Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1901-10-19
lpecial. Is mes-Republican.

special % Times Republican.
Eldora, Oct. 1s.-County Clerk Tom G.
s1asader received from Judge Kenyon
~ decision in the smuch-talked-of tag
1exTek case at a late hour last night. The
lGsciaon il = sweeping pne and covers
ne various points at issue in a co,npre-
hensive and convincing way. The de-.
clsion covers fourteen pages of closely
stype1ritten matter, and from the facts
sehs court nnes the following conclusion
~ law:
xhst the contract entered into be-
tween the board and Attorney Albrook
= void: (a) Because IT is an attempt
gspon the part Of the board Of snpervis-
on to employ party to perform the
duties OF the county treasurer. CD II is
= cantrayention Of chapted 50. acts Of
~ txenty-eighth general assembly.
..aacond: That the money paid under
said contract can be recovered back,
Ebecause the county never consented to
aid payment; that it was paid without
authority, and there has been NO release
From liability; that the money was paid
20 defendant upon bills and statements
Herewith containing an incorrect con-
sclusion a 10 the county's liability. Fur
thss, that the relation OF attorney and
elisnt existing between defendant and
che county. the rule as,to the non-re-
eovery ot money paid under mutual
nistake Of law 10 not applicable.
ne court inds the plaintiffs are en-
eitied 10 decree cancelling the con-
tract made between the said county and
che defendant Albrook, and adjudging
Il 70 be void. The decree will also en-
1oin and restrain the county auditor
ana board OF supervisors from payment
81 any further funds out OF the county
Htreasdfy pursuant to the terms Of said
aiieeed contract. The decree will also
provide FOR Judgment IN fasorSof .EIar-
Ain county against defendant Albrook
for the sum of ss.5s6.77, which sum shall
bear interest at per cent from time
0aid sums We're paid to Albrock. There
VIII be further judgment IN favor Of
Hardin county against defendants.
Tleener, Carnahan & Bilderbeck, the
lax ferrete. and each Of said defendants
Gor the sum Of s4.ss1.ls and interest at 6
percent.
..The payment Of the Judgment
against the ferrets shall operate as pay,
nnent pro tanto Of the judgment against
defendant Albrook. Judgment will also
be entered in favor Of plaintiffs against
defendants Albrook. Welch, Baxter,
l Granner q WALTON and Fleener, Carna-
han & Bilderbeck for costs OF this ac-
ticn.,'
n No Judgment Is entered against Car
Ter and Lundy.
Il will be remembered that this ac-
eion was brought by certain tax payers
Of Hardin county to recover certain
money paid to defendent, G. u. Albrook.
under contract made between the
board Of supervisors of Hardin county
and said defendant, whereby said Al-
brook was to receive Is per cent OF all
money collected from all property with
held from the assessor, the board hay-:
ing at about the same time entered into
an agreement with Fleener, Carnahan &
Bilderbeck. tax fsfrets. to discover
property withheld from taxation. for
which they were to receive 10 per cent
OF all such property 80 discovered.
The defense relied upon section 1874 OF
4 the code, which gives the board OF sv-
pervison authority to employ attorneys
20 prosecnt an action brought by the
3 treasurer to recover taxes on property
Withheld or overlooked and not listed OF
afsessed. The court holds that II De-
( 1endant Albrook was employed under
this section the employment was legal
ana he would be entitled to is per cent
1, OF the amount recovered In this action,
certainly NOT OF the amount paid into
the county treasury where no action had
been brought. The court says: .Ths
4 evidence fails to show that any action
had been brought under section 1874,
4 that no amount has ever been recovered
4 in any action under section 1874, and
certainly II employed under said section
he could not be entitled to compensa-
tion out OF taxes voluntarily paid to the
county treasurer His employment un-
der this section would be to prosecute
actions and for this service he would be
paid out Of the county fund.
Plainly. said employment was not re-
garded by the parties as an employment
under section 1874; IL so, nothing was as
yet due Defendant Albrook at the time
OF the payment OF the bills presented to
the county. The bills SO presented by
defendant indicate that he did not re-
gard his employment as under said sec
ton. This contract is In effect con-
tract employing defendant to do the
work OF county treasurer, or portion
Of the work OF a county treasurer, or
else that of the county auditor. Under
section ~, acts Of the Twenty-eighth
general assembly, the county has a
right to employ attorneys to assist in
the trial OF cases or do otner necessary
legal work for the county. but the coun-
ty has no right to employ an attorney to
! do the work of the county officers. II
parties can be employed to collect a por-
tion Of the taxes voluntarily paid they
may be employed to collect all taxes
I Neither in the judgment OF the court
was it within the power of the board to
employ defendant or any party to do the
\ work placed upon the county auditor OF
~ section 2, chapter n, acts Of the