of each of such partners, signed by
each of them, and by the general partners, verified, acknowledged,
or proved, according to the provisions of this chapter, and filed with
the county recorder with whom the original certificate of partnership
was filed.
Historical: Rev: St. 1887, Sec. 3292.
13 Ter. Ses. (1885) 148, Sec. 23.
California Legislation: Similar: Civ.
Code 1872, Sec. 2508; Deering's Code,
ib.; Kerr's Code, ib.
Dissolution of Partnership.
Sec. 3359. A special partnership is subject to dissolution in the
same manner as a general partnership, except that no dissolution by
the act of the partners is complete until a notice thereof has been
filed and recorded in the office of the county recorder, with whom the
original certificate was recorded, and published once in each week for
four successive weeks, in a newspaper printed in each county where
the partnership has a place of business.
Historical: Rev. St. 18 87, Sec. 3293.
13 Ter. Ses. (1885) 148, Sec. 24.
California Legislation : Same except
"clerk and" inserted after "county"
line 4: Civ. Code 1872, Sec. 2509
Deering's Code, ib.; Kerr's Code, ib.
Use of Special Partner's Name.
Sec. 3360. The name of a special partner must not be used in the
firm name of partnership, unless it be accompanied with the word
"limited."
Historical: Rev. St. 1887, Sec. 32 94.
13 Ter. Ses. (1885) 148, Sec. 25.
California Legislation: Same: Civ.
Code 1872, Sec. 2510; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 2.
MINING PARTNERSHIP.
Section
3361. When mining partnership ex-
ists.
3362. Express agreement not neces-
sary.
3363. Shaiing profits and losses.
336 4. Lien of partners and creditors.
3365. Mine partnership property.
3366. Sale of interest by partner.
3367. Liability of purchaser.
Section
3368. Same.
336 9. Members cannot bind partner-
ship.
3370. Majority of shares governs.
3371. Partnership contracts may be
recorded.
3372. Record constructive notice.
When Mining Partnership Exists.
Sec. 3361. A mining partnership exists when two or more persons
who own or acquire a mining claim for the purpose of working it and
extracting the mineral therefrom, actually engage in working the
same.
Historical: Rev. St. 188 7, Sec. 3300.
California Legislation: Same: Civ.
Code 1872, Sec. 2511; Deering's Code,
it.; Kerr's Code, ib.
Definition: The term, "mining
claim", as used herein, includes pat-
ented as well as unpatented mining
ground. (Dis. op.) Salisbury v. Lane
(1900) 7 Ida. 370; 63 Pac. 383.
Constitution of Mining Partnership:
Parties who acquire a mine for the
purpose of working it and actually en-
gage in working the same, comprise a
minmg partnership although they do
1302
PARTNERSHIP
Tit. 11
not own the same. Haskins v. Curran
(1895) 4 Ida. 573; 43 Pac. 559. Nor is
it necessary that all the co-owners in
the claim shall engage in working it,
either together or separately, in or-
der to constitute a mining partnership.
Hawkins v. Spokane Hydraulic Mining
Co. (1891) 3 Ida. 241; 28 Pac. 433.
Express Agreement Not Necessary.
Sec. 3362. An express agreement to become partners or to share
the profits and losses of mining is not necessary to the formation or
existence of a mining partnership. The relation arises from the
ownership of shares or interests in the mine and working the same
for the purpose of extracting the minerals therefrom.
Historical: Rev. St. 1887, Sec. 3301.
California Legislation: Same: Civ.
Code 1872, Sec. 2512; Deering's Code,
i'o.; Kerr's Code, ib.
Cited: Hawkins v. Spokane etc. Min.
Co. (1893) 3 Ida. 650; 33 Pac. 40.
Agreement Unnecessary: A mining
partnership exists without any agree-
ment, either expressed or implied, and
the relation differs in this from that of
tenants in common. Hawkins v. Spo-
kane Hydraulic Min. Co. (1891) 3 Ida.
241; 28 Pac. 433.
Sharing Profits and Losses.
Sec. 3363. A member of a mining partnership shares in the profits
and losses thereof in the proportion which the interest or share he
qwns in the mine, bears to the whole partnership capital or whole
number of shares.
Historical: Rev. St. 1887, Sec. 330 2.
California Legislation: Same: Civ.
Code 1872, Sec. 2513; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Hawkins v. Spokane Hy-
draulic Mine Co. (1891) 3 Ida. 241;
28 Pac. 433; (1893) 3 Ida. 650; 33
Pac. 40.
Lien of Partners and Creditors.
Sec. 3364. Each member of a mining partnership has a lien on
the partnership property for the debts due the creditors thereof,
and for money advanced by him for its use. A lien exists in favor
of the creditors notwithstanding there is asi agreement among the
partners that it must not.
Historical: Rev. St. 188 7, Sec. 330 3.
California Legislation: Same except
"This lien exists" for "A lien exists in
f&vor of th.e creditors", line 3: Civ.
Code 1872, Sec. 2 514, Deering'.; Code,
ib. ; Kerr's Code, ib.
Cited: Hawkins v. Spokane etn. Min.
Co. (1893) 3 Ida. 650; 33 Pac. 40.
Mine Partnership Property.
Sec. 3365. The mining ground owned and worked by partners in
mining, whether purchased with partnership funds or not, is part-
nership property.
Historical: Rev. St. 1887, S^c. 3304.
California Legislation: Same: Civ.
Code 1872, Sec. 2515; Deering's Code,
ib.; Kerr's Code, ib.
Criticized: Hawkins v. Spokane etc.
Min. Co. (1893) 3 Ida. 650; 33 Pac. 40.
Partnership Property: The mining
ground is partnership property,
whether purchased with partnership
or individual funds. Hawkins v. Spo-
kane Hydraulic Min. Co. (1891; 3 Ida.
241; 28 Pac. 433.
Sale of Interest by Partner.
Sec. 3366. One of the partners in a mining partnership may con-
vey his interest in the mine and business without dissolving the part-
nership. The purchaser, from the date of his purchase, becomes a
member of the partnership.
Ch. 2.
MINING PARTNERSHIP
1303
Historical: Rev. St. 1887, Sec. 3305.
California Legislation: Same: Civ.
Code 1872, Sec. 2516; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Hawkins v. Spokane etc. Min.
Co. (1893) 3 Ida. 650; 33 Pac. 40.
Liability of Purchaser.
Sec. 3367. A purchaser of an interest in the mining grouna of a
mining partnership takes it subject to the liens existing in favor of
the partners for debts due all creditors thereof, or advances made for
the benefit of the partnership unless he purchased in good faith, for
a valuable consideration, without notice of such lien.
Cited: Hawkins v. Spokane etc. Min.
Co. (1893) 3 Ida. 650; 33 Pac. 40.
Historical: Rev. St. 188 7, Sec. 3306.
California Legislation: Same: Civ.
Code 1872, Sec. 2517; Deering's Code,
ib.; Kerr's Code, ib.
Same.
Sec. 3368. A purchaser of the interest of a partner in a mine
when the partnership is engaged in working it, takes with notice of
all liens resulting from the relation of the partners to each other and
to the creditors of the partnership.
Historical: Rev. St. 1887, Sec. 3307.
California Legislation: Same: Civ.
Code 1872, Sec. 2518; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Hawkins v. Spokane etc. Min.
Co. (1893) 3 Ida. 650; 33 Pac. 40.
Members Cannot Bind Partnership.
Sec. 3369. No member of a mining partnership or other agent or
manager thereof can, by a contract in writing, bind the partnership
except by express authority derived from the members thereof.
Historical: Rev. St. 1887, Sec. 3308.
California Legislation: Same: Civ.
Code 1872, Sec. 2519; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Hawkins v. Spokane etc. Min.
Co. (1893) 3 Ida. 650; 33 Pac. 40.
Majority of Shares Govern.
Sec. 3370. The decision of the members owning a majority of
the shares or interests in a mining partnership, binds it in the con-
duct of its business.
Historical: Rev. St. 188 7, Sec. 3309.
California Legislation: Same: Civ.
Code 1872, Sec. 2520; Deering's Code,
ib.; Kerr's Code, ib.
Rights of Majority: Those owning
a majority of the shares or interests
in a mining partnership have the right
to control its methods of working;
therefore, a majority owner of the
shares in a mining partnership is en-
titled to an injunction to restrain other
partners from working a claim except
in the manner directed by him. Haw-
kins v. Spokane Hydraulic Min. Co.
(1891) 3 Ida. 241; 28 Pac. 433. The
minority owner has the right to in-
spect the property to ascertain its
value and the methods in use for
working the same, so far as may be
necessary for the protection of his in-
terest and to enable him to dispose of
the same, but he cannot work it
against the protes't of the majority
owners. Hawkins v. Spokane etc. Min.
Co. (1893) 3 Ida. 650; 33 Pac. 40.
Partnership Contracts May Be Recorded.
Sec. 3371. Written contracts relating to prospecting or mining, or
to the formation of co-partnership for that purpose, when signed
by the parties thereto and indorsed by at least one witness, may be
recorded in the office of the county recorder of the county wherein
1304 PARTNERSHIP Tit. 11
it is proposed to prosecute the business of said co-partnersnip, or
where the property affected by such contract is situated.
Historical: Laws 1899, 366, Sec. 1.
Record Constructive Notice.
Sec. 3372. Such record shall be constructive notice to all persons
of the matters contained in such contract or co-partnership agree-
ment.
Historical: Laws 1899, 366, Sec. 2.
TITLE 12
LIENS
Chapter
1 Liens in general.
2. Mortgages in genera).
3. Mortgage of real property.
4. Mortgage of personal property.
Chapter
5. Pledge.
6. Miscellaneous liens.
7. Liens for service of sires.
CHAPTER 1.
LIENS IN GENERAL.
Section
3373. Liens denned.
3374. General and special liens.
3375. General lien defined.
3376. Special lien defined.
33 77. Satisfaction of prior lien.
3378. Contracts subject to this chap-
ter.
3379. Lien on future interest.
3380. Lien for performance of fu-
ture obligation.
Section
3381. Lien transfers no title.
3382. Contracts for forfeiture void.
3383. Personal obligation not im-
plied.
3384. Priority of purchase money
mortgage.
3385. Right to redeem from lien.
3386. Rights of junior lienor.
3387. Restoration extinguishes lien.
Liens Defined.
Sec. 3373. A lien is a charge imposed in some mode other than
by a transfer in trust upon specific property by which it is made se-
curity for the performance of an act.
Historical: Rev. St. 188 7, Sec. 3225.
California Legislation : Similar: Civ.
Code 1872, Sec. 2872; same as amend-
ed: Deering's Code, ib. ; Kerr's Code,
ib.
Transfer in Trust: The transfer in
trust mentioned by this section, is
one which creates a trust and abso-
lutely conveys title from the grantor,
and not a deed of trust which hypoth-
ecates the property for the payment of
the debt. Brown v. Bryan (1898) 6
Ida. 1; 51 Pac. 995.
General and Special Liens.
Sec. 3374. Liens are either general or special.
Historical: Rev. St. 1887, Sec. 3326.
California Legislation: Same: Civ.
Code 1872, Sec. 2873; Deering's Code,
ib.; Kerr's Code, ib.
General Lien Defined.
Sec. 3375. A general lien is one which the holder thereof is en-
titled to enforce as a security for the performance of all the obliga-
tions, or all of a particular class of obligations, which exist in his
favor against the owner of the property.
Historical: Rev. St. 1887, Sec. 332 7.
California Legislation: Same: Civ.
Code 1872, Sec. 2874; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Brown v. Bryan (18 98) 6
Ida. 1; 51 Pac. 995.
1306
LIENS
Tit. 12
Special Lien Denned.
Sec. 3376. A special lien is one which the holder thereof can en-
force only as security for the performance of a particular act or ob-
ligation, and of such obligations as may be incidental thereto.
Historical: Rev. St. 1887, Sec. 332 8.
California Legislation: Same: Civ.
Code 1872, Sec. 2875; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Brown v. Bryan (189 8) 6
Ida. 1; 51 Pac. 995.
Satisfaction of Prior Lien,.
Sec. 3377. Where the holder of a special lien is compelled to sat-
isfy a prior lien for his own protection, he may enforce payment of
the amount so paid by him, as a part of the claim for which his own
lien exists.
Historical: Rev. St. 1887, Sec. 3329.
California Legislation: Same: Civ.
Code 1872, Sec. 2876; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Law v. Spence (189 7) 5 Ida.
244; 48 Pac. 282.
Contracts Subject to This Chapter.
Sec. 3378. Contracts of mortgage and pledge are subject to all the
provisions of this chapter.
Historical: Rev. St. 188 7, Sec. 3330.
California Legislation: Similar: Civ.
Code 1872, Sec. 2877; Deering's Code,
ib.; Kerr's Code, ib.
Lien on Future Interest.
Sec. 3379. An agreement may be made to create a lien upon prop-
erty not yet acquired by the party agreeing to give the lien, or not
yet in existence. In such case the lien agreed for attaches from
the time when the party agreeing to give it acquires an interest in the
thing, to the extent of said interest.
Historical: Rev. St. 1878, Sec. 3331.
California Legislation: Same: Civ.
Code 1872, Sec. 2883; Deering's Code,
ib.; Kerr's Code, ib.
Lien for Performance of Future Obligation.
Sec. 3380. A lien may be created by contract, to take immediate
effect, as security for the performance of obligations not then in ex-
istence.
Historical: Rev. St. 18!
California Legislation:
7, Sec. 3332. Code 1872, Sec. 2884; Deering's Code,
Same: Civ. ib-» Kerr's Code, ib.
Lien Transfers No Title.
Sec. 3381. Notwithstanding an agreement to the contrary a lien,
or a contract for a lien, transfers no title to the property subject to
the lien.
Historical: Rev. St. 1887, Sec. 3333.
California Legislation: Same: Civ.
Code 1872, Sec. 2888; Deering's Code,
ib.; Kerr's Code, ib.
CitPtl: Brown v. Bryan (1898) 6
Ida. 1; 51 Pac. 995.
Title Not Transferred: A provision
in a contract for the lease of sheep,
whereby a lien is given on all increase
to secure the payment of the rental
therefor, conveys no title to such in-
crease. Solomon v. Franklin (1900)
7 Ida. 316; 62 Pac. 1030.
Contracts for Forfeiture Void.
Sec. 3382. All contracts for the forfeiture of property subject to
Ch. 1.
IN GENERAL
1307
a lien, in satisfaction of the obligation secured thereby, and all con-
tracts in restraint of the right of redemption from a lien,- are void.
Historical: Rev. St. 1887, Sec. 3334.
California Legislation : Same: Civ.
Code 1872, Sec. 2889: Deering's Code,
ib.; Kerr's Code, ib.
Cited: Brown v. Bryan (189 8) 6
Ida. 1; 51 Pac. 995.
Forfeitures Void: A provision in a
contract for the lease of sheep de-
claring a forfeiture of all interests of
the lessor in the sheep, wool, product,
and increase thereof, in case ^>f de-
fault in the payment of the rental
thereof, is void. Solomon v. Franklin
(1900) 7 Ida. 316; 62 Pac. 1030.
Personal Obligation Not Implied.
Sec. 3383. The creation of a lien does not of itself imply that any
person is bound to perform the act for which the lien is a security.
Historical: Rev. St. 18 87, Sec. 3335.
California Legislation: Same: Civ.
Code 1872, Sec. 2890; Deering's Code,
ib.; Kerr's Code, ib.
Priority of Purchase Money Mortgage.
Sec. 3384. A mortgage given for the price of real property, at the
time of its conveyance, has priority over all other liens created against
the purchaser, subject to the operation of the recording laws.
Historical: Rev. St. 1887, Sec. 33 36.
California Legislation: Same: Civ.
Code 1872, Sec. 2898; Deering's Code,
ib.; Kerr's Code, ib.
Purchase Money Mortgage: A mort-
gage on pre-empted public land made
to procure money to make final pay-
ment for the land, is a purchase money
mortgage within the meaning of this
section, and has priority over subse-
quent accruing marital rights of the
mortgagor's wife in the land, although
she did not join in the mortgage.
Kneen v. Halin (1899) 6 Ida. 621; 59
Pac. 14.
Right to Redeem From Lien.
Sec. 3385. Every person having an interest in property subject
to a lien, has a right to redeem it from the lien, at any time after the
claim is due, and before his right of redemption is foreclosed.
Historical: Rev. St. 188 7, Sec. 3337.
California Legislation: Same: Civ.
Code 1872, Sec. 2903; Deering's Code,
ib.; with additional provisions
amended: Kerr's Code, ib.
as
Rights of Junior Lienor.
Sec. 3386. One who has a lien inferior to another, upon the same
property, has a right :
1. To redeem the property in the same manner as its owner
might, from the superior lien ; and,
2. To be subrogated to all the benefits of the superior lien, when
necessary for the protection of his interests upon satisfying the
claim secured thereby.
Historical: Rev. St. 1887, Sec. 3338.
California Legislation: Same: Civ.
Code 1872, Sec. 2904; Deering's Code,
ib.; Keir's Code, ib.
Restoration Extinguishes Lien.
Sec. 3387. The voluntary restoration of property to its owner by
the holder of a lien thereon, dependent upon possession, extinguishes
the lien as to such property, unless otherwise agreed by the parties,
and extinguishes it notwithstanding any such agreement, as to credi-
tors of the owner and persons subsequently acquiring a title to the
property, or a lien thereon, in good faith and for a good consideration.
1308
LIENS
Tit. 12
Historical: Rev. St. 18 87, Sec. 333 9.
California Legislation: Same with
additional provision but "subsequent-
ly" line 5, omitted: Civ. Code 1872,
See. 2 913; same as amended: Deer-
ing's Code, ib.; similar as further
amended: Kerr's Code, ib.
CHAPTER 2.
MORTGAGES IN GENERAL.
Section
3388. Mortgage defined.
338 9. Must be in writing.
3390. Lien of mortgage is special.
3391. Transfers deemed mortgages.
33 92. Defeasance may be shown by
parol.
3393. Extent of mortgage lien.
3394. Subsequent title inures to
mortgagee.
3395. Power of attorney to mortgage.
3396. Recording assignment of mort-
gage.
Section
33 9 7. Same: Not notice to mort-
gagor.
3398. Assignment of debt carries se-
curity.
3399. Marginal discharge of mort-
gage.
3400. Discharge of mortgage on cer-
tificate. .
3401. Record of discharge.
3402. Refusal to satisfy mortgage:
Penalty.
Note: Foreclosure of mortgages: Sees. 4520-4523.
Mortgage Defined.
Sec. 3388. Mortgage is a contract by which specific property is
hypothecated for the performance of an act without the necessity of
a change of possession.
Historical: Rev. St. 188 7, Sec. 3350.
California Legislation : Same: Civ.
Code 1872, Sec. 2920; Deering's Code,
ib.; Kerr's Code, ib.
Trust Deed a Mortgage: A trust deed
given to secure a debt is a mortgage
although it contains a power of sale.
Brown v. Bryan (18 98) 6 Ida. 1; 51
Pac. 995.
Must Be in Writing.
Sec. 3389. A mortgage can be created, renewed or extended only
by writing, executed with the formalities required in the case of a
grant or conveyance of real property.
Historical: Rev. St. 18 8 7, Sec. 3351.
California Legislation: Same except
"or conveyance" omitted: Civ. Code
1872, Sec. 2922; Deering's Code, ib.;
Kerr's Code, ib.
Application: This section applies to
all motgages whether real or chat-
tel. Willows v. Rosenstein (18 97) 5
Ida. 305; 48 Pac. 1067.
Prohibited Agreements: An agree-
ment to hold a mortgage for an indi-
vidual indebtedness when said mort-
gage has been included in a subse-
quent co-partnership mortgage which
has been satisfied, is contrary to the
provisions of this section. Ib.
The iien of a mortgage cannot be
extended beyond its terms so as to
secure a debt not named therein, or to
hypothecate property not covered by
the mortgage, except by a compliance
with the provisions of this section;
but this does not preclude the mortga-
gor from waiving the statute of lim-
itations as to the mortgage debt by
indorsing an acknowledgment to pay
the debt on the note and mortgage.
Moulton v. Williams (1899) 6 Ida. 424;
55 Pac. 1019.
Parties to an usurious contract se-
cured by a trust deed, cannot remove
the usurious character of the transac-
tion by an agreement between them-
selves, and thus make the trust deed
a lien for interest and costs as against
a junior mortgagee, who is not a party
to the agreement and whose rights
will be prejudiced thereby. Madsen v.
Whitman (1902) 8 Ida. 762; 71 Pac.
152.
Estoppel: Where a stranger to a
mortgage purchases the mortgaged
property, and agrees that the mort-
gage shall stand as security for the
purchase price, the provisions of this
section have no application, and the
purchaser is estopped to deny the va-
lidity of the agreement although it is
not executed in conformity to this sec-
tion. Burke Land etc. Co. v. Wells,
Fargo Co. (1900) 7 Ida. 42; 60 Pac. 87.
Ch. 2.
MORTGAGES
1309
Lien of Mortgage Is Special.
Sec. 3390. The lien of a mortgage is special, unless otherwise
expressly agreed, and is independent of possession.
Historical: Rev. St. 188 7, Sec. 3352.
California Legislation: Same: Civ.
Code 1872, Sec. 2923; Deering's Code,
ib.; Kerr's Code, ib. ^
Transfers Deemed Mortgages.
Sec. 3391. Every transfer of an interest in property other than
in trust, made only as a security for the performance of another act,
is to be deemed a mortgage, except when in the case of personal prop-
erty it is accompanied by an actual change of possession, in which
case it is to be deemed a pledge.
Historical: Rev. St. 1887, Sec. 3353.
California Legislation: Same except
"other than in trust" omitted: Civ.
Code 1872, Sec. 2924; same as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Definition: The transfer in trust
mentioned by this section is one which
creates a trust and absolutely conveys
title from the grantor, and not a deed
of trust which hypothecates the prop-
erty for the payment of the debt.
Brown v. Bryan (189 8) 6 Ida. 1; 51
Pac. 995.
What Constitutes a Mortgage: A
deed absolute on its face and a sepa-
rate agreement bearing the same date
as the deed, for a re-conveyance of the
same tract of land to the grantor upon
payment of the consideration named
in the deed, by a specified time, con-
stitute together a mortgage. Kelley v.
Leachman (1892) 3 Ida. 392; 29 Pac.
849; (1893) 3 Ida. 629; 33 Pac. 44;
Wilson v. Thompson (1896) 4 Ida.
679; 43 Pac. 557.
Defeasance May Be Shown by Parol.
Sec. 3392. The fact that a transfer was made subject to defeas-
ance on a condition, may, for the purpose of showing such transfer
to be a mortgage, be proved (except as against a subsequent pur-
chaser or incumbrancer for value and without notice), though the
fact does not appear by the terms of the instrument.
Historical: Rev. St. 1887, Sec. 3354.
California Legislation: Same: Civ.
Code 1872, Sec. 2925; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Brown v. Bryan (1898) 6
Ida. 1; 51 Pac. 995.
Extent of Mortgage Lien.
Sec. 3393. A mortgage is a lien upon everything that would pass
by a grant or conveyance of the property.
Historical: Rev. St. 188 7, Sec. 335 5.
California Legislation: Same except
"or conveyance" omitted: Civ. Code
1872, Sec. 2926; Deering's Code, ib.;
Kerr's Code, ib.
Cited: Kelley v. Leachman (1893)
3 Ida. 629; 33 Pac. 44.
Subsequent Title Inures to Mortgagee.
Sec. 3394. Title acquired by the mortgagor subsequent to the exe-
cution of the mortgage inures to the mortgagee as security for the
debt in like manner as if acquired before the execution.
Historical: Rev. St. 1887, Sec. 3356.
California Legislation: Same with
additional sentence: Civ. Code 1872,
Sec. 2930; same as amended: Deer-
ing's Code, ib.; Kerr's Code, ib.
1310
LIENS
Tit. 12
Power of Attorney to Mortgage.
Sec. 3395. A power of attorney to execute a mortgage must be in
writing, subscribed, acknowledged, or proved, certified and recorded
in like manner as powers of attorney for grants of real property.
Historical: Rev. St. 1887, Sec. 3357.
California Legislation : Same: Civ.
Code 1872, Sec. 2933; Deering's Code,
ib., Kerr's Code, ib.
Recording Assignment of Mortgage.
Sec. 3396. An assignment of a mortgage may be recorded in like
manner as a mortgage, and such record operates as notice to all per-
sons subsequently deriving title to the mortgage from the assignor.
Historical: Rev. St. 18 8 7, Sec. 3358.
California Legislation : Same except
'but in a separate book" inserted af-
ter "mortgage", line 2: Civ. Code
1872, Sec. 2934; same as amended:
Deering-'s Code, ib.; Kerr's Code, ib.
Same: Not Notice to Mortgagor.
Sec. 3397. The record of the assignment of a mortgage is not of
itself notice to a mortgagor, his heirs or personal representatives, so
as to invalidate any payment made by them, or either of them, to
the mortgagee.
Historical: Rev. St. 188 7, Sec. 335 9.
California Legislation: Same: Civ.
Code 1872, Sec. 2935; similar as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Assignment of Debt Carries Security.
Sec. 3398. The assignment of a debt secured by mortgage car-
ries with it the security.
Historical: Rev. St. 188 7, Sec. 3360.
California Legislation: Same: Civ.
Code 1872, Sec. 2936; Deering's Code,
ib.; Kerr's Code, ib
Marginal Discharge of Mortgage.
Sec. 3399. A recorded mortgage or chattel mortgage filed as pro-
vided by law, may be discharged by an entry in the margin of the
record thereof, signed by the mortgagee, or his personal representa-
tive or assignee, acknowledging the satisfaction of the mortgage in
the presence of the recorder, who must certify the acknowledgment in
form substantially as follows:
"Signed and acknowledged before me this day of
in the year of
"A. B., Recorder."
Historical: Rev. St. 1887, Sec. 33 61.
<See 1 Ter. Ses. (1864) 528. Sec. 36);
amended Laws 1895, 54, Sec. 1; re-en-
acted Laws 1899, 2 49, Sec. 1.
California Legislation: Same except
"or chattel mortgage filed as provided
by law", line 1, omitted: Civ. Code
1872, Sec. 2938; Deering's Code, ib.;
Kerr's Code, ib.
Discharge of Lien: The lien of a
mortgage which is not discharged by
marginal entry, as provided by this
section, or on certificate, as provided
in the following section, or by decree
of court, remains in force. Kelley v.
Leachman (1893) 3 Ida. 629; 33 Pac.
44.
Discharge of Mortgage on Certificate.
Sec. 3400. A recorded mortgage or chattel mortgage filed as pro-
vided by law, if not discharged as provided in the preceding section,
must be discharged upon the record by the officer having custody
Ch. 2.
MORTGAGES
1311
thereof, on the presentation to him of a certificate signed by the
mortgagee, his personal representative or assigns, acknowledged or
proved and certified as prescribed by the chapter on "Recording
Transfers," stating that the mortgage has been paid, satisfied or dis-
charged. N
Historical: Rev. St. 188 7, Sec. 3362.
(1 Ter. Ses. (1864) 528, Sec. 37);
amended Laws 1895, 54, Sec. 2; re-en-
acted Laws 1899, 249 Sec. 2.
California Legislation: Similar: Civ.
Code 1872, Sec. 2939; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Recording trans-
fers: Sees. 3149-3163.
Cited: Kelley v. Leachman (1893) 3
Ida. 629; 33 Pac. 44.
Record of Discharge.
Sec. 3401. A certificate of the discharge of a mortgage, and the
proof or acknowledgment thereof, must be recorded at length, and
a reference made in the record book to the book and page where
the mortgage is recorded and in the minute of the discharge made
upon the record of the mortgage to the book and page where the dis-
charge is recorded.
Historical: Rev. St. 188 7, Sec. 33 6 3.
See 1 Ter. Ses. (1864) 528, Sec. 38.
California Legislation: Same: Civ.
Code 1872, Sec. 2940; Deering's Code,
ib.; Kerr's Code ib.
Refusal to Satisfy Mortgage: Penalty.
Sec. 3402. When any mortgage has been satisfied, the mortgagee
or his assignee must immediately, on the demand of the mortgagor,
execute, acknowledge, and deliver to him a certificate of the discharge
thereof so as to entitle it to be recorded, or he must enter satisfac-
tion or cause satisfaction of such mortgage to be entered of record;
and any mortgagee, or assignee of such mortgagee, who refuses to
execute, acknowledge, and deliver to the mortgagor, the certificate
of discharge, or to enter satisfaction, or cause satisfaction of the
mortgage to be entered, as provided in this chapter, is liable to the
mortgagor or his grantee or heirs, for all damages which he or they
may sustain by reason of such refusal, and shall also forfeit to him
or them the sum of one hundred dollars.
Historical: Rev. St. 1887, Sec. 3364.
1 Ter. Ses. (1864) 528, Sec. 39.
California Legislation: Similar: Civ.
Code 1872, Sec. 2941; same as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Cited: Stevens v. Home Savings etc.
Assn. (1897) 5 Ida. 741; 51 Pac. 779,
986; Barnes v. Buffalo Pitts Co. (1899)
6 Ida. 519; 57 Pac. 267; Portneuf
Lodge v. Western etc. Savings Co.
(1899) 6 Ida. 673; 59 Pac. 362.
Usurious Mortgages — Satisfaction:
A mortgage given to secure the pay-
ment of an usurious contract is sat-
isfied upon the payment of the prin-
cipal debt, whereupon the mortgagor
is entitled to a satisfaction of such
mortgage of record, and an action for
such relief will lie under this section.
Cleveland v. Western Loan & Saving?
Co. (1901) 7 Ida. 477; 63 Pac. 885;
Anderson v. Or. Mtg. Co. (1902) 8 Ida.
418; 69 Pac. 130.
Accrual of Action: The cause of
action given by this section does not
accrue until the mortgage debt has
been fully paid and demand for a dis-
charge of the moregage has been
made. Barnes v. Pitts Agri. Works
(1898) 6 Ida. 259; 55 Pac. 237.
Pleading: A complaint to recover
the penalty prescribed by this section
must contain a direct and unequivocal
allegation of payment of the amount
secured by the mortgage; an allega-
tion that plaintiff has "fullv paid and
satisfied the notes and mortgage in so
far as the holder of said notes and
mortgage is concerned" is insufficient.
Gamble v. Canadian etc. Trust Co.
(1898) 6 Ida. 202; 55 Pac. 241.
1312
LIENS
Tit. 12
CHAPTER 3.
MORTGAGE OF REAL PROPERTY.
Section
3 403. What may be mortgaged.
3404. Independent defeasance to be
recorded.
Section
3405. To be acknowledged and re-
corded as conveyances.
What May Be Mortgaged.
Sec. 3403. Any interest in real property which is capable of being
transferred may be mortgaged.
Historical: Rev. St. 1887, Sec. 33 7 5.
California Legislation: Same: Civ.
Code 1872, Sec. 2947; Deering's Code,
ib.: Kerr's Code, ib.
Independent Defeasance to Be Recorded.
Sec. 3404. When a grant of real property purports to be an
absolute conveyance, but is intended to be defeasable on the perform-
ance of certain conditions, such grant is not defeated or affected as
against any person other than the grantee or his heirs or devisees, or
persons having actual notice, unless an instrument of defeasance, duly
executed and acknowledged, is recorded in the office of the county
recorder of the county where the property is situated.
Historical: Rev. St. 1887, Sec. 3376.
California Legislation: Same except
"shall have been recorded" for "is re-
corded", line 6; Civ. Code 1872, Sec.
2 950; Deering's Code, ib.; Kerr's Code,
ib.
To Be Acknowledged and Recorded as Conveyances.
Sec. 3405. Mortgages of real property may be acknowledged or
proved, certified and recorded, in like manner and with like effect as
grants and conveyances thereof.
Historical: Rev. St. 1887, Sec. 3377.
California Legislation : Same except
"and conveyances" omitted and addi-
tional clause: Civ. Code 1872, Sec.
2952; as amended: Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 4.
MORTGAGE OF PERSONAL PROPERTY.
Section
3406. Property subject to mortgage.
340 7. Mortgage on exempt property.
3408. Affidavit and record of mort-
gage.
3409. Filing and indexing of mort-
gage.
3410. Removal from county.
3411. Attachment of mortgaged
property.
3412. Modes of foreclosure.
3413. Foreclosure by notice and sale:
Affidavit.
Section
3414. Service of affidavit.
3415. Notice of sale.
3416. Title of purchaser: Bill of sale.
3417. Return of sale.
3418. Contest of foreclosure.
3419. Unauthorized removal or sale
of property.
3420. Time allowed to record mort-
gage.
Property Subject to Mortgage.
Sec. 3406. Chattel mortgages may be made upon all property,
goods or chattels, not defined by statute to be real estate, upon grow-
ing crops, and upon crops to be sown and grown in the future ; but,
should the persons executing mortgages upon crops to be afterwards
Ch. 4.
CHATTEL MORTGAGES
1313
sown, fail to sow or cause the same to be sown, no lien of such mort-
gages shall attach to crops sown by other persons upon the lands de-
scribed in said mortgages, except in so far as the mortgagors in said
mortgages have or retain interests in said crops.
Historical: Rev. St. 1887, Sec. 33 85.
(See 13 Ter. Ses. (1885) 74, Sec. 1) ;
amended Laws 1897, 7, Sec. 1; re-
enacted Laws 1899, 292, Sec. 1.
California Legislation: Different:
Civ. Code 1872, Sec. 2955; as amend-
ed: Deering's Code, ib.; further
amended: Kerr's Code, ib.
What May Be Mortgaged: A valid
chattel mortgage cannot be given on
property other than that prescribed in
this section, and an attempted chattel
mortgage on a building affixed to land
creates no lien thereon. Beeler v. C.
C. Merc. Co. (1902) 8 Ida. 644; 70 Pac.
943.
Mortgage on Exempt Property.
Sec. 3407. No personal property of either husband or wife, that is
exempt by law from execution, shall be mortgaged by either husband
or wife without the joint concurrence of both.
Historical: Laws 1899, 292, Sec. 1.
Cited: Vollmer v. Estate of James
W. Reid (1904) 10 Ida. 196; 77 Pac.
325.
Mortgage on Exempt Property: A
chattel mortgage executed by the hus-
band alone upon exempt property,
creates no lien on such property. Kin*
dall v. Lincoln Hdw. & Imp. Co. (1902)
8 Ida. 664; 70 Pac. 1056.
Affidavit and Record of Mortgage.
Sec. 3408. A mortgage of personal property is void as against
creditors of the mortgagor and subsequent purchasers and incum-
brancers of the property in good faith and for value, unless :
First. It is accompanied by the affidavit of the mortgagor that
it is made in good faith and without any design to hinder, delay or
defraud creditors ;
Second. It is acknowledged or proven, as grants of real estate,
and the mortgage, or a true copy thereof, is filed for record with the
county recorder of the county where such property is located and kept.
Historical: Rev. St. 1887, Sec. 3386;
amended Laws 1899, 121, Sec. 1; re-
enacting Laws 1890-91, 181, Sec. 1.
California Legislation: Similar: Civ.
Code 1872, Sec. 2957; Deering's Code,
ib.; Kerr's Code, ib.
Cited: First Nat. Bank of St. An-
thony v. Steers (1904) 9 Ida. 519; 75
Pac. 225.
Necessity of Affidavit: The affidavit
required by this section is necessary
only to sustain the validity of the
mortgage as against creditors and
purchasers, and does not affect it as
between mortgagor and mortgagee.
Marchand v. Ronaghan (1903) 9 Ida.
95; 72 Pac. 731.
Unrecorded Mortgages:. Where a
chattel mortgage is not filed for rec-
ord as required by this section, a sub-
sequent purchaser of the property is
not bound by the mortgage unless he
is shown to have had actual notice of
the same. Cowden v. Finney (1904)
9 Ida. 619; 75 Pac. 765; Cowden v.
Mills (1904) 9 Ida. 626; 75 Pac. 766.
Power of Sale in Mortgagor: While
a mortgagor may retain possession of
the mortgaged property provided the
mortgage is executed and recorded as
required by law, yet, if the mortgagee
permits the mortgagor not only to re-
tain possession but to sell the property
at retail without also requiring the
proceeds of sale to be applied in re-
duction of the debt, the mortgage is
void as against attaching creditors of
the mortgagor. Lewiston Nat. Bank
v. Martin (1890) 2 Ida. 784; 23 Pac.
920.
While a mortgage on a stock of
goods which permits the mortgagor to
remain in the full and free use and
enjoyment of the same, is void in that
it permits him to sell the goods in the
usual course of trade, yet such a
mortgage is valid when it covers wood
corded and standing in the forest
where it has been cut. Meyer v. Munro
(1903) 9 Ida. 46; 71 Pac. 969.
Filing and Indexing* of Mortgage.
Sec. 3409. Upon the receipt of any such instrument the recorder
1314
LIENS
Tit. 12
shall indorse on the back the time of receiving it, and shall file the
same in his office, to be kept there for the inspection of all persons
interested, and the recorder shall keep a book in which shall be en-
tered a minute of all mortgages of personal property. Such book
shall be ruled off into separate columns, with heads as follows : "Time
of reception/' "Name of mortgagor," "Date of instrument," "Amount
secured," "When due," "Property mortgaged," "Before whom sworn
to and acknowledged," and "Remarks." The proper entry shall be
made under each of such heads, and the recorder shall receive the
sum of fifty cents, and no more, for filing any such mortgage,
which amount he may demand before filing any such mortgage : Pro-
vided, That property in transit from the possession of the mortgagee
to the county in which the mortgagor resides, or to a location for use,
shall, for a reasonable length of time for such transportation, be
considered as located in the county to which the same is being re-
moved : Provided, further, That if the mortgagee receive and retain
actual possession of the property mortgaged, he may omit the filing
of his mortgage during the continuance of such actual possession.
Historical: Rev. St. 1887, Sec. 3387;
amended Laws 1890-91, 181. Sec. 2;
re-enacted Laws 1899, 121, Sec. 2.
Cited: Beeler v. C. C. Merc. Co.
(1902) 8 Ida. 644; 70 Pac. 943.
Stipulation for Possession by Mort-
gagee: This section recognizes the
right of a mortgagor to contract with
the mortgagee for the possession by
the latter of the mortgaged property,
and a mortgage is not rendered in-
valid by reason of a clause authoriz-
ing the mortgagee upon named con-
tingencies, to take possession of the
mortgaged property. First Nat. Bank
of St. Anthony v. Steers (1904) 9 Ida.
516; 75 Pac. 225.
Same — Action by Mortgagee: Where
a chattel mortgage contains a stip-
ulation authorizing the mortgagee
to take possession of the property up-
on certain contingencies therein
named, the mortgagee, upon the oc-
currence of such a contingency, may
maintain an action of claim and de-
livery to recover possession of the
property. lb.
Removal From County.
Sec. 3410. When mortgaged personal property is thereafter re-
moved from the county wherein it was situated at the time of the
execution of the mortgage by the written consent of the mortgagee,
it is, except as between the parties to the mortgage, exempt from the
operations thereof, unless, either (1) the mortgagee, within ten days
after such removal, cause the mortgage to be recorded in the county
to which the property has been removed, or (2) the mortgagee, within
ten days after such removal, take possession of the mortgaged prop-
erty.
Historical: Rev. St. 18 87, Sec. 3388.
13 Ter. Ses. (1885) 74, Sec. 4.
California Legislation : Similar but
"thirty" days for "ten" days through-
out: Civ. Code 1872, Sec. 2965; Deer-
ing's Code, ib.; Kerr's Code, ib.
Attachment of Mortgaged Property.
Sec. 3411. All mortgaged personal property may be attached at
the suit of any creditor of the mortgagor; such creditor, however,
must pay or tender to the mortgagee, the amount due him on such
mortgage before the officer making such attachment is entitled to the
actual possession of such property. When the property thus attached
and redeemed by the creditor is sold by the officer under due legal
proceedings, he must:
Ch. 4.
CHATTEL MORTGAGES
1315
First. Pay to such creditor the amount advanced by him to pay
the mortgage with lawful interest thereon;
Second. Pay all costs appertaining to the judgment, execution
and sale; ^
Third. Pay the judgment creditor the amount of his judgment,
and the surplus, if any, to the judgment debtor.
If the creditor of the mortgagor prefer he may cause to be at-
tached the equity of redemption to the mortgagor. Such attach-
ment is made by serving upon the mortgagor and the mortgagee a
copy of the writ of attachment, together with a notice signed by the
officer that the interest of the mortgagor in such property is at-
tached. When the sale of such equity is made on execution obtained
by such attaching creditor, the proceeds must be applied to the pay-
ment of the costs and the satisfaction of the judgment, and the re-
mainder, if any, paid to the judgment debtor. The purchaser at such
sale is entitled to the possession of the property subject, however, to
the rights of the mortgagee.
Historical: Rev. St. 1887, Sec. 338 9.
13 Ter. Ses. (1885) 74, Sec. 5.
California Legislation: See Civ. Code
1872, Sec. 2968; Deering's Code, ib.;
Kerr's Code, ib.
Payment by Creditor — Effect:
Where a creditor, in order to subject
the mortgaged property of his debtor
to the payment of his claim, pays the
amount of the mortgage to the mort-
gagee, the mortgage is discharged and
the creditor cannot thereafter enforce
the same. Baumgartner v. Vollmer
(1897) 5 Ida. 340; 49 Pac. 729.
Modes of Foreclosure.
Sec. 3412. Any mortgage of personal property, when the debt to
secure which the mortgage was given is due, may be foreclosed by
notice and sale as hereinafter provided, or it may be foreclosed by
action in the District Court having jurisdiction in the county in which
the property is situated.
Historical: Rev. St. 188 7, Sec. 3 390.
13 Ter. Ses. (1885) 74, Sec. 6.
California Legislation: See Civ. Code
1872, Sec. 2967; Deering's Code, ib.;
Kerr's Code, ib.
Cross Reference:. Foreclosure of
mortgages by action: Sec. 452 0.
Cited: Blumaur-Prank Drg. Co. v.
Branstetter (1895) 4 Ida. 557; 43 Pac.
575; Rein v. Callaway (1901) 7 Ida.
634; 65 Pac. 63; Beeler v. C. C. Merc.
Co. (1902) 8 Ida. 644; 70 Pac. 943.
Constitutionality: This section is
held constitutional. Givens v. Keeney
(1900) 7 Ida. 335; 63 Pac. 110.
Foreclosure by Notice and Sale: Affidavit.
Sec. 3413. In proceeding to foreclose by notice and sale, the mort-
gagee, his agent or attorney, must make an affidavit stating the date
of the mortgage, the names of the parties thereto, a full description
of the property mortgaged, and the amount due thereon. Such affi-
davit must be placed in the hands of the sheriff of the county or the
constable in the precinct where the property is located, together with
a notice signed by the mortgagee, his agent or attorney, requiring
such officer to take the mortgaged property into his possession and
sell the same.
Historical: Rev. St. 1887, Sec. 3391.
(See 13 Ter. Ses. (1885) 74, Sec. 7);
Laws 1905, 129, Sec. 1.
Remedies Exclusive: The mode of
foreclosure prescribed by this section
and the foreclosure by action author-
ized by Rev. St. Sec. 4520, are the ex-
clusive modes of foreclosure; a power
of sale contained in a mortgage is
void, and does not authorize the mort-
1316
LIENS
Tit. 12
gagee to foreclose summarily by exer- same, and will be protected in such ex-
cising- such power. Rein v. Callaway ecution without determining whether
(1901) 7 Ida. 634; 65 Pac. 63. or not the mortgage on which the
Sheriff Protected* Where the am- affidavit and notice are issued is valid,
davit and notice are regular in form, Blumauer-Frank Drg. Co. v. Bran-
the sheriff is bound to execute the stetter (1895) 4 Ida. 557; 43 Pac. 575.
Service of Affidavit.
Sec. 3414. The affidavit must be personally served upon the mort-
gagor, or other person having possession of the mortgaged property,
in the same manner as is provided by law for the service of a sum-
mons. At the time of such service of the affidavit, the officer must
also serve a notice signed by himself, setting forth a full description
of the property, the amount claimed to be due by the mortgagee, and
the time and place of sale: Provided, however, That if the mort-
gagor or other person interested, cannot be found within the county
wherein the mortgage is being foreclosed, and has no agent therein
known to the officer, the general notice of sale directed in the next
section is sufficient service upon all parties interested.
Historical: Rev. St. 1887, Sec. 3392.
See 13 Ter. Ses. (1885) 74 Sec. 8.
California Legislation: See Civ. Code
1872, Sec. 2967; Deering's Code, ib.;
Kerr's Code, ib.
Cross Reference: Service of sum-
mons: Sec. 4144.
Cited: Blumauer-Frank Drg. Co. v.
Branstetter (1895) 4 Ida. 55 7; 43 Pac.
575.
Notice of Sale.
Sec. 3415. The officer must take the property into his possession
and give notice of sale in the same manner and for the same length
of time as is required in cases of the sale of like property on execu-
tion and the sale must be conducted in the same manner.
Historical: Rev. St. 1887, Sec. 3393.
13 Ter. Ses. (1885) 74, Sec. 9.
California Legislation: See refer-
ences of preceding section.
Cross Reference: Sales on execu-
tion: Sees. 4482-4489.
Cited: Blumauer-Frank Drg. Co. v.
Branstetter (1895) 4 Ida. 557; 43 Pac.
575; (Dis. op.) First Natl. Bank of
Pocatello v. Bunting & Co. (1900) 7
Ida. 387; 63 Pac. 694; Beeler v. C. C.
Merc. Co. (1902) 8 Ida. 644; 70 Pac.
943.
Title of Purchaser : Bill of Sale.
Sec. 3416. The purchaser at such sale takes all the interest which
the mortgagor had in the mortgaged property at the time of the exe-
cution of the mortgage, and the officer selling must execute to him a
bill of sale of the property, which must set forth the date of the mort-
gage, the names of the parties thereto, the date of sale, a description
of the property, and the amount paid therefor.
Historical: Rev. St. 1887, Sec. 33 9 4.
See 13 Ter. Ses. (1885) 74, Sec. 10.
California Legislation: See Civ. Code
1872, Sec. 2967; Deering's Code, ib.;
Kerr's Code, ib.
Cited: Blumauer-Frank Drg. Co. v.
Branstetter (1895) 4 Ida. 557; 43 Pac.
575.
Return of Sale.
Sec. 3417. The officer must make return upon the affidavit here-
inbefore mentioned of all his proceedings, and must transmit the
same, by mail or otherwise, to the clerk of the District Court having
jurisdiction in the county in which the sale was made, and the clerk
must file such return in his office.
Ch. 4.
CHATTEL MORTGAGES
1317
Historical: Rev. St. 1887, Sec. 3395.
13 Ter. Ses. (1885) 74, Sec. 11.
California Legislation : See Civ. Code
1872, Sec. 2967; Deering's Code, ib.;
Kerr's Code, ib.
Cited: Blumaur-Frank Drg. Co. v.
Branstetter (1895) 4 Ida 557; 43 Pac.
575.
Contest — Production of Affidavit: In
an action to contest the right to fore-
close a chattel mortgage, the court is
not authorized to order the defend-
ants to file the original affidavit in the
mortgage foreclosure proceedings, un-
less it is made to appear that they
have the affidavit in their possession,
and fail or refuse to produce the same
upon demand. Murphy v. Russell &
Co. (1901) 8 Ida. 133; 67 Pac. 421.
Contest of Foreclosure.
Sec. 3418. The right of the mortgagee to foreclose, as well as the
amount claimed to be due, may be contested in the District Court by
any person interested in so doing, for which purpose an injunction
may issue if necessary.
Historical: Rev. St. 1887, Sec. 33 96.
See 13 Ter. Ses. (1885) 74, Sec. 12.
California Legislation: See Civ. Code
1872, Sec. 2967; Deering's Code, ib.;
Kerr's Code, ib.
Cited: Murphy v. Russell & Co.
(1901) 8 Ida. 133; 67 Pac. 421; (1901)
8 Ida. 151; 67 Pac. 427.
Nature of Action: This section con-
templates an action in the District
Court and authorizes the issuance of
an injunction, but the action may be
maintained without an injunction.
Murphy v. Russell & Co. (1901) 8 Ida.
133; 67 Pac. 421.
Contest by Creditor: An attaching
creditor may contest the validity of
the mortgage on which the foreclos-
ure is based. Blumaur-Frank Drg. Co.
v. Branstetter (1895) 4 Ida. 557; 43
Pac. 575.
Unauthorized Removal or Sale of Property.
Sec. 3419. If the mortgagor of any property mortgaged in pur-
suance of the provisions of this chapter, while such mortgage remains
unsatisfied in whole or in part, wilfully removes from the county or
counties where the mortgage is recorded, destroys, conceals, sells, or
in any manner disposes of, the property mortgaged, or any part
thereof, without consent of the holder of said mortgage, he is guilty
of larceny, and such sale or transfer is void.
Historical: Rev. St. 1887, Sec. 33 9 7.
See 13 Ter. Ses. (1885) 74, Sec. 13.
California Legislation: See Civ. Code
1872, Sec. 2967; Deering's Code, ib.;
Kerr's Code, ib.
Cross Reference: Similar provision:
Sec. 7100.
Cited: Lewiston Nat. Bank v. Mar-
tin (1890) 2 Ida. 734; 23 Pac. 920.
Oral Consent: Under a territorial
statute which was substantially simi-
lar to this section with the exception
that it required the "written consent"
of the mortgagee to a sale, it was held
that oral evidence of the mortgagee's
consent was admissible to sustain the
sale as between vendee and vendor in
the absence of any objection by the
mortgagee to the sale. Mills v. Glen-
non (1885) 2 Ida. 105; 6 Pac. 116.
Time Allowed to Record Mortgage.
Sec. 3420. The mortgagee is allowed one day for every twenty
miles or fraction thereof of the distance between his residence and
the county recorder's office where such mortgage is to be recorded,
to conform to the provisions of this chapter, before any subsequent
incumbrance, sale or seizure, under any process, is effectual to hold
or bind the mortgaged property.
Historical: Rev. St. 1887, Sec. 3398.
13 Ter. Ses. (1885) 74, Sec. 15.
California Legislation: See Civ. Code
1872, Sec. 2967; Deering's Code, ib.
Kerr's Code, ib.
1318
LIENS
Tit. 12
CHAPTER 5.
PLEDGE.
Section
Sectic
3421.
Pledge defined.
3431.
3422.
Delivery essential to validity.
3432.
3423.
Increase of property pledged.
3433.
3424.
Lienor may pledge property.
3425.
Secret owner cannot defeat
3434.
pledge.
3435.
3426.
Pledge holder denned.
3436.
3427.
Same: Must enforce rights.
3437.
3428.
Misrepresentation of value:
3438.
Further pledge.
3439.
3429.
Sale to satisfy pledge.
3440.
3430.
Same: Demand of perform-
ance.
Notice of sale.
Waiver of notice.
Waiver of demand of perform-
ance.
Sale must be public.
Collection or sale of securities.
Sale on demand of pledgor.
Surplus paid to pledgor.
Sale before maturity.
Pledgee cannot purchase.
Foreclosure by pledgee.
Pledge Defined.
Sec. 3421. Every contract by which the possession of personal
property is transferred as security only, is to be deemed a pledge.
Historical: Rev. St. 188 7, Sec. 3410.
California Legislation: Same: Civ.
Code 1872, Sec. 2987; Deering's Code,
ib.; Kerr's Code, ib.
Delivery Essential to Validity.
Sec. 3422. The lien of a pledge is dependent on possession, and
no pledge is valid until the property pledged is delivered to the
pledgee, or to a pledge holder, as hereafter prescribed.
Historical: Rev. St. 1887, Sec. 3411.
California Legislation: Same: Civ.
Code 1872, Sec. 2988; Deering's Code,
ib., Kerr's Code, ib.
Increase of Property Pledged.
Sec. 3423. The increase of property pledged is pledged with the
property.
Historical: Rev. St. 1887, Sec. 3412.
California Legislation: Same: Civ.
Code 1872, Sec. 2989; Deering's Code,
ib.; Kerr's Code, ib.
Lienor May Pledge Property.
Sec. 3424. One who has a lien upon property may pledge it to the
extent of his lien.
Historical: Rev. St. 1887, Sec. 3 413.
California Legislation: Same: Civ.
Code 1872, Sec. 2990; Deering's Code,
ib.; Kerr's Code, ib.
Secret Owner Cannot Defeat Pledge.
Sec. 3425. One who has allowed another to assume the apparent
ownership of property for the purpose of making any transfer of it,
cannot set up his own title to defeat a pledge of the property made by
the other, to a pledgee who received the property in good faith, in
the ordinary course of business and for value.
Historical: Rev. St. 1887, Sec. 3414.
California Legislation: Same: Civ.
Code 1872, Sec. 2991; Deering's Code,
ib.; Kerr's Code, ib.
Cited: Bryan v Montandon (1898)
6 Ida. 352; 55 Pac. 650.
Ch. 5.
PLEDGE
1319
Pledge Holder Defined.
Sec. 3426. A pledgor and pledgee may agree on a third person with
whom to deposit the property pledged, who, if he accepts the deposit,
is called a pledge holder.
Historical: Rev. St. 1887, Sec. 3415.
California Legislation: Same: Civ.
Code 1872, Sec. 2993; Deering's Code,
ib. ; Kerr's Code, ib.
Same: Must Enforce Rights.
Sec. 3427. A pledge holder must enforce all the rights of the
pledgee, unless authorized by him to waive them.
Historical: Rev. St. 1887, Sec. 3416.
California Legislation: Same: Civ.
Code 1872, Sec. 2996; Deering's Code,
ib.; Kerr's Code, ib.
Misrepresentation of Value : Further Pledge.
Sec. 3428. Where a debtor has obtained credit or an extension of
time by a fraudulent misrepresentation of the value of property
pledged by or for him, the creditor may demand a further pledge
to correspond with the value represented, and in default thereof may
recover his debt immediately, though it be not actually due.
Historical: Rev. St. 1887, Sec. 3417.
California Legislation : Same: Civ.
Code 1872, Sec. 2999; Deering's Code,
ib.; Kerr's Code, ib.
Sale to Satisfy Pledge.
Sec. 3429. When performance of the act for which a pledge is
given is due, in whole or in part, the pledgee may collect what is due
to him by a sale of property pledged, subject to the rules and excep-
tions hereinafter prescribed.
Historical: Rev. St. 1887. Sec. 3418.
California Legislation: Same: Civ.
Code 1872, Sec. 3000; Deering's Code,
ib.; Kerr's Code, ib.
Same: Demand of Performance.
Sec. 3430. Before property pledged may be sold, and after per-
formance of the act for which it is security is due, the pledgee must
demand performance thereof from the debtor, if the debtor can be
found.
Historical: Rev. St. 188 7, Sec. 3419.
California Legislation: Same except
"if the debtor can be found" omitted:
Civ. Code 1872, Sec. 3001; same as
amended: Deering's Code, ib.; Kerr's
Code, ib.
Notice of Sale.
Sec. 3431. A pledgee must give actual notice to the pledgor of the
time and place at which the property pledged will be sold, at such a
reasonable time before the sale as will enable the pledgor to attend.
Historical: Rev. St. 1887, Sec. 3420.
California Legislation: Same: Civ.
Code 1872, Sec. 3002; Deering's Code,
ib.; Kerr's Code, ib.
Waiver of Notice.
Sec. 3432. Notice of sale may be waived by a pledgor at any time ;
but is not waived by a mere waiver of demand of performance.
Historical: Rev. St. 1887, Sec. 3421.
California Legislation: Same: Civ.
Code 1872, Sec. 3003; Deering's Code,
ib. ; Kerr's Code, ib.
1320
LIENS
Tit. 12
Waiver of Demand of Performance.
Sec. 3433. A debtor or pledgor waives a demand of performance
as a condition precedent to a sale of the property pledged, by a posi-
tive refusal to perform after performance is due ; but cannot waive it
in any other manner except by contract.
Historical: Rev. St. 1887, Sec. 342 2.
California Legislation: Same: Civ.
Code 1872, Sec. 3004; Deering-'s Code,
ib.; Kerr's Code, ib.
Sale Must Be Public.
Sec. 3434. The sale by a pledgee of property pledged, must be
made by public auction in the manner and upon the notice required
upon sale of personal property under execution ; and must be for the
highest obtainable price.
Historical: Rev. St. 1887, Sec. 3423.
California Legislation : Similar: Civ.
Code 1872, Sec. 3005; Deering-'s Code,
ib. ; Kerr's Code, ib.
Cross Reference: Sales of personal
property under execution: Sees. 4482-
4489.
Cited: (Dis. op.) First Natl. Bank of
Pocatello v. Bunting- & Co. (1900) 7
Ida. 387; 63 Pac. 694.
Collection or Sale of Securities.
Sec. 3435. A pledgee cannot sell any evidence of debt pledged to
him except the obligations of governments, States, Territories, coun-
ties or corporations ; but he may collect the same when due.
Historical: Rev. St. 1887, Sec. 3434.
California Legislation: Same except
'Territories, counties", line 2, omit-
ted: Civ. Code 1872, Sec. 3006; Deer-
ing's Code, ib. ; Kerr's Code, ib.
Sale on Demand of Pledgor.
Sec. 3436. Whenever property pledged can be sold for a price
sufficient to satisfy the claim of the pledgee, the pledgor may require
it to be sold and its proceeds to be applied to such satisfaction when
due.
Historical: Rev. St. 1887, Sec. 3 42 5.
California Legislation: Same: Civ.
Code 1872, Sec. 3007; Deering's Code,
ib. ; Kerr's Code, ib.
Surplus Paid to Pledgor.
Sec. 3437. After a pledgee has lawfully sold property pledged, or
otherwise collected its proceeds, he may deduct therefrom the amount
due under the principal obligation, and the necessary expenses of sale
and collection, and must pay the surplus to the pledgor on demand.
Historical: Rev. St. 188 7, Sec. 3 42 6.
California Legislation: Same: Civ.
Code 1872, Sec. 3008; Deering-'s Code,
ib. ; Kerr's Code, ib.
Sale Before Maturity.
Sec. 3438. When property pledged is sold before the claim of the
pledgee is due, he may retain out of the proceeds all that can possi-
bly become due under his claim, until it becomes due.
Historical: Rev. St. 1887, Sec. 342 7.
California Legislation: Same with
additional clause: Civ. Code 1872, Sec.
3009; similar as amended: Deering's
Code, ib.; Kerr's Code, ib.
Pledgee Cannot Purchase.
Sec. 3439. A pledgee, or pledge holder, cannot purchase the prop-
erty pledged, except by direct dealing with the pledgor.
Ch. 6.
MISCELLANEOUS LIENS
1321
Historical: Rev. St. 1887, Sec. 3428.
California Legislation: Same: Civ.
Code 1872, Sec. 3010; Deering's Code,
ib.; different as amended:
ib.
Kerr's Code,
Foreclosure by Pledgee.
Sec. 3440. Instead of selling property pledged, as hereinBefore
provided, a pledgee may foreclose the right of redemption by a ju-
dicial sale, under the direction of a competent court ; and in that case
may be authorized by the court to purchase at the sale.
Historical: Rev. St. 1887, Sec. 342 9.
California Legislation: Same: Civ.
Code 1872, Sec. 3011; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 6.
MISCELLANEOUS LIENS.
Section
3 441. Vendor's lien.
3442. Waiver of lien.
3443. Extent of vendor's lien.
3444. Seller's lien on personal prop-
erty.
3445. Lien of purchaser of real prop-
erty.
Section
34 46. Liens for services on caring
for property.
3447. Same: For repair of property.
3448. Lien of factor.
3449. Lien of banker.
3450. Lien of mechanics.
Vendor's Lien.
Sec. 3441. One who sells real property has a vendor's lien there-
on, independent of possession, for so much of the price as remains
unpaid and unsecured otherwise than by the personal obligation of
the buyer.
Historical: Rev. St. 1887, Sec. 3 440.
California Legislation: Same: Civ.
Code 1872, Sec. 3046; Deering's Code,
ib. ; Kerr's Code, ib.
Cited: Ferguson v. Blood (1907)
152 Fed. Rep. 98.
Waiver of Lien.
Sec. 3442. Where a buyer of real property gives to the seller a
written contract for payment of all or part of the price, an absolute
transfer of such contract by the seller waives his lien to the extent
of the sum payable under the contract, but a transfer of such contract
in trust to pay debts, and return the surplus, is not a waiver of the
lien.
Historical: Rev. St. 1887, Sec. 3441.
California Legislation: Same: Civ.
Code 1872, Sec. 3047; Deering's Code,
ib.; Kerr's Code, ib.
Extent of Vendor's Lien.
Sec. 3443. The liens of vendors and purchasers of real property
are valid against every one claiming under the debtor, except a pur-
chaser or incumbrancer in good faith and for value.
Historical: Rev. St. 1887, Sec. 3442.
California Legislation: Similar: Civ.
Code 1872, Sec. 3048; Deering's Code,
ib.; Kerr's Code, ib.
Sellers' Lien on Personal Property.
Sec. 3444. One who sells personal property has a specific lien
thereon, dependent on possession, for its price, if it is in his pos-
1322
LIENS
Tit. 12
session when the price becomes payable, and may enforce his lien in
like manner as if the property was pledged to him for the price.
Historical: Rev. St. 1887, Sec. 3443.
California Legislation: Same: Civ.
Code 1872, Sec. 3049; Deering's Code,
ib. ; Kerr's Code, ib.
Duration of Lien: A vendor's lien
on personal property only exists so
long- as the vendor retains possession;
there is no such lien in case of a con-
ditional sale with reservation of title
in the vendor and transfer of posses-
sion to the vendee. Barton v. Grose-
close (1905) 11 Ida. 227; 81 Pac. 623.
Lien of Purchaser of Real Property.
Sec. 3445. One who pays to the owner any part of the price of
real property, under an agreement for the sale thereof, has a special
lien upon the property, independent of possession, for such part of the
amount paid as he may be entitled to recover back, in case of a failure
of consideration.
Historical: Rev. St. 1887, Sec. 344 4.
California Legislation: Same: Civ.
Code 1872, Sec. 3050; Deering's Code,
ib.; Kerr's Code, ib.
Liens for Services on or Caring for Property.
Sec. 3446. Every person who, while lawfully in possession of an
article of personal property, renders any service to the owner thereof,
by labor, or skill, employed for the protection, improvement, safe
keeping, or carriage thereof, has a special lien thereon, dependent on
possession, for the compensation, if any, which is due him from the
owner, for such service. Livery or boarding or feed stable proprie-
tors, and persons pasturing livestock of any kind, have a lien, depen-
dent on possession, for their compensation in caring for, boarding,
feeding or pasturing such livestock. If the liens as herein provided
are not paid within sixty days after the work is done, service ren-
dered, or feed or pasturing supplied, the person in whose favor such
special lien is created may proceed to sell the property at public auc-
tion, after giving ten days' public notice of the sale by advertising in
some newspaper published in the county where such property is sit-
uated, or if there be no newspaper published in the county then by
posting notices of the sale in three of the most public places in the
county, for ten days previous to such sale. The proceeds of the sale
must be applied to the discharge of the lien and costs ; the remainder
if any must be paid over to the owner.
Historical: Rev. St. 18 8 7, Sec. 3445;
amended Laws 1893, 67, Sec. 1; re-
enacted Laws 1899, 181, Sec. 1.
California Legislation : Same
through "service", line 6, rest omitted:
Civ. Code 1872, Sec. 3051; similar
through "livestock", line 9, as amend-
ed: Deering's Code, ib.; further
amended: Kerr's Code, ib.
Lien for Service: A party placed in
charge of mining property consisting
of both personal and real estate, has a
lien on the personal property for the
value of his services so long as he re-
mains in possession. Idaho Comstock
etc. Co. v. Lundstrum (1903) 9 Ida.
257; 74 Pac. 975.
Where two or three tenants in com-
mon in possession of personal prop-
erty employ another to care for and
protect the property, the latter is enti-
tled to a lien dependent on possession
for his pay for his services in caring
for the same, but is not entitled to a
lien on real property for the care and
protection of either the real estate or
the personal property. Williamson v.
Moore (1905) 10 Ida. 749; 80 Pac. 227.
Same : For Repair of Property.
Sec. 3447. A person who makes, alters, or repairs any article of
personal property, at the request of the owner, has a lien on the same
Ch. 7.
LIENS FOR SERVICE OF SIRES
1323
for his reasonable charges for work done and materials furnished,
and may retain possession of the same until the charges are paid. If
not paid within two months after the work is done, the person may
proceed to sell the property at public auction, by giving ten days'
public notice of the sale by advertising in some newspaper published
in the county in which the work was done; or, if there be no news-
paper published in the county, then by posting up notices of the sale
in three of the most public places m the town where the work was
done, for ten days previous to the sale. The proceeds of the sale must
be applied to the discharge of the lien and the cost of keeping and
selling the property; the remainder, if any, must be paid over to the
owner thereof.
Historical: Rev. St. 1887, Sec. 34 46.
California Legislation: Same except
'or legal possessor" inserted after
"owner", line 2: Civ. Code 1872, Sec.
3052; Deering's Code, ib.; Kerr's Code,
ib.
Lien of Factor.
Sec. 3448. A factor has a general lien, dependent on possession,
for all that is due to him as such, upon all articles of commercial
value that are intrusted to him by the same principal.
Historical: Rev. St. 1887, Sec. 3 447.
California Legislation: Same: Civ.
Code 1872, Sec. 3053; Deering's Code,
ib. ; Kerr's Code, ib.
Lien of Banker.
Sec. 3449. A banker has a general lien, dependent on possession,
upon all property in his hands, belonging to a customer, for the bal-
ance due to him from such customer in the course of the business.
Historical: Rev. St. 1878, Sec. 3448.
California Legislation: Same: Civ.
Code 1872, Sec. 3054; Deering's Code,
ib.; Kerr's Code, ib.
Application: This section is limited
in its application to property taken by
a banker in the usual course of bank-
ing business, and does not operate to
afford a lien on a stock of merchan-
dise transferred to a bank in such a
manner as to constitute a preference
under the bankruptcy law. In re Gesas
(1906) 146 Fed. 734.
Lien of Mechanics.
Sec. 3450. The liens of mechanics, for materials and services upon
real property, are regulated by the Code of Civil Procedure.
Historical: Rev. St. 188 7, Sec. 34 49.
California Legislation: Same: Civ.
Code 1872, Sec. 3059; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference:
Sees. 5110-5150.
Mechanics' liens:
CHAPTER 7.
LIENS FOR SERVICE OF SIRES.
Section
3451. Notice of lien to be filed.
3452. Judgment enforcing lien.
3453. Statement of description and
pedigree.
3454. Certificate by auditor.
Section
3455. Statement of account of ser-
vices.
3456. Exemption denied on compli-
ance with chapter.
Fees of auditor.
345'
Note: A similar act appears in the "Washington Codes:
and St. Vol. 1, Sees. 3442-3446.
Bal. An. Codes
1324 liens Tit. 12
Notice of Lien to Be Filed.
Sec. 3451. All owners or any person having in charge a stallion,
bull or jack, shall have a lien for the service of the stallion, bull or
jack upon the mare or cow served by any stallion, bull or jack, and
upon the offspring of the mare or cow served by any stallion, bull
or jack: Provided, That in case the owner of such stallion, bull or
jack desires to retain a lien upon any mare or cow served in the man-
ner above mentioned, the owner of such stallion, bull or jack shall,
within ninety days after such service, file with the recorder of the
county, where such mare or cow is situated, a notice in writing
containing a particular description of said mare or cow, when
served, and the amount of lien claimed upon same, which notice, when
filed as aforesaid, shall operate as notice to subsequent purchasers and
encumbrancers in good faith for the term of one year from the filing
of such notice.
Historical: Laws 1905, 2 32, Sec. 1.
Judgment Enforcing Lien,.
Sec. 3452. On all judgments rendered in any court in this State
for the service of any stallion, bull or jack, upon any mare or cow, an
execution issued upon such judgment may be levied upon the mare or
cow served by any stallion, bull or jack, and upon the offspring of the
mare or cow so served, and said mare or cow and the offspring there-
of may be sold in the manner provided by law for the sale of personal
property levied upon by virtue of an execution. The proceeds of the
sale must be applied to the payment of the judgment and all costs of
the sale of the property levied upon ; the remainder, if any, must be
paid over to the owner of the mare or cow, or to the owner of the
offspring thereof.
Historical: Laws 19 05, 2 32, Sec. 2.
Statement of Description and Pedigree.
Sec. 3453. In order to protect parties in this State against damage
resulting from breeding to sires advertised with bogus or fraudulent
pedigrees, and to secure the owners of sires payment for services, it
is provided as follows : Every owner of a sire charging a service fee,
in order to have a lien upon the get of any such sire, under the pro-
visions of this chapter, for said service, shall file a statement, verified
by oath or affirmation to the best of his knowledge and belief, with
the auditor of the county in which said sire is kept, giving the name,
age, description and pedigree, as well as the terms and conditions
upon which such sire is advertised for service.
Historical: Laws 1905, 2 32, Sec. 3.
Certificate by Auditor.
Sec. 3454. The auditor, upon receipt of the statement specified
in the preceding section, duly verified by affidavit, shall issue a cer-
tificate to the owner of said sire, a copy of which certificate shall be
filed with the auditor in any county in which said sire is stationed or
located for service, and said certificate shall state the name, age, de-
scription, pedigree and ownership of said sire, the terms and condi-
Ch. 7. LIENS FOR SERVICE OF SIRES 1325
tions upon which the sire is advertised for service, and that the provi-
sions of this chapter so far as relates to the filing of the statement
aforesaid, have been complied with.
Historical: Laws 1905, 232, Sec. 4.
Statement of Account of Services.
Sec. 3455. The owner or owners of any sire receiving such cer-
tificate shall obtain and have a lien upon the get of any such sire for
a period of eighteen months from the date of birth of the get, and
said lien shall have priority over all other liens and encumbrances
upon the get of any such sire : Provided, That said owner or owners
shall, within twelve months of the time of rendition of such service by
said certified sire, file for record a statement of account, properly ver-
ified with the auditor of the county wherein the service has been ren-
dered, of the amount due such owner or owners for said service, to-
gether with a description of the female served.
Historical: Laws 19 05, 2 3 2, Sec. 5.
Exemption Denied on Compliance With Chapter.
Sec. 3456. No get of any such sire shall be exempt from levy and
sale under execution issued upon a judgment obtained in any court
of competent jurisdiction for said service: Provided, That the court
rendering such judgment shall find and certify in the record of the
same that the plaintiff or plaintiffs have complied with the provisions
cf this chapter, and that the progeny sought to be levied upon is
subject to the lien created.
Historical: Laws 1905, 232, Sec. 6.
Fees of Auditor.
Sec. 3457. For filing the certificate, making copy of such affidavit
or affirmation, and the certification of the date of such filing, the
auditor shall be entitled to the same fees as are provided by law for
like services in regard to chattel mortgages.
Historical: Laws 1905, 232, Sec. 7.
Cross Reference: Fees for filing
chattel mortgages: Sec. 3409.
TITLE 13
NEGOTIABLE INSTRUMENTS
Chapter
1. Form and interpretation.
2. Consideration.
3. Negotiation.
4. Rights of holder.
5. Liabilities of parties.
6. Presentment for payment.
7. Notice of dishonor.
Chapter
8. Discharge of negotiable instru-
ments.
9. Bills of exchange.
10. Acceptance.
11. General provisions.
12. Instruments made negotiable by
indorsement.
Note: The first twelve chapters of this title constitute the "Uniform Ne-
gotiable Instrument Law" which is a codification of the law governing ne-
gotiable instruments. It is here reproduced without any change being made
in the classification or arrangement of sections, except that "chapters" are
substituted for "Articles". In 190 0 this law had been adopted in the fol-
lowing fifteen States, besides the District of Columbia, viz: New York, Mas-
sachusetts, Connecticut, Rhode Island, Maryland, Tennessee, Virginia,
North Carolina, Florida, Wisconsin, Colorado, Washington, Oregon, Utah
and North Dakota. Later statistics are not available. So much of Title 13
of the Civil Code, Rev. St. 1887, as treated of the subjects contained in
these chapters is deemed repealed regardless of its consistency or inconsis-
tency with the subject matter of these chapters, because to have retained
it would have destroyed the uniformity which it was the object of the Uni-
form Negotiable Instrument Law to attain.
For negotiable warehouse receipts see Sees. 1486, 1487, 1491. Negotiable
county bonds: Pol. Code, Tit. 11, Chap. 2, Art. 6. Negotiable municipal
bonds: Pol. Code, Tit. 13, Chaps. 12, 13, 14.
CHAPTER 1.
FORM AND INTERPRETATION.
Section
3458. Requirements of negotiable in-
struments.
3459. When sum payable is a sum
certain.
3460. When unqualified order is un-
conditional.
3461. When payable at a determina-
ble future time.
3462. Provisions which do not affect
negotiability.
3463. Facts which do not affect va-
lidity.
3464. When instrument is payable
on demand.
3 465. When instrument is payable to
order.
3466. When instrument is payable to
bearer.
3467. Language of instrument.
Section
3468. Date deemed to be true.
3 469. Effect of ante-dating and post-
dating.
3470. Blank date may be filled by
holder.
3471. Completion of instrument by
holder.
3472. Unauthorized negotiation of
incomplete instrument.
3 473. Delivery essential to validity.
3474. Rules of construction.
3 47 5. Use of assumed name.
3 476. Signature by agent.
3477. Liability by agent.
3 478. Signature by procuration.
347 9. Indorsement by corporation or
infant.
3480. Forged signature.
Requirements of Negotiable Instruments.
Sec. 3458. An instrument to be negotiated must conform to the fol-
lowing requirements :
Ch. 1. FORM AND INTERPRETATION 1327
First. It must be in writing and signed by the maker or drawer.
Second. Must contain an unconditional promise or order to pay
a sum certain in money.
Third. Must be payable on demand or at a fixed or determinable
future time. v
Fourth. Must be payable to the order of a specified person or to
bearer; and,
Fifth. Where the instrument is addressed to a drawee, he must
be named or otherwise indicated therein with reasonable certainty.
Historical: Laws 1903, 380, Sec. 1.
When, Sum Payable Is a Sum Certain.
Sec. 3459. The sum payable is a sum certain within the meaning
of this title ; although it is to be paid :
First. With interest; or,
Second. By stated installments; or,
Third. By stated installments, with a provision that upon default
in payment of any installment, the whole shall become due; or,
Fourth. With exchange, whether at a fixed rate or at the cur-
rent rate ; or,
Fifth. With costs of collection or an attorney's fee, in case pay-
ment shall not be made at maturity.
Historical: Laws 1903, 38 0, Sec. 2.
When Unqualified Order Is "Unconditional.
Sec. 3460. An unqualified order or promise to pay is unconditional
within the meaning of this title, though coupled with :
First. An indication of a particular fund out of which reimburse-
ment is to be made, or a particular account to be debited with the
amount ; or,
Second. A statement of the transaction which gives rise to the
instrument. But an order or promise to pay out of a particular fund
is not unconditional.
Historical: Laws 1903, 380, Sec. 3.
When Payable at a Determinable Future Time.
Sec. 3461. An instrument is payable at a determinable future
time, within the meaning of this title, which is expressed to be pay-
able:
First. At a fixed rate period after date or sight ; or,
Second. On or before a fixed or determinable future time speci-
fied therein ; or,
Third. On or at a fixed period after the concurrence of a specified
event, which is certain to happen, though the time of happening be
uncertain.
An instrument payable upon a contingency is not negotiable, and
the happening of the event does not cure the defect.
Historical: Laws 1903, 380, Sec. 4.
Provisions Which Do Not Affect Negotiability.
Sec. 3462. An instrument which contains an order or promise to
do an act in addition to the payment of money is not negotiable. But
Vol. 1 — 43
1328 NEGOTIABLE INSTRUMENTS Tit. 13
the negotiable character of an instrument otherwise negotiable is not
affected by a provision which:
First. Authorizes the sale of collateral securities in case the in-
strument be not paid at maturity ; or,
Second. Authorizes a confession of judgment if the instrument
be not paid at maturity ; or,
Third. Waives the benefit of any law intended for the advantage
or protection of the obligor ; or,
Fourth. Gives the holder an election to require something to be
done in lieu of payment of money.
But nothing in this section shall validate any provision or stipula-
tion otherwise illegal.
Historical: Laws 1903, 3 80, Sec. 5.
Facts Which Do Not Affect Validity.
Sec. 3463. The validity and negotiable character of an instrument
are not affected by the fact that :
First. It is not dated; or,
Second. Does not specify the value given, or that any value has
been given therefor ; or,
Third. Does not specify the place where it is drawn or the place
where it is payable ; or,
Fourth. Bears a seal ; or,
Fifth. Designates a particular kind of current money in which
payment is to be made.
But nothing in this section shall alter or repeal any statute re-
quiring in certain cases the nature of the consideration to be stated
in the instrument.
Historical: Laws 1903, 380, Sec. 6.
When Instrument Is Payable on Demand.
Sec. 3464. An instrument is payable on demand:
First. Where it is expressed to be payable on demand, or at
sight, or on presentation; or,
Second. In which no time for payment is expressed.
Where an instrument is issued, accepted or indorsed when over-
due, it is, as regards the person so issuing, accepting or indorsing it,
payable on demand.
Historical: Laws 1903, 380, Sec. 7.
When Instrument Is Payable to Order.
Sec. 3465. The instrument is payable to order where it is drawn
payable to the order of a specified person or to him or his order. It
may be drawn payable to the order of :
First. A payee who is not maker, drawer or drawee ; or,
Second. The drawer or maker ; or,
Third. The drawee; or,
Fourth. Two or more payees jointly; or,
Fifth. One or some of several payees; or,
Sixth. The holder of an office for the time being.
Where the instrument is payable to order, the payee must be
named or otherwise indicated therein with reasonable certainty.
Historical: Laws 1903, 380, Sec. 8.
Ch. 1. FORM AND INTERPRETATION 1329
When Instrument Is Payable to Bearer.
Sec. 3466. The instrument is payable to bearer :
First. When it is expressed to be so payable; or,
Second. When it is payable to a person named therein or bear-
er; or, x
Third. When it is payable to the order of a fictitious or non-ex-
isting person, and such fact was known to the person making it so
payable; or,
Fourth. When the name of the payee does not purport to be the
name of any person; or,
Fifth. When the only or last indorsement is an indorsement in
blank.
Historical: Laws 1903, 380, Sec. 9.
Language of Instrument.
Sec. 3467. The negotiable instrument need not follow the language
of this title, but any terms are sufficient which clearly indicate an in-
tention to conform to the requirements thereof.
Historical: Laws 1903, 380, Sec. 10.
Date Deemed to Be True.
Sec. 3468. When the instrument or an acceptance or any indorse-
ment thereon is dated, such date is deemed prima facie to be the true
date of the making, drawing, acceptance or indorsement, as the case
may be.
Historical: Laws 1903, 380, Sec. 11.
Effect of Ante-Dating and Post-Dating.
Sec. 3469. The instrument is not invalid for the reason only that
it is ante-dated or post-dated, provided this is not done for an illegal
or fraudulent purpose. The person to whom an instrument so dated
is delivered acquires the title thereto as of the date of delivery.
Historical: Laws 1903, 380, Sec. 12.
Blank Date May Be Filled by Holder.
Sec. 3470. When an instrument expressed to be payable at a fixed
period after date is issued undated, or where the acceptance of an
instrument payable at a fixed period after sight is undated, any holder
may insert therein the true date of issue or acceptance, and the in-
strument shall be payable accordingly. The insertion of a wrong date
does not avoid the instrument in the hands of a subsequent holder in
due course; but as to him, the date so inserted is to be regarded as
the true date.
Historical: Laws 1903, 380, Sec. 13.
Completion of Instrument by Holder.
Sec. 3471. Where the instrument is wanting in any material par-
ticular, the person in possession thereof has a prima facie authority
to complete it by filling up the blanks therein. And a signature on a
blank paper delivered by a person making the signature in order that
the paper may be converted into a negotiable instrument operates as
a prima facie authority to fill it up as such for any amount. In order,
1330 NEGOTIABLE INSTRUMENTS Tit. 13
however, that any such instrument when completed may be enforced
against any person who became a party thereto prior to its comple-
tion, it must be filled up strictly in accordance with the authority given
and within a reasonable time. But if any such instrument after com-
pletion is negotiated to a holder in due course, it is valid and effectual
for all purposes in his hands, and he may enforce it as if it had been
filled up strictly in accordance with the authority given and within
a reasonable time.
Historical: Laws 1903, 380, Sec. 14.
Unauthorized Negotiation of Incomplete Instrument.
Sec. 3472. Where an incomplete instrument has not been delivered
it will not, if completed and negotiated without authority, be a valid
contract in the hands of any holder, as against any person whose sig-
nature was placed thereon before delivery.
Historical: Laws 1903, 380, Sec. 15.
Delivery Essential to Validity.
Sec. 3473. Every contract on a negotiable instrument is incom-
plete and revocable until delivery of the instrument for the purpose
of giving effect thereto. As between immediate parties, and as re-
gards a remote party other than a holder in due course, the delivery,
in order to be effectual, must be made either by or under the authority
of the party making, drawing, accepting or indorsing, as the case
may be; and in such case the delivery may be shown to have been
conditional or for a special purpose only, and not for the purpose of
transferring the property in the instrument.
But where the instrument is in the hands of a holder in due course,
a valid delivery thereof by all parties prior to him so as to make
them liable to him, is conclusively presumed. And where the instru-
ment is no longer in the possession of a party whose signature appears
thereon, a valid and intentional delivery by him is presumed until the
contrary is proved.
Historical: Laws 1903, 380, Sec. 16.
Rules of Construction.
Sec. 3474. Where the language of the instrument is ambiguous, or
there are omissions therein, the following rules of construction apply :
First. Where the sum payable is expressed in words and also in
figures and there is a discrepancy between the two, the sum denoted
by the words is the sum payable; but if the words are ambiguous or
uncertain, reference may be had to the figures to fix the amount ;
Second. Where the instrument provides for the payment of inter-
est, without specifying the date from which interest is to run, the in-
terest runs from the date of the instrument, and if the instrument
is undated, from the issue thereof;
Third. Where the instrument is not dated, it will be considered
to be dated as of the time it was issued ;
Fourth. When there is conflict between the written and printed
provisions of the instrument, the written provisions prevail ;
Fifth. Where the instrument is so ambiguous that there is doubt
Ch. 1. FORM AND INTERPRETATION 1331
whether it is a bill or a note, the holder may treat it as either, at
his election;
Sixth. Where a signature is so placed upon the instrument that
it is not clear in what capacity the person making the same intended
to sign, he is to be deemed an indorser; N
Seventh. Where an instrument containing the words "I prom-
ise to pay" is signed by two or more persons, they are deemed to be
jointly and severally liable thereon.
Historical: Laws 1903, 380, Sec. 17.
Use of Assumed Name.
Sec. 3475. No person is liable on the instrument whose signature
does not appear thereon, except as herein otherwise expressly pro-
vided. But one who signs in a trade or assumed name will be liable
to the same extent as if he had signed in his own name.
Historical: Laws 1903, 380, Sec. 18.
Signature by Agent.
Sec. 3476. The signature of any party may be made by a duly
authorized agent. No particular form of appointment is necessary
for this purpose; and the authority of the agent may be established
as in other cases of agency.
Historical: Laws 1903, 380, Sec. 19.
Liability of Agent.
Sec. 3477. Where the instrument contains, or a person adds to his
signature, words indicating that he signs for or on behalf of the prin-
cipal, or in a representative capacity, he is not liable on the instru-
ment if he was duly authorized; but the mere addition of words de-
scribing him as an agent, or as filling a representative character with-
out disclosing his principal, does not exempt him from personal lia-
bility.
Historical: Laws 1903, 380, Sec. 20.
Signature by Procuration.
Sec. 3478. A signature by "procuration" operates as notice that
the agent has but limited authority to sign, and the principal is
bound only in case the agent in so signing acted within the actual limits
of his authority.
Historical: Laws 1903, 380, Sec. 21.
Indorsement by Corporation or Infant.
Sec. 3479. The indorsement or assignment of the instrument by a
corporation or by an infant passes the property therein, notwith-
standing that from want of capacity the corporation or infant may in-
cur no liability thereon.
Historical: Laws 1903, 380, Sec. 22.
Forged Signature.
Sec. 3480. Where a signature is forged or made without the au-
thority of the person whose signature it purports to be, it is wholly
inoperative, and no right to retain the instrument, or to give a dis-
1332
NEGOTIABLE INSTRUMENTS
Tit. 13
charge therefor, or to enforce payment thereof against any party
thereto, can be acquired through or under such signature, unless the
party against whom it is sought to enforce such right is precluded from
setting up the forgery or want of authority.
Historical: Laws 1903, 380, Sec. 2 3.
CHAPTER 2.
CONSIDERATION.
Section
3481. Presumption of consideration.
3482. Value denned.
3483. Holder for value defined.
348 4. Same: Holder having lien.
Section
3485. Failure of consideration as de-
fense.
3486. Accommodation indorser de-
fined: Liability.
Presumption of Consideration.
Sec. 3481. Every negotiable instrument is deemed prima facie to
have been issued for a valuable consideration, and every person whose
signature appears thereon to have become a party thereto for value.
Historical: Laws 1903, 380, Sec. 2 4.
Value Denned.
Sec. 3482. Value is any consideration sufficient to support a sim-
ple contract. An antecedent or pre-existing debt constitutes value,
and is deemed such, whether the instrument is payable on demand or
at a future time.
Historical: Laws 1903, 380, Sec. 25.
Holder for Value Denned.
Sec. 3483. Where value has at any time been given for the in-
strument, the holder is deemed a holder for value in respect to all
parties who became such prior to that time.
Historical: Laws 1903, 380, Sec. 26.
Same : Holder Having Lien.
Sec. 3484. Whether the holder has a lien on the instrument, aris-
ing either from contract or by implication of law, he is deemed a
holder for value to the extent of his lien.
Historical: Laws 1903, 380, Sec. 27.
Failure of Consideration as Defense.
Sec. 3485. Absence or failure of consideration is a matter of de-
fense as against any person not a holder in due course, and partial
failure of consideration is a defense pro tanto, whether the failure
is an ascertained and liquidated amount or otherwise.
Historical: Laws 1903, 380, Sec. 28.
Accommodation Indorser Denned : Liability.
Sec. 3486. An accommodation party is one who has signed the m-
strument as maker, drawer, acceptor, or indorser, without receiving
value therefor, and for the purpose of lending his name to some other
person. Such a person is liable on the instrument to a holder for
Ch. 3.
NEGOTIATION
1333
value, notwithstanding such holder at the time of taking the instru-
ment knew him to be only an accommodation party.
Historical: Laws 1903, 380, Sec. 29.
CHAPTER 3.
NEGOTIATION.
Secti
3487.
3488.
3489.
3490.
3491.
3492.
3493.
3494.
3495.
3496.
3497.
on
When instrument is negotiated.
Indorsement: How made.
Indorsement must be of entire
instrument.
Kinds of indorsements.
Special and blank indorsements
defined.
Blank indorsement . converted
into special.
Restrictive indorsement defined.
Rights under restrictive in-
dorsement.
Qualified indorsement: Effect.
Conditional indorsement: Ef-
fect.
Liability under special indorse-
ment.
Section
3 498. Indorsement by several payees.
3499. Instrument payable to cashier:
Indorsement.
3500. Misspelled names: Indorse-
ment.
3501. Indorsement in representative
capacity.
3 5 02. Presumption of negotiation be-
fore maturity.
35 03. Presumption as to place of in-
dorsement.
3504. Continuation or negotiability.
3505. Striking out indorsement.
3506. Transfer without indorsement.
3507. Reissue and negotiation.
When Instrument Is Negotiated.
Sec. 3487. An instrument is negotiated when it is transferred
from one person to another in such manner as to constitute the trans-
feree the holder thereof; if payable to bearer, it is negotiated by de-
livery ; if payable to order, it is negotiated by the indorsement of the
holder, completed by delivery.
Historical: Laws 1903, 380, Sec. 30.
Indorsement: How Made.
Sec. 3488. The indorsement must be written on the instrument
itself or upon a paper attached thereto. The signature of the indorser,
without additional words, is a sufficient indorsement.
Historical: Laws 1903, 380, Sec. 31.
Indorsement Must Be of Entire Instrument.
Sec. 3489. The indorsement must be an indorsement of the entire
instrument. An indorsement which purports to transfer to the in-
dorsee a part only of the amount payable, or which purports to trans-
fer the instrument to two or more indorsees severally, does not operate
as a negotiation of the instrument. But where the instrument has
been paid in part, it may be indorsed as to the residue.
Historical: Laws 1903, 380, Sec. 32.
Kinds of Indorsements.
Sec. 3490. An indorsement may be either in blank or special ; and
it may also be either restrictive or qualified or conditional.
Historical: Laws 1903 380, Sec. 33.
1334 NEGOTIABLE INSTRUMENTS Tit. 13
Special and Blank Indorsements Defined.
Sec. 3491. A special indorsement specifies the person to whom or
to whose order the instrument is to be payable ; and the indorsement
of such indorsee is necessary to the further negotiation of the instru-
ment. An indorsement in blank specifies no indorsee, and an instru-
ment so indorsed is payable to bearer, and may be negotiated by de-
livery.
Historical: Laws 1903, 3 8 0, Sec. 34.
Blank Indorsement Converted Into Special.
Sec. 3492. The holder may convert a blank indorsement huo a
special indorsement by writing over the signature of the indorser in
blank any contract consistent with the character of the indorsement.
Historical: Laws 1903, 380, Sec. 35.
Restrictive Indorsement Denned.
Sec. 3493. An indorsement is restrictive which either :
First. Prohibits the further negotiation of the instrument ; or,
Second. Constitutes the indorsee the agent of the indorser ; or,
Third. Vests the title in the indorsee in trust for or to the use of
some other person. But the mere absence of words implying power
to negotiate does not make an indorsement restrictive.
Historical: Laws 1903, 380, Sec. 36.
Rights Under Restrictive Indorsement.
Sec. 3494. A restrictive indorsement confers upon the indorsee
the right:
First. Tto receive payment of the instrument.
Second. To bring any action thereon that the indorser could
bring :
Third. To transfer his rights as such indorsee, where the form
of the indorsement authorizes him to do so.
But all subsequent indorsees acquire only the title of the first in-
dorsee under the restrictive indorsement.
Historical: Laws 1903, 380, Sec. 37.
Qualified Indorsement : Effect.
Sec. 3495. A qualified indorsement constitutes the indorser a mere
assignor of the title to the instrument. It may be made by adding
to the indorser's signature the words "Without recourse" or any words
of similar import. Such an indorsement does not impair the negoti-
able character of the instrument.
Historical: Laws 1903, 380, Sec. 38.
Conditional Indorsement: Effect.
Sec. 3496. Where an indorsement is conditional, a party required
to pay the instrument may disregard the condition, and make a pay-
ment to the indorsee or his transferee, whether the condition has
been fulfilled or not. But any person to whom an instrument so in-
dorsed is negotiated, will hold the same, or the proceeds thereof, sub-
ject to the rights of the person indorsing conditionally.
Historical: Laws 1903, 380, Sec. 3 9.
Ch. 3. NEGOTIATION 1335
Liability Under Special Indorsement.
Sec. 3497. Where an instrument, payable to bearer, is indorsed
specially, it may nevertheless be further negotiated by delivery; but
the person indorsing specially is liable as indorser to only suGb hold-
ers as to make title through his indorsement.
Historical: Laws 1903, 380, Sec. 40.
Indorsement by Several Payees.
Sec. 3498. Where an instrument is payable to the order of two or
more payees or indorsees who are not partners, all must indorse un-
less the one indorsing has authority to indorse for the others.
Historical: Laws 1903, 380, Sec. 41.
Instrument Payable to Cashier: Indorsement.
Sec. 3499. Where an instrument is drawn or indorsed to a per-
son, as "cashier" or other fiscal officer of a bank or corporation, it is
deemed prima facie to be payable to the bank or corporation of which
he is such officer, and may be negotiated by either the indorsement of
the bank or corporation, or the indorsement of the officer.
Historical: Laws 1903, 380, Sec. 42.
Misspelled Names : Indorsement.
Sec. 3500. Where the name of the payee or indorsee is wrongly
designated or misspelled, he may indorse the instrument as therein
described adding, if he think fit, his proper signature.
Historical: Laws 1903, 380, Sec. 43.
Indorsement in Representative Capacity.
Sec. 3501. Where any person is under obligation to indorse in a
representative capacity, he may indorse in such terms as to negative
personal liability.
Historical: Laws 1903, 380, Sec. 44.
Presumption of Negotiation Before Maturity.
Sec. 3502. Except where an indorsement bears date after the ma-
turity of the instrument, every negotiation is deemed prima facie to
have been effected before the instrument was overdue.
Historical: Laws 1903, 380, Sec. 45.
Presumption as to Place of Indorsement.
Sec. 3503. Except where the contrary appears, every indorsement
is presumed prima facie to have been made at the place where the in-
strument is dated.
Historical: Laws 1903, 380, Sec. 46.
Continuation of Negotiability
Sec. 3504. An instrument negotiable in its origin continues to be
negotiable until it has been restrictively indorsed or discharged by
payment or otherwise.
Historical: Laws 1903, 380, Sec. 47.
1336
NEGOTIABLE INSTRUMENTS
Tit. 13
Striking Out Indorsement.
Sec. 3505. The owner may at any time strike out any indorsement
which is not necessary to this title. The indorser whose indorsement
is struck out, and all indorsees subsequent to him, are thereby relieved
from liability on the instrument.
Historical: Laws 190 3, 380, Sec. 48.
Transfer Without Indorsement.
Sec. 3506. When the holder of an instrument payable to his order
transfers it for value without indorsing it, the transferer vests in the
transferee such title as the transferer had therein, and the transferee
acquires, in addition, the right to have the indorsement of the trans-
ferer. But for the purpose of determining whether the transferee
is a holder in due course, the negotiation takes effect as of the time
when the indorsement is actually made.
Historical: Laws 1903, 380, Sec. 4 9.
Re-Issue and Negotiation.
Sec. 3507. Where an instrument is negotiated back to a prior
party, such party may, subject to the provisions of this title, re-issue
and further negotiate the same ; but he is not entitled to enforce pay-
ment thereof against any intervening party to whom he was personally
liable.
Historical: Laws 1903, 380, Sec. 50.
CHAPTER 4.
RIGHTS OF HOLDER.
Section
3508. Suit by and payment to holder.
3509. Holder in due course defined.
3510. Same: Delay in negotiation.
3511. Same: Notice before full pay-
ment.
3512. When title is defective.
3513. What constitutes notice of in-
firmity.
Section
3514. Title and rights of holder in
due course.
3515. Defenses to negotiable instru-
ments.
3516. Presumption as to holding in
due course.
Suit by and Payment to Holder.
Sec. 3508. The holder of a negotiable instrument may sue thereon
in his own name and payment to him in due course discharges the
instrument.
Historical: Laws 1903 380, Sec. 51.
Holder in Due Course Denned.
Sec. 3509. A holder in due course, is a holder who has taken the
instrument under the following conditions :
First. That the instrument is complete and regular upon its face ;
Second. That he became the holder of it before it was overdue,
and without notice that it had been previously dishonored, if such was
the fact;
Third. That he took it in good faith and for value ;
Fourth. That at the time it was negotiated to him he had no no-
Ch. 4. RIGHTS OF HOLDER 1337
tice of any infirmity in the instrument or defect in the title of the
person negotiating it.
Historical: Laws 1903, 38 0, Sec. 52.
Same : Delay in Negotiation.
Sec. 3510. Where an instrument payable on demand is negotiated
an unreasonable length of time after its issue, the holder is not deemed
a holder in due course.
Historical: Laws 1903, 380, Sec. 53.
Same: Notice Before Full Payment.
Sec. 3511. Where the transferee receives notice of any infirmity in
the instrument or defect in the title of the person negotiating the same
before he has paid the full amount agreed to be paid therefor, he will
be deemed a holder in due course only to the extent of the amount
theretofore paid by him.
Historical: Laws 1903, 380, Sec. 54.
When Title is Defective.
Sec. 3512. The title of a person who negotiates an instrument is
defective within the maning of this title when he obtained the instru-
ment, or any signature thereto, by fraud, duress, or force and fear,
or other unlawful means, or for an illegal consideration, or when he ne-
gotiates it in breach of faith, or under such circumstances as amount
to fraud.
Historical: Laws 1903, 380, Sec. 55.
What Constitutes Notice of Infirmity.
Sec. 3513. To constitute notice of an infirmity in the instrument or
defect in the title of the person negotiating the same, the person to
whom it is negotiated must have had actual knowledge of the infirmity
or defect, or knowledge of such facts that his action in taking the in-
strument amounted to bad faith.
Historical: Laws 1903, 380, Sec. 56.
Title and Rights of Holder in Due Course.
Sec. 3514. A holder in due course holds the instrument free from
any defect of title of prior parties, and free from defenses available
to prior parties among themselves, and may enforce payment of the
instrument for the full amount thereof against all parties liable
thereon.
Historical: Laws 1903, 380, Sec. 57.
Defenses to Negotiable Instruments.
Sec. 3515. In the hands of any holder other than a holder in due
course, a negotiable instrument is subject to the same defenses as if
it were non-negotiable. But a holder who derives his title through
a holder in due course, and who is not himself a party to any fraud
or illegality affecting the instrument, has all the rights of such for-
mer holder in respect of all parties prior to the latter.
Historical: Laws 1903, 380, Sec. 5 8.
1338 NEGOTIABLE INSTRUMENTS Tit. 13
Presumption as to Holding in Due Course.
Sec. 3516. Every holder is deemed prima facie to be a holder in
due course; but when it is shown that the title of any person who
has negotiated the instrument was defective, the burden is on the
holder to prove that he or some person under whom he claims ac-
quired the title as a holder in due course. But the last mentioned rule
does not apply in favor of a party who became bound on the instru-
ment prior to the acquisition of such defective title.
Historical: Laws 1903, 38 0, Sec. 5 9.
CHAPTER 5.
LIABILITIES OF PARTIES.
Section
3517. Liability of maker.
3518. Liability of drawer.
3519. Liability of acceptor.
3520. Signature in blank deemed in-
dorsement.
3521. Same.
3522. Warranty implied from deliv-
ery.
Section
3523. Warranty implied from in-
dorsement.
3524. Liability of indorser of bearer
paper.
3525. Order of liability of indorsers.
3 526. Negotiation by agent without
indorsement.
Liability of Maker.
Sec. 3517. The maker of a negotiable instrument by making it
engages that he will pay it according to its tenor, and admits the ex-
istence of the payee and his then capacity to indorse.
Historical: Laws 1903, 380, Sec. 60.
Liability of Drawer.
Sec. 3518. The drawer by drawing the instrument admits the ex-
istence of the payee and his then capacity to indorse, and engages that
on due presentment the instrument will be accepted or paid, or both,
according to its tenor, and that if it be dishonored, and the necessary
proceedings on dishonor be duly taken, he will pay the amount thereof
to the holder, or to any subsequent indorser who may be compelled
to pay it. But the drawer may insert in the instrument an express
stipulation negotiating or limiting his own liability to the holder.
Historical: Laws 1903, 380, Sec. 61.
Liability of Acceptor.
Sec. 3519. The acceptor by accepting the instrument engages that
he will pay it according to the tenor of his acceptance, and admits :
First. The existence of the drawer, the genuineness of his sig-
nature, and his capacity and authority to draw the instrument; and,
Second. The existence of the payee and his then capacity to in-
dorse.
Historical: Laws 1903, 380, Sec. 62.
Signature in Blank Deemed Indorsement.
Sec. 3520. A person placing his signature upon an instrument oth-
erwise than as maker, drawer or acceptor is deemed to be an indorser,
Ch. 5.
LIABILITIES OF PARTIES
1339
unless he clearly indicates by appropriate words his intention to be
bound in some other capacity.
Historical: Laws 1903, 380 Sec. 63.
Same.
Sec. 3521. Where a person, not otherwise a party to an instrument,
places thereon his signature in blank before delivery, he is liable as
indorser in accordance with the following rules :
First. If the instrument is payable to the order of a third per-
son, he is liable to the payee and to all subsequent parties :
Second. If the instrument is payable to the order of the maker or
drawer, or is payable to bearer, he is liable to all parties subsequent
to the maker or drawer ;
Third. If he signs for the accommodation of the payee, he is
liable to all parties subsequent to the payee.
Historical: Laws 1903, 380, Sec. 64.
Warranty Implied From Delivery.
Sec. 3522. Every person negotiating an instrument by delivery or
by a qualified indorsement, warrants:
First. That the instrument is genuine and in all respects what it
purports to be;
Second. That he has a good title to it ;
Third. That all prior parties had capacity to contract ;
Fourth. That he has no knowledge of any fact which would im-
pair the validity of the instrument or render it valueless.
But when the negotiation is by delivery only, the warranty ex-
tends in favor of no holder other than the immediate transferee.
The provisions of subdivision three of this section do not apply
to persons negotiating public or corporate securities, other than bills
and notes.
Historical: Laws 190 3. 380, Sec. 65.
Warranty Implied From Indorsement.
Sec. 3523. Every indorser who indorses without qualification,
warrants to all subsequent holders in due course :
First. The matters and things mentioned in subdivisions one, two
and three of the next preceding section ; and,
Second. That the instrument is at the time of his indorsement
valid and subsisting.
And in addition, he engages that on due presentment, it shall be
accepted or paid, or both, as the case may be, according to its tenor,
and that if it be dishonored and the necessary proceedings on dishonor
be duly taken, he will nay the amount thereof to the holder, or to any
subsequent indorser who may be compelled to pay it.
Historical: Laws 1903, 380, Sec. 66.
Liability of Indorser: The under-
taking of an indorser is conditional;
that is, his promise is that he will pay
provided payment shall first have been
properly demanded of the maker and
due notice of the maker's neglect or
refusal shall have been given. Ankeny
v. Henry (1869) 1 Ida. 229.
Liability of Indorser of Bearer Paper.
Sec. 3524. Where a person places his indorsement on an instru-
1340
NEGOTIABLE INSTRUMENTS
Tit. 13
ment negotiable by delivery he incurs all the liabilities of an indorser.
Historical: Laws 1903, 3 80, Sec. 6 7.
Order of Liability of Indorsers.
Sec. 3525. As respects one another, indorsers are liable prima
facie in the order in which they indorse ; but evidence is admissible to
show that as between or among themselves they have agreed other-
wise. Joint payees or joint indorsees who indorse are deemed to in-
dorse jointly and severally.
Historical: Laws 1903. 380, Sec. 68.
Negotiation, by Agent Without Indorsement.
Sec. 3526. Where a broker or other agent negotiates an instru-
ment without indorsement, he incurs all the liabilities prescribed by
Section 3522 unless he discloses the name of his principal, and the
fact that he is acting only as agent.
Historical: Laws 1903, 380. Sec. 69.
CHAPTER 6.
PRESENTMENT FOR PAYMENT.
Section
Secti(
3527.
When necessary.
3537.
3528.
3529.
When to be made.
How made.
3538.
3530.
When made at proper place.
3539.
3531.
Delivery of instrument on
payment.
3540.
3532.
Presentment during- banking
hours.
3541.
3533.
Presentment to personal repre-
sentative.
3542.
3543.
3534.
Presentment to partners.
3535.
Presentment to several persons
liable.
3544.
3545.
3536.
Presentment to drawer: When
unnecessary.
Presentment to indorser: When
unnecessary.
Excuses for delay.
When presentment is unneces-
sary.
Dishonor by non-payment.
Same: Recourse against in-
dorser.
When instrument is payable.
Day of payment: How deter-
mined.
Instrument payable at bank.
Payment in due course.
When Necessary.
Sec. 3527. Presentment for payment is not necessary in order to
charge the person primarily liable on the instrument; but if the in-
strument is, by its terms, payable at a special place, and he is able
and willing to pay it there at maturity, such ability and willingness
are equivalent to a tender of payment upon his part. But except as
herein otherwise provided, presentment for payment is necessary in
order to charge the drawer and indorsers.
Historical: Laws 1903, 3 80, Sec. 7 0.
Demand Unnecessary: Demand of
payment from the maker of a prom-
issory note at maturity is unnecessary
in order to bring suit against him. Sa-
bin v. Burke (1894) 4 Ida. 28; 37 Pac.
352.
When to Be Made.
Sec. 3528. Where the instrument is not payable on demand, pre-
sentment must be made on the day it falls due.
Where it is payable on demand, presentment must be made with-
Ch. 6. PRESENTMENT FOR PAYMENT 1341
in a reasonable time after its issue, except that in case of a bill of ex-
change, presentment for payment will be sufficient if made within a
reasonable time after the last negotiation thereof.
Historical: Laws 1903, 380, Sec. 71.
How Made.
Sec. 3529. Presentment for payment, to be sufficient, must be
made:
First. By the holder, or by some person authorized to receive
payment on his behalf;
Second. At a reasonable hour on a business day ;
Third. At a proper place as herein defined ;
Fourth. To the person primarily liable on the instrument, or
if he is absent or inaccessible, to any person found at the place where
the presentment is made.
Historical: Laws 1903, 380, Sec. 72.
When Made at Proper Place.
Sec. 3530. Presentment for payment is made at the proper place :
First. Where a place of payment is specified in the instrument
and it is there presented ;
Second. Where no place of payment is specified and the address
of the person to make payment is given in the instrument and it is
there presented;
Third. Where no place of payment is specified and no address
is given and the instrument is presented at the usual place of busi-
ness or residence of the person to make payment ;
Fourth. In any other case, if presented to the person to make
payment wherever he can be found, or if presented at his last known
place of business or residence.
Historical: Laws 1903, 380, Sec. 73.
Delivery of Instrument on Payment.
Sec. 3531. The instrument must be exhibited to the person from
whom payment is demanded, and when it is paid must be delivered up
to the party paying it.
Historical: Laws 1903, 380, Sec. 74.
Presentment During Banking Hours.
Sec. 3532. Where the instrument is payable at a bank, present-
ment for payment must be made during banking hours, unless the
person to make payment has no funds there to meet it at any time
during the day, in which case presentment at any hour before the
bank is closed on that day is sufficient.
Historical: Laws 1903, 3 80, Sec. 7 5.
Presentment to Personal Representative.
Sec. 3533. Where the person primarily liable on the instrument is
dead, and no place of payment is specified, presentment for payment
must be made to his personal representative, if such there be, and if
with the exercise of reasonable diligence he can be found.
Historical: Laws 1903, 380, Sec. 76.
1342 NEGOTIABLE INSTRUMENTS Tit. 13
Presentment to Partners.
Sec. 3534. Where the persons primarily liable on the instrument
are liable as partners, and no place of payment is specified, present-
ment for payment may be made to any one of them, even though there
has been a dissolution of the firm.
Historical: Laws 1903, 38 0, Sec. 7 7.
Presentment to Several Persons Liable.
Sec. 3535. Where there are several persons, not partners, pri-
marily liable on the instrument, and no place of payment is specified,
presentment must be made to them all.
Historical: Laws 1903, 380, Sec. 78.
Presentment to Drawer : When Unnecessary.
Sec. 3536. Presentment for payment is not required in order to
charge the drawer when he has no right to expect or require that the
drawee or acceptor will pay the instrument.
Historical: Laws 1903, 38 0, Sec. 7 9.
Presentment to Indorser: When Unnecessary.
Sec. 3537. Presentment for payment is not required in order to
charge an indorser where the instrument was made or accepted for
his accommodation, and he has no reason to expect that the instru-
ment will be paid if presented.
Historical: Laws 1903, 380, Sec. 80.
Excuses for Delay.
Sec. 3538. Delay in making presentment for payment is excused
when the delay is caused by circumstances beyond the control of the
holder, and not imputable to his default, misconduct or negligence.
When the cause of delay ceases to operate, presentment must be
made with reasonable diligence.
Historical: Laws 1903, 380, Sec. 81.
When Presentment is Unnecessary.
Sec. 3539. Presentment for payment is dispensed with :
First. Where after the exercise of reasonable diligence present-
ment as required by this title cannot be made ;
Second. Where the drawee is a fictitious person ;
Third. By waiver of presentment, express or implied.
Historical: Laws 1903. 380, Sec. 82.
Dishonor by Non-Payment.
Sec. 3540. The instrument is dishonored by non-payment when :
First. It is duly presented for payment and payment is refused
or cannot be obtained ; or,
Second. Presentment is excused and the instrument is overdue
and unpaid.
Historical: Laws 1903, 380, Sec. 83.
Same : Recourse Against Indorser.
Sec. 3541. Subject to the provisions of this title, when the instru-
Ch. 7.
NOTICE OF DISHONOR
1343
ment is dishonored by non-payment, an immediate right of recourse
to all parties secondarily liable thereon, accrues to the holder.
Historical: Laws 1903, 380, Sec. 84.
When Instrument Is Payable. ^
Sec. 3542. Every negotiable instrument is payable at the time
fixed therein without grace. When the day of maturity falls upon
Sunday, or a holiday, the instrument is payable on the next succeed-
ing business day. Instruments falling due on Saturday are to be pre-
sented for payment on the next succeeding business day, except that
instruments payable on demand may, at the option of the holder, be
presented for payment before twelve o'clock noon on Saturday when
that entire day is not a holiday.
Historical: Laws 19 03, 3 80, Sec. 85.
Date of Payment: How Determined.
Sec. 3543. Where the instrument is payaable at a fixed period after
date, after sight, or after the happening of a specified event, the time
of payment is determined by excluding the day from which the time
is to begin to run, and by including the date of payment.
Historical: Laws 19 03, 380, Sec. 86.
Instrument Payable at Bank.
Sec. 3544. Where the instrument is made payable at a bank it is
equivalent to an order to the bank to pay the same for the account
of the principal debtor thereon.
Historical: Laws 1903, 380, Sec. 8 7.
Payment in Due Course.
Sec. 3545. Payment is made in due course when it is made at or
after maturity of the instrument to the holder thereof in good faith
and without notice that his title is defective.
Historical: Laws 1903, 3 80, Sec. 88.
CHAPTER 7.
NOTICE OF DISHONOR.
Section
Secti
3546.
To whom given.
3559
3547.
By whom given.
3 560.
£54 8.
Same: By agent.
3549.
Notice inures for benefit of all
parties.
3561
3550.
Same.
3562
3551.
Notice by agent to principal.
3563
3564
3552.
3553.
Sufficiency of notice.
Form and service of notice.
3554.
May be given to party or
35 6 5
3566.
3567
agent.
••etc
O O O 0 .
Notice to personal representa-
tive.
3556.
Notice to partners.
3568
3557.
Notice to joint parties.
3 5 69
35 58.
Notice to bankrupt.
ion
TV hen to be given
Same: Parties residing in
same place.
Same: Parties residing in dif-
ferent places.
Notice by mail: When deemed
given.
Same.
Time for giving notice by party
receiving same.
Place for sending notice.
Waiver of notice.
Fame: parties bound.
Waiver of protest.
Notice dispensed with.
1344
NEGOTIABLE INSTRUMENTS
Tit. 13
Section
35 70. Excuse for delaying notice.
3571. Notice to drawer not required:
When.
3572. Notice to indorser not required:
When.
Section
3573. Notice of non-payment unnec-
essary: When.
3574. Failure to give notice of non-
acceptance: Effect.
35 75. Protest: When necessary.
To Whom Given.
Sec. 3546. Except as herein otherwise provided, when a negotia-
ble instrument has been dishonored by non-acceptance or non-pay-
ment, notice of dishonor must be given to the drawer and to each
indorser, and any drawer or indorser to whom such notice is not
given is discharged.
Historical: Laws 1903, 380, Sec. 89.
By Whom Given.
Sec. 3547. The notice may be given by or on behalf of the holder,
or by or on behalf of any party to the instrument who might be
compelled to pay it to the holder, and who, upon taking it up, would
have a right to reimbursement from the party to whom the notice
is given.
Historical: Laws 1903. 3 89, Sec. 90.
Same: By Agent.
Sec. 3548. Notice of dishonor may be given by an agent either in
his own name or in the name of any party entitled to give notice,
whether that party be his principal or not.
Historical: Laws 1903, 380, Sec. 91.
Notice Inures for Benefit of All Parties.
Sec. 3549. Where notice is given by or on behalf of the holder, it
inures for the benefit of all subsequent holders and all prior parties
who have a right of recourse against the party to whom it is given.
Historical: Laws 1903, 380, Sec. 92.
Same.
Sec. 3550. Where notice is given by or on behalf of a party enti-
tled to give notice, it inures for the benefit of the holder and all parties
subsequent to the party to whom notice is given.
Historical: Laws 19 03, 380, Sec. 93.
Notice by Agent to Principal.
Sec. 3551. Where the instrument has been dishonored in the hands
of an agent, he may either himself give notice to the parties liable
thereon, or he may give notice to his principal. If he gives notice to
his principal, he must do so within the same time as if he were the
holder, and the principal, upon the receipt of such notice, has himself
the same time for giving notice as if the agent had been an indepen-
dent holder.
Historical: Laws 1903, 380, Sec. 94.
Sufficiency of Notice.
Sec. 3552. A written notice need not be signed, and an insuffi-
Ch. 7. NOTICE OF DISHONOR 1345
cient written notice may be supplemented and validated by verbal
communication. A misdescription of the instrument does not vitiate
the notice unless the party to whim the notice is given is in fact mis-
led thereby.
Historical: Laws 1903, 380, Sec. 95.
Form and Service of Notice.
Sec. 3553. The notice may be in writing or merely oral and may
be given in any terms which sufficiently identify the instrument and
indicate that it has been dishonored by non-acceptance or non-pay-
ment. It may in all cases be given by delivering it personally or
through the mail.
Historical: Laws 1903, 380, Sec. 96.
May Be Given to Party or Agent.
Sec. 3554. Notice of dishonor may be given either to the party
himself or to his agent in that behalf.
Historical: Laws 1903, 380, Sec. 97.
Notice to Personal Representative.
Sec. 3555. Where any party is dead, and his death is known to
the party giving notice, the notice must be given to a personal rep-
resentative, if there be one, and if with reasonable diligence, he can
be found. If there be no personal representative, notice may be sent
to the last residence or last place of business of the deceased.
Historical: Laws 1903, 380, Sec. 98.
Notice to Partners.
Sec. 3556. Where the parties to be notified are partners, notice to
any one partner is notice to the firm, even though there has been a
dissolution.
Historical: Laws 190 3, 380, Sec. 99.
Notice to Joint Parties.
Sec. 3557. Notice to joint parties who are not partners must be
given to each of them, unless one of them has authority to receive
such notice for the others.
Historical: Laws 1903, 380, Sec. 100.
Notice to Bankrupt.
Sec. 3558. Where a party has been adjudged a bankrupt or an
insolvent, or has made an assignment for the benefit of creditors,
notice may be given either to the party himself or to his trustee or
assignee.
Historical: Laws 1903, 380, Sec. 101.
When to Be Given.
Sec. 3559. Notice may be given as soon as the instrument is dis-
honored, and unless delay is excused as hereinafter provided, must be
given within the times fixed by this title.
Historical: Laws 1903, 38 0, Sec. 102.
1346 NEGOTIABLE INSTRUMENTS Tit. 13
Same: Parties Residing in Same Place.
Sec. 3560. Where the person giving and the person to receive
notice reside in the same place, notice must be given within the fol-
lowing times :
First : If given at the place of business of the person to receive
notice, it must be given before the close of business hours on the day
following ;
Second. If given at his residence, it must be given before the
usual hours of rest on the day following;
Third. If sent by mail, it must be deposited in the postoffice in
time to reach him in the usual course on the day following.
Historical: Laws 1903, 380, Sec. 103.
Same : Parties Residing in Different Places.
Sec. 3561. Where the person giving and the person to receive no-
tice reside in different places, the notice must be given within the fol-
lowing times:
First. If sent by mail, it must be deposited in the postoffice in
time to go by mail the day following the day of dishonor, or if there
be no mail at a convenient hour on that day, by the next mail there-
after ;
Second. If given otherwise than through the postoffice, then
within the time that notice would have been received in due course
of mail, if it had been deposited in the postoffice within the time
specified in the last subdivision.
Historical: Laws 1903, 380, Sec. 104.
Notice by Mail: When Deemed Given.
Sec. 3562. Where notice of dishonor is duly addressed and de-
posited in the postoffice, the sender is deemed to have given due no-
tice, notwithstanding any miscarriage in the mails.
Historical: Laws 1903, 380, Sec. 10 5.
Same.
Sec. 3563. Notice is deemed to have been deposited in the post-
office when deposited in any branch postoffice or in any letter box
under the control of the postoffice department.
Historical: Laws 1903, 38 0, Seo. 106.
Time for Giving Notice by Party Receiving Same.
Sec. 3564. Where a party receives notice of dishonor, he has,
after the receipt of such notice, the same time for giving notice to
antecedent parties that the holder has after the dishonor.
Historical: Laws 1903, 38 0, Sec. 10 7.
Place for Sending Notice.
Sec. 3565. Where a party has added an address to his signature
notice of dishonor must be sent to that address ; but if he is not given
such address, then the notice must be sent as follows :
First. Either to the postoffice nearest to his place of residence,
or to the postoffice where he is accustomed to receive his letters ; or,
Ch. 7. NOTICE OF DISHONOR 1347
Second. If he lives in one place, and has his place of business in
another, notice may be sent to either place; or,
Third. If he is sojourning in another place, notice may be sent
to the place where he is sojourning.
But where the notice is actually received by the party within the
time specified in this title, it will be sufficient, though not sent in ac-
cordance with the requirements of this section.
Historical: Laws 1903, 380, Sec. 108.
Waiver of Notice.
Sec. 3566. Notice of dishonor may be waived, either before the
time of giving notice has arrived, or after the omission to give due
notice, and the waiver may be expressed or implied.
Historical: Laws 1903, 380, Sec. 109.
Same: Parties Bound.
Sec. 3567. Where the waiver is embodied in the instrument itself,
it is binding upon all parties, but where it is written above the signa-
ture of an indorser, it binds him only.
Historical: Laws 1903, 3 8 0, Sec. 110.
Waiver of Protest.
Sec. 3568. A waiver of protest, whether in the case of a foreign
bill of exchange or other negotiable instrument, is deemed to be a
waiver not only of a formal protest, but also of a presentment and
notice of dishonor.
Historical: Laws 1903, 380, Sec. 111.
Notice Dispensed With.
Sec. 3569. Notice of dishonor is dispensed with when, after the
exercise of reasonable diligence, it cannot be given to, or does not
reach, the parties sought to be charged.
Historical: Laws 1903. 380, Sec. 112.
Excuses for Delaying Notice.
Sec. 3570. Delay in giving notice of dishonor is excused when the
delay is caused by circumstances beyond the control of the holder and
not imputable to his default, misconduct or negligence. When the
cause of delay ceases to operate, notice must be given with reasonable
diligence.
Historical: Laws 1903, 380, Sec. 113.
Notice to Drawer Not Required: When.
Sec. 3571. Notice of dishonor is not required to be given to the
drawer in either of the following cases :
First. When the drawer and drawee are the same person.
Second. Where the drawee is a fictitious person or a person not
having capacity to contract.
Third. Where the drawer is the person to whom the instrument
is presented for payment.
Fourth. Where the drawer has no right to expect or require that
the drawee or acceptor will honor the instrument.
1348
NEGOTIABLE INSTRUMENTS
Tit. 13
Fifth. Where the drawer has countermanded payment.
Historical: Laws 1903, 380, Sec. 114.
Notice to Indorser Not Required : When.
Sec. 3572. Notice of dishonor is not required to be given to an
indorser in either of the following cases:
First. Where the drawee is a fictitious person or a person not
having capacity to contract and the indorser was aware of the fact
at the time he indorsed the instrument;
Second. Where the indorser is the person to whom the instru-
ment is presented for payment.
Third. Where the instrument was made or accepted, for his ac-
commodation.
Historical: Laws 1903, 380, Sec. 115.
Notice of Non-Payment Unnecessary: When.
Sec. 3573. Where due notice of dishonor by non-acceptance has
been given, notice of a subsequent dishonor by non-payment is not
necessary, unless in the meantime the instrument has been accepted.
Historical: Laws 19 03, 380, Sec. 116.
Failure to Give Notice of Non- Acceptance : Effect.
Sec. 3574. An omission to give notice of dishonor by non-accept-
ance does not prejudice the rights of a holder in due course subse-
quent to the omission.
Historical: Laws 1903, 380. Sec. 117.
Protest: When Necessary.
Sec. 3575. Where any negotiable instrument has been dishonored
it may be protested for non-acceptance or non-payment as the case
may be ; but protest is not required, except in the case of foreign bills
of exchange.
Historical: Laws 1903, 380, Sec. 118.
CHAPTER 8.
DISCHARGE OF NEGOTIABLE INSTRUMENTS.
Section
3580. Cancellation by mistake: Bur-
den of proof.
35 81. Alteration of instrument.
35 82. Material alteration denned.
Section
35 7 6. When instrument is discharged.
3577. Discharge of person second-
arily liable.
3 5 78. Payment by party secondarily
liable.
35 79. Renunciation of rights by
holder.
When Instrument Is Discharged.
Sec. 3576. A negotiable instrument is discharged:
First. By payment in due course by or on behalf of the principal
debtor.
Second. By payment' in due course by the party accommodated,
where the instrument is made or accepted for accommodation ;
Third. By the intentional cancellation thereof by the holder;
Ch. 8. DISCHARGE 1349
Fourth. By any other act which will discharge a simple contract
for the payment of money;
Fifth. When the principal debtor becomes the holder of the in-
strument at or after maturity in his own right.
\
Historical: Laws 1903, 380, Sec. 119.
Discharge of Person Secondarily Liable.
Sec. 3577. A person secondarily liable on the instrument is dis-
charged :
First. By an act which discharges the instrument;
Second. By the intentional cancellation of his signature by the
holder ;
Third. By the discharge of a prior party;
Fourth. By a valid tender of payment made by a prior party ;
Fifth. By a release of the principal debtor, unless the holder's
right of recourse against the party secondarily liable is expressly re-
served.
Sixth. By any agreement binding upon the holder to extend the
time of payment, or to postpone the holder's right to enforce the in-
strument, unless made with the assent of the party secondarily liable,
or unless the right of recourse against such party is expressly re-
served.
Historical: Laws 190 3, 380, Sec. 12 0.
Payment by Party Secondarily Liable.
Sec. 3578. Where the instrument is paid by a party secondarily
liable thereon, it is not discharged ; but the party so paying it is re-
mitted to his former rights as regards all prior parties, and he may
strike out his own and all subsequent indorsements, and again nego-
tiate the instrument, except:
First. Where it is payable to the order of a third person, and
had been paid by the drawer; and,
Second. Where it was made or accepted for accommodation,
and has been paid by the party accommodated.
Historical: Laws 190 3, 380, Sec. 121.
Renunciation of Rights by Holder.
Sec. 3579. The holder may expressly renounce his rights against
any party to the instrument before, at, or after its maturity. An
absolute and unconditional renunciation of his rights against the
principal debtor made at or after the maturity of the instrument dis-
charges the instrument. But a renunciation does not affect the rights
of a holder in due course without notice. A renunciation must be in
writing, unless the instrument is delivered up to the person primarily
liable thereon.
Historical: Laws 1903, 380 Sec. 122.
Cancellation by Mistake: Burden of Proof.
Sec. 3580. A cancellation made unintentionally or under a mis-
take, or without the authority of the holder, is inoperative ; but where
an instrument or any signature thereon appears to have been can-
celled, the burden of proof lies on the party who alleges that the can-
1350
NEGOTIABLE INSTRUMENTS
Tit. 13
cellation was made unintentionally, or under a mistake or without
authority.
Historical: Laws 1903, : SO, Sec. 123.
Alteration of Instrument.
Sec. 3581. Where a negotiable instrument is materially altered
without the assent of all parties liable thereon, it is avoided, except
as against a party who has himself made, authorized or assented to
the alteration and subsequent indorsers.
But when an instrument has been materially altered and is in the
hands of a holder in due course, not a party to the alteration, he may
enforce payment thereof according to its original tenor.
Historical: Laws 1903, 380, Sec. 124.
Material Alteration Defined.
Sec. 3582. Any alteration which changes:
First. The date;
Second. The sum payable, either for principal or interest,
Third. The time or place of payment ;
Fourth. The number or the relations of the parties;
Fifth. The medium of currency in which payment is to be made ;
Or which adds a place of payment where no place of payment is
specified, or any other change or addition which alters the effect of
the instrument in any respect, is a material alteration.
Historical: Laws 19 03. 380, Sec. 125.
CHAPTER 9.
BILLS OF EXCHANGE.
Section
35 8 7. When bill may be treated as
note.
3588. Referee in case of need.
Section
3583. Bill of exchange defined.
35 84. Same: Operation.
3585. Same: How addressed.
3586. Inland and foreign bills.
Bill of Exchange Denned.
Sec. 3583. A bill of exchange is an unconditional order in writing,
addressed by one person to another, signed by the person giving it,
requiring the person to whom it is addressed to pay on demand, or at
a fixed or determinable future time, a sum certain in money, to order
or to bearer.
Historical: Laws 1903, 380, Sec. 12 6.
Same : Operation.
Sec. 3584. A bill of itself does not operate as an assignment of the
funds in the hands of the drawee available for the payment thereof,
and the drawee is not liable on the bill unless and until he accepts
the same.
Historical: Laws 1903, 380, Sec. 12 7.
Same: How Addressed.
Sec. 3585. A bill may be addressed to two or more drawees jointly,
whether they are partners or not ; but not to two or more drawees in
the alternative or in succession.
Ch. 10.
ACCEPTANCE
1351
Historical: Laws 1903, 380, Sec. 128.
Inland and Foreign Bills.
Sec. 3586. An inland bill of exchange is a bill which is, or on its
face purports to be, both drawn and payable within this State> Any
other bill is a foreign bill. Unless the contrary appears on the face
of the bill, the holder may treat it as an inland bill.
Historical: Laws 1903, 380, Sec. 129.
When Bill May Be Treated as Note.
Sec. 3587. Where in a bill, drawer and drawee are the same per-
son, or where the drawee is a fictitious person, or a person not having
capacity to , contract, the holder may treat the instrument, at his
option, either as a bill of exchange or a promissory note.
Historical: Laws 1903, 380, Sec. 130.
Referee in Case of Need.
Sec. 3588. The drawer of a bill and any indorser may insert
thereon the name of a person to whom the holder may resort in
case of need, that is to say, in case the bill is dishonored by non-ac-
ceptance or non-payment. Such person is called the referee in case
of need. It is in the option of the holder to resort to the referee in
case of need or not, as he may see fit.
Historical: Laws 1903, 380, Sec. 131.
CHAPTER 10.
ACCEPTANCE.
Section
Sectio
3589.
Definition.
3606.
3590.
Acceptance on bill may be re-
quired.
3607.
3591.
Acceptance on separate paper.
3608.
3592.
Promise to accept before draw-
ing-.
3609.
3593.
Time in which to accept.
3594.
Failure to return bill deemed
3610.
an acceptance.
3611.
3595.
When bill may be accepted.
3612.
3596.
General and qualified accept-
3613.
ance.
3614.
3597.
When acceptance is general.
3598.
When acceptance is qualified.
3615.
3599.
Refusal or acceptance of qual-
ified acceptance.
3616.
3600.
Presentment for acceptance:
3617.
When necessary.
3618.
3601.
Bill must be presented or ne-
3619.
gotiated.
3620.
3602.
Presentment for acceptance:
When and to whom to be
3621.
made.
3622.
3603.
Same.
3604.
Lack of time to present bill for
acceptance.
3623.
3605.
Excuse for failure to present
for acceptance.
3624.
Dishonor by non-acceptance.
Same: Bill must be treated as
dishonored.
Dishonor: Recourse against
drawers.
Unaccepted foreign bill must
be protested.
Form of protest.
Who may make protest.
When protest must be made.
Place of protest.
Protest for non-acceptance and
for non-payment.
Protest where acceptor is
bankrupt.
When protest is dispensed with.
Protest of lost bill.
Acceptance for honor.
Same: How made.
Same: For whom made.
Liability of acceptor for honor.
Obligations of acceptor for
honor.
Maturity of sight draft ac-
cepted for honor.
Protest of bill accepted for
honor or containing reference.
1352
NEGOTIABLE INSTRUMENTS
Tit. 13
Section
Section
3625.
Presentment to acceptor for
3636.
3626.
honor.
Same: Excuses for delay.
3637.
3627.
Protest of bill dishonored by
acceptor for honor.
3638.
3639.
3628.
3629.
Payment for honor supra pro-
test.
Same: How made.
3640.
3641.
3630.
Same: Notarial act of honor.
3642.
3631.
Preference between prayers for
honor.
3642.
3632.
Payer subrogated to rights of
holder.
3644.
3633.
Refusal to accept payment
supra protest.
3645.
3646.
3634.
Payer for honor entitled to bill.
3635.
Bills drawn in set.
Same: Different holders: Title.
Same: Indorsement to differ-
ent persons.
Same: Acceptance.
Same: Payment by acceptor.
Same: Discharge.
Negotiable promissory note de-
fined.
Check defined.
When check must be presented
for payment.
Certification equivalent to ac-
ceptance.
Certification discharges parties.
Check not an assignment until
accepted.
Definition,.
Sec. 3589. The acceptance of a bill is the signification by the
drawee of his assent to the order of the drawer. The acceptance
must be in writing and signed by the drawer. It must not express
that the drawee will perform his promise by any other means than
the payment of money.
Historical: Laws 1903, 380 Sec. 132.
Acceptance on Bill May Be Required.
Sec. 3590. The holder of a bill presenting the same for acceptance
may require that the acceptance be written on the bill, and if such
request is refused, may treat the bill as dishonored.
Historical: Laws 1903, 380, Sec. 133.
Acceptance on Separate Paper.
Sec. 3591. Where an acceptance is written on a paper other than
the bill itself, it does not bind the acceptor except in favor of a person
to whom it is shown and who, on the faith thereof, receives the bill
for value.
Historical: Laws 1903, 380, Sec. 134.
Promise to Accept Before Drawing.
Sec. 3592. An unconditional promise in writing to accept a bill
before it is drawn is deemed an actual acceptance in favor of every
person who, upon the faith thereof, receives the bill for value.
Historical: Laws 1903, 3 80, Sec. 13 5.
Time in Which to Accept.
Sec. 3593. The drawee is allowed twenty-four hours after present-
ment in which to decide whether or not he will accept the bill; but
the acceptance, if given, dates as of the day of presentation.
Historical: Laws 1903, 380, Sec. 136.
Failure to Return Bill Deemed an Acceptance.
Sec. 3594. Where a drawee to whom a bill is delivered for accept-
ance destroys the same, or refuses within twenty-four hours after
such delivery, or within such other period as the holder may allow
Ch. 10. ACCEPTANCE 1353
to return the bill accepted or non-accepted to the holder, he will be
deemed to have accepted the same.
Historical: Laws 1903, 380, Sec. 137.
When Bill May Be Accepted. \
Sec. 3595. A bill may be accepted before it has been signed by the
drawer, or while otherwise incomplete, or when it is overdue, or after
it has been dishonored by a previous refusal to accept, or by non-pay-
ment. But when a bill payable after sight is dishonored by non-ac-
ceptance and the drawee subsequently accepts it, the holder, in the
absence of any different agreement, is entitled to have the bill ac-
cepted as of the date of the first presentment.
Historical: Laws 1903, 380, Sec. 138.
General and Qualified Acceptance.
Sec. 3596. An acceptance is either general or qualified. A general
acceptance assents without qualification to the order of the drawer. A
qualified acceptance in express terms varies the effect of the bill
as drawn.
Historical: Laws 1903, 380, Sec. 13 9.
When Acceptance Is General.
Sec. 3597. An acceptance to pay at a particular place is a gen-
eral acceptance unless it expressly states that the bill is to be paid
there only and not elsewhere.
Historical: Laws 1903, 380, Sec. 140.
When Acceptance Is Qualified.
Sec. 3598. An acceptance is qualified, which is:
1. Conditional, that is to say, which makes payment by the ac-
ceptor dependent on the fulfillment of a condition therein stated ;
2. Partial, that is to say, an acceptance to pay part only of the
amount for which the bill is drawn;
3. Local, that is to say, an acceptance to pay only at a particular
place ;
4. Qualified as to time ;
5. The acceptance of some one or more of the drawees, but not
of all.
Historical: Laws 1903, 380, Sec. 141.
Refusal or Acceptance of Qualified Acceptance.
Sec. 3599. The holder may refuse to take a qualified acceptance,
and if he does not obtain an unqualified acceptance, he may treat the
bill as dishonored by non-acceptance. Where a qualified acceptance
is taken, the drawer and indorsers are discharged from liability on
the bill, unless they have expressly or impliedly authorized the holder
to take a qualified acceptance or subsequently assent thereto. When
the drawer or an indorser receives notice of a qualified acceptance, he
must within a reasonable time express his dissent to the holder, or he
will be deemed to have assented thereto.
Historical: Laws 1903, 380, Sec. 142.
Presentment for Acceptance: When Necessary.
Sec. 3600. Presentment for acceptance must be made :
1354 NEGOTIABLE INSTRUMENTS Tit. 13
1. Where the bill is payable after sight, or in any other case
where presentment for acceptance is necessary in order to fix the
maturity of the instrument; or,
2. Where the bill expressly stipulates that it shall be presented
for acceptance ; or,
3. Where the bill is drawn payable elsewhere than at the resi-
dence or place of business of the drawee. In no other case is pre-
sentment for acceptance necessary in order to render any party to
the bill liable.
Historical: Laws 1903, 38 0, Sec. 143.
Bill Must Be Presented or Negotiated.
Sec. 3601. Except as herein otherwise provided, the holder of a
bill which is required by the next preceding section to be presented for
acceptance must either present it for acceptance or negotiate it
within a reasonable time.
If he fail to do so, the drawer and all endorsers are discharged.
Historical: Laws 1903, 380, Sec. 144.
Presentment for Acceptan.ee: When and to Whom to Be Made.
Sec. 3602. Presentment for acceptance must be made by or on
behalf of the holder at a reasonable hour, on a business day and be-
fore the bill is overdue, to the drawer or some person authorized to
accept or refuse acceptance on his behalf ; and,
1. Where a bill is addressed to two or more drawers who are
not partners, presentment must be made to them all, unless one has
authority to accept or refuse acceptance for all, in which case pre-
sentment may be made to him only.
2. Where the drawee is dead, presentment may be made to his
personal representative ;
3. Where the drawee has been adjudged a bankrupt or an in-
solvent or has made an assignment for the benefit of creditors, pre-
sentment may be made to him or to his trustee or assignee.
Historical: Laws 1903, 380, Sec. 145.
Same.
Sec. 3603. A bill may be presented for acceptance on any day on
which negotiable instruments may be presented for payment under
the provisions of Sections 3529 and 3542 of this title.
When Saturday is not otherwise a holiday, presentment for ac-
ceptance may be made before 12 o'clock noon on that day.
Historical: Laws 19 03, 3 8 0, Sec. 14 6.
Lack of Time to Present Bill for Acceptance.
Sec. 3604. Where the holder of a bill drawn payable elsewhere
than at the place of business or the residence of the drawee has not
time, with the exercise of reasonable diligence, to present the bill for
acceptance before presenting it for payment on the day that it falls
due, the delay caused by presenting the bill for acceptance before pre-
senting it for payment is excused, and does not discharge the drawers
and indorsers.
Historical: Laws 1903, 380, Sec. 147.
Ch. 10. ACCEPTANCE 1355
Excuses for Failure to Present for Acceptance.
Sec. 3605. Presentment for acceptance is excused and a bill may-
be treated as dishonored by non-acceptance, in either of the following
cases :
1. Where the drawee is dead, or has absconded or is a fictitious
person or a person not having capacity to contract by bill ;
2. Where after the exercise of reasonable diligence, presentment
cannot be made;
3. Where although presentment has been irregular, acceptance
has been refused on some ground.
Historical: Laws 1903, 380, Sec. 148.
Dishonor by Non-Acceptance.
Sec. 3606. A bill is dishonored by non-acceptance :
1. When it is duly presented for acceptance and such an accept-
ance as is prescribed by this title is refused or cannot be obtained ; or,
2. Where a presentment for acceptance is excused and the bill
is not accepted.
Historical: Laws 1903, 380, Sec. 149.
Same: Bill Must Be Treated as Dishonored.
Sec. 3607. Where a bill is duly presented for acceptance and is not
accepted within the prescribed time, the person presenting it must
treat the bill as dishonored by non-acceptance, or he loses the right of
recourse against the drawer and indorsers.
Historical: Laws 1903, 380, Sec. 150.
Dishonor: Recourse Against Drawers.
Sec. 3608. When a bill is dishonored by non-acceptance, an imme-
diate right of recourse against the drawers and indorsers accrues to
the holders, and no presentment for payment is necessary.
Historical: Laws 1903, 380, Sec. 151.
Unaccepted Foreign Bill Must Be Protested.
Sec. 3609. Where a foreign bill appearing on its face to be such
is dishonored by non-acceptance, it must be duly protested for non-
acceptance, and where such a bill which has not previously been dis-
honored by non-acceptnace is dishonored by non-payment, it must be
duly protested for non-payment. If it is not so protested, the drawer
and indorsers are discharged. Where a bill does not appear on its
face to be a foreign bill, protest thereof, in case of dishonor, is un-
necessary.
Historical: Laws 1903, 380, Sec. 15 2.
Form of Protest.
Sec. 3610. The protest must be annexed to the bill, or must con-
tain a copy thereof, and must be under the hand and seal of the notary
making it, and must specify :
1. The time and place of presentment;
2. The fact that presentment was made and the manner thereof ;
3. The cause and reason for protesting the bill ;
1356 NEGOTIABLE INSTRUMENTS . Tit. 13
4. The demand made and the answer given, if any, or the fact
that the drawee or acceptor could not be found.
Historical: Laws 19 03, 380, Sec. 15 3.
Who May Make Protest.
Sec. 3611. Protest may be made by:
1. A notary public; or,
2. By any respectable resident of the place where the bill is dis-
honored, in the presence of two or more creditable witnesses.
Historical: Laws 1903, 380, Sec. 154.
When Protest Must Be Made.
Sec. 3612. When the bill is protested, such protest must be made
on the day of its dishonor, unless delay is excused as herein provided.
When a bill has been duly noted, the protest may be subsequently ex-
tended as of the date of the noting.
Historical: Laws 1903, 380, Sec. 155.
Place of Protest.
Sec. 3613. A bill must be protested at the place where it is dis-
honored, except that wThen a bill drawn payable at the place of busi-
ness or residence of some person other than the drawee, has been dis-
honored by non-acceptance, it must be protested for non-payment at
the place where it is expressed to be payable, and no other present-
ment for payment to, or demand on, the drawee is necessary.
Historical: Laws 1903, 380, Sec. 156.
Protest for Non-Acceptance and for Non-Payment.
Sec. 3614. A bill which has been protested for non-acceptance
may be subsequently protested for non-payment.
Historical: Laws 1903, 380. Sec. 157.
Protest Where Acceptor Is Bankrupt.
Sec. 3615. Where the acceptor has been adjudged a bankrupt or
an insolvent or has made an assignment for the benefit of creditors,
before the bill matures, the holder may cause the bill to be protested
for better security against the drawer and indorsers.
Historical: Laws 1903, 380, Sec. 158.
When Protest Is Dispensed With.
Sec. 3616. Protest is dispensed with by any circumstances which
would dispense with notice of dishonor. Delay in noting or protest-
ing is excused when the delay is caused by circumstances beyond the
control of the holder and not imputable to his default, misconduct, or
negligence. When the cause of delay ceases to operate, the bill must
be noted or protested with reasonable diligence.
Historical: Laws 1903, 380, Sec. 159.
Protest of Lost Bill.
Sec. 3617. Where a bill is lost or destroyed, or is wrongly detained
Ch. 10. ACCEPTANCE 1357
from the person entitled to hold it, protest may be made on a copy
or written particulars thereof.
Historical: Laws 1903, 380, Sec. 160.
Acceptance for Honor.
Sec. 3618. Where a bill of exchange has been protested for dis-
honor by non-acceptance, or protested for better security, and is not
overdue, any person not being a party already liable thereon, may,
with the consent of the holder, intervene and accept the bill supra
protest for the honor of any party liable thereon, or for the honor of
the person for whose account the bill is drawn. The acceptance for
honor may be for part only of the sum for which the bill is drawn,
and where there has been an acceptance for honor for one party,
there may be a further acceptance by a different person for the honor
of another party.
Historical: Laws 1903, 380, Sec. 161.
Same : How Made.
Sec. 3619. An acceptance for honor supra protest must be in
writing and indicate that it is an acceptance for honor, and must be
signed by the acceptor for honor.
Historical: Laws 1903, 380, Sec. 162.
Same: For Whom Made.
Sec. 3620. Where an acceptance for honor does not expressly state
for whose honor it is made, it is deemed to be an acceptance for the
honor of the drawer.
Historical: Laws 1903, 380, Sec. 163.
Liability of Acceptor for Honor.
Sec. 3621. The acceptor for honor is liable to the holder and to
all parties to the bill subsequent to the party for whose honor he has
accepted it.
Historical: Laws 1903, 380, Sec. 164.
Obligations of Acceptor for Honor.
Sec. 3622. The acceptor for honor by such acceptance engages
that he will on due presentment pay the bill according to the terms
of his acceptance: Provided, It shall not have been paid by the
drawee: And Provided, also, That it shall have been duly presented
for payment and protested for non-payment and notice of dishonor
given to him.
Historical: Laws 1903, 380. Sec. 16 5.
Maturity of Sight Draft Accepted for Honor.
Sec. 3623. When a bill payable after sight is accepted for honor
its maturity is calculated from the date of the noting for non-ac-
ceptance and not from the date of the acceptance for honor.
Historical: Laws 190 3, 380, Sec. 166.
Protest of Bill Accepted for Honor or Containing Reference.
Sec. 3624. Where a dishonored bill has been accepted for honor
1358 NEGOTIABLE INSTRUMENTS Tit. 13
supra protest or contains a reference in case of need, it must be pro-
tested for non-payment before it is presented for payment to the ac-
ceptor for honor or referee in case of need.
Historical: Laws 1903, 380, Sec. 167.
Presentment to Acceptor for Honor.
Sec. 3625. Presentment for payment to the acceptor for honor
must be made as follows :
1. If it is to be presented in the place where the protest for non-
payment was made, it must be presented not later than the day fol-
lowing its maturity;
2. If it is to be presented in some other place where it was pro-
tested, then it must be forwarded within the time specified in Section
3561.
Historical: Laws 1903, 380, Sec. 168.
Same : Excuses for Delay.
Sec. 3626. The provisions of Section 3538 apply where there is
delay in making presentment to the acceptor for honor or referee in
case of need.
Historical: Laws 19 03, 380, Sec. 16 9.
Protest of Bill Dishonored by Acceptor for Honor.
Sec. 3627. When the bill is dishonored by the acceptor for honor
it must be protested for non-payment by him.
Historical: Laws 1903, 380. Sec. 170.
Payment for Honor Supra Protest.
Sec. 3628. Where a bill has been protested for non-payment, any
person may intervene and pay it supra protest for the honor of any
person liable thereon or for the honor of the person for whose ac-
count it was drawn.
Historical: Laws 1903, 380, Sec. 171.
Same: How Made.
Sec. 3629. The payment for honor supra protest in order to op-
erate as such and not as a mere voluntary payment must be attested
by a notarial act of honor which may be appended to the protest or
form an extension to it.
Historical: Laws 1903, 380, Sec. 172.
Same: Notarial Act of Honor.
Sec. 3630. The notarial act of honor must be founded on a decla-
ration made by the payee for honor or by his agent in that behalf de-
claring his intention to pay the bill for honor and for whose honor
he pays.
Historical: Laws 1903, 380, Sec. 173.
Preference Between Payers for Honor.
Sec. 3631. Where two or more persons offer to pay a bill for the
Ch. 10. ACCEPTANCE 1359
honor of different parties, the person whose payment will discharge
most parties to the bill is to be given the preference.
Historical: Laws 1903, 380. Sec. 174.
Payer Subrogated to Rights of Holder.
Sec. 3632. Where a bill has been paid for honor all parties subse-
quent to the party for whose honor it is paid are discharged, but the
payer for honor is subrogated for, and succeeds to, both the rights
and duties of the holder as regards the party for whose honor he
pays and all parties liable to the latter.
Historical: Laws 1903, 380, Sec. 175.
Refusal to Accept Payment Supra Protest.
Sec. 3633. Where the holder of a bill refuses to receive payment
supra protest he loses his right of recourse against any party who
would have been discharged by such payment.
Historical: Laws 190 3, 380, Sec. 176.
Payer for Honor Entitled to Bill.
Sec. 3634. The payer for honor on paying to the holder the amount
of the bill and the notarial expenses incidental to its dishonor, is en-
titled to receive both the bill itself and the protest.
Historical: Laws 1903, 380, Sec. 177.
Bills Drawn in Set.
Sec. 3635. Where a bill is drawn in a set, each part of the set
being numbered and containing a reference to the other parts, the
whole of the parts constitute one bill.
Historical: Laws 1903, 38 0, Sec. 17 8.
Same: Different Holders: Title.
Sec. 3636. Where two or more parts of a set are negotiated to
different holders in due course, the holder whose title first accrues is,
as between such holders, the true owner of the bill. But nothing in
this section affects the rights of a person who in due course ac-
cepts or pays the part first presented to him.
Historical: Laws 1903, 380, Sec. 17 9.
Same: Indorsement to Different Persons.
Sec. 3637. Where the holder of a set indorses two or more parts
to different persons he is liable on every such part, and every indorser
subsequent to him is liable on the part he has himself indorsed, as if
such parts were separate bills.
Historical: Laws 1903, 380, Sec. 180.
Same : Acceptance.
Sec. 3638. The acceptance may be written on any part and it must
be written on one part only. If the drawee accepts more than one
part, and such accepted parts are negotiated to different holders in due
course, he is liable on every such part as if it were a separate bill.
Historical: Laws 1903, 380, Sec. 181.
Vol. 1 — 44
1360 NEGOTIABLE INSTRUMENTS Tit. 13
Same: Payment by Acceptor.
Sec. 3639. When the acceptor of a bill drawn in a set pays it with-
out requiring the part bearing his acceptance to be delivered up to
him, and that part at maturity is outstanding in the hands of a holder
in due course, he is liable to the holder thereon.
Historical: Laws 1903, 380, Sec. 182.
Same : Discharge.
Sec. 3640. Except as herein otherwise provided where any one
part of a bill drawn in a set is discharged by payment or otherwise,
the whole bill is discharged.
Historical: Laws 1903, 380, Sec. 183.
Negotiable Promissory Note Denned.
Sec. 3641. A negotiable promissory note, within the meaning of
this title, is an unconditional promise in writing made by one person
to another, signed by the maker engaging to pay on demand or at
a fixed or determinable future time, a sum certain in money to order
or to bearer. Where a note is drawn to the maker's own order, it is
not complete until indorsed by him.
Historical: Laws 1903, 380, Sec. 184.
Check Defined.
Sec. 3642. A Check is a bill of exchange drawn on a bank payable
on demand. Except as herein otherwise provided, the provisions of
this title applicable to a bill of exchange payable on demand apply to
a check.
Historical: Laws 190 3, 380, Sec. 185.
When Check Mnst Be Presented for Payment.
Sec. 3643. A check must be presented for payment within a rea-
sonable time after its issue, or the drawer will be discharged from
liability thereon to the extent of the loss caused by the delay.
Historical: Laws 1903, 380, Sec. 186.
Certification Equivalent to Acceptance.
Sec. 3644. Where a check is certified by the bank on which it is
drawn, the certification is equivalent to an acceptance.
Historical: Laws 1903, 3 80, Sec. 187.
Certification Discharges Parties.
Sec. 3645. Where the holder of a check procures it to be accepted
or certified, the drawer and all indorsers are discharged from liability
thereon.
Historical: Laws 1903, 380, Sec. 18 8.
Check Not an Assignment Until Accepted.
Sec. 3646. A check of itself does not operate as an assignment of
any part of the funds to the credit of the drawer with the bank, and
the bank is not liable to the holder, unless and until it accepts or cer-
tifies the check.
Historical: Laws 1903, 380, Sec. 189.
Ch. 11.
GENERAL PROVISIONS
1361
CHAPTER 11.
GENERAL PROVISIONS.
Section
3647.
Name of title.
3648.
Definitions.
3649.
Primary and secondary liabil-
ity.
3650.
Reasonable time: How deter-
mined.
Section >>
3651. Last day falling on holiday.
3652. Application of titl^.
3653. Law merchant to ccver omit-
ted case.
Name of Title.
Sec. 3647. This title shall be known as the Negotiable Instrument
Law.
Historical: Laws 1903, 380, Sec. 190.
This does not include Chapter 12,
which is no part of the uniform nego-
tiable instrument law.
Definitions.
Sec. 3648. In this title unless the context otherwise requires :
"Acceptance" means an acceptance completed by delivery or noti-
fication.
"Action" includes counter-claim and set-off.
"Bank" includes any person or association of persons carrying on
the business of banking, whether incorporated or not.
"Bearer" means the person in possession of a bill or note which is
payable to bearer.
"Bill" means bill of exchange, and "Note" means negotiable prom-
issory note.
"Delivery" means transfer of possession, actual or constructive,
from one person to another.
"Holder" means the payee or indorser of a bill or note, who is
in possession of it, or the bearer thereof.
"Indorsement" means an indorsement completed by delivery.
"Instrument" means negotiable instrument.
"Issue" means the first delivery of the instrument, complete in
form, to a person who takes it as a holder.
"Person" includes a body of persons, whether incorporated or not.
"Value" means valuable consideration.
"Written" includes printed, and "writing" includes print.
Historical: Laws 1903, 380, Sec. 191.
Primary and Secondary Liability.
Sec. 3649. The person "primarily" liable on an instrument is the
person who by the terms of the instrument is absolutely required to
pay the same.
All other parties are "secondarily" liable.
Historical: Laws 1903, 380, Sec. 192.
Reasonable Time: How Determined.
Sec. 3650. In determining what is a "reasonable time" or an "un-
reasonable time" regard is to be had to the nature of the instrument,
the usage of trade or business (if any) with respect to such instru-
ments, and the facts of the particular case.
Historical: Laws 1903, 380, Sec. 193.
1362
NEGOTIABLE INSTRUMENTS.
Tit. 13
Last Day Falling on Holiday.
Sec. 3651. Where the day, or the last day, for doing an act
herein required or permitted to be done falls on Sunday or on a holi-
day, the act may be done on the next succeeding secular or business
day.
Historical: Laws 1903, 380, Sec. 194.
Application of Title.
Sec. 3652. The provisions of this title do not apply to negotiable
instruments made and delivered prior to the passage hereof.
Historical: Laws 1903, 380, Sec. 195.
This title, with the exception of Chap-
ter 12, first became effective on March
10, 1903.
Law Merchant to Govern Omitted Cases.
Sec. 3653. In any case not provided for in this title, the rules of
the law merchant shall govern.
Historical: Laws 1903, 380, Sec. 196.
CHAPTER 12.
INSTRUMENTS MADE NEGOTIABLE BY INDORSEMENT.
Section
3654. Indorsement of written
tract.
con-
Section
36 55. Liability of indorser.
Indorsement of Written Contract.
Sec. 3654. A non-negotiable written contract for the payment of
money or personal property may be transferred by indorsement, in
like manner with negotiable instruments. Such indorsement trans-
fers all the rights of the assignor under the instrument to the as-
signee, subject to all equities and defenses existing in favor of the
maker at the time of the indorsement.
Historical: Rev. St. 188 7, Sec. 3600.
Application: This and the follow-
ing- sections refer only to written evi-
dences of debt sold and transferred for
value, and not to those deposited as
collateral security. Murphy v. Bartsch
(1890) 2 Ida. 636- 23 Pac. 82.
Liability of Indorser.
Sec. 3655. Every assignor, his heirs, executors, or administra-
tors, of every such instrument in writing, is liable to the action of
the assignee thereof, his executors, or administrators, if such assignee
has used diligence, by the institution and prosecution of a suit against
the maker of such instrument, or against his heirs, executors, or ad-
ministrators, for the recovery of the money or property due thereon,
or damages in lieu thereof; but if the institution of such suit would
have been unavailing, or the maker had absconded or left, or was
absent from the State when such assigned instrument became due, or
absconds within twenty days thereafter, such assignee, his heirs, ex-
ecutors, or administrators, may recover against the assignor, or his
heirs, executors, or administrators, as if due diligence by suit had
been used. By "due diligence" shall be understood the institution of
suit within sixty days after the maturity of the obligation.
Historical: Rev. St. 1887, Sec. 3601.
Cited: Murphy v. Bartsch (1890) 2
Ida. 636; 23 Pac. 82.
Chapter
1. General provisions.
2. Public nuisances.
TITLE 14
NUISANCES
Chapter
3. Private nuisances.
CHAPTER 1.
GENERAL PROVISIONS.
Section
3656. Nuisance defined.
3657. Public nuisance.
3658. Private nuisance.
3659. When not a nuisance.
Section
3660. Liability of successive owners
for continuing nuisance.
3661. Abatement does not preclude
action.
Nuisance Defined
Sec. 3656. Anything which is injurious to health, or is indecent
or offensive to the senses, or an obstruction to the free use of prop-
erty, so as to interfere with the comfortable enjoyment of life or
property, or unlawfully obstructs the free passage or use, in the cus-
tomary manner, of any navigable lake, or river, stream, canal or
basin, or any public park, square, street, or highway, is a nuisance.
Historical: Rev. St. 1887, Sec. 3620.
California Legislation: See Civ. Code
1872, Sec. 3439; "bay" inserted after
"river", line 5; Deering's Code, ib.;
Kerr's Code, ib.
Cross Reference: Similar provision
in criminal law: Sec. 6910.
What Constitutes a Nuisance: When
one constructs a ditch across a public
street in such way as to render the
street unsafe or inconvenient for
travel, and maintains the same with-
out a bridge, he is guilty of maintain-
ing a nuisance. City of Lewiston v.
Booth (1893) 3 Ida. 692; 34 Pac. 809.
The herding of a large band of
sheep near the homes of settlers,
thereby creating an offensive smell, is
a nuisance. Sweet v. Ballentyne (1902)
8 Ida. 431; 69 Pac. 995.
Public Nuisance.
Sec. 3657. A public nuisance is one which affects at the same
time an entire community or neighborhood, or any considerable num-
ber of persons, although the extent of the annoyance or damage in-
flicted upon individuals may be unequal.
Historical: Rev. St. 1887, Sec. 3621.
California Legislation: Similar: Civ.
Code 1872, Sec. 3480; same as amend-
ed: Deering's Code, ib.; Kerr's Code,
ib.
Cross Reference: Booms or weirs
so constructed as to prevent passage
of logs constitute a public nuisance.
Sec. 873. Maintenance of a public
nuisance a misdemeanor: Sec. 6912.
Private Nuisance.
Sec. 3658. Every nuisance not included in the definition of the
last section is private.
Historical: Rev. St. 1887, Sec. 3622.
California Legislation: Same: Civ.
Code 1872, Sec. 3481; Deering's Code,
ib.; Kerr's Code, ib.
1364
NUISANCES
Tit. 14
When Not a Nuisance.
Sec. 3659. Nothing which is done or maintained under the ex-
press authority of a statute can be deemed a nuisance.
Historical: Rev. St. 1887, Sec. 3623.
California Legislation : Same: Civ.
Code 1872, Sec. 3482; Deering's Code,
ib.; Kerr's Code, ib.
Liability of Successive Owners for Continuing Nuisance.
Sec. 3660. Every successive owner of property who neglects to
abate a continuing nuisance upon, or in the use of, such property,
created by a former owner, is liable therefor in the same manner as
the one who first created it.
Historical: Rev. St. 1887, Sec. 3624.
California Legislation : Same: Civ.
Code 1872, Sec. 3483; Deering's Code,
ib.; Kerr's Code, ib.
Abatement Does Not Preclude Action.
Sec. 3661. The abatement of a nuisance does not prejudice the
right of any person to recover damages for its past existence.
Historical: Rev. St. 1887, Sec. 3625.
California Legislation: Same: Civ.
Code 1872, Sec. 3484; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 2.
PUBLIC NUISANCES.
Section
3662. Not legalized by prescription.
3663. Remedies.
36 64. Indictment or information.
36 65. Action by private person.
Section
36 66. Abatement by public body or
officer.
3 667. Abatement by private person.
Not Legalized by Prescription.
Sec. 3662. No lapse of time can legalize a public
amounting to an actual obstruction of public right.
nuisance,
Historical: Rev. St. 1887, Sec. 3630.
California Legislation : Same: Civ.
Code 1872, Sec. 3490; Deering's Code,
ib.; Kerr's Code, ib.
Prescriptive Right Not Acquired:
No lapse of time can give a prescrip-
tive right to maintain a nuisance. City
of Lewiston v. Booth (1893) 3 Ida.
692; 34 Pac. 809.
Remedies.
Sec. 3663. The remedies against a public nuisance are :
1. Indictment or information;
2. A civil action; or,
3. Abatement.
Historical: Rev. St. 1887, Sec. 3631.
"Or information inserted on the au-
thority of Laws 1889, 125, Sec. 4 (Code
Sec. 7658).
California Legislation: Same: Civ.
Code 1872, Sec. 3491; Deering's Code,
ib.; Kerr's Code, ib.
Application: This section makes no
distinction as to the remedy to abate
nuisances which are a crime per se
and those which are not such a crime.
Redway v. Moore (1892) 3 Ida. 312;
29 Pac. 104.
Indictment or Information.
Sec. 3664. The remedy by indictment or information is regu-
lated by the Penal Code.
Ch. 3.
PRIVATE NUISANCES
1365
Historical: Rev. St. 1887, Sec. 36 32.
"Or information" inserted on the au-
thority given in the note to the pre-
ceding- section.
California Legislation: Same: Civ.
Code 1872, Sec. 3492; Deering's Code,
ib.; Kerr's Code, ib.
Action by Private Person.
Sec. 3665. A private person may maintain an action for a public
nuisance if it is specially injurious to himself, but not otherwise.
Historical: Rev. St. 1887, Sec. 3633.
California Legislation : Same: Civ.
Code 1872, Sec. 3493; Deering's Code,
ib.; Kerr's Code, ib.
Private Actions: A private person
may sue to abate or restrain the con-
tinuance of a public nuisance, pro-
vided he alleges and shows that such
nuisance is especially injurious to
himself. Thus a person whose prop-
erty is rendered undesirable as a res-
idence and thereby depreciated in
value because of the maintenance of a
house of prostitution in the neighbor-
hood, may sue to enjoin the contin-
ued maintenance of the same as a nui-
sance. Redway v. Moore (1892) 3 Ida.
312; 29 Pac. 104. A private person
who is especially injured by the main-
tenance of obstruction in a navigable
river may sue to abate the same.
Small v .Harrington (1904) 10 Ida.
499; 79 Pac. 461. But a reasonable
obstruction in a navigable stream,
which merely impairs navigation but
does not destroy it, cannot be enjoined
at the suit of a private person. Ib.
Same — Pleading: A private person
who sues to abate a public nuisance,
must allege by positive averment in his
complaint sufficient facts to show spe-
cial injury to himself. Redway v.
Moore (1892) 3 Ida. 312; 29 Pac. 104.
Res Adjudicata: The trial and ac-
quittal of a party charged in criminal
proceedings with the construction of
a nuisance in a navigable stream, is
not a bar to a civil action to enjoin the
nuisance. Small v. Harrington (1904)
10 Ida. 499; 79 Pac. 461.
Abatement by Public Body or Officer.
Sec. 3666. A public nuisance may be abated by any public body
or officer authorized thereto by law.
Historical: Rev. St. 1887, Sec. 3634.
California Legislation: Same: Civ.
Code 1872, Sec. 3494; Deering's Code,
ib.; Kerr's Code, ib.
Abatement by Private Person.
Sec. 3667. Any person may abate a public nuisance which is spe-
cially injurious to him, by removing, or, if necessary, destroying, the
thing which constitutes the same, without committing a breach of
the peace, or doing unnecessary injury.
Historical: Rev. St. 1887, Sec. 3635.
California Legislation: Same: Civ.
Code 1872, Sec. 3495; Deering's Code,
ib.; Kerr's Code, ib.
CHAPTER 3.
PRIVATE NUISANCES.
Section
3 668. Remedies for private nuisances.
3669. Abatement: When allowed.
Section
3670. Same: When notice is required.
Remedies for Private Nuisances.
Sec. 3668. The remedies against a private nuisance are:
1. A civil action; or,
2. Abatement.
Historical: Rev. St. 1887, Sec. 3640.
California L/egislation : Same: Civ.
Code 1872, Sec. 3501; Deering's Code,
ib.; Kerr's Code, ib.
Cross Reference: Actions for nui-
sance: Sec. 4529.
Abatement, When Allowed.
Sec. 3669. A person injured by a private nuisance may abate it
1366 NUISANCES Tit. 14
by removing, or, if necessary, destroying, the thing which constitutes
the nuisance, without committing a breach of the peace, or doing un-
necessary injury.
Historical: Rev. St. 1887, Sec. 3641. Code 1872, Sec. 3502; Deering's Code,
California Legislation : Same: Civ. ib.; Kerr's Code, ib.
Same : When Notice Is Required.
Sec. 3670. Where a private nuisance results from a mere omis-
sion of the wrongdoer, and cannot be abated without entering upon
his land, reasonable notice must be given to him before entering to
abate it.
Historical: Rev. St. 1887, Sec. 3642. i Code 1872, Sec. 3503; Deering's Code,
California Legislation: Same: Civ. I ib- Kerr's Code, ib.
INDEX TO POLITICAL AND CIVIL
CODES
INDEX TO POLITICAL AND CIVIL CODES
[This index is a condensation of so much of the General Index con-
tained in Volume 2 as pertains to the Political and Civil Codes. Because
of the bulk of this volume it has been found impossible to duplicate the
General Index, or even to completely duplicate such portions thereof as
apply to these Codes, as was originally intended. Therefore, this index
is topical rather than sectional, classifying the sections only under their
main topical heads, avoiding duplication, and "lumping" under a single
line, the subject matter of an entire chapter or article, wherever prac-
ticable. Under the longer and more involved headings, as "Elections,"
"Negotiable Instruments," "Roads," "Schools," etc., the full index is pre-
served. The use of the General Index in Volume 2, in preference to this
one, is recommended when both volumes are at hand.]
Section
ABSTRACTS AND ABSTRACTORS
admission in evidence 1412
appeal from probate judge ....1415
bond 1411, 1414
cancellation of certificate 1414
certificate of authority 1412
fee and register 1416
service on opposing counsel .... 1413
ACADEMY OF IDAHO
organization and government
545-557
ACCOUNTS
in relation to revenue, see Reve-
nue
against county to be presented to
commissioners 2135
of officers, examination by citi-
zens 343
for fees and moneys 342
inspection by State Examiner
172-188
preservation by State Auditor. . 110
settlement before State Auditor 102
certificate of settlement 103
statement by State Auditor with
defaulters 107
ACCRUED RIGHT
unaffected by codes
8
ACKNOWLEDGMENT
see also Proof of Instruments
by whom taken, by commission-
er? of deeds 244
— by clerk of supreme court .... 218
Section
ACKNOWLEDGMENT— Contd.
— by deputies 3127
— by notaries 236
in state 3123-3124
outside of state 3125
outside United States 3126
certificate authentication 3134
— authentication of justice's cer-
tificate . 3135
— correction of defective 3142
— form in general 3131
— in general 3130
— judgment of correction author-
izes record 3145
— of attorney in fact 3133
— of corporation 3132
instruments executed prior to
code 3146-3148
knowledge or evidence of iden-
tity 3128
necessary to authorize record.. 3153
of certificate of special partners 3339
of chattel mortgage 3408
of married woman, how taken . .3129
of mortgage of real property. .3405
of power of attorney by wife. .3109
prior conveyances not affected by
law 3146
ADOPTION OF CHILD
regulations and procedure. .2701-2709
ADULTERATION
of dairy food and oil products,
see Dairy, Food and Oil
1372
INDEX TO POLITICAL
Section
ADULTERY
as ground of divorce 2648
— disposition of community
property 2670
— legitimacy of children 2669
AGISTER'S LIEN
for pasturing live stock 3446
AGRICULTURAL FAIR COR-
PORATIONS
provisions governing 3037-3040
AGRICULTURE
experiment stations 29, 30
ALBION NORMAL SCHOOL
establishment and government. .
516-532
ALIENATION
does not defeat future interest. .3069
suspension of power 3067
ALIENS
discharge of alien employees ..1459
employment by counties, etc.,
\prohibited 1458
employment on public works pro-
hibited 1457
may own property 3058
not entitled to teacher's certifi-
cates 594
refusal to discharge penalty . . . 1460
right to acquire mining claim.. 2610
right to acquire land 2609
ALIMONY
allowance for support of children 2668
allowance from husband's prop-
erty withheld when 2667
allowance pending suit 2662
for fault of husband 2664
orders may be made at chambers 2673
property liable 2666
ALTERNATIVE INTERESTS
creation authorized 3063
ANIMALS
see Auctioneers
— Dogs
— E strays
— Hogs
— Livestock
— Marks and Brands
— Predatory Animals
— Sheep
— Slaughter of Cattle
— Stallions
— Trespassing Animals
ANNULMENT OF MARRIAGE
see Divorce
grounds and proceedings. .2640-2644
APPORTIONMENT
of taxes, see Revenue
of school moneys, see Schools
of legislature 25
APPRAISEMENT
of state lands, see State Lands
Section
APPRAISEMENT — Contd.
under townsite law, see Town-
sites
of taxable transfers, see Trans-
fer Tax
APPROPRIATION
of waler, see Water Rights and
Irrigation
for law libraries 839
for militia 715
necessary to authorize warrants. Ill
ARBITRATION
of labor disputes, see Labor Com-
mission
of damages for hog trespass. . .1281
of losses of mutual co-operative
insurance companies 2918
ARID LANDS
see Carey Act Lands
. . — Water Rights and Irrigation
ASSESSOR
duties in relation to license, see
Licenses
— in relation to poll taxes, see
Poll Taxes
— in relation to revenue, see
Revenue
Bond 1987
— to cities and school districts . . 1807
election, when held 348
fees for issuing tax deed 1763
— for licenses 1838
— for selling personalty 1780
office supplies 1810
salary 2118
to keep office at county seat .... 1981
to reside at county seat 1984
ATTORNEY GENERAL
bond 143
direction by governor 90
duties in general 142
election of, when held 349
expenses 274
— of attendance on labor com-
mission 1442
reports 142
salary 274
temporary inability, acting offi-
cer 332
to reside and keep office at Boise 252
ATTORNEYS IN FACT
see Power of Attorney .
acknowledgment by 3132
conveyance by 3110
power to be recorded before con-
veyance by 3154
ATTORNMENT
unnecessary on conveyance of
rents, reversions and remain-
ders 3118
AUCTIONEER
license, amount 1839
AND CIVIL CODES
1373
Section
AUCTIONEER — Contd.
penalty for violations 1262
recorder to keep register, when . . 1260
register open for inspection . . . 1260
to register sales of live stock
1258-1259
AUDITOR
see State Auditor
— County Auditor
BAILMENT
see Liens
— Pledge
BAKING POWDER
see Dairy, Food and Oil
BALLOT
see elections
BALLOT BOX
see Elections
BANK COMMISSIONER
see Banking Corporations
— Banks and Banking
accounting for funds 3007
appointment, qualifications, term
of office 189
clerical assistance 190
examination of banks and offi-
cers 3001-3002
fee for examination 3003
malicious liquidation of banks,
penalty 3005
not to disclose information 3008
oath and bond 191
record of official acts 3008
reports of banks 2999
reports to governor 3000
salary and expenses 192
seal 193
to file resolution of guaranty and
trust company accepting law. 2962
to issue certificates of authority. 2975
to require impairment of capital
to be made good 3004
to require liquidation of insol-
vent banks 3005
BANKING CORPORATIONS
see Banks and Banking
— Bank Commissioner
capital required 2970
— when to be paid 2973
certificate of authority 2975
delinquent stock, how sold ....2974
directors, number 2970
— qualifications and oath 2980
dividends and surplus 2981
filing of articles 2970
foreign bank, capital required. .2983
—definition 2982
penalties 2984
real estate, limitations on owner-
ship 2978
stock-book 2977
stockholders, liability 2979
Section
BANKING CORPORATIONS — Contd.
transfer of stock, purchase by
bank 2976
unauthorized transactions of bus-
iness prohibited 2£71-2972
BANK STOCK
see Banking Corporations
for taxation of, see Revenue
BANKS AND BANKING
see Bank Commissioner
— Banking Corporations
accounts of persons under disa-
bility 2986
application of law 2969
certified checks 2988
defined in county depository law 2017
defined in state depository law . . 130
definition of banks and bankers. 2968
deposit of county funds ..2013-2022
deposit of state funds 127-136
depositors are preferred credi-
tors 2990
disposition of unclaimed deposits
2997
embezzlement by banker 7068
examination by commissioner. .
3001-3002
existing investments validated. .2996
impairment of capital 3004
lien of banker 3449
limitation on unsecured loans ..2987
liquidation of insolvent banks. .3005
loans to officers and members. .2989
receiving deposits when insol-
vent, penalty 2985
reports to commissioner 2999
reserve required 2998
savings banks, accounts, how
kept 2995
— accounts of persons under dis-
ability 2994
— interest on deposits 2993
— investment of funds 2992
pass books 2991
BEES
deputy bee inspectors 1330
destruction of box hives 1338
destruction of diseased hives . . 1329
failure to destroy infected hives,
penalty 1334
horticultural inspec'cer is bee in-
spector 1329
inspection of premises 1333
inspectors to be notified of foul
broods 1332
inspector to destroy infected
hives 1335
inspector to disinfect person and
clothing 1339
notice of importation, inspection 1337
report of inspector 1340
sale of infected bees or appli-
ances, penalty 1336
1374
INDEX TO POLITICAL
Section
BEES — Contd.
treatment of diseased colonies. .1331
BENEVOLENT CORPORATIONS
*ee Religious, Social and Benev-
o7ent Corporations
BILL OF EXCHANGE
see Negotiable Instruments
BILLIARD TABLES
license for 1841
BILLS
see Statutes
delivery to secretary of state .... 79
disapproval after adjournment. . 67
return during adjournment. ... 66
BILLS AND NOTES
see Negotiable Instruments
BIRTHS
register of 1088-1090
BOARD OF EDUCATION
constitution and general duties. .
558-564
BOARD OF EXAMINERS
constitution, duties and meetings
144-148
BOARD OF LAND COMMISSION-
ERS
see Carey Act Land
— State Lands
constitution of board 1558
control of foreclosed and escheat-
ed lands 602
fees 1566
— under Carey act 1632
expenses, how audited and paid. 1568
meetings and records 1560
officers 1559
office 'O be provided 1558
papers and securities to be de-
posited with treasurer 1567
register, appointment, duties and
compensation 1562
— bond and reports 1563
— duties concerning Carey act
land 1614
— to hear contests 1562
to appoint commissioner and as-
sistants 1564
to contract with irrigation dis-
tricts for improvement of state
land included in district 2439
to decide land contests 1562
to determine claims to land 1585
to direct foreclosure of school
fund mortgages 1642
BOARDING HOUSES
see Inn Keepers
BOARDS, OFFICIAL
see specific heads, e. g. Board of
Land Commissioners, County
Commissioners , etc.
Section
BOISE BARRACKS
cession to United States 27
BONA FIDE PURCHASER
of negotiable instruments, see
Negotiable Instruments
of real property after unrecorded
transfer 3160
protection against prior convey-
ance 3114
— against vendor's and vendee's
liens 3443
title unaffected by fraud in con-
veyance 3172
BONDS
see Official Bonds
— Sureties
see also County Bonds
— Municipal Bonds
— School District Bonds
agreement for protection of
surety 2947
application for release of surety 2946
accompanying bid to lease state
highway 1070
actions on judicial bonds 313
denned in county depository law 2017
denned in state depository law.. 130
ROOMS
are nuisances, when 873
companies' franchises cease,
when 2831
companies may condemn land. .2830
companies not to take tolls be-
fore license granted 2830
individual owners subject to
same hw as corporations. . .2832
must permit passage of timber. . 872
BOUNDARIES
of counties, see County Bound-
aries and County Seats
of drainage districts, see Drain-
age Districts
of election precincts, see Election
Precincts
of irrigation Districts, see Irriga-
tion Districts
of school districts, see Schools
likewise see other specific, heads
co-terminus owners to main-
tain 3094
BOUNTIES
for destruction of wild animals. .
1935-1939
BOWLING ALLEY
license for 1841
BRANDS
see Marks and Brands
BRIDGES
see Toll Bridges and Ferries
aid in construction by cities. .. .2242
bridge taxes in cities, how ap-
plied 2242
AND CIVIL CODES
1375
Section
BRIDGES— Contd.
bridges over passageways for
stock 961
bridges over ditches across high-
ways 951
building over ditches 3310
construction by toll roads 991
construction and repair 936
contract for construction and
repair 938
driving faster than walk 956
fortification for traction engines 963
petition for construction 940
— hearing 941
'petition for repair 939
railroads may construct over
navigable streams 2798
report of road overseer 942
special tax for bridges 937
BUILDING AND LOAN CORPO-
RATIONS
see Land and Building Corpora-
tions
BUILDING CORPORATIONS
see Land and Building Corpora-
tions
BULLS
see Sires
for liens for service, see Liens
BUREAU OF IMMIGRATION
LABOR AND STATISTICS
establishment and duties. .1417-1425
BUTTER
see Dairy, Food and Oil
CAMP FIRES
notice to extinguish 1926
CANAL CORPORATIONS
see Water and Canal Corpora-
tions
CANDY
see Dairy, Food and Oil
CANVASS
of election returns, see Elections
CANVASSERS
of election returns, see Elections
CAPITOL BUILDING
care and management 86-89
CAREY ACT LANDS
acceptance of Carey act 1613
adverse report by state engineer 1620
application for appropriation
permit 1617
application to enter 1626
approval of proposal 1619
bond of contractor 1622
certified check to accompany
proposal 1616
contract with proposed con-
tractor 1621
disposition of proceeds of sale . . 1627
duties of register of land board. 1614
Section
CAREY ACT LANDS— Contd.
fees of land board 1632
final proof by settler 1628
forfeiture of contract ^..1623
issuance of patent 1629
land board to prescribe rules... 1631
lien of water contract, fore-
closure 1629
notice of opening for settlement. 1625
price of sale 1626
proposals to construct irrigation
works 1615
reclamation by settler 1628
report by state engineer 1618
reports of contractor 1631
report of land board 1633
rights of way for canals 1630
suits by land board 1634
sale of forfeited contract 1623
state not responsible for con-
tractor's default 1624
terms of contract 1622
CARRIER, COMMON
see Railroad Corporations
— Railroads
may hold and sell property for
charge 1546-1547
CATTLE
see Estrays
— Livestock
— Marks and Brands
— Slaughter of Cattle
— Tresspassing Animals
CHASTITY
want of avoids promise to marry. 2618
CHATTEL MORTGAGE
see Mortgages
affidavit and record 3408
attachment of mortgaged prop-
erty 3411
discharge on certificate 3400
filing and indexing 3409
foreclosure, modes of 3412
foreclosure by notice and sale,
affidavit 3413
— contest of 3418
— notice of sale 3415
—sale 3415
— sale, return of 3417
— service of affidavit and notice. 3414
— title of purchaser, bill of sale. 3416
marginal discharge 3399
mortgage on exempt property . . 3407
property subject to mortgage. . .3406
record of lumber mortgages. .. .1503
removal of property from county 3410
sale or removal of mortgaged
chattels, penalty 3419
time allowed to record mortgage. 3420
where mortgagee in possession,
filing unnecessary 3409
CHECK
see Negotiate Instruments
1376
INDEX TO POLITICAL
Section
CHECK — Contd.
certified checks enforcible against
bank ...2988
certifying check on insufficient
funds 2988
CHILD
see Adoption
— Custody of Child
— Illegitimacy
— Infants
— Legitimacy
— Parenf and Child
CHILD LABOR
regulations and restrictions. 1466-1473
CHINESE
cannot acquire title to land or
mining claims 2610
CHURCH CORPORATIONS
see also Religious, Social and
Benevolent Corporations
corporations sole to hold church
property 3018-3026
CIRCUS
license for 1841
CITIES
see Cities and Villages and ref~
erences thereunder
adoption of village government
2233-2235
cities of second class denned ..2170
division into wards 2171
enumeration of powers 2182
may issue street improvement
bonds , 2323
organization of village into
city 2175-2181
police power 2195
CITIES AND VILLAGES
see Cities
— City Council
— City Officers
— Mayor
— Municipal Bonds
— Ordinances
—Plats
— Policemen
— Police Court
— Police Judge
— Overseer of Streets
— Resolutions
— Sewers
— Sidewalks
— Villages
annexation of adjacent terri-
tory 2172
—effect of 2174
— ordinance to be filed 2173
constitute road districts 893
Corporate name .2273
service of process on 2272
changing names
election for change 2281-2283
Section
CITIES AND VILLAGES — Contd.
expenses of election 2285
order of change 2284
petition for change, notice of
election 2281
rights unaffected by change. .. .2286
consolidation
adjacent corporations may con-
solidate 2287
application of existing ordi-
nances 2295
consolidated city to assume
debts 2297
county commissioners to make
consolidation order 2299
disposition of records of smaller
municipality 2296
first election after consolidation. 2299
joint session of councils or
trustees 2288-2291
journal of proceedings 2294
ordinance of consolidation. 2292-2293
property vests in consolidated
city 2298
finances
accounts of money 2257
accounts of treasurer 2256
annual appropriation bill 2268
appropriations for official duties
prohibited 2279
appropriation to precede ex-
penditure 2271
assessor to collect taxes 1804
borrowing money for repairs . .2270
claims, how paid 2264
— how presented 2263
deposit of funds in bank 2261
disposition of fines and license
moneys 2204
estimate of expenses 2269
expenditures not to exceed ap-
propriation 2270
fiscal year 2267
installment improvement bonds
no part of limited indebted-
ness 2368
publication of financial state-
ment 2258-2259
record of outstanding bonds. .. .2277
special assessments, application
of proceeds 2272
taxes, how collected 2265
— payment into treasury 2266
warrants, how drawn 2262
warrant redemption fund 2268
municipal elections
certificates of election 2254
clerk to perform duties of
county auditor 404
for adoption of village govern-
ment 2233
general election law to govern.. 2255
judges and clerks, vacancies. .. .2247
AND CIVIL CODES
1377
Section
CITIES AND VILLAGES — Contd.
notice ...2246
on organization of village into
city 2177
qualifications of electors 2248
registrars, appointment 2249
— compensation 2252
—oath 2251
registration, notice of 2251
— books and oaths to be supplied 2250
time for holding 2245
powers
aid in construction of bridges. .2242
conveyance of real property . .2236
corporate powers in general. . . .2236
disposition of discontinued
streets 2243
drainage of stagnant water . . . .2241
enumeration of powers 2238
issuance of improvement bonds 2315
may act as drainage districts. .2479
may construct sewerage system. 2342
may establish hospital for in-
fectious diseases 1105
may establish libraries and levy
tax therefor 675
may issue funding bonds 2315
may license liquor dealers 1513
may require highway labor and
fix communtation fee 2240
may use county jail 2220
pre-existing powers confirmed. .2237
regulation of huckstering 2244
sale of streets and squares ....2243
suppression of prostitution ....2239
to regulate use of streets by
water companies 2840
CITY COUNCIL
constitution 2183
election and qualifications of
members 2184
journal of proceedings 2277
mayor to preside 2190
meetings 2185
passage of ordinance over veto. 2191
president to act as mayor, when 2196
special meetings, how called. .. .2193
to appoint library directors.... 677
to assess cost of street improve-
ments 2335-2340
to fix compensation of officers. .2187
to fix compensation of police
judge 2188
CITY OFFICERS
see Mayor
— Overseer of Streets
— Police Judge
— Policemen
accounts and reports 2194
appointment, record of votes . . . 2275
attorney, duties 2278
clerk, duties 2277
Section
CITY OFFICERS— Contd.
— to perform duties of county
auditor in municipal elections. 404
engineer, duties 2201
— to furnish grades for street
improvement 2327
enumeration, election and ap-
pointment 2186
neglect to collect bond tax,
penalty 2321
not to be interested in contracts 2279
qualifications 2189
salaries, how fixed 2187
— not to be changed during term 2280
treasurer, deposit of money. .. .2261
— duties in general 2256
— neglect to publish financial
statement 2260
— to keep account of bonds and
assessments payable in install-
ments 2366
— to keep bond record 2333
— to publish financial statement 2258
— to keep account of bond pro-
ceeds 2334
CLERK OF COUNTY COMMIS-
SIONERS
auditor is ex-officio clerk 1910
duties in general 1911
to certify to district court appli-
cations in which commission-
ers are interested 1957
to give notice of special meet-
ings 1916
to prepare check lists of allowed
claims 1943
to transmit papers on appeal ..1953
CLERK OF DISTRICT COURT
attendance on court 2050
bond 1987
deputies, appointment and com-
pensation 2119
— acts done through deputy .... 2050
duties in general 2049
election, when held 348
fees 2121
liability for neglect 2051
may issue execution for fees . .2131
may take acknowledgments 3124
not to practice law 1986
salary 2118
to report names of attorneys ad-
mitted to practice 840
CLERK OF SUPREME COURT
bond 219
deputies 221
fees 213
is ex-officio reporter 222
Lewiston deputy has charge of
LewisLon library 841
may administer oaths 216
may take acknowledgments 218, 3123
must not practice law nor be
surety for bail 217
1378
INDEX TO POLITICAL
Section
CLERK SUPREME COURT — Contd.
office and duties 212
responsibility for books and
papers 215
salary 220
statement of fees 220
to file papers 214
to report names of attorneys ad-
mitted to practice 840
to reside and keep office at Boise. 252
vacancy in office, how filled.... 321
CODES
see Statutes
continue existing law 5
liberally construed 4
name and parts 1
not retroactive 3
preserve tenure of office 6
repeal of existing law 17
when effective 2
COMMERCIAL PAPER
see Negotiable Instruments
COMMISSION" OF SUMMER
NORMAL SCHOOLS
constitution and duties 536-544
COMMISSIONER OF DEEDS
appointment and term of office. 243
effect of acts 245
fees • 247
fees for commission 249
may take acknowledgments. . . .3125
oath 246
powers 244
seal 244
COMMISSIONER OF IMMIGRA-
TION"
see Bureau of Immigration, La-
bor and Statistics
COMMISSIONERS, COUNTY
see County Commissioners
COMMON LAW
how far in force 18
rule of strict construction abro-
gated 4
COMMUNITY PROPERTY
control and disposition by hus-
band 2686
conveyance of residence, spouses
must join 3106
defined 2680
definition 3060
disposition on divorce ....2670-2672
liable for alimony 2666
COLLATERAL WARRANTIES
abolished 3122
COMPULSORY EDUCATION
see Schools
CONDITIONAL LIMITATIONS
defined 3075
CONDITIONS PRECEDENT
grant upon 3117
Section
CONDITIONS SUBSEQUENT
defeat of conveyance by failure
of condition 3116
CONSIDERATION
for negotiable instruments, see
Negotiable Instruments
minor must restore on disaffirm-
ing contract 2603
presumption of for written con-
tract 3314
want of, burden of proof 3315
CONSTABLES
appointment of special consta-
ble 2113-2114
bond 1987
duties in general 2105
election of, when held 352
execution and return of process 2106
is conservator of the peace . . . .2111
not to practice law 1986
power to appoint deputies 2112
fees and mileage
execution for fees 2131
for duties concerning estrays. .1299
for impounding and slaughtering
diseased animals 1215
for inspecting live stock on ship-
ment 1248, 1249
mileage, limitation on 2133
schedule of fees 2127
liabilities and penalties
for failure to return process ..2107
for neglect of estray duty 1301
for neglect to levy execution . . . .2108
for neglect to pay over money.. 2109
on bond 2110
CONTAGIOUS DISEASE
see Public Health
CONTESTS
see Election Contests
for contests over state lands, see
State Lands
of water appropriation permits,
etc., see State Engineer; Water
Rights and Irrigation
CONTINGENT INTEREST
see Conditional Limitations
— Contingent Remainder
for partition of, see Partition
when created 3062
CONTINGENT REMAINDER
determination of precedent estate
by 3075
limitation on prior remainder in
fee 3072
CONTRACT ROAD DISTRICTS
maintenance of roads by contract
889-894
CONTRACTORS
liens of, see Mechanics' Liens
AND CIVIL CODES
1379
CONTRACTS Section
of married women, see Husband
and Wife
of idiots, see Idiots
for contracts with infants, see
Infants
of insane persons, see Insane
Persons
for specific contracts, see specific
heads, e. g. Lien, Mortgage,
Pledge, etc.
certain contracts with officers
voidable 257
consideration, presumption of.. 3314
— want of, burden of proof . . . .3315
construction of conflicting pro-
visions 3320
contract not put in writing
through fraud 3317
distinction as to sealed abolished. 3319
enforcement by beneficiary ....3313
indorsement of 3654
— liability of indorsers 3655
may be oral 3316
objection to offer of perform-
ance 3323
restrictions on right to sue void 3321
who may contract 3312
with certain officers prohibited. .
. .. 255-261
written portions control printed 3320
CONVEYANCE
— see Acknowledgments
— Fraudulent Conveyances
— Proof of Instruments
— Recording Transfers
by tax sale, see Revenue
by attorney in fact 3110
by disseizee 3099
by married woman 3107-3108
conclusiveness against grantor. .3114
covenants implied from word
"grant" 3120
defeat by failure of condition
subsequent 3116
definition 3161
easements pass with 3111
encumbrance defined 3121
fee presumed to pass 3112
how made 3105
limitation on death without
heirs 3103
lineal and collateral warranties
abolished 3122
of homestead ; . 3178
--of residence, spouses must
join 3106
official deeds, how indexed 2064
of land bounded by highway . . .3119
of rents, reversions and remain-
ders 3118
subsequently acquired title ....3113
to two or more persons, pre-
sumption of co-tenancy 3104
Section
CONVEYANCE — Contd.
transfer in writing is 3101
unauthorized grant by tenant ..3115
upon condition precedent . . ^ . .3117
words of inheritance or succes-
sion not required 3102
CORONER
bond 1987
disposal of property found on
corpse 2098
justices of the peace to act
when 2100
mileage, limitation 2133
powers when acting as sheriff . .2102
salary 2118
statement on allowance of ac-
count 2099
to act as sheriff, when 2101
to bury unclaimed body 2097
to execute process, when 2039
to hold inquests 2096
CORPORATIONS
for matters pertaining to partic-
ular corporations, see specific
heads, e. g. Banking Corpora-
tions; Railroad Corporations,
etc.
articles of incorporation
affidavit of stock supscribed. . . .2718
certified copy as evidence 2720
constitute formative instrument 2713
consents 2714
filing of articles 2719
—fees for filing 99, 100
— where real property is located 2723
of corporation sole 3020
of railroad, wagon, road, tele-
phone and telegraph compa-
nies 2715
of religious and benevolent cor-
porations 3012
of institutions of learning 3028
record by secretary of state. . . .2721
signature and acknowledgment 2716
assessments
action to recover stock sold for
irregularity 2766
assessment while prior one is un-
paid 2752
collection by action 2768
defective proceedings, effect . . . .2765
delinquent notice, publication...
2756-2758
delinquent stock may be sold. .2759
directors may levy assessments 2750
limitations on amount 2751
notice of assessment 2754
order levying assessment 2753
proof of publication 2767
publication of notice 2755
sale for delinquency 2760
— corporation may purchase ...2762
1380
INDEX TO POLITICAL
Section
CORPORATIONS— Contd.
— effect of purchase by corpora-
tion 2763
— how proved 2767
— postponement 2764
— who deemed purchaser 2761
by-laws
adoption 2724
amendment 2727
book of by-laws 2727
contents _ . . . .2726
provision for election of direc-
tors 2725
provision governing stock trans-
fers 2747
capital stock
certificates 2746
increase and diminution 2773
— certificate to be recorded ....2721
not to be paid to stockholders. .2732
stock and transfer book 2776
transfer of shares 2747
— by married woman 2748
— by non-resident 2749
directors
are trustees on dissolution ....2787
constitution of board 2728
election, cumulative voting ....2730
election of railroad directors. .2793
first election 2729
liability for false reports 2739
may levy assessment on stock. . .2750
organization and officers of
board 2731
prohibitions respecting dividends
and capital 2732
qualifications and quorum 2728
removal from office 2733
when and how elected 2725
dividends
married woman may receive. . . .2748
must be made from surplus
profits 2732
general provisions
acknowledgments by 3132
amendment or repeal of law . .2777
annual license fee 2785
— penalty for non-payment . . . .2786
annual statement 2784
application of law 2791
certificate of incorporation . . . .2719
change of place of business . . . .2744
classification as public and pri-
vate 2710
collateral attack of organization 2772
corporations ante-dating revised
statutes unaffected 2790
corporate seal, how affixed 3318
enumeration of powers 2769
existing corporations, how con-
tinued 2789
Section
CORPORATIONS— Contd.
extended term of existence ..2788
how formed 2711
limitation on acquisition of real
property 2774
may condemn lands 2774
misnomer does not invalidate in-
strument 2771
not to issue paper money 2770
purposes for which authorized 2712
records and journal 2775
sales of franchise on execution
2778-2783
term of existence 2719
use of word limited 2745
when to commence business . . . .2772
meetings and elections
adjourned elections 2737
call by justice of the peace . . . .2734
call, how made 2743
consent meetings 2740
— business which may be trans-
acted 2741
for removal of directors ,2733
judicial review of elections . . . 2738
place of holding meetings 2742
proxies and adjournments 2735
representation of stock of min-
ors, insane persons, and es-
tates 2736
review by district court 2735
stockholders and members
liability 2745
who are 2722
CO-TENANTS
interest, how created 3059
presumption of co-tenancy .... 3104
COTERMINOUS OWNERS
right to lateral and subjacent
support 3092
to maintain monuments and
fences 3094
COUNTIES
see County Bonds
— County Boundaries and County
Seats
— County Charges
— County Commissioners .
— County Officers, and the spe-
cific county officers
claims
action on claim 1954
appeal from order of allowance
1950-1953
claims of commissioner 1958
officers not to present claims.. 1946
partial allowance and reconsid-
eration 1949
prohibition on allowance 1945
tax payers may oppose allow-
ance 1946
time for filing claim 1948
AND CIVIL CODES
1381
Section
COUNTIES— Contd.
creation, organization, etc.
are bodies corporate 1898
boundaries and county seats .... 23
commissioners districts 1907
corporate name and designa-
tion 1900
finances.
accounts of auditor 2055
annual financial statement 1959, 2058
check lists of allowed claims. . . .1943
custody of county money 2008
deposit of county funds. . .2013-2022
joint statement of auditor and
treasurer 2057
money to be accompanied by
auditor's certificate 1992
not to lend credit 1902
quarterly report of treasurer. . .2002
settlements of auditor and treas-
urer 2001
settlement of debts to county. . .2054
transfer of funds 1944
verification of claims 1947
warrants, how drawn 2052-2056
— and presented 1950
— calling for payment 1996-1999
— interest on unpaid 1995
general powers
by whom exercised 1899
commissioners not to be interest-
ed in contracts, etc 1956
general powers enumerated 1901
judgments against, how paid... 1903
may establish hospital for in-
fectious diseases 1105
— purchase toll bridges 1036
— purchase toll roads 1001
COUNTY ASSESSOR
see Assessor
COUNTY ATTORNEY
see Prosecuting Attorney
COUNTY AUDITOR
bond, filing and recording 2060
deputies, appointment and com-
pensation 2119
election of, when held 348
is clerk of county commissioners. 1910
salary 2118
accounts, reports and settle-
ments
account of migratory stock fund. 1661
account with treasurer 2055
— to make entries in account. . . .1803
annual financial statement 2058
joint statement with treasurer. .2057
reports to state auditor. . .1799-1800
settlements of debts to county.. 2054
— with road overseer 914
duties relating to warrants
to countersign independent school
Section
COUNTY AUDITOR— Contd.
district warrants 608
to draw county warrants 2052
— school warrants ,. . 608
— warrant for expenses of teach-
ers' institutes 641
— warrant for school repairs or-
dered by county superintend-
ent 588
— warrant on special road fund. 905
to keep warrant book 1912
to prepare warrant blanks 2056
to register warrants 2056
fees
for entry of tax redemption. 1771-1772
for filing statement of descrip-
tion and pedigree of sires 3457
for licenses 1838
schedule of fees 2124
COUNTY BOARD OF EQUALI-
ZATION
see Revenue
COUNTY BOARD OF HEALTH
see Public Health
COUNTY BONDS
application of proceeds 1967
assessment of bond taxes in seg-
regated territory 1964
commissioners may issue 1960
denomination, interest and time
■ for redemption 1960
election, conduct 1969
— distribution of ballots 1971
—form of ballot 1971
— notice 1968
— officers and canvass 1970
— qualifications of voters 1968
— voting at general election 1972
form of bonds and interest cou-
pons 1965
improvement bonds may be is-
sued 1962
issuance for erection of build-
ing 1934
neglect of officers, penalty 1967
prerequisites to issuance of
funding bands 1961
sale and redemption 1966
tax levy for interest and sinking
fund 1963
COUNTY BOUNDARIES AND
COUNTY SEATS
annexation of territory 477-479
defined and fixed 23
establishment of boundaries. .. .2091
removal of county seats 466-479
COUNTY BUILDINGS
proceedings for erection. . . .1931-1934
COUNTY CHARGES
accounts to be presented to com-
missioners 2135
advertisement of inspection lines. 1189
1382
INDEX TO POLITICAL
Section
COUNTY CHARGES— Contd.
burial of unclaimed bodies 2097
enumeration of 2136
expense of assessor's attendance
on state board of equalization. 1706
— of attendance of state chemist
on criminal trial 1152
— of county board of health 1113
— of county stock inspector. .. .1244
— of impounding and slaughter-
ing diseased animals 1215
fees due clerk and recorder in
riling lis pendens in action on
official bond 315
COUNTY COMMISSIONERS
bond 1987
books open to inspection 1916
books to be kept 1912
chairman, election 1908
constitution of board 1904
constitute county board of health
1905, 1109
district from which elected 1905
election of, when held 348
enumeration of powers 1917
examination of witnesses 1920
financial statement 1959
may administer oaths 1909
may allow compensation to wit-
nesses 1921
may subpoena witnesses 1919
neglect of duty, penalty 1930
not to be interested in contracts,
etc 1956
oath of office, where and when
taken 271
prosecuting attorney to advise.. 2085
quorum and temporary chair-
man 1909
records, how signed 1910
residence required of appointee. 323
salaries and expenses 2117
term of office 1906
transfer to district court of mat-
ters in which commissioners
are interested 1957
vacancy in board, how filled.... 322
allowance of claims
bills of water masters 3281
claims against contract road dis-
tricts 891
coroner's account, statement. .. .2099
claims against special road fund. 905
claims by commissioners 1958
claims for water commissioner's
compensation 3271
county charges 2135
payment of fee of physician on
insanity examination 782
prohibitions on allowance 1945
salaries of officers 2115
to allow judgments against
county 1903
Section
COUNTY COM'RS— Contd.
to certify check list of allowed
claims 1943
appeals
disposition of appeal, costs 1953
from order establishing good road
districts 1051
from order revoking toll bridge,
etc., license 1046
notice, bond and hearing 1951
time for appeal 1950
transmission of papers 1952
who may appeal 1950
general duties
control over wires crossing rail-
road tracks 1927-1929
erection of county buildings. 1931-1934
establishment of herd districts. .
1302-1309
extermination of pests .... 1940-1942
may contribute to agricultural
fairs 3040
— expend money for armory rent 708
— offer bounty on wild animals. .1935
— on cougars, lions and panthers. 1939
— offer rewards for detection of
certain offenses 1244
— repair chimneys, etc., at own-
ers' expense 1924
— review discharge of pauper. . .2145
— transfer balances from scalp
to current expense fund 1938
provision for relief of poor 2142
to assist state examiner 178
to collect cost of execution of plat
by recorder 2311
to contract for care of poor.... 2137
to district county 1907
to employ physician for poor. . . .2138
to establish drainage districts . .
2446-2448
to fix rate of interest on county
deposits 2013
to grant liquor licenses 1508
to license employment bureaus. .1443
to procure plats of United States
survey 2092
to publish notice concerning
camp fires 1926
to revoke liquor licenses, when . . 1512
to sue for aid furnished to poor
parents or children 2695
transfer of funds 1944
meetings
adjourned 1914
for road matters 882-a
notice to be posted 1916
regular 1913
special 1915
to be public 1916
supervision of county officers
leave of absence to officers 1922
AND CIVIL CODES
1383
Section
COUNTY COM'RS— Contd.
may inspect treasurer's office. . .
2011, 2012
may suspend treasurer pending
action for misconduct 2009
to authorize appointment and fix
compensation of deputy offi-
cers 2119
to authorize surveyors to estab-
lish county lines 2091
to fix salaries of county officers. .2118
to provide office for county su-
perintendent 587
— for probate judge 1990
— reception book for recorder. . .2072
— supplies for assessor 1810
— supplies for county officers. . . .1931
— supplies for county surveyor. .2094
to sue treasurer neglecting to
report 2003
COUNTY OFFICERS
for bonds of, see Official Bonds
specific officers, see specific heads,
e. g. County Auditor, etc.
for vacancies, see Vacancies
bonds 1987
— commissioners to fix penalties. 1988
— liable for penalties 1982
enumeration 1973
leave of absence, how granted. . .1922
may administer oaths 1983
must not present claims against
county 1946
oath of office, when and where
taken 271
offices at county seat 1981
refusal to perform duty, liability. 2128
residence at county seat 1984
restrictions on absence from
state 1985
deputies and assistants
appointment and compensation. .2119
— during absence of officer 1976
— to be in writing 1979
assistance during terms of court.2119
designation of senior 1978
failure to appoint deputy during
absence vacates office 1977
may exercise powers of princi-
pal 1980
who may appoint 1975
fees, expenses and compensation
expenses may be retained from
fees 2115
fees, schedule of 2121-2127
— neglect to account is embezzle-
ment 2116
— not to be charged, when.2129-2129a
— receipt for 2134
— receiving illegal, penalty 2134
— to be prepaid 2128
— to publish table 2130
salaries 2115-2120
Section
COUNTY PHYSICIAN
see Public Health
appointment 1109
compensation 1098
employment for county poor .T. .2138
member of county board of
health 1095, 1109
neglect of duty a misdemeanor. .1098
records and reports to state
board of health 1098
to attend quarantined patients. .1096
COUNTY POOR
care and maintenance 2137-2146
COUNTY RECORDER
see Recorder
COUNTY SEATS
see County Boundaries and
County Seats
COUNTY SUPERINTENDENT
see Schools
annual report 597
apportionment of funds for new
school districts 619
approval of division of school dis-
trict 615
bond .....1987
duties with respect to district
boundaries 597
—when held 348
expenses of conducting examina-
tions 599
issuing and revoking certificate
of normal and college gradu-
ate 593
may order repair of school prop-
erty 588
may revoke county certificate. . . 595
monthly meetings with teachers. 585
not to countersign warrants for
teachers failing to make cer-
tain reports 632
oath, bond and qualifications. . . . 585
office and supplies 587
office days 587
penalty for failure to report. . . . 600
record of county certificates .... 596
records of office 589
residence and term of office 584
salary 2118
seal 587
supervision by state superintend-
ent 567
to act on application of pupil for
change of school 615
to appoint trustees of new dis-
tricts and fill vacancies 598
to apportion moneys for pupils
attending high schools in other
districts 625
— school money 605
to collect fines withheld by offi-
cers 607
1384
INDEX TO POLITICAL
Section
COUNTY SUPERINTENDENT —
Contd.
to conduct teachers' examina-
tion 590
to countersign orders for war-
rants 607, 610
to distribute lists of text books. . 577
to fix Arbor day 670
to give notice of proposed change
of district boundaries 616
to hold teachers' institutes 638
to issue county teachers' cer-
tificates 591, 592
to keep account of text books or-
dered 580
— with school districts 607
to keep office at county seat 1981
to meet with state superintend-
ent 570
to obey instructions of state
superintendent 589
to order text books 579
to present account of expenses
for institutes 641
to procure conductors for insti-
tutes 641
to reside at county seat 1984
to sell property of lapsed dis-
trict 620
to sue assessor for omitting
names from poll tax book.... 1858
visitation and oversight of
schools 586
COUNTY SURVEYOR
bond 1987
duties in relation to surveys...
2087-2095
salary 2118
schedule of fees 2125
COUNTY TREASURER
bond 1987
books and papers open to inspec-
tion 2011, 2012
duties in general 1991
election, when held 348
fee for issuing transfer tax re-
ceipts 1895
office at county seat 1981
salary 2118
sheriff to take possession of office
in case of vacancy 330
suspension or removal for de-
fault 188
suspension pending action for
misconduct 2009
accounts, reports and settlements
accounts with school districts . . . 606
joint statement with auditor. . . .2057
license report to state auditor . . . 1833
monthly settlements and state-
ments 2001
neglect to report, penalty 2003
quarterly report 2002
Section
COUNTY TREASURER— Contd.
quarterly settlements with state
officers 1796
settlement with state officers .... 1795
state examiner may require
statement 174
statement of license transac-
tions 1797
to report state of school funds . . 605
custody of public money
custody of county money 2008
delivery of money and papers
after death 2010
deposit of county funds 2013-2022
illegal use of county funds,
penalty 2019
neglect under depository law,
penalty 2020
receipt of money 1992
to keep funds of good road dis-
tricts 1054, 1055
to receipt for money 1993
— for money paid by road over-
seer 914
duties relating to warrants
liability for failing to call in
warrants 1999
redemption of warrants 1994
to call warrants for payment. .
..1997, 1998
to compare warrants with check
list of claims 1943
to issue deficiency school war-
rants 611
to note interest paid on warrant 2000
to pay drainage district war-
rants 2477
to pay school warrants or indorse
same as not paid 612
to pay warrants in proper order 1944
to provide warrant bulletin .... 1996
to stamp unpaid warrants ....1995
COVENANTS
implied from word "grant". .. .3120
CROPS
for liens on, see Mechanics' Liens
mortgage on 2406
CURTESY
abolished 2687
CUSTODY OF CHILD
after annulment of marriage. .2643
award after separation of par-
ents 2698
in and after action for divorce 2663
on divorce for insanity 4627
CUSTOM
mining admissible in evidence. .4647
DAIRY, FOOD AND OIL
food defined 1142
samples to be furnished for anal-
ysis 1148
AND CIVIL CODES
1385
Section
DAIRY, FOOD AND OIL— Contd.
adulteration and misbranding
adulteration defined 1143
certificate of chemist as evidence 1151
confiscation of products 1149
guaranty against adulteration
and misbranding 1144
misbranding defined 1144
sale of adulterated or misbrand-
ed product prohibited 1141
seizure of products by commis-
sioner 1150
subpoena for state chemist ....1152
board of commissioners
constitution of board 1114
expenses, how audited and paid
1115, 1117
may appoint state chemist 1122
may establish food standards ..1145
may issue bulletins 1123
report to governor 1115
secretary, salary 1120
commissioner
assistance from attorney general
and prosecuting attorneys . . . .1121
duties in general 1119
horticultural inspector as com-
missioner 1118
is inspector of weights and meas-
ures 1541
may seize adulterated and mis-
branded product 1150
railroad employees to aid com-
missioner 1147
reports by creameries, etc 1146
salary 1120
to issue stencil brand for cheese
and butter 1133
crimes
adulteration of vinegar 1139
neglect of railroad employes to
aid commissioner 1147
neglect or false statement in re-
port of creameries 1146
violations of law in general .... 1149
dairy products
butter to be stamped 1133
oleomargerine, sale and use . . . .1129
percentage of fat for butter . . . 1131
sale of imitation butter prohib-
ited 1129
sale of impure cheese prohibited. 1128
sales of impure milk and cream. 1124
sales of process butter 1130
skimmed cheese to be marked . . .1127
skimmed milk to be marked . . . .1126
stencil brand for cheese and but-
ter 1133
test of cream cheese 1127
test of impure milk 1125
weight of butter 1132
^ Section
DAIRY, FOOD AND OIL — Contd.
vinegar, oil and other products
baking powder, ingredients to«4>e
indicated 1134
drugged liquor prohibited ....1135
oil defined 1140
— fire test required 1140
— regulation governing sales... 1140
vinegar barrels to be marked . . . 1138
vinegar not to be adulterated. . .1139
vinegar standards 1136, 1137
DAMS
drawing water from by order of
court 155
examination of plans by state en-
gineer 154a
inspection by state engineer .... 155
must permit passage of timber. 872
repair by order of court 155
DAYS OF GRACE
not allowed 3542
DAY'S WORK
see Labor
DEAD ANIMALS
see Carcasses
DEAD BODIES
burial of unclaimed bodies 2097
disposal of money and property
found on body 2006-2007, 2098
DEAF, DUMB AND BLIND
education of 800-804
DEATH BENEFITS
see Fraternal Insurance Societies
— Insurance
association for payment au-
thorized 3017
DEBTOR
may demand receipt 3322
DEED
see Acknowledgment
— Conveyance
— Recording Transfers
DEFEASANCE
may be shown by parol 3392
to be recorded 3404
DENTISTRY
examination, license and registra-
tion of dentists 1357-1365
DEPOSIT
for deposit in banks, see Banks
and Banking
of state and county funds, see
Depository
DEPOSITORY
of county funds 2013-2022
of state funds 127-136
DEPUTY
see County Officers
— specific county and state offi-
cers
1386
INDEX TO POLITICAL
Section
DEPUTY — Contd.
mode of appointment 267
oath of office 273
officers may require bonds from
deputies 316
of recorder for mining district. .3215
DIRECTORS
of corporations, see Corporations
of drainage districts, see Drain-
age Districts
of insane asylums, see Insane
Asylums
of irrigation districts, see Irriga-
tion Districts
of school districts, see Schools
DIVORCE
see Annulment of Marriage
actions
chambers orders . . . . 2673
custody of children, order for.. 2663
decree, effect 2646
domicile of parties 2660
jurisdiction of actions 2673
limitation of action 2658
not granted by default or con-
fession 2661
residence required of plaintiff. .2659
alimony and disposition of
property
alimony for fault of husband. .2664
— allowance from husband's
property withheld, when ....2667
— pending suit and suit money. .2662
— property liable 2666
— security for, receiver 2665
allowance for support of chil-
dren 2668
disposition of community prop-
erty and homestead 2670-2671
— appeal from order 2672
grounds and defenses
adultery 2648
— legitimacy of issue 2669
collusion 2655
condonation 2657
continuation of causes 2653
denied when 2654
desertion 2650
extreme cruelty 2649
grounds in general 2647
habitual intemperance 2652
recrimination 2656
wilful neglect 2651
DOGS
worrying sheep, liability of
owner 1220
DOWER
abolished 2687
DRAINAGE
of stagnant water by cities and
villages 2241
Section
DRAINAGE DISTRICTS
assessment of damages and
benefits
appeals 2457
assessment of benefits 2460
— against state lands 2481
assessment to pay judgment of
dismissal . .' 2461
connection with servient system,
proceedings 2467
dismissal of proceedings 2458
employment of surveyors and
legal assistance 2454
expense of maintenance and re-
pairs, how assessed 2468
extension of system, proceedings 2466
jurors, how selected and sum-
moned 2456
payment of damages 2459
petition 2453
re-assessment on change of route 2464
rules of practice and procedure. .2456
summons, issuance and service. .2455
trial of issues by jury 2462
board of commissioners
bond 2448
compensation, allowance by dis-
trict court 2451
election of board 2449
general powers 2444
may employ surveyors and legal
assistance 2454
may issue warrants 2450
officers of board 2450
to have charge of construction
work 2452
to levy assessment to pay judg-
ment of dismissal and proceed-
ings 2461
vacancies, how filled 2452
bonds
assessment to liquidate bonds... 2473
construction and funding bonds
may be issued 2470
exchange of bonds for warrants 2472
form, denomination, interest and
maturity 2471
payment of coupons, interest on
unpaid coupons 2475
redemption by county treasurer. 2474
registration 2476
warrants redeemed from pro-
ceeds of funding bonds 2470
construction work
apportionment of cost of main-
tenance and repairs 2467
change of route, assessment of
damages 2464
commissioners to have charge. .2463
connection by private drains. . . .2466
connection with lower system. .2467
AND CIVIL CODES
1387
Section
DRAINAGE DISTRICTS— Contd.
contract and bond 2463
payment for work in install-
ments 2465
water course as part of system. .2469
miscellaneous provisions
cities and towns may act as dis-
tricts 2479
district court may enforce law. .2483
fees for service of process .... 2482
general powers of district 2478
public lands subject to law . . . .2480
warrants, form and issuance . . .2450
— payment, interest and redemp-
tion 2477
organization
election for establishment. .2447-2448
general powers on organization . 2444
notice and hearing 2446
order of establishment 2448
order on petition 2446
petition and bond 2445
petition for extension of bounda-
ries 2446
presentation of petition to county
commissioners 2446
territory may be organized into
districts 2444
DUMP
enclosure against stock ..1276, 1277
EARNINGS
of minors, claim by parent . . . .2697
of minors living with mother. .2683
of wife living separate 2683
EASEMENTS
for the development of mines, see
Mines and Mining
acquired in highways 878
pass with conveyance 3111
EDUCATION
see Academy of Idaho
— Board of Education
— County Superintendent
— Deaf, Dumb and Blind
— Normal Schools
— Schools
— State Superintendent of Public
Instruction
— Text Books
— University of Idaho
ELECTION CONTESTS
contest of petition for removal of
county seat, see County Bound-
aries and County Seats
state executive and legisla-
tive officers
jurisdiction and proceedings. . .39-57
ELECTION DAY
is holiday 10
what day is 347
Section
ELECTION PRECINCTS
changing boundaries, etc 365
establishment 3'64
maximum number of voters . .^». 366
ELECTIONS
see Election Contests
— Election Precincts
— Electors
— Nominations
— Presidential Electors
— Primary Elections
— Registrars
— Registration
for particular elections see spe-
cific heads, e. g. County Bonds;
Irrigation Districts; Road Ov-
erseers, etc.
officers to be elected 348-352
time for holding 347
ballots and supplies
ballot boxes to be provided .... 403
ballots to be provided by county
auditor 404
copies of law to be distributed.. 345
correcting errors in ballots .... 407
county commissioners to provide. 1918
custody after election 442
delivery and receipt for 412
disposal of stubs and spoiled
tickets 437
distinguishing marks prohibited 408
distribution of ballots 410
duplicate ballot boxes in certain
precincts 444
folding of ballots 409
form and contents of ballot .... 405
instruction card and sample
ballots 413
manner of marking ballots .... 405
official election stamp 402
official only to be used 408
opening ballot boxes before elec-
tion 418
opening packages of supplies... 419
poll lists 438
record and preservation 411
special questions on ballot .... 406
spoiled bailors 425
stickers, distribution and use. . 392
tickets to be printed 402
canvass
abstracts certified to secretary of
state 449
abstracts of votes by commission-
ers 448
abstracts to be canvassed by
state board 450
abstracts to be filed and recorded
by county auditor 449
canvass of returns and certificate
of result by state board .... 453
canvass of returns by commis-
sioners 448
1388
INDEX TO POLITICAL
Section
ELECTIONS— Contd.
canvass of votes by judges . . 439-441
certificate by judges and clerks. 441
certificate of election by secre-
tary of state 455
— evidence of membership in leg-
islature 35
constitution of state board of
canvassers 450
correction of mistakes 458
counting votes by extra set of
election officers 445
determination of tie by state
board 454
doubtful votes not counted .... 440
intent of voter effectuated .... 440
judges to join in making return. 446
meeting of state board 452
misspelled names and irregular
returns 457
record of determination of state
board 455
special messenger for abstracts. 451
transmission of supplies to com-
missioners 442
challenges
entry of oath on poll books .... 434
for conviction of felony 430
for want of age 431
for want of citizenship 429
for want of residence 431
judges may challenge 435
prostitutes offering to vote .... 362
qualifications to be declared to
person challenged 428
refusal of vote notwithstanding
oath 436
refusal to take oath 436
residence, how determined 432
residence, oath of 433
tender of elector's oath 428
judges and clerks
appointment of clerks 369
appointment of distributing
clerk 367
appointment and qualifications
of judges 367
compensation 370
judges may administer oaths. . . . 420
judge may challenge elector .... 435
may appoint special constable. . . 421
oath before opening polls 414
term of office 369
to receipt for ballots and sup-
plies 412
two sets of election officers.... 443
vacancies, how filled 368
notices
advertisement of special ques-
tions 356
clerk to transmit to registrars . . 354
posting of notices 355
Section
ELECTIONS — Contd.
proclamation 353
polls and polling places
changing polling place ....416, 417
duties of constable 421
opening and closing of polls .... 415
provision and arrangement .... 366
special elections
conducted like general elec-
tions 480, 483
notice 484
meeting of county canvassers . . 481
meeting of state canvassers .... 482
to fill vacancy in legislative office 325
— in representative in congress . . 326
voting
administering oaths during elec-
tion 420
assistance of disabled voter .... 424
delivery of ballot to voter .... 423
deposit of ballots in box 426
distinguishing marks prohibited 408
duties of constable 421
folding of ballots 409
information not to be given .... 427
interference with electors pro-
hibited 427
manner of marking ballots 405
manner of voting 424
number of voters in inclosed
space 423
poll lists 438
spoiled ballots 425
unstamped ballots not to be de-
posited 426a
when to commence and continue 422
writing name on ticket 404
ELECTORS
privilege from arrest 346
qualifications and disqualifica-
tions 357-363
— at primary elections 375a
ELECTORS' OATH
form of oath, when taken 396
ELECTORS OF PRESIDENT
see Presidential Electors
ELECTRIC POWER COMPANIES
right to use highways 2837
ELECTRIC TRANSMISSION
LINES
rights of way over state lands . . 1637
ELECTRIC WIRES
commissioners may order
changes 1928
disobedience of commissioners'
orders, penalty 1929
stringing across railroads, appli-
cation to commissioners .... 1927
ELISOR
vested with powers of sheriff. .2042
when and how appointed 2040
AND CIVIL CODES
1389
Section
EMPLOYER
anti-union contracts prohibited. .1456
to keep record of minor em-
ployees 1468
to make and record statements. .
1446, 1447
to permit employees to select
their own surety 2958
EMPLOYMENT BUREAU
bond and license 1443-1445
ENCLOSURES
see Dump
— Fences
— Quartz Mines
— Reservoirs
— Trespassing Animals
ENCROACHMENT
on roads, see Roads
EPIDEMIC
see Public Health
EQUALIZATION
of taxes, see Revenue
ESCHEAT
escheated lands become school
lands 602
ESTATE
see Alternative Interest
— Conditional Limitations
— Contingent Interest
— Contingent Remainders
— Co-Tenants
— Future Estates
— Future Interests
— Homesteads
— Land1 or d and Tenant
— Life Estate
— Possibilities
— Remainders
— Reversions
— Tenancy at Will
ESTRAYS
capture and sale 1299-1301
trespassing animal in herd dis-
tricts 1309
trespassing sheep 1219
what animals are estrays 1299
EXAMINER
see State Examiner
EXAMINERS, BOARD OF
see Board of Examiners
FEE (TO PROPERTY)
presumed to pass with convey-
ance 3110
transferable without words of
inheritance or succession ....3102
FEES
of specific offices and for specific
services see specific heads.
execution for 2131
expenses may be retained from 2115
folio defined 2132
Section
FEES — Contd.
neglect to account is embez-
zlement 2116
of county officers to be prepaid™*. 2128
of state officers payable in ad-
vance 274
officers to keep accounts of 342
receipt for 2134
receiving illegal fees, penalty ..2134
state officers to account for .... 274
table to be published 2130
FENCES
co-terminus owners to maintain 3094
hogs need not be fenced against. 1278
lawful fence defined 1264
— specific requirements 1265
railroads to erect 2814-2815
removal from roads 932
partition fences
disagreement as to erection or
repair 1269
duty to construct and repair. . . .1267
establishment of gates 1275
hog tight fences 1267
notice to erect 1266
recovery of cost of erection . . . 1266
removal of encroaching fence. . .
1271-1272
restrictions on removal 1270
survey of disputed line 1273
use of existing fence in making
inclosure 1268
vacation of inclosure, notice .... 1274
FERRIES
see Toll Bridges and Ferries
FIDELITY COMPANIES
see Surety and Fidelity Com-
panies
FINES AND PENALTIES
by military courts, how col-
lected 734, 736, 742
mayor may remit municipal
fines 2198
municipal fines recoverable by
suit 2219
working out police court fines . .2211
disposition
of fine against county attorney
for neglect to sue assessor. . .1816
— against county officers 1793
— assessed by military courts. . .
735, 740, 742
— keeping toll roads, etc., without
license 1045
— for neglect of assessor 1815
— for not sending children to
school 632, 637
— for obstructions and injuries
to highways 958
— for violation of optometry law. 1382
— under marriage license law. .2639
1390
INDEX TO POLITICAL
Section
FINES AND PENALTIES — Contd.
of municipal fines 2204
of toll ferry penalties 1040
payable into school fund 603
FIRE
precautions against forest and
prairies fires, see Forest Fires
FIRE DISTRICTS
appointment of wardens and
deputies 1604
FIRE ESCAPES
to be constructed on certain
buildings 1550, 1553
FIRE GUARD
appointment and duties. . . .1923-1925
FIRE INSURANCE
see Insurance
— Insurance Corporations
— M'utual Co-operative Insurance
Companies
FISH AND GAME WARDEN
see Game Warden
FISH HATCHERY
establishment and maintenance. .
857-862
FIXTURES
are real property 3056
removal by tenant 3090
FLAG
injury to school flag 626
of state 749
to be provided for school dis-
tricts 626
FLOATING TIMBER
capture, reclamation and sale. . .
867-871
FLUME
provisions governing flume com-
panies 2830-2832
FOLIO
defined 2132
FOOD
see Dairy, Food and Oil
FOREIGN CORPORATION
annual statement 2784
banks 2982-2984
filing of articles and designation
of agent 2792
— by assessment life companies 2886
— by fraternal insurance socie-
ties 2893
— by insurance companies 2883
— by surety and fidelity com-
panies 2939
FRANCHISE
of toll roads, etc., deemed real
property 1041
— execution and attachment....
1042, 1043
sale of corporate franchises on
execution 2778-2783
Section
FRATERNAL INSURANCE SO-
CIETIES
acting as agent for non-comply-
ing society, penalty 2901-2902
beneficiaries, who may be 2889
benefits exempt from attachment,
etc 2898
benefit fund, how raised 2889
definition and form of govern-
ment 2889
false statements in applications
for insurance or benefit .... 2900
fees for filing statement 2903
foreign associations, authoriza-
tion to do business 2891
how incorporated 2895
Masons, etc., not subject to law 2904
meeting of governing body,
where held 2899
member may change beneficiary
or revoke certificate 2897
not to employ agents 2896
permit to do business 2894
pre-existing associations to com-
ply with law 2890
report to commissioner 2892
to appoint commissioner as agent
for service of process 2893
violations of law, injunction
from doing business 2901
FRAUD
see Fraudulent Conveyances
annulment of marriage for .... 2640
contract prevented from being
put in writing by 3317
in acquiring title to negotiable in-
strument 3512
marriage contracted through
voidable 2614
FRAUDULENT CONVEYANCES
conveyances in fraud of
creditors 3169
— in trust for grantor 3168
— with intent to defraud pur-
chasers 3164
fraud a question of fact 3171
grantee must be privy to fraud. .3165
title of bona fide purchaser un-
impaired 3172
transfers unaccompanied by de-
livery 3170
FUNDS
charges payable from funds.. 1792
credit of unexpended balances. .1792
deposit of county funds. .2013-2022
—of state funds 127-136
return to general funds of rev-
enues diverted to special fund. 121
state treasurer to keep account. . 117
transfer from temporary or spe-
cial to general 120
FUTURE ESTATE
how limited 3071
AND CIVIL CODES
1391
Section
FUTURE ESTATE— Contd.
may vest notwithstanding power
of appointment 3077
FUTURE INTEREST
see Conditional Limitation
— Contingen1 Interest
alternative interests 3063
defeated by birth of posthumous
child 3068
limitation on death without
heirs 3103
net defeated by alienation, etc.,
by precedent owner 3069
posthumous children take 3064
premature determination of pre-
cedent estate 3070
transfer of 3065
when contingent 3062
when vested 3061
GAME WARDEN
appointment, bond and duties.. 195
deputies and assistants 196
extermination of wild animals. . . 198
salaries of warden, deputies and
assistants 197
GARDENS
toll roads not to be laid through 990
GAS COMPANIES
provisions governing 3041-3045
GATES
see Fences
— Toll Roads
used by strangers 1275
when permitted on highways.. 948
— penalty for opening 949
GOOD ROAD DISTRICTS
organization and government. . .
1049-1060
GOVERNOR
approval and disapproval of
bills 64-67
duties in general 90
election of, when held 349
expenses 274
powers of ac.ing governor .... 93
records of office 92
salary 274
secretary of state to register ac-
tions of 95
to approve bonds of state officers 283
to commission appointive officers 264
to transmit appointments to leg-
islature 91
GRACE
days not allowed 3542
GRAIN
see Grain Commission
for storage of, see Warehouse-
men, Warehouse Receipts
GRAIN COMMISSION
appointment and duties ...1478-1485
Section
GRAND ARMY
loan of stands of arms 750
GRAND ARMY HEADQUAR-
TERS
establishment 854-856
GRANT
see Conveyance
covenant implied from word... 3120
of future interest limited on
death without heirs - .3103
transfer in writing is 3101
GREAT SEAL
adoption of design 337
secretary of state to have cus-
tody 94
to be affixed to commissions.... 265
— to certificate of medical exam-
iners 1341
— to public instruments 95
GUARANTY TITLE AND
TRUST COMPANIES
acceptance of law by existing
companies 2962
capital deemed security 2964
capital required 2963
court may direct deposit of se-
curities 2966
— may examine officers 2967
executors, etc., may deposit se-
curity 2965
powers and rights 2961
GUIDE POSTS
removal or injury to 953
toll companies to erect 995
HEAD OF FAMILY
see Homestead
— Husband and Wife
HEALTH
see Public Health
HEIRS
take as purchasers, when 3076
HERD DISTRICTS
establishment and government. .
1302-1309
HIDES
preservation after slaughter. .. 1256
railroads to preserve after kill-
ing 2820
HIGHWAY COMMISSION
constitution and duties ..1061-1079
HIGHWAY TAXES
see Road Taxes
HIGHWAYS
see Bridges
— Good Road Districts
— Highway Commission
— Roads
— Road Districts
— Road Overseer
— Road Taxes
— Streets
Vol. 1 — 45
1392
INDEX TO POLITICAL
Section
HIGHWAYS— Contd.
— ToU Bridges and Ferries
— ToU Roads
HISTORICAL SOCIETY
establishment and duties. .. .845-853
HOGS
capture of trespassing hogs... 1279
impounding hogs running in
towns 1283
need not be fenced against. .. .1287
notice of capture 1280
trespass, arbitration of dam-
ages 1281
— default of owner 1282
sale for damages 1281
HOLIDAYS
acts relating to negotiable in-
struments 3651
enumerated 10
excluded in computation when. . 11
negotiable ins:ruments payable
on 3542
obligations maturing on 12
HOMESTEAD
setting apart in probate proceed-
ings, see Decedents' Estates
abandonment of 3179
— when effectual 3180
conveyance of, spouses must join
3106
denned 3173
disposition on divorce ....2670-2672
exemptions from execution, ex-
ceptions 3176-3179
from what property selected. . . .3174
how conveyed 3178
husband cannot dispose of 2686
selec ion from wife's property,
consent 3175
of head of family
declaration, contents 3199
— must be recorded 3200
devolution after death 3201
head of family denned 3197
mode of selection 3198
value of homestead 3196
of other persons
declaration, contents of 3203
— effect of filing for record. . .3205
— must be recorded 3204
mode of selection 3202
sale on execution
application for appraisement. .3182
— notice of hearing 3184
—to be filed 3183
appraisers, appointment 3185
— compensation 3194
—oath 3186
—report 3188
appraisement, how made 3187
cost of proceedings 3195
Section
HOMESTEADS— Contd.
order of sale 3190
order setting aside exempt por-
tion 3189
proceedings, how commenced. . .3181
sale, bid must exceed exemption (3191
— disposal of proceeds 3192
— exemption of proceeds 3193
HOMESTEAD CORPORATIONS
provisions governing 2846-2854
HORTICULTURE
board of inspection
constitution of board 1310
meetings and officers 1311
secretary, salary 1120
to act with dairy, food and oil
commissioners 1114
to appoint inspectors 1312
to divide state into districts. .. .1312
horticultural inspector
appointment 1312
bond of inspector and deputies. .1314
compensation of deputies 1313
disobedience of inspector's or-
ders a misdemeanor 1324
duties of inspector and deputies. 1315
expenses, audit and allowance 1317
is dairy, food and oil commis-
sioner 1118
is ex-officio bee inspector 1329
may quarantine diseased orch-
ards 1316
monthly report of inspectors. . .1317
to appoint deputies 1312
regulation of fruit industry
destruction of diseased trees... 1315
— of trees from certain localities 1321
fumigation of trees before sale. .1319
inspection of imported nursery
stock 1327
license to import and sell trees. .1318
notice to eradicate pests 1315
penalties for violation of law. . . .
1320, 1324
quarantine of diseased orchards 1316
sale of diseased trees prohibited 1322
sale of infected fruit prohibited 1325
trees to be marked before ship-
ment 1323
HOSPITAL
cities and counties may establish
hospital for infectious dis-
eases 1105
cities may issue bonds 2315
HOUSE OF REPRESENTA-
TIVES
see Legislature
— Representatives
membership 25
officers and employees, appoint-
ment, duties and compensa-
tion 75-84
AND CIVIL CODES
1393
Section
HUSBAND AND WIFE
see Annulment of Marriage
— Community Property
— Divorce
— Marriage
— Marriage Settlements
— Separate Property
conveyance of wife's property. .
3107-3108
earnings of wife during separa-
tion 2683
husband controls community
property 2686
— is head of family 2675
— liability for wife's ante-nup-
tial debts 2684
— not liable for wife's separate
property contracts 2677
must concur in mortgage on ex-
empt personal property 3407
must join in conveyance of home-
stead or community residence 3106
mutual obligations 2674
property rights, how governed 2689
— acknowledgment of, how taken
3129
— bank account of 2986
— deposit in savings bank 2994
— liability for ante-nuptial debts 2685
— may belong to land and build-
ing corporations 3055
— may hold stock in homestead
corporations ^ 2849
— may manage separate prop-
erty 2677
— may transfer corporate stock
and receive dividends 2748
— power of attorney, execution. .3109
— to support infirm husband. . .2688
IDIOTS
see Insane Persons
— Insanity
capacity to contract 2606
not admitted to insane asylum.. 780
ILLEGITIMACY
see Legitimacy
adoption of illegitimate child. .2709
IMMIGRATION
see Bureau of Immigration, La-
bor and Statistics
INCLOSURE
see Dump
— Fences
— Quartz Mines
— Reservoirs
INCREASE
of pledged property 3423
INCUMBENT
denned 40
INCUMBRANCE
see Chattel Mortgages
— Liens
Section
INCUMBRANCE— Contd.
— Mortgages
definition 3121
INDEPENDENT SCHOOL DIS-
TRICTS
application of school law 662
assessor to collect taxes 1804
corporate powers 652
county auditor to countersign
warrants 608
establishment of districts 651
industrial training school is inde-
pendent district 818
issuance of bonds 659-661
officers, compensation and bond . 656
special text books 575
tax levies to pay bonds 661
trustees
board of trustees 653
duties and powers 658
election of 654
meeting of 657
oath of 656
not to be interested in con-
tract 655
to provide fire escapes, when ..1552
to receive no compensation .... 656
vacancies, how filled 654
INDEX
official deeds, how indexed ...2064
recorder's indexes 2063
— how kept 2068
INDORSEMENT
of bills and notes, see Negotiable
Instruments
of laws, see Statutes
INDUSTRIAL TRAINING SCHOOL
aiding escape of inmates 831
building to be on cottage plan . . 809
courses of study, how prescribed. 817
establishment 805
fugitives, arrest 830
is independent school distric ; . . 818
lands set apart for school 821
purchase of supplies 864, 865
release on parole, recall 829
religious services 816
religious tests prohibited 820
studies to be taught 822
superintendent, appointment and
removal 812
—bond 812
—reports and account 815
teachers, appointment and quali-
fications 813
commitment of delinquents
commi merit pending trial 832
commutation of penitentiary to
training school sentence 828
conveyance to school 825
form of commitment 824
1394
INDEX TO POLITICAL
Section
INDUSTRIAL TRAINING SCHOOL
— Contd
grounds for commitment 823
insane and diseased children ex-
cluded 823
proceedings may be at cham-
bers 826
review of proceedings 826
term of commitment, discharge. . 827
trustees
appointment, term of office, oath. 806
con rol of funds 811
expenses 810
general powers 809
meetings 810
officers of board 808
proceedings 807
report to governor 819
seal and corporate powers 807
to fix salaries 814
to prescribe regulations 814
INFANTS
see Adoption
— Child Labor
— Custody of Child
—Delinquent Children
— Guardian and Ward
— Illegitimacy
— Legitimacy
— Parent and Child
bank account 2986
contracts, power to make 3312
— authorized by statutes 2605
— disaffirmance of 2603
— for necessaries 2604
corporate stock, how represented. 2736
deposits in savings bank 2994
indorsement of negotiable instru-
ment 3479
may belong to land and building
corporations 3055
— make marriage settlements . . . 2693
INHERITANCE
words of, unnecessary to pass
fee 3102
INSANE ASYLUMS
audit and payment of expenses. . 754
contagious diseased persons ex-
cluded 767
delirium tremens patients not ad-
mitted m 780
discharge of patients 765
— repayment of money 769
idiots and imbeciles not admitted 780
insane convicts 766
money found on insane person. . 779
nonresidents, admitted when... 768
purchase of supplies 864, 865
salaries payable quarterly 763
board of directors
appointment, oath and officers.. 752
compensation and expenses.... 756
Section
INSANE ASYLUMS — Contd.
constitution of board 751
not to be interested in contracts 755
powers and duties 753
reports to governor 753
to approve bonds of officers . . . 764
commitment to asylum
appointment of guardian 783
certificate of physician .... 775, 776
conveyance of patient to asylum 781
examination by physician 774
— of witnesses 773
fee of physician 782
notice to superintendent 778
order of commitment 777
subpoena for physician 772
— for witnesses 771
warrant of arrest 770
medical superintendent
bond 762
estimate of expense 760
powers and duties 759
qualifications 757
residence 758
salary, how fixed 761
north Idaho asylum
control of funds 789
directors, appointment, term of
office and oath 786
— meetings and expenses 788
— officers and records 787
— quorum 787
establishment 784
general management . . 790
land grant 785
persons to be committed 791
transfer to patients 791
INSANE PERSONS
see Idiots
— Insane Asylums
appointment of guardian on com-
mitment to asylum 783
cannot contract 3312
contracts, validity 2607
corporate stock, how represented 2736
rescission of contracts 2607
INSPECTION
of animals, see Livestock
— Sheep
of lumber, see Lumber
INSPECTOR OF MINES
see Mine Inspector
INSTITUTES
see Teachers' Institutes
INSTITUTIONS OF LEARNING
provisions governing 3027 3036
INSURANCE
see Fraternal Insurance Societies
— Insurance Agents
— Insurance Commissioner
AND CIVIL CODES
1395
INSURANCE— Contd. Section
— Insurance Corporations
— Livestock Insurance Companies
— Mutual Co-operative Insurance
Companies
actions on policies, venue 2884
assessment life policies to be
stamped 2881
discriminations and rebates. .. .2880
fire companies may insure and
re-insure risks .2870
issuance when losses equal capi-
tal, liability ....2871
land and building corporations
may insure members 3049
maximum risks, re-insurance. . .2873
policies, how executed 2872
— to be countersigned by resident
agents 2878
risks to be written in authorized
companies 2875
total loss, return of unearned
premium 2874
INSURANCE AGENTS
must procure certificate of au-
thority 2876
resident agent to countersign
policies 2878
transacting business without cer-
tificate, penalty 2877
INSURANCE COMMISSIONER
appointment and term of office. . 161
designation as agent for service
of process by foreign assess-
ment life companies. . . .2886, 2893
disqualifications 166
duties 168
is state examiner 170
oath and bond 163, 164
office to be provided 162
removal 161
reports 169
salary and expenses 167
seal 165
duties
to admit foreign mutual co-
operative companies, when... 2914
to approve securities deposited by
surety and fidelity company. .2939
to examine articles of mutual co-
operative company 2906
— and issue permits to foreign
fraternal societies 2891
— companies 2868
— livestock companies 2931
— mutual co-operative com-
panies 2922
to file statements of premiums
with state treasurer 2867
to grant permit to livestock in-
surance companies 2925
to instigate proceedings against
non-complying fraternal socie-
Section
INSURANCE COMMISSIONER
— Contd.
ties 2901
to issue certificate of authority
to surety and fidelity com-
panies 2940
— to foreign assessment life com-
pany 2886
— to fraternal insurance societies.2894
to license foreign assessment life
companies 2886
to notify recorder of authoriza-
tion or revocation of authority
of surety companies 2943
to revoke authority for failure to
satisfy judgment 2885
— authority of fidelity company,
when 2956
— certificate of non-complying
livestock company 2931
— certificate of unsound com-
panies 2868
— license of companies failing to
pay gross earnings tax 2867
— permit of companies failing to
furnish forms of policies. .. .2880
— permit of companies for dis-
criminations 2880
fees
fees in general 2887, 2888
for accepting service on foreign
fraternal societies 2893
for filing statement of fraternal
society 2903
for issuing permit to fraternal
society 2894
for licensing surety and fidelity
companies 2942
from livestock companies 2932
INSURANCE CORPORATIONS
see Insurance and references
there given
annual statement of premiums. .2867
— to commissioner 2864-2865
capital, certificate of paid up
capital 2859
— completion of subscriptions. . .2857
— required 2855
— required of foreign companies. 2856
— when to be paid up 2858
dividends, how issued 2861
examination by commissioner. . .2868
foreign assessment life company,
annual statement 2886
— appointment of agent for ser-
vice of process 2886
— fees payable from 2887
— how licensed 2886
foreign companies to appoint
agent for service of process. . .2883
impairment of assets, denial of
permit 2869
issuance of policies when losses
1396
INDEX TO POLITICAL
Section
INSURANCE CORPORATIONS
— Contd.
equal capital 2871
penalty for issuing policies not
countersigned by resident
agent . , 2879
publication of financial state-
ment 2866
real estate, limitation on hold-
ings 2860
revocation of authority for fail-
ure to satisfy judgment 2885
— for writing policies not coun-
tersigned by resident agents.. 2879
— of certificate for unsoundness. 2868
— of permit for discriminations. 2880
— of permit for refusal to fur-
nish forms of policies to com-
missioner 2880
tax on gross receipts 2867
to file articles and by-laws 2882
to furnish forms of policies to
commissioner 2880
venue of actions against 2884
fire companies
dividends, limitations on 2863
investment of funds 2862
may insure and re-insure prop-
erty 2870
revocation of license for unau-
thorized writing of insurance. 2875
INTEREST
compound interest not allowed. .1539
interest on overdue interest 1539
legal rate 1537
maximum rate 1538
— deposit of county funds 2013
— deposit of state funds 128
on unpaid county warrants. .. .1995
on unpaid state warrants 125
penalty for usurv 1540
when implied 1537
INTERESTS IN PROPERTY
see Alternative Interests
— Conditional Limitations
— Contingent Interest
— Contingent Remainder
— Co-tenants
— Future Estates
— Future Interests
— Homesteads
— Landlord and Tenant
— Life Estate
— Possibilities
— Remainders
— Reversions
— Tenancy at Will
INTOXICATING LIQUORS
county officers to enforce law. . .1526
defined 1527
crimes
employment of minors in saloons,
Section
INTOXICATING LIQUORS— Contd.
etc 1472
evasion of law by physician .... 1524
keeping disorderly house 1519
simulation of physician's sig-
nature 1524
unlawful sales 1518
— by druggists 1523
— not to be drank on premises. .1510
— to drunkards 1511
— to intoxicated persons 1515
— to minors 1525
license and bond
amount of fee 1509-1510
application for license 1507
— appeal from commissioner's
orders 1508
— consideration and refusal .... 1508
bond 1508
— liable for tine 1520
— additional bond required 1508
— approval of insufficient bond. .1516
cities may license 2238
dealers must procure license. . . .1506
duration of license 1509
municipal licenses 1513
— disposition of license moneys. .2204
revocation 1512
— for disorderly house 1519
sheriff to collect fee 1508
sales
authorized sales by druggists. .. 1521
drinking in drug store prohibited 1522
notice not to sell to drunkard. .1511
sales to intoxicated person 1515
— to minors 1525
unlawful gift equivalent to sales. 1517
unlawful sales, penalty 1518
IRRIGATION
see Carey Act Lands
— Irrigation Distric's
— State engineer
— Water Rights and Irrigation
IRRIGATION DISTRICTS
assessments
bond to be paid from 2405
cancelled bonds, assessments in
lieu of 2404
correction .' 2409
delinquency 2412
delinquent list and penalty . . . .2413
for construction and operating
expenses 2419
levy 2410
lien 2411
notice of correction 2408
notice to nay 2412
payment before delinquency . . . 2412
payment into bond and construc-
tion funds 2410
preparation of assessment book. 2407
publication of delinquent list. . . .2414
AND CIVIL CODES
1397
Section
IRRIGATION DISTRICTS— Contd.
redemption from sales 2415
sales and certificates 2414
secretary is assessor 2407
special assessments, election. . .2391
state lands not to be assessed. . .2439
bonds
assessment of benefits 2399-2400
confirmation, costs 2403
— hearing and decree 2403
— no .ice of hearing 2402
—petition 2401
— rules of procedure 2402
form and contents 2397
election 2396
payment to be made from assess-
ment 2405
redemption 2406
sale and application of proceeds. 2404
changing boundaries
assessment against petitioners. .2427
election to determine change ...2430
exclusion of land, petition 2434
— costs of survey 2436
— record of change 2437
— survey of land to be excluded. 2435
order accepting or rejecting peti-
tion 2428
order of annexation 2431
—record of order 2432-2433
overruling objections 2429
petitioners to advance costs . . . .2425
petition for annexation of land. .2423
— guardians and executors may
sign 2424
— hearing 2426
— notice of hearing 2425
construction work and ac-
quirement of property
advertisement for bids for con-
struction 2416
— dispensed with, when 2417
construction fund, how raised. .2419
contract and bond 2416
intersections with streets, rail-
roads, etc 2420
payment of claim 2418
purchase and condemnation of
property 2422
right of way over state land . . .2421
miscellaneous provisions
consolidation of districts 2438
contract with state land board re-
la ing to state land included
within district 2439
county commissioners may in-
spect books 2395
existing districts governed by
title ..2443
navigation and mining industries
not to be impaired 2440
Section
IRRIGATION DISTRICTS — Contd.
other irrigation laws unaffected . 2442
publication of notices 2441
repayment of money advanced by
U. S 2398
title to property vests in district 2387
water tolls to pay expenses. .. .2419
officers and directors
appointment of officers ..2377, 2385
compensation 2389
directors, election 2379,-2384
— election in consolidated dis-
tricts 2438
— financial statement 2394
— first meeting of 2377
— may accept conveyances and
bring and defend suits 2388
— may acquire land 2386
— may call special assessment
election 2391
— may enter into construction
contract with U. S 2397
— may establish water tolls or
levy assessments for construc-
tion and operating exnenses. .2419
— may manage property 2387
— oath and bond 2378
— organization 2385
— powers in general 2386
— report to state engineer 2393
— rules and by-laws 2386
— term of office and qualifica-
tions 2378
— to audit claims 2418
— to correct and levy assess-
ments 2409-2410
— to formulate plan of construc-
tion 2396
— to let contracts for construc-
tion 2416
not to be interested in contracts 2390
power to incur debts 2392
to allow county commissioner to
inspect books 2395
treasurer, bond 2377
organization
amendment of proposed plan... 2374
election, canvass of returns. . .2377
— how conducted 2376
—notice 2375
— order for 2374
— qualifications of voters. .2375-2376
petition 2373
— hearing on .' 2374
— maps and bonds to accompany 2374
— notice of hearing 2374
— reference to state engineer. .2374
order of organization 2377
who may propose organization. .2372
powers
"construction contract with U. S. 2398
may accept conveyance and main-
1398
INDEX TO POLITICAL
Section
IRRIGATION DISTRICTS— Contd.
tain suits 2388
purchase and condemnation of
property 2386
ISSUE
definition in grant of future in-
terest 3103
JACKASS
see Sires
for lien for services, see Liens
penalty for permitting running
at large ...1285
running at large, impounding
and sale 1286, 1287
JOINT RESOLUTIONS
distribution by secretary of state 96
secretary of state to have custody
of 94
when effective 71
JOINT TENANTS
see Co-tenants
JOURNALS
of legislature, distribution. .. .70, 96
— printing 70
— secretary of state has custody 94
JUSTICE OF THE PEACE
bond 1987
duties in general 2104
election, when held 352
execution for fees 2131
may appoint special constable. . .
2113-2114
schedule of fees 2126
to act as coroner when 2100
to fill vacancy in office of police
judge 2217
vacancy, how filled 324
JUSTICES, SUPREME COURT
see Judge and Judicial Officers
salaries 275
term, commencement of 32
vacancies, how filled 320, 321
miscellaneous duties
control of law library 833
may solemnize marriage 2622
may take acknowledgments. .. .3123
to let contract to print reports. . 227
LABELS AND TRADE MARKS
registration and protection. 1449-1455
LABOR
see Child Labor
— Labor Unions
for arbitration of labor disputes,
see Labor Commission
for highway labor, see Roads;
Road Taxes
anti-union contracts prohibited. 1456
bids for public work on eight
hour basis 1462
day's work in mines and smel-
ters 1463, 1464
Section
LABOR— Contd.
day's work on public works. .. .1461
employers to make and record
statements 1446, 1447
employment of aliens .... 1457-1460
LABOR COMMISSION
constitution and duties. .. .1426-1442
— arbitration of labor disputes . .
1430-1438
LABOR STATISTICS
see Bureau of Immigration, La-
bor and Statistics
LABOR UNIONS
union labels and trade marks, see
Labels and Trade Marks
anti-union contracts prohibited. .1456
LAND
see Real Property
— State Land
— Surveys
LAND AND BUILDING CORPO-
RATIONS
provisions governing 3047-3055
LAND COMMISSIONER
appointment and duties . . 1564-1565
LANDLORD AND TENANT
change in terms of lease 3089
leases, liability of assignees. . .3084
lessees, rights against lessors'
assignee 3085
re-entry after termination of
tenancy at will 3079
rents, conveyance of, attornment
unnecessary 3118
— recovery on lease for life . .
3086-3087
rights of lessor's grantees
against tenant 3083
tenant may remove fixtures . . . 3090
termination of tenancy at will.. 3078
unauthorized conveyance by ten-
ant, effect 3115
LATERAL DITCHES
see Water Rights and Irrigation
changes, how made 3111a
LATERAL SUPPORT
rights of co-terminus owners. .3092
LAW LIBRARIES
provisions governing 833-842
Lewiston library 841-842
LAWFUL ENCLOSURES
see Dumps
— Fences
— Quartz Mines
— Reservoirs
— Trespassing Animals
LAWFUL FENCES
see Fences
LAWS
see Bills
— Statutes
AND CIVIL CODES
1399
Section
LEASES
see Landlord and Tenant
of highways, see Highway Com-
mission; Roads
of livestock to be acknowledged
and recorded 1263
LEGISLATURE
see Bills
— House of Representatives
— Senate
— Senators
— Statutes
for election contests before legis-
lature, see Election Contests
apportionment 25
assembly and organization .... 36
attendance of witnesses before. 58-62
certificate of election to 35
committee members may admin-
ister oaths 37
constitution of houses 33
list of members transmitted by
secretary of state 456
members disqualified from ac-
cepting certain offices 251
oath, administration 37
officers and employees 75-84
transmission of appointments by
governor 91
vacancy in office of member, spe-
cial election 325
LEGITIMACY
see Illegitimacy
of child born before wedlock . . . 2699
of children after annulment of
marriage 2642
of children in case of wife's adul-
tery 2669
LEWISTON NORMAL SCHOOL
establishment and government. .
500-514
LIBRARIES
see Law Libraries
of cities and school districts 675-682
state library commission. .. .672-674
traveling libraries 673-674
LICENSES
of attorneys, see Attorneys at
Law
of corporations, see Corpora-
tions; Foreign Corporations;
Insurance Corporations, etc.
of dentists, see Dentistry
of liquor dealers, see Intoxicat-
ing Liquors
of physicians, see Medicine and
Surgery
of optometry, see Optometry
of osteopaths, see Osteopathy
of peddlers, see Pedd]ers
of pharmacists, see Pharmacy
of surveyors, see Surveyors
Section
LICENSES— Contd.
for marriage license, see Mar-
riage _
actions, production of license. .1836
application, transfer to district
court in case of interest of
commissioner 1957
apportionment of license money. 1837
apportionment to current expense
fund 1793
blanks to be furnished 1828
— by state auditor 102
county auditor to keep account. .1832
county treasurer to countersign 1829
— to report to state auditor .... 1833
delivery to county auditor 1829
— to tax collector 1831
disposal of license money for
toll bridge or ferry 1026
disposition of liquor license
money collected in cities 2204
fees for issuance 1838
forms for county licenses 1830
monthly settlements with auditor
and treasurer 1837
municipal license required ....1834
of bridge and ferry keepers . . . .1015
procurement of license 1834
revocation of toll roads, etc., li-
cense 1046
suit for recovery of license tax 1835
statements by county treasurer
to state auditor 1797
specific licenses
auctioneer's license 1839
billiard halls and bowling alleys 1841
bridge and ferry licenses 1840
— connecting counties, issuance
and apportionment 1021
exhibitions and pawn brokers. . .1841
for toll roads 998
keeping toll roads, etc., without
license, penalty 1045
LIENS
see Chattel Mortgages
— Mortgages
— Vendee's Lien
— Vendor's Lien
defined 3373
charges for delivering water... 3288
contracts for forfeiture void... 3382
contracts subject to provisions. .3378
expense of dipping animals. ... 1178
— range horses and cattle 1183
for feeding or pasturing stock. .3446
for performance of future obli-
gation 3380
for repair of personal property,
enforcement 3447
for service on or caring for
property 3446
general and special 3374
general, defined 3375
1400
INDEX TO POLITICAL
Section
LIENS — Contd.
lienor may pledge property 3424
of banker 3449
of factor 3448
extent of mortgage lien 3393
of mortgage is special 3390
of water contract for Carey Act
land ..1629
of vendor of railway equip-
ment 2827-2829
of animals running at large in
herd districts 1308
of mining property by partners
and creditors 3364
of property not in existence. . . .3379
on sheep crossing inspection lines
without certificates 1190
on trespassing animals 1291
personal obligation not implied. .3383
priority of purchase money
mortgage 3384
record of liens on lumber 1503
restoration extinguishes lien . . 3387
rights of junior lienor 3386
right to redeem 3385
— not to be restrained by con-
tract 3382
satisfaction of prior lien by spe-
cial lien holder 3377
seller's lien on personal prop-
erty 3444
special denned 3376
transfers no title 3381
for services of sires
exemption denied on compliance
with law 3456
fees of auditor for filing certifi-
cate, etc 3457
filing description and pedigree. .3452
judgment, execution, sale 3452
notice of lien to be filed 3451
right to lien 3451
statement of account of ser-
vices 3455
— description and pedigree ....3453
LIEUTENANT GOVERNOR
election of, when held 349
expenses 274
LIFE ESTATE
duties of life tenant . 3093
injury by life tenant, action by
reversioner, etc 3088
limitation of remainder upon . . .3074
limitation of successive life es-
tates 3073
recovery of rent on 3086-3087
taxes, charges, etc., by whom
paid 3093
unauthorized grant by life ten-
ant, effect 3115
LIFE INSURANCE
see Fraternal Insurance Societies
Section
LIFE INSURANCE— Contd.
— Insurance
— Insurance Corporations
LINEAL WARRANTIES
abolished 3122
LIQUOR
see Intoxicating Liquors
LIVERY STABLES
lien for boarding stock 34 '•">
LIVESTOCK
see Auctioneers
— Estrays
— Fences
— Hogs
— Livestock Inspectors
— Livestock Insurance Companies
— Livestock Sanitary Board
— Marks and Brands
— Predatory Animals
— Quarantine
— Sheep
— Slaughter of Cattle
— Stallions
— Stock Ranchers
— Trespassing Animals
— Two Mile Limit
— Veterinary Surgeon
inspection on shipment
brand book open to public .... 1252
certificate authorizing shipping. 1247
constable to inspect brands .... 1246
driving animals from state, no-
tice to constable 1249
fees of constable 1248
justice to act in place of con-
stable 1250
neglect of duty by constable . . 1254
notice to constable of proposed
shipment 1246
shipment of another's animals . . 1253
transportation without certifi-
cate, penalty 1247
miscellaneous provisions
injury to roads by stock 962
leases to be written, acknowl-
edged and recorded 1263
liability of railroads for injur-
ing 2814-2815
sale by brand and range delivery 1236
prevention and suppression
of disease
burial of diseased carcasses. .. 1162
compensation need not be made
for slaughtered animals 1162
co-operation of U. S. Bureau of
animal industry 1206
dipping range horses and cattle. 1183
disposal of diseased carcasses. .1212
expenses of dipping a lien, en-
forcement 1178
AND CIVIL CODES
1401
Section
LIVESTOCK— Contd.
exposure of healthy animals to
disease, civil liability 1209
impounding diseased domestic
animals 1215
no inspection necessary, when. . .1207
permitting diseased animals at
large, civil liability 1216
quarantine and dipping by vet-
erinarian or inspector 1176
refusal to dip, treatment by in-
spector 1177
restrictions on sale of diseased
animals 1211
sale of diseased domestic ani-
mals 1214
seclusion pending dipping 1176
veterinary surgeon may order
slaughter of diseased animals 1161
restrictions on importation
governor may prohibit importa-
tion from diseased localities. . .1184
importation of diseased animals
a misdemeanor 1187
— diseased domestic animals ...1213
unlawful importation, seizure
and sale 1186
running at large in towns
unlawful to range stock in town 1288
—penalty 1289
LIVESTOCK INSPECTORS
see Veterinary Surgeon
appointment, compensation, oath
and bond 1165
compensation for dipping ani-
mals 1178
— for dipping range horses and
cattle 1183
— in criminal prosecutions 1174
duties in general 1167
examination of candidates for ap-
pointment 1166
failure to dip sheep, penalty. .. 1181
may administer oa.hs 1173
may make arrests 1174
neglect to pay over money,
penalty 1175
official misconduct, penalty ....1172
permitting sheep to travel with-
out inspection, penalty 1192
reports 1171
supervision by veterinary sur-
geon \ 1169
to give duplicate receipts for
money 1175
to hand dress or spot lambing
sheep 1180
to inspect imported sheep 1185
to inspect sheep semi-annually. .1188
to keep records 1170
to quarantine and dip diseased
animals 1176
to seize and sell animals unlaw-
Section
LIVESTOCK INSPECTORS— Contd.
fully imported 1186
to superintend burial of disfased
carcasses 1162
to supervise dipping of animals. 1167
LIVESTOCK INSURANCE COM-
PANIES
amount of insurance required. .2926
annual meeting 2929
annual report to commissioner. 2930
assessments, how levied 2933
compliance with law by existing
companies 2935
corporations may become mem-
bers 2936
examination by commissioner. . .2931
fees payable to commissioner. . .2932
foreign companies, authority to
do business 2937
incorporation, articles and by-
laws 2925
limit on valuation 2927
reserve fund, investment 2934
revocation of license 2931
transacting business without li-
cense, penalty 2931
withdrawal of members 2928
LIVESTOCK SANITARY BOARD
annual report 1157
audit and payment of bills 1155
constitution of board 1153
expenses and general duties. .. .1154
may prescribe rules 1156
secretary, appointment and sal-
ary 1153, 1154
to divide state into districts. .. .1165
to supervise destruction of preda-
tory animals 1197
to transmit information to county
commissioners 1163
LODE CLAIM
see Mining Claims
LODGING HOUSES
see Innkeepers
LOGS
see Lumber
LUMBER
see Floating Timber
districts and inspectors. . . .1495-1505
MAJORITY
age of 2601
power under joint authority .... 14
MARK
how made and witnessed 16
MARKS
of land, see Landmarks
— Survey
on logs, see Lumber
on animals, see Marks and
Brands
MARKS AND BRANDS
brand book 1233
1402
INDEX TO POLITICAL
Section
MARKS AND BRANDS— Contd.
brands to be recorded. 1228
conflicting brands, decision. .. .1232
fee for record 1229
inspection of brand on shipment
of livestock 1246-1254
livestock defined 1224
mutilating and counterfeiting. . .1238
parol evidence inadmissible. 1228, 1234
partnership brands 1237
recorded brands as evidence. . .1234
record of brands 1229
record of brand on slaughtered
cattle 1255
record with county recorder. .. .1230
road brands 1240
sale and transfer, record 1231
sale of branded animals 1236
sheep brands, distinguishing
marks 1226
sheep owner to give notice of
stray brands 1235
state auditor is recorder 1227
stock grower defined 1224
— must use brands 1225
MARRIAGE
see Husband and Wife
— Incest
— Marriage Settlements
— Polygamy
by whom solemnized 2622
certificate and return 2630
certificate as evidence 2628
certificate, officer to give 2625
disposition of fines 2639
dissolution, how effected 2645
examination of witnesses as to
qualifications of parties 2624
false returns, penalty 2638
fees for solemnizing 2626
form of ceremony 2623
how solemnized 2620
incestuous marriages 2615
inquiry into facts by officers ..2621
license, fee for issuance 2636
— form 2629
— is authority for solemnization. 2633
— issuance to incompetent per-
son, penalty 2631
— perjury on application 2632
— recorder may administer oaths 2632
— recorder to issue 2631
— record of returns 2635
neglect to make return, penalty. 2630
neglect to record returns, pen-
alty 2635
of white persons and negroes
void 2616
persons who may marry 2612
polygamous marriages void . . . .2617
proof of consent and consumma-
tion 2613
recognition of foreign marriages 2619
recorder's books as evidence . . . .2637
Section
MARRIAGE— Contd.
register to be kept 1088-1090
release \from contract for un-
chastity 2618
solemnization without license,
penalty 2634
validity not affected by want of
authority 2627
what constitutes marriage 2611
when voidable 2614
MARRIAGE SETTLEMENTS
effect of record 2692
formalities required 2690
infants may make 2693
not invalidated by separate prop-
erty law 2678
record 2691
MARRIED WOMEN
see Community Proper ly
— Husband and Wife
— Separate Property
— Sole Traders
MASCULINE
includes feminine and neuter. . . 16
MASONIC FRATERNITY
power to hold property 3014
MAYOR
general duties 2190
may call special meetings of
council 2193
may issue subpoenas in legisla-
tive election contests 46, 47
may remit fines and grant
pardons 2198
may require aid in enforcing law. 2197
may require reports and account
from officers 2194
may solemnize marriage 2622
messages to council 2192
police power 2195
to designate justice to fill va-
cancy in office of police judge.2217
vacancy in office, how filled . . . .2196
veLo power 2191
Measures
see Weights and Measures
MEDICINE AND SURGERY
see County Physician
— Public Health
examination and license to prac-
tice 1341-1356
MILITIA
organization and government 683-750
MINE INSPECTOR
election and duties 199-209
salary 274
MINES
see Mine Inspector
— Mining Claims
— Mining Partnerships
taxation of profits, see Revenue
accidents, duty of mine inspector 207
AND CIVIL CODES
1403
Section
MINES— Contd.
complaint of unsafe condition. . 204
eigh. hours a day's work 1463
inspection 201-209
operators to make and record
statements 1446, 1447
owners to report to inspector... 203
mining districts
appointment of deputy recorders 3215
— seal, limitations on power. .. .3220
— transmission of notices by. . . .3218
transmission of notices to 3219
mining tunnels
burden of proof as to discovered
vein 3239
damages for injury to intersected
claim 3238
owner of intersected claim may
inspect tunnel 3237
right to cross located claim . . . .3236
title to ore taken from intersected
claim 3238
rights of way
action to condemn 3225
appeal from commissioner's
award 3231
— effect, bond, deposit of dam-
ages 3233
—trial on 3232
commissioners, appointment of.. 3227
— oath, view and report 3228
cost of appeal 3234
— of proceedings 3235
for railroads, ditches and tun-
nels 3224
issuance and service of summons. 3226
payment of damages, rights ac-
quired 3230
setting aside commissioner's re-
port 3229
trial in district court 3227
who may acquire 3223
MINING CLAIMS
see Mines, and references there
given
right of aliens to acquire 2610
lode claims
affidavit of locators 3216
affidavit of performance of labor 3211
dimensions 3206
location monument, boundary
marks and notice 3207
location notice, manner of re-
cording, fees 3217
location notice must be recorded 3209
location of abandoned claim ..3212
record of amended location no-
tice 3210
re-location not allowed when... 3208
security to surface owners, in-
junction 3214
Section
MINING CLAIMS— Contd.
shaft must be sunk 3208
placer claims
affidavit of locators 3216
location of 3221
monuments, notice, excavation,
record of notice 3222
MINING PARTNERSHIPS
provisions governing 3361-3372
MINORS
see Infants, and references there
given
who are minors 2601
MISBRANDING
of dairy, food and oil products,
see Dairy, Food and Oil
MONEY
see Interest
judgment for, how computed. . 1536
money of account defined 1534
peculiar denominations 1535
personal property includes .... 16
MONTH
means calendar month 16
MONUMENTS
co-terminus owners to main-
tain 3094
location monuments of lode
claims 3207
— of placer claim 3222
MORTGAGE
nee Chattel Mortgages
acknowledgment and record. . . .3405
assignment of debt carries se-
curity 3398
defeasance may be shown by pa-
rol 3392
defined 3388
discharge on certificate 3400
discharge, record 3401
execution by religious and be-
nevolent corporations ...... .3015
ex.ent of mortgage lien 3393
for purchase money, priority of
lien 3384
independent defeasance to be re-
corded 3404
lien is special 3390
marginal discharge 3399
must be in writing 3389
power of attorney, requirements 3395
recording assignment 3396
— not notice to mortgagor 3397
redemption, restraint of right
void 3382
refusal to enter . satisfaction.
penalty .3402
subsequently acquired title in-
ures to mortgagee 3394
transfer deemed mortgage, when 3391
what may be mortgaged 3403
1404
INDEX TO POLITICAL
Section
MULATTOES t
marriage with white persons
prohibited 2616
MUNICIPAL BONDS
record of bonds 2277
improvement and funding
bonds
application of proceeds 2321
denomination, interest and ma-
turity 2317
form and interest coupons ....2318
issuance and sale 2319
neglect of officers to collect tax,
penalty 2321
ordinance and election 2316
power to collect tax 2322
purpose for which authorized. . .2315
refunding bonds 2322
tax levy for interest and sinking
fund 2320
sewer bonds
issuance and disposal of bonds 2353
issuance of installment bonds.. 2364
redemption of installment bonds 2369
validation of prior bonds 2360
street improvement bonds
application of proceeds 2334
assessment to pay bonds . .2335-2340
denomination, installment cou-
pons and interest 2331
election authorizing issuance. . .2330
issuance of bonds authorized ....
2238, 2329
issuance of installment bonds... 2364
payment from general fund . . . 2332
petition or voe for improvement 2328
redemption of installment bonds 2369
sale and record 2333
signature and formalities 2332
what cities may issue 2323
MUNICIPAL CORPORATIONS
see Cities and Villages and ref-
erences there given
MUTUAL CO-OPERATIVE IN-
SURANCE COMPANIES
acceotance of law by existing
companies 2924
actions on policies 2913
agents and employees 2911
annua! statement to members. . .2921
— to insurance commissioner. .. .2922
application by insurance com-
missioner for dissolu ion ....2922
assessments, collection by suit. .2913
— how made 2916
by-laws 2912
cish to be paid with application 2907
certificate and term of existence 2906
corporate powers 2920
corporate style 2905
Section
MUTUAL CO-OPERATIVE IN-
SURANCE COMPANIES —
Contd.
directors, election and vacan-
cies 2909
— executive committee 2911
— organization and officers . . . .2910
examination by insurance depart-
ment 2922
fUmg, approval and recording of
articles 2906
foreign companies, how admitted 2914
liability of officers for neglect. .2913
losses, adjusted and payment. .2917
— arbitration 2918
may transact business in other,
states, when 2914
meetings and elections 2908
obligation of members to pay as-
sessments 2907
policies, when and how issued. .2915
purposes for which authorized. .2905
unauthorized transaction of busi-
ness, penalty 2923
withdrawal of members 2919
who may organize 2905
NATIONAL GUARD
see Militia
NECESSARIES
infant cannot disaffirm contract
for 2604
neglect to furnish as ground for
divorce 2651
promise of adult child to pay
for 2695
promise of parent to pay for. . .2696
NEGOTIABLE INSTRUMENTS
for negotiable warehouse re-
ceipts, see Warehouse Receip s
acceptance
after dishonor 3595
denned 3589
dishonor by non-acceptance . . . .3606
effect of qualified acceptance. . . .3599
- excuses for failure to present. .3605
failure to return bill deemed an
acceptance 3594
for honor, by whom made 3618
— excuses for delay in present-
ing for payment 3626
— for whom made 3620
— how made 3619
— liability of acceptor 3621
— maturity of sight draft . . . .3623
— obligations of acceptor 3622
— presen.ment for payment to
acceptor 3625
— protest for non-payment 3624
general and qualified acceptance 3596
holder may refuse qualified ac-
ceptance 3599
may be required on bill 3590
AND CIVIL CODES
1405
Section
NEGOTIABLE INSTRUMENTS
— Contd.
of bill drawn in set 3638
on separate paper, effect 3591
presentment, bill must be pre-
sented or negotiated 3601
— lack of time to present 3604
— when and to whom made 3602-3603
— when necessary 3600
promise to accept before draw-
ing 3592
time in which to accept 3593
unaccepted bill, treated as dis-
honored 3607
— recourse against drawers 3608
when acceptance is general . . . .3597
when acceptance is qualified . . . .3598
when bill may be accepted 3595
bills drawn in sets
acceptance 3638
different holders, title 3636
discharge 3640
indorsement to different persons 3637
payment by acceptor, delivery of
acceptance 3639
whole of the parts constitute one
bill 3635
bills of exchange
bill not an assignment 3584
bill of exchange denned 3583
how addressed 3585
inland and foreign bills 3586
referee in case of need 3588
when bill may be treated as note 3587
checks
certification discharges parties. .3645
certification equivalent to accept-
ance 3644
definition 3642
m^st be presented for payment,
when 3643
not an assignment until accepted 3646
consideration
accommodation party denned, lia-
bility 3486
failure of consideration as de-
fense 3485
holder for value defined 3483
holder having lien 3484
presumption of 3481
value denned 3482
discharge
by alteration 3581
by failure to present or negoti-
ate 3601
by non-acceptance 3606
by refusal of unqualified accept-
by refusal to write acceptance
on the bill 3590
cancellation by mistake, burden
of proof 3580
Section
NEGOTIABLE INSTRUMENTS
— Contd.
material alteration denned ....3582
of bill drawn in set 3640
of persons secondarily liable . . . .3577
payment by party secondarily
liable 3578
renunciation of rights by
holder 3579
when instrument is discharged. .3576
dishonor
protest on non-acceptance 3609
recourse against drawers 3608
unaccepted bill must be treated
as dishonored 3607
form and interpretation
ambiguities and omissions, rules
of construction 3474
ante-dating and post-dating 3469
blank date may be filled by
holder 3470
completion of instrument by
holder 3471
date deemed to be true 3468
delivery essential, how made . . . .3473
effect of wrong dating 3470
facts which do not affect val-
idity 3463
forged signature, effect 3480
indorsement by corporation or
infant 3479
instrument payable to cashier. .3499
instrument payable on contin-
gency not negotiable 3461
language of instrument 3467
liability of agent 3477
maturity of sight draft accepted
for honor 3623
negotiable promissory note de-
fined 3641
order is unconditional, al-
though, etc 3460
orders other than for the pay-
ment of money 3462
provisions which do not affec
negotiability 3462
requirements of negotiable in-
struments 3458
signature by agent 3476
signature by procuration 3478
to whose order may be made
payable 3465
unauthorized negotiation of in-
complete instrument 3472
use of assumed name 3475
when payable on demand 3464
when payable to bearer 3466
when payable to order 3465
when payable at a determinable
future time 3461
when payable at bank 3544
when payable, no grace 3542
1406
INDEX TO POLITICAL
Section
NEGOTIABLE INSTRUMENTS
—Cont.l.
when sum payable is a sum cer-
tain 3459
general provisions
application of law 3652
definitions 3648
last day falling on a holiday. . . .3651
law merchant to govern omitted
cases 3653
liability, primary and secondary.3649
name of chapter 3647
non-negotiable written con-
tracts, indorsement 3654
— liability or indorser 3655
reasonable time, how determined. 4650
liabilities of parties
liability of acceptor 3519
— of drawer 3518
— of indorser or bearer paper.. 3524
— of maker 3517
negotiation by agent without in-
dorsement 3526
order of liability of indorsers. .3525
recourse against indorsers after
dishonor 3541
signature in blank deemed in-
dorsement 3520-3521
warranty implied from delivery. 3522
— from indorsement 3523
negotiation and indorsement
by agent without indorsement,
liability 3526
continuation of negotiability. .. .3504
effect of delay 3510
indorsement blank converted into
special 3492
— by several payees 3498
— conditional, effect 3496
— how made 3488
— in representative capacity. .. .3501
— instrument payable to "cash-
ier" 3499
—kinds of 3490
— rmy be struck out by owner,
effect 3505
— misspelled names 3500
— must be of entire instrument. 3489
— presumed by signature in
blank 3520-3521
— qualified, effect and how made. 3495
— restrictive, defined 3493
— restrictive rights under 3494
— special and blank, defined. . .3491
— special liability 3497
negotiation presumed effected be-
fore maturity 3502
presumption as to place of in-
dorsement 3503
re-issue and negotiation 3507
transfer without indorsement. .3506
warranties implied from indorse-
Section
NEGOTIABLE INSTRUMENTS
— Contd.
ment 3523
when effected 3487
notice of dishonor
by agent 3548
by agent to principal 3551
by whom given 3547
excuse for delaying notice ....3570
failure to give notice of non-
acceptance, effect 3574
form and service of notice ....3553
may be given to party or agent. 3554
notice by mail, when deemed
given 3562-3563
notice dispensed with when . . . .3569
notice inures to benefit of all par-
ties 3549-3550
notice of non-payment unneces-
sary, when 3573
notice to drawer not required,
when 3571
notice to indorser not required
when 3572
parties bound by waiver 3567
place to which notice must be
sent 3565
sufficiency of notice 3552
time for giving notice by party
receiving same 3564
to bankrupt 3558
to joint parties 3557
to partners 3556
to personal representative 3555
to whom given 3546
waiver of notice 3566
when to be given 3559
parties residing in different
places 3561
— parties residing in same place. 3560
payment for honor supra
protest
how made 3629
notarial act of honor necessary. 3629
— on what founded •. . .3630
• payer for honor entiled to bill. 3634
payer subrogated to rights of
holder 3632
preference between payers for
honor 3631
refusal to accept payment, ef-
fect 3633
when and by whom made 3628
presentment for payment
day of payment, how deter-
mined 3543
delivery of instrument on pay-
ment 3531
dishonor by non-payment 3540
— recourse against indorsers. . .3541
during banking hours 3532
excuses for delay 3538
AND CIVIL CODES
1407
Section
NEGOTIABLE INSTRUMENTS
— Contd.
how made 3529
instrument payable at bank.... 3544
payment in due course 3545
to acceptor for honor 3625
to drawer, when necessary 3536
to indorser, when necessary. .. .3537
to partners 3534
to personal representative 3533
to several persons liable 3535
when instrument is payable. . . .3542
when made at proper place. . . .3530
when necessary 3527
when to be made 3528
when unnecessary 3539
protest
acceptance for honor 3618-3627
delay, when excusable 3616
form of 3610
for non-acceptance and for non-
payment 3614
must be made, when 3612
of bill dishonored by acceptor for
honor 3627
of bill accepted for honor or
containing reference 3624
of lost bill, by copy 3617
place of 3613
unaccepted foreign bill must be
protested 3609
waiver of protest 3568
when dispensed with 3616
when necessary 3575
where acceptor is bankrupt. . . .3615
who may make 3611
rights of holder
defect in title from fraud, etc.. 3512
defec ive title, burden of proving
bona fides 3516
defenses to negotiable instru-
ments 3515
holder in due course defined. .. .3509
— delay in negotiation 3510
— receiving notice before full
payment 3511
— title and rights 3514
presumption as to holding in due
co rse 3516
qualified acceptance may be re-
fused 3599
recourse against holder after dis-
honor 3608
renunciation of rights, effect. .3579
suit by and payment to holder. 3508
what constitutes notice of in-
firmity 3513
NEGROES
marriages with white persons
prohibited 2614
NEUTER
included in masculine 16
Section
NOMINATIONS
of appointive officers, see Officers
certificates of, time for filing. . . 388
death of nominee 391
declination of 390
names of nominees certified to
county auditor 389
secretary of state to certify
names to county auditor .... 389
by convention
certificate of nomination 383
certified to be filed 384
convention defined 382
credentials of delegates 377
delegate fraudulently elected to
be excluded 379
delegates not to give proxies. . . . 378
vacancies, how filled 391
other than by convention
certificates of nomination, signa-
tures and filing 385, 386
NORMAL SCHOOLS
Albion Normal School 516-532
Lewiston Normal School 500-515
summer normal schools 533-544
NORTH IDAHO INSANE ASY-
LUM
see Insane Asylums
NOTARIES PUBLIC
appointment, bond, commission,
general duties 231-242
NOTES
see Negotiable Instruments
NUISANCE
abatement does not preclude ac-
tion 3661
booms and weirs 873
co. supt. may order abatement
of school nuisance 588
defined 3656
liability of successive owners for
continuing 3660
nothing done under statute
deemed a nuisance 3659
public nuisance
abatement by public officer. . . .3666
— by private person 3667
action by private person 3665
defined 3657
diseased orchards a nuisance. . .1315
not legalized by prescription. . .3662
remedies 3663
private nuisance
abatement, notice required when. 3670
— when allowed 3669
defined 3658
remedies 3668
NULLITY OF MARRIAGE
see Annuiment of Marriage
1408
INDEX TO POLITICAL
Section
NUMBER
singular includes plural . •• 16
OATH
see Affidavit
— Official Oaths
includes affirmation 16
ODD FELLOWS
power to hold property 3014
OFFER OF PERFORMANCE
objection waived if not stated. . .3323
receipt may be required 3322
OFFICERS
see City Officers
— County Officers
— DepuHes
— Official Bonds
— Official Oaths
— Removal of Officers
— Resignations
— Salaries
— Vacancies
see also specific heads e. g. Gov-
ernor; County Auditor; Coun-
ty Treasurer, etc.
abolished offices cease • • • • 7
absence from state prohibited.. 253
accounts subject to public ex-
amination 343
affidavit as to prohibited con-
tracts 259
appointment by governor, regis-
ter of 92
— transmitted to legislature. ... 91
classification 31
commencement of term 32
commissions, form of 265
— governor to commission 264
— signature other than by gov-
ernor 266
contracts with officers prohibited
255-261
election of, when held 348-352
ex-officio officers, signature 340
failure to report, a misdemean-
or 281
governor may require report. ... 90
holding after term 32a
joint authority cons rued 14
legislators disqualified from cer-
tain appointments 251
may issue subpoenas in legisla-
tive election contests 46, 47
nomination, concurrence in by
senate 263
— to be in writing 262
not to deal in scrip 258
not to purchase at official sales. . 256
office hours 339
possession of books and papers. 333
— at achment to compel delivery. 335
proceedings to compel delivery. . 334
qualifications in general 250
records open to inspection 341
OFFICERS— Contd. Section
refusal to make returns to ex-
aminer, a felony 180
reimbursement for premiums
paid for company bonds 2941
reports of 279-281b
residence of state officers 252
salaries of state elective 274
sale of pamphlet publications. .343a
supervision and inspection of
accounts by state examiner. 172-188
supervision by governor 90
suspension of settlement of ac-
count in case of prohibited
contracts 261
suspension on report of exam-
iner 177
tenure of appointee to fill va-
cancy 329
tenure preserved by codes 6
to assist state examiner 178
to be provided with offices 254
to keep account of fees and
moneys 342
vacation of office for insufficiency
of bond 298
— on release of sureties on bond. 309
OFFICIAL BONDS
additional bond, form and effect 299
— does not discharge original . . 300
certified copies of 291
conditions, signatures and sure-
ties ... 288
contribution between sureties on
original and additional bonds 303
county commissioners to fix pen-
alties 1988
custody of 291
defects do not affect liability. . . . 297
discharge of sureties by new
bond 304
examination of bondsmen by
state examiner 173
form, to be joint and several .... 292
insufficiency of sureties, pro-
ceedings 298
liability for duties subsequently
imposed 294
liability for penalties 1982
liability of sureties, extent 293
qualifications and justification of
sureties ...288-290
record by secretary of state .... 95
reimbursement of officers for
premiums paid 2941
release of sureties 306-311
—effect 310, 311
time for filing 282
to be filed and recorded by secre-
tary of state 283
where recorded 285
actions on
actions and judgments against
sureties 290
AND CIVIL CODES
1409
Section
OFFICIAL BONDS— Contd.
lis pendens 314, 315
on original or additional bond. . . 301
— -execution 302
subsequent suits 296
who may bring 295
approval of bonds
by governor 283
indorsed on bond 286
of bonds of coun.y officers 284
to precede filing 287
OFFICIAL OATH
before whom taken 270
by county officer, when and where
taken 271
by deputies 273
form of 268
time of taking 269
where filed 272
who may administer to legisla-
tors 37
OPTION
on contract for sale, notice of
election 3328
— waiver 3328
OPTOMETRY
examination and license. . .1372-1384
ORCHARDS
toll roads not to be laid through 990
ORDINANCES
annexation of territory 2172
application after consolidation of
municipalities 2295
authentication and proof 2238
concurrence of majority required. 2276
effective without mayor's signa-
ture, when 2191
improvement bond ordinances. . .2316
passage of 2275
powers which may be exercised
by 2238
style, publication and when effec-
tive 2274
title, reading and amendment. . .2276
ve o, reading- and amendment. . .2276
veto and reconsideration.. 2191
OSTEOPATHY
examination and license. . .1366-1371
PARENT AND CHILD
see Adoption
— After Born Child
— Custody of Child
— Divorce
— Illegitimacy
— Legitimacy
— Posthumous Child
allowance to parent for support. 2694
liability of parent for neces-
saries 2696
reciprocal duties of support. .. .2695
wages of child 2697
Section
PARKS
for game parks, see Fish and
Game
cities may issue bonds 2315
withdrawal of state lands for .1639
PARTITION FENCES
see Fences
PARTNERSHIP
see Mining Partnership
— Special Partnership
PASSENGERS
ejection for non-payment of fare 2822
railroads to provide accommoda-
tions 2810, 2812
PATENT, LETTERS
may be recorded 3151
PAUPERS
see County Poor
PEDDLERS
license and regulation ....1528-1533
PENSIONERS
fees not to be charged to ....2169a
PERCH
standard of stone masonry ....1545
PERFORMANCE
demand by pledgee, when neces-
sary 3430
does not execute conditional con-
veyance 3117
PERSON
includes corporation 16
PERSONAL PROPERTY
by what law governed 3095
definition 3057
— for taxation 1646
includes what 16
PESTS
allowance of claim 1942
board of control 1941
extermination, tax levy 1940
PHARMACY
see Druggist
license and regulation ....1385-1400
PIONEER ASSOCIATION
power to hold property 3014
PLATS
acknowledgment and record . .3014
certification, donation deed and
acceptance by municipality . . .2301
continuation of existing streets. .2305
execution by assessor 2312
execution by recorder 2311
existing plats validated 2313
of U. S. survey as evidence . . . .2092
penalty for selling unplatted lots 2314
platting af er vacation 2310
requirements of plats 2300
survey stakes and monuments. . .2302
to show government corners . .2303
vacation 2306-2309
1410
INDEX TO POLITICAL
Section
PLEDGE
collection of securities pledged. . 3435
denned 3421
delivery essential to validity . . . 3422
foreclosure by pledgee 1349
increase of property pledged . . 3423
lienor may pledge property . . . 3424
misrepresentation of value, fur-
ther pledge 3428
pledge holder denned 3426
— musi enforce rights 3427
sale, before maturity 3438
— demand of performance 3430
— must be public, how conducted 3434
— notice of 3431
— on demand of pledgor 3436
— pledgee cannot purchase .... 3440
— surplus paid pledgor 3437
—to satisfy pledge 3429
— waiver of demand 3433
— waiver of notice 3432
secret owner cannot defeat
pledge 3425
PLURAL
includes singular 16
POISON
restrictions on sales 1398
POLICE COURT
see Police Judge
appeals, how taken 2216
attendance and fees of witnesses 2208
breach of recognizance 2207
complaint and warrant 2203
continuance, security for appear-
ance 2206
discharge of defendant 2212
hearing and determination of
complaints 2205
judgment and punishment ....2210
jurisdiction 2202
jury trial 2209
limitations of prosecutions ....2221
recovery of fines by suit 2219
rules governing proceedings . . . 2213
summoning witnesses on continu-
ance 2214
to be open every day 2215
transfer of matters exceeding
jurisdiction 2207
use of county jail 2220
working out fine 2211
POLICE JUDGE
see Police Court
compensation and fees 2188
is conservator of peace 2215
may punish for contempt 2218
vacancy in office, how filled . . . .2217
village clerk as police judge . . . .2232
POLICEMEN
may make arrests 2200
powers of village police 2229
POLICIES OF INSURANCE
see Insurance
Section
POLL LISTS
see Elections
POLL TAX
for road poll tax, see Road
Taxes
amount of tax 1842
apportionment of proceeds .... 1862
— to current expense funds . . . 1793
— to good road districts 1058
collection from real property . . 1848
credit for unused receipts .... 1857
delivery of receipt to purchaser
at sale 1853
disposition of unusued receipts. .1856
employers may deduct tax from
wages 1852
erasure of names from book .... 1861
liability of collector for 1859
liability of employers 1851
militiamen exempt 703
monthly settlement with county
auditor 1855
official receipts must be used ..1847
persons subject to tax 1842
poll tax book 1858
procurement of names from em-
ployers 1850
receipt as evidence of payment. .1854
receipts, charge to collector .... 1846
— issuance to collector 1846
— preparation and signature . . . 1845
return of $2.00 receipts to aud-
itor 1844
— unused $2.50 receipts 1860
sale of personalty 1849
seizure of personal property . . 1848
POOR
see County Poor
POSSIBILITY
not deemed an interest 3066
not transferable 3097
POSTHUMOUS CHILD
birth defeats future interests .3068
may take future estate 3064
POWER
of revocation, when deemed exe-
cuted 3166-3167
POWER OF APPOINTMENT
does not prevent vesting of fu-
ture estate 3077
POWER OF ATTORNEY
acknowledgment by attorney ...3132
conveyance by attorney 3110
execution by married woman . .3109
power to mortgage, requirements 3395
revocation 3162
to be recorded before convey-
ance by attorney 3154
PRAIRIE FIRES
see Forest Fires
PRECINCT OFFICERS
enumera ion 1974
AND CIVIL CODES
1411
Section
PRECINCTS
see Election Precincts
PREDATORY ANIMALS
extermination • 1197-1202
PRESIDENTIAL ELECTORS
election and meeting 459-465
PRIMARY ELECTIONS
application of law 381
ballots 374
canvass of result 377
challenge and examination of
voters 376
credentials of delegates elected.. 377
definition 371
expenses of holding 381
fraud, elrect of 379
judges and clerks, election .... 374
—oath 376
notice, publication and posting. . 372
penalties 380
persons entitled to vote 375-a
time for holding 373
use of check lists and ballot
boxes 375
PRINTING
blanks for state auditor 108
county printing to be done in
county 1475
excessive charges for public
printing 1476
of supreme court reports . . . .227-229
penalty for letting public print-
ing outside of state or county
1476-a
rates for official notices 1477
state printing to be done in the
state 1474
"writing" includes ' 16
PRIVATE NUISANCE
see Nuisances
PRIVATE ROADS
see Roads
PROBATE JUDGE
bond 1987
duties 1989
election, when held 348
fees 2123
office to be provided 1990
salary 2118
to keep office at county seat . . . 1981
to reside at county seat 1984
vacancies, how filled 324
PROMISE OF MARRIAGE
see Breach of Promise
release for unchastity 2618
PROMISSORY NOTE
see Negotiable Instruments
PROOF OF INSTRUMENTS
see Acknowledgment
action to prove 3144
authoritv of officers 3142
by proof of handwriting ..3139-3140
Section
PROOF OF INSTRUMENTS— Contd.
by whom made 3136
certificate of proof 3141
— correction of defective 3143
identity of grantor to be proved 3138
— of witness to be proved ....3137
judgment of proof authorizes
record 3145
PROPERTY
see Community Property
— Personal Property
— Real Property
— Separate Property
— Unclaimed Property
for transfers of property, see
Conveyances
— Sales
for distribution after divorce, see
Divorce
for interests in property, see
references under "Interests in
Property" and "Estates"
defined for taxation 1646
includes real and personal .... 16
interests in common, how created 3059
who may own 3058
PROSECUTING ATTORNEY
appointment of special prose-
cutor 2081
bond 1987
direction by governor 90
duties 2082
election, when held 348
prohibitions against certain acts 2084
qualifications 2080
receipts for money collected .... 2083
salary 2118
to keep office at county seat . . . .1981
to report to attorney general . . . 142
to reside at county seat 1984
PROTEST
see Negotiable Instruments
notaries may make 236
of notary as evidence 237
PROVISIONS
implied warranty on sale 3327
PROXY
to vote at corporate meetings. . .2735
PUBLIC HEALTH
county board
cognizance of nuisances 1097
compensation of health officer ..1098
expenses, how paid 1113
how constituted 1095, 1109
may make rules 1095, 1110
meetings, rules and reports .... 1096
neglec; of health officer a mis-
demeanor 1098
records and reports of county
physician 1098
to quarantine infected localities 1112
1412
INDEX TO POLITICAL
Section
PUBLIC HEALTH— Contd.
crimes
exposure of infected persons,
articles or premises 1101
neglect of health officer 1098
neglect to record vital statistics. .1093
neglect to report sore eyes in in-
fants 1108
physicians neglecting to report
and quarantine infected prem-
ises 1108
refusal to disinfect house 1102
violation of rules of state board. 1086
local boards
cognizance of nuisances 1097
compensation of health officer ..1098
how constituted 1095
meetings, rules and reports .... 1096
neglect of health officer a misde-
meanor 1098
records and reports of health
officers 1098
prevention and suppression
of disease
contagious diseased persons ex-
cluded from insane asylum . . 767
cremation or burial of body.... 1106
disinfection of houses and arti-
cles 1102-1103
hospitals for infectious diseases 1105
physicians to report and quaran-
tine infected premises 1111
— to report certain diseases . . . 1099
prevention of disease in schools
663-666
— diseased persons excluded 664, 1104
— disinfection of text books . . . 665
— notice to be given to trustees. . 663
quarantine of cities and counties 1107
— of infected houses 1100
recovery of expense of maintain-
ing patient 1105
report of sore eyes in infants. . .1108
sale of diseased meat or milk . .1211
unhealthy nuisances 1097
state board
adoption of sanitary rules 1086
compensation of members 1084
constitution of board 1080
investigation of special diseases 1081
meetings 1081
powers and duties 1085
report on institutions 1085
secretary, election and qualifica-
tions 1082
— is registrar of vital statistics 1094
— records and duties 1083
— salary and expenses 1084
to determine conflicting jurisdic-
tion of local boards 1097
Section
PUBLIC HEALTH— Contd.
vital statistics
neglect of duties a misdemeanor 1093
register of marriages, births and
deaths 1088-1090
— abstracts certified to secretary
of state board 1091
reports to board of health .... 1087
secre ary of state board is regis-
trar 1094
PUBLIC INSTITUTIONS
see Academy of Idaho
— Deaf, Dumb and Blind
— Fish Hatcheries
— Or and Army Headquarters
— Historical Society
— Industrial Training School
— Insane Asylums
— Law Libraries
— Normal Schools
— Penitentiary
— Soldiers' Home
— University of Idaho
purchase of supplies for . .863-866
PUBLIC LANDS
see Board of Land Commissioners
— Carey Act Lands
— Possessory Actions
— State Lands
— Town Sites
PUBLIC MONEYS
see State Treasurer and the
specific funds, e. g. General
Fund; Fish and Game Fund,
etc.
deposit of state funds 127-136
making profit by treasurer a
felony 132
to be kept in vault 118a
state treasurer to keep account. . 117
treasurer not to receive without
auditor's certificate 118
PUBLIC NUISANCE
see Nuisance
PUBLIC PRINTING
see Printing
PUBLIC RECORDS
see Public Writings
— Recorder
— Records
open to inspection 341
PUBLIC SCHOOLS
see Schools
QUALITY
warranty of marks 3326
— of provisions 3327
— on sale by sample 3325
QUANTITY
warranty of marks 3326
QUARANTINE
by county board of health 1112
AND CIVIL CODES
1413
Section
QUARANTINE — Contd.
of range horses and cattle ....1182
of lambing sheep 1179
of cities and counties 1107
of diseased fruit orchards 1316
of infected houses 1100
governor may order quarantine
against infected localities ...1160
governor may prohibit importa-
tion from diseased localities. .1184
of imported sheep 1185
physician to quarantine infected
premises 1112
veterinarian or inspectors to
quarantine and hip diseased
animals 1176
ve erinary surgeon to quaran-
tine diseased animals 1166
QUARTZ MINES
see Mines
— Mining Claims
reservoirs to be inclosed against
stock 1276, 1277
RAILROAD CORPORATIONS
see Railroads
action for damages for killing
stock 2817-2818
altering location 2804
articles of incorporation 2715
bonds, issuance of 2794
— sinking fund 2795
bridging navigable streams ...2798
capital required before filing
articles 2717
consolidations, sales and leases. .2800
crossings and cattle guards ...2816
directors, how elected 2793
— quorum and executive commit-
tee 2728
extensions and branches 2799
extensions into the state 2801
fences to be erected and main-
tained 2814-2815
liability for killing stock . .2814-2816
map and profile to be filed . . . .2803
powers, enumeration 2796
— may deal in securities of other
lines 2797
time for commencing and com-
pleting construction 2805
to file acceptance of constitution 2802
RAILROADS
see Railroad Corporations
accommodations for passengers
and freight 2810
— for passengers to be sufficient 2812
action for damages for killing
stock 2817
— attorney's fees 2818
bell and whistle to be sounded. .2821
book of descriptions of stock
killed . 2819
care of right of way 1610
Section
RAILROADS — Contd.
checking baggage 2809
claim for damages for killing
stock 2817
conditional sale of equipment..
2827-2829
crossing railroads and highways 2808
crossings and intersections ...2806
crossings with highways 931
ejection of passengers 2822
killing stock, disposal of car-
cass 2820
liability for injuring stock 2814-2815
printed rules and regulations ..2813
refusal to accept passengers or
freight, penalty 2811
report of delayed trains ..2823-2826
rights of way over state lands . . 1637
trains to be run on schedule. . .2810
use of streets and highways . . .2807
— consent of authorities 881
wires crossing track, erection..
1927-1929
REAL PROPERTY
for interests in, see Alternative
Interests; Conditional Limita-
tions; Contingent Interests;
Con'ingent Remainders; Co-
tenants; Future Estates; Fu-
ture Interests; Homesteads;
Landlord and Tenant; Life
Estate; Possibility; Remain-
ders; Reversions; Tenancy at
Will
for liens upon, see Mechanics'
Liens; Mortgages; Vendee's
Liens; Vendor's Lien
for transfers, see Acknowledg-
ment; Conveyance; Fraudulent
Conveyances; Proof of Instru-
ments; Recording Transfers
action for possession after right
of entry 3082
definition 3056
— for taxation 1646
includes what 16
right of aliens to acquire 2609
toll roads, bridge and ferry fran-
chises deemed real property. .1041
RECEIPTS
for license receipts, see Licenses;
for tax receipts, see Poll Taxes;
Revenue; Road Taxes
debtor may demand on pay-
ment 3322
RECEPTION BOOK
recorder to keep 2072
RECONVEYANCE
on failure of condition subse-
quent 3116
RECORDER
see Recording Transfers
bond 1987
1414
INDEX TO POLITICAL
Section
RECORDER — Con'd.
— filing and recording 2060
deputies, appointment, and com-
pensation 2119
— appointment for mining* dis-
trict 3215
election of, when held 348
liability for neglect 2076
salary 2118
to keep office at county seat . . . .1981
to reside at county seat 1984
fees
for certified copy of marriage,
birth or death record 1092
for duties concerning estrays. .1299
for filing chattel mortgage ....3409
for issuing marriage license . .2639
for notifying owner of stray
sheep 1235
for recording affidavit of labor
on lode claim 3211
— mining location notice 3217
— dentist's license 1363
— optometric certificates 1378
schedule of fees 2124
to be prepaid 2077
instruments to be recorded
abandonment of toll road 1000
affidavit of publication of certifi-
cate of special partners 3343
bonds of county officers 284
brands on live stock 1230
certificates of sale 2065
— of completion of toll road .... 996
— of special partners 3339
declaration of homestead. .3200, 3204
dentist's license 1363
independent defeasance of mort-
gage ' 3404
instruments enumerated 2062
inventory of wife's separate
property 2681
judgments affecting land 2066
leases of livestock 1263
lis pendens in action on official
bond 315
marriage settlements 2691
mining location notice 3209
— notices transmitted by deputy. 3218
— of placer claim 3222
— to transmit notice to deputy. .3219
mining partnership contracts. .
3371-3372
notice of dissolution of special
partnership 3359
optometric certificates 1378
order annexing land to irrigation
district .2432
— excluding land from irrigation
district . ... 2437
— granting application for toll
road 982
Section
RECORDER— Contd.
— organizing irrigation districts. 2377
osteopath's certificate 1369
physician's licenses 1349
returns of marriage licenses . .2635
sales of branded animals 1236
statement of employers 1447
survey of toll road 984, 989
tax deed executed to county . . . .1755
title papers to roads 930
transfer of brand 1231
transfer tax receipts 1895
manner of recording
certificate of reception 2073
failure to properly record instru-
ment, liability 2074
indexes to be kept 2063
indorsement of fees .3155
— of receipt of instrument 2069, 2070
—how kept 2068
number to be stamped on instru-
ment 2071
reception book, how kept 2072
records open to inspection 2078
RECORDING TRANSFERS
see Recorder
acknowledgment necessary to
authorize record 3153
assignment of mortgage 3396
— not notice to mortgagor 3397
books for grants and mortgages 3158
discharge of mortgage 3401
fees to be indorsed on instru-
ment .#. .3155
informalities do not affect prior
instruments 3148
instruments executed prior to
code 3147
judgments affecting title 3150
judgment proving instrument
authorizes record 3145
mortgage of real property .... 3405
notice of location 3152
of independent defeasance ....3404
place of record 3156
power to be recorded before con-
veyance by attorney 3154
prior instruments not affected. .3146
record as notice .3159
revocation of power of attorney. 3162
United States patents .3151
unrecorded conveyance void
against whom 3160
— valid between parties 3163
what may be recorded 3149
when deemed recorded 3157
REDEMPTION
restraint of right void 3382
RE-ENTRY
action after right accrued ....3082
after termination of tenancy at
will 3079
AND CIVIL CODES
1415
Section
RE-ENTRY— Contd.
right of, when exercisable 3080
right transferable 3098
REFORM SCHOOL
see Industrial Training School
REGISTER STATE LAND
BOARD
see Board of Land Commission-
ers
REGISTRARS
see Registration
of municipal elections, see Cities
and Villages
appointment and qualification . . 393
compensation 401
oath of office 395
to notify clerk of commission-
ers of tickets required 398
to post notices of election 355
REGISTRATION
see Registrars
for municipal elections, see Cities
and Villages
books and supplies 394
examination of prostitutes .... 361
is evidence of right to vote .... 397
mandate to compel 400
notice of 394, 396
preparation of papers 397
time and manner of registra-
tion 396
transfer of certificates 399
RELIGIOUS, SOCIAL AND BE-
NEVOLENT CORPORATIONS
see Church Corporations
regulations governing ....3011-3017
RELIGIOUS TEST
prohibited in academy 557
— in industrial training school. 820
— in institutions of learning. .3035
— in university 490
— in Lewiston Normal school . . . 514
REMAINDERS
conveyance of, attornment un-
necessary 3118
limitation on successive life es-
tates 3074
— to heirs of life tenant 3076
owner may recover for injury
by life tenant 3088
successive remainders in fee. .3072
RENT
see Landlord and Tenant
REPEAL
general repeal of existing law.. 17
of acts creating offices 7
of general laws 19
of repealing act, effect 73
of penal law, effect 74
past offenses, unaffected 20
Section
REPORTER
of supreme court, see Reports,
Supreme Court
REPORTS
of supreme court, see Reports,
Supreme Court
in particular proceedings see
specific heads e. g. Reference;
Roads, etc.
failure of officers to make a mis-
demeanor 281
of sales of pamphlet publica-
tions 303a
subpoenas for officers failing to
make 281a
REPORTS, SUPREME COURT
printing and distribution ...222-229
REPRESENTATIVE IN CON-
GRESS
election of, when held 349
vacancy, election to fill 326
REPRESENTATIVES
see House of Representatives
— Legislature
election of, when held 349
term of office 34
RESCISSION
of contract by infant, see Infants
— by insane person, see Insane
Person
RESERVOIR
enclosure against stock.. 1276, 1277
reservation of sites on state
lands 1636
rights of way over state lands. .1635
RESIGNATION
of officers, how made 318
RESOLUTION (OF CITY COUN-
CIL)
see Joint Resolutions
concurrence of majority re-
quired ..2276
of organization of village into
city 2175
passage of 2275
REVENUE
see Licenses
— Poll Taxes
— Road Taxes
— Transfer Tax
assessment bit drainage districts,
see Drainage Districts
— by irrigation districts, see Irri-
gation Districts
levy of municipal taxes, see
Cities and Villages
levies by school districts, see
Schools; Independent School
Districts; School District
Bonds
1416
INDEX TO POLITICAL
Section
REVENUE— Contd.
assessment
abbreviations may be used ....1787
absent and unknown owners ....
1689, 1690
abstract of .assessment 1701
assessment to agents, etc 1670
assessor may examine witnesses. 1687
bank stock 1672
boats and small crafts 1678
concsaied property 1680
corporate and firm property . . 1673
corporate s'-ock not individually
assessed 1671
debts deducted from credits . . .
1653, 1683
ditches and toll roads, how as-
sessed 1656
entry of delayed assessments . . . 1698
ferries and toll bridges 1675
informalities not fatal 1788
lands and improvements to be
assessed separately 1652
livestock, amount of tax 1662
— assessment in different coun-
ties 1658
— evasion by owner 1667
— how assessed 1657
— notice of entry into county ..1659
— transit through state 1668
mis'rake in name immaterial . . . .1653
omitted property 1681
persons to whom assessed 1653
place of assessment 1653
property in litigation 1679
property in other county 1691
property in transit 1669
property of decedent's estate . . 1674
property sold to county 1754
property to be assessed at full
cash value 1652
real estate, how assessed 1654
second description of real estate
unnecessary 1655
statement by tax payer 1682
— affidavi : to 1684
— assessor may fill out 1686
— blanks to be furnished 1684
—form 1685
— refusal to furnish 1688
vessels 1676, 1677
assessment book and roll
assessment book, contents 1718
auditor to verify statements. .. 1730
certificate and affidavit of coun-
ty auditor 1721
completion of assessment roll ..1727
corrections and changes 1720
correction of errors 1784
delivery to tax collector 1724
entry of taxes accruing on prop-
erty sold to county 1755
extension of municipal and
Section
REVENUE — Contd.
school taxes 1721
failure of assessor to swear to
assessment roll 1727
failure to complete book, pen-
alty 1729
form of book 1719
inspection by public 1728
printing of assessment rolls . . . .1726
statement prepared from book. 1722
statement transmitted to state
auditor 1723
taxes charged to collector 1725
assessment of telegraph, tel-
ephone and railroad com-
panies
apportionment among counties. .1714
apportionment by county auditor. 1715
assessment in absence of list. .
1712, 1713
company to furnish list 1713
meeting for assessment 1711
state board of equalization to
make assessment 1710
transmission of statement to
county aulitor 1715
valuation, how determined .... 1714
collection of taxes
action to recover livestock
taxes 1666
county attorney to bring person-
al action 1820
date of delinquency, penalty ..1737
deficiency due on livestock 1665
delinquent list and assessment
roll delivered to auditor 1739
delinquent list, contents 1740
distraint of migratory stock .... 1663
evidence in action for taxes .... 1821
informalities not fatal 1788
not to be collected between cer-
tain dates 1738
publication of delinquent notice. .
1731, 1732
rebate of excess tax paid on
livestock 1664
definitions
railroad track and rolling stock. 1710
terms defined 1646
equalization by county board
abstract of assessment 1701
attendance of assessor 1697
attendance of recorder 1698
change in assessment, notice to
owner 1699
correction of valuations 1693
county commissioners to equalize
taxes 1692
equalization of taxes on mining
profits 1871
general duties of board 1692
AND CIVIL CODES
1417
Section
REVENUE— Contd.
meeting of board 1692
notice of equalization 1728
record of correction 1700
reduction in valuation, applica-
tion 1694
—examination of applicant .... 1695
— examination of witnesses .... 1696
second meeting of board 1701
subpoena for witnesses 1701
equalization by state board
adjournments, subpoenas for
abstracts 1704
attendance of assessor 1707
board to prescribe rules 1708
completion of work by board ..1716
constitution of board 1702
county auditor to make required
changes 1707
determination of tax due state.. 1716
equalization of taxes on mining
profits 1871
equalization of valuations 1706
meetings of board 1703
— January meeting with assess-
sors 1706
record of proceedings 1709
transmission of statement to
county auditor 1707
levy and lien of taxes
extension of municipal and
school levies 1721
lien of real property taxes ....1651
lien of taxes on lives. ock 1666
levy for state tax 1648
levy of county tax 1647
liability of county for state tax. .1648
personal taxes a lien on realty. .1650
state ad valorem tax how paid. 1647
tax has effect of judgment ....1649
tax lien has effect of execu ion. 1649
miscellaneous provisions
apportionment of taxes to funds 1792
assessment and collection of mu-
nicipal and school district
taxes 1804
assessor to give bond to cities
and school districts 1807
assessor to procure abstract of
public lands 1811
books open to inspection 1824
cancelling and refunding taxes. 1791
compromise of doubtful taxes.. 1791
county attorney to sue assessor
1816, 1819
delinquency of city and school
taxes 1805
duties of assessor 1809
liability of assessor for neglect 1815
— for property escaping taxa-
tion 1814
— for uncollected taxes 1813
Section
REVENUE— Contd.
officers to perform their own du-
ties 1808
plat book of assessor 1812
poor tax, how collected and ap-
portioned 1794
premium for collecting city and
school taxes 1806
prosecution of delinquent offi-
cials 1826, 1827
removal of officers for neglect. .1823
state auditor may examine
books 1825
supplies for assessor 1810
payment of taxes
entry in book, receipt 1734
not to be received between cer-
tain dates 1738
rebate of excess tax paid on mi-
gratory livestock 1660
receipts to be supplied by state
auditor 1735
taxes due from estates 1736
taxes on migratory livestock .... 1659
taxes payable in money 1733
property subject to taxation
double taxation prohibited .... 1643
exemptions 1644
livestock in transit through state
1668
property subject in general ....1643
purchaser's interest in state
lands 1586
transient teams not taxable .... 1645
sales of personal property
bill of sale 1781
disposition of excess proceeds. .1782
disposition of unsold property . .1783
fees for sale 1780
notice of sale 1779
sale to be public 1778
seizure by tax collector ......1777
sale of real property
abbreviation and figures per-
mitted 1787
addition of cost of publication. .1748
amount of property to be sold.. 1753
assessment book and delinquent
list as evidence 1767
assignment of certificates held by
county 1774, 1775
— entry of assignment 1776
certificate of sale 1759
— entry of 1761
— signature and filing 1760
collection of cost of publication 1749
commencement of sale 1750
deed as conveyance 1766
deed as evidence 1764, 1765
execution of deed to county . . . .1755
issuance of deed 1763
1418
INDEX TO POLITICAL
Section
REVENUE— Contd.
lien of purchaser 1762
list of sales certified to cities,
etc., 1762
mistake in ownership not fatal. .1789
notice appended to delinquent
list 1744
period of publication 1745
postponement and adjourn-
ment 1751
protest for invalidity of assess-
ment 1790
publication of delinquent list. .1743
—affidavit of 1748
— amendments and corrections. .
1785, 1786
— to designate time and place . .1746
refusal of purchaser to pay . . . 1758
re-sale , 1757
rights of cities, etc., on delivery
of deed to county 1756
redemption, by certificate holder. 1772
— from purchase by county . . . 1773
— from sale to county 1754
— how made 1771
— notice to certificate holder . . . 1776
— time for 1770
sales of partial tracts 1752
sales to county 1752
— subsequent assessment 1754
time and place of sale 1747
settlements of officers
addition of penalty to delinquent
list 1742
annual settlement of revenue
officers 1822
comparison of delinquent lists
with assessment book 1741
— annual comparison 1768
county treasurer to file copy of
auditor's report 1803
— to settle with state officers. . .1795
en:ries by state auditor on
county auditor's report 1802
final settlement of auditor and
collector 1769
liability of auditor for neglect to
report 1801
— of county treasurer for neg-
lect 1798
neglect of assessor to make set-
tlements 1818
quar erly settlements of county
treasurer with state officers . . 1796
report by county auditor. . 1799, 1800
taxation of mines
assessment book 1870
assessment without statement. .1869
collection of tax 1872
equalization of assessments ....1871
examination of books and ac-
counts 1868
Section
REVENUE— Contd.
false statement of profits, pen-
alty 1868
general duties of officers 1871
net profits defined 1864
statement of net profits. . .1865, 1866
valuation of mines for taxation . . 1863
REVERSION
conveyance of, attornment unnec-
essary 3118
owner may recover for injury
by life tenant 3088
REVOCATION
of wills, see Wills
of power of attorney 3162
power of, when deemed exe-
cuted 3166, 3167
ROAD DISTRICT
see Contract Road Districts
— Good Road Districts
cities and villages are districts. 893
creation and alteration 883
special road tax in district. .901-906
ROAD OVERSEERS
bond and oath 884
compensation 885
— for inspecting toll roads ....1012
election 884
in cities and villages 893
penalty for failure to report
and settle for money collected. 915
removal from office 884
duties relating to road taxes
to add omitted names to road poll
tax list 899
to give receipts for labor un-
der special tax 904
— for excess labor under spe-
cial tax 906
to give notice to perform labor
under special tax 903
to list persons liable to road poll
tax 894
to require labor or collect com-
mutation fee 898
duties relating to toll roads
to complain to county attorney,
when " . 1011
to examine roads 1008
to give notice of defects 1010
to inspect road on completion . . . 996
miscellaneous duties
charge of bridges 936
duties in general 885
reports as to road poll tax. .912, 913
reports on bridges 942
settlements for money received . . .914
to collect penalties 958
to post notices on bridges .... 956
to remove encroachments . .943-947
— fences from roads 932
AND CIVIL CODES
1419
Section
ROAD OVERSEERS— Contd.
to repair ditches and culverts. . 952
to tender award of damages to
non-consenting land owner. . 925
ROAD TAXES
apportionment to good road dis-
tricts 1058
county commissioners to levy . . . 882
— to levy property tax 896
levy of property tax 900
militiamen exempt 703
poll taxes
acceptance of excuse no exemp-
tion 911
amount of tax 894
collec'ion by road overseer .... 884
— in contract districts 892
commissioners to provide blank
receipts 897
day's labor, idleness, substitutes. 909
delinquency 910
employers liable for employees'
tax _ 908
overseer to list persons liable. . 895
— to add omitted names to list. . . 899
— to require labor or collect com-
mutation fee 898
per capital tax in contract dis-
tricts 894
reports of overseer 912, 913
seizure and sale of delinquent's
property 866
settlements of road overseer . . . 914
work to be done in district .... 907
special taxes
collec'ion of delinquent 905
duties of auditor 902
excess labor 906
for construction or repair of
roads and bridges 937
funds realized, how applied .... 905
levy of 901
notice to perform labor in lieu of 903
receipts for labor performed. . 904
ROADS
see Bridges
— Contract Road Districts
— Good Road Districts
— Highway Commission
— Road Districts
— Road Fund
— Road Overseers
— Road Taxes
— Toll Bridges and Ferries
— Toll Roads
abandonment as highways 876
abutter may construct sidewalks 879
— may plant trees 880
become highways when 875
bridges and culverts over ditches 951
bridges and culverts, repair by
overseer 952
Section
ROADS — Contd.
conveyance of land bounded by. 3119
duties of county commissioners. 882
gates, penalty for opening .... 949
highways defined 874
inspection by commissioners. . .822a
ownership of fee, presumption. .3091
public acquires only easement.. 878
record of highway proceedings. 877
rights of way over state lands . . 1637
special tax for repair or con-
struction 937
trees belong to land owner 878
when roads become highways . . . 874
laying out, altering and dis-
continuing
approval of viewers' report .... 925
award of damages 925
awards payable from road fund. 927
bond for costs 918
— for expense of survey 935
condemnation of right of way . . . 926
crossings with railroads 931
hearing on viewers' report .... 924
passageways for stock 961
petition for road 916
— contents 917
private roads, how established . . 929
record of title papers 930
removal of fences 932
restrictions on line of roads... 922
turning roads across private
lands 933
viewers, appointment 919
— compensation 923
— dispensed with when 934
— report 921
width of roads 928
— duties and oath 920
— across streams 960
leasing roads
advertisement for bids 965
bond to accompany bids 966
— qualifications of sureties .... 968
commissioners may lease roads. 964
cancellation and forfeiture 974
conditions of lease 978
condition of road 969
consideration of bids 977
contents of order and bid 976
contract of lease and bond .... 967
evasion of toll 971
exemptions from toll 973
liability to labor not discharged. 979
liability to toll 975
rates of toll 971
road deemed a county road .... 972
toll gates 970
obstructions and injuries
damages by livestock 962
encroachments, abatement by
overseer 947
1420
INDEX TO POLITICAL
Section
ROADS — Contd.
— abatement by action 946
— notice to remove 944
— penalty for non-removal 945
— to be removed 943
fallen trees, removal 954
felling trees on highway 955
gates, when allowable 948
injury to guidepos; 953
— to shade trees 957
obstruction or injury, penalty. . 950
— by water works prohibited. . . .2841
penalties payable to road fund. 958
use of roads
by electric power companies. . .2837
by telegraph and telephone com-
panies 2833
by toll bridges 1032
by water and canal companies . . 2840
SALARIES
of municipal officers not to be
changed during term 2280
of state officers, when payable . . 276
when title is contested 277
SALES
under chattel mortgage, see
Chattel Mortgages
of real 'property generally, see
Conveyances and references
there given
on state lands, see State Lands
conditional sale of railroad
equipment 2827-2829
delivery, where made 3329
expense of transportation 3330
lien of seller for purchase price. 3444
notice of election under option. .3328
of livestock by brand 1236
record of lumber sale 1503
seller as depository 3331
warranty in sale by sample . . . .3325
— of provisions 3327
— of quality and quantity 3326
— of title to personal property. .3324
SALES IN BULK
regulation of 3332-3335
SAMPLE
warranty in sale by 3325
SATISFACTION
of chattel mortgages, see Chattel
Mortgages
of judgment, see Judgment
of hens, see Liens
of mor gages, see Mortgages
SAVINGS BANKS
see Banks and Banking
SCHOOL DISTRICT BONDS
independent district bonds. . .659-661
issuance and sale 642-650
SCHOOLS
see Academy of Idaho
Section
SCHOOLS— Contd.
— Board of Education
— County Superintendent
— Industrial Training School
— Normal Schools
— School District Bonds
— School Fund
— Superintendent of Public In-
struction
— Teachers' Institutes
— Text Books
— University of Idaho
census of school children 625
compulsory attendance at district
schools 632
— at government schools ....633-637
conduct of school
adjournment for teachers' insti-
tutes 640
course of study prescribed by
state superintendent 567
eighth grade examinations .... 669
inspection by state superintend-
ent 571
kindergartens, establishment. . . . 671
sectarian and partisan instruc-
tion forbidden 668
school year and school month . . . 667
visitation by county superintend-
ent 586
districts and trustees
action on change in boundaries. . 617
appointment of trustees for new
districts 598
attendance of non-resident pu-
pils 627
clerk is cus.odian of text books. . 581
— records of 625
— to keep account of text books. 580
— to take census 625
control of trustees over property. 625
county superintendent may order
repair of property 588
districts are corporations,
powers 614
election of trustees 622
employment and discharge of
teachers 625
erection and removal of school
houses 625
establishment of libraries 676
issuance of bonds 642-650
joint districts, formation 618
lapsed districts 620
meetings of trustees 624
new districts and changing
boundaries 615
notice of proposed change in dis-
trict 616
punishment of insubordinate
children 625
pupils may attend schools in
other districts 615
AND CIVIL CODES
1421
Section
SCHOOLS — Contd.
— high schools in other districts. 625
report of trustees 628
requisition for text books 579
school library 625
special tax levy, election 622
trustees and officers 621
trustees to qualify 626
— may invest surplus money . . . 613
— may order deficiency warrants. 609
— not to be interested in con-
tracts 625
— to exclude diseased pupils .... 664
— to furnish list of school chil-
dren 632
— to furnish teacher's register
and blank report 629
— to investigate child labor .... 1473
— to provide fire escapes, when. .1552
— to provide flag 626
vacancies in trustees, how filled. 598
finances
accounts of county superinten-
dent 607
accounts of county treasurer
with school districts 606
apportionment by county super-
intendent 605
— for pupils attending high
schools in other districts .... 625
— for new district 619
assessment and collection of spe-
cial taxes 623
countersigning orders for war-
rants 610
county auditor to draw warrants. 608
county school taxes 603
county superintendent to coun-
tersign warrants 607
deficiency warrants for expenses. 609
distribution of state school
money 604
interest on unpaid warrants .... 612
investment of surplus money . . 613
issuance of warrants 611
levy of tax in lapsed districts.. 620
voting special taxes 622
prevention of disease
exclusion of persons exposed to
disease 1104
precautions against disease. .663-666
teachers
certificates not to be granted to
aliens 594
county certificates 591
— grades 592
— records of 596
— revocation 59
— to normal and college gradu-
ates 593
diplomas equivalent to teaching
experience 562
Section
SCHOOLS— Contd.
employment and discharge 625
examinations by county superin-
tendent 590
— expenses of 599
— questions prepared by state
superintendent 568
fees for state certificates and
diplomas 561
general duties 630
monthly meetings with county
superintendent 585
register and report 629
state certificates and diplomas. . 561
— revocation of 564
suspension of pupils 630
teachers without certificates not
to receive pay 631
to attend institutes 639
to report children failing to at-
tend school 632
university graduates entitled to
certificates F
SCRIP
officers not to deal in 258
SECRETARY OF STATE
bond 101
election of, when held 349
expenses 274
temporary inability, acting offi-
cer 332
to reside and keep office at Boise 252
vacancy, who to take possession. 330
fees
for commission of commissioner
of deeds 249
for duplicate notary's certificate. 235
for filing articles of water users'
associations 2842
for notarial commission 233
for recording conditional sale of
railroad equipment 2828
— labels and trade marks 1451
schedule of fees 99, 100
SECRET FRATERNAL ASSOCI-
ATIONS
see Fraternal Insurance Societies
SECURITY
see Bail
— Bonds
— Liens
—Mortgages
— Pledge
— Sureties
assignment of debt carries secu-
rity 3398
defined in county depository law. 2017
— in state depository law 130
deposit to secure county funds. .2017
— to secure state funds ....127-136
for payment of alimony 2665
1422
INDEX TO POLITICAL
Section
SENATE
see Legislature
— Senators
concurrence in nomination of
officer 263
officers and employees, appoint-
ment, duties and compensation
75-80
senatorial districts 25
SENATORS
see Legislature
— Senate
election of, when held 349
term of office 34
SEPARATE PROPERTY
of husband
denned 2679
liability of wife's ante-nuptial
debts 2684
of wife
conveyance of 3107-3108
denned 2676
earnings while separated from
husband 2683
inventory 2681
— effect of record 2682
liable for support of infirm hus-
band 2688
liability for ante-nuptial debts. .2685
management and disposition. .. .2677
power of attorney to convey. . . .3109
SEWERS
assessment of cost of improve-
ment 2353
bonds may be issued for . .2315, 2353
cities and villages may construct 2342
contract for construction 2354
installment payment of assess-
ments 2361-2371
powers of city over system . . . .2359
regulation of system 2358
validation of prior assessments
and bonds 2360
committee for construction
appointment 2343
chairman and clerk 2344
duties of officers 2346
— of chairman 2348
— of clerk 2349'
may employ assistants 2350
meetings 2352
powers in general 2351
quarterly statements 2357
to keep maps and plans 2356
to supervise construction work. .2354
to turn over system 2355
treasurer 2345
vacancies, how filled 2347
SHEEP
see Livestock
— Marks and Brands
Section
SHEEP— Contd.
certificate of health 1188
civil liability for violating in-
spection law 1196
complaint of disease 1188
creation of inspection lines ....1189
crossing inspecion lines without
certificate 1190
driving sheep into another cor-
ral 1193
failure to dip, penalty 1181
granting travel permit without
inspection, penalty 1192
herders to give information to
inspector 1196
inspection 1188
inspection on importation 1185
importation, notice to livestock
inspectors 1185
lambing sheep to be hand dressed
or spotted 1180
license for shearing corral .... 1208
notice of stray brands 1235
operating shearing corral with-
out license 1208
quarantine of lambing sheep . . . .1179
stray sheep, notice to owner . . . .1194
transporta ion by carrier, certifi-
cate of health 1195
travel of diseased sheep, permit. 1191
two-mile limit law 1217-1219
unlawful importation, seizure
and sale 1186
veterinary surgeon may require
all sheep to be dipped 1182
worrying by dogs, liability 1220
SHEEP INSPECTOR
see Livestock Inspectors
— Veterinary Stir g eon
SHELLEY'S CASE
rule abolished 3076
SHERIFF
bond 1987
claims against state for services. 2041
coroner to act, when 2101
delivery of office to successor. .
2045-2046
deputies, appointment and com-
pensation 2119
directions must be in writing. . .2033
duties in general 2024
election, when held 348
justification under process . . . .2035
not to practice law 1986
refusal to deliver office to suc-
cessor, proceedings 2048
salary 2118
service of papers on sheriff . . . .2038
termination of powers 2044
to keep office at county seat .... 1981
to reside at county seat 1984
fees and mileage
execution for fees 2131
AND CIVIL CODES
1423
Section
SHERIFF— Corc£d.
for impounding and slaughtering
diseased animals 1215
mileage, limitation on 2133
schedule of fees 2122
liabilities
permitting escape 2030
— recapture releases liability. . .2032
refusal to levy execution 2028
rescue 2031
penalties
failure to pay over money 2029, 2034
failure to return process 2027
SIDEWALKS
construction along highways .... 879
cons ruction and repair 2238
penalty for using with teams. . 879
SINGULAR
includes plural 16
SIRES
for lien for services, see Liens
certificate to owner by county
auditor 3454
statement of description and
pedigree to be filed 3453
SLAUGHTER OF CATTLE
preservation of hides 1256
record of slaughtered cattle .... 1255
violations of law, penalty 1257
SMELTERS
eight hours a day's work 1464
SOCIAL CORPORATIONS
see Religious, Social and Benevo-
lent Corporations
SOLDIERS' HOME
establishment and government. . .
792-799
SPECIAL CONSTABLES
appointment by justice . . . .2113-2114
SPECIAL ELECTIONS
see E7ections
SPECIAL PARTNERSHIP
provisions governing ....3336-3360
STALLIONS
see Sires
for lien for services, see Liens
restrictions on running at large.
1284-1287
STATE AUDITOR
bond 115
deputy 116
duties 102
election of, when held 349
inspection of boooks by legis-
lature «... 113
is recorder of brands 1227
not to deal in scrip 258
salary 274
seal 114
Section
STATE AUDITOR— Contd.
temporary inability, acting offi-
cer 332
to reside and keep office at Boise. 252
vacancy, who to take possession. 330
fees
for certified copy of brand 1230
for recording brand 1229
STATE CHEMIST
see Dairy, Food and Oil
appointment and salary 1122
STATE ENGINEER
appointment, term of office, qual-
ifications 149
bond 152
duties in general 154-160
oath 151
office to be provided 150
removal by governor 149
reports 159
salary and expenses 153
fees
application fees 3253
for certified copies of papers . . . 3263
for examining ditches and taking
proof of petition 3263
for issuing certificate of trans-
fer 3264
record and disposition 3263
STATE EXAMINER
bond 170
duties 171-188
insurance commissioner is ex-
aminer 170
STATE GRAIN COMMISSION
see Grain Commission
STATE HIGHWAY COMMIS-
SION
see Highway Commission
STATE INSTITUTIONS
see Academy of Idaho
— Deaf, Dumb and Blind
— Grand Army Headquarters
— Historical Society
— Industrial Training School
— Insane Asylums
— Law Libraries
— Normal Schools
— University of Idaho
purchase of supplies 863-866
visitation by board of health. .. 1085
STATE LAND COMMISSIONER
see Land Commissioner
STATE LANDS
see Board of Land Commission-
ers
— Carey Act Land
— Land Commissioner
abstracts to be made 1570
appraisement, apportionment of
cost 1569
Vol. 1 — 46
1424
INDEX TO POLITICAL
Section
STATE LANDS— Contd.
contests, how heard and deter-
mined 1562
duplicate abstracts sent to coun-
ty treasurer 1571
inclusion in irrigation districts,
payment of benefit 2439
land board to determine claims. 1585
payment of delinquent taxes on
lands acquired by state 1640
reservation of reservoir sites. .1636
subject to drainage district law 2840
withdrawal for park purposes. .1639
leases
auction of lease 1577
bond of lessee 1576
cancellation for fraud 1575
forfei.ure for non-payment of
rent 1573
lease for park purposes 1639
lessee cutting timber 1576
occupation without lease 1578
payment for improvements 1575
refund of rent in case of mis-
takes 1575
rental and royalties 1572
rent payable in advance 1573
term and removal 1574
rights of way
for ditches, etc., constructed by
U. S 1638
for highways, railroads, etc 1637
for irrigating purposes 3302
for irrigation districts 2421
for reservoirs and ditches 1635
sales
aliens no; to purchase 1579
appraisement and sale of land in-
cluded in irrigation districts. .2439
bond may be required 1580
certificate and deed 1580
default of purchaser, forefeiture.1581
investment of proceeds 1587
maximum size of tract 1579
minimum price 1579
notice and advertisement 1579
payment for improvements. .. .1579
place and terms 1580
refund of purchase money 1575
sales in lots and blocks 1582.
sales of land under government
irrigation works 1583
supplying lost certificates 1584
taxation of purchaser's interest. 1586
sales of timber
action on application 1592
action to enjoin sale 1594
application for permit 1589
appraisement before sale 1593
bond of purchaser 1595
conduct of sale 1594
Section
STATE LANDS— Contd.
definition of tree 1596
deposit with application 1590
disposition of proceeds 1594
installment sales, payment of
installments 1600
— permit to cut 1601
— terms 1599
— time for cutting 1602
preservation of small trees 1593
publication of application 1591
trees not to be cut from state
lands 1588
violations of law, penalty 1597
water master may file protest. .1592
specific land grants
academy lands 550
industrial training school lands. 821
normal school lands 504
North Idaho insane asylum lands 785
school lands 601, 602
soldiers' home lands 793
STATE LIBRARY
see Law Libraries
STATE LIBRARY COMMISSION
see Libraries
STATE LIBRARY FUND
see Library Fund
STATE MINE INSPECTOR
see Mine Inspector
STATE SUPERINTENDENT OF
PUBLIC INSTRUCTION
see Superintendent of Public In-
struction
STATE TREASURER
bribery of, a felony 134
deputy 140
duties 117
elec ion of, when held ........ 349
inspection of office by legislature
and governor 137, 138
making profit from public money
a felony 132
neglect under depository law a
misdemeanor 133
not to deal in scrip 258
official bond 141
reports 117
salary • 274
seal 139
suspension or removal for de-
fault 187
to permit examination by gover-
nor 131
to reside and keep office at
Boise 252
custody of funds
deposit of state funds 127-136
disposition of money received
from forest reserves 122
to keep livestock sanitary fund 1205
AND CIVIL CODES
1425
Section
STATE TREASURER— Contd.
— money in vaults ........... 118a
— predatory animal fund 1201
— purchase money of state lands 1581
transfer of special funds to gen-
eral fund 120
STATE UNIVERSITY
see University of Idaho
STATISTICS
for vital statistics, see Public
Health
STATUTES
see Bills
amendment, effect 72
approval by governor 64
authentication 65, 67
distribution by secretarv of
state : 96
indorsement on delivery to gov-
ernor 63
liberally construed 4
not retroactive 3
pamphlet publication, sale ....343a
passage over veto ■ 65
repeal, by codes 17
— of general laws 19
— of penal law, effect 74
— of repealing act, effect 73
secretary of state to have cus-
tody of 94
statutory terms construed 16
when effective 71
STOCK
see Corporations
STOCK DROVERS
provisions governing . . . .1239-1244
STOCK RANCHER
see Auctioneer
— Livestock
— Marks and Brands
— Slaughter of Cattle
provisions governing ....1221-1223
STORAGE OF GRAIN
see Warehouse Receipts
— Warehousemen
STRAY ANIMALS
see Estrays
— Stock Drovers
STREET RAILROADS
conditional sale of equipment...
2827-2829
STREETS
additions to continue existing
strees ...2305
advertisement for bids for im-
provement 2325
assessment of cost of improve-
ment 2335-2340
bond issue for improvement....
2315, 2329-2334
contract for improvement ....2324
— bond of contractor 2326
Section
STREETS— Contd.
— to be let to lowest bidder . . . .2325
disposition of discontinued
streets 2243
engineer to furnish grades for
improvement 2327
establishment 2238,
gas pipe not to be laid without
authority 3041
.improvements, assessment and
bonds 2238
— of part of street 2341
installment payment of assess-
ment 2361-2371
labor and commutation fee ....2240
laying mains and tracks 881
obstruction of, a nuisance ....3656
ownership of fee, presumption . .3091
petition or vote for improve-
ment 2328
sale and conveyance 2242
supervision by cities and vil-
lages 2242
use by railroads 2807
use by water and canal com-
panies 2840
SUBJACENT SUPPORT
rights of co-terminous owners. .3092
SUBSCRIPTION
includes mark 16
SUBSEQUENTLY ACQUIRED TI-
TLE
passes by conveyance 3113
SUMMER NORMAL SCHOOLS
establishment and government. .
533-544
SUNDAY
see Holidays
act required to be done on by
negotiable instrument law... 3651
is holiday 10
negotiable instruments payable
on 3542
SUPERINTENDENT OF PUBLIC
INSTRUCTION
election, oath of office and bond. . 565
election, when held 349
expenses 274
office, seal and papers 566
office, expenses 571
reports, to governor 571
salary 274
temporary inability, acting offi-
cer 332
to reside and keep office at Boise 252
vacancy, who to take possession 330
duties
annual inspection of schools .... 571
may prescribe rules governing
kindergarten teachers 671
miscellaneous duties . 571
supervision of county superin-
tendents and schools 567
1426
INDEX TO POLITICAL
Section
SUPT. PUBLIC INS'N Contd.
to advertise for text book bids . . 574
to apportion state school money. 604
to inspect summer normal
schools 542
to issue sta.e certificate to uni-
versity graduates 563
to meet with county superintend-
ents . . . 570
to prepare eighth grade examin-
ation questions 669
— teachers' examination ques-
tions 568
to prescribe course of study .... 567
— exercises for Arbor day 670
— studies for industrial training
school 817
to supervise teachers' institutes. 569
SUPPLIES
for elections, see Elections
for tax officers, see Revenue
for state institutions 863-866
SUPPORT TO LAND
right to lateral and subjacent. .3092
SUPREME COURT JUDGES
see Justices, Supreme Court
SUPREME COURT REPORTS
see Reports, Supreme Court
SURETIES
see Surety and Fidelity Com-
panies
accepting unauthorized fidelity
company, penalty 2954
agreement for protection 2947
application for release 2946
clerk of supreme court disquali-
fied as 217
contribution between sureties on
official bonds 290
— on original and additional of-
ficial bonds 304
freedom in selection by em-
ployees 2958
individuals may become 2960
on bonds of county depositories. .2015
on official bonds, not affected by
defects 297
— discharged by new bond .... 304
— effect of release 310, 311
— liability 293
— liability for subsequently im-
posed duties 294
— qualifications and justification .
288-290
— release 306-311
SURETY AND FIDELITY COM-
PANIES
accepting unauthorized company
as surety, penalty 2954
agents acting for unauthorized
company, penalty 2953
agents, who are deemed 2959
Section
SURETY AND FIDELITY COM-
PANIES— Contd.
agreement for protection of sure-
ties 2947
annual statement to insurance
commissioner 2939
application for release from
bond i 2946
bonds to be accepted in lieu of
private bonds 2945
capital required . . . 2939
certificate of authority ....... .2940
— transmission to recorder . . . .2943
compliance with act of congress 2949
deposit of security with state
treasurer 2939
employees may select their own
surety. 2958
estoppel to plead ultra vires. . . .2950
failure to pay judgment forfeits
authority 2944
fidelity companies charged with
public use 2957
filing of license fee 2942
notice of withdrawal or revoca-
tion sent to recorder 2943
premium paid for bond taxable
as costs 2948
reimbursement to officers, etc.,
for premiums paid 2941
refusal of bond by fidelity com-
pany, statement of reasons. .2955
revocation of authority for re-
fusal to give reasons for denial
of bond 2956
to file articles and designate resi-
dent agent ,.- . 2939
to furnish copy of bond 2959
SURGEON
see Medicine and Surgery
SURVEY
corners, how marked by county
surveyor 2087
county surveyor to make for
county 2093
court to appoint surveyor when
county surveyor is interested. .2090
establishment of county lines. .2091
must be made by licensed sur-
veyor i . . . . 1410
of lands divided by county line. .
2088-2089
permanent monuments to be set 1408
plats of U. S. surveys 2092
stakes and monuments in town
sites and additions 2302
to conform to U. S. manual ...2095
SURVEYOR, COUNTY
see County Surveyor
SURVEYORS
see County Surveyor
— Survey
examination and license. .1401-1408
AND CIVIL CODES
1427
Section
TAX COLLECTOR
see Assessor
duties relating to revenue, see
Revenue
assessor is tax collector 1809
bond 1987
TAXATION
see Revenue
TAXATION OF COSTS
see Costs
TEACHERS
see Schools
TEACHERS' INSTITUTES
conduct and regulation 638-641
TELEGRAPH AND TELE-
PHONE COMPANIES
taxation of, see Revenue
articles of incorporation 2715
capital required before filing arti-
cles 2717
directors, quorum and executive
committee 2728
injury to property of 2834-2835
liability for injuring 2834, 2835
rights of way over state lands. .1637
right to use highway 2833
transfer of rights and fran-
chises 2836
TENANCY AT WILL
how terminated 3078
TENANT
see Landlord and Tenant
rights in partition proceedings,
see Partition
TENANTS IN COMMON
see Co-tenants
TENSES
present includes future 16
TEXT BOOKS
purchase for schools 572-583
TIMBER
see Floating Timber
— Lumber
defined 867
TITLE
transfer of, see Conveyances;
Sayes
not transferred by lien 3381
subseauently acquired inures to
mortgagee 3394
TITLE AND TRUST COM-
PANIES
see Guaranty Title and Trust
Companies
TOLL BRIDGES AND FERRIES
license
application, to whom made... 1013
ascertainment of license and toll
rate 1018
commissioners to fix bond, license
Section
TOLL BRIDGES AND FERRIES
— Contd.
tax and rate of tolls 1015
companies not to take toll before
license granted 2830
disposal of license money 1026
disqualification of county com-
missioner, probate judge to act 1022
exclusiveness of right 1047
fixing license fee and toll rate. .1019
— increase and decrease of .... 1016
keeping without license, penalty 1045
licenses, how fixed 1840
maximum license fee 1016
notice of application 1014
revocation of license 1046
miscellaneous provisions
apportionment of tax on ferry
connecting counties 1021
care of banks 1027
companies may condemn land.. 2830
condemnation of right of way.. 1024
distance required between bridges
and ferries 1023
— franchises cease, when 2831
execution and attachment against
franchises 1042-1043
— purchaser to give bond 1044
franchises deemed real property 1041
individual owners subject to same
law as corporations 2832
liability for damages 1048
penalty for neglect of banks . . 1027
posting rates of toll 1025
report of keeper 1017
toll bridges
application and notice 1028
— hearing 1029
— order granting application . . .
1030-1031
certificate of completion 1033
counties may purchase 1036
exemptions from toll 1034
license, issuance 1033
penalty for avoiding toll 1035
use of highways 1032
toll ferries
application and notice 1037
hearing and order 1038
penalties payable to road fund. .1040
regulations by commissioners. .1039
TOLL ROADS
see Highway Commission
for roads leased as toll roads,
see Roads
abandonment of road 1000
absorption of highway, damages 988
become highways, when 875
branches and extensions 986
bridging of streams 991
compensation of overseer for in-
spection 1012
1428
INDEX TO POLITICAL
Section
TOLL ROADS— Contd.
complaint of disrepair, examina-
tion by overseer 1008
completion and inspection .... 996
county may purchase road 1001
— appraisement and award ....1002
defects, notice to company ....1010
disobedience of overseers' re-
quirements, penalty 1011
erection of toll gates 997
execution and attachment against
franchises 1042-1043
— purchaser to give bond 1044
franchises deemed real property 1041
gates to remain open until re-
pairs made 1009
guide posts 995
liability for damages 1048
not to be laid through orchard
or garden 990
overseer may order gates opened 1008
penalty for closing gates with-
out authority 1009
purchase and condemnation of
land .; : 987
regulations governing construc-
tion 993
re-laying of broken stone 994
tolls, exemption from 1007
— rates, how fixed 998
use of road of other company. . . 992
license
application to construct 980
— appointment of commissioners
i 982-983
— hearing 981
- — order granting ... 982
— notice 980
bond of applicant 999
compensation of road commis-
sioners 985
construction without application. 989
duration of license 1006
duties of road commissioner .... 984
exclusiveness of right 1047
keeping without license, penalty 1045
license fee '.'. 998
revocation of license 1046
roads for traction engines
commissioners to make rules and
prescribe toll rates 1006
hearing on application 1004
notice and application to con-
struct 1003
statement of expense incurred. .1005
TOWNSITES
appointment of appraisers ....2151
appraisement of unclaimed lots. .2152
charges to be paid before convey-
ance 2163
claim for lots 2150
conduct of sale 2154
Section
TOWNSITES— Contd.
contract for conveyance, specific
performance 2168
conveyance of lots to occupants. .2148
conveyance to claimants 2164
disposal of proceeds of sale . . . .2156
entry by corporate authorities or
probate judge 2147
expense of entry, how collected 2162
notice of entry 2149
notice of sale 2153
notice to commence suit 2159
purchase of appraised lots by
entryman 2155
re-appraisement and re-sale . . . .2154
rights of trustee as claimant. . .2165
successor in office succeeds to
trust 2169
suits to determine adverse claims 2157
— conveyance according to judg-
ment 2161
— costs 2167
— evidence 2158
— first settler entitled to land. .2158
— summons, how served 2160
supplying lost deeds 2169
trustees title dates from entry. .2166
TRACTION ENGINES
fortification of bridge 963
toll roads for traction engines. .
1003-1006
TRADE MARKS
see Labels and Trade Marks
TRADE UNIONS
see Labor Unions
TRANSFER
of corporate stock, see Corpora-
tions
of real property, see Acknowledg-
ment Conveyance ; Fraudulent
Conveyances; Proof of Instru-
ments; Recording Transfers
of personal property, see Sales
deemed mortgage, when 3391
disseizee may transfer 3099
of future interests 3065
of right of re-entry 3098
of things in action 3096
oral transfer permitted ......3100
possibilities not transferable ..3097
written, how designated 3101
TRANSFER TAX
actions to quiet title against tax 1897
allowance of expense of collec-
tion 1893
appointment deemed a transfer,
when 1874
appraisement of transfer 1886
collection by administrators, etc., 1881
collection from non-resident ad-
ministrators 1885
collection of delinquent tax 1890, 1891
definitions 1889
AND CIVIL CODES
1429
Section
TRANSFER TAX— Contd.
exemption from tax 1877
future and contingent estates . . .1878
interest on unpaid tax 1894
jurisdiction over estate of non-
resident 1888
neglect of officers, penalty .... 1896
payment by administrators, etc.. .1883
payment into state treasury. .. .1873
rate of tax 1875, 1876
receipts for taxes paid 1895
record of estates subject to tax . .1892
refund of excess tax 1884
sales to pay tax 1882
settlements and reports of county
treasurer 1894
suits to enforce collection 1897
tax on devise to executors .....1879
time of payment, extensions, in-
terest 1880
to be paid to county treasurer. .1873
transfers subject to tax 1873
TRANSMISSION LINES
see Electric Transmission Lines
TRAVELING LIBRARIES
see Libraries
TRESPASSING ANIMALS
see Estrays
hog trespass, see Hogs
capture and sale 1291-1298
TRUST AND GUARANTY COM-
PANIES
see Guaranty Title and Trust
Companies
TRUSTS
conveyance in trust for grantor. .3168
TWO-MILE LIMIT
sheep not to be herded within..
1217-1219
UNBORN CHILD
see Afterborn Child
— Posthumous Child
rights as existing person 2602
UNCLAIMED PROPERTY
sale for charges .1646-1649
UNION LABELS AND TRADE
MARKS
see Labels and Trade Marks
UNIONS
see Labor Unions
UNIVERSITY OF IDAHO
establishment and government. .
485-499
USURY
compound interest not allowed. .1539
maximum rate of interest 1538
penalty 1540
VACANCIES
in office, how caused and filled . .
317-332
Section
VENDEE'S LIEN
for recovery of amount paid on
purchase price 3445
VENDOR'S LIEN
for purchase price 3441
valid against whom 3443
waiver by transfer of contract. .3442
VETERINARY SURGEON
annual report 1163
appointment, qualifications, sal-
ary, expenses, bond and oath. .1158
assistants, appointment, compen-
sation, oath and bond ....... .1164
— compensation in criminal pros-
ecutions 1174
— may make arrests 1174
compensation for dipping range
animals 1183
general duties 1159
may administer oaths 1173
may declare quarantine of range
horses and cattle 1183
may order inspection of sheep.. 1188
may order quarantine of infect-
ed premises 1160
may require all sheep to be
dipped 1182
may slaughter diseased animals 1161
neglect to pay over money, pen-
alty 1175
official misconduct, penalty ....1172
to appoint livestock inspectors. .1165
to create inspection lines ....1189
to give duplicate receipts for
money 1175
to quarantine diseased herds ...1168
to quarantine and dip diseased
animals 1176
to supervise dipping of animals 1167
to supervise assistants and in-
spectors 1169
VILLAGES
see Municipal Bonds 1
— Ordinances ■
— Police Court
— Resolutions
— Sewers
— Sidewalks
for matters common to cities and
villages, see Cities and Vil-
lages
adoption of village government
by cities 2233-2235
appointment of officers 2229
attorney, duties 2278
clerk as police judge 2232
—duties 2277
— to perform duties of county
auditor in elec ions 4C1
compensation of officers 2230
incorporation and organization 2222
officers not to be interested in
contracts 2279
1430
INDEX TO POLITICAL
Section
VILLAGES— Contd.
officers' salaries not to be
changed during term 2280
organization into city 2175-2181
publication of by-laws 2231
treasurer, duties 2257
trustees, chairman pro tern 2231
— compelling attendance at meet-
ings 2226
— journal of proceedings.. 2227, 2277
—powers 2223, 2228
— qualifications and term of of-
fice 2224
— oath, chairman and meetings. 2225
— quorum and adjournment. . . .2226
— to appoint library directors.. 677
VINEGAR
see Dairy, Food and Oil
VITAL STATISTICS
see Public Health
WAGON ROAD CORPORATIONS
articles of incorporation 2715
capi al required before filing ar-
ticles 2717
directors, quorum and executive
committee 2728
WAREHOUSE RECEIPTS
commodities to be delivered on
presentation 1492
duplicates to be marked 1488
form of receipt 1487
fraudulent receipts prohibited. .1488
penalties and liabilities 1493
negotiability 1491
to show grade of grain 1486
warehousemen to give receipt. . .1486
WAREHOUSEMAN
see Grain Commission
— Warehouse Receipts
may hold and sell property for
charges 1546-1549
mixing grades prohibited 1489
penalties and liabilities 1493
to deliver commodities on de-
mand 1492
unauthorized sales of grain pro-
hibited 1490
WARRANTIES
lineal and collateral abolished. 3122
WARRANTS
drainage district warrants 2450
irrigation district warrants. . . .2418
officers not to deal in 258
county
blank warrants 2056
bulle in 1996
calling for payment 1997, 1998
county auditor to draw 2052
how drawn and presented 1955
non-payment for want of funds.
interest 1995
notation of interest 2000
Section
WARRANTS— Contd.
payment 1955, 1994
registration 1955, 2056
to specify liability 2053
municipal
how drawn 2262
limitations on drawing 2264
state
appropriation necessary to au-
thorize Ill
interest on unpaid warrants. . . . 125
lost warrants, duplicates 106
not to be paid when illegally
transferred 260
order of drawing 105
order of payment 123
partial payment 124
payment by treasurer 117
penalty for refusal to pay .... 126
register of 102
state auditor to draw 102
WARRANTY
in sales by sample 3325
of negotiable instruments im-
plied from delivery 3522
— implied from indorsement. .. .3523
of provisions for domestic use. .3327
of quality and quantity 3326
of title to personal property. . . .3324
WATER AND CANAL CORPO-
RATIONS
provisions governing 2838-2844
WATER COMMISSIONERS
see Water Rights and Irrigation
WATER DIVISIONS
see Water Rights and Irrigation
WATER MASTERS
see Water Rights and Irrigation
WATER PIPES
laying in streets, consent of au-
thorities 881
right of way for 2840
WATER RATES
see Water Rights and Irrigation
for municipal water supply, how
fixed 2839
WATER RIGHTS AND IRRIGA-
TION
see Adjudication of Water Rights
— Carey Act Lands
— Irrigation Districts
— State Engineer
appropriation
abandonment by laches 3254
— by non-application to use. . . .3264
application to state engineer. . . .3253
— amended application and per-
mit 3255
— appeal from engineer's deci-
sion 3254
AND CIVIL CODES
1431
Section
WATER RIGHTS AND IRRI-
GATION— Contd.
— examination, amendment and
approval 3254
— for enlargements or exten-
sions 3258
— maps accompanying 3254
appropriations to be noted on
maps 3266
bond for performance of work.. 3254
change of place of use, certificate
of transfer 3264
—defined 3251
completion, appeal from engi-
neer's decision 3259
— examination and issuance of
certificate 3258
—proof of 3257
contest for cancellation of per-
mit 3256
fees of engineer 3263
filing fee 3253
final proof of application to ben-
eficial use 3260
license, appeal from issuance or
refusal •. 3265
—effect 3262
— issuance and priority 3261
— maximum amount of water. .3262
— protest against 3265
— rules governing engineer in is-
suance 3265
must be for beneficial purpose. .3243
permits, issuance 3254
right acquired by appropriation. 3242
time for commencing work 3254
board of irrigation
constitution and meetings 3273
to create water districts 3274
delivery to consumer
application for water 3290
charges a lien on land 3288
company to furnish water on de-
mand 3288
— to deliver water as agreed .... 3288
distribution among parties to
common lateral 3288
purchase of perpetual right can-
not be demanded 3290
security for charges 3289
wasting water, liability 3293
ditches headgates and meas-
uring devices
appropriator to maintain head-
gates and measuring devices. .3282
bridges to be built over ditches. 3310
change in course of ditch pro-
hibited, when 3248
change of lateral ditch 3111a
county to erect headgates and
measuring devices at expense
of owner 3282
Section
WATER RIGHTS AND IRRI-
GATION— Contd.
ditch owner to furnish lateral
headgates and measuring de-
vices 3286
ditches to be kept full 3306
— to be kept in repair 3307
embankments to be maintained. .
3308-3309
injuring or tampering with, lia-
bility 3285
owner to keep ditch in repair. . .3300
repair of community ditches. . . .3211
state engineer to approve plans
of gates and devices 3286
fixing water rates
application to county commis-
sioners 3294
depositions 3296
hearing, subpoenas, order, ap-
peal 3297
matters considered by commis-
sioners 3298
no ice of hearing 3296
setting of date for hearing 3295
general provisions
change in point of diversion. .. .3247
diversion, rights of decreed
claimants , 3249
domestic purposes defined 3250
extension of conduits 3247
land owners entitled to use of
water of streams . 3299
mingling water with streams,
reclamation . 3244
nature of property in water. . . .3240
perpetual water rights not af-
fected by transfer or sale of
ditch 3292
right to raise water of streams. .3303
rights annurtenant to land 3262
sales, etc., equivalent to dedica-
tion 3291
standard of measurement 3241
water the property of the state. 3240
priorities
classification of lands by prior-
ities 3287
first in time 3245
to seepage, waste and spring wa-
ter 3246
rights of way
appropriators entitled to way. . .3301
crossing of ditches 3305
eminent domain 3304
land owners entitled to way for
ditches 3300
over state lands 3302
raising water of stream 3303
reservoirs and ditches on state
lands 1635
1432
INDEX TO POLITICAL
Section
WATER RIGHTS AND IRRI-
GATION— Contd.
water divisions and commis-
sioners
commissioners, appointment and
qualifications 3269
— compensation, how paid 3271
—oath and bond 3272
— reports to state engineer 3273
— residence and duties . . .3270
— to appoint water masters .... 3275
— to approve compensation of
water master 3280
— to erect headgates and meas-
uring devices at county ex-
pense 3282
— to maintain priorities by shut-
ting headgate 3276
— to oversee distribution of wa-
ter 3283
water districts, how created. . . .3274
water divisions, establishment
and boundaries 3269
water masters
appointment by ditch owner. .. .3284
— by water commissioners
3274-3275
assistants, oath and compensa-
tion 3279
compensation, how allowed and
paid 3280-3281
diverting water without consent
of, liability 3285
Section
WATER RIGHTS AND IRRI-
GATION— Contd.
election in unadjudicated dis-
tricts 3275
oath and bond 3275
reports to commissioner 3276
to divide water among streams.. 3277
to regulate distribution of water. 3275
when to begin work 3278
WATER USERS' ASSOCIATIONS
exemption from franchise tax.. 2842
fee for filing articles 2842
record of articles and stock sub-
scriptions 2843
WATER WORKS
bonds may be issued for 2315
WAYS
see Roads, and references there
given
WEIGHTS AND MEASURES
provisions governing 1541-1545
WEIRS
are nuisances, when 873
WILD ANIMALS
bounties for destruction, see
Bounties
extermination of, see Predatory
Animals
YEAR
school year 667
YELLOWSTONE PARK
cession to United States 27
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