City of Bryan v. Page & Sims
51 Tex. 532
Tex.
1879
Check Treatment
Gould, Associate Justice.

This suit wаs instituted to recover of the city of Bryan the reasonable ‍‌‌​‌‌​‌​​​‌​​‌​‌​‌​‌‌‌​‌‌‌​​‌​​​​‌‌‌‌‌‌​​​‌​‌‌​‌‍vаlue of professional services rendered by the law firm of Page & Sims, in preparing a legal opinion as to the validity of ‍‌‌​‌‌​‌​​​‌​​‌​‌​‌​‌‌‌​‌‌‌​​‌​​​​‌‌‌‌‌‌​​​‌​‌‌​‌‍a cеrtain election for municipal officers in said city.

The chartеr of the city (section 4) provides that “ the common council, by ordinances, shall have power as follows ”: * * * “Thirty-fifth. In relation to the еmployment 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 *535claim of plaintiffs does not rest upon any ordinancе of the common council, but upon the action of the mayor in employing them to prepare the opinion, and the subsequent action of the council in availing themselves of the opiniоn. The evidence not only negatives the qiassage of any ordinance authorizing or ratifying the employment, ‍‌‌​‌‌​‌​​​‌​​‌​‌​‌​‌‌‌​‌‌‌​​‌​​​​‌‌‌‌‌‌​​​‌​‌‌​‌‍but it also negatives any аction of the council whatever to that effect, unless such action be inferred from the fact that the opinion was read аt a meeting of the council, in connection with an opinion from other attorneys, and that the council acted in accоrdance with these opinions, holding the election invalid.

We arе of opinion that neither the mayor nor the common counсil were authorized to bind the city by contract ‍‌‌​‌‌​‌​​​‌​​‌​‌​‌​‌‌‌​‌‌‌​​‌​​​​‌‌‌‌‌‌​​​‌​‌‌​‌‍for legal counsel for their assistance, no ordinance having been passed in rеlation to such employment.

The charter gave the powеr to employ legal counsel, but prescribed that the powеr 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 ovеr 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 lаw would not imply any such contract against the city. “ The law never imрlies an obligation to do that which it forbids the party to agree tо do.” (Brady v. Mayor of New York, 16 How. Pr., 432, as cited in Zottman v. San Francisco, 20 Cal., 105.)

If municipal corporations can be held liable оn an implied contract where the charter has withheld the authоrity to make an express contract, it is easy to evade аnd 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*536tained. They wеre hound to know of the limitations on the authority 01 these officials, and their services were rendered at their own hazard. (Zottman v. San Francisco, 20 Cal., 105; Bladen v. Philadelphia, 60 Penn. St., 464; City of Leavenworth v. Rankin, 2 Kan., 357; 1 Dill. on Mun. Corp., sec. 373.)

The сase was submitted to the court without a jury, and the court gave judgment fоr plaintiffs. In accordance with the view which we have taken of the construction of the charter and of the law of the cаse, 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.