Tate v. Johnson

• Decision Date: 17 May 1919
• Parties: WILBUR J. TATE, Respondent, v. LOUISE JOHNSON, as Treasurer of Boise City, Idaho, Appellant
• Court: Idaho Supreme Court

181 P. 523

32 Idaho 251

WILBUR J. TATE, Respondent, v. LOUISE JOHNSON, as Treasurer of Boise City, Idaho, Appellant

Supreme Court of Idaho

May 17, 1919

MUNICIPAL CORPORATIONS-POWERS OF-RATIFICATION-PRIVATE DETECTIVE.

1. C L., sec. 148:60 (Sess. Laws 1913, chap. 74, sec. 27), is not inconsistent or in conflict with any of the provisions of C L., chap. 162 (Sess. Laws 1911, chap. 82), generally known as the Black Law, and therefore applies to and governs cities of the first class operating under the Black Law.

2. The mayor of a city governed by the Black Law has no power to engage the services of private detectives for the purpose of aiding in discovering and prosecuting alleged violations of the ordinances of the city, in the absence of authority granted by the city council.

3. Under the provisions of C. L., sec 148:60 (Sess. Laws 1913 chap. 74, sec. 27), the action of the council of Boise City ratifying, or attempting to ratify, the act of the mayor in engaging the services of private detectives, and ordering the payment of claims for such services, is void.

4. A city cannot be held liable under an implied contract for services, where power to make an express contract therefor is wanting.

[As to detectives-Private detectives as public officers, see note in Ann.Cas. 1917A, 584]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.

Action to enjoin payment of claims against the city. Permanent restraining order issued. Affirmed.

Judgment affirmed. Costs awarded to respondent.

J. P Pope, Chas. F. Reddoch and H. S. Kessler, for Appellant.

The municipality of Boise City can employ detectives to investigate violations of city ordinances, and to secure evidence of such violations. This is held to be within the power of municipalities everywhere.

It is also established beyond any question that, at common law, a city council could ratify the acts of a mayor in employing detectives, even though the mayor had no specific authority to employ them in the first instance. (Moore v. Hupp, 17 Idaho 232, 105 P. 209; O'Dell v. Scranton, 126 Mo.App. 19, 103 S.W. 570; Abels v. Ingham County Supervisors, 42 Mich. 526, 4 N.W. 206.)

Perky & Brinck, for Respondent.

Without express grant of power a city has no power to employ private detectives for the purpose of discovering violations of its own ordinances, but must work out such discoveries through its regular police force established under statutory provisions. A city has no power whatever, unless expressly granted it, to employ such detectives for unearthing violations of state laws. (Flannagan v. Buxton, 145 Wis. 81, 129 N.W. 642, 32 L. R. A., N. S., 391; O'Dell v. Scranton, 126 Mo.App. 19, 103 S.W. 570, 576; 34 Cyc. 1734; 28 Cyc. 641 (j), 1536 (iv), and cases cited; Crofut v. Danbury, 65 Conn. 294, 32 A. 365.)

RICE, J. Morgan, C. J., concurs. Budge, J., sat at the hearing but took no part in the opinion.

OPINION

RICE, J.

This action was brought by one Joseph Sullivan to enjoin the city treasurer of Boise City from paying certain warrants issued by the city clerk in accordance with the order of the city council. In the trial court, judgment was entered enjoining the payment of the warrants. The appeal is from the judgment. After the appeal was perfected Sullivan died, and upon motion Wilbur J. Tate was substituted as respondent.

The warrants were issued to reimburse one J. R. Compton, a private citizen, for payments made by him of salaries and expenses of certain detectives whom he employed under an arrangement with the mayor of the city, without the consent or concurrence of the city council, for the purpose of disclosing violations of the ordinances of the said city.

After the presentation of the claims for the payment of which the warrants were issued, the council passed a resolution in terms ratifying the act of the mayor in authorizing the employment of the detectives in the manner above mentioned.

It is admitted that Boise City is a municipal corporation, organized under C. L., chap. 162 (Sess. Laws 1911, chap. 82), known as the Commission Government Act, or the Black Law; also that the city derives its powers and authority from that act and the general laws of the state of Idaho relating to cities and villages, including C. L., chap. 148 (Sess. Laws 1913, chap. 74), which is the act providing for the organization, government and powers of cities of the first class, where the same is not in conflict or inconsistent with the provisions of the Black Law.

C. L., sec. 148:60 (Sess. Laws 1913, chap. 74, sec. 27), is as follows:

"The city council of such city shall never allow, make valid or in any manner recognize any demand against the city, which was not at the time of its creation a valid claim against the same; nor shall it authorize to be paid any demand which without such action would be invalid, or which shall then be barred by any statute of limitation, or for which the city was never liable; and any such action shall be void."

It is claimed by appellant that the provisions of the said section are inconsistent with the provisions of the Black Law. C. L., sec. 162:46 (sec. 11 of the Black Law), contains the following:

"The council shall have and possess, and the mayor and council and its members shall exercise all executive, legislative and judicial power and duties now had, possessed and exercised by the mayor, city council, board of public works, board of library trustees and other executive and administrative officers in cities, except as hereinafter provided: . . . .

"The council shall, by resolution, determine the powers and duties to be performed by each member thereof, and assign them to the appropriate department; shall, by resolution, prescribe the powers and duties of all officers and employees; . . . . and may make such other rules and regulations, or change such rules and regulations, as may be necessary or proper for the efficient and economical conduct of the business of the city . . . . "

However, C. L., sec. 162:9 (sec. 3 of the Black Law), has the following provision:

"It [the city] shall have and exercise all powers, functions rights and privileges, now or hereafter given or granted it, and shall be subject to all the duties, obligations, liabilities and limitations now or hereafter imposed upon such municipal...