I' dissent from the reasoning and from the conclusions of the court in this case upon the following grounds:
First. Because, in all suits for or against the state or county, it is made the duty of the prosecuting attorney to prosecute or defend. He alone is the attorney in such cases. The state was the plaintiff here. Sand. & H. Dig., §§ 6013, 6014,-6015.
Second. Where the county has an attorney on salary, whose duty it is made by statute to prosecute and defend all suits for or against her, there is no power or authority in the county court to employ an assistant attorney. The following cases are clear upon this proposition: Butler v. Sullivan Co., 18 S. W. 1142; Ramson v. Mayor, 24 Barb. 226; Clough v. Hart, 8 Kas. 487; Platt County v. Gerrard, 12 Neb. 244; Cuming Co. v. Tate, 10 Neb. 193; High v. Commissioners, 68 Ind. 575.
There being no power to employ Norton & Prewitt, there could be no ratification of their employment, as he who deals with a corporation must know the extent of its power and authority. It therefore follows that Norton & Prewitt were not, in contemplation of law, the attorneys of either the state or the county, but volunteers. The prosecuting attorney was the attorney of the state and county. Norton & Prewitt were in the suit at the instance of Aven, who it is not pretended had any authority to employ them. Nor had the county court or the school districts made any order to employ them, nor any appropriation to pay for their services. They were therefore never employed in the case by any competent authority. To permit an unauthorized person to employ and pay lawyers for the county and school districts, without consulting either, would destroy all the safeguards the law hath thrown around the fiscal system and interest of such municipal corporations, and is not to be tolerated. It is the duty and prerogative of the county court and of the school districts to audit and settle all claims against them.
The theory of the appellants, which is adopted by the court, is that, in this summary proceeding, it is not competent for the court to render judgment for the money which the sheriff collected on execution and failed to- pay over to the proper party, because the appellant is entitled to have his rights in the premises settled in an ordinary action at law, and is entitled to a jury trial. This is fallacious and untrue. At common law these summai’y proceedings would lie against an officer, and it is only where the common law secured the right of trial by jury that a party can complain that the statute attempts to deprive him of such right. The right to trial by jury was not violated in this case.
Under the head of Summary Remedies on Official Bonds, in 2 Am. & Eng. Enc. Law, it is said: “In many states judgment may be rendered on an official bond on motion. * * * Such statutes are not unconstitutional as infringing the right to a trial by jury. The existing law enters into and becomes part of a bond, and if the law authorizes summary proceedings at the time the bond is executed, the parties are liable to the operation of the law.” To the same effect are Lewis v. Garrett, 5 How. (Miss.) 434; Wells v. Caldwell, 1 A. H. Marshall (Ky.), 441; Burke v. Levy, 1 Randolph (Va.), 2; Vanzant v. Waddel, 2 Yerger (Tenn.), [260; McWhorter v. Marrs, 1 Stew (Ala.) 63; Johnson v. Atwood, 2 Stewart, 225; Bank of Columbia v. Okely, 4 Wheat. 235.
In the case of Lewis v. Garrett, 4 Howard (Miss.), 454, upon re-argument of this point, the supreme court of that state said: “The power to convict and punish in such cases in a summary way was considered to be inherent in the court, and as essential to the maintenance of its just authority and the due administration of the public justice of the country. This right was shown to be as ancient as the common law itself. As an officer of the court, the sheriff was always liable to punishment in this way. The constitution, in guarantying to the citizens of this state the right of trial by jury, did not intend to disturb the ancient and well-established jurisdiction of the several courts of the country, nor to change entirely the modes of trial, as they are regulated by the common law.”
No jury trial was demanded. Had it been, there would have been no impropriety in granting it in the case at bar. There was no reason why the court should turn the plaintiff out to come into the same court, on the same cause of action, against the same defendants. Burke v. Levy, 1 Randolph (Va.), 2.
Neither the principal nor the sureties on the sheriff’s bond had any right to complain. Lewis v. Garrett, 5 How. 434. The sheriff knew that the prosecuting attorney represented the state and county in the suit.
For the reasons, set forth in the original opinion of the court in this cause, and the additional reasons herein, I am of the opinion that the motion for reconsideration should be overruled.