40 N.J.L. 186 | N.J. | 1878
The opinion of the court was delivered by
The material facts of this case are fully stated in the opinion of this court delivered on the former hearing of the cause, and reported in 10 Vroom 489. That opinion establishes the following propositions: that the writ of certiorari was properly allowed; that the judgment of the Supreme Court dismissing the writ was erroneous and should be reversed; and that this court has the power to rendera final judgment upon the merits of the case, and should proceed to affirm or reverse the corporate proceedings brought up by the writ of certiorari.
The proceedings certified to the Supreme Court by the writ, were the employment of Absalom B. Woodruff, as associate counsel for the city of Paterson, by the committee on finance of that city; the proceedings confirming such
The general question as to the power of a municipal corporation having a law officer charged by statute with the care of the legal business of the corporation, to employ another person to perform any part of his official duties, has been much discussed in the courts of our sister states. The decisions upon the subject are numerous and conflicting, and as each case in some degree depends on the construction of the statutes creating and regulating the municipality, any attempt to review and reconcile them would be both tedious and unsatisfactory, and could afford little aid in the solution of the question before the court.
The charter of the city of Paterson (Pamph. L., 1871, §§ 12-15,) provides that the board of aldermen shall annually appoint certain officers, among whom are a city treasurer, city surveyor and city counsel, who shall be a counselor-at-law; that said officers shall hold their several offices for one' year, unless sooner removed; that all officers of the corporation shall be governed by such general ordinances as the board of aldermen may from time to time adopt, not inconsistent with the provisions of the charter; that every officer, except the mayor, may be removed from office for cause by a two-third vote of all the members of the board of aldermen; and that the salaries of all officers shall be prescribed by ordinance,, and shall not be increased or diminished during the term of office. The ordinances of the city prescribe that it shall be the duty of the city counsel, among other things, to defend all actions which may be brought against the city in its cor
The provisions of the various city charters of this state, in relation to the law officer of the corporation, are very variant. Some create the office, prescribe the duties and fix the compensation of the officer; others, as in .this charter, direct that the duties and compensation shall be prescribed by the city ordinances. In either case, the officer legally appointed has the right to exercise the employment and to take the fees and emoluments of the office; and at the same time there rests, upon him the reciprocal obligation to perform all the duties of the office for the compensation attached to it. In Evans v. City of Trenton, 4 Zab. 765, the court say: “ It is a well-settled rule that a person accepting a public office with a fixed salary, is bound to perform the duties for the salary. He cannot legally claim additional compensation for the discharge of those duties, even though the salary may be a very inadequate remuneration for the services.” The rule is an important one, and should be rigidly enforced.
Under the charter and ordinances of the city of Paterson, the city counsel has the right to defend all suits against the city; he is under a legal obligation to perform this duty, and is bound to discharge it for the salary annexed to the office. Rut in the absence of any prohibitory words in the charter, I am not prepared to say that the corporation may not in any case employ associate counsel to assist the regular law officer of the city in defending the rights and protecting the interests of the corporation. Under our system of municipal governments, vast public interests, involving, in many cases, the health, convenience, safety and property of the citizens, are confided almost exclusively to the management of the city authorities. There are many circumstances under which the interests of the city might be greatly prejudiced, unless the •corporation could employ associate counsel to assist in protecting and defending them. No more important questions are brought before our courts for adjudication than those involving the rights, duties and obligations of municipal
But the power of the corporation to employ associate counsel does not involve the right, on the part of the city authorities, under the guise of such employment, to withdraw and take out of the hands of the city counsel any particular case or class of cases and to confide their management to others. This brings up for consideration the question as to the legal right of the corporation to employ and pay associate-counsel for legal services such as are charged in the bill before the court, and involves an inquiry as to the nature of the employment, the character of the services rendered under it, and the circumstances attending their performance.
It appears by the return to the writ that the finance committee reported to the board of aldermen “ that in view of the numerous suits pending against the city, they had resolved upon a vigorous defence, and had, therefore, retained A. B. Woodruff, Esq., as associate counsel; ” which action of the committee was approved by the board. Under that resolution, Mr. Woodruff was employed to defend a number of certioraris brought to review assessments for street improvements. The entire management of these suits, from their commencement until their final decision, covering a period of fifteen months, and extending over parts of the official terms of two different city counsel, was confided by the-finance committee to the associate counsel, or assumed by him
Admitting that the employment may have been entered into in good faith, and that it is a hardship that the counsel should not be paid for services actually rendered, we are constrained to hold that the corporate authorities of the city of
There is no legal objection to the original resolution authorizing the employment of associate counsel. The bill of $1000 for retaining fees having been paid before the issuing of the writ, is not now open for discussion. The bill for subsequent services and disbursements having been presented and acted upon as an entirety, no distinction can be made by this court in relation to the separate charges contained in it.
In conformity, therefore, with the former opinion of this court, and the views -here expressed, the judgment of the Supreme Court is reversed, and a judgment must be entered reversing and setting aside the action of the finance committee, approving the bill of $3723.60, and also all the proceedings of said committee, and of the board of aldermen looking to the payment of said last-mentioned bill.
For affirmance—None.
For reversal—The Chancellor, Dixon, Reed, Scudder, Woodhull, Dodd, Green, Lilly, Wales. 9.