Page:North Dakota Reports (vol. 2).pdf/424

 Proceeding by Joseph Cleary against the county of Eddy to recover for his office rent and for fuel consumed by him while officer of defendant. Judgment for defendant. Plaintiff appeals. Affirmed.

Joseph Cleary and Fredrus Baldwin, for appellant:

The action was properly commenced. Townsley v. County of Ozaukee, 18 N. W. Rep. 840; Waldo v. Manitowoc County, 11 N. W. Rep. 252; Compiled Laws, §§ 610-614. Under a statute where it is not made the duty of a county to provide an office, the court has compelled the county to pay for the same. McCalmont v. County of Alleghany, 29 Pa. St. 417. See also, Towa City v. Foster, 10 Iowa 192.

Edgar W. Camp, for respondent:

Unless given by statute no action lies against a county for failure to perform a public duty. Dosdall v. Commisioners, 14 N. W. Rep. 458; Eastman v. Meredith, 72 Amer. Dec. 302; Pruden v. Grant County, 7 Pac. Rep. 308. The plaintiffs remedy was by mandamus. McLeod v. Scott, 26 Pac. Rep. 1061; People v. Supervisors, 25 Amer. Rep. 461; Bishop v. Oakland, 58 Cal. 574. The New York doctrine is that where the duty relied upon is a duty, not of the county, but of the board of supervisors, no action will lie against the county. Bright v. Supervisors, 18 Johns. 243; Boyce v. Supervisors, 20 Barb. 295; Chace v. County, 23 Barb. 603; Hall v. Supervisors, 32 N. Y. 473.

J. F. Keime, for respondent:

When a statute gives a new right and with that right gives a remedy for its enforcement, that remedy is exclusive. Inman v. Tripp, 17 Am. Law Reg., § 143; Bassett v. Carleton, 54 Amer. Dee. 605; Taylor v. Railroad Co., 55 Amer. Dec. 185; Dudley v. Mayhew, 3 N. Y. 9.

The opinion of the court was delivered by

, C. J. This controversy reached the district court for trial by an appeal from the decision of the board of county commissioners of Eddy county rejecting the plaintiff's claim.