Frederick v. Douglas Cnty.

• Decision Date: 11 June 1897
• Citation: 71 N.W. 798,96 Wis. 411
• Parties: FREDERICK v. DOUGLAS COUNTY ET AL.
• Court: Wisconsin Supreme Court

96 Wis. 411

71 N.W. 798

FREDERICK

v.DOUGLAS COUNTY ET AL.

Supreme Court of Wisconsin.

June 11, 1897.

Appeal from circuit court, Douglas county; A. J. Vinji, Judge.

Action by A. Frederick, for himself and on behalf of all other taxpayers of Douglas county, against Douglas county and others. From a judgment in favor of plaintiff, defendants appeal. Modified.

This action was commenced November 16, 1895, by the plaintiff, for himself and all other taxpayers of said county, to restrain the county and its officers from paying to the defendant H. H. Grace or issuing warrants to him for the payment of anything whatever for or on account of his services as attorney, rendered or to be rendered to the county, and to compel the said Grace to pay back to the county $2,012, which had previously been paid to him. The defendants having severally answered, and the cause having been tried, the court found, as matters of fact, in effect: That prior to January 1, 1895, John A. Murphy was the duly elected, qualified, and acting district attorney of said county. That Charles J. Monson was the duly elected, qualified, and acting district attorney of that county from January 1, 1895, to July 5, 1895, when he died. That H. C. Sloan was duly appointed as his successor, and has been the duly qualified and acting district attorney of said county since July 17, 1895, and is still such district attorney. That January 23, 1895, the board of supervisors of said county being duly convened, there was introduced, without the request and knowledge of the then district attorney, a resolution as follows: “Resolved, that H. H. Grace is hereby employed to assist the district attorney in the prosecution and defense of all tax cases and civil actions pending or hereafter commenced, in which the county of Douglas is a party.” That said resolution was, upon motion, duly referred to a committee of three, with full power to act. That two members of said committee informed the district attorney that they had employed said Grace to take charge of the tax cases against the county. That the district attorney expressed his pleasure at being relieved of said cases for the time being. That February 16, 1895, said committee completed arrangements with Grace to take charge of and conduct the tax cases for the time being, under an agreement whereby Grace should be paid the same compensation or fees that he would charge other clients for similar work. That, under this agreement, Grace began work on the tax cases February 16, 1895. That the reason the board so hired Grace was that they did not think Monson competent to properly conduct the defense of said cases. That he did not have sufficient time to properly attend to them. That Monson was about 31 years of age, and had been practicing law 4 or 5 years, and had only a limited experience in tax litigation. That the board allowed two bills presented by Grace for his services to April 18, 1895, for the aggregate amount of $225. That June 10, 1895, a resolution reciting that Grace had been employed to assist the district attorney in all cases commenced against said county was introduced and adopted by the board. That said resolution appropriated $1,000 to Grace in payment of the necessary expenses in the defense of the tax cases, and the balance, if any, remaining from said sum after said cases were fully determined, to apply in payment of his services. At that time a large number of new cases had been begun, and were pending in the circuit court for Douglas county, against the county. That the board, with the consent of Monson, then adopted a resolution to the effect that Grace was thereby retained as attorney for the county, to take charge of and defend all tax cases pending or thereafter commenced against the county or county officers, and the several county officers were thereby directed to turn over all papers relating to the same as soon as served, to enable him to keep a proper record of the same. That August 17, 1895, a resolution was passed by said board appropriating $1,500 to Grace for fees, costs, and expenses in said tax cases. That said Grace was paid the several amounts so allowed in the aggregate to the amount of $2,615, before the commencement of this action, including amounts disbursed by him. That November 6, 1895, the board, knowing that 188 tax cases were then pending, and with the consent of the district attorney, agreed with Grace to allow the balance of his bill of $1,461.80, for services performed prior to November 1, 1895; and that he be employed to assist the district attorney in looking after all tax cases then pending against the county and all cases that might be commenced against the county for the term of one year commencing November 1, 1895; and that his compensation therefor be fixed at the sum of $4,000, which was to be in full for his legal services and that of his stenographer during said year, but not to include disbursements; and that warrants be drawn by the chairman and clerk on the county treasurer, payable to Grace quarterly, in advance, for the sum of $1,000 each. That neither Monson nor Sloan at any time made application to the board for assistance, or requested to be relieved from the defense of said tax cases, but, on the contrary, the board acted on its own motion, and Monson and Sloan each acquiesced. That the county had paid Grace, for services rendered by him in defending cases against said county pending in the circuit court, above disbursements, in the aggregate the sum of $2,012. And, as conclusions of law, the court found, in effect: That the board had no power or authority to employ Grace to take charge of and defend the tax cases mentioned, or to assist the district attorney in the defense of said cases, and bind the county for the value of such services. That such employment was illegal and void, both for the year prior and the year subsequent to November 1, 1895. That Grace was a trustee of the county for the amounts received by him from said county for such services, in all to the sum of $2,012, and that he account for and pay over the same to said county. That an injunction be granted in accordance with the prayer contained in the amended complaint. From the judgment entered thereon accordingly, and the whole and every part thereof, the defendants bring this appeal.Butler & Grace and H. L. Sanborn, for appellants.

T. L. McIntosh, for respondent.

CASSODAY, C. J. (after stating the facts).

It is contended that although the plaintiff, Frederick, is a taxpayer, property owner, and voter in the county, yet that the amount of taxes paid by him was so small that he should not be allowed to maintain this action. The statute provides that “when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.” Rev. St. § 2604. “This statute has been construed as merely re-enacting the rules which prevailed in equity, and which otherwise might have been held to be abolished by the Code.” Day v. Buckingham, 87 Wis. 220, 58 N. W. 254. The action in the case at bar “is one of a common or general interest of many persons.” It is for the benefit of the taxpayers of the county, and may properly be brought, as this is, by one taxpayer “for himself and all taxpayers of said county.” Id.; Nevil v. Clifford, 55 Wis. 161, 12 N. W. 419;Willard v. Comstock, 58 Wis. 565, 17 N. W. 401;Bay Land & Imp. Co. v. Town of Washburn, 79 Wis. 423, 48 N. W. 492. We must hold that there was no error in not dismissing the complaint for want of a proper party plaintiff.

2. The more important question is whether the county had authority to employ the defendant Grace as attorney to take charge of and conduct the tax suits mentioned. It is conceded that the county had a district attorney, as prescribed by law, during the period covered by such employment. “Counties are, at most, but local organizations, which, for the purposes of civil administration, are invested with a few functions characteristic of a corporate existence. They are local subdivisions of the state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them. * * * They are purely auxiliaries of the state. And to the general statutes of the state they owe their creation, and the statutes confer upon them all the powers they possess, prescribe all the duties they owe, and impose all liabilities to which they are subject. Considered with respect to the limited number of their corporate powers, the bodies above named rank low down in the scale or grade of corporate existence, and hence have been frequently termed ‘quasi corporations.’ ” 1 Dill. Mun. Corp. §§ 23, 25; 1 Beach, Pub. Corp. § 8; Beal v. Supervisors, 13 Wis. 500;Hoffman v. Chippewa Co., 77 Wis. 214, 45 N. W. 1083. The statutes prescribe the general powers of counties. Sanb. & B. Ann. St. §§ 650, 652, 669, 670, 694. One of these sections provides that the county board shall have the power “to represent the county, and to have * * * the management of the business and concerns of the county in all cases where no other provision shall be made.” Id. § 669, subd. 6. Another of these sections, as amended, provides that “the county board at their annual meeting in November shall fix the amount of salary which shall be received by every county officer, including county judge, who is to be elected in the county during the ensuing year, and is entitled to receive a salary payable out of the county treasury, and the salary so fixed shall not be increased or diminished during his term of office. All salaries shall be paid out of the county treasury monthly, at the end of each month. All salaries, the amounts whereof have heretofore been declared and fixed by the county board at any time, or...