
    Thrasher et al., Appellants, v. Greene County.
    1. County Court, Authority of to Employ Counsel: compensation. The county court of any county has authority, by an' - order of record, to employ attorneys to aid the prosecuting attorney in any civil business, upon such terms as it shall deem proper, when i- in the judgment of the court the interests of the county require it.
    A Suit to Test Validity of Subscription to Railroad : neces- ' sity for. Where the Supreme Court of the state has held the sub-t scription of a county to a railroad and the bonds issued thereunder void, and the circuit court of the United States has held such bonds in circulation to be valid, it cannot be said that a suit by the county to test the validity of its subscription is wholly useless, where the railroad claiming to have acquired such subscription was not a party to either of the suits mentioned.
    
      Appeal from Greene Circuit Court. — Hon. W. F. Geiger, Judge.
    Reversed.
    
      Chas. W. Thrasher and Henry O. Young for ap- ' pellants.
    ,(1) The county court of Greene county tad ¿he power to make the contracts put in evidence between skid county and appellants. Laws of Mo. 1878, p. 18, sec. 5. (2) The decision of this court in case of State of Missouri ex ret. Wilson, Collector v. Garroutte, 67 Mo. 4-45, in which bonds of said Greene county issued te Hannibal and St. Joseph Railroad Company were declared void, did not relieve said county from its subscription to the capital stock’ of said railroad company, nor prevent a non-resident assignee of said company, or ' stockholder, or other person succeeding to the rights’ of said-corporation in-said subscription ■ from enforcing such right in the federal courts.
    
      
      J. M. Patterson for respondent.
    (1) There was no necessity that the suit upon whicb this claim is based should have been instituted; said subscription had been declared void before bringing of suit. State ex rel. Wilson v. Oarroutte, 67 Mo. 445 State ex rel. Barlow t. Dallas Co., 72 Mo. 331. (2) When appellants, agreed to act as attorneys for respondent they placed .themselves within the rule “a trustee is. not al-' lowed to profit out of his trust,” he cannot place himself in a situation in which his interest and his duty may conflict. Rea r. Copetín, 47 Mo. 82 ; Qrumley v. Webb,. 44 Mo. 450 ; Sherwood v. Saxton, 63 Mo. 79. They used their position to increase their own gains, not to protect the county. (3) The contract between appellants as set forth in appellants abstract of record was made without legal authority. W. S., p. 414, sec. 28 ; R. S., sec. 5358;, Bauer r>. Pranlclin County, 51 Mo. 205. (4) The county court’s power to employ attorneys to aid and assist the-prosecuting attorney, as given in Laws of Missouri, 1873, p. 18, sec. 5, does not allow the court to agree to pay an outside attorney five per cent, on any suit he may think to his advantage to institute. 51 Mo. 205.
   Black, J.

This suit is based upon a contract made by the plaintiffs, attorneys at law, with the county court of Greene county on December 3, 1878. The contract was made matter of record and this suit is for services alleged to have been rendered pursuant to the contract, in a suit of Greene county against the Hannibal & St. Joseph Railroad Company, and two other railroad corporations in which suit there was a decree cancelling a subscription made by the county in 1870 to the Hannibal &St. Joseph Railroad Company, to aid in the construe-tion of the Kansas City and Memphis branch road. The history of that subscription need not be stated, for it will be found in several opinions of this court.

The defence that the county court had no power to employ the plaintiffs is not well taken. By the .act of March 11, 1873 (Acts of 1873, p. 18), the county court of any county may employ, on such -terms as the court shall deem proper, by an order made of record, attorneys to aid the prosecuting attorney in any ■civil business, when, in the judgment- of such court, the interest of the county requires the assistance. There can be no doubt but this statute gave the court ample authority to make the contract.

A further defence is that the suit in which the services were rendered was wholly useless. It is true that by the judgment of the circuit court rendered in 1876 in a suit at the relation of the attorney general, the county court and the judges thereof were enjoined from disposing of the bonds then in the custody of the court, and from issuing bonds to pay a balance ■due upon the subscriptions. So, too, the subscription and the bonds issued and put in circulation in part payment thereof, were, by this court, held to be void in State ex rel. Wilson v. Garroutte, 67 Mo. 446, the ■opinion being filed at the April term, 1878; that opinion was by a divided court. The bonds in circulation were held to be valid by the circuit court of the the United States. The railroad, claiming to have acquired the subscription in question, was not a party to either of those suits. The contract in question recites that suits were about to be commenced to compel the county to issue bonds in payment of the balance of the ■subscription, and this does not appear to be controverted. With all these facts before the court, the contract with plaintiffs was made and the suit at once commenced. Its purpose was to bring the interested parties before the court, and put the disputed question as to the validity of the subscription itself at rest. It cannot be said under these-circumstances that the suit was wholly5 useless. Besides it was for the county court to deter-"’ mine whether the interests of the county required the services and assistance of the plaintiffs, and it was within1’ the proper province of that court tó agree upon the com" pensation. It is not claimed that the employment • was> made in bad faith,- nor that the services were not lion-5 estly rendered. We see no; reason why the county5 should be permitted to avoid the contract. ’ •'

' The defendant’s instructions should have been refused? and the second and third asked by the plaintiffs 'given.' The judgment is reversed and the cause remanded.' Sherwood, J., not sitting.

The other judges concur.-  