Santa Cruz County v. Barnes

• Decision Date: 26 March 1904
• Docket Number: Civil 844
• Citation: 9 Ariz. 42,76 P. 621
• Parties: COUNTY OF SANTA CRUZ, Defendant and Appellant, v. WILLIAM H. BARNES et al., Plaintiffs and Appellees
• Court: Arizona Supreme Court

76 P. 621

9 Ariz. 42

COUNTY OF SANTA CRUZ, Defendant and Appellant, v. WILLIAM H. BARNES et al., Plaintiffs and Appellees

Civil No. 844

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. George R. Davis Judge. Affirmed.

The facts are stated in the opinion.

Frank J. Duffy, District Attorney of Santa Cruz County, for Appellant. Frederick S. Nave, of Counsel.

The board of supervisors could not lawfully employ special counsel to advise them.

"It may be safely stated as a rule that one who demands payment of a claim against a county must show some statute authorizing it, or that it arises from some contract express or implied, which itself finds authority in law. It is not sufficient that the services performed, for which payment is claimed, were beneficial." Irwin v. Yuba County, 119 Cal. 686, 52 P. 35, 37.

There is nothing in the statutes of Arizona to authorize a board of supervisors to employ attorneys to advise it. The only powers possessed by the board of supervisors of a county are powers expressly conferred by statute, or necessarily implied from statute. This question was recently before the supreme court of California. It is well known that with but few changes we have taken our County Government Law from the California code. In the case of Merriam v. Barnum, 116 Cal 619, 48 P. 727, the facts were that the plaintiff was an attorney at law and was employed by the board of supervisors of Fresno County, California, as special counsel in matters pertaining to the reconstruction of the courthouse (which had been recently destroyed by fire), insurance matters, etc.

"Plaintiff served during the month of August as special counsel in settling with insurance companies for losses sustained by fire, and in matters pertaining to the construction of the courthouse. He performed all the conditions of his contract and thereafter presented in due form for allowance his bill for services, which was allowed by the board of supervisors and ordered paid."

The county auditor refused to issue a warrant for plaintiff. The suit arose upon an application for a writ of mandate to compel the auditor to issue the warrant. They state the question and answer as follows: --

"The sole question in the case may be thus stated: Had the board of supervisors the power to employ plaintiff in the manner and for the purpose indicated by the above-quoted resolution? The district attorney is the legal adviser of the board of supervisors, and it is made his duty by law to attend its meetings and give all necessary advice. County Government Act, sec. 137; Stats. 1893, p. 381; Pol. Code, sec. 4257. Boards of supervisors are empowered (County Government Act; Stats. 1893, pp. 351, 356, 359), under such limitations and restrictions as are prescribed by law (sec. 25, subd. 17) 'to direct and control the prosecution and defense of all suits to which the county is a party and to employ counsel to assist the district attorney in conducting the same. . . . (35) To do and perform all other acts and things required by law, not in this act enumerated, or which may be necessary to the full discharge of the duties of the legislative authority of the county government.'

"Boards of supervisors are a creation of the statute, and, their powers being statutory, their acts must find warrant in the law, either expressly or by fair implication. Linden v. Case, 46 Cal. 172; County of Modoc v. Spencer, 103 Cal. 501, 37 P. 483. It is claimed that the authority of the supervisors in the matter under consideration is conferred by subdivision 35 of section 25 of the County Government Act, last above quoted. From the statutes above referred to, it is clearly the intention of the law that the district attorney -- no one else -- shall be and act as the legal adviser of the board, with power to the board, however, to employ additional counsel and special counsel to assist the district attorney in the prosecution or defense of suits to which the county may be a party. . . . However valuable the services of appellant may have been to the county in this instance, to permit compensation for them would be to override the law, and to destroy one of the strongest safeguards cast about the expenditure of county funds." Merriam v. Barnum, 116 Cal. 619, 48 P. 727.

It is to be observed that the California statutes quoted in this opinion are verbatim the statutes in force in Arizona when these services were alleged to have been rendered (Rev. Stats. Ariz. 1887, sec. 397, subds. 15, 24), except that in adopting the California provisions our legislature made a very suggestive omission. Subdivision 15 just mentioned reads: "To direct and control the prosecution and defense of all suits to which the county is a party, and to compromise the same," and omits to confer the power given in the California statutes, "and to employ counsel to assist the district attorney in conducting the same."

The same duties were laid upon the district attorney in Santa Cruz County that are laid upon the district attorney in California in identical language. See Rev. Stats. Ariz. 1887, secs. 489 (subds. 3, 6, 7), 490.

In the absence of a decision of the supreme court of Arizona, this decision of the supreme court of California, on identical statutes and substantially identical circumstances, has a very controlling weight.

The latitude which would allow a board of supervisors to dismiss or disregard or supersede the legally authorized district attorney by any attorney or attorneys whom they may choose to employ and whom they may choose to pay from the county funds, does not find sanction in statute. The burden is upon the claimant to show the authority under which the indebtedness alleged could have been incurred. No such authority can be shown, hence, irrespective of precisely analogous judicial determinations, the same conclusion must follow that has been reached by the supreme court of California, and by other courts cited. See Waters v. Trovillo, 47 Kan. 197, 27 P. 822; Platte County v. Gerard, 12 Neb. 244, 11 N.W. 298; Brome v. Cuming County, 31 Neb. 362, 47 N.W. 1050; Clough v. Hart, 8 Kan. 494.

Selim M. Franklin, for Appellees.

OPINION

DOAN, J.

An action was brought by Barnes & Martin, attorneys, against the county of Santa Cruz to recover for legal services rendered at the request of the board of supervisors of Santa Cruz County before the joint board of supervisors of Santa Cruz and Pima counties in arranging the bonded indebtedness of said county, and in litigation in the district court in regard to the amount of the indebtedness of Pima County for which Santa Cruz County should provide. The case was tried to a jury, and from a judgment for plaintiffs in accordance with the verdict of such jury the county appeals.

There were several minor points urged by the appellant, some of which are not sustained, and others are not important. Passing these, the case presents as the controlling issue the one question whether the board of supervisors has authority under our statutes, to employ counsel other than the district attorney to render professional services to the county in a civil suit, so as to constitute a fee for services rendered by counsel thus employed a legal charge against the county. As a rule, one who demands the payment of a claim against a county must show some statute authorizing it, or some contract, express or implied, from which it arises, which itself finds authority of law. Irwin v. County of Yuba 119 Cal. 686, 52 P. 35. The only powers possessed by boards of supervisors are those expressly conferred by statute or necessarily implied therefrom. It is urged by the appellant that as we have taken, with but few changes, our statutes relative to county...