Dougherty v. City of Excelsior Springs

Decision Date19 December 1904
CourtMissouri Court of Appeals
PartiesDOUGHERTY v. CITY OF EXCELSIOR SPRINGS.<SMALL><SUP>*</SUP></SMALL>

Smith, P. J., dissenting.

Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Action by John Dougherty against the city of Excelsior Springs. From a judgment for plaintiff, defendant appeals. Affirmed.

Harris L. Moore, for appellant. Simrall & Trimble, for respondent.

ELLISON, J.

I believe the judgment of the trial court should be affirmed. The statute applicable (section 5907, Rev. St. 1899) reads that: "In case a city attorney has been appointed, the mayor and board of aldermen may, if they deem it necessary, employ additional counsel, and pay them reasonable compensation for any legal services demanded by the city." As stated by Judge Smith, the board of aldermen consisted of four members, and three of these were present at the meeting which allowed plaintiff's account, two of them voting "Yes" and one voting "No." The three, being a majority of the whole body, constituted a quorum, and, the two voting "Yes" being a majority of that quorum, made a valid action of the board of aldermen. 1 Dillon on Munic. Corp. §§ 278-282. It is not necessary that a majority of the whole body favor a measure, unless the law governing such body so declares. On the contrary, it is only necessary that a majority of those present (if they constitute a quorum) should favor the measure.

Affirmed.

BROADDUS, J., concurs.

* Rehearing denied February 27, 1905.

SMITH, P. J. (dissenting).

The plaintiff, an attorney at law, sued the defendant, a statutory city of the fourth class, to recover the sum of $150 for alleged legal services rendered the latter by the former. The trial court gave judgment in favor of plaintiff on the following statement of "facts agreed": (1) The mayor of defendant city employed plaintiff to represent it — the city — as legal counsel in a certain damage suit. (2) That, after the plaintiff had performed the services required of him by said employment, he presented to defendant an account therefor for $150, and at a regular meeting of its board of aldermen the said account was by said board allowed, and a warrant was ordered to be drawn on the city treasury therefor. (3) The warrant was subsequently drawn in due and regular form, signed by the mayor, and attested by the clerk, and presented to the treasurer, but not paid for lack of funds. (4) The record of the proceedings of the board of aldermen showed that "the account of Dougherty & Fowler, attorneys for the city in the Leabo case, for $300, was presented, and on motion was allowed by the following vote: Combs, yes; King, yes; Bangs, no." It was agreed that the above entry was the only record either of any warrant, for the issue of any warrant, or for allowing the bill, and the only one that referred to it. (5) That the damage suit was for $5,000, and amount recovered $150. That the fee charged by plaintiff was reasonable.

The statute (section 5907, Rev. St. 1899) provides that in case a city attorney has been appointed the mayor and board of aldermen may, if they deem it necessary, employ additional counsel, and pay them a reasonable compensation, for any legal services demanded by the city. We may perhaps presume that at the time of the plaintiff's alleged employment by the mayor a city attorney had been duly appointed and was performing the duties of that office. It has been seen from the facts agreed that the plaintiff's employment as additional counsel for defendant was made by the mayor only, and not by the mayor and board of aldermen, as required by the statute just referred to. The law is well settled that when special powers are conferred, or where a special method is prescribed for the exercise and execution of a power, this brings the...

To continue reading

Request your trial
16 cases
  • Hight v. City of Harrisonville
    • United States
    • Missouri Supreme Court
    • July 29, 1931
    ... ... Martin, 95 Mo. App. 28; Heidelberg v. St. Francois County, 100 Mo. 69; Dougherty v. Excelsior Springs, 110 Mo. App. 623; State ex rel. St. Louis Transfer Co. v. Clifford, 228 Mo ... ...
  • Hight v. City of Harrisonville
    • United States
    • Missouri Supreme Court
    • July 29, 1931
    ... ... Martin, 95 Mo.App. 28; ... Heidelberg v. St. Francois County, 100 Mo. 69; ... Dougherty v. Excelsior Springs, 110 Mo.App. 623; ... State ex rel. St. Louis Transfer Co. v. Clifford, ... ...
  • City of Springfield v. Monday
    • United States
    • Missouri Supreme Court
    • February 7, 1945
    ... ... City of Hannibal v. Smith, 335 ... Mo. 825, 74 S.W.2d 367; State ex rel. Excelsior Springs ... v. Smith, 336 Mo. 1104, 82 S.W.2d 37; Grossman v ... Public Water Supply District ... Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896, 898 ... See, also, Dougherty v. Excelsior Springs, 110 ... Mo.App. 623, 85 S.W. 112; Taylor v. Dimmitt, 326 Mo ... 330, 78 ... ...
  • Kroger Grocery & Baking Co. v. City of St. Louis
    • United States
    • Missouri Supreme Court
    • June 21, 1937
    ... ... Strodtman (Banc), 323 ... Mo. 161, 167(II), 18 S.W.2d 896, 898(II) (quoting ... Dougherty v. Excelsior Springs, 110 Mo.App. 623, ... 626, 85 S.W. 112, 113, to the effect that when special ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT