Merced County v. Cook

.GAROUTTE, J. This proceeding is inaugurated against the auditor of Merced county to restrain him from drawing a warrant in. favor of Frank H. Farrar, an attorney at law. The threatened action of the auditor arises upon a claim duly approved by the board of supervisors of Merced county, which claim was presented by said Farrar. This claim was for the sum of two hundred and-fifty dollars agreed to be paid to said Farrar by the board of supervisors as a retainer for services to be rendered. A material portion of the resolution of employment is as follows: "Now, therefore, it is hereby ordered that Frank H. Farrar, Esq;, be and he is hereby employed as an attorney to institute actions for and in the name of Merced county against any and all persons or - associations of persons from whom is or becomes due license tax, for the recovery of any license taxes now due, or [276]which may hereafter become due, to Merced county by virtue of any ordinance of the board of supervisors of said county, and to-do all other and proper things to compel payment of the license taxes now due or that may hereafter become due from such persons to Merced county, and to assist each and every county officer charged with the collection of said license taxes,, by counsel and advice, and by taking, instituting, and prosecuting in the name of Merced county all necessary and proper legal proceedings to enforce without unnecessary delay the payment of all license taxes now due, or which may hereafter become due, the said county.” The trial court issued the restraining order asked for by the plaintiff, and this appeal followed.

Plaintiff bases the merits of its case upon the proposition that the board of supervisors exceeded its power in making the contract here involved, and with this contention we agree. Prior to the year 1883 the source of power of the boards of supervisors of the various counties of the state over matters of county litigation was found in this language of the statute: “To direct and control the prosecution and defense of all suits to which the county is a party.” Under this general language it was held by the court in many cases that the powers of the board in the employment of counsel were broad, and its action in such employment reviewable by the courts only in most exceptional cases. (Hornblower v. Duden, 35 Cal. 664.) Subsequent to the year 1883 we find an addition to the aforesaid statute in these words: “'And to employ counsel to assist the district attorney in conducting the same.” It is not necessary in the present litigation to discuss in detail the purpose and effect of this amendment to the statute, but that it has the effect of placing limitations and restrictions upon the power of the boards of supervisors in the employment of counsel, as those powers had been previously outlined by the decisions of this court, there can be no doubt. Few cases involving these matters have arisen since this amendment to the statute. Lassen County v. Shinn, 88 Cal. 510, is probably the first, and it has been said in the very recent case of Merriam v. Barnum, 116 Cal. 623, that the language used in the opinion of t-hecourtin that case is somewhat broader than the previous authorities cited in support of it justified. It might also be suggested that the language used in the opinion