The record-union., 1893-11-18

Jones brought suit against the Super
visors, and the latter employed counsel
to defend the county. The case was tried
and argued at great length a couple of
months ago, and was duly submitted and
/ taken under advisement by Judge John
son. who yesterday rendered Judgment
| for Jones.
| The decision has more than local inter-
est, wherefore it is herewith given in full.
The court says:
The Decision.
| This is an action brought by plaintiff
against the defendant for three months
services alleged to have been rendered
pursuant to resolution OF the Board of
Supervisors OF defendant, as special
counsel for the board.
On the 18th of January, 1893, the Board
of Supervisors of the county of Sacra-
mento entered into a contract with the
{ plaintiff, which was embodied in the fol-
! lowing resolution and entered in the
minutes of the board that plaintiff "be
| employed as special counsel for this
! board in all cases in which the county is
| party, and to assist the District Attor-
ney and advise the board upon all ques-
tions OF legal nature by them submit
! ted, at a salary of 500 per month" That
at the time of the adoption of the above
resolution plaintiff was, and ever since
has been, the duly appointed, qualified
and acting Assistant and Deputy District
Attorney of Sacramento County.
| The defendant refused to pay plaintiff
for the months of May, June and July,
1898, and after formal presentation OF
| his claim to the Board of Supervisors,
and its rejection by them, he brings this
suit for the recovery of his services rem
dered during that time. 1t is not con-
tended that the board ever rescinded its
resolution of January l2th or in any
| way notified plaintiff that his services
were no longer required. We have pre-
sented before US the somewhat
STRANGE SPECTACLE
OF the Board of Supervisors employ ing
one attorney to do a certain thing and
then employing three others to prevent
that one from recovering his compensa-
ton, and if the same rule prevails when
| these three come to present their bill for
services rendered, we shall soon see all
the counsel i'll the State engaged in de-
fendants services.
1t is urged here that the plaintiff being
a deputy of the District Attorney of the
county Of Sacramento he is required by
law to perform all the services that are
required in the resolution, and that the
| resolution is void. 1t such be the case
then there is in my mind no doubt that
the plaintiff should not recover.
| Plaintiff contends. and cites an array of
authority to support his contention, that
defendant having entered into the con-
tract with plaintiff and having received
services is estopped from denying the
validity of its contract. But in all these
cases cited some innocent party was the
subject of the irregular and void proceed
| ings of some municipal body, and value
was received by the municipality. If
plaintiffs services performed were such
as he was by law required TO do, then the
county has received no value for the
compensation sought and the contract
with plaintiff is irregular and void and
| he is not entitled to recover. (Smith VS..
County of Los Angeles, Cal. Dec, vol. 6,
No. 3S4, p. 144.)
THE ASSISTANTS DUTIES.
This brings the court to the copsdera-
ton of the question whether or not plaint-
iii is required, by his position of Deputy
District Attorney, to perform all the du-
ties that are required in the resolution.
Sections l36 and 137 of the County Gov
ernment Act. Statutes 1891, page 326, pre-
scribe the duties of the District Attorney.
| Section 136, subdivisions l, 2, 3 and 3,
especially set out his duties, which are of
a professional nature, and are as follows:
| l. Attend the Superior Court and con-
duct, on behalf of the people, all prosecu-
tions for public otfenses.
q Institute proceedings before the mag
! istrates for the arrest of persons charged
| with or reasonably suspected of public
! otfenSes, when he has information that
any such otfenses have been committed,
| and for that purpose, when not engaged
in criminal proceedings i'll the Superior
| Court or in civil cases therein on behalf
of the people, must attend upon the mag
| lStrateS In cases OF arrest, when required
| by them, and attend before and give ad-
vice to the Grand Jury, whenever cases
are presented to them for their consider
alton.
3. Draw all indictments and informa-
| tlOnS, defend ali suits brought against the
State or his county, prosecute all recogni-
zances forfeited IN the courts OF record
and ali actions for the recovery of debts,
| fines, penalties and torfeitures accruing
TO the state or his county
8. Give, when required, and without
| fee, his opinion, in writing, to county,
district and township officers, on matters
relating to the duties of their respective
| offices.
Section 1877 reads: 1.-The District Attor-
ney is the legal advisor OF the Board of
Supervisors. He must attend their meet
lngs when required, and must attend and
oppose all claims and accounts against
the county when he deems them unjust
and illegal"
1t is then very apparent that the latter
| portion of the resolution, which requires
/ plaintiff ito assist the District Attorney
and advise the board upon all questions
of legal nature by them submitted" is
clearly within the prescribed duties of
/ the District Attorney, and to pay him for
| that would be an increase of the salary of
the District Attorney, and prohibited by
Section 8, Article H., of the Constitution.
! (Dougherty VS.. Austin, 94 Cal. 60l.)
JONES IS SPECIAL COUNSEL.
But, as to the first part of his dutie
named in the resolution, | am not so
clear. He is employed Tin all cases to
which the county is party" The policy
of retaining special counsel for present
| or expected litigation is one founded
upon principles OF sound prudence.
/ Subdivision IL of Section % of the Act
above quoted gives the Board Of Super
vlsors power TO direct and control the
prosecution and defense OF all suits to
which the county is a party, and to en-
ploy counsel to assist the District Attor-
! ney In conducting the same.
The Supreme Court has repeatedly held
| that it was no part of the District Attor-
ney's duties to go outside OF his county
| to prosecute or defend civil actions. (Her-
ring VS.. Santa Clara County, At Cal. 1876;
Jones VS.. Morgan, 81 Cal. 3Il; Horn
| blower VS.. Duden, 30 Cal. 90; Huffman
VS. Board of Commissioners of Green
wood County, % Kan. ISL
1T RESTS WITH THE BOARD.
The court cannot say whether it is nec-
essary to employ a special counsel and
| give plaintiff Sl00 per month to look after
! the cases in which the county is a party,
| beyond its own limits. That is entirely
within the discretion of the board, and I
can use no more forcible language than
was used by our Supreme Court in the
case of Hornblower VS.. Duden, Just cited.
1t says: "Undoubtedly the board should