Coleman v. Town of Hartford

47 So. 594 | Ala. | 1908

ANDERSON, J.

— -“Unless otherwise specifically provided by law, the power to make municipal contracts resides in the council as the general governing body of the corporation.” 28 Cyc. 643. The mayor, although the nominal and official head of the municipality, has no power to bind the corporation by written or oral contract, unless he has been duly authorized by the governing body or by the state. —28 Cyc. 647. In the case of Carroll v. St. Louis, 12 Mo. 444, it was held that the city was not liable for the services of an attorney appointed by the mayor, because the mayor had no authority to appoint him. In the case of Indiana, Road Co. v. Sulphur Springs (Tex. Civ. App.) 63 S. W. 908, it was held that the city was not liable on a contract executed in its- behalf by the mayor, when he acted without authority, if it did not ratify same by .knowingly receiving benefits thereunder. The proof shows, in the case at bar, that the service was rendered to the mayor and the marshal, and that the tOAvn, through its council, not only did not ratify the employment, but repudiated the claim AAdien brought to their attention, except as to $10 for praparing ordinances, and Avhich seems to have been paid, or at least is not claimed in this suit. The plaintiff not only failed to prove any authority on the part of the mayor and marshal to employ him; but the defendant introduced an ordinance, shoAving that the council alone had the authority to select an attorney.

We do not understand the case of Montgomery Co. v. Barber, 15 Ala. 242, as being in conflict with the foregoing principle. This case does not hold that the county was liable for a debt contracted by an unauthorized agent Avhich Avas not subsequently ratified. It stresses the fact that the contract, express or implied, must be by its proper officers or agents, and quotes the statute authorizing the commissioners’ court to make necessary contracts. The point considered, Avas not one of authority, but whether of not the authority had been exercised in a formal manner; and the court held that, as they had the authority to bind the county for the purpose involved, they did not have to do so by a formal order or written contract. Moreover, Avhat was said on this point Avas not involved in the appeal or assignment of error in said case. The only question that could have been considered Avas the ruling of the trial court upon the demurrers to the complaint. There were but two grounds. The first questioned the plaintiff’s right to sue in his official capacity, and the other his right to collect fees other than those prescribed by law. It will be thus seen that the question of authority was not before the court.

The trial court did not err in giving the general charge requested by the defendant, and the judgment must be affirmed.

Affirmed.

Tyson, O. J., and Dowdell and McClellan, JJ., concur.