County of Modoc v. Spencer

Van Fleet, J. The substantive question in this case is as to the power of a board of supervisors to employ counsel on behalf of the county to prosecute, or assist in the prosecution of, criminal cases. The board of supervisors of Modoc county on the seventh day of July, 1891, adopted an order or resolution in the following terms:

“ Upon motion and with full consent of the board it is ordered that the firm of Spencer & Raker be and are hereby employed and appointed as assistant counsel with the district attorney to aid in the prosecution of all criminal cases now pending before the superior [499]court of Modoc county, at the agreed sum of six hundred dollars as full compensation for all services.” And thereafter, on the ninth day of October, 1891, as a sequence of the foregoing, adopted a further order or resolution, of which the following is a copy:

“ On motion of Supervisor Wylie, seconded by Supervisor Cannon, it is ordered that the auditor be instructed to draw a warrant on the treasurer for three hundred dollars, as part payment for legal services rendered by Spencer & Raker for the county, in conformity with a previous order of the board of supervisors made employing the said Spencer & Raker to assist the district attorney in the prosecution of criminal cases pending in the superior court of Modoc county, California, against Denis O’Brien and T. B. Reese.”

In pursuance of this last-recited order, the auditor drew his warrant in favor of said Spencer & Raker, as therein directed, and this action is brought by the county, through its district attorney, to restrain the treasurer from paying it. Judgment went in favor of the county, from which defendants appeal. If the board had no power to employ counsel for the purposes indicated the judgment is right, otherwise not.

We can find no authority in the law to sustain the action of the supervisors in the premises. Boards of supervisors are creatures of the statute, the constitution (art. XI, sec. 5) providing that the legislature shall provide for their election or appointment, and prescribe their duties. The authority for any act must, therefore, be sought in the statute. The only provisions looking to such power as was here attempted to be exercised, which have been called to our attention, are found in section 25 of the County Government Act (Stats. 1891, pp. 304-07), which takes the place of the provisions of the Political Code on the subject. Subdivision 17 of that section gives the board power “ to direct and control the prosecution and defense of all suits to which the county is a party, and to employ counsel to assist the district attorney in conducting the same.” Subdivision 86 of