Tatlock v. Louisa County

46 Iowa 138

• Court: Supreme Court of Iowa
• Decided: June 7, 1877
• Status: Published

Opinion

Seevers, J.

1. contract: vfces!iey‘sei It is insisted that it is not only the right, but the duty of the district attorney to appear for and prosecute or defend all actions brought by or against the county, and this position, we incline to think, is correct. Clark & Grant v. Lyon County, 37 Iowa, 469. It is further insisted that, as the services in this case were rendered with the knowledge and concurrence of the district attorney, the defendant must pay at least reasonable compensation therefor. In this view we cannot concur, because:

1. This action is not brought to recover a reasonable compensation for services rendered, but to recover for services under a contract; and

2. While it may be the duty of the district attorney to appear for and defend actions brought against a county, this by no means gives him authority to employ additional counsel, much less would his acceptance of the services of attorneys who might appear in the cause bind the county.

2. —:-: pervisors. II. The employment of the plaintiffs by the chairman of the board was in writing, and is set out in the petition as follows: “ I hereby authorize and empower Tatloclc & Wilson to appear and defend the case of F. E. Goble et al. v. The Board of Supervisors of Louisa County, Lowa, on the part of defendant, to take such steps as may be thought necessary by them in making such defense or taking depositions or making preparations for the trial of said cause.

“ P. D. Bailey,

> “Chairman Board Supervisors Louisa Co., Ia.”

The powers and duties of the chairman of the board as distinguished from those of any other individual member are but few, and certainly he has no more power or authority to employ counsel or make contracts binding on the county than has any other member of the board. The board may, however, whenever they deem it expedient, employ counsel to prosecute or defend actions against the county; nor is a formal vote by the board or an entry of the fact of such employment of record necessary to the validity of the contract. Dillon’s Municipal Corporations, Sec. 399. But the consent of the board to the employment must be shown, and when this is done the chairman, or any other member of the board as agent thereof, may be. empowered' to enter into and make the contract. Rice v. Plymouth County, 43 Iowa, 136.

Now, the petition avers that the chairman, acting for the board, entered into the contract. This being admitted by the demurrer, we think the presumption is, and must be, that he was so acting under legal authority. This, we think, is the fair and natural construction of the statements of the petition. A motion for a more specific statement would have been more appropriate than a demurrer.

Reversed.