Wiley v. City of Seattle

• Decision Date: 05 January 1894
• Citation: 7 Wash. 576,35 P. 415
• Parties: WILEY ET AL. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

35 P. 415

7 Wash. 576

WILEY ET AL. v. CITY OF SEATTLE.

Supreme Court of Washington

January 5, 1894

Appeal from superior court, King county; R. Osborn, Judge.

Action by Wiley, Scott & Bostwick against the city of Seattle to recover attorneys' fees. From a judgment for defendant plaintiffs appeal. Reversed.

Wiley &amp Bostwick, for appellants.

George Donworth and James B. Howe, for respondent.

STILES J.

Appellants suffered a nonsuit in an action which they brought against the respondent for the services which they rendered, as attorneys for the defendant, in the case of Chalk v White, 4 Wash. 156, 29 P. 979. Their offers of proof were to the effect that, after the mayor had vetoed the ordinance authorizing the issuance of the illegal bonds, it was passed by the unanimous vote of both of the bodies which constitute the legislative authority of the city, under the advice of the corporation counsel that such action was within their power; and that, when he was served with the alternative writ of mandamus requiring him to sign the bonds, the mayor applied to the corporation counsel to defend him in the action, and was refused, on the ground of the opinion he had given the council, because he believed his advice was right, and because he could not honorably at that time, and under such circumstances, take the other side. This refusal and these reasons were put in writing, and delivered to the mayor, and the counsel also refused to permit any of his assistants to act for the defense. The mayor then canvassed the members of both houses of the council, and found them unwilling to act favorably upon any ordinance which might be proposed looking to the employment of special counsel, and thereupon took his own course, and secured the successful services of the appellants. But, notwithstanding the result of the case, the auditing powers of the city would allow no compensation for the services rendered, or return of money expended, and hence this suit.

The ruling of the court below on the motion for a nonsuit was based upon the stringent language of the charter of the city and the general rule of municipal corporations that, where the manner of exercising a power conferred upon a corporate agent is laid down in terms, his action, in order to be legal, must be taken in strict conformity to the mode thus prescribed. Arnott v. City of Spokane, 6 Wash. 442, 33 P. 1063. It is evident from the general tenor of this charter (Freeholders', 1890) that it was the endeavor of its framers to require authority for every sort of expenditure to emanate from some legally constituted source, and in a formal and unmistakable way. In fact, a charter could hardly be conceived that would be more mandatory in its restrictions upon municipal officers. A corporation counsel was included among the officers of the city, whose duty it was, among others, to defend all actions or proceedings to which the city, or any officer, board, or department of the city, should be a party, or in which the rights or interests of the city should be involved; and, by an ordinance, this officer could be allowed to employ one or more assistants. The council would also have authority, under the general powers conferred upon it, and with the concurrence of the mayor, to employ such special counsel in particular cases as it should deem necessary. But on this subject there was this provision: "No office shall be created, nor shall any person be employed in any capacity, *** unless the same is specially provided or authorized by law or this charter." Nothing could be imagined that would more completely tie the hands of an officer in the matter of employing counsel than this provision. It was the council's manifest duty, notwithstanding its hostility to the mayor's position, to provide him legal assistance when the attitude of the corporation counsel was made apparent; but it could not be controlled in the matter, and it would undoubtedly have refused. The mayor was then in this position: The constitution, the statute law, and the charter itself forbade him to sign the bonds, or do anything towards putting them in circulation, and, under the solemnity of his official oath, he was bound to obey; but, on the other hand, the ordinance passed over his veto by unanimous votes, and the alternative writ of mandamus...