Smedley v. Kirby
| Decision Date | 23 May 1899 |
| Citation | 120 Mich. 253,79 N.W. 187 |
| Court | Michigan Supreme Court |
| Parties | SMEDLEY v. KIRBY. |
Certiorari to circuit court, Ottawa county; Philip Padgham, Judge.
Application for mandamus by Charles O. Smedley to compel Thomas E. Kirby clerk of the city council of Grand Haven, to draw a warrant. Writ denied. Upon certiorari to the supreme court, order reversed.
Smedley & Corwin, for appellant.
Charles E. Soule and Walter I. Lillie, for appellee.
In June, 1898, the common council of the city of Grand Haven passed a resolution to transfer from the contingent fund of said city in the hands of its treasurer, and to divide between and add to several other city funds, the sum of $7,000. The mayor, Baar, attempted to veto the resolution but the clerk, Kirby, refused to file it, and the mayor employed Smedley to institute mandamus proceedings to compel it. This was done, and they were successful. The case reached this court, and will be found reported in Baar v Kirby, 76 N.W. 755. A similar proceeding was commenced against the council, but it was not brought to this court. The employment of Smedley by the mayor was not authorized by the council, but it is claimed that the mayor had authority to employ counsel, inasmuch as the city attorney was in sympathy with the resolution vetoed, and took the side of the council and clerk in the matter.
In November, 1898, Smedley presented a bill against the city for $349.50 for his services in the two cases mentioned, and another bill against the clerk for $37.80, the costs of this court taxed in the case of Baar v. Kirby. These claims are said not to have been verified as required by section 20, c 8, Act No. 215, Laws 1895, p. 416, but the record indicates that they were. They were referred to the finance committee of the council, with the city attorney added, for examination and report. This committee reported at a subsequent meeting in substance, that: First, the city had not employed Smedley, and was under no obligation to pay his bill; second, a reasonable sum should be allowed the mayor to pay his (the mayor's) attorney fees; third, they recommended that the mayor be allowed $37.80 to pay the bill of costs against the clerk, and $50 for all other legal expenses in his mandamus suits; fourth, nothing should be allowed to Smedley on his bills. Alderman Vos moved to amend this by a resolution allowing $349.50 to the mayor, with which to pay his attorney fees in the case against Kirby. This motion was voted upon by the aldermen, and resulted in a tie. The mayor voted for it, and declared the motion carried. The same course was taken on the motion as amended. Subsequently four members of the council commenced mandamus proceedings against the mayor to compel him to rescind his action in declaring the motions carried, and a few days later this application was filed by Smedley to compel the clerk to draw the warrant for $349.50. In the former, issues were framed and evidence was taken, while the latter was heard upon petition and answer. They were heard together, and the circuit judge makes returns of the proceedings and final order in each. The return states as a reason for denying the writ in this case that the two cases were heard together, and the facts brought out in the Bishop Case were considered in disposing of this. In short, they seem to have been treated as one case, and, while the Bishop Case was not brought here by a separate writ, the matter is all before us. It is manifest that the meritorious question is the same in both, viz. whether the...
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