Brome v. Cuming County

• Decision Date: 10 February 1891
• Citation: 47 N.W. 1050,31 Neb. 362
• Parties: H. C. BROME v. CUMING COUNTY ET AL
• Court: Nebraska Supreme Court

47 N.W. 1050

31 Neb. 362

H. C. BROME v. CUMING COUNTY ET AL

Supreme Court of Nebraska

February 10, 1891

ERROR to the district court for Cuming county. Tried below before POWERS, J.

AFFIRMED.

Brome Andrews & Sheean, for plaintiff in error, cited, contending that, in the absence of express statutory prohition, a county may employ Smith v. Mayor, 13 Cal. 531; Hornblower v. Duden, 35 Id., 670; Clark v. Lyon Co., 8 Nev., 181; Ellis v. Washoe Co., 7 Id., 293; Tatlock v. Louisa Co., 46 Iowa 138; State v. Patterson, 40 N.J.L. 186; Memphis v. Brown, 2 Wall. [U.S.], 289-321; Memphis v. Adams, 9 Heisk. [Tenn.], 518; Butcher v. Camden, 29 N.J. Eq 478; Wilhelm v. Cedar Co., 50 Iowa 524; Gillespie v Broas, 23 Barb. [N. Y.], 379.

E. K. Valentine, M. McLaughlin, and T. M. Franse, contra, cited, contending that the act of 1885, providing for county attorneys, repealed sec. 47, ch. 18., Comp. Stats.; Platte Co. v. Gerrard, 12 Neb. 244; Smails v. White, 4 Id., 353; State v. Jones, 18 Id., 401; Daviess v. Fairbairn, 3 HOW [U.S.], 636; Sullivan v. People, 15 Ill. 233; Leighton v. Walker, 9 N. H., 59; Commonwealth v. Kimball, 21 Pick. [Mass,], 366; Harrison v. Walker, 1 Kelly [Ga.], 32; Sedgwick, Stat. & Const. Law [2d Ed.], 104; Dexter, etc., Co. v. Allen, 16 Barb. [N. Y.], 15; People v. Van Nort, 64 Barb. [N. Y.], 205; U. S. v. Tynen, 11 Wall. [U.S.], 88; Norris v. Crocker, 13 HOW [U.S.], 429; Pana v. Bowler, 107 U.S. 529; State v. Stoll, 17 Wall. [U.S.], 425; U. S. v. Claflin, 97 U.S. 546; Cook Co. Bank v. U.S. 107 Id., 445.

OPINION

NORVAL, J.

The board of supervisors of Cuming county retained the plaintiff in error, an attorney at law, to assist the county attorney in the prosecution of suits brought against several ex-county clerks and their bondsmen to recover moneys alleged to have been received by said county clerks during their respective terms of office in excess of the compensation allowed by law, and not reported to the county board, nor paid into the county treasury. The county board allowed the plaintiff in error the sum of $ 150 as a retainer fee in said actions, whereupon Emil Heller, a taxpayer, took an appeal to the district court.

The cause was submitted to the court upon the following stipulation of facts:

"H. C. BROME V. THE COUNTY OF CUMING. Stipulation.

"It is hereby stipulated and agreed by and between the parties to the above entitled cause that the only question involved in this cause is as follows, to-wit: Has the county of Cuming authority and power through its duly elected and acting board of supervisors to employ an attorney other than the county attorney, to aid in the prosecution or defense of civil suits to which the county is a party, when by the county board such employment is deemed necessary and to pay a reasonable compensation for such services; it being agreed that the above question of law shall be submitted to the court for determination, and that no other question shall be presented to or determined by the court in this case.

"If the above and foregoing question be determined affirmatively by the court, then the said H. C. Brome shall have judgment in this case for the sum of $ 150, with interest thereon at seven per cent per annum from the 20th day of September, 1889, and the court shall tax costs herein as by law provided.

"If said question be determined in the negative, then judgment shall be entered dismissing the case of H. C. Brome made herein, and taxing the costs of this action against him.

"H. C. BROME,

"P. M. MOODIE,

"County Att'y of Cuming Co.

"E. K. VALENTINE,

"M. MCLAUGHLIN,

"T. M. FRANSE,

"Attorneys for Emil Heller, Appellant."

The finding and judgment of the district court were against the plaintiff in error.

It is claimed by the plaintiff in error that section 47 of an act entitled "An act concerning counties and county officers," passed by the legislature in 1879, conferred authority upon the board of supervisors to make the employment and to pay him for the services rendered. Said section provides that "The county board may, when they deem it necessary, employ an attorney to prosecute and defend all actions in which the county is a party or may be interested, and to advise such board upon any matter pending before them. But the compensation allowed such attorney shall not in any one year exceed the sum of one thousand dollars." Unless this section has been repealed by the legislature the point made by the plaintiff in error is well taken. It must be conceded that it has never been repealed by any express enactment. It is urged by the defendant in error that it was repealed by implication by the passage by the legislature, in 1885, of an act entitled "an act to provide for the election of county attorneys, to define their duties, and fix their salaries," etc.

Section 1 provides that a county attorney shall be elected in each organized county at the general election in 1886, and every two years thereafter.

The second and fourth sections are as follows:

"Sec. 2. It shall be the duty of the county attorney to appear in the several courts of their respective counties and prosecute and defend, on behalf of the state and county, all suits, applications, or motions, civil or criminal, arising under the laws of the state, in which the state or the county is a party or interested."

"Sec. 4. The county attorney shall, without fee or reward, give opinions and advice to the board of county commissioners and other civil officers of their respective counties, when requested so to do by such board or officers, upon all matters in which the state or county is interested, or relating to the duty of the board or officers in which the state or county may have an interest."

By the third section it is made the duty of the county attorney to prosecute criminal complaints before magistrates, as well as all civil suits before such officer, in which the state or county is a party or interested.

Section 5 fixes the amount of salary according to the population of the county.

Section 6 provides that "The county attorney may appoint one or more deputies, who shall act without any compensation from the county, to assist him in the discharge of his duties; Provided, That the county attorney of any county may, under the direction of the district court, procure such assistance, in the trial of any person charged with the crime of felony, as he may deem necessary for the trial thereof, and such assistant or assistants shall be allowed such reasonable compensation as the county board shall determine for his services, to be paid by order on the county treasurer, upon presenting to said board the certificate of the district judge before whom said cause was tried certifying to the services rendered by such assistant or assistants."

Section 7 provides that "In the absence, sickness, or disability of the county attorney and his deputies, the court before whom it is his duty to appear, in which there may be business for him, may appoint an attorney to act as county attorney, by an order to be entered upon the minutes of the court, but who shall receive no compensation from the county except as provided for in section six (6) of this act."

Prior to the adoption of the act from which the above sections are taken there existed in this state the office of district attorney. It was the duty of that officer to prosecute and defend all suits, civil and criminal, within his district in which either the county or state was interested. As the population of the state increased the duties devolving upon the district attorney so augmented that it was impossible for him to do but little, if anything, more than attend to the criminal prosecutions in the district courts of the counties of his district. For the purpose of granting relief the legislature, in 1879, adopted section 47 above quoted, providing for the appointment of a county attorney in each county. In 1885 the legislature abolished the office of district attorney and created the office of county attorney providing for the election of such officer by the people. It...