62 So. 323 | Ala. Ct. App. | 1913
The appellant, a practicing attorney of the county, was engaged professionally as such attorney by the court of county commissioners of Limestone county to prosecute, or assist the solicitor in prosecuting, a criminal case against a defendant charged with violation of the provisions of a local road law for the county, approved March 4, 1911. Local Acts 1911, pp. 66-74. In the due course of the transactions growing out of the employment of appellant, the county commissioners issued a warrant on the county treasurer, payable to the appellant, for the services rendered by him as counsel in assisting in the prosecution, but the county treasurer refused payment on the warrant; whereupon the appellant made a motion in the circuit court, under the provisions of section 5938 of the Code, for a summary judgment against the treasurer and the sureties on his official bond.
The only question sought to be presented, and the only proposition argued, is the validity of the warrant, and the power and authority of the court of county commissioners to employ the appellant as counsel in the case and fix a liability on the county for the payment of the services rendered under the contract of employment. In the motion for a summary judgment the appellant alleged his employment by the court of county commis
It must be taken as settled in this state that counties, being governmental agencies of the state, can only be made chargeable with and liable for such claims and demands as the law imposes on them, or authorizes or empowers them to contract for. This power may be derived either from an express authorization of the law, or by necessary implication. — Mobile v. Drago, 172 Ala. 155, 54 South. 995; Naftel v. Montgomery County, 127 Ala. 563, 29 South. 29; Jack v. Moore, 66 Ala. 184; Speed v. Cocke, 57 Ala. 209; Simpson v. Lauderdale County, 56 Ala. 64; Commissioners’ Court v. Moore, 53 Ala. 25; Barbour County v. Clark, 50 Ala. 418; Posey v. Mobile, 50 Ala. 6; Mitchell v. Tallapoosa County, 30 Ala. 130; Van Eppes v. Comr’s Court, 25 Ala. 460.
The case that the appellant was employed, by the court of county commissioners to assist in the prosecution of as an attorney was a criminal proceeding required to be carried on in the name of and by the authority of “the state of Alabama” (Const. § 170), and it was the duty of the circuit solicitor to prosecute this criminal proceeding carried on in the name and by authority of the state in the circuit court. — Code, § 7781.
The court of county commission eres could not fasten upon Ihe county a binding liability to pay for the services of the appellant in prosecuting this case unless it was empowered to create’the debt for such services, by express authority or as a necessary implication from some authority given.
The moral right of the appellant to be paid for the services rendered in good faith by him under an employment by the court of county commissioners would appear to be such as to authorize us to reach out to the limits of legitimate construction permissible under the Jarles in such eases to find a grant of power, expressly conferred or fairly flowing from some authority given, by necessary implication, upon which to rest the validity of the action of the court of county commissioners, and to which appellant’s claim could be referred as an authorized charge upon the county’s funds. We have been unable, however, to find any power, express or implied, with which the county is clothed that would authorize it to enter into a valid and binding contract to pay for. the services of an attorney in a criminal prosecution. Such prosecutions are only authorized to be conducted in the name and on behalf of the state by the officers designated by law charged with the duty, and there is no power given to the county to employ counsel to prosecute criminal cases that would authorize it, acting through its governing board, to make a contract for such services that would be a valid charge against the county.
The cases cited and relied upon by appellant do not sustain his contention. It is true that when the county itself is made a party to a suit it has the power and authority to employ counsel to represent it, growing out of the express power conferred upon a county to sue and be sued, as an incident by necessary implication; and the case of Jack v. Moore, 66 Ala. 181, which seems to be principally relied upon by appellant, decides and holds no more than this. In the case in which the appellant’s services were contracted for, the county was not suing or being sued, and could not be said in any proper sense to be a party to the suit. The state of Alabama was the party prosecuting (made so-by constitutional provision), and the individual prosecuted was the only other party to this criminal action.
The provisions of the statutes pointed out by the appellant, relating to the superintendence and control of the roads of the county by the commissioners, fail to show any express authority for the county to employ an
It follows that the court’s ruling in sustaining the demurrers to the motion for a summary judgment is-free from error, and the case must be affirmed.
Affirmed.