251 P. 1054 | Idaho | 1926
Power county had certain county moneys on deposit with the First National Bank of American Falls and the First State Bank of Rockland secured by depository bonds signed by various individuals, firms and corporations. The banks were closed and placed in the hands of receivers for liquidation. The deposits not being paid, some seven suits were instituted by the county by the authority of respondents as county commissioners against various of the bondsmen to recover the amount of these deposits. Thereafter Bissell Bird, attorneys, of Gooding, were employed *385 by the county commissioners to assist the Prosecuting Attorney in these suits, some of the bondsmen having done certain things apparently in line with resisting the county's claims.
The terms of employment were in effect the payment of a retainer fee of $150 for each of the seven suits and a contingent fee of 20 per cent of the amount which should be actually collected in said actions, the retainers to be part of the 20 per cent.
The present action originated as an appeal to the district court by appellant taxpayers, contesting the authority of the county commissioners to make such a contract of employment on a contingent fee basis; that the fee was excessive; that the contract delegated governmental functions or power to the attorneys and took from the commissioners their control of the lawsuits involved; that it exceeded the county's revenue for the current year, contrary to the constitution; and that the necessity for such employment did not appear of record.
Platte v. Gerrard,
In Platte v. Gerrard, supra, a firm of attorneys was employed by a board of county commissioners to investigate the county records and call to the attention of the commissioners certain lands which had been erroneously left off the assessment-roll by the assessors. The court first indicated that the county commissioners had no power to employ an attorney in view of the fact that the district attorney was required to act as the attorney for such county, the court, however, conceding that the commissioners had such right, states that the county may not as a mode of compensation for such services ". . . . lawfully bargain away an aliquot part of such of the public revenues as might be affected thereby. . . ." on the ground that ". . . . the giving of contingent fees or compensation for *386
services rendered to the public is contrary to sound policy," without further reason or citing authorities. The court then comments upon the fact that the county commissioners and county clerk should have been able to understand and execute the law in question without legal advice and that the contract in question attempted to farm out the public revenues, and concluding that the contract was illegal. This case is to be distinguished from the one herein considered for several reasons. First: By the constitution, section 6, art. 18, county commissioners are expressly empowered to employ counsel in civil cases when necessary, and by C. S., secs. 3415, 3428, are given powers of hiring attorneys and dominion over civil suits in line with the constitution. In the following cases the right of the county commissioners to employ counsel in suits wherein the county is interested has been expressly upheld:Ravenscraft v. Board of Commrs.,
In Storey v. Murphy, supra, attorneys agreed for a fee of 25 per cent of all money or land recovered by the county, for taxes, interest and penalties for certain years, to collect certain taxes on lands which theretofore had not been taxed. The state's attorney was a member of the firm thus employed. The court concludes that the statutes *387 provided an exclusive method for the collection of such delinquent taxes as were covered by the contract, whereby it was incumbent on the state's attorney to carry on such proceeding and that as such official he could not receive fees for such services in addition to his salary, and therefore concluded that the contract was void, expressly holding that:
"Held, further, that the question whether county commissioners may, under their implied powers, and in the absence of statutory restrictions, employ counsel to attend to matters in which the county is interested, is not involved in this case, and hence such question is not decided."
State ex rel. Coleman v. Fry,
On the other hand, it has been held that if a duty has not been placed on a particular officer, county commissioners may employ parties to perform such work. (Von Rosenberg v. Lovett
(Tex.Civ.App.),
C. S., sec. 6576, so far as material herein, provides as follows:
"The measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties, which is not restrained by law."
There is nothing in our statutes which places counties in any different category than that of individuals or private corporations in the employment of an attorney so far as fees are concerned, except the fee must be reasonable (15 C. J. 548), and contingent fees have generally been held a legitimate method of compensation. (6 C. J. 740.)
Miles v. Cheyenne County, supra, is the latest and most nearly in point of the cases on counties paying contingent fees and the court therein, after reviewing numerous authorities, including Platte v. Gerrard, supra, and Storey v. Murphy,supra, arrives at the conclusion that same are not contrary to public policy, and several cases are cited to the same effect in the note to Miles v. Cheyenne County, in L.R.A. 1917D, page 258, at 263.
The point is not whether the fee is contingent but whether the fee is reasonable, and a contingent fee might be more reasonable than a flat fee. In the instant case on a contingent fee basis the maximum amount which might be paid the attorneys would be $11,067.03 if the entire $55,335.19 were recovered. On the other hand, if half only of this amount is recovered the contingent fee would be reduced correspondingly. If, however, a flat fee of $11,000 had been agreed upon and only one-half the amount sought were recovered the fee would be in proportion clearly in excess of that based upon a contingency. *389
In Waterbury v. Laredo,
Powell v. Foster's Estate,
"It is stipulated. . . . I think that includes all of the matters of fact." *390
The facts stipulated show that there was considerable litigation in store for, and some difficulties in the way of, the county recovering the full amount of its deposits, and while 20 per cent perhaps is rather large, in view of the volume of litigation which appeared to be connected with the prosecution of the county's claims for these deposits, we cannot say that the fee was so unreasonable as to justify us in setting aside the contract. As large and larger percentages have been paid and sustained in somewhat similar cases. (Reed v. Gormley,
The contingent fee herein provided for was not a charge against nor to be paid out of the revenues of the county, but was to come out of such moneys as might be recovered in the several suits; therefore sec. 3, art. 8, of the constitution does not apply.
The minutes of the board of county commissioners and the contract sufficiently show the necessity for the employment of special counsel and comply with the rule laid down inHampton v. Commissioners of Logan County,
Appellants contend that under the contract the control of the lawsuits was given to the attorneys. If such be the case it would not have been different if the county commissioners had employed the attorneys at a flat fee to conduct the cases to the end. The contract does not do more than is authorized by C. S., sec. 6573, and as commissioners have authority to employ counsel, there is no statute, and our attention has not been called to any rule of law, which would change the general relationship of *391
attorney and client and the duties and authority of an attorney in the conduct of any case. McQuillin on Municipal Corporations, p. 2580, sec. 1169, and p. 2731, sec. 1254, is distinguishable on the following ground: The first paragraph cited merely lays down the rule that commissioners cannot delegate their legislative powers, and certainly the conduct of a lawsuit in court is not a legislative function, and the second paragraph says that such board cannot make a contract for the employment of counsel for an unlimited time and irrevocable by their successors, relying on City of Wilmingtonv. Bryan,
The judgment is ordered affirmed, with costs awarded to respondents.
Wm. E. Lee, C.J., and Taylor and T. Bailey Lee, JJ., concur.