72 Tenn. 69 | Tenn. | 1879
delivered the opinion of the Court.
The services for which a recovery is demanded were rendered in defending a suit commenced by a bill filed on the 3rd of June, 1869, in the Chancery Court at Nashville. The bill was brought in the name of the State, on the relation of a large number of the citizens of Nashville, against the Mayor and Common Council of Nashville, the Mayor of the city, the individuals composing the City Council, the Treasurer, Collector and Recorder, and other persons named. The bill called in question the right of the Mayor and a number of the members of the City Council to hold the offices occupied by them, because of the want of the necessary qualifications. It charged all of the officers with the grossest malfeasance in office, and with having brought the corporation to the verge of bankruptcy. The object of the bill was to enjoin the city officials made defendants from issuing, receiving, using or speculating in city warrants, alleged to have been fraudulently executed, until their validity could be enquired into, and to call the same officers to account for money made by speculating in the means and credit of the city. There was also a prayer for a receiver to be ap
Upon this bill, one of the Chancellors of the State granted a fiat for injunctions as prayed. Af-terwards an amended and supplemental bill was filed, docketed as a separate suit, which is not made a part of the bill of exceptions, but under which a receiver was appointed in conformity with the prayer of the original bill. On the 5th of June, 1869, the plaintiff was retained by the Mayor of the city to assist the City Attorney and other counsel in the original case. On the 23rd of September, 1869, the Mayor and City Council of Rashville undertook to ratify the act of the Mayor in employing attorneys and solicitors to defend the two bills, referring to them by their title and numbers on the rule docket of the court.
The Circuit Judge, on the trial, found as a fact that the plaintiff was retained by the Mayor to defend the suit, and that this retainer was subsequently ratified by the City Council. He further found that the plaintiff, in pursuance of the re-tainei’, pei’formed services which were reasonably worth the amount sought to be recovered. But he also found as a fact that, although the coi’po-ration was made a nominal defendant to the bill,
Where a municipal corporation has no interest in the event of a suit, or in the question involved in the case, it would seem clear that it could not assume the defense of the suit, or appropriate its money for the payment of the expenses incurred. “It would be a dangerous power,” says Pratt, J., “to be vested in municipal corporations which would give them the right to employ counsel and defend every suit which might present a question in the decision of which the agents of such corporations might fancy themselves interested: Halstead v. Mayor of New York, 3 N. Y., 430, 435. Most clearly the corporation could not appropriate money to defray the costs of an official who had been prosecuted for official misconduct, although he be acquitted: People v. Lawrence, 6 Hill, 244; Merrill v. Plainfield, 45 N. H., 126; Butler v. Milwaukee, 15 Wis., 493. Nor to defray the expense
These principles are not controverted by the plaintiff in error, but he earnestly and ably argues that he was retained for the city, and that his services were rendered in protection of the privileges and franchises of the municipality whose corporate autonomy was threatened. But the Circuit Judge found as a fact that no relief was sought against the corporation, whose rights would not have been in the least affected by a pro confesso order taking the bill for confessed as against it.
The finding of a fact by the Circuit Judge in a ease tried by him is as conclusive in this Court as a similar finding by the jury. And if we look for ourselves to the only hill which was introduced in evidence before him, there cannot be a doubt of the correctness of his conclusion. Its sole object was to restrain the alleged illegal and fruadulent disposition of the corporate funds by the individual defendants. If the officers of a municipal corporation depart from their sphere of duty, and assume to themselves a power over the corporate property which the law does not confer, and a for-tiori if they are fraudulently appropriating the corporate funds to their own benefit, a Court of Chancery no longer looks upon them as acting under. the authority of their office, hut treats them merely, as
There is no error in the judgment, and it must be affirmed.