34 Vt. 345 | Vt. | 1861
This is an action on book, and comes to this court on exceptions to the decision of the county court, in allowing certain items of the plaintiff s account objected to by the defendant.
The report shows that the plaintiff, at the time the account accrued, was an attorney and counsellor at law, residing in the town of Norwich.
Among the items so objected to by the defendant, and allowed by the county court, are items No. 1, 4, and 15, for professional services as such attorney. No question is made, but that the plaintiff rendered the services, but it appears from the report, that at the time they were rendered, the plaintiff was one of the selectmen of the town, and it is claimed by the defendant that the plaintiff rendered the services in his capacity as selectman, and' not as an attorney, ard that he never was employed by the town as an attorney or counsel, in the suits or matters in which the services were rendered. If this is so, the judgment of the county court was wrong in allowing the amount charged, which is more
The statute provides that the selectmen shall have the general supervision of the concerns of the town, and shall cause all duties required by law of towns and not committed to the care of any particular officer, to be duly performed and executed,” — and entrusts the subject of highways specially to the selectmen. Comp. Stat. p. 118, sec. 43. It also provides among the officers to be
Considering the general duties imposed on the selectmen in connection with the special duties imposed on' them in relation to highways, the court .think that it is within the scope of their implied powers to protect the interests of the town by employing counsel in road cases, where, as in the present case, the town agent provides no counsel and makes no objection to the employment of counsel by the selectmen. It is true that in Follett v. Whitingham, in Windsor County, 1860, the supreme court decided that when a suit was pending, it was primarily the business of the town agent to employ counsel in such cases, but they also decided that a retainer of counsel by the selectmen with the knowledge and without any dissent on the part of the agent, he declining to act in the matter, was binding until the counsel was subsequently dismissed by the town agent, subsequently elected, who employed other counsel, and that the attorney could not recover for services rendered after such dismissal — but they did not decide what the effect would have have been if the employment had been without notice to the agent. We think his assent may be presumed if that is necessary, where, as in this case, he neglects to employ counsel and uo dissent is shown. Which would have the paramount right, in case of disagreement, it is not necessary to decide.
But it is objected that there was no employment of the plaintiff by the selectmen, and that the plaintiff being one of the selectmen, an express employment by the other two, (it appears there were three,) must be shown. There must be an employment either express or implied. But if one selectman is an attorney, and performs necessary professional services for the town in a matter in which the other selectmen, or either of them, act without any dissent on their part, the assent of the others will be presumed, and it is equivalent to an express employment.
But in this case so far as these three items are concerned, inasmuch as other counsel were employed, it cannot be inferred that
Item number six was for attending on a trial before commissioners in another case, relating to laying a road, in which the town was a party, and differs from the items already considered in this, that he attended in connection with one of the other selectmen, and the town had no other counsel, and nothing was said to show in what capacity he should act, or to rebut the pre- * sumption of an understanding that he was to be paid for his services according to their character, that is, in his professional capacity — and for this item he should be allowed as he has charged.
Item 23, the auditor reports, was for services rendered at the request of the overseer of the poor, and on .reference to the account, it is said to be for. “ advice relative to Mr. Field being a town pauper, and going to his house, at request of overseer-of poor.” To this item it is objected that the overseer has no authority to bind the town by the employment of counsel. . It is certainly necessary and important for the interests of the town, that the overseer should, in many instances, in his department, have legal advice to guide him — difficult questions often arise in relation to the settlement of paupers, and it often becomes necessary for the overseer to determine whether to procure an order of removal, and for that purpose to know in what town the pauper has his legal settlement, in order to know whether to make a removal, and if so, to what town. The overseer is often called on to judge whether to appeal from an order made against his town. The consequence of making a wrongful removal, or of removing one to a wrong town, or of taking an appeal under a
But it is claimed that the town agent has the exclusive authority to engage counsel and take advice. But it seems most appropriate that it should be left to the officer who has the charge of this branch of the business of the town, and who, from his superior knowledge of the facts, would be better prepared to so lay the case before the counsel, as to obtain correct advice, and who is called on to act upon such advice. Before the law was passed creating the office of town agent, there can be no doubt that the overseer had such authority. The law creating the office of town agent, is of compavitively recent origin, and there is no good reason to suppose that by the creation of that office the legislature intended to take away this necessary and salutary power, and transfer it to the town agent. The town agent is designated , in the statute as ‘‘ an agent to prosecute and defend suits in which the town is interested,” and his duties obviously pertain to pending litigation, perhaps to the commencement of suits resolved upon, rather than to preliminary advice, the object and effect of which often is to prevent litigation. This item being of this character must be allowed.
As the defendant has succeeded on his exceptions, in reversing the judgment, it becomes the duty of! the court to render such judgment as the county court ought to have rendered, and to correct errors, if any, that may be found in the judgment below by the disallowance of items that the plaintiff claimed, although the plaintiff did not except.
The court below rejected items No. 13,14, 18, 19, 20, 21 and 24, which the auditor finds were rendered at the request of the grand juror. The same objection is made to these items, viz : the want of authority in the grand juror to employ counsel. In the administration of that portion of criminal justice entrusted to towns, and in which the fines and costs collected go to the town, and which is conducted at the expense of the town, the necessity in many cases for legal advice and assistance is obvious, both for the interests of the town and for the welfare of the public generally. It is reasonable that some officer of the town should have
The conclusion is, that the judgment of the county court is reversed, and items Nos. 1, 4, and 15, amounting to $103, allowed by the county court, be disallowed, and'items Nos. 13,14, 18,19, 20, 21 and 24, amounting to $13, disallowed by the county court, be allowed. And in place of items Nos. 1,4, and 15, there is to be allowed to the plaintiff the sum of four dollars, for four days services as selectman, being at the rate established by vote of the town. As to the residue of the account, the judgment is in accordance with the judgment of the county court.