Warren County v. Booth

Whitfield, C. J., delivered the opinion of the court. The code of 1857 provided (p. 420, art. 35): “The boards of police shall have power, at their discretion, to employ counsel in all civil cases in which the county is interested, to conduct jthe proceedings, instead of the district attorney, and to pay such counsel out of the county treasury, and such proceedings shall be as valid as if conducted by the district attorney.” This did not provide for employment of general advisory counsel, but only for employment in civil suits. Section 1385 of the code of 1871 is substantially the same. In this state of the law, .in January, 1871, the board of supervisors of Marion county employed Bentonville Taylor to act as advisory counsel in certain matters, not requiring any civil suits. Taylor sued for compensation, and lost, because the law, as it then stood, did not-.permit employment of counsel except in civil suits. Here, was a serious defect in the law, and to remedy it the legislature on|February 7, 1872, passed an act (Laws 1872, p. 62) authorizing boards of supervisors to employ ‘ ‘ an advising attorney, at a stated salary per annum, not to exceed the sum of $300, .payable out of the county treasury, for objects of general advice as to current matters in the administration of the affairs, of their respective counties. ’ ’ This act was expressly repealed [January 14, 1876 (Laws 1876, p. 109), by an act which provided: “That an act entitled an. act to enable the boards of^supervisors to employ counsel at a stated salary, approved.February 7, 1872, be, and the same is hereby repealed. ” The code of 1880 (§ 2176), a new codification, merely recurred [271] to and re-enacted the above provision of the code of 1857 (p. 420, art. 35); that section being as follows: “§ 2176. The board of supervisors shall have power, in its discretion, to employ counsel in all civil cases, in which the county is interested, to conduct the proceedings, instead of the district attorney, and to pay such counsel out of the county treasury; and such proceedings shall be as valid as if conducted by the district attorney.” The code of 1892 — still another codification of the subject-matter (§ 293) — restores the status of the law as it was after the passage of the above act of February, 1872. It provides: “ § 293. The board of supervisors shall have power, in its discretion, to employ counsel by the year, at an annual salary not to exceed $300, or to employ counsel in all civil cases in which the county is interested, and in criminal cases against a county officer for malfeasance or dereliction of duty in office, when, by the criminal conduct of the officer, the county may be liable to be affected pecuniarily, to conduct the. proceedings, instead of the district attorney, or in conjunction with him, and to pay such counsel, out of the county treasury, reasonable compensation for his services. ’ ’ What, now, in the light of the history of these provisions, is the intent of the legislature on this subject-matter? The first clause of § 293 is not literally identical with sec. 1 of the act of February, 1872, but we think it is substantially so, and was meant to bring forward and re-enact that section. Both provide for the employment of counsel generally by the year,, at a stated salary of $300, and we think these material likenesses show that the first clause of § 293 of code of 1892 is meant to be a re-enactment of sec. 1 of the act of February, 1872. Recurring now to the act of February, 1872, it is plain that there were then, after the passage of that act, two separate, laws — one the act of February, 1872, authorizing the. employment by the year, at a salary of $300, of general advisory counsel in .current matters in the administration of the affairs., of the counties; and another (§ 1385, code 1871) authorizing [272] the employment of counsel in civil cases; and it is clear that at that time, after February 7, 1872, and before January 14, 1876, any board of supervisors could have, by one order, employed such general advisory counsel, and also counsel in civil cases. The purpose of the legislature in the passage of the act of February 7, 1872, was manifestly to add to the power to employ counsel in special cases the power to employ general advisory counsel, in the discretion of the board. From. February 7, 1872, to January 14, 1876, the boards had power to employ counsel for both purposes. From January 14, 1876, to the adoption of § 293 of the code of 1892, there was no power to employ advisory counsel. That section was manifestly intended to restore the law to the condition it was in when both powers existed, and this was accomplished by bringing forward and combining in § 293 of the code of 1892 the said sec. 1 of the act of February 7, 1872, and art. 35, p. 420, of the code of 1857. The obvious intent of the legislature was not to leave the counties in the helpless condition of not being able to employ in special civil or criminal cases where very large county interests might be involved, requiring the ablest counsel, by reason of the previous employment of merely advisory counsel. Suppose, for example, the statute should be construed to mean that the board of supervisors may employ one or the other kind of counsel, but not both, then it inevitably follows that, if a board employs general advisory counsel, it never could during that year employ counsel in any civil or criminal case, no matter how vast the interests involved,' and no matter how great the damage entailed upon the county by such inability to employ counsel in the civil or criminal case. No such result was ever intended by the legislature, and no such construction can possibly be reconciled with reason. The entire difficulty grows out of the use of the word ‘£ or ” instead of £ 1 and. ’ ’ But it is well settled that, whenever it is clear that either of these words has been mistakenly used for the other, the one intended will be substituted for the one- mistakenly [273] used, so as to carry out the legislative intent. 2 Am. & Eng. Ency. Law (2d ed.), pp. 333-336. And see, for two strikingly similar cases, State v. Brandt, 41 Ia., 651, and Hughes v. Smith, 64 N. C., 495; the first involving a mistake occurring in a new codification, as here. It is not that “ or ” is read c £ and, ’ ’ for, as correctly pointed out by Jessel, Master of the Rolls, in Morgan v. Thomas, 51 Law J. Q. B., 557, í£ or ” never means, and is never read, ££ and,” but ££ or ” used by mistake for ££and” is substituted by ££and,” the legislative intent imperatively so requiring. We are therefore of opinion that boards of supervisors have power, under §293, code 1892, to employ, in their sound discretion, both advisory counsel by the year, at a sum not exceeding $300, and counsel in civil and criminal cases. Affirmed.