Comm'rs of Leavenworth Co. v. Brewer

9 Kan. 307

• Court: Supreme Court of Kansas
• Decided: January 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

1. county attorduties. ia It is unquestionably “the duty of the county attorneys” of this state “to appear in the courts of their respective counties, and prosecute or defend on behalf of the people, all suits, applications, or motions, civil or criminal, arising under the laws of this state, in which the state or their county is a party or interested:” Gen. Stat., 284, §136.- And also, “The county attorneys shall, without fee or reward (other than their salaries) give opinions and advice to the board of county commissioners, and other civil officers of their respective counties, when requested by such board or officers, upon all matters in which the county is interested, or relating to the duties of such board or officers, in which the"state or county may have an interest:” Gen. Stat., 284, § 138. And this they must do whether the matters upon which they give their opinions or advice are to be prosecuted or defended in their own counties, or elsewhere, or not at all. And the rule with regard to compensation unquestionably is, that whenever the law requires the county attorney to perform any particular service or duty he cannot receive or recover any compensation for the performance of such service or duty in addition to his salary and the specific fees allowed by statute. Gen. Stat., 284, § 139. His salary is intended to be sufficient compensation for the performance of all services and duties required by law, except where the statute otherwise specifically provides for other or additional compensation. But where the county attorney performs services for the county which are not required of him by law he may be paid therefor by the county the value thereof as though he were not the county attorney; and the county board may contract with him for the performance of such services as are not required of him by law, in the same manner and to the same extent as they could contract with any other person for the performance of such services. There is no law that requires a county attorney to attend any court, or do any business, civil or criminal, that requires his personal attendance outside of his own county; and therefore if he should perform any such services for Ms county he may be allowed such compensation therefor as his services are reasonably worth. For instance: where a suit for or against his county is to be prosecuted or defended beyond the limits of his county, he cannot be allowed any compensation in addition to his salary for any opinion or advice he may give to the county board concerning said suit; but if he attends the court personally, and prosecutes or defends for the county, he may be allowed a - compensation for such last-mentioned service in addition to his salary. In the case at bar, the court below finds that the county board employed the plaintiff below to attend a court outside of the county, and defend .a suit in which the county was interested, and therefore the .services were performed under a special contract, and therefore we think he may recover in this action.

2. Claims against counties; appeals; original action. II. Where a claim against a county is properly presented to the board of county commissioners, and disallowed in whole or in part, the claimant may take the same to the district court either on appeal or by commencing an original action. A county is a quasi corporation which may sue and be sited as other corporations; (Gen. Stat., 253, §1;) and the board of county commissioners are the representatives—the financial agents—the business ■ managers-—of such corporation; and in their name all suits in which the county is interested must be prosecuted or defended: Gen. Stat., 254 § 5. A claim presented to the county commissioners is simply a claim presented to the county, and a retusal by them to pay it is simply a refusal of-the county to pay it. And where a county refuses to pay a •claim against it there seems to be no good reason why it may not be sued as well as any other corporation, or as any individual, under like circumstances. It is true, that the county •commissioners in some cases act in a kind of quasi judicial •character, and when they do so act their determinations are final ^unless appealed from. But when they allow or disallow a claim against their county—against their principal—they •do not act in a judicial capacity. They are not then a court, Acting impartially between two contending parties, but they Are simply the agents of one of the parties, and acting for .such party. It is also true that an appeal is given in all cases from the decision of the board of county commissioners: ■Gen. Stat., 260,, § 30. But no attempt has been made on .account of giving such right of appeal to abridge the right of the claimant which he otherwise has to commence an •original suit where his claim has been disallowed in whole or in part by the board. In such a case he has two remedies, •either of which he may resort to at his option. That he has .the-right to sue the county in such cases, we would refer to .the cases of Trumbull Co. v. Hutchings, 11 Ohio, 368; Price 7». Sacramento Co., 6 Cal., 254. Where the county board Allows a part of a claim, and the claimant receives that part, Ave do not wish to be understood as deciding that the claimant may then appeal or sue for the balance. (See Pulling v. Sup’rs -of Columbia Co., 3 Wis., 337.)

There are no other questions raised in this case Avhich we need to consider. The petition was sufficient upon an objection to the evidence. The second' defense set-forth in the Ánswer Ayas not sufficient as & defense to the action. The findings of the court Avere sustained by sufficient evidence; and the judgment followed -the findings. • Whether parol •evidence was competent to prove the action of the county commissioners with regard to making a contract with the plaintiff below, is not before us, as said evidence (which was sufficient to prove said fact if competent to be received,) was not objected to for that reason, nor for any reason, except-that “the petition did not state facts sufficient to constitute a cause of action.” If the evidence had been objected to because it ivas parol, the record evidence could then have been introduced, provided such evidence was necessary. Or, if there was no such record evidence then the question of its-necessity, and the question of the competency of parol evidence, would havé been fairly raised before the court. ,The judgment of the court below must- be affirmed.

Kingman, C. J., concurring. Brewer, J., did not sit in the case.