City Of Charleston S v. Littlepage

• Citation: 73 W.Va. 156
• Court: Supreme Court of West Virginia
• Decision Date: 04 November 1913
• Parties: City of Charleston et als v. Littlepage, Judge.

73 W.Va. 156

City of Charleston et als

v.Littlepage, Judge.

Supreme Court of Appeals of West Virginia.

Submitted October 27, 1913.

Written Opinion Rendered November 4, 1913.

1. Municipal Corporations Employment of Attorney Authority

Contract.

The employment of an agent or attorney to perform a special service for a municipal corporation need not, in the absence of a statute requiring it, be evidenced by a formal ordinance, by-law, or resolution, nor is it essential that it be in writing. (p. 158).

2. Prohibition Conditions Precedent Discretion.

The rule under which a supervising court sometimes requires an applicant for a writ of prohibition first to make application to the lower court for discontinuance or vacation of the proceeding or action complained of on the ground of lack of jurisdiction, is a discretionary one of courtesy and deference to the court below, and does not apply if it appears in any manner that such court has acted deliberately or has considered the question of its jurisdiction and intends to proceed." (p. 159).

3. Courts Prohibition Jurisdictional Facts Time for Consideration

of Pleading.

When the jurisdiction of a court depends upon the existence of facts, it has no right or power to proceed or act upon a pleading which does not substantially set forth such facts, and, if it has acted upon such insufficient pleading, its claim of right to time for consideration of the sufficiency thereof does not justify or sustain its action in refusing to vacate the void order. (p. 162).

4. Municipal Corporations Powers Control by Courts.

In the absence of a statutory right of supervision or control, a court cannot, at the instance of citizens and tax payers, in any manner restrain or control the governing body of a municipal corporation, in the exercise of powers and functions vested in it by law, whether the discretion and power so vested is legislative, executive or administrative. (p. 164).

Petition for writ of prohibition by the City of Charleston and others against Hon. Samuel D. Littlepage, Judge, etc., and others. Writ Awarded.

J. E. Chilton and John Baker White, for petitioners.

B. T. Clayton, Jones, Murphy & Ballard, Morgan & Morgan, and C. J. Vian Fleet, for respondents.

pofpenbarger, president:

The circuit court of Kanawha county having provisionally enjoined the City of Charleston, the members of its Board of Affairs and Council from consideration of a certain ordinance and action thereon, granting a franchise to the West Virginia Water & Electric Company, securing to it privileges in the city streets and alleys for pipe lines for supplying the city and its inhabitants with water, obligating the city to take a certain number of hydrants at specified rentals and prescribing rates and regulations for supply of water to the inhabitants of the city, and from passing said ordinances, it being then pending in the council, the city and others of the defendants applied to this Court for a writ of prohibition, to restrain the judge of said court and the plaintiffs in the said bill from enforcing the injunction and from further procedure upon the bill.

Before this action was taken, certain members of the council and the West Virginia Water & Electric Company appeared and filed demurrers to the bill. Chilton, MacCorkle & Chilton tendered a demurrer on behalf of the City, the Board of Affairs and Council which was objected to on the ground of alleged lack of authority in the attorneys to appear for the city and the court took the objection under advisement. Thereupon and on the same day, four members of the council moved the court to dissolve the injunction, which motion the court overruled. The return sets up the alleged failure of the City, its Board of Affairs and Council, to appear and demurr to the bill or move to dissolve the injunction, as matter for abatement of the rule, and an affidavit was filed showing a search of the records of the meeting of the Board of Affairs had disclosed no order or entry appointing or employing J. E. Chilton, a member of said law firm, who actually appeared for the City, an attorney for the Board of Affairs nor any authority in him to appear on behalf of the city in said cause, or to appear for it in this proceeding to prohibit the prosecution of the injunction bill.

The effort to show such lack of authority apparently proceeds upon the assumption that the employment of the attorney must have been made a matter of record. He is not acting in the capacity of an officer, either elective or appointive. He is a mere employee or agent and a municipal corporation, in the absence of a statutory restriction upon its powers, may make verbal contracts for such employment, just as private corporations and individuals may. '' The contract need not be in writing, except where so required by statute or ordinance. So the employment, in the absence of statutory or charter provisions, need not necessarily be by a formal ordinance, by-law, or resolution. * * * An implied request for services, as well as an implied promise to pay therefor, may be raised against a municipality, the same as against an individual, by circumstances." 28 Cyc. 586. A statute requiring all officers not otherwise elected to be elected by the general council does not apply to mere clerks and employes, or laborers, whose appointment may be made in such manner as the council shall designate. Lowry v. Lexington, 113 Ky. L. R. 763. That such contracts to be valid need not be made matter of record is well established. Boss v. City of Madison, 1 Ind. 281; Langsdale v. Bouton, 12 Ind. 469; Indianapolis v. Sheen, 17 Ind. 628; McCabe v. Commissioners, 46 Ind. 383; Logansport v. Dykeman, 116 Ind. 15; Wilt v. Town of Bedkey, 29 Ind. App. 199. A verbal employment of an attorney was made in Board v. Sackrider, 35 N. Y. 154, and the court found no fault with the employment on account of its form, or rather for lack of writing or matter entered of record, but declared the action of the attorney in bringing the suit void, because the commissioners had not first determined to institute it, but had left it in his discretion to do so. As the Board of Affairs clearly had the power to make a verbal contract of employment with the attorney to represent the city, the failure of its record to disclose an order, resolution or entry of such employment does not disprove its existence, and no other evidence is offered. When an attorney appears for a client, there is a presumption in favor of his employment which must be overcome with proof, before the court can deny him the privilege of representing his client. State v. Ehrlick, 65 W. Va. 700; Mullin v. United States, 118 U. S. 271; Railroad Co. v. United States, 108 U. S. 512. The general rule is that the question of an attorney's authority to represent an alleged client can only be raised on a motion directly made for that purpose and supported by affidavit, after notice of the motion. 4 Cyc. 931. In view of these principles and authorities, it is clear that the authority of the attorney to appear here for the city of Charleston has not been successfully denied or questioned.

If the circuit court had cognizance of the matter in which the attorney appeared, the judge thereof would likely have been entitled to time for consideration of the objection informally made; but, if the cause was not within its jurisdiction, he could not bring it within it by his claim of right to time for consideration of the objection. Courts always pass upon questions of their own jurisdiction at their peril, and an erroneous decision on that point avails nothing. However, as the court's alleged lack of jurisdiction was brought to its attention by the demurrer of four members of council and the corporation seeking the franchise, and the motion of the four members of the council to dissolve the injunction, it is immaterial whether the city properly filed its demurrer or not. It is not the purpose of the rule, under which we sometimes require want of jurisdiction in the lower court to be brought to its attention as a condition precedent to the application for the writ of prohibition, to require the question of jurisdiction to be there litigated and decided for review here, but only to give that court an opportunity to correct its act in excess of its jurisdiction, due to misapprehension or oversight or some other adventitious circumstance. The rule is a mere exercise of the discretion of this Court and is not in any sense rigid or arbitrary. Its application is clearly unnecessary in any instance in which the intention of the inferior court to act beyond its jurisdiction is made apparent in any way. The rule was first announced by this Court in Board v. Holt, 51 W. Va. 435, and it was there characterized as a rule of courtesy, or deference to the judge below. In Board v. Holt, 54 W. Va. 167, it was not applied because deliberate action on the part of the judge was apparent. It was applied in Jennings v. Judge, 56 W. Va. 146, because it was apparent the decree complained of had been inadvertently entered. At least there was nothing to show it had not been so entered. The necessity of application to the court below in any case was denied in Swiriburn v. Smith, 15 W. Va. 483; Hein v. Smith, 13 W. Va. 358; Supervisors v. Gorrell, 20 Gratt. 484. Here it appears beyond question that the court's alleged want of jurisdiction had been brought to its attention. Demurrers to the bill, sufficient to raise the jurisdictional question, had been filed, and the court had overruled a motion to dissolve the injunction, made by the parties to the bill, having a right to appear and make the motion. Hence there is a clear lack of just grounds for application of the discretionary rule of courtesy.

Suing as residents, citizens, qualified voters, householders and freeholders, the plaintiffs charged in their bill intent and purpose on the part of the council of the city to create an unconstitutional debt by the passage of the...