County of Santa Cruz v. Barnes

76 P. 621 | Ariz. | 1904

DOAN, J.

An action was brought by Barnes & Martin, attorneys, against the county of Santa Cruz to recover for legal services rendered at the request of the board of supervisors of Santa Cruz County before the joint board of supervisors of Santa Cruz and Pima counties in arranging the bonded indebtedness of said county, and in litigation in the district court in regard to the amount of the indebtedness of Pima County for which Santa Cruz County should provide. The case was tried to a jury, and from a judgment for plaintiffs in accordance with the verdict of such jury the county appeals.

There were several minor points urged by the appellant, some of which are not sustained, and others are not important. Passing these, the case presents as the controlling issue the one question whether the board of supervisors has authority, under our statutes, to employ counsel other than the district attorney to render professional services to the county in a civil suit, so as to constitute a fee for services rendered by counsel thus employed a legal charge against the county. As a rule, one who demands the payment of a claim against a county must show some statute authorizing it, or some contract, express or implied, from which it arises, which itself finds authority of law. Irwin v. County of Yuba 119 Cal. 686, 52 Pac. 35. The only powers possessed by boards of supervisors are those expressly conferred by statute or necessarily implied therefrom. It is urged by the appellant that as we have taken, with but few changes, our statutes relative to county government from the California code, the decisions of the supreme court of that state on practically this same question under identical statutes should have controlling weight with us. The true doctrine is that the adoption of a statute from another state adopts with it the construction placed upon it by the supreme court of that state at the time of such adoption. Elias v. Territory, ante p. 1, 76 Pac. 605. It is necessary to learn at what date the adoption by us was made in order to determine what construction had been placed on this statute by the decisions of the supreme court of California prior to that time, and was therefore adopted by us with the statute. We find that subdivisions 15 and 24 o'f paragraph 397 of the Revised Statutes of 1887 are substantially the same as subdivisions 12 and 17 of paragraph 216 of the Compiled Laws of 1877. These read as follows: Comp. Laws 1877, c. 9, “Local Administration of Counties,” par. 216: “(12) To control the prosecution or defense of all suits to which the county is a party. . . . (17) To do and perform all such other acts and things as may be necessary to the full discharge of the powers and jurisdiction conferred on the board.” And are practically identical with the corresponding subdivisions of the section for county government of the California Political Code of that date, which read: “To control the prosecution and defense of all suits to which the county is a party. ... To do and perform all such other acts and things as may be strictly necessary to the full discharge of the powers and jurisdiction conferred on the board.” There have been some immaterial alterations in the wording of these sections since that time in both the Arizona and California statutes, but they read to-day practically as they did then, and the exact wording of the California statute prior to and at the time of its adoption by Arizona, and also at the time the actions were brought wherein a construction was placed on that statute by the supreme court of California, was as quoted herein. This construction is given in the ease of Hornblower v. Duden, 35 Cal. 664, in which the court said: “The point as to the power of the board to employ other counsel than the district attorney is answered by the case of Smith v. Mayor of Sacramento, 13 Cal. 533, and nothing need be added to what is there said. While the power is not expressly conferred, yet it is obviously embraced in the general power ‘to control the prosecution and defense of all suits to which the county is a party,’ which we construe to mean not only suits to which she is a party upon the record, but all suits in the prosecution or defense of which she has or is supposed to have an interest; and in the further power ‘to do and perform all such other acts and things as may be strictly necessary to the full discharge of the powers and jurisdiction conferred on the board. ’ Sec. 9, subd. 13. There are a variety of circumstances under which the interests of the county might be neglected or wholly sacrificed unless the board has authority to employ other counsel than the district attorney. . . . The business in hand may be of such magnitude and importance as to demand, on the part of the board, in the exercise of such foresight and care only as business men bestow upon important matters, the employment of additional counsel. There is no reason why public as well as private interests should not be subserved by the employment of several counsel, when the exigencies of the ease are such as to demand it, in the judgment of prudent men; and we are satisfied that the legislature has not been so unwise as to render such a course impossible. Undoubtedly, the board should not put the county to the expense of extra counsel unless extra counsel is needed. The presumption is that they will not; but, in any event, it is a matter in which their judgment and discretion is not open to review by the courts. ’ ’ This construction is approved in the ease of Scollay v. County of Butte, 67 Cal. 249, 7 Pac. 661, wherein the court said: “In Hornblower v. Duden, 35 Cal. 664, it was held, upon the authority of Smith v. Mayor of Sacramento, 13 Cal. 533, that, while the power to employ other counsel than the district attorney to commence and prosecute suits for the county was not expressly conferred on the board of supervisors, it was obviously embraced in the general power to do and perform all such other acts and things as may be strictly nécessary to the full discharge of the powers and jurisdiction conferred on the board, and in the power to control the prosecution and defense of all suits to which the county is a party.” This determines the question so far as concerns the construction of the California courts, which we adopted with the statute. This construction was placed upon the statute in cases that arose from the rendition of services by counsel other than the district attorney in reference to suits either commenced, or which, in the nature of things, would probably be commenced, and did not pass upon the authority of the board to employ counsel other than the district attorney, at a monthly salary, to sit with them to furnish legal advice to them as officers of the county, nor the right of the board to disregard or supersede the district attorney as the law officer of the county, and employ other counsel to transact the county business in his stead. Neither do we consider either of those questions to be presented in the case at bar. The employment in this instance was made by the board of supervisors either on the motion of, or with the consent of, the district attorney. The services were largely, if not entirely, rendered outside of the county, in the transaction of business of very great importance, and that at the time seemed likely to result in litigation, and in reference to a part of which one suit was brought which was defended by the plaintiffs, the appellees herein. We not only recognize the construction by the supreme court of California of the statutes above cited as controlling with this jurisdiction by reason of its having been adopted with the statutes by our legislature, but we approve it as supported by the better reason in the case. It is and should be the law that the supervisors of the county, on motion of, or with the consent of the district attorney, have the power, when they find it necessary or advisable, to employ counsel in addition to the district attorney to protect the interests of the county, not only in the conduct of, but in the preparation for, any litigation to which the county may be a party.

It is called to the attention of the court that the appellant filed no assignment of errors in the lower court, and that no such assignment appears in the transcript. The Revised Statutes of 1887 required the appellant to file an assignment of errors in the lower court (par. 940), and the transcript of the record to contain such assignment (par. 875). The revision of 1901 omitted the requirement for filing, hut retained that for including in the transcript the assignment Of errors. Therefore, under our present practice, no assignment of errors need be filed in the court below, but it is sufficient that the errors be assigned in appellant’s brief according to the provisions of paragraph 1586. If filed, however, in the lower court, paragraph 1523 requires the transcript to contain such assignment as part of the record.

No error appearing in the record, the .judgment of the lower court is affirmed.

KENT,. C. J., and SLOAN, J., concur.