| Kan. | Jul 15, 1882
The opinion of the court was delivered by
This action was brought by Frank Doster against Samuel T. Howe, as treasurer of Marion county, to recover the amount of a county order which Howe, .as treasurer, refused to pay. The action is founded upon the following facts: In 1878 the board of county commissioners of Marion county was about to erect permanent. county buildings costing $7,500, without first having submitted the question to a vote of the electors of said county.
While the case was in'the supreme court, the board of county commissioners employed the plaintiff in this action, Frank Doster, as an attorney at law, to defend the case for them in the supreme court, which he did. Afterward the board issued an order or warrant on the county treasurer for the sum of $87.50, to pay Doster for his services in the supreme court. Doster presented this .order to the defendant, Samuel T. Howe, who was then treasurer of Marion county, and demanded payment; but Howe refused to pay the same, upon the ground that the consideration therefor was illegal. Doster then commenced this action against Howe for the amount of the order. Plaintiff’s petition properly set forth his cause of action on the order, and the defendant’s answer properly set forth (1) a general denial; and (2) the foregoing facts. The plaintiff demurred to the second ground of the defendant’s answer, upon the ground that it did not state facts sufficient to constitute any defense to his action, and the court below overruled the demurrer; to which ruling the plaintiff excepted, and^then brought the case to this court for review.
The whole question in this case depends upon the question, whether the board of county commissioners had any legal authority to employ the plaintiff Doster to defend it in the
The defendant claims in substance as follows: That the building of said county buildings, as contemplated by the board of county commissioners, was beyond its power, and illegal; and that for that reason the county board had no right to defend any action brought against it to prevent the construction of said buildings, and had no right nor power to employ counsel to assist it in defending such action. The
The defendant cites some other authorities, but we think they have no application to the case; and indeed we hardly think that the cases which we have already referred to as cited by defendant have-much application to this case. For instance, the case of Gregory v. Bridgeport, which is about as near applicable as any cited, is a case where a person was appointed by the city as a superintendent of wharves, and who performed the act complained of, but who did not perform it for the city, but for a third person, and the act itself was not illegal or wrongful. But he was sued by still another person, and in defense of the suit he incurred expenses; and it was held that the city could not legally indemnify him for such expenses. In the present case, it was the county board itself — the proper and real representative of the corporate existence of the county, that contemplated the construction of the public buildings; and the contemplated construction of these buildings was entirely and solely for the county, and the county board has authority to construct such buildings, provided it does so in a proper manner; and it was the county board that was sued; it was the county board that employed the plaintiff, Doster; and it was the county board which Doster defended in the supreme court. The county board under the statutes has a right to build just such buildings as it contemplated building, provided • it first obtained the consent of a majority of the electors of the county at a proper election held for that purpose; and the only thing that was illegal or irregular in the present case was, that the board contemplated constructing such buildings without first submitting the question to a vote of the electors — that is, the thing that the county commissioners contemplated doing was not beyond the scope of its authority, but it simply contemplated doing it in an illegal and improper manner.
The plaintiff cites the following cases in support of his
In the first case it is held that—
“If a town appoint a committee for an illegal purpose, with authority to defend all actions growing out of the same at the expense of the town, and the committee employ counsel accordingly, by whom. professional services are rendered in defense of such an action, the town is liable for the services rendered.”
In the second case it is held as follows:
“A town having appointed a committee for an illegal purpose, with authority to defend all suits which might grow out of the same, and also voted that all costs, expenses and trouble which the committee might incur in the premises should be paid by the town, it was held that the town was not liable for the services of the committee rendered in effecting the purpose of their appointment, but was liable for services performed by them in defending an action brought against the town on account thereof.”
If these two cases last cited are correct, we would think that the contract of employment between the county board and the plaintiff Doster is legal and valid; It would seem that in all cases where a suit is pending in the supreme court against a comity board, and it is doubtful which way the case should be decided, that the county board ought to have the power to employ counsel to defend it until the question is finally determined as to which is right — the county board, or the adverse party; and it would seem that an attorney at law ought to have the right and power to take such an employment; and this although in the end it may be determined and adjudicated that the county board had no good grounds of defense to the action. We suppose that it will not be claimed that the attorney at law should in all cases, or indeed in any case, investigate the entire case first before he takes the employment for the purpose of ascertaining whether the board has any good defense or not; for the investigation itself is often the larger portion of the work in the case, and it often happens that after the attorney has investigated the case he will believe that the board has a good defense, while in the
The judgment of the court below will be reversed, and the cause remanded for further proceedings.