Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-06-05
BOARD OF SUPERVISORS.
The Debris Suits-Opinion Filed by the
District Attorney.


On morton of Mr.. Blair the Chairman of the
uosnitsl Committee was authorized TO purchase
one carload of lone coal.
The minority of the Committee on Contracts,
N whom had been referred the bid of A. A.
Clonch for painting the roof of the County Hos
nitai engine house, etc, recommended that
ClOugh be awarded the contract for 500, and
that he give bond in the sum of $500 for the
| faithful performance of the work. MIR. Steinman
differed from the majority of the committee for
the reason that there was but one bidder
Mr. Bailey moved the adoption of the ma
jority report and the motion prevailed.
District Attorney Carey, to whom had been
referred questions as to the hiring of an attorney
or attorneys to complete the debris suits sub
mitted written opinion, which was read and
placed on file.
On motion of Mr.. Steinman the matter was
made the special order for 10 A. NJ. next Friday.
The following is District ATTORNEY Carey 5
opinion:
SACRAMENTO. June s, 1851.
To the Honorable, the Board Of Supervisors Of
Sacramento COuHty-GENTLEMES Your resolu-
ton, under date of June >, 1884, covering two
questions, is ut hand, and had my careful
consideration.
The first question is as follows: "Can the ad-
| mlniStratriX of the estate OF George CadWalader
appoint any one to consummate the CONTRACT leit
unfinished by the death OF George CadWaaqcr!
| understand the contract referred to Is the
one found set vdt at large on pages iO' ana 4Os
of old Book X of the record OF the proceedings OF
|
terms of this contract George Cadwalader under
took In consideration of the sum OF Sl2UOO, 10
be paid in the manner therein stipulated, TO con-
duct to final determination such SUITS against
| hydraulic mines as the Board might direct +;
that certain suits were brought, and are now
pending, but have not been finally determined,
and are in an unfinished condition by the
| terms OF TINS contract, as lcad H. ana II lalI
construction of its terms George CadWalader
agreed and undertook TO give his personal at
tention, skill and learning to such eases as
l. i. Ia n hD
| Board of Supervisors. His death terminated
his relations aS attorney Ill these cases and
terminated his power agent and attorney.
| He himSelfdid not have the power of substituting
another in his stead how much less then
could the Administrative of his estate do so? He
| undertook to render his personal service for the
| consideration mentioned, and was clothed with
no authority by the terms of the contract be
| yond the usual and ordinary authority of an
attorney in cases. His death renders it impossi-
bic for him to carry out the contract and it is
now mt an end, and nothing remains of ii but to
| adjust his claim under ii.
Your second question is follows: "Can the
Board of Supervisors hire an attorney to carry
| on the suits already begun under the counsel
and management of CadWalader? | do not
| know what suits are pending within the mean
| ing of your question. | know of the Gold Run
| case and the case brought in the name of Dick
! DRY Hobbs as plaintiff. have always doubted
! the authority of the Board of Supervisors to re
| tain and pay counsel III either of these eases.
| The power of the Board of Supervisors to employ
1
measured by the fact as to whether the county,
rs such, Us a body polite had interests involved
! i'll the litigation-public county interests dis
| tinguished from State and private interests BY
subdivision Il of Section y of the present County
| Government bill, you have power to employ
counsel to assist the District Attorney in all suits
| To WHICH THE COUNTY i PARTY. The under
| scored clause has been construed to mean
| not only suits TO which she is Il party
| upon the record but all suits i'll the prOSecu-
ton or defense OF which she has or
! is supposed 10 have an interest, etc. Horn
blower vs. Duden. > Cal, 66970). The question
| then is, Has the county, as such any apparent
obvious discernible interest i'll the litigation
! that is is the matter involved county affair?
| The pertinent inquiry in these cases is what
| properly belonging to the county is damaged
| What land does she own that is being sub
merged with sediment and debris The streams
| and channels of the rivers and their tributaries
belong to the sovereignty and the State subject
! to limited rights and uses by the citizen. The
| county has no ownership iii them, nor is she
their protector. The lands upon which this de
vastation Is committed, in most every instance,
| belongs to private owners and is "A private in
| jury to such owner. In no case is the county
| the owner of lands or other property altered To
| be damaged or threatened with injury. How
| then is il that the Board of Supervisors the
| business managers of public affairs should
| be permitted to take the public funds TO en-
ploy counsel to secure IL remedy. for a private
injury done and committed by one citizen
against another, or by one class of citizens
against another, or by one industry against an
nue. for public uses. In the one Case-the Gold
Run case-the State is a party plaintiff and as
well in interest. In the other case the " Hobbs
case "a private citizen who alleges a private
injury against his property is the party plain
tiff and ms well in interest But il may be said
in the first case that all industry contributes TO
the revenue of the State, and it, in the case Of
the county. the public funds should not for that
reason be used then in this case it should not
be used bv the State and il would leave us helm
less In the case of the State however she
would be carving out her trust and She I'M
questionably has an interest in the legislation
to Wit restraining the filing up OF the rivers
and DESTROYING the waters as public high
WAYS But this trust belongs-this duty de
yOlycs-upou the State and not the
smaller subdivisions as counties ANY
litigation in which the county as such has an
interest She has Il a right to incur debts to pro-
tcct as By way of employing counsel Hence
the power is measured By the question of inter
est involved 1t is not question of policysand
popularity nor should such matters be c0nsid-
cred in determining q question ofthis character
Should ! now measure nv Judgment by such
considerations would come TO a very different
conclusion The only cases have noticed from
our own Supreme Court bearing directly upon
this question is the case hercinbefore cited, and
one in the 18th Cal. Reports. The case in the
these cases the interest OF the city IN the one
In both cases ,riery Io %1
were involved
The Supreme Court say. in the Hornblower-
Duden case in discussing this matter: 1--WE do
not of course intend to be understood us i'm
plying that the county be liable in Il case where
| She obviously had no interest There mt
| ulluOublcuiS Dt SoIIt SIouIlu IpI inc dC-