Stephens v. Comm'rs of Jefferson County

The opinion of the court was delivered by Valentine, J.: This was an action brought by the plaintiffs in error, Thacher & Stephens, against the defendants in error, the board of county commissioners of the county of Jefferson, for services rendered by plaintiffs in error as attorneys and counselors-at-law. It appears from the record that one H. Gr. Turner commenced an action of mandamus in the supreme court of the state of Kansas against H. S. Walsh, J. D. Eollins, and Henry Ogle, the board of county commissioners of said county of Jefferson, to compel said board to submit to the qualified voters of Kock Creek township in said county the question whether stock should be taken in the name of said township in the A., T. & S. E. Eld. Co., and the bonds of the township be issued in payment for [188] such stock. The said county board employed the plaintiffs in error as attorneys and counselors-at-law to defend said suit. The plaintiffs in error performed said services, the action of Turner was defeated, and this action is now brought to recover compensation for said services. (The case of Turner v. The Commissioners of Jefferson County is reported, and will be found in 10 Kas., 16, el seq.) We suppose the only question in this case is, whether the county commissioners as county commissioners had power to employ the plaintiffs in error to defend said suit. We think they had. In this state all the powers of a county are exercised by the board of county commissioners, (Gen. Stat., 254, § 3,) and the county always sues and is sued in the name of the board of county commissioners. (Gen. Stat., 254, § 5.) In fact, the county commissioners are the general officers or agents of the county. And whenever any duties are imposed upon the commissioners by law it should be presumed that such duties are imposed upon the commissioners as the agents of the county, unless the contrary clearly appears. In many cases the county is by law constituted the general agent or guardian for the protection of the rights and interests of townships, and of other subdivisions of the county, and may prosecute or defend therefor. Thus the county through the .board of county commissioners may maintain an action against the county treasurer for a misappropriation or misapplication of the funds of a township, or school district, etc., although the county as a corporation can have but little interest in the funds of such township or school district. (Comm’rs of Jackson Co. v. Craft, 6 Kas., 145.) In the matter of taking stock in railroad companies for townships, and of issuing township bonds in payment for such stock, and of levying and collecting taxes for the payment of the bonds, the township officers have nothing to do. Everything is done by the county officers, and nearly everything by the county board. The petition for the election to determine whether the stock shall be subscribed, is presented to the county board; (Laws of 1870, page 189, § 1.) The [189] county board alone can determine whether the election shall be held, and such board alone can order the election; (id., 190, § 2.) The county board canvasses the returns of the election, and declares the result; (id., §§ 3, 4; also, Gen. Stat., 410, § 28.) If the election has resulted in favor of subscribing for said stock the county board orders the county clerk to make the subscription, and causes the bonds to be issued in payment of said stock, which bonds are “signed by the chairman of the board and attested by the clerk under the seal of the county;” (Laws of 1870, p. 190, § 5.) The county board then annually levies the tax on said township to pay the interest on said bonds, and to create a sinking fund to pay said bonds at maturity; (id;, p. 191, § 6.) And with the surplus taxes levied and collected for the payment of interest, (if there should be any such surplus,) and with the sinking fund, the county board may at any time cause the treasurer to buy up the outstanding bonds at their market value not exceeding their par value; (id., § 8.) In all this the county through the county board seems to be the agent and guardian for the township. And if any litigation should spring up concerning any of these matters we should think that the county through the county board would have ample authority to protect the rights and interests of the township. In this way the county protects the rights and interests of a portion of its own people. Eor all the foregoing services the county commissioners are paid by the county. (Gen. Stat., 256, § 14.) And we suppose there can be but little doubt but that the county must pay for the expenses of the election; (Laws of 1870, p. 190, §§ 3, 4; Gen. Stat., 420, 421, §§71 to 74.) And we suppose the county must also pay the expenses of issuing the bonds, etc. Now the litigation between Turner and the county commissioners was concerning the foregoing matters. Turner did not sue the county commissioners to compel them to do something merely as individuals, nor even to do something merely as individual commissioners. He sued them to compel them to do something which they could do only as a “ board of county commissioners.” (Laws of 1870, p. 189, § 1.) [190] The law is explicit. It does not provide that the persons holding the offices of county commissioners shall call the election, nor merely that the county commissioners shall call the election; but it provides that “The board of county commissioners” shall call the election. Turner of course in effect sued the county commissioners as a board, whether the action was in form against them as individuals or not, for he sued them to compel them to do something which they could do only as a board and as the county board. And when the commissioners are sued as the county board beyond the limits of their own county, and where the county attorney is not bound, to go, may they not then as the county board employ counsel to defend the action ? We do not think that it is necessary to determine whether said action of Turner against the county commissioners was an action technically against the county or not; for we suppose that no one will claim that the county commissioners can employ counsel in only such cases as these where the county is technically a party. A suit against the officers of the county is often a suit substantially against the county. And in this very case we think the action of Turner was substantially an action against the county as the guardian and protector of the rights and interests of Rock Creek township. And it was also substantially against the county in another respect. It was an action to compel the county commissioners to do something which would incur liabilities against the county; for instance, liability for the county commissioners’ services, for the expenses of the election, etc. Suppose an action of mandamus should be commenced in the supreme court of the state to compel the county clerk to enter certain taxes on the tax list to pay certain supposed liabilities against the county: could not the county commissioners then employ counsel to defend? Or suppose an action should be commenced in the United States circuit court to enjoin the treasurer from collecting a certain county tax: could not the county commissioners then employ counsel to defend? We suppose that whenever the county is interested at all in the result of a suit, either in its own behalf or in [191] that of some township of the county, and the suit is brought against the legal representatives of the county, and is beyond the limits of the county, the county commissioners may if they choose employ counsel to take care of the interests of the county. As throwing some light upon the questions discussed in this case we would refer to the following authorities: Bancroft v. Lynnfield, 18 Pickering, 566; People v. Supervisors of N. Y., 32 N. Y., 473; Brady v. Supervisors of N. Y., 2 Sandford, 460, 472; Gillespie v. Broas, 23 Barb., 379. This case has been ably presented by counsel on both sides, and for additional arguments and additional authorities we would refer to counsel’s briefs. There has been no question raised as to the value of the plaintiffs’ services. The parties agreed in the court below that the services were worth $265.00. The judgment of the court below will be reversed, and cause remanded with the order that judgment shall be rendered upon the facts agreed to in favor of the plaintiffs below and against the defendant below for the sum of $265, and costs. All the Justices concurring.