Tonopah daily bonanza. [volume] (Tonopah, Nev.) 1906-1929, 1909-09-14

eral local legal lights concerning the
right of the county commissioners
to employ special counsel in the
matter of bringing suit against the
Nye and Ormsby County bank to re-
cover the funds on deposit there
when that institution failed, Hon.
Key Pittman yesterday presented to
the board request that he be per-
mitted to resign from the service.
His letter quotes a number of au-
thorities which state that the COM
missioners have the power to en-
ploy counsel whenever they see fit.
Accompanying the letter of Mr..
Pittman was one from the dis
trict attorney on the same lines.
Both letters are herewith printed in
full.
September 18th, 1909.
To the Honorable Board of County
Commissioners of Nye County,
Tonopah, Nevada.
Gentlemen: AT meeting of
your board, held in the month of
July of this year, you employed me
as special counsel to assist the dis
trict's attorneys office in the pros
ecution of such suits as might be
deemed necessary to recover money
due Nye County by ex-County Treas
urer Gilbert, his bondsmen, the Nye
, and Crn2sby County bank, and 9TH
er parties. This employment was
not sought by me. as you are aware.
Your honorable board requested me
to state my fee for such services.
Upon my stating the fee, you re-
tanned me in such matter.
The district attorneys office has
not instituted suit in such matters
f'r-the reason that until the pres
ent time there was reason to be-
lieve that certain county security
might be obtained without legal ac-
ton and the county thereby saved
the cost and delay of legal proceed
ings to such extent. 1t is apparent
now.' however, that the county has
no alternative, and must institute
and prosecute legal proceedings
without further delay.
I have been informed by your
MI. Cuddy that there has been con-
siderable discussion between certain
parties and the county commission
err as to the right of the county
commissioners to employ special
counsel in such matters.
The supreme court Of Nevada, in
Ellis VS.. Washoe County, Nevada,
page 291, says:
This particular power is not Civ
en- in express terms, but the power
to control the prosecution or de-
Tense of all suits to which the coun-
ty is a party which is given in SUBJ
division ~ of section 8, Laws of
1871, clearly embraces the power
to employ counsel to protect the in
terests of the county Litigation
can only be controlled by means of
attorneys having the authority to APP
pear in the courts; hence. to give
full effect to this power, the com
missioners must in the very outset
have the power to employ counsel.
Nor is 1t any answer to saw that the
law des'gnates and provides an at
torney for that purpose-the dis
trict attorney; for it is not infre-
1uently the case that he may be
unable to attend to the business of
the county, or it's interests in some
particular suits may be of such
magnitude that the assistance of
other counsel would be very desir-
able or possibly indispensable.
Upon similar statute, and under
like circumstances, the supreme
court of California has held, in con-
formity with these views, first in
the case of Smith VS.. Mayor, 13 Cal
531, and again in Hornblower vs.
Duden, 35 Id. 664 In the latter
case, the court says upon this ques-
ton: The point as to the power of
the board to employ other counsel
than the district attorney is an
swered by the case of Smith VS..
Mayor, and nothing need be added
to what was there said While the
power is not expressly conferred,
yet 1t is obviously embraced in the
general power to control the prose-
cution and defense of all suits to
which the county is a party-which
we conclude to mean not only suits
to which she is party upon the
record. but all suits In the prosecu-
ton or defense of which she has, or
Is supposed to have. an interest.
So We construe the act of this state
to confer the power. not only to
control all suits to which the .coun-
~ is party of record. but to such
as II NAV be a party In interest
merely. Such was manifestly what
the legislature meant by party to a
suit"
Judge Hawley. delivering the
opinion OF the supreme court in
Clark vs.. Lyon County Is Nevada.
at page 1881. uses the following
language:
The first part at this question r.
readily answered IN the Affirmative.
The statute OF this state makes n
the fugr ~ the hnrPH ~ count.