May v. City of Auburn

• Decision Date: 09 July 1914
• Parties: MAY v. CITY OF AUBURN.
• Court: Maine Supreme Court

91 A. 177

112 Me. 143

MAY

v. CITY OF AUBURN.

Supreme Judicial Court of Maine.

July 9, 1914.

Action by Seth May against the City of Auburn. Judgment for plaintiff for a part of the amount sued for.

Argued before SPEAR and CORNISH, KING, BIRD, HALEY, and HANSON, JJ.

Seth May, of Auburn, pro se. Tascus Atwood, of Auburn, for defendant.

CORNISH, J. The plaintiff was city solicitor of Auburn for the municipal year March, 1912, to March, 1913. At a legal meeting of the city council held on January 6, 1913, it was voted that "efforts be made to secure either a general law, which would apply to all cities and towns, or a special act which will authorize our city to acquire or control private cemeteries by purchase or eminent domain and that the city solicitor be directed to present the matter to the Legislature."

Pursuant to this vote, the plaintiff prepared a bill for the purpose and presented the matter in behalf of the city at a hearing before the judiciary committee of the Legislature. For this service he seeks to recover in this action the sum of $35. The defendant raises no objection to the amount of the charge if legally collectible, but contends that the services rendered were embraced in his duties as city solicitor, for which he received a stated salary, and therefore no separate charge could be made therefor. That is the single issue involved. The other items in the account are for cash disbursements, and these are not disputed. A fair and reasonable construction of the city ordinances relating to the duties of the city solicitor sustains the contention of the defendant. Chapter 10, § 1, provides:

"The city solicitor shall be an attorney and counselor at law of the courts of the state. He shall act as the legal adviser and solicitor of the city, except in special cases in which the city council may authorize or require him to secure the advice or services of such additional counsel as may be deemed best."

Section 2:

"No money shall be paid from the city treasury for any legal advice or services, except as expressly authorized by this ordinance."

Section 4, after reciting several duties in detail, concludes with this general and comprehensive clause:

"And do all professional acts incident to the office or which may be required of him by the mayor, city council or either branch thereof, or any committee thereof, or any administrative board or officers of the city."

The service under consideration clearly fell within these provisions. The drafting of a legislative act authorizing a city to acquire or control private cemeteries by purchase or eminent domain, and the presentation of the matter to the...