Dougherty v. City of Excelsior Springs
| Decision Date | 19 December 1904 |
| Citation | 85 S.W. 112,110 Mo.App. 623 |
| Parties | JOHN DOUGHERTY, Respondent, v. CITY OF EXCELSIOR SPRINGS, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Clay Circuit Court.--Hon. J. W. Alexander, Judge.
AFFIRMED.
Harris L. Moore for appellant.
(1) In the present state of the decisions in this State there can be no question that unless the issuance of the warrant to plaintiff is a ratification of his claim by the city he has no grounds whatever for recovery. Crutchfield v Warrensburg, 30 Mo.App. 456. (2) The warrant introduced into evidence in this case did not constitute a ratification of plaintiff's claim by the city, because the city was not only without power to give life to a void claim against itself but section 6759, Revised Statutes 1899, in express terms prohibits such action on the part of the city. Cheeney v. Brookfield, 60 Mo. 53. (3) In order to have given the plaintiff a valid claim against the city a contract on an ordinance was necessary, the warrant was issued on a motion voted for by exactly one-half of the members elected to the board of aldermen.
Simrall & Trimble for respondent.
(1) The mayor and board of aldermen of the city were authorized by law to employ counsel and pay reasonable compensation for legal services demanded by the city. R. S. 1899, sec. 5907. (2) The cases cited by appellant are not parallel cases and hence not in point. In the case of Crutchfield v Warrensburg, 30 Mo.App. 456, there was no employment of the attorney by the city, there being merely an implied contract. In that case also the court held that there was nothing done by the city to indicate a ratification. In the case of Cheeney v. Brookfield, 60 Mo. 53, the court held that the end sought to be accomplished was not within the scope of its powers. (3) The board of aldermen having found that the city was indebted to respondent, it was its duty under the law to issue a warrant for such indebtedness. R. S. 1899, sec. 6147. (4) To affirm this case it is not necessary to recognize the doctrine of implied contracts upon the part of municipal corporations. In this case there was a contract. The agreed statement of facts says so. The board of aldermen recognized the contract as binding and in the absence of any affirmative evidence that it was not binding their finding must prevail. (5) Respondent should have affirmatively pleaded in its answer that the contract was not in writing if it desired to make that defense. The agreed statement admits the contract. Nor was any objection made to the evidence. Hinkle v. Karr, 148 Mo. 43; Lammers v. McGeehan, 43 Mo.App. 664. (6) The employment of respondent to represent the city in a damage suit against it was expressly authorized by section 5907, Revised Statutes 1899. Section 6759, Revised Statutes 1899 does not apply to such employment.
The plaintiff, an attorney at law, sued the defendant, a statutory city of the fourth class, to recover the sum of one hundred and fifty dollars 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."
I. The mayor of defendant city employed plaintiff to represent it--the city--as legal counsel in a certain damage suit.
II. 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.
III. 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.
IV. The record of the proceedings of the board of aldermen showed that 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.
V. That the damage suit was for $ 5,000 and amount recovered $ 150. That the fee charged by plaintiff was reasonable.
The statutes, section 5907, Revised Statutes, 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 that 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 exercise of such power within the provision of the maxim expressio unius, etc., and by necessary implication forbids and renders nugatory the doing of the thing specified except in the particular way pointed out. [Kolkmeyer v. Jefferson City, 75 Mo.App. 678; McKissick v. Mt. Pleasant Twp., 48 Mo.App. 416; Heidelberg v. St. Francois Co., 100 Mo. 69, 12 S.W. 914.] The mayor can make no valid appointment or employment of any of the officers or persons referred to in section 5907, supra, without the consent and approval of a majority of the members elected to the board of aldermen. It is, therefore, obvious that the employment of the plaintiff by the mayor was invalid for the want of the concurrence of the majority of the board of aldermen. The consent and approval by the latter was essential to give it validity. [Eichenlaub v. St. Joseph, 113 Mo. 395, 21 S.W. 8.]
But it may be contended that even though the employment by the mayor without the consent and...
To continue reading
Request your trial