Montpelier examiner. [volume] (Montpelier, Idaho) 1895-1937, 1899-12-20
being affirmed.
The opinion follows:
Huston c. J.

The plaintiff respondent here)
was clerk Of the distriet court and
ex-oiEcio auditor and recorder Of /
Canyon county, as such auditor and .
recorder he was by law the clerk of |
the board Of commissioners Of said |,
coanty. It will be seen thas here
are three positions, separate and
distinct from each other, in so far
as the duties pertaining to each.
On or about the 18th day of
January, 1897, the plaintiff who
was then in Office, applied to the
board of county commissioners of
said county praying for power to
appoint deputy for his office"
AT the January meeting of said
board said application was heard
and evidence introduced in support
thereof.
The said board duly considered
the evidence offered and on the Is
day of January, 1897, found and
determined that a necessity existed
for the appointment of deputy in
said Office, and made an order
authorizing and empowering plain
tiff to appoint deputy, and fixed
his salary at s75 per month.
Thereafter ON or about the 10th
of January, 1907, in pursuant of
said order, plaintiff appointed a
deputy for his said Office.
On the 18th day of October, 1898,
plaintiff presented to said board of
commissioners an account for the
salary of said deputy, amounting to
5000, which account was disallowed
by said board.
Plaintiff brings this action
against said Canyon county to re-
cover the said sum of 5000.
| To the complaint of plaintiff a
general demurrer was introduced,
which was overruled by the district
court. Defendant answered, deny
ing inter ALA that E'said board of
county commissioners found and de-
termined that necessity existed
for the appointment of deputy
in plaintiffs said Office" And this
seems to be the only issue raised by
appellant, on this appeal. The
cause was tried by the court with
out jury. After the introduction
of plaintiffs testimony, defendant
moved for non-suit, which motion
was overruled by the court, "and
the defendant declining to put in
any evidence, judgment was entered
for plaintiff and from such judg-
ment this appeal is taken.
Appellant cnumerate two errors
upon which they rely, for revers-
al Of the judgment of the district
court. First-The court erred in
overruling defendants demurrer to
complaint of plaintiff. Second
The court erred in overruling de-
PENDANTS motion for non-suit.
In support Of the first contention
of appellant, it is urged, that the
complaint nowhere alleged that the
services of said deputy were render
ed for or on behalf of, or for the
use and benefit of Canyon county,
This contention is not maintain
able. The appointment of depu-
ty is not the creation of an office.
Section 6, article 10 of the consti-
tuition of Idaho authorizes the coun-
ty commissioners to empower the
"auditor and recorder and clerk of
the district court" to appoint such
deputies and clerical assistance as
the business to their office may re-
quire."
The authorization of the appoint
ment of deputy by the board of
commissioners is not an infraction
Of the provision of said section of
the constitution, which provides
that mo other county officers shall
be established" than those enumer-
ated in said section. This conclu-
sion is inevitable when the whole
section is read.
This case does not come within
the rule laid down by the court in
the case Of Taylor VS.. Canyon eoun-