Hornblower v. Duden , 1868 Cal. LEXIS 139 ( 1868 )

By the Court, Sanderson, J.:

The ultimate question involved in this case is whether the plaintiff’s claim is a legal charge against the county. On the part of the appellant it is insisted that it is not—first, because the services for which the claim is made were rendered in a matter in which the county had no interest, and in respect to which, therefore, the Board of Supervisors had no power to' take any action whatever; and second, because if the matter in respect to which the services were rendered was a matter in which the county was interested, and in which, therefore, the Board had power to act, the Board, nevertheless, had competent counsel in the person of the District Attorney, and therefore had no power to employ the plaintiff’s assignor.

The first proposition seems to be founded upon what we consider to be an erroneous idea, viz: that if a Board of Supervisors participates in a legal controversy in which it may appear, at the outcome, that the county had no legal interest, the whole action of the Board in the matter must be considered as in excess of their jurisdiction, and therefore void. If such were the case, the power of the Board to act in all legal controversies, and in respect thereto incur expenses on behalf of the county, would depend entirely upon the result of the contest; if favorable to the county, the expenses incurred would become a legal charge against the county; if unfavorable, the parties rendering the services would be left without compensation. The power of the Board cannot, as we consider, be measured by such a rule.

Boards of Supervisors are vested with a variety of power’s touching the administration of county affairs, among which are the buying, selling, and leasing of property, and the management, care, and preservation thereof, and, as incidental thereto, the talcing of all legal measures necessary to that end, by suit or otherwise; and in the exercise of those powers they are necessarily endowed with a large discretion. (Stats. 1855, Sec. 9, p. 51.) If, in the exercise of their judgment and discretion, they conceive that the interests of the county are involved in a certain question, and thereupon take legal measures, by suit or otherwise, to advance or protect those interests, the expenses incurred would become, in our judgment, a legal charge against the county, notwithstanding the Courts might ultimately hold that they had adopted the wrong remedy, or were entitled to no remedy whatever. We do not, of course, intend to be understood as implying that the county would be liable in a case where she obviously had no interest. There must, undoubtedly, be some ground for the action of the Board, some reason for supposing that the interests of the county are involved. She cannot be made liable in respect to a matter in which she is manifestly not concerned, by any action of the Board.

We have not indulged in the foregoing remarks because we are at all in doubt as to the interest of the county in the matter in which the services of the plaintiff’s assignor were employed by the Board, but because they seem to be justified by the general scope and tenor of the appellant’s argument. On the contrary, we consider the interest of the county both real and apparent.

The ease shows that the county was, at the time of the proceedings in which the services in question were rendered, the owner of two thousand shares of the capital stock of the Placerville and Sacramento Valley Railroad Company, of the nominal value of two hundred thousand dollars. She was, therefore, a stockholder, and, as such, directly interested in the conduct and management of the affairs of the company, and therefore in the selection of its officers. She had precisely the same rights as any other stockholder, and if she, in the persons of her authorized agents, believed that those officers had been chosen by illegal votes, she had the same right to contest their election which any other stockholder had, and to that end to adopt any remedy which she might be advised was legal and proper.

The stock owned by her is property, with the care and preservation, management and control of which the Board of Supervisors are expressly vested, and if they believed that the affairs of the railroad company would be better managed by certain individuals than by certain other individuals in the capacity of officers, they not only had the power but it was their duty to adopt all lawful ways and means to place the affairs of the company under the management of the former. To do so would be “to take care of and preserve the property of the county.” Over their judgment and discretion in the matter the Courts can exercise no control. In the matter of judgment they may or may not be in error, but whether they are or not, for all the purposes of judicial action, is wholly immaterial.

The point as to the power of the Board to employ other counsel than the District Attorney, is answered by the case of Smith v. The Mayor of Sacramento, 13 Cal. 533, and nothing need be added to what is there said. While the power is not expressly conferred, yet it is obviously embraced in the general power to control the ¡prosecution and defense of all suits to which the county is a party—which we construe, to mean not only suits to which she is a party upon the record, but all suits in the prosecution or defense of which she has or is supposed to have an interest—and in the further power “to do and perform all such other acts and things as may be strictly necessary to the full discharge of the powers and jurisdiction conferred on the Board.” (Sec. 9, Sub. 13.)

There are a variety of circumstances under which the. interests of the county might be neglected or wholly sacrificed, unless the Board has authority to employ other counsel than the District Attorney. He may be incompetent, or side, or absent from the county, or engaged in other business, or the business in hand may be of such magnitude and importance as to demand, on the part of the Board, in the exercise of such foresight and care only as'business men bestow upon important matters, the employment of additional counsel. There is no reason why public as well as private interests should not be subserved by the employment of several counsel, when the exigencies of the case are such as to demand it, in the judgment of prudent men; and we are satisfied that the Legislature has not been so unwise as to render such a course impossible. Undoubtedly, the Board should not put the county to the expense of extra counsel unless extra counsel is needed. The presumption is that they will not; but, in any event, it is a matter in which their judgment and discretion is not open to review by the Courts.

Judgment and order affirmed.

Mr. Justice Rhodes expressed no opinion.