| Tex. | Jul 1, 1879
This suit was instituted to recover of the city of Bryan the reasonable value of professional services rendered by the law firm of Page & Sims, in preparing a legal opinion as to the validity of a certain election for municipal officers in said city.
The charter of the city (section 4) provides that “ the common council, by ordinances, shall have power as follows ”: * * * “Thirty-fifth. In relation to the employment of legal counsel for the assistance of the common council, and to prosecute in behalf of the corporation in criminal cases, and to institute and defend civil suits in their behalf.” The
We are of opinion that neither the mayor nor the common council were authorized to bind the city by contract for legal counsel for their assistance, no ordinance having been passed in relation to such employment.
The charter gave the power to employ legal counsel, but prescribed that the power be exercised by, or at all events in accordance with, an ordinance of the common council. The charter—the source of all the power of the mayor or council over the subject — having limited the mode of its exercise, they could not in a different mode make a valid contract; nor could they by any subsequent approval or conduct impart validity to such contract. As without an ordinance they were without power to bind the city by an express contract to pay for legal services, the law would not imply any such contract against the city. “ The law never implies an obligation to do that which it forbids the party to agree to do.” (Brady v. Mayor of New York, 16 How. Pr., 432" court="None" date_filed="1857-10-15" href="https://app.midpage.ai/document/brady-v-mayor-aldermen--commonalty-6143942?utm_source=webapp" opinion_id="6143942">16 How. Pr., 432, as cited in Zottman v. San Francisco, 20 Cal., 105.)
If municipal corporations can be held liable on an implied contract where the charter has withheld the authority to make an express contract, it is easy to evade and render useless such restrictions in their charters. The claim of plaintiffs, that the city of Bry^n was bound to pay them because of their employment by the mayor and because of the use made of their opinion by the common council, cannot be main
The case was submitted to the court without a jury, and the court gave judgment for plaintiffs. In accordance with the view which we have taken of the construction of the charter and of the law of the case, the judgment is reversed, and judgment is here rendered in favor of the city'of Bryan that ,the plaintiffs take nothing by their suit, and that the defendant recover of the plaintiffs all costs in the court below and in this court.
Reversed and reformed.