136 Ky. 219 | Ky. Ct. App. | 1909
Opinion op the Court by
— Reversing.
R. A. Burton, a former superintendent of the_ common schools of Shelby county, entered into a written contract with Beard and Marshall, a firm of lawyers, by which he agreed to pay them as a fee a sum equal to 50 per cent, of whatever sums might be collected by two contemplated lawsuits on the two separate bonds that had been executed by certain book publishers as required by section 4424, Ky. St. 1903. This section provides, among other things, as follows: “Whenever any publisher or person selling text-books, who desires to have his text-books adopted in the common schools in any county in this state, shall file in the office of the Superintendent of Public Instruction a sample of each of the text-books intended for adoption, together with the lowest retail list price at which-the same shall be sold .to the patrons and pupils of any county in which the same may be adopted, and shall execute bond before the
The agreement between the supreintendent and the attorneys is as follows: “This agreement, made this January 10, 1904, by and between R. A. Burton, superintendent of common schools of Shelby county, Kentucky, of the first part, and Beard & Marshall, attorneys at law, of Shelby county, of the second part, witnesseth: That said first party has this day employed second party to prosecute a suit in the Shelby circuit court and Court of Appeals against Maynard-Merrill Company and Ginn & Company on their re
Under this contract the attorneys named therein brought two suits in the name of the commonwealth, one against Ginn & Co. and the other against the Maynard-Merrill Company, to recover the penalty of $10,000 for alleged breaches of the bonds entered into by them with the commonwealth. The suit against the Maynard-Merrill Company was unsuccessful, but in the case of Commonwealth v. Ginn & Co., a judgment was recovered for the sum of $10,-000, with -interest and costs added, and this sum the ' attorneys collected. They paid over to the common-' wealth one-half of the amount collected and retained 50 per cent, as their fee under the contract. In the meantime R. A. Burton’s term of office as superintendent expired, and he was succeeded by the appellant, G. M. Money, who refused to recognize the validity of -the contract made by his predecessor, and instituted this action to recover from the attorneys the money retained by them as a fee for their services. At the time the contract was entered into it is admitted that C. C. Marshall was holding the office of county attorney of Shelby county; that pending the litigation his term of office expired, and he was
We are of opinion that it was the duty of C. C. Marshall as county attorney to prosecute the action against Ginn & Co. without any additional remuneration to his regular salary as county attorney; and, this being true, it was not competent for the superintendent of county schools to make the contract with him which is involved herein. Section 127, Ky. St. (Russell’s St. sec. 4750), defines-the duties of county attorneys in this commonwealth as follows: “He shall attend to the. prosecution of all cases in his county in which the commonwealth or the county is interested; and, when so directed by the county or fiscal court, institute or defend, and conduct actions, motions and proceedings of every description, before any of the courts of this commonwealth in which the county is interested, and shall in no instance take a fee or. act as counsel in any case in opposition to the interests of the county. He shall also attend the circuit courts held in his county, and aid the commonwealth’s attorney in all prosecutions therein, and in the absence of an acting commonwealth’s attorney, he shall attend to all commonwealth’s business in said courts.-”
It is said in the briefs for appellees that the above section of the statutes relates alone to criminal cases in which the commonwealth is interested; but this is not correct. It will be observed that the first part
In the case of D. C. Heath & Co. v. Commonwealth, 129 Ky. 835, 113 S. W. 69, a county superintendent of schools instituted an action similar to the one in
It results, therefore, that the written contract by which the county attorney was employed in the action against Ginn & Co. was void. But it does not follow that the other attorneys employed were not entitled to pay for their services, although the county attorney could not be paid for his. We think the superintendent, in the exercise of a reasonable judgment, had
For these reasons, the judgment of the lower court, upholding the validity of the contract between the superintendent and the attorneys, is reversed, with directions that, when the case returns to the circuit court, the pleadings be amended so as to properly present the issues indicated in this opinion.