City of Denver v. Webber

• Decision Date: 10 December 1900
• Parties: CITY OF DENVER v. WEBBER. [1]
• Court: Colorado Court of Appeals

63 P. 804

15 Colo.App. 511

CITY OF DENVER v. WEBBER. ^[1]

Court of Appeals of Colorado

December 10, 1900

Appeal from district court, Arapahoe county.

Action by Dewitt C. Webber against the city of Denver. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Geo. C. Norris, Emerson J. Short, Jas. M Ellis, City Atty., and Guy Le R. Steavick, for appellant.

Geo. Q Richmond, for appellee.

WILSON J.

Plaintiff sues to recover from the defendant city the value of legal services rendered by him under an alleged appointment by the town of Colfax as special counsel in litigation arising from proceedings for the annexation of said town to the city of Denver. No question is raised as to the rendition of the services nor their value. Neither is there any question as to the city of Denver being the proper party defendant, the annexation having been complete. Counsel for defendant very properly suggest in their briefs that the assignments of error are embraced in, and may be discussed under, three heads: (1) There was no prior appropriation covering the expense; (2) there was no valid contract of employment of the plaintiff; (3) the town council did not have authority to employ the plaintiff. We shall consider these questions in the inverse order of their presentation.

1. Towns and cities, from a very remote period of time, have been invested to some extent with local jurisdiction. In Rome municipal corporations existed and were recognized and provided for by Roman law. Then, as now, they were created in furtherance of the principle of local self-government. Their objects then, as now, were to invest them with such powers, and impose upon them such duties, as might be necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals order, comfort, and convenience, of their inhabitants. These are expressly declared by the statute of this state to be the primary objects and duties of such corporations. Gen.St. § 3313; 2 Mills' Ann.St. § 4431. As a broad general rule such corporations are entitled to exercise only the powers with which they are specifically invested by the legislative authority which creates them. It being impossible, however, for the legislature to foresee and provide for every contingency which might arise in the government of a town or city, it has long since been settled, and is now the universal rule, supported by an unbroken line of authority, both in England and America, that such corporations can also exercise those powers necessarily or fairly implied in, or incident to, the powers expressly granted, and those essential to the declared objects and purposes of the corporation, so as to enable it to discharge the duties expressly imposed upon it, and exercise the powers granted in express words. One of these powers, necessarily and plainly implied and clearly essential to the proper discharge of its duties, is, in the absence of express legislative restriction, the power to employ special counsel to appear in litigation in which it may be involved, when, in the exercise of a reasonable discretion, the interest of a municipality may require it. This results from the power with which the corporation is invested to make contracts, to own property, and to incur liabilities, in the exercise of which the corporation is liable at any time to be involved in litigation in courts where the respective rights of the parties must be ultimately determined. 1 Dill. Mun. Corp. (4th Ed.) § 479; Rice v. Gwinn (Idaho) 49 P. 412; Smith v. Mayor, etc., 13 Cal. 532; City of Memphis v. Adams, 9 Heisk. 526; Tied. Mun. Corp. § 176. As aptly said in Smith v. Mayor, etc., supra: "The duty of protecting the public property carries along with it the duty to employ the usual means of protecting it. Legal assistance stands as a means for the protection of property in direct relation to the general power to hold, acquire, preserve, and protect it." And this is true, even where the corporation has its regularly elected or appointed attorney. Smith v. Mayor, etc., supra; Tied. Mun. Corp. supra. In this state there is no restriction upon such appointment by statute. The latter simply provides that a board of trustees of an incorporated town shall appoint a town attorney, and shall prescribe the duties of his office. The city relies, however, in this case, upon a resolution of the board of trustees of the town of Colfax, which attempted to specify the duties to be performed by the town attorney, and, among other things, required that he should "represent the town in all legal proceedings before any and all courts of the state in which it may become involved." This did not, either in terms or by implication, exclude the employment of other counsel. If the contention of defendant be correct, a most anomalous condition of affairs would exist. Litigation of great importance to the municipality might arise, involving large interests, and, even though it might be deemed patent that the town attorney should and ought to have assistance, the municipality would be powerless to act. Again, the town attorney might fail or refuse to appear for or represent the town, and yet it could do nothing to have the important interests of its people looked after and represented in the courts by the only person whom it could have,--a licensed attorney at law. Surely, it was never the intention of the legislature to permit such a condition of affairs to be brought about. Indeed, in this case it was alleged in the pleadings, and not denied, that the town attorney appeared in the courts in behalf of the protestants against annexation, which had been approved by a majority vote of the people of the town and by the board of trustees. Should the board of trustees have quietly acquiesced, and seen their own wishes, and the wishes of the people for whom they were trustees, thwarted? The question suggests its own answer in reason, common sense, and in law. If such were the case, the employé would be more powerful than the employer. There would be no need of a board of trustees in much of the important business of the corporation, the town attorney being invested with the sole power and authority to bind the corporation and its people in all litigated matters. Besides, the town attorney of an incorporated town holds his position solely at the will and pleasure of the board of trustees. He may be, at any time, by either ordinance, resolution, or any form of corporate action showing clearly the intent of the corporate authorities, devested of any or all power, and relieved from the discharge of any or all duties, theretofore imposed upon him. We think it beyond dispute that the corporate authorities of the town have, in proper cases, the implied power to employ special counsel in its litigation, being responsible only for a reasonable exercise of that power.

2. The next contention of defendant is that "there was no valid contract of employment of the plaintiff." This grows out of the following state of facts: The corporate authority of the town was invested in a board consisting of one mayor and six trustees. Laws 1889, p. 454; 2 Mills' Ann.St. § 4508. The statute provides that, on the passage or adoption of every by-law or ordinance and every resolution or order to enter into contract by a board of trustees, the yeas and nays shall be called and recorded, and that there shall be necessary to its passage or adoption the concurrence of a majority of the whole number of members elected to the council. Waiving the question, which we do not decide, as to whether the employment of plaintiff in this case was such an entering into contract as was contemplated by the statute and intended by the legislature, we will consider it as if such was the case. The first action taken in the premises was at a meeting of the board of trustees, regularly convened, when a resolution was introduced which, after reciting that, at a special election held in the town, a majority of the legal votes cast was for annexation, and that the board of trustees had heretofore recommended to the county court that the report of such election signed by the mayor and clerk, under the seal of the town, should be...