Spencer

The substantive question in this case is as to the power of a board of supervisors to employ counsel on behalf of the county to prosecute, or assist in the prosecution of, criminal cases. The board of supervisors of Modoc county on the seventh day of July, 1891, adopted an order or resolution in the following terms:

In pursuance of this last-recited order, the auditor drew his warrant in favor of said Spencer & Raker, as therein directed, and this action is brought by the county, through its district attorney, to restrain the treasurer from paying it. Judgment went in favor of the county, from which defendants appeal. If the board had no power to employ counsel for the purposes indicated the judgment is right, otherwise not.

We can find no authority in the law to sustain the action of the supervisors in the premises. Boards of supervisors are creatures of the statute, the constitution (art. XI, sec. 5) providing that the legislature shall provide for their election or appointment, and prescribe their duties. The authority for any act must, therefore, be sought in the statute. The only provisions looking to such power as was here attempted to be exercised, which have been called…