211 N.W.2d 878 | Minn. | 1973
Plaintiff in this action seeks to recover attorney’s fees against the village of Hibbing for services he rendered in an injunction suit to restrain performance of a contract to purchase a generator for the village light plant. The trial court granted summary judgment for the defendant village and we affirm.
The history of these proceedings is set forth .in Hughes v. Micka, 269 Minn. 268, 130 N. W. 2d 505 (1964), and Galob v. Sanborn, 281 Minn. 58, 160 N. W. 2d 262 (1968). In the Hughes case various taxpayers brought an action to restrain the village and its Public Utilities Commission from purchasing equipment which was to be paid out of a reserve for replacement fund. Plaintiff, who was then village attorney, took an active part in successfully defending the injunction action and thereafter sought payment for his services from both the commission and the village. Being unsuccessful, he brought a declaratory judgment suit seeking a determination that the services he rendered were on behalf of the commission and that it was legally obligated to pay the sum of $10,000 for such services. The trial court allowed his claim and we reversed in Galob v. Sanborn, supra. We held that the commission did not have the power to sue or be sued but was merely an agency or department of the village.
Thereafter, plaintiff brought this action against the village for the relief he was denied against the commission. In granting summary judgment, the trial court found that the services performed by plaintiff in the Hughes case were rendered without any agreement by either the village or the commission to compensate him over and above his salary as village attorney.
It is the contention of the plaintiff that although he appeared for the village in the Hughes case, the village was not a real party in interest and his appearance was for tactical purposes only.
The fact that he was counsel for the village in the original action was of no significance, plaintiff argues, because the village was merely a consumer and had no interest in the litigation. The defense was submitted to the commission and, according to plaintiff, they retained him under their statutory power so to do. Although neither the village nor the commission has ever formally authorized his retainer or approved payment for his services, plaintiff relies for recovery on the fact that he has performed services which were not germane to his office as village attorney and for which there was at least an implied agreement to compensate him.
L. 1907, c. 412, which applied to the village, authorized the creation of a water, light, power, and building commission in villages having a population of less than 10,000 inhabitants. Under that statute and subsequent acts granting the commission further powers, the commission is virtually autonomous except for the right to dispose of its property. L. 1949, c. 422, § 3, subd. 5, empowered the commission to employ an attorney, and L. 1951, c. 680, § 5, amended that provision to read:
“The commission may employ an attorney at a salary not ex
Plaintiff seeks to bring himself within that statute, alleging he was hired to perform services in connection with special work in excess of normal requirements. The fallacy in that argument is twofold. First, he was not, as the court found, hired specially by either the commission or the village; second, neither governing body determined that his participation in the Hughes case involved services in excess of normal requirements. We noted in State ex rel. Finlayson v. Gorman, 117 Minn. 323, 326, 136 N. W. 402, 403 (1912), where an attorney sought compensation from a city for representing a water, light, power, and building commission, that the commission “is merely a board or department of the city government” and “it has been given no power to sue or be sued, so that it stands in need of no attorney to carry on its litigation.”
The equities favoring recovery in the instant case make our decision a difficult one. Plaintiff has performed services in good faith and with diligence and professional competence. Although the result seems harsh, we cannot ignore the overriding considerations of public policy which are reflected in the statute. The case for requiring an explicit contract of retainer either by resolution of the governing body or by some other written document is well stated in Cahn v. Town of Huntington, 29 N. Y. 2d 451, 455, 278 N. E. 2d 908, 910 (1972):
“* * * The salient purpose underlying this rule is, of course, to ensure responsible municipal government. Not only is it designed as a safeguard against the extravagance or corruption of municipal officials, as well as against their collusion with attorneys [citations omitted], but also, to prevent confusion and contradiction in the direction of the municipality’s litigation.”
For reasons which are obscure, the position of the commission and the village council in dealing with plaintiff’s claim has been ambiguous and equivocal. Be that as it may, the record supports the trial court’s conclusion that plaintiff is not entitled to extra
Affirmed.
The case was decided before the enactment of L. 1951, c. 680, and held that the commission had no implied power to employ special counsel.
2 McQuillin, Municipal Corporations (2 ed.) § 544, p. 251. See, 4 Mc-Quillin, Municipal Corporations (3 ed.) § 12.193, p. 78, which adds the following: “Extra compensation to the incumbent of an office or position in the municipal service cannot be based on a promise, contract,