Christner v. Hayes County, 79 Neb. 157

Christner v. Hayes County

79 Neb. 157 | Neb. | 1907

Epperson, 0.

In 1899 the commissioners of Hayes county directed the county attorney to institute proceedings to collect delinquent taxes. In order to ascertain the proper parties defendant in suits brought for that purpose, the county attorney requested plaintiff to prepare statements or abstracts showing the names of all persons having an interest in the land in question. Plaintiff furnished the statements or abstracts requested, and filed his claim therefor with the county board, where it was disallowed. On appeal to the district court, judgment was entered for tin1, county, and plaintiff now presents the case to this court for review.

An agreed statement of facts discloses that the public records had been destroyed, and that plaintiff possessed the only books showing the complete title to the various tracts of land in that county. The county attorney agreed that the plaintiff should be paid $8 for each statement, which, it is admitted, was a reasonable charge. The county board had power to require the county attorney to bring actions for the foreclosure of the alleged liens. Acting officially the county attorney incurred the indebtedness. This he had the power to do. Appellee con ■ tends that the case is ruled by Card v. Dawes County, 71 Neb. 788, where it was held: “A county is not bound to pay for legal services rendered at the instance of the county attorney without the previous authorization or subsequent official ratification of the county board.” We do *159not doubt tbe soundness of that decision. The services there claimed were professional and such as the county attorney was required to perform. It included, it is true, an investigation of the title to the land there in controversy, but the public records were in existence and the county attorney had access to. them. In the case at bar (he public records had been destroyed. Plaintiff alone could furnish the necessary information. This he did for a reasonable compensation. His services were not professional. This expense was as necessary to a successful prosecution of the actions as the services of the court officers in filing paper and serving process. Had there been records to which the county attorney had access, our conclusion would be different, for no doubt it is the duty of the county attorney to procure, if possible, without expense to the county, information necessary to the institutions of actions in which the county is interested. But, where it is impossible, the power to malee expense therefor is incidental to the power conferred by law, and the order of the board directing the institution of such suits. In People v. Supervisors, 45 N. Y. 196, it was held that an attorney could recover for the time and traveling expenses incidental in finding and subpoenaing witnesses. “Public officers have not only the powers expressly conferred upon them by law, but they also possess by necessary implication such powers as are requisite to enable them to discharge the official duties devolved upon them.” 23 Am. & Eng. Ency. Law (2d ed.), 364. This court has repeatedly recognized the rule that county officers have such powers as are incidentally necessary to carry into effect those which are granted. Lancaster County v. Green, 54 Neb. 98, and cases cited.

Appellee contends that plaintiff’s petition fails to state a cause of action, because no contract is alleged to have been made by the county commissioners for the performance'of the services. The petition alleges that the defendant (the county) requested the plaintiff to furnish the statements, and agreed to pay therefor, and that in pur*160manee of said agreement plaintiff furnished the statements. This was a sufficient allegation to charge the county.

Appellee further contends that a new cause of action was presented in the district court, wherein plaintiff claims compensation for statements of title, instead of abstracts of title, as designated in his claim filed with the county board. The agreed statement of facts shows that plaintiff furnished the statements set forth in the petition. The identical issue presented to the board was tried in (he court on appeal, notwithstanding the erroneous use of the word “abstracts” in his original claim.

We recommend that the judgment of the district court be reversed and the cause remanded for further proceedings.'

Dtjffie and .Good, CO., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed.