Hampton v. Logan County Com'rs

• Decision Date: 16 January 1896
• Citation: 4 Idaho 646,43 P. 324
• Parties: HAMPTON v. COMMISSIONERS OF LOGAN COUNTY
• Court: Idaho Supreme Court

43 P. 324

4 Idaho 646

HAMPTON v. COMMISSIONERS OF LOGAN COUNTY

Supreme Court of Idaho

January 16, 1896

CONTRACT-QUANTUM MERUIT-COUNTY COMMISSIONERS.-Services rendered under a void contract with a board of county commissioners cannot be recovered for in an action upon quantum meruit.

APPEAL from District Court, Blaine County.

Reversed and remanded, with instructions.

Texas Angel and H. S. Hampton, for Appellant.

The board of county commissioners of Logan county, disallowed the claim of appellant against Logan county, for services as attorney for Logan county, amounting to $ 3,692, as shown by the itemized bills appearing in the transcript. The case was tried in the district court without a jury, and judgment was entered in favor of appellant for the sum of $ 832, and against him for any greater amount. From that portion of the judgment adverse to appellant he appeals to this court, on the ground that the decision is not supported by the evidence. The findings show, generally, that all the services charged for in these various items of account were actually performed by appellant on behalf of Logan county; but that they were performed under and by virtue of a certain contract for a salary of $ 2,000 per annum, which said contract has been declared void by the supreme court of Idaho in the case of Meller v. Board of County Commissioners of Logan County. There can be no doubt but the services in the district court were such as the board had a legal right to contract for. Section 1757, subdivision 13, Revised Statutes of Idaho settles that point beyond any question. (Hornblower v Duden, 35 Cal. 664; Smith v. Mayor of San Francisco, 13 Cal. 533; Scollay v. Butte Co., 67 Cal. 249, 7 P. 661; Lassen v. Shinn, 88 Cal. 510 26 P. 365.) Of course an executory contract, made without authority cannot be enforced; but a different question arises where the contract has been executed, and a corporation has received the benefit of it. In such a case the law imposes an estoppel and will not permit the invalidity of the contract to be called in question. (Brown v. City of Atchison, 39 Kan. 37, 7 Am. St. Rep. 515, 17 P. 465; New Athens v. Thomas, 82 Ill. 259; Hitchcocks v City of Galveston, 96 U.S. 350; Boone on Corporations, sec. 101; Mound City v. Snoddy, 53 Kan. 126, 35 P. 1112; City of Elsworth v. Rossiter, 46 Kan. 237, 26 P. 674; Bellevue Water Co. v. City of Bellevue, 3 Idaho 739, 35 P. 693; Pixley v. W. P. R. R. Co., 33 Cal. 193, 91 Am. Dec. 623.) "In employing counsel the board acts as a corporation, and, like other corporations, may employ agents or attorneys without making such employment a matter of record; but this must be done as the concurrent act of a majority of the board at a legal session." (4 Am. & Eng. Ency. of Law, 383, 397; Dunlap v. Water Commrs. of Erie, 151 Pa. St. 477, 25 A. 60; McCabe v. Commrs., 46 Ind. 380; Jordan v. Osceola Co., 59 Iowa 388; 13 N.W. 344; Bridges v. Clay, 58 Miss. 817.) There is no statute in this state prescribing any form or mode of contracting by or with a county. The powers of the board, under our statute, are of the most general and ample nature. (Idaho Rev. Stats., secs. 1730, 1731, 1733, 1759, subd. 22.)

Attorney General George M. Parsons and N. M. Ruick, for Respondent.

On the thirteenth day of January, 1893, the board of county commissioners of Logan county, pursuant to an order of said board previously made, entered into a contract in writing with appellant, Hampton, whereby the latter was to act as attorney and legal adviser of said county for a period of two years, for which service he was to receive $ 2,000 per annum, payable quarterly. On October 21, 1893, this contract was spread upon the minutes, and the same was, then and there by said board, ordered "recognized, ratified and confirmed as the unanimous action of the board at their regular session in January, 1893." Appellant prosecutes an appeal to this court, professedly from a part of the judgment only, but as respondent claims, in effect, from the entire judgment. The notice of appeal does not follow the language of the judgment in any particular, and is broad enough to bring the judgment in its entirety before the court for review. Independent, however, of the notice of appeal, the power and authority of this court "to review any decision of the district courts or the judges thereof" is conferred by the constitution and statutes of this state. (Idaho Const., art. 5, sec. 9; Idaho Rev. Stats., sec. 3818; City of Boise v. Water Co., ante, p. 392, 39 P. 566.) All the duties which the appellant was required under the contract to perform, as well as all those which he claims to have performed (with the possible exception of attending upon preliminary examinations), are among the official duties imposed by law upon the district attorney or attorney general. The statute having so provided, the power of the board to employ other counsel was limited to cases of necessity, "which necessity must have been apparent." (Idaho Rev. Stats., sec. 1759, subd. 13; Const., art. 18, sec. 6.) The position which appellant was called upon by the contract to fill, being in effect an office unknown to the constitution or statutes of this state, the action of the board in its attempted creation was void and the county is not liable for services. (Dillon on Municipal Corporations, 4th ed., sec. 230; Meager v. County of Story, 5 Nev. 244, 250; City of Central v. Sears, 2 Colo. 588.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

The board of commissioners of Logan county in 1893 made a contract with the plaintiff by which they agreed to employ, and did employ, him as the attorney of said county, to act as the legal adviser of the board of commissioners of said county, and to attend to all litigation in which said county was interested, both in the district court for said county, and in the supreme court of the state. This court, in the case of Meller v. Board, ante, p. 44, 35 P. 712, affirming the judgment of the district court, declared said contract null and void. The plaintiff thereafter presented an itemized bill for his services rendered under said contract to said board, which bill was disallowed by said board, and from which action of the board plaintiff appealed to the district court for said Logan county. The aggregate of plaintiff's bill so, as aforesaid, presented to the board of commissioners was the sum of $ 3,642, as appears by the record. Of this sum the district court, on appeal from the board, allowed the sum of $ 832, and affirmed the action of the board as to the residue. From this action of the district court this appeal is taken.

It is contended by the plaintiff that, notwithstanding the contract under which the services were performed was null and void still, as the services were performed by him at the request of the board, he is entitled to his compensation therefor, upon a quantum meruit, as both the constitution and the statutes of this state authorize the employment of counsel other than the district attorney by the board of commissioners, "when necessary." In Meller v. Board, supra, this court held that, before a board of county commissioners can employ counsel as provided in the constitution and statutes, the necessity therefor must be apparent. The discretion given to the board by the constitution is not an arbitrary, limitless discretion, to be controlled only by the caprice of the board, or a majority of its members, but is rather a discretion to be exercised under, and with due regard to, the provisions of the statutes. Section 18 of article 5 of the constitution, in making provision for the election of district attorneys, and defining their duties, provides that the district attorney shall "perform such duties as may be prescribed by law." First Session Laws 1890-91, section 3, page 47, title "District Attorneys--Duties," provides as follows: "It is the duty of the district attorney: 1. To prosecute or defend all actions, applications or motions, civil or criminal, in the district court of his district in which the people or the state, or any of the counties of his district, are interested or a party; and when the place of trial is changed in any such action or proceeding to another county, he must prosecute or defend the same in such other county; 2. To give advice to the board of county commissioners and other public officers of his district, when requested in writing, in all public matters in which the people or the state or counties of his district are interested, or relating to the discharge of the official duties of such boards or officers," etc. First Session Laws of 1890-91, page 47, section 2, amending section 2051 of the Revised Statutes, provides that whenever, from any of the causes therein mentioned, the district attorney is incapacitated for, or unable to attend to, his duties in the district court, such court may appoint some suitable person to act in his place for the time being, and such person so appointed "may receive such compensation as the court may allow, out of the salary of the district attorney, for all services by him performed." Now, do these statutes mean anything, or are they mere "sound and fury, signifying nothing"? It seems to me, the object and purpose of these statutes is palpable. They were not passed upon the eve of an election, and cannot, therefore, be considered as the nudum pactum pledges and promises of a political platform. They are the solemn acts of the legislative power of the state. They were enacted under, and are in conformity with, the provisions of the constitution. The intent and object are palpable and unequivocal. But it is contended the constitution provides that "the county commissioners may employ counsel when necessary. " (Const.,...