15 Colo. App. 511 | Colo. Ct. App. | 1900
Plaintiff sues to recover from the defendant city the value of legal services rendered by him under an alleged appointment by the town of Colfax as special counsel in litigation arising from proceedings for the annexation of said town to the city of Denver. No question is raised as to the rendition of the services, nor their value. Neither is there any question, as to the city of Denver being the proper party defendant, the annexation having been complete. Counsel for defendant very properly suggest in their briefs that the assignments of error are embraced in, and may be discussed, under three heads.
1. There was no prior appropriation covering the expense.
2. There was no valid contract of employment of the plaintiff.
3. The town council did not have authority to employ the plaintiff.
We shall consider these questions in the inverse order of their presentation.
1. Towns and cities from a very remote period of time have been invested to some extent with local jurisdiction. In Rome, municipal corporations existed and were recognized and provided for by Roman law. Then, as now, they were created in furtherance of the principle of local self-government. Their objects then, as now, were to invest them with
As a broad general rule, such corporations are entitled to exercise only the powers with which they are specifically invested by the legislative authority which creates them. It being impossible, however, for the legislature to foresee and provide for every contingency which might arise in the government of a town or city, it has long since been settled, and is now the universal rule supported by an unbroken line of authority both in England and America, that such corporations can also exercise those powers necessarily or fairly implied in or incident to the powers expressly granted, and those essential to the declared objects and purposes of the corporation so as to enable it to discharge the duties expressly imposed upon it, and exercise the powers granted in express words. One of these powers, necessarily and plainly implied and clearly essential to the proper discharge of its duties, is, in the absence of express legislative restriction, the power to employ special counsel to appear in litigation in which it may be involved, when, in the exercise of a reasonable discretion, the interest of a municipality may require it. This results from the power with which the corporation is invested to make contracts, to own property and to incur liabilities, in the exercise of which the corporation is liable at any time to be involved in litigation in courts where the respective rights of the parties must be ultimately determined. 1 Dillon Mun. Corp. (4th ed.) § 479; Rice v. Gwinn, 49 Pac. Rep. (Ida.) 412; Smith v. Mayor, 13 Cal. 532; Memphis v. Adams et al., 9 Heisk. 526; Tiedeman, Mun. Corps. § 176.
As aptly said in Smith v. Mayor, supra :
*513 “ The duty of protecting the public property carries along with it the duty to employ the usual means of protecting it.
2. The next contention of defendant is, that “ there was no valid contract of employment of the plaintiff.” This grows out of the following state of fact. The corporate authority of the town was invested in a board, consisting of one mayor and six trustees. Laws, 1889, p. 454; Mills’ Ann. Stats, sec. 4508.
The statute provides that, on the passage or adoption of every by-law or ordinance and every resolution or order to enter into contract by a board of trustees, the yeas and nays shall be called and recorded, and that there shall be necessary to its passage or adoption the concurrence of a majority of the whole number of members elected to the council. Waiving the question, which we do not decide, as to whether the employment of plaintiff in this case was such an entering into contract as was contemplated by the statute and intended by the legislature, we will consider it as if such was the case. The first action taken in the premises was at a meeting of the board of trustees, regularly convened, when a resolution was introduced, which, after reciting that at a special election held in the town, a majority of the legal votes cast were for annexation, and that the board of trustees had heretofore recommended to the county court that the report of
“ That D. C. Webber, Esq., an attorney at law, is hereby authorized and directed to appear as sole and special counsel for this town in said proceeding, and on behalf of this town to consent to the approval of said report. And be it further resolved that George N. Hurd be, and hereby is, relieved as attorney for the town of Colfax for the purposes herein set forth.”
The vote was taken by yeas and nays, there being three affirmative votes and two negative. If, therefore, this appointment was the entering into such a contract as contemplated by the statute Avhich we have cited, then the resolution having failed to receive four affirmatiAre votes clearly failed of adoption. It is Avell settled, however, that a municipal corporation may ratify the unauthorized acts and contracts of its agents or officers which are within the scope of its corporate powers, and not ultra vires ; and such ratification as in the case of natural persons is equivalent to preAÚous authority. Durango v. Pennington, 8 Colo. 257; Bruce v. Dickey, 116 Ill. 534; Dillon, Mun. Corp. (4th ed.) § 463. At the same meeting at which the resolution above referred to was adoptéd by the vote stated, and immediately subsequent thereto, it was moved and seconded, as appears from the town records, that “ the clerk be instructed to prepare a copy of the said resolution, and certify to the same, said copy to be sent to attorney D. C. Webber.” This motion carried by a vote of four yeas and one nay, and immediately subsequent to this, as the recorded minutes recite, “ Attorney D. C. Webber, heretofore employed as special counsel to represent the town in the matter of the annexation of the town to the city of Denver, was present and called the attention of the board ” to various matters concerning the litigation, and made various suggestions as to what was necessary to be done. Immediately thereafter, it again appears from the town record that by a vote of four yeas and two nays, a warrant was ordered drawn in favor of D. C. Webber for the sum of $100,
We think, therefore, that ratification was complete and perfect, even if an express contract were required, and comes within the strict rule laid down by our supreme court in Durango v. Pennington, supra, to the effect that to constitute the ratification of an invalid contract, where an express contract is necessary and where the contract is required to be made in a specified manner, requires the observance of the same formalities and provisions necessary to be complied with in the making of a valid contract. In this case, the only formality required, if at all, was that the matters relied upon to constitute ratification should have received four votes, being a majority of all the members elect. This was the case.
8. The remaining objection of defendant is that “ there was no prior appropriation covering the expense.” This is based upon the provision of the statute to the effect that no contract shall be made by the board of trustees of a town, and no expense shall be incurred by any of the officers or de
It is the duty of courts in construing a statute to do so in such a manner as to give effect, if possible, to the whole and every part of it — such a reasonable construction as would tend to effectuate the purposes and objects of the statute, and carry out the intent of the legislature in its enactment. Applying this rule, and bearing in mind the multifarious duties, many of which it is impossible to foresee or anticipate, which devolve upon the governing bodies of municipal corporations, it seems evident to us that the statute which we have cited refers only to the making of such contracts or the incurring of such expense as may be necessary in carrying out the powers expressly granted to the corporation by the statute, where contracts are expressly required, or where the nature and character of the work or act proposed is such as to seemingly require that an express contract should be entered into to protect the city’s interest. We think it would be unreasonable to say that it applies to the exercise of all those implied powers necessary for the corporation to carry out the powers expressly granted. The trustees of incorporated towns are required, within the last quarter of the fiscal year, to pass an ordinance termed “ The Annual Appropriation Bill ” for the next fiscal year, specifying the objects and purposes for which the appropriation is made, and it is provided that no further appropriation shall be made during said ensuing fiscal year, unless the proposition therefor is first submitted to and sanctioned by a majority of the legal voters therein. It is a matter of common knowledge that conditions frequently arise in towns and cities which it was impossible to have foreseen a few weeks, much less months, beforehand, and which require immediate and prompt action on the part of the municipal authorities in order to protect the interests of the people. Can it be said that if a violent epidemic
Sullivan v. City of Leadville, 11 Colo. 483, involved an alleged contract for grading and macadamizing streets, which was the attempted exercise of a power expressly granted in terms by the statute.
For the reasons given, we think the objections raised and discussed by the city are untenable, and the judgment will be affirmed.
Affirmed.