City of Bryan v. Sims

• Decision Date: 01 January 1879
• Citation: 51 Tex. 532
• Court: Texas Supreme Court
• Parties: CITY OF BRYAN v. PAGE & SIMS.

51 Tex. 532

CITY OF BRYAN

v.PAGE & SIMS.

Supreme Court of Texas.

1879.

APPEAL from Brazos. Tried below before the Hon. Spencer Ford.

The opinion states the case.

John N. Henderson, for appellant.

I. The court erred in rendering its judgment for plaintiffs, the plaintiffs offering no ordinance authorizing the contract by the mayor, or ratifying such a contract. (Charter of City of Bryan, Special Laws 12th Leg., 2d Sess., p. 121; Marsh v. Fulton County, 10 Wall., 677; Cooley's Const. Lim., 2d ed., pp. 195, 204; Zottman v. San Francisco, 20 Cal., 96;Herzo v. San Francisco, 33 Cal., 145; Mayor of Baltimore v. Eschbach, 18 Md., 276;City of Leavenworth v. Rankin, 2 Kan., 357, 371.)

II. The court erred in rendering judgment for the plaintiffs, the defendant having shown by evidence that the city of Bryan never passed an ordinance authorizing the employment of plaintiffs to prepare a professional opinion for the use of defendant on the legality of the municipal election, and the defendant having shown that no ordinance had ever been passed by said city of Bryan ratifying such employment of plaintiffs.

Page & Sims, for themselves.--Appellant, by its mayor, having retained appellees for work in the line of their profession, and secured that work, used and acted upon it in its corporate capacity and had the benefit of it, though a municipal corporation with limited powers, is bound to appellees upon an implied assumpsit, in the absence of any city ordinance authorizing or making the retainer for the reasonable value of the services so rendered. (Lewis v. San Antonio, 9 Tex., 70; Sturtevants v. Alton, 3 McL., 393; Fanning v. Gregoire, 16 How., 524;San Francisco Gas Co. v. City of San Francisco, 9 Cal., 453; (overruled 20 Cal., 33, 96, 134;)Bissell v. Jeffersonville City, 24 How., 300;Supervisors v. Schenck, 5 Wall., 772;Hitchcock v. City of Galveston, 6 Otto, 350, 351;State Board of Agriculture v. Citizens' Street Railroad Co., 47 Ind., 407;Maher v. Chicago, 38 Ill., 266;Argenti v. San Francisco, 16 Cal., 256;Silver Lake Bank v. North, 4 Johns. Ch., 370;De Voss v. City of Richmond, 18 Grat., 338;Zabriskie v. Cleveland and Cincinnati Railroad Co., 23 How., 400;Conley v. Columbus Tap Railroad Co., 44 Tex., 581-583; Parish v. Wheeler, 22 N. Y., 62.)

Appellant, acting in the line of her duties as a deputed arm of government, is limited and restricted to the exercise of her legislative offices by ordinance, as prescribed in her charter; but when appellant assumes the role of a private individual or private corporation, as in the case at bar, she is governed by the general law as to liability for contracts and the mode of fixing such liability. (De Voss v. City of Richmond, 18 Grat., 338; Field on Corp., secs. 259-263, 266, 273; Barry v. Merchants' Exchange Co., 1 Sanf. Ch., p. 280; Brady v. Mayor, &c., 1 Barb., 584; Dill. on Mun. Corp., sec. 371; Ang. & Ames on Corp., secs. 110, 271; Chaffee v. Granger, 6 Mich., 51;Douglass v. Virginia City, 5 Nev., 147;Seibrecht v. New Orleans, 12 La. Ann., 496;Rome v. Cabot, 28 Ga., 50;Miller v. Milwaukee, 14 Wis., 642;Bulkley v. Derby Fishing Co., 2 Conn., 254;Le Couteulz v. City of Buffalo, 33 N. Y., 333; Burrill v. Boston, 2 Clif., 590, 596; Seagraves v. Alton, 13 Ill., 371.) And especially as to contracts with attorneys, see Langdon v. Castleton, 30 Vt., 285;Smith v. Sacramento, 13 Cal., 531;Hornblower v. Duden, 35 Cal., 664; Lewis v. Mayor of Rochester, 9 Com. B., (N. S.,) 401; Attorney-General v. Norwich, 2 Myl. & Cr., 406; Brown on Com. Law, p. 567.

GOULD, ASSOCIATE JUSTICE.

This suit was instituted to recover of the city of Bryan the reasonable value of professional services rendered by the law firm of Page & Sims, in preparing a legal opinion as to the validity of a certain election for municipal officers in said city.

The charter of the city (section 4) provides that “the common council, by ordinances, shall have power as follows”: * * * “Thirty-fifth. In relation to the employment of legal counsel for the assistance of the common council, and to prosecute in behalf of the corporation in criminal cases, and to institute and defend civil suits in their behalf.” The claim of plaintiffs does not rest upon any ordinance of the common council, but upon the action of the mayor in employing them to prepare the opinion, and the subsequent action of the council in availing themselves of the opinion. The evidence not only negatives the passage of any ordinance authorizing or ratifying the employment, but it also negatives any action of the council whatever to that effect, unless such action be inferred from the fact that the opinion was read at a meeting of the council, in connection with an opinion from other attorneys, and that the council acted in accordance with these opinions, holding the election invalid.

We are of opinion that neither the mayor nor the common council were authorized to bind the city by contract for legal counsel for their assistance, no ordinance having been passed in relation to such employment.

The charter gave the power to employ legal counsel, but prescribed that the power be exercised by, or at all events in accordance with, an ordinance of the common council. The charter--the source of all the power of the mayor or council over the subject--having limited the mode of its exercise, they could not in a different mode make a valid contract; nor could they by any subsequent approval or conduct impart validity to such contract. As without an...