Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1899-04-18
This COUNTY WINS
Judge McEie Decides That Attorneys
Have No Claims Against Santa
Fe County.
THEIR CONTRACT WAS VOID
The Board Of County Commissioners Had
No Authority to Employ Attorneys
Nor to Incur Debt,

OPINION IN the suit OIL IN. -. lIduSIlllIl,
Gildersleeve & Preston and Thomas
Smith VS.. The Board of County Com
missioners of Santa Fe County.
This litigation grew out of the en-
ployment of the attorneys to defend
the county in suits brought in the
of George H. Utter and William
N. Coler, Jr., to interest claim
ed to be due by the county on bonds is
sued by the county to aid in construc-
ton of the New Mexico & Southern Pa
cific railway through the county of San
ia Fe, in which the amount of $50, 00O.0 90
was involved and interest and the sum
of $3.50, 100000 and interest thereon at the
rate of Z per centum per annum.
At a meeting of the board Of county
missioner B. Seligman and Teodoro
commissioners September II, 1888, Com
Martinez passed a resolution employing
the plaintiffs to defend the county
against the claims. The plaintiffs were
to receive a stipulated amount which
should compensate them for services in
all courts, including the supreme court
of the United States.
The resolution stated that the case
may be appealed by order of the
board or by the advice of the attorneys.
The sum named as a fee was $4,000,
but the resolution contained provision
that $4,000 should be paid as a retainer
and if the attorneys did not gain the
suit, said $4,000 was to be the payment
in full for services. But should they
succeed in securing the release of the
county for no less a sum than $S1,OO of
the bonds, then the remaining sum OF
$14, 900 should be paid them in county
or $1,000 in cash. Or, if they
succeeded in releasing the county from
a sum smaller than $S1, 900, then a pro-
p%ortionate sum of the $4,000 should be
paid to them, the proportion to be pro
rata as $4,000 to $751; 900. 1t was also
provided that at no time should the
amount for services exceed the sum OF
900 in cash, exclusive of the first pay
ment Of $4,000. The plaintiffs relied up
the resolution as a contract for en-
ployment. They admitted the receipt
of the $4,000 in county warrants as a re-
and sued for $4,000 contingent
fee, together with the interest of $1,452,
and asked judgment for the amount of
SIS, 452. The county was defeated in the
district court and also in the supreme
court of the territory. The plaintiffs
an appeal to the United States
supreme court, but the board refused to
appeal and afterwards the bonds, judg-
ment and interest were refunded into
bonds bearing a lower rate of interest,
and thus the litigation ended.
The county having refused to pay the
$14, 900 contingent fee, the attorneys
presented a claim for that amount, with
for five and one-half years at
the rate of 6 per cent per annum, and
asked that this be allowed against the
under the "Bateman act" which
provided for the settlement and refund
ing of the indebtedness of the county.
II DOoAh lSJSSISa AN SALAAAL LIN LS-
fused to allow or refund any part Of it.
In the trial the defendants insisted
that the resolutions adopted by the
board were not a contract, but only an
agreement for a contract. That if they
constituted a contract, the contract was
void, because the board had no power to
make it, for the reason that the board
had no authority to employ special
counsel; and that it was in violation of
the Harrison act, which prohibits coun-
ties in territories from mourning indebt-
edness in excess of 4 per cent of their
property.
Plaintiffs, in their brief to sustain the
action of the commissioners, cited many
and referred to subdivision 5, Sec
ton 664, Compiled Laws of 1897.
This refers to the duties Of county
commissioners, and is as follows: ITO
represent the county and have the carr
the county property, and the man.
agement of the interests of the county
in all cases where no other provision Is
made by law"
Is authority for the employment of
counsel by county commissioners to
represent the county in litigation, 1t is
certainly not an unlimited power, but 1t
Is specifically limited to cases where no
other provision is made by law"
The laws of 1884, which were still in
force, made 1t the duty of the assistant
attorney general to perform the duties
Of district attorney for Santa Fe, San
Miguel and Mora counties, other coun
ties being provided with district attor-
neys.
The statute applied directly to the
cases in which plaintiffs were employed
by the board, and there was no legal
authority to employ outside people, and
the contract was void.
Judge McFie then reviews all of the
decisions cited by the plaintiffs, at con-
siderable length, and in summing up his
conclusions upon them generally states
that the law, deducible from New Mex
statutes and the above citations, is
where a district or county attorney has
been provided for by law to represent
the county as Its attorney, the right Of
boards to employ special counsel
for such duties Is taken away
Judge McFie, continuing. holds that
contract Is void for another reason,
and quotes from the Harrison act n
BY congress, fixing the limitation
upon the Indebtedness Of territories and
the counties and municipalities thereof.
It was made yer apparent that the in
debtedness OF the county was in excess
Of the 4 per cent limit more than SO, 900.