Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1899-12-01
CONTRACT IS VOID.
Supreme Court so Holds with Reference
to Kidder County Tax Collec-
tion Contract.
Attorney Baker Cannot be Employed
by the County Commissioners
Under the Ruling.
Important Decision of the Supreme
Court with Reference to Some
Tax Litigation.

The supreme court has handed down
an especially important and interest
ing decision in the case of Storey VS..
the commissioners of Kidder county,
involving the right of the commission
ers to employ counsel outside the states
attorney Of the county to assist in the
making Of collection Of delinquent
taxes by suit, and incidentally passing
upon the power Of the commissioners
to employ additional counsel for any
purpose. The case in question was a
tax suit, brought by the commissioners
Of Kidder county against the Northern
Pacific railway company for delin-
4uent taxes on their lands in the
county. The road has compromised
and settled all it's delinquent taxes in
the state except in Kidder county.
Here the commissioners refused to
settle on any basis except that of full
payment OF the taxes, penalty and in
terest and suit was brought against
the road for the amount Of the taxes
and penalty. 10 assist with the
legal prosecution of the ase the com
missioners employed Attorney Fred
A. Baker of Detroit, Mich, to carry
the case into the courts. Baker is a
well known Michigan constitutional
lawyer and is a property holder in Kid
der county. He was employed ut the
same time by Emmons county, adj
joining Kidder, to prosecute their claim
for taxes. Subsequently the commits
sioners of Emmons county comprom-
ised their taxes and Baker had no suit
to prosecute. He had had Il cOntin-
gent contract with the commissioners
OF Emmons county, and was to have
received % per cent of the total
mount collected by suit. AS the
suit was collected he did not receive
his fee, and put in a bill for something
like $1,000 as the amount he was to
have received under the contract. The
commissioners refused to pay and
Baker brought a suit for the amount.
The suit is still pending and under the
decision of the supreme court in the
hldder county case, Baker will be In
able to recover.
In the Kidder county case, which
the court has just decided, John
Storey, 4 resident Of the county.
brought an injunction proceeding
against the commissioners, to restrain
them from making payments under
contract with Baker. The plaintiffs
claim was that the commissioners had
no legal right to employ additional
counsel to the states attorney or to en-
ter into 4 contract to pay him for any
work done. The state also interviewed in
the case. on the ground that it had an
interest in the tax collections to the
amount of the state and general taxes
on1 fhnf f1,n on,,,n, sion ~, ro,,11 not
grant away a quarter Of the amount
collected to the attorneys, under any
special contract. The case was ar
gued before Judge Winchester by At
torney Jas. b. Kerr, Attorney General
J. r. Philbrick and Alexander Hughes
for the plaintiff and by Attorney Baker
and States Attorney Stanley Of Kidder
county for the defendant county COM
missioners. Judge Winchester de-
cided the cas- in favor Of the plaintiffs
and issued the injunction.
The case vas then appealed to the
supreme court by the defendants. The
higher court affirms the decision of
the lower court, and in a complete
syllabus of the questions involved, de-
clares the rights Of commissioners with
regard to employment of additional
counsel. The matter is particularly
interesting and important as the pro-
cedure and the points raised are en-
tirely novel in the state. The syllabus
of the court is as follows:
This action is brought to enjoin Kid
der county and it's commissioners from
paying out any money or transferring
any land to the defendants, Baker and
Stanley, pursuant to the alleged O n
tract of employment entered into in
November, 1897, between said Baker
and Stanley and the commissioners Of
said county by the terms Of which
said Baker and Stanley agreed as at
torneys to prosecute necessary legal
proceedings for the collection of GER
tain taxes against the lands Of the
Northern Pacific Railway company,
situated in Kidder county. Said con-
tract was made while said Stanley was
states attorney for said county and by
it's terms Stanley and Baker were to
receive q. compensation for such SER
vices out of the cash proceeds 50 col
lected a percentage of % per cent
thereof, one-fifth part Of which was to
go to Stanley and the residue to Baker.
And it was further stipulated by such
contract in effect that one-fourth part
of any real estate the title to which
was obtained in the contemplated pro-
ceedings was to be transferred to said
Baker and Stan4ey in the same pro-
portion respectively to each. Held,
under the circumstances, and for the
reasons set out in this opinion that
said contract was ultra wires as to the
county commissioners and wholly
void. Held, further, that the question
whether county commissioners may
under their implied powers and in the
absence Of statutory restrictions en-
ploy special counsel to attend to mat
ters in which the county is interested,
is not involved in this case and hence
such question is not decided.
Held, constituting section Z of chap
ter 81 of the laws of 1897 that until
swe have been filed pursuant to
the provisions of said chapter that the
power vested in county commission
ers t o employ additional counsel to
assist the states attorney in cases
brought under said chapter does not
arise and accordingly, held, that an
attempted employment Of additional
counsel made by resolution Of the
county board, such as appears in this
L."HM E.-T- 80 --N