
    The Board of Commissioners of Cuming County, plaintiff in error, v. J. S. C. Tate, defendant in error.
    District Attorneys: pat op deputies. No authority exists for the payment by a county of compensation to a deputy district attorney or a person appointed by the court to perform the duties of district attorney during his absence.
    Error to the district court of Cuming county. Tried below before Barnes, J.
    
      Uriah Bruner, for plaintiff in error.
    
      M. McLaughlin and Valentine Tate, for defendant in error.
   Cobb, J.

It is not deemed necessary to .notice either of the questions of pleading and practice presented in this case further than to say that by answering, the plaintiff in error waived any error which might have intervened in overruling the demurrer and' motion to strike out a part of the petition; that if there is a cause of action expressed in the petition it is admitted in the answer, and in that case there would be no error on the part of the court in rendering judgment on the pleadings; and that the amendment allowed is clearly within the statute. We are therefore left to the main question: Is the plaintiff in error, the board of county commissioners of Cuming county, liable to the defendant in error for his services as assistant district attorney in the case stated in the record ?

The office of district attorney was unknown to the laws of the late territory of Nebraska; but under provisions of law each organized county was empowered to elect a prosecuting attorney, whose term, office, powers, duties, etc., are set forth in §§ 15 to 21 inclusive, chapter 3 of the Revised Statutes 1866. Among the other provisions of the said sections was that cited by defendant in error: “ On application of any prosecuting attorney * * the court may appoint an assistant prosecuting attorney, for whose services the court shall make an allowance,” etc. But at the first session of the state legislature an act was passed and approved June 11,1867, entitled “ An act to provide for the election of district attorneys, and to define their duties.” The provisions of this act in terms abolished the office of prosecuting attorney after the second Monday in August, 1867; and although it did not in terms repeal the provisions of §§ 15 to 21, chap. 3, Revised Statutes, above quoted, yet the said act of June 11, 1867, is complete within itself. [Gen. Stat., 96.] It covers the whole ground. ' Section 5 provides that “ the district attorney may, at his discretion, appoint one or more deputies, for whose official acts and fees he shall at all times be responsible.”

There is then no longer any standing room for the provisions of chap. 3, Revised Statutes, 1866, authorizing the court, on the application of the prosecuting attorney, to appoint assistants, and making the county responsible for the pay upon the allowance of the court. Smails v. White, 4 Neb., 353, and authorities cited in the opinion.

Under the old system, when each county elected its own prosecuting attorney, and fixed his salary, it may frequently have happened that lawyers, somewhat lacking in expei-ience and-ability, were elected to that office in some of the counties; hence the propriety of the provision of the earlier law, and the probability of its not unfrequent application. But upon the change from territorial to state government, the people through their representatives saw fit to change the whole system. They abolished the office as it then existed, with all of its emoluments, powers, and liabilities, and provided for the election of but one district attorney for each judicial district, and fixed his salary at what was deemed a sufficiently respectable figure to secure the services of good lawyers; and what is more, they made him a state officer, and thereby, in a great measure, withdrew the responsibility of the prosecution from county concern. While the law makes it the duty of the district attorney to appear in the district court at each term of the same in each county in the district for which he was elected,, and prosecute and defend all actions, civil and criminal, and all matters whatsoever, in which the state or county may be interested, etc., yet, as there may be and often are eases where, on account of sickness or other cause, the district attorney cannot attend, hence the provision authorizing him to appoint a deputy. But if he cannot u work, neither shall he eat.” He must turn over his salary, or a part of it, to pay his deputy.

Defendant in error cites Hopkins v. Clayton County, 32 Iowa, 15. Judge Cole, in the opinion of the court in that case, says: “ The duties of the district attorney are prescribed in part by the revision, section 374, and it is therein further provided, that nothing in said section contained shall prevent the county judge (whose powers have now devolved on the board of supervisors), whenever he may deem it necessary, from employing an attorney to, prosecute or defend in any case properly belonging to the duties of the district attorney.”

In that case an attorney had been employed by a committee of the board of supervisors under direction of the board to perform duties, rather as a detective than as an attorney, in unraveling a case — the murder of the Hagerty family by one Andrew Thompson, a case which, by reason of the number of the victims (six) and the attending circumstances of atrocity and cunning on the part 'of the murderer, might almost justify a departure from legal, rules if necessary to insure conviction. Yet we have seen that the board in this case acted upon express provisions of law of that state. He also cites State v. Fitzgerald, 49 Iowa, 260. The defendant in that case was indicted for administering drugs to a woman with intent, etc. The friends of the woman procured a lawyer to assist the district attorney in the prosecution. The defendant objected to such assistant prosecutor being allowed to appear in the case. The holding was that whether assistant counsel be allowed to appear was a question within the discretion of the court and the district attorney. There was no question of pay in the case.

He also cites Franklin v. Kelly, 2 Neb., 87, and cases there cited, in support of the proposition that it has been the custom of the county boards to pay assistant prosecutors so long, that such custom has acquired the force of positive law. Thfe point in that case claimed to be applicable to the case at bar was upon the construction of the pre-emption law of 1841 as to the effect of deeds made by the pre-emptor before the receipt by him of the patent for such lands. The court held that the contemporaneous construction placed upon the act, as evidenced by long and universal usage, would govern in a case of doubtful meaning. The court in that ease also cite McKean v. Delancy’s Lessees, 5 Cranch., 22, and no doubt the opinion of Chief Justice Marshall, in which he says: “But in construing the. statute of a state on which land titles depend, infinite mischief would ensue should this court ‘observe a different rule from that which has been long established in the state,” went far to control the opinion in the Nebraska case.

There are many authorities to the effect that reasons of public policy will justify a court in adhering to— what it may even believe to be — a false construction of a statute, where a departure from such construction would have the effect to unsettle the titles to a considerable portion of the real property of the people of the state. I have referred to Franklin v. Kelly thus at some length to show that the learned judge who wrote the able opinion in that case could not have intended to approve of the position taken by counsel in this case. But we have no evidence of the existence of such a custom as that contended for. Certainly, if such custom has existed, it has been far from universal or even general, and lacking in every essential element by virtue of which a custom may, in the course of time, assume the force of law.

Counsel in their brief say that the boards of county commissioners all over the state have employed and paid by the year attorneys to perform duties belonging to the district attorney, etc. The statutes (sec. 47, on p. 868, laws of 1879), provide for the employing by the county board of an attorney for certain purposes, and with certain limitations; but from June 11, 1867, to September 1, 1879, they possessed no legal power to employ or pay an attorney at law for any purpose whatever, except in actions brought to restrain the collection of taxes.

The judgment of the district court should therefore be reversed and the cause dismissed.

Judgment accordingly.  