102 N.W. 161 | N.D. | 1905
This cause was tried in the court below upon stipulated facts, which may be summarized as follows: The plaintiff is a resident freeholder and taxpayer of McHenry county, and, as such,-brings this suit to restrain further proceedings under
The gist of this appeal is the question of the power of the county board to employ Jones to collect a judgment belonging to the county. The board possessed the powers conferred by statute, and no more. Rev. Codes 1899, sections 1905, 1906, 1907, grant tire following powers, among others, to boards of county commissioners: “It shall have power to institute and prosecute civil actions in the name of the county for and on behalf of the county. It shall also have power to make all orders respecting property of the county,” etc. “It shall superintend the fiscal affairs of the county and secure their management in the best manner.” Section 1979, Rev. Codes 1899, provides, among other matters, 'that the'state’s attorney shall defend all suits brought against his county, and prosecute all actions for the recovery of debts, fines, penalties and forfeitures accruing to the state or his county. From these statutes, and from the nature of the labor to be performed, the inference is plain that it is one of the duties of the State’s attorney to collect a judgment rendered in favor of his county, if such end
Counsel for Jones cites, a number of cases in support of the contract of employment — among them the following: State v. Davis, (S. D.) 75 N. W. 897, 74 Am. St. Rep. 780, which holds that a suit pending may be settled pending appeal by a board of county commissioners by a compromise upon a disputed claim; and this is qualified by the words of the opinion, which- states: “Of course, where the debtor is solvent, the board cannot, without fraud, thus discharge an obligation concerning the validity of which there is no question; but where, as in this case, the claim is in doubtful litigation, and a compromise made by the board is fully sustained by the court before whom all proceedings were had, we would most reluctantly disturb such action on appeal.” In Collins v. Welch, 58 Iowa, 72, 12 N. W. 121, 43 Am. Rep. 111, the power was conceded to the board to compromise and settle a judgment, but because the debtor was insolvent. Other cases cited are on the same line, except that the claim or demand was disputed and of doubtful character. In each the settlement was made between the original parties, and not, as claimed here, with an outsider. The power conceded in these cases was one of judgment and discretion, and properly allowed to boards having charge of the fiscal affairs of municipal corporations. The present question is not a matter of compromise or settlement w-ith the judgment debtors. Neither is it shown that the judgment debtors are insolvent. It has- not been made to appear that the judgment is uncollectible, or that any reason exists to replace the state’s attorney with another person, whose profession or business is undisclosed by the record, and whose charges for services are so extravagant as to seem to be opposed to public policy.
Under the statute laws of this state, there is a remedy for such a situation as exists when a state’s attorney neglects his duties, or when the matter is one of importance. Section 1988 of the Revised Codes of 1899 provides as follows: “The judge of the district court may in his discretion appoint special counsel to assist the state’s attorney in important cases.” Under the facts stated in the findings, and reasserted in appellant’s brief, viz., that several actions were necessary to enforce and collect the judgment in issue, it seems that an appointment by the district judge under this statute could be properly made. It was therefore unnecessary for'-the com
The judgment of the lower court is affirmed.