I concur in the result announced in this case, and the grounds upon which I concur are stated in the opinion of 'the court, but are therein so connected with other grounds, to *129which I do not care at this time to stand committed, that I desire to specify and briefly restate the reasons for my concurrence. The case involves only the question of the power of the county commissioners of Kidder county -to bind the county by the contract entered into by said commissioners in behalf of said county with the defendant Fred A. Baker, and which said contract is embodied in the letter of said Baker to the chairman of the said board dated November 12, 1897, and the resolution of said board accepting the offer contained in said letter, which said resolution is dated November 20, 1897. By that contract Baker agreed to give his professional services to any extent that might be necessary for the collection of the delinquent taxes of the years 1889, 1894, 1895- and 1896 against the lands of the Northern Pacific Railroad Company or its receivers, situate in said county. For such services he was to receive 25 per cent, of all money collected upon such taxes or of all lands taken in satisfaction thereof. A certain portion of this amount the county was authorized to pay to Charles PI. Stanley, the state’s attorney of said county, whose services Mr. Baker stated he would require. I find here no contractual relations between the county and Mr. Stanley. The compensation was all due to Mr. Baker, but he authorized the county to pay a portion of it to the attorney whom he employed to assist him. I find in the answer no such allegations of laches as should defeat plaintiff in this case, but I do not go to the extent of holding that a private person suing as plaintiff is suing in this case may not, by his laches, bar himself from setting up the plea of ultra vires. I do not think the point is involved.
What may have been done under this contract, or what at the time of its execution the parties may have expected would be done under it, is not, in my judgment, at all controlling in this case. There is no element of fraud in the contract. Everything was done openly. It was a notorious fact that differences of opinion between the Northern Pacific Railroad Company and the officials of the counties in which it owned lands as to the validity of taxes assessed upon these lands had long existed. These taxes, in one form or another, had been in litigation for ten or twelve years. But for certain statutes, to be noticed later, the contract would, in my judgment, have been an entirely proper one to make. Still, as I view it, the commissioners were without authority to make the particular contract. But I do not base this conclusion upon the fact that there was in that county a duly elected and qualified ■state’s attorney; nor upon the fact that such state’s attorney may appoint a deputy; nor upon the fact that the District Court may appoint a state’s attorney to act temporarily; nor upon the fact that the District Court may, in important cases, appoint counsel to assist the state’s attorney. It may be that these provisions may receive the force and effect intended by the legislature, and yet not deprive the board of county commissioners of all power to *130employ counsel under any circumstances. While that board stands charged by law with responsibility for the proper management of the fiscal affairs of the county, with express power to institute and maintain suits for and in behalf of the county, it ought to require clear language to deprive it of the means for the proper performance of the duties with which it stands charged. Nor have I any sympathy whatever with the argument pressed upon the court that the power to employ counsel' in the hands of county commissioners is liable to abuse. I know of no other class of officials brought so directly in contact with their constituents as county commissioners, and of no other class of officials held so strictly responsible for official action by their constituents as county commissioners. I am confident that experience will not justify any gratuitous fling at their discretion or integrity in this connection.
But the contract of employment here involved, and which was entered into in November, 1897, was for a specific purpose, to-wit: the collection of the delinquent taxes against the lands of. the Northern Pacific Railroad Company, or its receivers, for the }rears 1889, 1894, 1895, and 1896. There was no specific part of the consideration for any specific part of the services, but all of the consideration for all of the services. It cannot be separated. But as to the collection of the taxes for the r^ear 1895 and all prior years the legislature had, by chapter 67, Laws 1897, made special provision. Under that chapter the state and the various counties were deprived of any rights growing out of purchases by the state or county of any lands at tax sales for delinquent taxes of any of said years, and all such sales were annulled, and the original taxes restored, as if no sale had been made. McHenry v. Kidder Co. 8 N. D. 413, 79 N. W. Rep. 875. In Kidder county, as I understand it, all the railroad lands that had been sold for the taxes of 1895 or prior years had been bid in by the county; hence the act of 1897 operated upon all such sales, and the land stood, when said contract was made, simply as land upon which the taxes were delinquent for those years. In the Kidder County Case, above cited, we held that the collection of such delinquent taxes could be enforced only under the provisions of said chapter 67. It is true the answer in this case sets up various services that have been performed in the federal courts looking toward an order upon the receivers to pay such taxes. But the whole record shows that such taxes are not paid for the reason that their validity is disputed. Of course, the federal court will not order its receivers to pay the taxes while their validity is disputed, and that question can be litigated only in the courts of this state, and, as we have held, must be litigated under said chapter 67. It follows that the services to be performed under the contract must be rendered under the provisions of that statute. But that statute states under what circumstances the county commissioners may employ assistant counsel to act under its provisions. Of course, that excludes the power to emploj’' counsel for the purposes named, under any other conditions. The act *131contemplates the procurement of judgments in rem in the District Courts against the several tracts #of land upon which the taxes are delinquent. The county treasurer is directed to file a list of such tracts with the clerk of the court. This list serves as a complaint in the action. Service is made by publication of the list, and a notice as directed. Any party interested may file answer setting forth the reasons why such taxes or penalties should not be enforced as against any particular tract or tracts of land. The statute provides that the issues thus raised may be brought to a speedy trial upon notice of the state’s attorney, and adds: “But the county commissioners of the county in which such taxes are laid may employ any other attorney to assist such state’s attorney therein.” Laws 1897, chapter 67, § 7- The entire record in this case negatives the idea that Mr. Baker was employed to assist in the trial of the issues as thus joined, and it was not in the power of the board of county commissioners to employ him for any other purpose in connection with the collection of such taxes. If the railroad company or its receivers had instituted or should institute proceedings looking to the cancellation of the taxes for said years, or any of them, the defense of such proceedings had been fully provided for by chapter 120, Laws 1897. In the preamble to that act it is declared, in effect, that the validity of all unpaid taxes on Northern Pacific Railroad lands that had been assessed and levied prior to the date of the act was disputed, and the same were then in litigation, and the act declared that as to all of such taxes as should not be compromised or adjusted prior to July 1, 1897, the attorney general should take charge of such litigation, and press the same to a speedy determination. As to such litigation, it was, of course, beyond the power of the.county commissioners to supersede the attorney general. It thus appears that for all litigation that could possibly arise touching these taxes, whether instituted by the counties to enforce their collection or by the landowners to resist their collection or procure a cancellation, special provisions had been made. The board of county commissioners, in making the contract here involved, did not act under or within those provisions. For these reasons I concur in the affirmance of the judgment of the District Court.
(81 N. W. Rep. 23.)