123 Ky. 562 | Ky. Ct. App. | 1906
Opinion by
Affirming.
The council of the city of Bowling Oreen having received. information that a large amount of property in
The city attorney had made a contract with Gaines to pay him a fee of 12-£ per cent, upon all sums collected and paid into the city treasury. The city declined to pay Gaines the $1,250, and he brought this suit against the city to recover therefor, alleging that he had been employed by it. The city denied the allegations of the petition, in so far as it was charged that the city had made any contract with Gaines. It pleaded that the city attorney was without authority to make any contract on its behalf, insisting that the settlement was made through the efforts of the city officials; that it had paid the city attorney $1,000; and that this was as much as the work done by the attorneys was worth. In reply the plaintiff alleged that the council had ratified the action of the city attorney in employing him, and had authorized the compromise and received, the benefit of his services with full knowledge of the contract he had with the city attorney and the services which he had rendered under it. The allegations of the reply were controverted, of record. The proof taken on the trial showed that the city attorney made the contract with Gaines as alleged in his petition, and that Gaines assisted him in the preparation and conduct of the suit, rendering efficient services; the evidence warranting the conclusion that the compromise was the result of the skill with which the claim against the bank was pressed by the city attorney and his associate, Gaines. But there is nothing in the record to show that the council ever ratified the contract which the city attorney made with Gaines, and
It will be observed that by the ordinance the city attorney was authorized to employ such assistance as he deemed necessary in the collection of the taxes, the preparation and conduct of any suits instituted by him, and to contract to pay therefor not exceeding 15 per cent of the amount realized and paid into the city treasury. It is conceded that the council might have employed another attorney to aid the city attorney, and have contracted with him for his compensation, but the question is whether the city is bound on a contract made by the city attorney, he determining whether the assistance was necessary, what attorney he should employ, and what he should be paid. The council is the governing body of the municipality. Ky. St. § § 3284-3290. The city attorney is the general law officer of the municipality, and it is his duty to attend to all legal business of the city, except prosecutions in the police court. He is paid a salary to be fixed by the council and 10 per cent, upon all sums ■ recovered and collected by him for the city. Ky. St. § § 3313, 3314. He has no authority under the statute to make any contract on behalf of the city for other counsel, or to create any liability therefor. So, the only question to be determined is whether the council had the right to delegate to him the authority to make the contract in question.
In Knight v. Eureka, 123 Cal. 192, 55 Pac. 768, certain Chinamen brought suit in the Circuit Court of the United States at San Francisco against the city
* This power to appoint an attorney is one of -those incidental powers which of neecssity reside in the council in order that its granted powers may be fully exercised, but is one of that class of powers devolved upon the council which in their very nature should be exercised by it, and could not, with safety to the public, whose servants the members of the council are, be conferred upon- ah agent to exercise. No exigency or emergency is likely to arise where full opportunity would not be given the council to act directly in selecting its own attorney, or his assistant; there is every reason why the power to do so
In Huron v. Campbell, 3 S. D. 309, 53 N. W. 182, the council authorized the city attorney to appoint as many assistant attorneys as the mayor of the city deemed necessary to protect and defend certain suits. The ordinance was held invalid, although the council had authority to employ a city attorney, or an assistant city attorney, and fix his compensation. Among other things, the court said: “In fixing this compensation (i. e., of the city attorney), the city council must exercise its judgment upon that particular question; and, in determining the necessity for an assistant or assistants, the city council must equally exercise its judgment as to the necessity for an assistant or assistants, and the compensation to be allowed him or them.”
In East St. Louis v. Thomas, 11 Ill. App. 283, the mayor of the city had employed an attorney, agreeing to pay him a fee to attend to certain tax cases in behalf of the city. In holding that the city was not liable, the court said: “The principle is a plain one that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others. Powers are conferred upon municipal corporations for public purposes, and as their legislative powers cannot be delegated, neither can they be bartered nor bargained away. Dillon’s Municipal Corporations, § § S6, 97. Another and very important limitation which rests upon municipal corporations is that they shall be
In Tampa v. Solomonson, 35 Fla. 446 17 South, 581, the city council appointed four ministerial agents by ordinance, and authorized them to appoint a fifth. It was held that while the city itself could appoint these agents it could not appoint four and vest in them the power to select a fifth agent. To same effect see Ridgeway v. Michellon, 42 N. J. Law, 405. These cases are in accord with the principle everywhere upheld that while ministerial functions may be delegated, powers that involve discretion and judgment on the part of the city council cannot be delegated.
It is insisted that the case at bar does not come within the principle for the reason that the maximum that the city attorney was to pay his assistant was fixed by the ordinance at 15 per cent, of the amount collected; but the rule is not that discretionary powers may be delegated with restrictions or partly delegated. The rule is that they cannot he delegated at all. The city attorney was left here to determine whether assistance was necessary and, if necessary, whom he should employ and what he should pay him, within the maximum fixed by the ordinance. If the council had exercised its own discretion, it might have concluded that no assistance was necessary, or it might have preferred to employ another attorney at the same price for the better protection of the interests of the city, or it might have fixed a lower price than that fixed by the city attorney. The city attorney under the ordinance was left to discharge all the duties pertaining to the
We therefore conclude that the circuit court’s finding of facts is not sufficient to sustain a judgment against the city. As no evidence was offered on the question of ratification, that question is not now before us, and no opinion is expressed thereon.
Judgment reversed, and cause remanded for a new trial and further proceedings consistent herewith.