Meller v. Board of Logan County Com'rs

• Decision Date: 05 February 1894
• Citation: 35 P. 712,4 Idaho 44
• Parties: MELLER v. BOARD OF COMMISSIONERS OF LOGAN COUNTY
• Court: Idaho Supreme Court

35 P. 712

4 Idaho 44

MELLER v. BOARD OF COMMISSIONERS OF LOGAN COUNTY

Supreme Court of Idaho

February 5, 1894

POWER OF COUNTY COMMISSIONERS-CANNOT CREATE A COUNTY OFFICE-CONSTITUTIONAL PROHIBITION.-The appointment of one to be and act as the legal adviser of the board of county commissioners for a period of two years, and a contract by the board with such appointee defining his duties and fixing his compensation, is the creation of a county office, and is prohibited by the constitution of this state.

SAME.-The boards of county commissioners have no authority to devolve upon an appointee of their own the duties and functions which the law has already affixed to another office.

ORDERS OF COMMISSIONERS REVIEWABLE.-All orders of the boards of county commissioners are reviewable by the courts.

SAME-COMMISSIONERS MUST SHOW NECESSITY BEFORE EMPLOYING COUNSEL.-Before a board of county commissioners can employ counsel as provided in the constitution and the statutes, the necessity therefor must be apparent, and their action in making such appointment is reviewable by the courts.

(Syllabus by the court.)

WRIT of error to District Court, Logan County.

Judgment affirmed, with costs.

H. S Hampton and N. M. Ruick, for Plaintiff in Error.

When our state constitution was adopted it abolished the office of county attorney, and provided for a district attorney whose jurisdiction extends over several counties. At the same time the framers of the constitution, evidently foreseeing the necessity which would arise under the changed conditions provided, in section 6 of article 18 of our constitution that "The county commissioners may employ counsel when necessary." It was undoubtedly apparent to the framers of the constitution, as it has since been proved by experience, throughout the state, that the district attorney could be of little effective service to half a dozen different boards of commissioners, sitting, at the same time in as many different counties; nor could the district attorney be on hand to attend examinations, or prosecute civil suits, or appeal from orders or actions of the several boards of commissioners. That the employment of counsel by the year is the establishment of an office is wholly untenable. Office differs widely from employment, and involves delegation of sovereign functions. (Mechem on Public Officers, secs. 1, 2; Idaho Rev. Stats., sec. 1759, subd. 13; Scallay v. County of Butte (Cal.), 7 P. 660.) Persons whose duties are created by contract and not by law are not officers. (Mechem on Public Officers, secs. 2, 3, 5, 8, 36, 463; City of Ellsworth v. Rossiter, 46 Kan. 237, 26 P 675.)

G. L. Waters and P. M. Bruner, for Defendant in Error.

County commissioners have no power to create an office, or officer, when the authority is not especially granted and specified. (Idaho Const., art. 3, sec. 19; State v. Brennan, 49 Ohio St. 33, 29 N.E. 593.) The law has provided that the district attorney shall counsel and advise the boards of county commissioners and attend to all suits and legal matters to which the county is a party. (Idaho Laws 1891-92, p. 47; Idaho Const., art. 5, sec. 18.) Commissioners have power to employ counsel only in specific cases, when necessary. (Idaho Const., art. 18, sec. 6; Idaho Rev. Stats., sec. 1759, subd. 13; Smith v. Mayor etc., 13 Cal. 531; Marion Co. v. Taylor, 55 Miss. 184; Piatt Co. v. Gerrard, 12 Neb. 244; Waters v. Trovillo, 47 Kan. 197, 27 P. 822.) Powers of boards of county commissioners are strictly statutory. (15 Am. & Eng. Ency. of Law, 1039.) Contract is ultra vires, and therefore void. (15 Am. & Eng. Ency. of Law, 1100.) Where a written contract between a county and an individual shows upon its face that it was made by the county for the professional services of the individual as an attorney and counselor at law, which services are such as the law requires to be performed by the county attorney, such contract is prima facie void. (Clough v. Hart, 8 Kan. 487; Doster v. Howe, 28 Kan. 357; Thatcher & Stephens v. Commissioners of Jefferson Co., 13 Kan. 189, 190.)

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

OPINION

HUSTON, C. J.

This case is before us on a writ of error to the district court for the county of Logan. The facts as they appear by the record are as follows: That on the third day of January, 1893, the board of county commissioners for Logan county made, and caused to be entered upon their records, the following order: "Ordered that H. S. Hampton be, and he is hereby, appointed and retained as legal adviser of the board of commissioners for Logan county." On the thirteenth day of January, 1893, the board of commissioners for Logan county made the following contract with said H. S. Hampton:

"Ordered, that the following contract, made by the board with H. S. Hampton, for legal services, on the thirteenth day of January, 1893, be spread upon the minutes:

"'This agreement, made the thirteenth day of January, in the year of our Lord 1893, between H. S. Hampton, of Bellevue, Logan county, state of Idaho party of the first part, and Logan county, the party of the second part, witnesseth: That the said party of the first part, in consideration of the covenants, promises and agreements on the part of the said party of the second part, hereinafter contained, hereby covenants with the said party of the second part that the said party of the first part will act as attorney and legal adviser for said party of the second part for the term of two years, ending on the first day of January, 1895, and will prosecute or defend all actions or suits to which the said party of the second part may or shall be a party, in any of the courts of this state. And the said party of the second part, in consideration of the said covenants on the part of said party of the first part hereinbefore contained, agrees to and with the said party of the first part that the said party of the second part will pay said party of the first part, for his said services within Logan county, and in the courts of said county, the sum of $ 2,000 per annum, payable quarterly, $ 500 to be paid at the regular meeting of the board of county commissioners held in April, 1893, and $ 500 every three months thereafter, and in addition thereto to pay said party of the first part a reasonable fee for any legal services required of him to be performed outside of said Logan county, and his actual and necessary expenses while away from the county seat, attending to business of said party of the second part. And, for the true and faithful performance of all and every of said covenants, the said parties to these presents bind themselves each unto the other in the penal sum of dollars, of the United States of America, as fixed, settled and liquidated damages, to be paid by the failing party to the other, his heirs or assigns.

"'In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written.

"'H. S. HAMPTON. [Seal]

"'J. C. CUNNINGHAM. [Seal]

"'JAMES OTTERSON. [Seal]

"'JOSHUA W. WINTERS. [Seal]

"'Board of County Commissioners of Logan County, State of Idaho.

"'Signed, sealed, and delivered in the presence of .'

"The foregoing contract is hereby recognized, ratified and confirmed, as unanimous action of the board of county commissioners of Logan county, Idaho at their regular session in January, 1893. . . . The board here adjourned to October 21, 1893, at 9:30 A. M.

"Approved: J. C. CUNNINGHAM,

"Chairman.

"W. B. GEORGE,

"Clerk.

"State of Idaho County of Logan. ss.

"I, W. B. George, clerk of the board of county commissioners of Logan county, state of Idaho hereby certify the above and foregoing to be a true and correct copy of the record of said board of commissioners, as shown on pages 429, 430, 431, 432, 433, and 434, of the commissioners' minute-book, concerning the said order. Witness my hand and the seal of said office, this ninth day of November, 1893.

"W. B. GEORGE,

"Clerk.

"Filed, Nov. 9, 1893."

On the twentieth day of October, 1893, the said board of county commissioners, being in regular session, ordered the said contract of January 15, 1893, to be spread upon the minutes of the proceedings of said board, and made the following order in relation thereto: "The foregoing contract is hereby recognized, ratified and confirmed, as the unanimous action of the board of county commissioners of Logan county, Idaho at their regular session in January, 1893." From this order of the board of October 20th, defendant in error appealed, under the provisions of section 1776 of the Revised Statutes, to the district court for said Logan county.

The district court, after finding the facts as hereinbefore set forth, finds, as conclusions of law: "1. That the action of the board of county commissioners of Logan county, in entering into the said contract with said Hampton, was unauthorized, illegal and void; 2. That the said contract was and is unauthorized, illegal and void, and that the county of Logan was not, and is not, bound thereby or thereunder; 3. That the action of said board of county commissioners, in ordering said contract to be spread upon their minutes, and in recognizing, ratifying and confirming the same, was and is, and each of said acts were and are, unauthorized, illegal and void"--and ordered judgment to be entered in accordance with said findings. Respondent brings the action of the district court here for review on writ of error.

The only question presented by this record is. Had the board of county commissioners of Logan county authority to make the contract set out in the record? Plaintiff in error contends that such authority is given in express terms both by the constitution and by the statute. Section 6 of...