Willett & Willett v. Calhoun County

117 So. 311, 217 Ala. 687, 1928 Ala. LEXIS 111

• Court: Supreme Court of Alabama
• Decided: June 7, 1928
• Docket: 7 Div. 828.
• Status: Published

Opinion

THOMAS, J.

This case is transferred from the Court of Appeals pursuant to the statute having application. Section 7326, Code.

The plaintiff took a nonsuit-with a bill of exceptions for adverse ruling on demurrer to the several counts of the complaint.

The question presented is whether or not the board oí revenue of a county had authority to make a contract with plaintiff as counsel or attorneys for said county board or court to extend beyond the term of the board as it existed at the time of the execution of such contract.

We think not. It is contrary to public policy or injurious to the interest of the public, in that the effect would be “tying the hands of the succeeding board and depriving the latter of their proper powers.” Such succeeding board, as personally constituted, should at all times be free to select its own, confidential legal advisor. Such has been the ruling in New York, Ohio, New Jersey, Indiana, Illinois, Kansas, Iowa, and Colorado. 15 C. J. 542; Board of Com’rs of Jay County v. Taylor, 123 Ind. 148, 23 N. E. 752, 7 L. R. A. 160. The rule as to the county printer in Colorado was discussed in Liggett v. Board of Com’rs of Kiowa County, 6 Colo. App. 269, 40 P. 475, and in Webb v. Spokane County, 9 Wash. 103, 37 P. 282, the rule as to the county physician in Washington was to the contrary. Such employments were not personal and confidential to the county board. We adhere to the majority view as to the attorney for the board, that such action is void as against public policy, the employee standing as he does in confidential or personal relation to the board. Board of Com’rs of Jay County v. Taylor, supra; Board of Com’rs of Pulaski County v. Shields, 130 Ind. 6, 29 N. E. 385.

In the ease of Clark v. Eagerton, 207 Ala. 491, 93 So. 455, the question was the right of the board to protect the financial interests of the county, and to that end employ counsel and pay for services rendered in substituting through the courts the lost tax records of the county under the statute made and provided for such contingency. Gen. Acts 1919, p. 68, amending Gen. Acts, 1915, p. 549. The Clark-Eagerton Case, supra, is not decisive of the question here presented. The right of employment of counsel, advisory and personal,, to their successors, in the respect that each board of revenue should select its own attorney and counselor, is the generally recognized exception to the rule or right of contract by such municipal arm of the state. Millikin v. Edgar County, 142 Ill. 528, 32 N. E. 493, 18 L. R. A. 447; Sheldon v. Board of Com’rs of Butler County, 48 Kan. 356, 29 P. 759, 16 L. R. A. 257; Picket Pub. Co. v. Board of County Com’rs of Carbon County, 36 Mont. 188, 92 P. 524, 13 L. R. A. (N. S.) 1115, 122 Am. St. Rep. 358, note, 12 Ann. Cas. 989, and authorities; 29 L. R. A. (N. S.) 656. See, also, 7 R. C. L. 946, § 21.

The judgment of the circuit court is affirmed.

ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.