Valentine v. Robertson

Decision Date14 July 1924
Docket Number4204.
Citation300 F. 521
PartiesVALENTINE v. ROBERTSON et al.
CourtU.S. Court of Appeals — Ninth Circuit

James Wickersham, Joseph W. Kehoe, and Grover C. Winn, all of Juneau, Alaska, for appellant.

Hellenthal & Hellenthal and R. E. Robertson, all of Juneau, Alaska, for appellees.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT Circuit Judge.

The appellant brought a suit to enjoin the payment of $2,000 appropriated by the common council of the city of Juneau to defray the expenses of one Robertson in going to Washington D.C., and using his best endeavors to forward the passage of legislation advancing certain projects in which the members of said common council were interested. From the order of the court below, dissolving the injunction and dismissing the bill, this appeal is taken.

The projects on which the common council desired legislation by Congress, as shown by their amended resolution adopted on January 29, 1924, included (1) the division of the territory of Alaska; (2) the erection of a government dock at Juneau (3) the erection of a government building at Juneau; (4) the dredging of Gastineau Channel at Juneau; (5) the dredging of a canal from Hawk Inlet to Stevens Passage; (6) a canal connecting Stevens Passage with Oliver's Inlet (7) the establishment of a mail route on the north shore of Chichagof Island; (8) the establishment of a land office at Juneau; and (9) the dredging of Wrangell Narrows. By the resolution the services of said Robertson were also engaged to work in conjunction with the delegate from Alaska to secure the passage of a bill, then pending in Congress, to authorize the city of Juneau to issue bonds for street improvements and the establishment of permanent streets in the city. The resolution provided that said Robertson was to render said services without further expense to the city than payment of his expenses to and from Washington, and it appropriated for that purpose $2,000.

It appears from the record that on January 18, 1924, by resolution the common council appropriated $2,000 to compensate Robertson and pay his expenses to Washington to 'lobby before Congress' for legislation to carry out the first nine projects which are mentioned in the later and 'corrected' resolution of January 29, 1924, and no mention was made of the tenth project, the authorization of the issuance of bonds for city improvements. It was not until after the present suit was commenced, and a temporary restraining order had been issued, that the common council adopted the resolution of January 29, wherein they added to the nine projects mentioned in their previous resolution the legislation authorizing the city to bond itself and construct streets. It is only by the tenth project, so added, that the later resolution acquires the semblance of legality. The court below, while holding that an appropriation by the city for the other projects mentioned could not be held valid as for municipal purposes, was of the opinion that to obtain legislation for the improvement and construction of public streets in the city, a function which the city was bound to perform, money might properly be appropriated, as was done by the later and corrected resolution.

A municipal corporation has only such powers as are expressly granted, or are fairly or necessarily implied from those granted, or are essential to the declared objects or purposes of the incorporation. And any doubt as to the existence of a particular power will be resolved against it. Boise v Boise Water Power Co., 186 F. 705, 108 C.C.A. 523; Omaha Electric Light & Power Co. v. City of Omaha, 179 F. 455, 102 C.C.A. 601. Obviously the court below properly held that the appropriation of public money to pay the expenses of a lobbyist for the furtherance of the first nine projects mentioned in the resolution was beyond the powers of the Common Council. The question remains whether the addition of the tenth project renders legal the appropriation which was expressly made to pay for services in lobbying for all the projects.

It is not claimed that there was express power to appropriate money to secure congressional legislation authorizing the city to issue bonds for the improvement of its streets. But it is claimed that such authority is implied in the grant of authority to 'provide for the location, construction and maintenance of streets. ' In the opinion of the court below, stress is laid upon the allegation in the answer that 'R. E. Robertson is the acting city attorney of the city'; but we cannot see how that allegation affects the case. While in 19 R.C.L. 774, it is said that, 'although there is authority to the contrary,' a municipal corporation may employ counsel to appear before a committee of the legislature to advocate or oppose pending measures affecting its corporate interests, but one case is cited to support the text. Farrel v. Derby, 58 Conn. 234, 20 A. 460, 7 L.R.A. 776. In that case it was held that a town had power to appear before the Legislature and oppose a petition for the division of its territory, and that it might employ legal counsel and incur other reasonable expenses for that purpose. But in that case the officers of the town, in response to a notice served upon them, were called upon to defend the town against a petition in a 'proceeding of an adversary nature.' The court said:

'Here, then, were all the elements of ordinary litigation-- a court having competent jurisdiction, parties in interest, and matters in controversy.'

The situation which was before the court in that case is far different from that which is presented here. The city of Juneau is not defending itself against any invasion of its corporate functions. Upon its own initiative it is seeking only to enlarge its powers. The appellees cite In re Taxpayers & Freeholders, 27 A.D. 353, 50 N.Y.Supp. 356, where it was held that, under a statute authorizing town trustees to employ an attorney 'when the business of the board of trustees of the village requires' it, the trustees might employ counsel to appear before the Legislature and Governor in relation to any law pertaining to the town, and that his claim for services will be valid. But no such authority was given to the common council of Juneau. The only provision applicable is section 23, chapter 97, Session Laws Alaska 1923, which is as follows:

'Duties of Municipal Attorney. The municipal
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    • North Dakota Supreme Court
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    ... ... v. Cedar Rapids (Ia.) 113 N.W. 773; Rush v ... Hyattsville (Md.) 81 A. 278; Byrum v. Shawnee ... (Okla.) 200 P. 183; Valentine v. Robertson, 300 ... F. 521; Barrow v. Moffett (Fla.) 116 So. 71; Grabe ... v. Lamso Consol. School Dist. (S.D.) 221 N.W. 697 ... ...
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    • December 7, 1928
    ...direct grant or necessary implication, and the rule of strict construction is applied. Brenham v. German Am. Bk., 144 U.S. 173; Valentine v. Robertson, 300 F. 521; Boise Boise Water Power, 186 F. 705; Omaha Elec. Co. v. City, 179 F. 455; Town of Newport v. Railway, 58 Ark. 270; Spengler v. ......
  • WASHINGTON PUB. POW. SUP. SYS. v. PACIFIC NORTHWEST POW. CO.
    • United States
    • U.S. District Court — District of Oregon
    • May 15, 1963
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  • Reynolds v. Wade
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    • U.S. District Court — District of Alaska
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    ...relation of the corporate taxpayer to the municipal corporation. Crampton v. Zabriskie, 101 U.S. 601, 25 L.Ed. 1070; Valentine v. Robertson, 9 Cir., 300 F. 521. The application of such rule in the State courts is a matter upon which such courts are divided, and plaintiff concedes that the m......
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