95 Ky. 158 | Ky. Ct. App. | 1893
delivered the opinion of the court.
The question involved on this appeal is the liability of' the appellant, City of Owensboro, for the fee of the
The circumstances of the employment are set forth in an “ agreed case ” and in the record in which the services were rendered.
The county judge of Daveiss County, under an order of the county court to that effect, was proceeding to have inclosed under fence certain outlying grounds adjacent to the court-house square in the city of Owensboro. It may be presumed that this was being done with a view of obtaining permanent possession of the grounds about to be inclosed and of depriving the city of them, but it is not intimated that any act was about to be done which would injuriously affect the property, or that the county was about to commit any waste thereon, or carry off any portion thereof, or even to erect any buildings thereon. It had in fact only placed a number o.f stones thereon with the view of erecting a fence. It may be presumed that, the mayor in good faith believed that the grounds about to be inclosed belonged to the city. Upon this state of case the mayor, acting alone, authorized the city attorney to institute proceedings against the county authorities enjoining them from interfering with the grounds mentioned. This the attorney sought to do by filing a petition as ordinary in the Daveiss Circuit Court on the 11th day of April, 1889, but no injunction was granted him because of want of notice. The mayor then — still acting alone and without the authority of the city council — employed the appellees to assist in the prosecution of the case. Without inquiry as to the source of their employment beyond that obtained from the mayor, they filed an amended
The common council, by the charter of the city, session Acts 1881, vol. 1, page 817, is given control of the finances and all property, real and personal, belonging to the city; power-to prohibit persons from trespassing upon or injuring its public grounds; to appoint all agents necessary to carry into effect its laws and ordinances, and to prevent and remove any and all encroachments into or upon any street, alley, sidewalk, avenue or public square of the city, and to exercise complete and perfect control over all public squares or commons belonging to the city, and over all its property, real or personal, within or beyond its limits. The mayor is empowered to see that the laws of the city are faithfully executed, and shall, from time to time, give to the common council information of the state and condition of the corporation, and recommend to its consideration such measures as he may deem expedient, and for that or any other purpose may call special meetings of that body whenever it is, in his opinion, necessary to the interest of the city.
' But while invoking the aid of the principle that pressing necessity justified the employment, and insisting that an emergency existed, calling into exercise the power of the mayor to act, counsel yet argue that emergency can not give the power, however great; though it may, and likely ought to, regulate its exercise. If the power exist, it is absolute, independent and inherent in the office itself. If it does not exist, no contingency, no emergency, no necessity, can create it. That if emergency be taken as the test of the power, not the courts, but the mayor, must be
The case of City of Louisville v. Murphy, 86 Ky., 53, is relied on as conclusively sustaining the contention •of the appellees. In that case it is said : “ While as a general rule the mayor of a city has no authority by virtue of his office to employ counsel, the power being conferred by the charter or .by the'legislature of the city, cases of emergency may arise, when the power must necessarily. exist. It is made the duty of the mayor to see that the law and ordinances of the city are faithfully executed, and that the official duties of the city officials are faithfully performed. In this case the council had failed to impose any tax. The city was left without means, as the mayor had the right to suppose, of carrying on the city government. The officials were proceeding to collect a
It is insisted that a ratification of the action of the mayor is shown by the vote of the fcouncil on the motion to allow the claim of the appellees. The claim being before the council for -action thereon, the proceedings are thus stated: “ Whereupon, Mr. Decker moved that Mr. Walker be allowed $50 as a fee in the litigation, which was lost by the following vote, viz., ayes, Messrs. Decker, Norton, Ilill; noes, Messrs. Smith, Gransz, Stirman, and Mayor Hickman. Messrs. Stirman and Gransz then moved that. Mr. Walker be allowed the full amount of his claim, $150, which was rejected by the following vote, viz., ayes, Messrs. Stirman, Gransz; noes, Messrs. Decker, Norton, Hill and Smith.”
But, say the appellees with earnestness, there was no statement by the court of its conclusions of fact found, separately from its conclusions of law.
Section 332 of the Civil Code provides that “upon trials of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally, for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon the questions of law involved in the trial; in which case, the court shall state in writing the conclusions of fact found, separately from the conclusions of law.”
Now upon an agreed state of fact, what could the court do in the way of stating “in writing the conclusions of fact found separately from the conclusions of law?” Simply copy or re-state the agreed state of fact! Clearly the court’s judgment on the law only was asked. There was no trial of questions of fact. The case of Harris v. Ray, 15 B. M., 629, cited by counsel, simply determined that the provisions of the Code regulating applications for
Judgment reversed, with, directions to proceed in accordance with this opinion.