County of Platte v. Gerrard

Cobb, J. While we by no means admit the correctness of the • proposition laid down by counsel for the defendants in ; error, to-wit: That “the power to employ counsel on the ■ — 248 — part of a board of county commissioners is a. necessary incident to tbe power to sue and be sued,” we might safely do so, without by any means approving of the judgment in this case. This was an action not for the value of professional .services, nor yet upon a contract to pay an agreed price •or sum for certain professional services; but upon a contract to pay to the defendants in error one-fourth part of such taxes as might be collected upon certain lands, situated in said county, in consideration of the said defendants in error having “ undertook and agreed to act •as attorneys for said defendants, (the board of county commissioners of Platte county,) in a proceeding to collect the taxes on said lands, from said railroad company, in said year, and to take all necessary steps in the name of said county, and perform all other acts as .such attorneys, which might be necessary to confer jurisdiction on said defendants as such commissioners, to order said lands placed on the tax list of said county for said year, and to legally assess the said lands for said year 1873,” etc. It is therefore not to the statute giving counties the power to sue and be sued, that we should look for the authority on the part of the county commissioners to make a contract of this character. The county was not sued, and it neither expected to be, nor did it contemplate suing anybody. But if we expect to find any such authority, should we not rather look to the statute then in force, empowering counties to levy and collect taxes? We think so. But it is not claimed, nor can it be, that the revenue laws then in force conferred any such power. The revenue laws, as well those then as now in force, impose important duties upon the board of county commissioners, up.on assessors, clerks and treasurers; many •of these duties are such as to call for a high order of business capacity, all of which is, or should be., duly — 249 — considered by the people in selecting persons to fill thepe important trusts. And yet tbe legislature had foreseen that occasions might arise when these boards and officers would, in order to the proper discharge of their duties, require legal advice, and ample provision had been made to meet this contingency. Section 16 of chapter 7, Compiled Statutes, makes it the duty of the district attorney to “without fee or reward, (other than his salary,) give opinions and advice to the board of county commissioners of any county in the district, and other officers of the state or county, upon all matters in which the state or county is a party, or may be interested.” Again by sec. 18, district attorneys are authorized “in his discretion to appoint one or more deputies,” etc. The proposition that, because the district attorney might have been otherwise officially engaged, the board ■of county commissioners might seek advice from other attorneys, and pay for it out of the public money, is, in our opinion, inadmissible. It was a question for the consideration of the legislature, whether, owing to the rapid increase of the population of the state, and the consequent augmentation of the official duties of the district attorneys, as imposed by law, some measure of relief was not necessary for these officers. This the legislature was not slow to perceive; hence the provision contained in sec. 47 of Art. I., of chapter 18, Compiled Statutes. But at the date of the transaction involved in the case now under consideration, the law-making power having imposed upon the district attorneys the duty of giving opinions to and advising boards of county commissioners, such regulation and method was binding upon the courts and all boards and officers whatever, and was exclusive of all other lawful methods of obtaining opinions or advice at the public expense by boards of county commissioners. — 250 — But let us suppose this not to have been the case, that the board of county commissioners might at their discretion employ counsel of their choice, to advise them as to their duties, and pay therefor either an agreed price, or a quantum meruit out of the public funds; does it follow that such board might, as a mode of compensation for such advice, lawfully bargain away an aliquot part of such of the public revenues as might be affected thereby ? And making such compensation contingent upon the success of the measures taken under such advice ? We-think not. The giving of contingent fees, or compensation for services rendered to the public, is contrary to sound policy, It is the spirit of our laws to collect from the people only such amount of money by taxation as may be sufficient to -a certain and economical support of the government in all its branches, and to require the strictest accountability therefor. The law has provided for all officers and public servants, having to do with the levy and collection of taxes, a fixed salary, depending in no degree upon the amount of taxes actually collected, and while in some of the Latin nations of Europe there was formerly, and may yet be, a system of farming out the-collection of the public revenues, we do not think that such a thing was ever known, or would be tolerated, in any country inhabited by an English speaking people. The referee did not return the testimony in the case, but looking only to the cause of action as set out in the-petition of the plaintiffs in the court below, and the law of February 27th, 1873, we fail to see any equality between the services performed, agreed to be performed or required, and the compensation claimed therefor. Indeed, we can scarcely conceive of a board of county commissioners and a county clerk lacking of sufficient ability to understand and execute the law in question,, without legal advice or opinion from any source. — 251 — We are therefore of the opinion that the contract, as ■ set out in the pleadings and found by the referee, was one-which the board had no legal power to make, and which cannot be upheld by the courts. The judgment of the district court is reversed, and the conclusion of law found by the referee affirmed. Judgment Accordingly. Maxwell, J. I concur in the judgment of reversal in this case upon the ground that the services rendered by the defendants-were not rendered by* them in a professional capacity, the only services being to induce the county commissioners to do their duty by placing certain lands on the assessment roll. But, in my opinion, the board of county commissioners have authority, independently of the statute, to employ an attorney in a proper case. A county is a quasi corporation, and the commissioners the agents by which its business is conducted. If the county is sued, may the commissioners not defend, nay, is it not their duty to make any defense to which the-county is entitled, and for this purpose to employ an attorney ? The district attorney is not the attorney of the county. He is paid by the state. His duties are such that it would be impossible for him to prosecute or defend the various actions in which the counties in his district are interested. Then, suppose the county has a cause of action existing in its favor, against an individual or individuals, may it not employ an attorney to-prosecute the same ? I think it may, as a corporation, employ the necessary counsel at a reasonable compensation, to advise the commissioners, or prosecute or defend actions in which the county is interested. In the case of Cuming County v. Tate, 10 Neb., 193, the services were not rendered for the county, but for the district attorney, and this court held that there could be — 252 — no recovery against the county for such services, but that rule would not apply where legal services were rendered for the county.