Cuming Cnty. v. Tate
| Decision Date | 19 March 1880 |
| Parties | CUMING COUNTY v. TATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Cuming county.
____ Bruner, for plaintiff.
____ Tate, for defendant.
Is not deemed necessary to notice either of the questions of pleading and practice presented in this case further than to say that, by answering, the plaintiff in error waived any error which might have intervened in overruling the demurrer and motion to strike out a part of the petition; that, if there is a cause of action expressed in the petition, it is admitted in the answer, and in that case there would be no error on the part of the court in rendering judgment on the pleadings; and that the amendment allowed is clearly within the statute. We are, therefore, left to the main question, is the plaintiff in error, the board of county commissioners of Cuming county, liable to the defendant in error for his services as assistant district attorney in the case stated in the record?
The office of district attorney was unknown to the laws of the late territory of Nebraska, but under provisions of law each organized county was empowered to elect a prosecuting attorney, whose term of office, powers, duties, etc., are set forth in sections 15 to 21 inclusive, c. 3, of the Rev. Statutes. Among the other provisions of the said sections was that cited by defendant in error: “On application of any prosecuting attorney * * the court may appoint an assistant prosecuting attorney, for whose services the court shall make an allowance,” etc. But at the first session of the state legislature an act was passed and approved June 11, 1867, entitled “An act to provide for the election of district attorneys and to define their duties.” The provisions of this act, in terms, abolished the office of prosecuting attorney after the second Monday in August, 1867, and, although it did not, in terms, repeal the provisions of sections 15 to 21, c. 3 Rev. St., above quoted, yet the said act of June 11, 1867, is complete within itself. It covers the whole ground. Section 5 provides that “the district attorney may, at his discretion, appoint one or more deputies, for whose official acts and fees he shall at all times be responsible.”
There is, then, no longer any standing room for the provisions of chapter 3, Rev. St., authorizing the court, on the application of the prosecuting attorney, to appoint assistants, and making the county responsible for their pay upon the allowance of the court. See Smails v. White, 4 Neb. 353, and authority cited in the opinion.
Under the old system, when each county elected its own prosecuting attorney and fixed his salary, it may frequently have happened that lawyers somewhat lacking in experience and ability were elected to that office in some of the counties, hence the propriety of the provision of the earlier law, and the probability of its not unfrequent application. But upon the change from territorial to state government the people, through their representatives, saw fit to change the whole system. They abolished the office as it then existed, with all of its emoluments, powers and liabilities, and provided for the election of but one district attorney for each judicial district, and fixed his salary at what was deemed a sufficiently respectable figure, to secure the services of good lawyers; and, what is more, they made him a state officer, and thereby in a great measure withdrew the responsibility of the prosecution from county concern.
While the law makes it the duty of the district attorney to appear in the district court at each term of the same in each county in the district in which he was elected, and prosecute and defend all actions, civil and criminal, and all matters whatsoever in which the state or county may be interested, etc., yet, as there may be and often are cases where, on account of sickness or other cause, the district attorney cannot attend, hence the provision authorizing him to appoint a deputy. But if he cannot work “neither shall he eat.” He must turn over his salary or a part of it to pay his deputy.
The defendant in error cites Hopkins v. Clayton County,...
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