Marion County v. Taylor
55 Miss. 184
| Miss. | 1877
Chalmers, J.,

delivered the opinion of the court.

The defendant in error claims compensation as an attorney, for professional services alleged to have been rendered to the •county of Marion, under and by virtue of an order of the Board, of Supervisors of said county, made and entered on January 25, 1871. His services, as averred in the declaration, consisted in this, to wit: that “ he instituted and prosecuted proper proceedings to require the clerks of the Chancery and Circuit Courts, and the sheriff and tax-collector, of said ■county, to give good and sufficient bonds,' with good and sufficient sureties, and to remove them from their respective offices for default in making said bonds ; and, said officers having failed *186to give such bonds, he procured said officers to be removed from their said offices.”

For these services he charges a fee of $600. In his testimony he states that he accomplished the removal of the officers, by visiting the city of Jackson, in the year 1871, and by affidavits submitted to the then .governor of the state, establishing the insufficiency of the bonds of the officers, and also their malfeasance in office, and thereby procuring from the governor an order requiring the execution of better bonds, wMck not being given, the clerks and sheriff were by the governor removed.

The order of the Board of Supervisors, under which the defendant in error acted, seems to have contemplated the performance of the identical services rendered, and to have promised reasonable compensation therefor; but it is manifest that the order was a nullity. At the date of its adoption there was no law authorizing the appointment of county attorneys generally. The Boards of Police (now Supervisors) were only authorized “ to employ counsel in all civil cases in which the county was interested, to conduct the proceedings, instead of the district attorney.” Code 1857, p. 420, art. 35. Evidently this refers to suits pending, or .about to be instituted, in the courts, and not to such anomalous services as are here claimed to have been rendered. The Boards of Police, themselves, alone have power to require the giving of better bonds by county officials, and it was their duty to exercise this power whenever by them deemed necessary. Certainly they could not employ counsel, at the expense of the county, to induce themselves to do their duty. Still less could they impose an obligation on the county to pay counsel to induce the governor to make such an order, because the governor had no such power; and if he made the order, it was a nullity. He did have, at that time, authoiity to remove county officers, by the act of April 20, 1870 (Sess. Acts, 150), which act was by this court pronounced constitutional, in the case of (Cocke v. Newsom, 44 Miss. 352; but it will scarcely be contended that *187the Boards of Police or Supervisors could employ counsel, at the expense of the taxpayers, to procure the removal by the governor of county officials. Such a contract between private persons, acting sui juris, would impose no liability. A fortiori is it void where entered into by public officers utterly destitute of authority to make it. In justice to the learned judge below, it is to be remarked that he seems, from the recital contained in his judgment, to have considered the opinion of this court, when this case was formally before it, as compelling him to sustain the legality of the demand of the defendant in error. It was not so intended. It only affirmed the right of appeal to this court, and remanded the case to be proceeded with on its merits. Bentonville Taylor v. Marion County, 51 Miss. 781.

Judgment reversed, and judgment final entered here for the plaintiff in error.