Conger v. Commissioners of Latah County

SULLIVAN, C. J. As the facts of this ease are quite-fully stated in the former opinion, accompanying this, it N not necessary to repeat them here. The cause on rehearing has been very ably presented by counsel for the respective parties. The counsel for appellant contends; 1. That, before the board of county commissioners can bind the county* in the employment of counsel, they must act as a board, and the necessity for such employment must be apparent, and that the facts creating such necessity must be made a matter of — 351 — record; 2. That the county commissioners had no jurisdiction or power to employ counsel to assist the district attorney in the prosecution of said Lafayette Williams, who was charged with the crime of embezzling S250 of the funds of the city of Moscow. Counsel for respondent contends that said board liad jurisdiction and authority to employ such counsel. As to the first contention of appellant, the court held, in the former opinion, that in the employment of counsel by the county commissioners, in order to bind the county, they must act as a board, and their action must be made a matter of record. The facts clearly show that counsel was employed by individual members of said board and no action taken by the board until after the services had been performed, and that no employment had been made by the board; and it was held, for that reason, that the board had no authority ta order a warrant drawn for such services. It is urged that the board ratified the acts of its individual members by ordering a warrant to be drawn in payment of the services rendered, and some very respectable authority is cited in support of that contention. Conceding that such ratification might be binding on the-county in cases where the commissioners have jurisdiction and power to employ counsel, we will proceed to the second contention of appellant, to wit, that the board had no jurisdiction or authority to employ counsel to assist the district attorney in the prosecution of said Williams for the crime with which he-was charged. Boards of county commissioners have only such jurisdiction and power as is conferred on them by law. Section 11, article 18 of the constitution, provides that the county commissioners shall perform such duties as shall be-prescribed by law. Section 1759 of the Revised Statutes, provides as follows: “The boards of county commissioners, in their respective counties, have jurisdiction and power under such limitations and restrictions as are provided by law,” etc. Then follow twenty-two subdivisions or subsections, defining the jurisdiction and power of such boards, and it is only necessary to insert here the thirteenth subdivision, as that is the only one that authorizes the board to employ counsel, which subdivision is as follow's: “To direct and control the prosecu — 352 — tion and defense of all suits to which the county is a party in interest and employ counsel to conduct the same with or without the district attorney as they may direct.” Said provisions were in force prior to the adoption of our state constitution, and prior to the admission of the state of Idaho into the TJnion. Section 6, article 18 of the constitution provides, inter alia, that “the county commissioners may employ counsel when necessary.” And section 18, article 5, of the constitution, provides as follows: “A district attorney shall be elected lor each judicial district by the qualified electors thereof, who shall hold office for the term of four years and perform such duties as may be prescribed by law. He shall be a practicing attorney at law and a resident and elector of the district. He shall receive as compensation for his services $2,500 peí annum.” At the first session of the state legislature an act was passed defining the duties of such district attorneys. (See 1st Sess. Laws 1890-91, p. 47.) Sections 2 and 3 of said act are as follows: “See. 2. That section 2051 be amended to read as follows: "Where there is no district attorney for the district, or where he is absent from the court, or where he has acted as counsel or attorney for a party accused in relation to the matter of which the accused stands charged and -for which he is to be indicted or tried, or when he is near of ldn to the party to be indicted or tried on a criminal charge, or when he is unable to attend to his duties, the district court may, by an order entered in its minutes, stating the cause therefor, appoint some suitable person to perform for the time being, or for the trial of such accused person, the duties of such district attorney; and the person so appointed has all the powers of the district attorney while so acting, and he may receive such compensation as the court may allow, out of the salary of the district attorney, for all services by him performed. “Sec. 3. That section 2052 be amended to read 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 — 353 — action or proceeding to another county, lie 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, 3. To attend, when requested by any grand jury, for the purpose of examining witnesses before them; to give them advice in any legal matter before them; to draw bills of indictment, information and accusation; to issue subpoenas and other process, requiring the attendance of witnesses. 4. On the first Monday in each month to settle with the auditors of the various counties of his district, and to pay over all money collected or received by him during the preceding month belonging to the counties of his district or state to the county treasurer of the proper county, and take his receipt therefor, and to file on the first Monday of January in each year in the office of the auditor of the proper county an account’ verified by his affidavit, of all money received by him during the preceding year, by virtue of his office, for fines, forfeitures, penalties and costs, specifying the name of each person from whom he receives the same, the amount received from each and the cause for which the same was paid, 5. Tc perform all other duties required of him by any law.” By the provisions of said section 2, in case there is no district attorney for a district, or where he is absent from the court or is under any of the disabilities therein enumerated, the district court is authorized to appoint a person for the time being to perform the duties of district attorney, and such appointee has all the powers of the district attorney, and may receive such compensation as the court may allow out of the salary of the district attorney. Section 3 makes it the duty of the district attorney 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 parties, and also to give advice to boards of county commissioners and other public officers of his district. The legislature has thus, under the — 354 — provisions of tlie constitution, defined the duties of the district attorneys, and provided a complete scheme or plan for the efficient prosecution of criminal cases, and also provided for the appointment of a prosecutor in case of absence or disability of the district attorney, and directed how such appointee shall be compensated. It is thus made the duty of the district attorney to prosecute all criminal cases, and to prosecute of defend all actions, applications or motions, in civil or criminal cases, when the people or the state or any of the counties of his district are interested parties. Some of the provisions of that section are repugnant to the provisions of said subdivision 13, section 1759 of the Eevised Statutes, in that they make it the duty of the district attorney to prosecute or defend in all cases when a county of his district is an interested party, while the provisions of said subdivision 13 authorize the board to employ counsel to conduct such cases with or without the district attorney, as they may direct. If there is a conflict, as suggested, the latest expression of the legislative will must control. The provisions of subdivision .13, section 1759, were evidently intended to empower the county commissioners to protect the rights of the county in any litigation it may have, involving its property or other substantial rights. The power is in terms restricted to suits in which the county is a party in interest. The county was in no sense a party to the case of the state against Williams. That was a criminal case prosecuted on behalf and in the name of the state. The fact that the county had to pay the expenses of said criminal prosecution conferred no right on the county commissioners to employ counsel te assist in the prosecution thereof. An examination of the constitution, and of all provisions of the statute bearing upon this subject, leads us to the conclusion that it is not intended that the county commissioners should be permitted to control or interfere with criminal prosecutions, or with the district attorney in his management thereof, or to employ counsel to assist him. The authority given by said section 6, article 18 of the constitution, to the county commissioners to employ counsel when necessary, was not intended to authorize them to employ counsel in matters — 355 — over which they had no jurisdiction or control, but simply authorizes them to employ counsel in matters within their jurisdiction and control when necessary — for example, when the district attorney could not perform such duties by reason of being absent, or when the board must decide upon some question before them before they could have time to get the advice of the district attorney thereon. If that provision of the constitution be construed to empower the county commissioners to employ counsel in criminal cases, it empowers them to set at naught the law directing and prescribing that such duties must be performed by the district attorney. We cannot consent to such construction. It is urged, under the provisions of said section 1759, that the county commissioners have authority to employ counsel where the county is a party interested, and that every county has an interest in the prosecution of criminals; therefore the board has authority to employ counsel in such cases when necessary. The ansewr is that it was never intended, by said provision of the constitution or law, to permit the board to employ counsel in matters over which it has no jurisdiction or control, and over matters of which other officers are given exclusive control. The conclusion reached is that the judgment of the district court must be reversed, and the cause remanded, with instructions to said court to enter judgment in accordance with the views expressed in this opinion.