125 Mich. 424 | Mich. | 1900
This is an action of assumpsit to recover for legal services claimed to have been performed by Charles O. Smedley for the city of Grand Haven, and such claim assigned to plaintiffs. The case was tried before a jury, who returned a verdict of no cause of action, by direction of the court. The bill of particulars is set out in the record. About $130 of the claim is for services rendered the city in the case of Bishop v. Baar, mayor of defendant city, in the circuit court for the county of, Ottawa. The balance of the claim is for legal services rendered by Mr. Smedley in this court, the two claims amounting to $340.42.
It appears that the council of defendant city attempted, by resolution, to transfer certain of the city moneys from one fund to another. The mayor prepared a veto message, and the clerk refused to file the same, claiming that it
We have set out very fully the facts in the case upon which the legal questions are raised. The testimony shows, as stated by the court below, that there was no concurrence by the common council with the action of the mayor in the employment of Mr. Smedley, except that the mayor spoke to them individually about such employment, and they said it was all right. It is also shown, as stated by the court, that the case of Bishop v. Baar was not appealed to this court; but it does appear that, when the circuit court made a return to the certiorari in Smedley v. Kirby, he returned all the proceedings had before him in Bishop v. Baar. The claim of the plain.
The question remains as to the claim for services in Bishop v. Baar in the circuit court. The charter of the city of Grand Haven provides, by chapter 8, § 20 (Act No. 215, Pub. Acts 1895), that:
‘ ‘ The council shall audit and allow all accounts chargeable against the city; but no account or claim or contract shall be received for audit or allowance unless it shall be accompanied with a certificate of an officer of the corporation, or an affidavit of the person rendering it, to the effect that he verily believes that the services therein charged have been actually performed or the property delivered for the city. * * * It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the city, for personal injuries or otherwise, that it has never been presented, certified to or verified as aforesaid, to the council for allowance; or, if such claim is founded on contract, that the same was, presented without the affidavit or certificate as aforesaid, and rejected for that reason; or that the action or proceeding was brought before the council had'a reasonable time to .nvestigate and pass upon it.”
The court refers to this charter, and says: “If a debt is to be contracted against the city in any way, it must come through the power of the common council. ” It is admitted by the learned judge that there are certain exceptions to this rule, as where an emergency or exigency might arise which would compel the mayor to act without the sanction of the council in order to protect the rights of the city; but the court was of the opinion that no such exigency was shown to exist in the present case. No point is made by the
The only question presented is whether'there was any exigency arising in the case which called upon the mayor to act without reference to any formal action by the council. The city attorney was employed against the mayor in all the cases, and in fact was active against him in all the matters coming before the council pertaining to the transfer of the funds, the veto message, the bringing of the mandamus proceedings, as well as in advice to the council not to pay the costs and expenses in the suits. We think it was a question for the jury to determine whether any exigency existed which warranted the mayor in employing counsel under such circumstances. The charter of the city, by section 1, chap. 7, provides that the mayor shall be the chief executive officer of the city, and “it shall be his duty to exercise supervision over the several departments of the city government, see that the laws relating to the city, and the ordinances and regulations of the council, are enforced.” The mayor found that the council, by resolution, had violated the provisions of section 22, chap. 30, of the charter; which provides that:
“All moneys and taxes raised, loaned, or appropriated for the purposes of any particular fund shall be paid in and credited to such fund, and shall be applied to the purposes for which such moneys were raised and received, and to none other; nor shall the moneys belonging to one fund be transferred to any other fund, or be applied to any purpose for which such other fund is constituted,” etc.
In the face of this provision, the council attempted by resolution to transfer $7,000 from the contingent to the several city funds. His attempt to veto this action was opposed by four of the aldermen and the city attorney, acting with them, and they sought to defeat the veto message on the ground that it was not filed in time.
It appears in the case of Barnert v. Mayor, etc., of
“If be was right in his judgment, the city should have furnished him the aid of proper counsel. But the official law officer was in court against him, and the city authorities, to whom ordinarily he should have applied, were the real actors in the proceeding against him. It would, under these circumstances, have been idle to make the application. Ordinarily his duty would have ended with an unsuccessful application to the official 'counsel, or, if the city counsel were not available, then by application to the appropriate authority to furnish other counsel; but he could expect aid from neither source in the existing situation. He was chargeable with the knowledge of his official duty, and was called upon then to decide what was the course of action which that duty demanded of him. The risk of decision was upon him. If he erred in judgment as to his legal duty in resisting the proceeding, he must, on demanding to be reimbursed his outlay, have stood as a mere volunteer, and borne the direct consequences of defeat. The judgment of the court which the parties invoked vindicated his decision, and found him acting in obedience to the commands of the charter.”
The above case was quoted with approval in Wiley v. City of Seattle, 7 Wash. 576 (35 Pac. 415, 38 Am. St. Rep. 905).
In City of Louisville v. Murphy, 86 Ky. 53 (5 S. W. 194), an action was brought by the mayor of the city to restrain the collection of a claimed illegal tax. The council did not move in the matter, and the city attorney took no'steps in it. In this emergency the mayor employed counsel, and the court sustained his claim. It was held that the mayor had the right to do this, under such circumstances, and that the city was liable for the expenses of counsel and attorney fees.
Plaintiffs asked the court to charge the jury that if they
The judgment must be reversed, and a new trial .granted.