Dixon v. Livingston Cnty.

• Decision Date: 31 October 1879
• Citation: 70 Mo. 239
• Parties: DIXON, Plaintiff in Error, v. LIVINGSTON COUNTY.
• Court: Missouri Supreme Court

70 Mo. 239

DIXON, Plaintiff in Error,

v.LIVINGSTON COUNTY.

Supreme Court of Missouri.

October Term, 1879.

Error to Livingston Circuit Court.

AFFIRMED.

This was an action brought to recover fees claimed to have been earned in the prosecution of a suit by injunction, instituted for the purpose of protecting and securing the rights of the county of Livingston as a stockholder in the Chillicothe & Brunswick Railroad Company. The petition alleged that the plaintiff was employed by the county court at a time when the circuit attorney was necessarily absent from the county attending to his official duties in another county of the circuit, and that if an attorney had not been so employed, the stock of the county would have been sold under a fraudulent deed of trust, and would have been wholly lost to the county. There was a demurrer to the petition, which being sustained, judgment was entered for the county, and the plaintiff sued out this writ of error.

Chas. A. Winslow for plaintiff in error, cited Laws 1863-4. p. 485, § 6; 1 Wag. Stat., § 3, p. 408; Copp v. St.Louis Co., 34 Mo. 383: Dillon on Mun. Corp., (1 Ed.) § 399 and notes; Smith v. Sacramento, 13 Cal. 531; Hornblower v. Duden, 35 Cal. 664; Langdon v. Castleton, 30 Vt. 285.

C. H. Mansur and J. M. Davis for defendant in error, cited Wolcott v. Lawrence Co., 26 Mo. 275; Reardon v. St. Louis Co., 36 Mo. 560; Delafield v. Illinois, 2 Hill 174; McClenticks v. Bryant, 1 Mo. 598; St. Louis Co. v. Cleland, 4 Mo. 85; Carroll v. St. Louis, 12 Mo. 444; Copp v. St. Louis, 34 Mo. 388; Wag. Stat., 408, § 3; 204, §§ 25, 35; Clough v. Hart, 11 Am. Law Reg. (N. S.) 95; s. c., 8 Kas. 487

NORTON, J.

The decisive question presented for determination in this case is, whether the county court of Livingston county, in 1871, could lawfully employ or contract with an attorney to prosecute any suit for and on behalf of said county, the circuit attorney of the judicial circuit in which Livingston county was embraced residing at the time of such employment in said county. It may be stated as settled that the county court could only make such contracts as the law in being at the time might authorize. Wolcott v. Lawrence Co., 26 Mo. 275; Reardon v. St. Louis Co., 36 Mo. 560; Carroll v. St. Louis, 12 Mo. 444.

1. EMPLOYMENT OF SPECIAL ATTORNEY BY COUNTY COURT.

The solution of the question, therefore, involves a consideration of the statute bearing upon it. Section 25, Wag. Stat., 204, provides that “the county courts of the several counties are authorized, when they think the interests of the county require it, to appoint a county attorney, who shall be learned in the law, be at least twenty-one years of age, reside at the seat of justice of the county, and who shall hold his office for one year. But no county attorney shall be appointed for any county in which the circuit attorney for the proper circuit resides, but said circuit attorney shall act as the county attorney of said county and receive the same compensation.” It is proper to observe that at the time of the alleged employment of plaintiff as attorney by the county court of Livingston county, the law provided that there should be one circuit attorney in each judicial circuit in the State. It may also be observed that the petition of plaintiff alleges that the circuit attorney of the circuit, in which Livingston county was situated, resided in said county of Livingston, and it, therefore, follows under the section of the statute above quoted that all the duties required of county attorneys, so far as related to Livingston county, were devolved on the circuit attorney. The duties thus cast upon him were, that he should prosecute or defend, as the case might require, all civil suits in which the county was interested, represent generally the county in all matters of law, investigate all claims against the county, draw all contracts relating to the business of the county, and give his opinion, without fee, in matters of law in which the county was interested, and in writing, when demanded, to the county court or any justice thereof. § 27, Wag. Stat., 204. The petition of plaintiff shows, upon its face, that the circuit attorney resided in Livingston county, and this fact not only enjoined on him the duty of performing all the services specified in section 27, supra, but expressly forbade, under section 25, supra, the county court from appointing a county attorney to perform such duties.

Our attention has been called to section 35, Wag. Stat., 205, which it is claimed authorized the county court to enter into the contract upon which plaintiff bases his right of recovery. That section is as follows: “If the county court of any county shall think the interest of said county does not require the appointment of a county attorney, as before provided, said court is hereby authorized to contract with some person professing the qualifications necessary for a county attorney, to prosecute or defend, on behalf of the county, as the case may be, any and all civil suits in which the county is interested, or attend to any matters of law relating to the...