Berryman, Co. v. Schahlander

• Decision Date: 22 October 1909
• Docket Number: No. 15,768.,15,768.
• Citation: 122 N.W. 990,85 Neb. 281
• Parties: BERRYMAN, CO. ATTY., v. SCHAHLANDER ET AL.
• Court: Nebraska Supreme Court

85 Neb. 281

122 N.W. 990

BERRYMAN, CO. ATTY.,

v.SCHAHLANDER ET AL.

No. 15,768.

Supreme Court of Nebraska.

Oct. 22, 1909.

Syllabus by the Court.

A county board or board of county commissioners are clothed, not only with the powers expressly conferred upon them by statute, but they also possess such powers as are requisite to enable them to discharge the official duties devolved upon them by law.

The matter of allowing a sum to the county attorney to cover actual necessary expenses incurred while investigating and prosecuting criminal cases and defending cases brought against the county is within the sound discretion of said board, and said board may, in the exercise of such discretion, lawfully allow and reimburse the county attorney for such expenditures.

Appeal from District Court, Knox County; Welch, Judge.

Action by James H. Berryman against G. F. Schahlander and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.J. H. Berryman, for appellant.

J. G. Greene, for appellees.

FAWCETT, J.

The petition alleges substantially that from January 5, 1905, to the present time, plaintiff has been and now is county attorney of Knox county; that said county contains 2 cities of the second class, 8 incorporated villages, and a village not incorporated, about 1,500 Indians, and an Indian reservation; that said county is 42 miles long and about 26 wide; that 3 of the villages of said county are not accessible by rail, and the county seat is located 14 miles from the nearest railroad station; that during the term of plaintiff's incumbency he has prosecuted about 200 criminal cases, about two-thirds of which have been for offenses committed in parts of said county 15 to 30 miles from the county seat; that, in order to try said cases in the neighborhood where the offenses were committed, it was necessary for plaintiff to do a large amount of traveling and pay his traveling expenses in cash; that by pursuing such course he saved a large expenditure in sheriff's and witnesses' fees, for which the county would be liable in all such cases; that, if he had procured the arrest of such offenders and subpœnaed such witnesses and brought them to the county seat, the county would have been put to several times the expense incurred by plaintiff in the course pursued; that, soon after entering upon his office as county attorney, he submitted the above condition of things to the county board of said county, and advised said county board that from $1,000 to $2,000 per annum could be saved to the county by the course above indicated, and that since said time the system of the county's paying the traveling expenses of the county attorney in enforcing the criminal laws of the state has been followed in said county; that during the January meeting of the board each year, including 1907, the board made an estimate of the amount of money necessary to be raised by taxation for the then current year as required by law for all county purposes, and in each of said estimates provided for $1,200 per annum for salary and expenses of the county attorney, being $1,000 per annum for salary and $200 for traveling expenses and necessary disbursements connected with the county attorney's office; that at the July meeting of 1907 the board provided for a levy of that character for said purpose, and no objections thereto were made; that the plaintiff's claim for $21.84, covering expense of the class indicated for the months of April, May, and July as per bill attached to plaintiff's petition, was presented to the county board at said July meeting, and was by said board duly allowed; that thereupon one Jerome Sharp, a resident and taxpayer of said county,...