Bevington v. Woodbury County

Waterman, J. The petition alleges, in substance> that, during the year 1893, plaintiff was the county attorney of Woodbury county; tbat, at tbe January term of tbat year, a number of indictments were returned by tbe grand jury of tbat county against, one Atlee Hart and one J. L. Lewis; tbat thereafter, on tbe application of defendants, said cases were sent for trial on change of venue to Plymouth county; tbat after tbe change of venue, at tbe instance and request of tbe board of supervisors of defendant county, plaintiff prepared two of tbe cases for trial, and tried tbe same, as attorney, in Plymouth county, with tbe oral understanding and agreement with said board tbat tbe work so done was not covered by plaintiff’s salary as county attorney. It is further alleged that tbe defendants in tbe case so tried were convicted, and tbat they appealed to this court; tbat after tbe notices of appeal were served, but before tbe cases were prepared on behalf of tbe state, on appeal, plaintiff ceased to be county attorney; tbat, at tbe further instance and request of tbe board of supervisors of defendant county, plaintiff prepared tbe eases for submission to this court. A ratification of plaintiff’s employment is also pleaded. Tbe general ground of tbe demurrer filed by defendant is tbat tbe facts stated do not entitle plaintiff to tbe relief demanded. Tbe specific reasons assigned are numerous. Tbe parties unite in presenting tbe issues in tbe form of three propositions, as follows: "First, tbe power of boards of supervisors to employ an attorney to prosecute or defend cases in which tbe state or county is interested; second, tbe power of boards of supervisors to contract with tbe county attorney to perform services outside arid independent of those covered by tbe salary of such county attorney; third, as closely con [427] nected -with the two first propositions, in case of a change of venue from one county to another, which county is charger able with the expense of the prosecution,- — the county where the action arose, or the county to- which the change of venue was taken, and what expenses are covered by our statute?” We will address ourselves to the matter in the form presented and discussed by counsel, though, to avoid repetition, we shall consider the questions together. 1 I. The solution of this controversy necessitates the construction of a number of statutes. _ The various provisions will be set out from time to time in the course of what we have to say, as the different questions arise. Section 1, chapter 73, Acts Twenty-first General Assembly, provides for the election in each county of a county attorney. Section 2 relates to his duties, and in its material parts is as follows: “The county attorney shall appear for the state and county in all cases and proceedings, in the courts of his county, to which the state or county is a party, and in the supreme court in all cases in which the county is a party. * * Jn every criminal case appealed from his county to the supreme court, he shall, at least thirty days prior to the term at which the case is to be heard, prepare and deliver to the attorney general a properly prepared abstract of the case.” We take it as beyond controversy that the county attorney cannot be called upon to perform any duty in his official capacity save such as may be enjoined upon him by law. It will be observed that, as to state cases, he is required to appear only in such as are pending “in the courts of his county.” This includes, not only cases originally brought in those courts, but such as come on change of venue from other counties. Section 4380, Code 1873, provides, with relation to change of venue, that “the court to which such change of venue is granted must take cognizance of the cause, and proceed therein * * * as if the indictment had been found by the grand jury impaneled in such court.” Therefore, when the change of venue was [428] granted in the cases out of which this controversy arose, the duty of the county attorney of Woodbury county with relation to them passed to the county attorney of Plymouth county. Section 2 of the act relating to county attorneys, to which we have already referred, fixes the compensation of such officers; and section 6 thereof prohibits them from receiving “any fee or reward from or on behalf of any prosecutor or other individual for services in any prosecution or business to which it shall be his official duty to attend,” étc. So far as the services, performed in the Plymouth district court are concerned, there is no reason why the board of supervisors of defendant county could not lawfully employ the plaintiff if the subject-matter was within its jurisdiction; in other words, plaintiff was a person with whom the board might lawfully contract for such service, if it had a right to contract at all for the same. [428] II. This brings us to the next disputed question, viz.: Had the board of supervisors- of Woodbury county any power to employ an attorney to assist in the trial of these cases in Plymouth county. Irrespective of any express statute giving authority, the board of supervisors, under the general power to manage the affairs of the county, would, perhaps, have the right to employ counsel to act on behalf of the county. Taylor County v. Standley, 79 Iowa, 666. We might proceed upon this theory to show that Woodbury county was interested in these actions (a subject hereafter touched upon), and that this general right has not been taken away. But we prefer to base our holding upon the express wording of the statute. Section 4 of the county attorney’s act provides that, “with the approval of the district court, he [the county attorney] may procure such assistance in the trial of a person charged with the crime of felony as he shall deem necessary, and such assistant * * * shall be allowed a reasonable compensation therefor. * * * But nothing in this section shall be construed to prevent the board of supervisors from employing an attorney to assist [429] the county attorney in any case or proceeding in which the state or' county is interested.” It was the trial judge in Plymouth county upon whom this section conferred authority to approve of the employment of an assistant by the county attorney, and it is with relation to this fact that we must construe the last clause of the section. The district judge of Plymouth county could so act in cases of felonies only, but the power is given the county to contract in other cases also. The connection in which the clauses quoted appear makes it manifest that the latter refers to the particular instances mentioned in the first, and includes something more besides. It comprehended civil cases as well as criminal. That the state was interested in these cases, within the meaning of this section, admits of no doubt; that Plymouth county was not, except in common with all other counties, as a sub-division of the state, is equally clear. All of the expenses of the trial were chargeable to, and had to be paid' by, Woodbury county. Code 1873, section 4381. 4 What county is it, then, that may employ counsel to assist the county attorney? If it is Plymouth county, as appellee contends, then the board of that county is authorized by contract to bind Woodbury county. This would be contrary to the whole policy of our law. On the other hand, if these cases had remained for trial in Woodbury county, the board of supervisors there could certainly have employed a person to assist the county attorney. Where is there any provision of law that says this right is lost by a change of venue being taken? After the indictments were found, and while the cases were still pending in Woodbury county, if the board had employed assistance for the prosecution, would it not have been bound by such contract after the change of place of trial was made? There seems but one answer to this question; and it follows that the county in which this right is once vested retains it, for there is no statute taking it away. If Woodbury county had not exercised this right, and the county attorney of Ply [430] mouth county had felt the need of assistance, he could procure it only through the order of' the trial judge. 5 III. Furthermore, we think that, as Woodbury county had all of the costs to pay in case the prosecution failed or in event of the inability of defendants to- pay the same, it was interested, withimthe meaning of the -section so- frequently referred to above. We do not regard the- casé of Modoc Co. v. Spencer, 103 Cal. 498 (37 Pac. Rep. 483), cited by defendant, in opposition to this view, as in point. Under the statute construed in that case, the board could employ counsel only in actions “to which the county is a party.” The holding was that the fact that the county was interested to the extent of the costs in a state case did not warrant it in procuring assistance for the regularly elected prosecutor. Indeed, o-f the many cases cited, none were under statutes identical with ours. We are content to rest our holding on principle alone. 6 IV. But it is said that the statute gives the board authority to employ outside counsel “to assist the county attorney” alone; that, if it be conceded'that the board of Woodbury county might legally employ an attorney to assist the county attorney of that county, it could go no further. We are not inclined to construe the words last quoted as restrictive. They seem rather to be descriptive only. Where the state or county is interested, the board may employ counsel to assist the county attorney; i. e. to aid in caring for the interests so at stake. It is not necessary that the county attorney should do anything in the matter in order to warrant the board in acting. Taylor County v. Standley, supra, gives some support to this last statement. 7 V. Again, it is said by defendant that, Plymouth county being primarily liable for the costs of thege prosecutions, this action should have been brought against it. There is nothing in this point. Plymouth county’s liability is only for the costs which it had a legal right to make. It could not be sued on a contract to which it was not a party. [431] VI. What we have said disposes in plaintiff’s favor also of that branch of his claim which is for services rendered in this court, in these cases, under a-contract made after his term of office as county attorney had expired. The demurrer should have been overruled. — Reversed. Ladd, J., took no part.