The City of East St. Louis v. Thomas

• Decision Date: 31 August 1882
• Citation: 11 Ill.App. 283,11 Bradw. 283
• Parties: THE CITY OF EAST ST. LOUISv.CHARLES W. THOMAS.
• Court: United States Appellate Court of Illinois

11 Ill.App. 283

11 Bradw. 283

THE CITY OF EAST ST. LOUIS

v.CHARLES W. THOMAS.

Appellate Court of Illinois, Fourth District.

August Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed September 29, 1882.

Mr. J. M. HAMILL and Mr. B. H. CANBY, for appellant; that neither a city nor any of its officers can make a contract not authorized by its charter, cited Dillon on Mun. Cor. § 89.

The power to appoint being vested in the common council, can not be delegated to the mayor: Dillon on Mun. Cor. § 96; E. St. Louis v. Wehrung, 50 Ill. 28; Foss v. Chicago, 56 Ill. 354; Jenks v. Chicago, 56 Ill. 397; L. S. & M. S. Ry. Co. v. Chicago, 56 Ill. 454; Jackson Co. v. Brush, 77 Ill. 59; Cooley's Con. Lim. § 204; Oakland v. Carpenter, 13 Cal. 540; White v. Mayor, 2 Swan, 364; Darling v. St. Paul, 19 Minn. 389; State v. Bell, 34 Ohio St. 194; State v. Hauser, 63 Ind. 155; Birdsall v. Clark, 73 N. Y. 73; Brooklyn v. Brislin, 57 N. Y. 591; Ruggles v. Collier, 43 Mo. 359.

A city can not become indebted for any purpose beyond the constitutional limit: Springfield v. Edwards, 84 Ill. 626; Law v. The People, 87 Ill. 385; Fuller v. Chicago, 89 Ill. 282; Howell v. Peoria, 90 Ill. 104; New Orleans v. Clark, 95 U. S. 652; French v. School Dist. 42 Iowa, 614; Bank v. School Dist. 39 Iowa, 490; McPherson v. Foster, 43 Iowa, 48; Council Bluffs v. Stewart, 51 Iowa, 385; Scott v. Davenport, 34 Iowa, 312; Mosher v. School Dist. 44 Iowa, 122; E. St. Louis v. The People, 6 Bradwell, 76; Buchanan v. Litchfield, 102 U. S. 287.

Mr. R. A. HALBERT, for appellee; that municipal corporations may appoint agents and empower them to make contracts, cited Dillon on Mun. Cor. § 96; Gillett v. Sup'rs, 67 Ill. 256; Mt. Vernon v. Patton, 94 Ill. 65; New Athens v. Thomas, 82 Ill. 259.

A delegation of power is valid when expressly authorized by the legislature: Brooklyn v. Brislin, 57 N. Y. 591; State v. Patterson, 34 N. J. L. 163; State v. Atlantic City, 34 N. J. L. 99.

The contract being valid and the employment having been entered upon, it could not be annulled by resolution of the city council: Mt. Vernon v. Patton, 94 Ill. 65.

The compensation agreed upon--ten per cent. of the amount collected--was lawful: Newkirk v. Cone, 18 Ill. 449; Richland Co. v. Millard, 9 Bradwell, 396.

CASEY, J.

Appellee sued appellant in the Circuit Court of St. Clair county, in an action of assumpsit to recover for services rendered under a special contract, as an attorney at law. The declaration contains a special count on the contract, and also the common counts for work, care and diligence of the plaintiff as an attorney at law, and for money paid and expended by the plaintiff, at the request of the defendant. On the trial of the cause in the circuit court, before the court and a jury, a verdict was rendered in favor of appellee for the sum of $3,000. A remittitur as to the sum of $362.70 was entered by appellee, and judgment for the remainder, to wit, the sum of $2,637.30 and costs, was entered against appellant. A motion for a new trial was entered by appellant and refused by the court. Exceptions to the ruling of the court were taken. Appellee bases his right to recover in this case upon what he claims to be a written contract with appellant. That agreement or contract is as follows:

“MAYOR'S OFFICE, East St. Louis, Ill., June 23d, 1879.

CHARLES W. THOMAS, ESQ., Belleville, Ill. Sir:--The city of East St. Louis attempted to collect taxes for municipal purposes for the years 1874 and 1875, but was unsuccessful, and no taxes for those years were collected by the city. You are hereby employed by the city to see that proper legal steps are taken to levy the taxes due for those years, and your compensation for such legal services in all courts, in proceedings and cases growing out of said business, will be an amount equal to ten per cent. of said taxes when collected. Please advise me in writing whether you will accept the above employment on the terms named.

Respectfully yours,

MAURICE JOYCE,

Mayor.”

To this letter appellee replied as follows:

“BELLEVILLE, Ill., June 25, 1879.

MAURICE JOYCE, Mayor, etc., East St. Louis, Ill.

Sir:--Your letter of 23d inst., relating to my employment by the city of East St. Louis, to see that proper legal steps are taken to collect the city taxes for 1874 and 1875, is received. I understand from your letter that my compensation is to be a conditional fee of ten per cent. of the amount of taxes for those years, to be paid me as the collections are made, the city of course to bear all expenses of litigation, and I accept the employment upon this understanding and transmit you herewith, 1st, ordinance providing for levy of 1874; 2d, ordinance providing for levy of 1875. These ordinances ought to be passed, so that the clerk can make the requisite certificate to the county clerk by the second Tuesday in August next. When the ordinances are passed, I will furnish the city clerk with a form for a certificate.

Very respectfully,

CHARLES W. THOMAS.”

It is not claimed that the city council of appellant participated in any way whatever in the making of said contract. On the contrary it is very clear, from the evidence, that the city council knew nothing whatever of the contract until long after it had been made, and did not in any manner acquiesce or ratify said contract. The testimony shows that the city council, by resolutions when in session, protested against the employment of appellee, and, so far as they could, discharged him as an attorney for appellant. No testimony was offered under the common counts, and appellee claims to recover only on the special count.

The first question for consideration in this case is, did the mayor have the power or authority to make the agreement or contract described in the declaration and offered in evidence?

The city of East St. Louis is incorporated by and under a special act of the general assembly, entitled “An Act to reduce the Charter of East St. Louis and the several Acts Amendatory thereto, and to Revise the same.” Vol. 1, Private Laws, 1864, page 885. By the act of incorporation, the government of the city is vested in a city council and mayor. The city council to consist of two councilmen from each ward to be elected by the qualified voters thereof. The act of incorporation or charter also provides that the city council shall have the power annually to appoint an attorney, clerk, treasurer and such other officers and agents as they shall deem necessary for the proper execution of the powers conferred upon them and to authorize and regulate the appointment of deputies to such officers as may be deemed necessary. These are the only provisions of the charter that have reference to the question under consideration. The record shows that the city council under this charter before this contract was made by ordinance, provided that “in case of the absence temporarily, or sickness or inability to attend any court, the city attorney may, with the approval of the mayor, appoint some person in his stead, and whenever the mayor shall be of opinion that the interests of the city require it, he shall have power to employ such assistant or additional counsel as the occasion may require. It is claimed by appellee that the mayor, by virtue of this ordinance, had the power to, and did make the contract in question, and that it is binding upon appellant. We have given this question a careful consideration and admitting for the present that the city council, under the charter, had the power to enact the ordinance in question, we do not think that conferred on the mayor the authority to make the contract sued on. The ordinance provides, first, that the city attorney, in case of his absence or sickness, with the approval of the mayor, may appoint an attorney to represent him--and second, the ordinance provides that the mayor may employ an assistant or additional attorney, as the occasion may demand, etc. It is not insisted, or even claimed that appellee was contracted with as an...