|
Minn.y STATE v. 40RMAN
<br />403
<br />of mandamus to compel the city treasurer
<br />pay a certain R•arrant issued to Ro
<br />e ~ Braithwaite by the commission, which
<br />~ tfon resulted in a peremptory writ comp
<br />ling payment.
<br />i Thfa proceeding was brought In the na
<br />~ o! the state, on relation of the commissi
<br />- , and the said claimant Brafthwnite. It fu
<br />~ ther appears that the attorney afterwar
<br />~ presented his claim Por compensation for~h
<br />services, and the commisslon, November
<br />1910, duly allowed sad ordered it paid
<br />the sum of $229.12; said sum being the re
<br />sonable value of the services so readers
<br />The respondent's refusal to issue the wa
<br />rant, though authorized and requested so
<br />do by the commission, also appears, as we
<br />as the ass(gnmeut of the claim by the atto
<br />ncy to the relator, the appellant. In gran
<br />ing respondent's motion to quash the wri
<br />the trial court said: "I am of the opinto
<br />that the water, light, power, and buildin
<br />commisslon has no power to make the ctt
<br />of East Grand Forks liable for fees of a
<br />attorney that it might hire, without the aft
<br />thorny of the city council of East Gran
<br />Forks to hire such attorney."
<br />itl Sections 198' to and Including sectio
<br />201 of chapter 8 of General Laws of 1895
<br />under which the municipality was created
<br />provide for the appointment of a city attor
<br />nay and define his duties, stating that: "Ii
<br />shall be the legal adviser of the city an
<br />shall perform all the services incident to the
<br />office, and shall appear in and conduct ell
<br />civil suits, prosecutions and proceedings in
<br />which the city shall be directly or indirectly
<br />Interested. • • • He shall advise the
<br />city council and all city officers In respect
<br />to their official duties. He shalt personally
<br />or by an assistant attend all the meetings
<br />of the city councll and such of the commit-
<br />tees or boards as shall request his attend-
<br />ance, and ao board, department nor officer
<br />of the city shall Lava or employ any other
<br />attorney in connection with their official du-
<br />ties." Any sasiatant, permanent or .tempo-
<br />rary, must be appointed by the city attor-
<br />,, nay.. Section X241. The water, light, power,
<br />and building commisslon is merely 'a board
<br />or department of the city go6ernment.
<br />• While it may, within its. sphere, incur ez-
<br />pease, enter into contracts, and allow and
<br />order the claims therefor paid, independently
<br />of the city council, !t has been given no pow-
<br />er to sue or be sued, so that it stands 1n
<br />need of no attorney to carry on its litigation.
<br />~ Monfort v. Wheelock, 78 Minn. 189, 80 N.
<br />W. 955. American Electric Co. v. Waseca,
<br />102 Minn. 329, 113 N, W. 899. Therefore,
<br />the commisslon being a department of the
<br />city, it must be conceded that, by the sectfon
<br />above quoted, the duly appointed city attor-
<br />ney' became its legal adviser, and the stat-
<br />utory inhibition against anq board, depart-
<br />. tnent, or officer of the city Laving or em-
<br />i ploying any otter: attorney In connection
<br />with their official duties applies to the com-
<br />to mission. And it follows that, !t this inhlbi-
<br />bert tion la in force as to the commission, no
<br />ac- impifed power for It to employ counsel may
<br />el- be read into chapter 412 01 the General Lawa
<br />o! 1907. The lnteotlon of the Legislature in
<br />me the act of 1895 to guard against burdening
<br />on the taxpayers of small cities with more than
<br />r- one legal department fa so plain, and that
<br />da obJect so worthy, that we have no incllna-
<br />ls tion to adopt the view of appellant that the
<br />1, clause quoted in said section 200 of chapter
<br />in 8 of the General Lawa of 1895 was repealed
<br />a- by implication by the provision to said chap-
<br />d. ter 412 of the General Lawa of 1907, which
<br />r- reads: "They [the commission] shall have
<br />to authority to bay al] material, and employ
<br />11 ail help necessary, or they may contract to
<br />r- extend, add to, change or modify said plants.
<br />t- buildings and halls, or any part thereof;
<br />t. they shall also have authority to bay all
<br />n Puel and supplies, and employ all help nec-
<br />g essary to operate said plants." It cannot
<br />y be reasonably contended that this ]enguage
<br />n was intended to confer the power to employ
<br />- an attorney, 1n view o! the fact that for
<br />d every city to which chapter 412 applies the
<br />law already provided a legal adviser, whose
<br />n duty it is to render legal services for the
<br />city, and every officer, Board, and depart-
<br />, meat thereof. The duties of a city attorney
<br />- in cities of less than 10,000 inhabitants can-
<br />e not be exceedingly arduous. Frequently city
<br />d officials disagree as to their several duties,
<br />and clash; but, because of this, can !t for a
<br />moment be admitted that each hsa the power
<br />by implication to hire an•attorney for con-
<br />sultation and litigation, and make the city
<br />respoasfble for the services so rendered? As
<br />bearing on thin question, and the reluctance
<br />of courts to imply power to hire an attor-
<br />ney where none is given, may be cited Horn
<br />v. City of St. Paul, 80 Minn. 389, 83 N. W.
<br />388, True v. Board o! Co. Com. of Crow
<br />\~'1ng County, 83 Minn. 293, 86 N. W. 102,
<br />and Jackson v. Board of Educatian o! the
<br />City of Minneapolis, 112 Minn. 167, 127 N.
<br />W. 589.
<br />[2] But counsel insists that the facts
<br />show that an emergency arose which threat-
<br />ened to deprive the city o[ the services o!
<br />the commission. Granting that an emergen-
<br />cy may create a power where none othernlse
<br />exists, we do not think the facts stated !n
<br />the writ show an emergency. TLe litigation
<br />is which the attorney was employed was not
<br />directed against the conomisaion as such, nor
<br />was any pecuniary interest of the public at
<br />stake in It. The cases cited and relied on
<br />by appellant, viz., Wiley v. Seattle, 7 Wash.
<br />576, 35 Pac. 415. 38 Am. St. Rep. 905, Smed-
<br />ley v. Iilrby, 120 Mich. 263, T9 N: W. 187,
<br />City of Loulsvilie v. Murphy, 86 Ky. 63, 5
<br />S. W. 194, Bnrnert v. Mayor, 48 N. J. Law,
<br />395, 6 Atl. 15, are all cases where proceed-
<br />ings were taken against an official to compel
<br />Lim to perform some official act which. he
<br />deemed violative o! his duty to the public
<br />and inJuriously affecting interests o! great
<br />
|