Board of County Commissioners v. Bassett

SULLIVAN, J.

This is an appeal from a judgment of the district court reversing an order of the board of county commissioners of Twin Falls county, and directing that a liquor license be issued to the respondent. It is an appeal on behalf of the board of county commissioners. A motion has been made to dismiss the appeal on three several grounds, the first of which is that the appeal was not taken upon the authority or order of the board of county commissioners, but upon the volunteer action of the county attorney; and second, that the appeal was not legally taken for the reason that it was not taken by tbe attorney general of the state; and third, that the judgment and order have been fully executed and complied with and satisfied by the said board of county commissioners.

There is nothing whatever in the first two contentions, for the reason that it is made the duty of the prosecuting attorney (Sess. Laws 1899, p. 25) to prosecute or defend all actions, applications or motions, civil or criminal, in the district court of the county, in which the people of the state or the county is interested or a party. The prosecuting attorney is the legal adviser of the board of county commissioners. Under the provisions of subd. 13 of sec. 1759, Rev. Stat., as amended, the board of commissioners is given the power to direct and control the prosecution and defense of all suits to which the county is a party in interest, and employ counsel to conduct the same, with or without the prosecuting attorney, as they may direct. Those provisions must be read in connection with the provisions of the statute, which prescribe the duties of the county attorney. Under the law, it is made his duty to look after and defend any and all litigation instituted against the county, and if it becomes necessary to take an appeal, he has full authority to take it, and it is unnecessary for him to wait for the action of the board of county commissioners to give him directions and orders in regard to the same. The statute gives the board of commissioners the right to direct the litigation, and if that board sees fit to compromise or settle the case pending against the county, they have the right to settle or direct the case to be dismissed, and it appears from the record in this ease that the board of county commissioners complied with the order and judgment of the district court without consulting the county attorney, which they had a legal right to do.

As the case has been fully settled, no beneficial results can come from a determination of the issues made on this appeal.

It is true, as appears from the record presented on this motion, that the board acted without knowledge of an appeal having been taken, and under the facts, this court might proceed and determine the ease under the authority of Warner Bros. Co. v. Freud, 131 Cal. 639, 82 Am. St. Rep. 400, 63 Pac. 1017, 2 Cyc. 647; but under all the facts of this case, and considering that the time for which the license was issued is about to expire, we have concluded to sustain the motion and dismiss the appeal. The appeal is therefore dismissed, with costs in favor of the respondent.

Ailshie, C. J., and Stewart, J., concur.