State Bank of Burleigh County Trust Co. v. City of Bismarck By and Through Bismarck Bd. of City Com'rs, 10091

• Decision Date: 17 February 1982
• Docket Number: No. 10091,10091
• Citation: 316 N.W.2d 85
• Parties: STATE BANK OF BURLEIGH COUNTY TRUST COMPANY, a North Dakota Banking Corporation, Plaintiff, Appellee and Cross-Appellant, v. CITY OF BISMARCK, a municipal corporation, acting By and Through the BISMARCKBOARD OF CITY COMMISSIONERS, Defendant, Appellant and Cross-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 85

316 N.W.2d 85

STATE BANK OF BURLEIGH COUNTY TRUST COMPANY, a North Dakota Banking Corporation, Plaintiff, Appellee and Cross-Appellant, v. CITY OF BISMARCK, a municipal corporation, acting By and Through the BISMARCKBOARD OF CITY COMMISSIONERS Defendant, Appellant and Cross-Appellee.

Civ. No. 10091.

Supreme Court of North Dakota.

Feb. 17, 1982.

Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for plaintiff, appellee and cross-appellant; argued by David L. Peterson, Bismarck.

John A. Zuger, City Atty., Zuger & Bucklin, Bismarck, for defendant, appellant and cross-appellee.

PEDERSON, Justice.

This is an appeal by the City of Bismarck from a judgment declaring part of an alley vacated and awarding costs of $1,439.50, and a cross-appeal by the State Bank of Burleigh County from that part of the judgment which failed to award attorney's fees. ¹ We affirm the judgment.

Suit was brought by the Bank seeking declaratory relief. A court has discretionary power to render a declaratory judgment when it will determine a justiciable controversy. Section 32-23-06, NDCC, and Rule 57, N.D.R.Civ.P. Both the Bank and the City moved for summary judgment, supported by affidavits and depositions. Rule 56, N.D.R.Civ.P. The documentary evidence is extensive, confusing, and does little to clarify the events that provoked this lawsuit. No issues have been raised as to the propriety of declaratory relief or summary judgment.

Although we periodically say that it is important to reach the merits of appeals whenever possible, e.g., Dossenko v. Dossenko, 294 N.W.2d 909 (N.D.1980), and Ingalls v. Bakken, 167 N.W.2d 516, 519 (N.D.1969), we must first address the Bank's two motions: (1) that the City be required to file an undertaking pursuant to § 28-27-09.1, NDCC, and (2) that the appeal be dismissed because it was taken without formal action by the board of city commissioners at an open meeting as allegedly required by Article XI, §§ 5 and 6, of the North Dakota Constitution, and § 44-04-19, NDCC.

MOTION TO REQUIRE UNDERTAKING

Section 28-27-09.1, NDCC, was enacted in 1971. It provides:

"When the state, or any state officer, or state board, in a purely official capacity, or any public corporation, or any municipal corporation within the state, shall take an appeal, service of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from and no undertaking need be given, but the supreme court on motion may require sureties to be given in such form and manner as it shall prescribe as a condition of the further prosecution of the appeal." (Emphasis supplied.)

Rule 62, N.D.R.Civ.P., was adopted by this court in 1957, and provided in part:

"(e) Stay in Favor of the State or Agency Thereof. When ... the judgment is stayed, no bond, obligation, or other security shall be required from the appellant."

Section 28-2719 of the North Dakota Revised Code of 1943 was superseded by Rule 62(e). The superseded statute previously provided that:

"When the state ... shall take an appeal, service of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from and no undertaking need be given, but the supreme court on motion may require sureties to be given in such form and manner as it shall prescribe as a condition of the further prosecution of the appeal."

Section 28-2709, NDRC, 1943, was not superseded by the Rules of Civil Procedure. In 1971 it provided:

"To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by at least two sureties to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal not exceeding two hundred fifty dollars."

Section 28-2711, NDRC, 1943, was, however, superseded by Rule 62(d). Section 28-2711, before it was superseded, provided:

"If the appeal is from a judgment directing the payment of money, it shall not stay the execution of the judgment unless an undertaking is executed on the part of the appellant by at least two sureties to the effect that if the judgment appealed from, or any part thereof, is affirmed the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it is affirmed only in part, and all damages, which shall be awarded against the appellant on appeal."

Rule 62(d) provided:

"(d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court."

From 1957 to 1971 there was, accordingly, no statute or rule automatically staying a judgment when the state or its agencies and subdivisions took an appeal. ²

Presuming that § 28-27-09.1 is valid and applicable as the parties presumed, we decline to require the City to provide sureties in this case. In one of the earliest cases determined by this court applying territorial law, it was said:

"But it is the policy of this jurisdiction that no security need be given to obtain a stay of execution pending an appeal, where the appellant, as in this case, is a municipal corporation. The reason is obvious. No security on appeal could make the judgment any more secure." Territory v. Woodbury, 1 N.D. 85, 44 N.W. 1077, 1078 (1890).

The Bank has not explained to us how sureties would be beneficial to the Bank in collecting any damage claim that it might have against the City. We accordingly apply the exemption provided by § 28-27-09.1 as recognized in Rule 7, N.D.R.App.P., and Rule 62(e), N.D.R.Civ.P., and decline to require sureties.

MOTION TO DISMISS APPEAL

The Bank's motion that we dismiss the City's appeal raises unique questions not heretofore considered by this court. It is argued by the Bank that the city commissioners must specifically authorize the city attorney to appeal, and that the authorizing action must be taken at an open meeting as required by Article XI, §§ 5 and 6, of the North Dakota Constitution, and § 44-04-19, NDCC.

The governing body of a city may regulate the operations, management and organization of all the departments and agencies created by it for administration of the city's affairs. Section 40-09-14, NDCC. The duties and powers of municipal officers, which are not defined in Title 40, NDCC, shall be defined by the governing body. Section 40-13-11, NDCC. Section 40-15-05(3), NDCC, provides for the appointment of a city attorney under the commission system. The duties of a city attorney are listed in § 40-20-01, NDCC, and include the duty to: "Conduct all law business in which the city or any of its departments shall be interested."

In the absence of a showing that the governing body intends otherwise, we see no reason to limit the authority of the city attorney to the conduct of law business at the trial level only. As a general rule, a city attorney has the same powers with regard to the city as a private attorney has with regard to a private client. See generally, 64 C.J.S. Municipal Corporations, § 2206; 56 Am.Jur.2d Municipal Corporations, Etc., § 282; Annotation-Doctrine of Apparent Authority as Applied to Agent of Municipality, 77 A.L.R.3d 925.

In Rolfstad, Winkjer, Suess, McKennett & Kaiser v. Hanson, 221 N.W.2d 734, 736 (N.D.1974), this court said:

"The authority of the lawyer to act for his client stems from the law of agency. (Citation omitted.) However, there are certain aspects of the attorney's authority that must be inherent and peculiar to the attorney-client relationship. Where a duly licensed attorney at law appears in an action or proceeding, it is presumed that he has authority to appear for the person for whom he assumes to act. (Citations omitted.) The business of the courts must proceed on this presumption. In addition, the client may ratify acts of the attorney not otherwise authorized, by acquiescence over an extended period, with full knowledge of the facts."

The Supreme Court of Arkansas has said that:

"... it is incumbent on the party undertaking to question the authority of the attorney representing his adversary, to show to the Court by affidavit, facts sufficient to raise a reasonable presumption that the attorney is acting in the case without authority from the party he assumes to represent, then, and not until then, the attorney may be required to show his authority." Campbell v. City of Hot Springs, 341 S.W.2d 225, 227 (Ark.1960).

In dismissing an appeal because it had not been authorized by the governing body of the city, the South Dakota Supreme Court said:

"... the power to control litigation on behalf or in the interests of a municipal corporation ... rests solely with the ... (governing body)." Shaw v. Common Council of City of Watertown, 75 S.D. 241, 63 N.W.2d 252, 255 (1954).

Later, in City of Redfield v. Wharton, 79 S.D. 557, 115 N.W.2d 329 (1962), the same court reversed a dismissal even though prosecution by the city attorney had not been "directed by the governing body," explaining that action by the governing body is unnecessary when the activity involved is a duty imposed on the city attorney by statute.

The statutory duty of a city attorney to "conduct all law business in which the city or any of its departments shall be interested," is broad and general. The Bank would have us rely upon Green v. Beste, 76 N.W.2d 165 (N.D.1956), in construing the statutory authority of the city attorney narrowly. The Bank does not suggest where the Legislature may have intended that the line be drawn except that it should exclude "appeals." In Green v. Beste this court described powers of creatures of statute which are "expressly or impliedly conferred." Although we conclude that an appeal is germane to and...