Conger v. Commissioners of Latah County

• Decision Date: 28 May 1897
• Citation: 48 P. 1064,5 Idaho 347
• Parties: CONGER v. COMMISSIONERS OF LATAH COUNTY
• Court: Idaho Supreme Court

48 P. 1064

5 Idaho 347

CONGER v. COMMISSIONERS OF LATAH COUNTY

Supreme Court of Idaho

May 28, 1897

COUNTY COMMISSIONERS-JURISDICTION.-County commissioners have only such jurisdiction and power as is conferred on them by law.

COUNTY NOT PARTY IN INTEREST-SECTION 1759 OF THE REVISED STATUTES CONSTRUED.-A county is in no sense a party in interest, as that term is used in subsection 13, section 1759 of the Revised Statutes, in a criminal case prosecuted in the name of the people or state.

EMPLOYMENT OF COUNSEL BY COMMISSIONERS-CONSTITUTIONAL CONSTRUCTION.-Under the provisions of the statute and of section 6, article 18, of the state constitution, county commissioners are not authorized to employ counsel in criminal cases.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded, with instructions.

William H. Clagett, for Petitioner, says:

I am the real party in interest in the matter of this appeal. That the first time I learned that such appeal had been taken was on March 9, 1896, when I received by mail the brief of appellant and the transcript and too late to prepare, print and serve a brief herein within the time for serving such brief provided in the rules of this court. I therefore present this petition and ask leave of court to be permitted to argue the same, and present to this honorable court such additional points and authorities as may hereafter come to my knowledge prior to such hearing. The points and authorities submitted at this time are as follows, viz: 1. The appeal is from the judgment. By taking this course the appellant has deprived me of the benefit of having the evidence given before the court below, and thus the court cannot consider it as a part of the record. As the actual facts, however, are useful to illustrate the points hereafter made I will briefly state them for illustrative purposes only. On April 21, 1895 the members of the board came from Moscow to Lewiston to employ me to assist the district attorney in the Williams case. The case was already set for trial on the next day, and there was no time to look into any matter connected with the formalities of the employment. The trial was put off two days by intervening business and began on April 24th and lasted sixteen days. The board was not then in session, although expected to be so some time during the week and after the day set for the trial. I became absorbed in the case, and thought nothing more about the fee until the trial ended. I then presented my claim to the board in actual session, which ratified the contract made with me by its members. When acting in good faith within the limits of the powers conferred upon it by the constitution, the board, in a legal sense, is the county, which acts through its board, and the same rule applies to a board so acting within its power as applies to an individual. Any other rule would lead to infinite frauds upon those dealing with a public corporation. (Gas Co. v. San Francisco, 9 Cal. 470 et seq.; 1 Dillon on Municipal Corporations, secs. 463, 465, 547; Mechem on Agency, sec. 118.) The court has treated my claim for compensation as though this was an action brought by me against the county to enforce an alleged executory contract made with the individual members of the board only, which the board, as such, had never accepted, and which it had either repudiated, or at least had never ratified. The entire decision rests upon this erroneous assumption. I claim nothing under the agreement with the members, as such, taken by itself alone. Their action is legally important only as showing that when the board as a board subsequently accepted the benefit of the services rendered and ratified the agreement it was fully advised of all the facts. This knowledge is a necessary condition to a valid ratification. (Ewells' Evans on Agency, p. 79; 1 Parsons on Contracts 45; People v. Swift, 31 Cal. 28; Menser v Ridson, 36 Cal. 245.) The board had the power (the necessity existing), and no particular way of contracting by the board being prescribed by statute, its ratification was valid and bound the county, as the contract not of the members but of the board, and this contract took effect by relation from the date it was made by the individual members of the board. (McCracken v. San Francisco, 16 Cal. 592; Zottman v. San Francisco, 20 Cal. 102 et seq.; Mechem on Agency, sec. 111-116; Wharton on Agency, 76-78, 83; Marsh v. Fulton, 10 Wall. 676; Highway Commrs. v. Van Dusen, 40 Mich. 431; Green's Brice's Ultra Vires, 549; Broom's Legal Maxims, 8th ed., 867, 868; Cook v. Tullis, 18 Wall. 332; Fleckner v. Bank, 8 Wheat. 363; Taylor v. Robinson, 14 Cal. 400; Taymouth v. Keehler, 35 Mich. 21, 25.) The evidence in the case shows that the contract of the members was ratified by the board. (Clarke v. Lyon Co., 8 Nev. 188; Ewells' Evans on Agency, 83-85.) The question whether boards of county commissioners in this state are authorized to employ additional counsel to assist the district attorney in the prosecution of criminal cases is one of construction, and hinges upon the meaning and intent of section 6, article 18, of the constitution, which says the "county commissioners may employ counsel when necessary." One of the most important aids in arriving at the intent of a law is the obligation resting upon the court to inform itself of the previous state of the law, and the mischiefs which the statute to be construed was passed to obviate. (Sedgwick on Statutory and Constitutional Law, 239.)

A. J. Green, for Appellant and against the Petitioner W. H. Clagett.

There are just two points in this case, both of which were presented to this court in the brief of appelant: 1. Have county commissioners power, or authority, to employ counsel to assist district attorneys in prosecuting criminal cases? 2. Were the circumstances in this case made a matter of record by the board so as to authorize the said commissioners to bind the county? As the court in deciding this case in the March term, 1896, decided said case upon the latter point, that is, that the record of the board was not sufficient to bind the county or that the individual members could not make a contract binding the county, and as the respondent in his petition for rehearing has relied solely upon this one point, I will cite a few authorities and argue this point first. The board of county commissioners did not employ Clagett to prosecute the case or assist the district attorney in the case. Members of the board of county commissioners cannot make a contract that is binding on the county when said board is not in session. (Board of County Commrs. v. Webb, 47 Kan. 104, 27 P. 825; Hampton v. Board of County Commrs., 4 Idaho 646, 43 P. 324.) The second point is that county commissioners have no authority or power to make a contract with an attorney for legal services when the law provides that said services shall be performed by the district attorney. (Waters v. Trovillo, 47 Kan. 197, 27 P. 822.) The county is in no sense a party in a criminal case prosecuted in the name and on behalf of the state. (County of Modoc v. Spencer, 103 Cal. 498, 37 P. 483.) It is the duty of the district attorney to prosecute all cases of a criminal nature in the district courts of his district, and when he is absent from the court, or where he has acted as counsel or attorney for a party accused in relation to the matter of which the accused stands charged and for which he is to be indicted or tried, or when he is near of kin to the party to be indicted or tried on a criminal charge, or when he is unable to attend to his duties, the district court must appoint some suitable person to perform the duties of such district attorney, and must allow such compensation as the court may deem proper out of the salary of the district attorney for all services by him performed. (See 1st Sess. Laws, secs. 2, 3, p. 47; Hampton v. Board of County Commrs. , 4 Idaho 646, 43 P. 324.) We submit that county commissioners have no power or authority under the constitution and statutes to employ counsel to assist district attorneys in criminal cases, and that in this case the order made by the said commissioners on the eleventh day of May, 1895, in which they allowed the respondent, William H. Clagett, the sum of $ 250 for the prosecution of L. F. Williams was illegal and not binding on said Latah county.

SULLIVAN C. J. QUARLES, J., concurring. HUSTON, J., dissenting.

OPINION

SULLIVAN, C. J.

As the facts of this case are quite fully stated in the former opinion, accompanying this, it is not necessary to repeat them here. The cause on rehearing has been very ably presented by counsel for the respective parties. The counsel for appellant contends: 1. That, before the board of county commissioners can bind the county in the employment of counsel, they must act as a board, and the necessity for such employment must be apparent, and that the facts creating such necessity must be made a matter of record; 2. That the county commissioners had no jurisdiction or power to employ counsel to assist the district attorney in the prosecution of said Lafayette Williams, who was charged with the crime of embezzling $ 250 of the funds of the city of Moscow. Counsel for respondent contends that said board had jurisdiction and authority to employ such counsel.

As to the first contention of appellant, the court held, in the former opinion, that in the employment of counsel by the county commissioners, in order to bind the county, they must act as a board, and their action must be made a matter of record. The facts clearly show that counsel was employed by individual members of said board and no action taken by the board until after the services had been performed, and that no employment...