Ravenscraft v. Board of Commissioners Blaine County

• Decision Date: 01 February 1897
• Citation: 47 P. 942,5 Idaho 178
• Parties: RAVENSCRAFT v. BOARD OF COMMISSIONERS BLAINE COUNTY
• Court: Idaho Supreme Court

47 P. 942

5 Idaho 178

RAVENSCRAFT v. BOARD OF COMMISSIONERS BLAINE COUNTY

Supreme Court of Idaho

February 1, 1897

UNDERTAKING ON APPEAL.-Under act of March 6, 1895, no undertaking on appeal from an order made by a board of county commissioners to the district court is required, nor in such case on appeal from the district court to the supreme court.

PRACTICE-STATEMENT OF PROCEEDINGS, WHEN REQUIRED TO BE PUBLISHED.-Statement of proceedings required to be published by act of March 6, 1895, does not limit the time within which an appeal from an order of a board of county commissioners can be taken unless the business of the session of such board has been completed, and the session finally adjourned.

EMPLOYMENT OF ASSISTANT COUNSEL BY COMMISSIONERS.-Where the validity of an act creating a county is to be litigated, the board of commissioners of such county, in the exercise of a reasonable discretion, may employ private counsel to assist the attorney general in guarding the interests of the county in such litigation.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Affirmed, without costs.

A. F Montandon, for Appellants.

Boards of county commissioners being courts of most limited jurisdiction, jurisdiction must affirmatively appear. It will not be presumed. (Gorman v. Board, 1 Idaho 553, 556 558; City of Ottawa v. Carey, 108 U.S. 110, 2 S.Ct 361; Barnett v. Denison, 145 U.S. 135, 12 S.Ct. rep. 819; Glass v. Ashbury, 49 Cal. 571; McCoy v. Bryant, 53 Cal. 247, 249; Herzo v. San Francisco, 33 Cal. 134; Hawes on Jurisdiction of Courts, sec. 257, and note 4; Freeman on Judgments, secs. 517-519, 521, 522; Wharton's Civil Evidence, sec. 1310; Lawson's Presumptive Evidence, 27-33.) The necessity to employ counsel is a prerequisite to the power to the board to employ, and is jurisdictional. (Freeman on Judgments, sec. 117, and note 4; Pryor v. Downey, 50 Cal. 388, 400-408, 19 Am. Rep. 656; Murphy v. Montandon, 3 Idaho 325, 35 Am. St. Rep. 279, 29 P. 851.)

S. B. Kingsbury and Lyttleton Price, for Respondent.

Boards of county commissioners are invested by law with power to act in matters pertaining to the duties imposed upon them by law. This is jurisdictional. It does not depend upon how they act, whether rightly and legally or otherwise. It is their authority to act at all. Among the many authorities defining jurisdiction, the case of Sherer v. Superior Court, 96 Cal. 653, 31 P. 565, is cited as giving the accepted meaning and exemplifying an application analogous to the case at bar. In Laws v. Harlan County, 12 Neb. 637, 12 N.W. 114, a question almost identical with the one at bar was presented. The point was that there was no allegation as to the "necessity" of employing an expert to examine the county books. The court held that the order employing an expert was the finding of the necessity.

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

In March, 1895, the board of county commissioners of Blaine county, by resolution then entered of record in the record of proceedings of said board, decided to employ the respondents, Johnson & Johnson, as counsel and attorneys for Blaine county, "to advise, counsel and direct, and, if necessary, manage and conduct suit for said county, in and about the organization of said county, and maintaining and enforcing the law creating said county, and that for said services they be paid a retainer of $ 1,000, and a reasonable fee for services," etc. The respondents accepted employment under said resolution, whereupon said resolution (if said board of county commissioners had the power to make it) became an executory contract. The record shows that respondents, acting under said employment, and acting in the interest of Blaine county, and for the purpose of determining the validity of the act creating said Blaine county, rendered professional services in this court in the case of Bellevue Water Co. v. C. O. Stockslager, and in the case of Wright v. Kelley et al., both of which were brought to test the constitutionality of the said act creating Blaine county. Respondents presented their claim for said services in the sum of $ 1,000, which claim was duly verified; and on January 22, 1896, said board allowed the said claim of respondents to the extent of $ 750, and disallowed the residue thereof. The January meeting of the said board of commissioners was commenced at the time appointed therefor by law, and the record shows that adjournment of said meeting was had from time to time. The said board, on one or more occasions, adjourning over for more than one day; i. e., January 24th "adjourned to February 5, 1896, at which time they propose to complete the business of the term," until April 1, 1896, when the said board adjourned sine die. On the eighth day of May, 1896, the appellants, as taxpayers of said Blaine county, filed with the clerk of said board of commissioners a notice of appeal from the order of said board allowing in part the claim of respondents, as aforesaid, to the district court of the fourth judicial district in and for Blaine county. This appeal came on for hearing before said district court, and the respondents there appeared, and moved to dismiss the appeal, on the ground that "said appeal was not taken within the time allowed by law, and was not taken within twenty days after the first publication of the statement giving notice to the public of all of its acts and proceedings done at its regular session beginning January 13, 1896," which motion was by said district court denied, to which ruling respondents excepted, as shown by bill of exceptions appearing in the record in this case; and, for the same reason, the respondents moved to dismiss the appeal in this court. The motion to dismiss the appeal and the case on its merits were heard together, and we are now called upon to decide both the motion to dismiss and the case on its merits.

It appears from the record that a brief statement of all the acts and proceedings of said board of commissioners from January 13, 1896, to January 24, 1896, inclusive, was published in the issues of February 1 and February 8, 1896 of the "Ketchum Keystone," a newspaper published at the village of Ketchum, in Blaine county; that the heading to said statement was in words as follows, to wit: "Report of regular session of county commissioners held at Hailey, January 13, 1896"; and in said statement the following language was contained: "The following bills were allowed on general fund: Johnson & Johnson, legal services, supreme court, $ 750." Respondents contend that the twenty days' time within which to take an appeal from the order complained of to the district court commenced on the first day of February, 1896, the day on which said statement was first published, as aforesaid. This contention is not correct. The statement which paragraph 19 of section 1759 of the Revised Statutes, as amended by act of March 6, 1895, authorizes, should be published at the final adjournment of the "meeting," "session" or "term" of the board, and after all of the business of the term has been completed. The word "session," as used in the statute, is synonymous with "term"; and the said statement should not have been published till after the "term" was adjourned sine die. The statement published in the "Ketchum Keystone" was premature, and not sufficient. We are not advised whether such statement was published at the adjournment of the January term, 1896, of said board of commissioners, as would "give notice to the public of all its acts and proceedings," as required...