116 Cal. 619 | Cal. | 1897
The application is for a writ of mandate. A demurrer was interposed to the petition, which was sustained by the court, with leave to plaintiff to amend. Plaintiff declined to amend, and prosecutes this appeal from the judgment of the court entered against him. His petition discloses the following facts: He is an attorney at law, and the defendant Barnum was and is the auditor of the county of Fresno, state of
“ In the Matter of the Appointment of C. 0. Merriam, Special Counsel for the Board, etc.
“ Upon motion of Supervisor Letcher, seconded by Supervisor Garrett, it is ordered that C. C. Merriam be, and is hereby, employed as special counsel to attend this board on all matters pertaining to the reconstruction of the courthouse, insurance matters, etc.
“ It is further ordered that the compensation of said Merriam be, and the same is hereby, fixed in the sum of one hundred and twenty-five dollars per month until the further order of the board.”
Plaintiff served during the month of August as such special counsel in settling with insurance companies for losses sustained by fire, and in matters pertaining to the reconstruction of the courthouse. He performed all the conditions of his contract, and thereafter presented in due form for allowance his bill for services, which was allowed by the board of supervisors, and ordered paid. Plaintiff demanded of the auditor a warrant on the treasury for the amount of the bill as allowed, but the auditor refused to issue or deliver this warrant to plaintiff.
The sole question in the case may be thus stated: Had the board of supervisors the power to employ plaintiff in the manner and for the purposes indicated by the above-quoted resolution?
The district attorney is the legal adviser of the board of supervisors, and it is made his duty by law to attend its meetings, and give all necessary advice. (County Government Act, sec. 137; Stats. 1893, p. 381; Pol. Code, sec. 4257.) Boards of supervisors are empowered (County Government Act, Stats. 1893, sec. 25, subds. 17,
Boards of supervisors are a creation of the statute, and, their powers being statutory, their acts must find warrant in the law, either expressly or by fair implication. (Linden v. Case, 46 Cal. 172; County of Modoc v. Spencer, 103 Cal. 501.) It is claimed that the authority of the supervisors in the matter under consideration is conferred by subdivision 35 of section 25 of the County Government Act, last above quoted. (Stats. 1893, p. 359.)
From the statutes above referred to it is clearly the intention of the law that the district attorney, and no one else, shall be and act as the legal adviser of the board, with power to the board, however, to employ additional and special counsel to assist the district attorney in the prosecution or defense of suits to which the county may be a party. In the cases cited and relied upon by appellant, the employment of counsel other than the city or district attorney had special reference to suits either commenced, or which, in the nature of things, would probably be commenced. In Smith v. Mayor, 13 Cal. 531, the suit was over the employment of Alpheus Felch for contesting, before the supreme court of the United States, under employment by the city, the title of John Sutter to lands within the limits of the city. In Hornblower v. Duden, 35 Cal. 664, the board of supervisors of El Dorado county had employed James McM. Shafter to defend the interest of the county in a certain railroad matter which involved the prosecution of an action of quo warranto, and for his services in this action the fee was claimed. In Scollay v. Butte
In general, therefore, the action of the supervisors in engaging special counsel has been upheld in those cases in which counsel were employed to defend or prosecute a suit, or as in the extreme cases of Scollay v. Butte County, supra, and Lassen County v. Shinn, supra, where the contract contemplated the employment of an attorney at law to collect moneys, in the performance of which duty a suit might be necessary, and his knowledge and skill as an attorney at law be required.
The contract under consideration, however, is not of this kind. The nature of the employment is to be measured by the terms of the writing expressed in the
However valuable the services of the appellant may have been to the county in this instance, to permit com
The judgment and order appealed from are affirmed.
Temple, J., and McFarland, J., concurred.