Barnes v. Williams

• Decision Date: 03 May 1890
• Citation: 13 S.W. 845,53 Ark. 205
• Parties: BARNES v. WILLIAMS
• Court: Arkansas Supreme Court

13 S.W. 845

53 Ark. 205

BARNES v. WILLIAMS

Supreme Court of Arkansas

May 3, 1890

APPEAL from Sebastian Circuit Court in Chancery, Fort Smith District, JOHN S. LITTLE, Judge.

Appellant Barnes and another, citizens and tax payers of Fort Smith sued appellees, Williams as mayor, Hamilton as clerk, and Davis as treasurer, of Fort Smith, a city of the first class to restrain them from paying to J. C. Peel, city attorney any compensation for his services as such during the term for which he was elected, in excess of the amount to which he was entitled under the ordinance in force when his term began. A temporary restraining order was made at the inception of the suit, but was dissolved on final hearing.

Decree reversed.

Clayton Brizzolara and Forrester for appellants.

1. The city attorney is an officer within the meaning and intent of sec. 926, Mansfield's Digest. Mansf. Dig., sec. 796; 33 Ga. 332; 23 Mo. 22; 8 Cal. 39; 6 Wall. (U. S.), 385; 29 Ohio St. 343; 30 Gratt., 33 and 35.

2. The change to a city of the first class did not invalidate the ordinances in existence, but the same remain in full force and effect until repealed. 38 Kan. 368; 31 Pa. St., 515.

3. The city council cannot increase the salary during the term of office of any city officer. Mansf. Dig., sec. 926; 50 Ark. 81; Endl. Int. Stat., 716, note 3; 50 N. J. Law, 43; 13 A. 30; 11 Cent. Rep., 567; 7 A. 723.

U. M. & G. B. Rose for appellees.

1. The changing of a corporate charter is strictly analogous to the adoption of a new constitution by the State. The previous laws of a general nature remain in force, unless otherwise provided. The old officers go out, and are succeeded by new ones, with new powers, new emoluments and new duties, provided by the new instrument or by new laws. The new corporation selects its officers and fixes their duties and compensation. Nor has this principle been changed by Mansfield's Digest, secs. 727, 728. Peel was elected by the new council, and his salary properly determined by it.

2. A city attorney is not a public officer. His relation is that of attorney to a client -- the city. Mechem on Officers; secs. 1, 2; 103 U.S. 5; 99 U.S. 508; 124 U.S. 303; 124 U.S. 525; 52 N.Y. 478; 11 Am. Rep., 734; 89 N.C. 133; 45 Am. Rep., 677; 21 Ohio St. 14; 8 Am. Rep., 24; 45 Ill. 397; 86 N.C. 235. A person who has work to do, but no official power is an agent or employe and not an officer. Mechem on Officers, supra.

OPINION

HEMINGWAY, J.

That the council of Fort Smith was authorized, while it was a city of the second class, to create the office of city attorney, to prescribe the duties of the incumbent, and fix his compensation, seems to be conceded. While it was such, it passed an ordinance entitled, "An ordinance establishing the office of city attorney;" the ordinance provided, that it should be the duty of the city attorney to attend all regular meetings of the council, to advise the mayor, council, chairman of committees of the council and marshal as to matters of law when requested, and to prosecute or defend, as the case might be, all cases in which the city was plaintiff or defendant; it fixed the term of his office and the manner of his compensation. The title of the ordinance and the character of the duties it devolves, fix the relation of the incumbent to the city as that of an officer.

When the corporation was preparing to organize as a city of the first class, the council passed an ordinance fixing the salaries of its different officers, including the city attorney; this was done in order that such compensation might be made according to the law relating to cities of the first class, which prohibited its being made in fees. This ordinance amended the ordinance establishing the office of city attorney, in so far only as affected his compensation. That it was regularly passed is not denied, and that it was not within the scope...