47 P. 942 | Idaho | 1897
Lead Opinion
In March, 1895, the board of county commissioners of Blaine county, by resolution then entered of record in the record of proceedings of said board, decided to employ the respondents, Johnson & Johnson, as counsel and attorneys for Blaine county, "to advise, counsel and direct, and, if necessary, manage and conduct suit for said county, in and about the organization of said county, and maintaining and enforcing the law creating said county, and that for said services they be .paid a retainer of $1,000, and a reasonable fee for services,” etc. The respondents accepted employment under said resolution, whereupon said resolution (if said board of county commissioners had the power to make it) became an executory contract. ’ The record shows that respondents, acting under said employment, and acting in the interest of Blaine county, and for the purpose of determining the validity of the act creating said Blaine county, rendered professional services in this court in the case of Bellevue Water Co. v. C. O. Stockslager, and in the case of Wright v. Kelley et al., both of which were brought to test the constitutionality of the said act creating Blaine county. Respondents presented their claim for said services in the sum of $1,000, which claim was duly verified; and on January 22, 1896, said board allowed the said claim of respondents to the extent of $750, and disallowed the residue thereof. The January meeting of the said board of commissioners was commenced at the time appointed therefor by law, and the record shows that adjournment of said meeting was had from time to time. The said board, on one or more occasions, adjourning over for more than one day; i. e., January 24th "adjourned to February 5, 1896, at which time they propose to complete the business of the term,” until April 1, 1896, when the said board adjourned sine die. On the eighth day of May, 1896, the appellants, as taxpayers of said Blaine county, filed with the cleric of said board of commissioners a notice of appeal from the order of said board allowing in part the claim of respondents, as afore
It appears from the record that a brief statement of all the acts and proceedings of said board of commissioners from January 13, 1896, to January 24, 1896, inclusive, was published in the issues of February 1 and February 8, 1896, of the “Ketchnm Keystone,” a newspaper published at the village of Ketehum, in Blaine county; that the heading to said statement was in words as follows, to wit: “Eeport- of regular session of county commissioners held at Hailey, January 13, 1896”; and in said statement the following language was contained: “The following bills were allowed on general fund: Johnson & Johnson, legal services, supreme court, $750.” Eespondents contend that the twenty days’ time within which to take an appeal from the order complained of to the district court commenced on the first day of February, 1896, the day on which said statement was first published, as aforesaid. This contention is not correct. The statement which paragraph 19 of section 1759 of the Eevised Statutes, as amended by act of March 6, 1895, authorizes, should be published at the final adjournment of the “meeting,” “session ” or “term” of the board, and after all of the business of the term has been completed. The word “session,” as used in the statute, is synonymous with “term”; and the said statement should not have been published till after the “term” was adjourned sine die. The statement published in the “Ketehum
•Respondents also contend that the appeal herein to this court should be dismissed, for the reason that no undertaking on such appeal was given. Prior to the passage of the act of March 6, 1895, no appeal in a ease of tins ldnd could be taken to this court. The different provisions of the act, supra, provide for an appeal to this court, and a careful consideration of all of the provisions of said act convinces us that it was the intention that the practice on appeal from the decision of the district •court, to this court, subject to the rules adopted by this court, ■should be the same as on appeal to the district court, and that no undertaking on appeal is necessary in either case, unless, for reasons mentioned in the statute, the court should require such undertaking. The motion of respondents to dismiss this appeal is therefore denied.
Appellants do not contend that the amount allowed by the board of county commissioners to respondents was excessive, but insist that the said board had no jurisdiction to employ said respondents for the following reasons, to wit: 1. The record of said board of commissioners does not show that said employment of respondents was necessary; 2. The said board should have relied upon the attorney general and the district attorney, instead of employing private counsel.
As to the first point, this court held in Hampton v. Board, 4 Idaho, 646, 43 Pac. 326, and which is relied on as supporting appellants' contention, as follows: “We think that, before the
But it is contended by the appellant's that the district attorney ■of the fourth judicial district, Blaine county, being in said district, was the legal adviser of said board, and that the said board should have relied upon said district attorney, or, in any event, have looked to the attorney general for counsel and assistance in said litigation. It was not the duty of the said district attorney to represent the county of Blaine in said litigation in this court. Owing to the vast importance of the questions at issue in said litigation, involving, as it did, the legal existence of the county, said board of commissioners were justified in employing the services of eminent counsel to look after the interest of their county, and, in the exercise of reasonable discretion, they might employ such counsel to assist the attorney general in litigation wherein the legal existence of the county was in issue and to be determined. The district court properly affirmed the order of the board of county commissioners, and the decision of the district court appealed from is hereby affirmed, without costs.
Rehearing
ON REHEARING.
Since filing the opinion in this case, the appellants have filed petition for rehearing. We have carefully ■examined appellants’ petition for rehearing, and find nothing, either in the way of argument, or by way of authority,
The record in this case shows that the existence of Blaine-county was in question, or that a contention existed as to the-validity of the act creating Blaine county, and that this controversy was to be settled, and that the respondents, Johnson &- Johnson, were selected by the board of commissioners as counsel to represent Blaine county in the prosecution or defense of suits-for said county, in order to maintain and enforce the law creating said county. Counsel for appellants contends that the board of commissioners should have shown by their record that such* suit had actually been commenced, before it could employ counsel. It was important for many reasons that the controversy-aforesaid should be settled, and we think that the county of Blaine could, acting by its board of commissioners, under the-constitution, employ counsel to represent it, either in bringing,, or for the purpose of defending, a suit to be ihereafter brought,, to settle a controversy then in existence. That such controversy did exist at the time the board of commissioners employed the-respondents is abundantly shown by the record in this ease. We-think it sufficiently appears by the record of said board of commissioners. And it further appears in the record of this case-that the attorney for appellants and other citizens of Blaine-county realized the existence of the controversy aforesaid, and' for this reason the present counsel for the appellants went to the-said board of commissioners, and tendered his services in said controversy free of charge. This action of the learned counsel, for appellants, we think, shows that he thought it necessary that private counsel should look after the interests of Blaine county
