Anderson v. Shoshone County

• Decision Date: 06 May 1898
• Parties: ANDERSON v. SHOSHONE COUNTY
• Court: Idaho Supreme Court

53 P. 105

6 Idaho 76

ANDERSON v. SHOSHONE COUNTY

Supreme Court of Idaho

May 6, 1898

COUNTY COMMISSIONERS-EMPLOYING COUNSEL FOR COUNTY.-On an appeal from the action of a board of county commissioners in employing counsel to represent the county in litigation instituted on behalf of the county, no abuse of discretion by the board appearing, their action will not be disturbed.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Reversed and remanded, with instructions.

W. B Heyburn, E. M. Heyburn, and L. A. Doherty, for Appellant.

The sole question to be decided here is whether or not the board of county commissioners of Shoshone county had the authority to make the order appealed from. The right of a county to employ counsel is expressly conferred by the constitution and laws of Idaho. Article 18, section 6, of the constitution reads, inter alia, as follows: "The county commissioners may employ counsel when necessary." Subdivision 13 of section 1759 of the Revised Statutes of Idaho (1887) defining the duties of county commissioners, gives them power "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 district attorney as they may direct. (Meller v. Board of Commrs., 4 Idaho 44, 35 P. 712; Hampton v. Board of Commrs., 4 Idaho 616, 43 P. 324; Ravenscraft v. Board of Commrs., 5 Idaho 178, 47 P. 942.) Under provisions almost identical with our own, this same question, and even the same phases thereof, have been decided by the supreme court of California in exactly the same way as in this court. (Smith v. Mayor etc., 13 Cal. 531; Hornblower v. Duden, 35 Cal. 664; Scollay v. Butte Co., 67 Cal. 249, 7 P. 661; Lassen Co. v. Shinn, 88 Cal. 510, 26 P. 365; Modoc Co. v. Spencer, 103 Cal. 498, 37 P. 483; Hunt v. Broderick, 104 Cal. 313, 37 P. 1040; Power v. May, 114 Cal. 207, 46 P. 6; Merriam v. Barnum, 116 Cal. 619, 48 P. 727; Lamberson v. Jefferds, 118 Cal. 363, 50 P. 403.)

W. W. Woods, for Respondent, cites no authorities on the point decided not cited by attorneys for appellant.

HUSTON, J. Sullivan, C. J., and Quarles, J., concur.

OPINION

HUSTON, J.

This is an appeal from a judgment of the district court setting aside and declaring void certain orders of the board of commissioners of Shoshone county, which entered into a contract with W. B. Heyburn, Esq., to perform certain legal services for said county, and provided for his compensation therefor. Appeal was taken by the respondent to the district court from the action of the board, and that court set aside and declared void the orders so made by the board, and from such action and judgment of the district court this appeal is taken. It is not contended by respondent that no necessity for the employment of counsel existed, nor that the same is not made apparent by the records of the board. Neither is it contended that the contract made was an improvident one, nor that the compensation stipulated to be paid was excessive or unreasonable for the services required to be performed. The sole contention of respondent would appear to be that the board, in entering into the contract with Mr. Heyburn entirely ignored the district attorney of the county, who, by the provisions of the statute (Laws 1890-91, p. 47), "is to prosecute or defend all actions, applications or motions, civil or criminal, in the courts of his district, in which the people of the state, or any of the counties of his district are interested or a party." It seems to us this objection should more properly come from the district attorney himself, but that officer does not seem to have considered himself especially aggrieved by the action of the board; at...