
    CASE 21. — ACTION BY G. M. MONEY, SUPT. OP SCHOOLS, AGAINST BEARD & MARSHALL. —
    December 17, 1909.
    Money, Supt. of Schools v. Beard & Marshall
    Appeal from Shelby Circuit Court.
    C. C. Marshall, Circuit Judge.
    Judgment for defendants, plaintiff- appeals. —
    Reversed.
    1. District-and Prosecuting Attorneys — Compensation—Additional Compensation — Right—Prosecuting Actions for County.— Ky. St. Sec. 127 (Russell’s St. Sec. 4750), requires a county attorney to -attend to the prosecution of all cases in his county, in which the commonwealth or county is interested, and, when required, to institute and conduct all actions in which the county is interested, and requires him to attend the circuit courts, and aid the commonwealth’s attorney in all pros- , editions therein, and in the absence of' a commonwealth’s attorney to- attend to all commonwealth’s business. Const. Sec. 161, provides that the compensation of county officers shall not be changed during their term of office. A county school superintendent contracted with the county attorney and another attorney to sue a publishing company for breach of bond, given und-er sections 4424, 4423, Ky. St. 1903, as a condition precedent to the adoption of its publications in the county schools; the contract -providing that the attorneys should receive one-half of the recovery as compensation for their services. A recovery was had, but the county attorney's term of office had expired when the suit was prosecuted on appeal. Held, that the county attorney was bound to prosecute civil actions in which the county was interested, as well as criminal actions on behalf of the commonwealth, without additional compensation, and the contract for compensation was unenforceable so far as his services were “ performed while he was county attorney, but that he was entitled to reasonable remuneration for services after his term expired.
    2. Schools and School Districts — Officers—Authority of Counts Superintendent — Employment of Counsel. — The county superintendent could, in the exercise of reasonable discretion, employ additional counsel to assist the county attorney in prosecuting the action, if their services were reasonably necessary, and pay them a reasonable fee therefor.
    CHAS. H. MORRIS and PICKETT & BARRICKSON for appellant.
    GILBERT & GILBERT, J. C. BECKHAM & SON, P. J. BEARD and BEARD & MARSHALL for appellees.
   Opinion op the Court by

Judge Barker

— Reversing.

R. A. Burton, a former superintendent of the_ common schools of Shelby county, entered into a written contract with Beard and Marshall, a firm of lawyers, by which he agreed to pay them as a fee a sum equal to 50 per cent, of whatever sums might be collected by two contemplated lawsuits on the two separate bonds that had been executed by certain book publishers as required by section 4424, Ky. St. 1903. This section provides, among other things, as follows: “Whenever any publisher or person selling text-books, who desires to have his text-books adopted in the common schools in any county in this state, shall file in the office of the Superintendent of Public Instruction a sample of each of the text-books intended for adoption, together with the lowest retail list price at which-the same shall be sold .to the patrons and pupils of any county in which the same may be adopted, and shall execute bond before the ex officio members of the State Board of Education in the sum of ten thousand dollars, with good security resident in this state, it shall be the duty of the said Board of Education to accept and file said bond in the office of the Superintendent of Public Instruction,” etc. By section 4423, it is provided, among other things: “It shall be the duty'of the county superintendent to make and keep a record of the adoption of text-books, and to see that the adopted list of textbooks is established and maintained in all the public schools in the county; and it shall be the further duty of the county superintendent to file and keep in his office the copy of the bond of any publisher or person selling text-books before the ex officio members of the State Board of Education, and forwarded to him by the Superintendent of Public Instruction; and when any of the books named in said bond shall be adopted for use in his county, and there is a breach of, or a failure to comply with, any of the provisions of the bond in his county by the parties executing the same, he shall bring suit in the circuit court of his county for' a forfeiture of said bond, and 'any money recovered thereon, after paying the cost of proceedings, shall be covered into the school fund of the county.”

The agreement between the supreintendent and the attorneys is as follows: “This agreement, made this January 10, 1904, by and between R. A. Burton, superintendent of common schools of Shelby county, Kentucky, of the first part, and Beard & Marshall, attorneys at law, of Shelby county, of the second part, witnesseth: That said first party has this day employed second party to prosecute a suit in the Shelby circuit court and Court of Appeals against Maynard-Merrill Company and Ginn & Company on their respective bonds executed by them to the commonwealth of Kentucky to recover damages for the violation of the terms of their bond; and said second parties are to perform all of said services as attorneys in bringing and prosecuting said suit, or have same done, and are to receive as attorneys aforesaid a sum equal to 50 per cent, of whatever sum may be finally recovered in each case, and this sum shall be in full for all their services. They are to charge nothing if nothing is recovered. [Signed] R. A. Burton, Supt. Common Schools, Shelby County. Beard & Marshall. ’ ’

Under this contract the attorneys named therein brought two suits in the name of the commonwealth, one against Ginn & Co. and the other against the Maynard-Merrill Company, to recover the penalty of $10,000 for alleged breaches of the bonds entered into by them with the commonwealth. The suit against the Maynard-Merrill Company was unsuccessful, but in the case of Commonwealth v. Ginn & Co., a judgment was recovered for the sum of $10,-000, with -interest and costs added, and this sum the ' attorneys collected. They paid over to the common-' wealth one-half of the amount collected and retained 50 per cent, as their fee under the contract. In the meantime R. A. Burton’s term of office as superintendent expired, and he was succeeded by the appellant, G. M. Money, who refused to recognize the validity of -the contract made by his predecessor, and instituted this action to recover from the attorneys the money retained by them as a fee for their services. At the time the contract was entered into it is admitted that C. C. Marshall was holding the office of county attorney of Shelby county; that pending the litigation his term of office expired, and he was succeeded by George Pickett, who in part represents the appellant in this action. During the time the case was being prosecuted through the Court of Appeals, it is conceded that Marshall was not county attorney. The question arising upon the-record under these-circumstances is whether the written contract under which the appellees hold one-half the sum collected on the judgment from Ginn & Co. is or is not void.

We are of opinion that it was the duty of C. C. Marshall as county attorney to prosecute the action against Ginn & Co. without any additional remuneration to his regular salary as county attorney; and, this being true, it was not competent for the superintendent of county schools to make the contract with him which is involved herein. Section 127, Ky. St. (Russell’s St. sec. 4750), defines-the duties of county attorneys in this commonwealth as follows: “He shall attend to the. prosecution of all cases in his county in which the commonwealth or the county is interested; and, when so directed by the county or fiscal court, institute or defend, and conduct actions, motions and proceedings of every description, before any of the courts of this commonwealth in which the county is interested, and shall in no instance take a fee or. act as counsel in any case in opposition to the interests of the county. He shall also attend the circuit courts held in his county, and aid the commonwealth’s attorney in all prosecutions therein, and in the absence of an acting commonwealth’s attorney, he shall attend to all commonwealth’s business in said courts.-”

It is said in the briefs for appellees that the above section of the statutes relates alone to criminal cases in which the commonwealth is interested; but this is not correct. It will be observed that the first part of the section provides that he (county attorney) shall attend, to' the prosecution of all cases in his county in which the commonwealth or the county is interested; and by the latter part, it is provided that he shall also attend the circuit courts held in his county and aid the commonwealth’s attorney in all prosecutions therein, etc. Clearly the first part of the section applies to civil as well as criminal matters; and the fact that the language is that “he shall attend to the prosecution of all cases in his county in which the commonwealth or the county i)s interested” of itself shows that civil matters are intended, as the county as such is not interested in criminal matters. The question we have here arose in the case of Coulter, Auditor v. Denny, 67 S. W. 65, 23 Ky. Law Rep. 1619. In that case a county attorney had been employed by the Attorney G-eneral to assist an Auditor’s agent in a fiscal matter, and afterwards sought by mandamus to require the Auditor to issue a warrant for his pay for this service. Upon appeal we held that, under section 127, Ky. St., it was the duty of the county attorney to attend to this matter because the state was interested in it. In the opinion it is said: “As it was the duty of the Auditor’s agent to institute the proceeding against Cecil, and the duty of the county attorney of that county to have prosecuted it, it follows that it was not the duty of the Attorney General under section 113 to represent the commonwealth in the Boyle county court, nor was it one of the actions which he was authorized to institute and employ an attorney to assist in its prosecution under section 114.”

In the case of D. C. Heath & Co. v. Commonwealth, 129 Ky. 835, 113 S. W. 69, a county superintendent of schools instituted an action similar to the one involved here, and obtained a- judgment for the sum of $10,000. Afterwards he compromised the judgment for $2,200, and took the note of the publishers in payment of the compromise. A subsequent superintendent filed suit to collect the whole judgment, and among other defenses the defendants pleaded' the compromise and also the pendency of a suit on the note of $2,200. After the action to enforce the full amount of the judgment had progressed to some extent, the superintendent undertook to dismiss it over the objection of the county attorney, and the circuit judge sustained the county attorney against the superintendent, with the result that the state recovered the full judgment of $10,000. In the opinion delivered in that case we held that the commonwealth was the real party in interest, and that the superintendent was only a nominal party, and that the county attorney had a right to enforce the judgment and to resist the attempts of the superintendent to dismiss the case. The opinion, therefore, settles, conclusively that in an action such as the one we are discussing the commonwealth is the real party in interest, and it is the duty of the county attorney to prosecute such actions; and, this being true, he can not, under section 161 of the Constitution, receive additional salary for discharging the duties imposed upon him by the statute.

It results, therefore, that the written contract by which the county attorney was employed in the action against Ginn & Co. was void. But it does not follow that the other attorneys employed were not entitled to pay for their services, although the county attorney could not be paid for his. We think the superintendent, in the exercise of a reasonable judgment, had the right to employ additional counsel, if their services were necessary under the exigencies of the case, and to pay them a reasonable fee for their services. Undoubtedly the record shows that the counsel other than the county attorney rendered able and valuable assistance in the prosecution of the case, and the state received the benefit of their labor. They should, therefore, be paid whatever is reasonable for these services. ~We are also of opinion that C. C. Marshall is entitled to remuneration for his services rendered after his term of office as county attorney expired.

For these reasons, the judgment of the lower court, upholding the validity of the contract between the superintendent and the attorneys, is reversed, with directions that, when the case returns to the circuit court, the pleadings be amended so as to properly present the issues indicated in this opinion.  