Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1904-12-21
WHEN CITY Is NOT LIABLE.

WHEN CITY Is NOT LIABLE.
Supreme Court Holds on Matter Of
City Liability In Rosard Case from
Grand Forks. .qs4 ST..
The supreme court has handed
down a decision in the case of ). H.
Bosard, respondent, VS.. city Of Grand
Forks, appellant. Syllabus as follows:
A city is not liable upon an implied
contract to pay the reasonable value
of professional services rendered by
an attorney other than the city attor-
ney in advising the mayor and alder
men, whene his employment has not
been authorized or ratified by yea
and nay vote tfhe common council.
Appeal from the district court of
Grand Forks county; Charles J. Fisk,
Judge.
George A. Bangs, for appellant.
B. G. Skulason and Robert H. Bos-
ard, for respondent.
The opinion is by Engerud, judge,
and will be of interest as defining city
liability. It says:
1.-THE facts developed on the trial
are as follows: Certain persons had
applied to the mayor and council of
the city Of Grand Forks for franchise
to construct and operate street rail-
way in that city. The city attorney
was at the time temporarily absent and
the date Of his return was uncertain.
The proposed franchise ordinance had
passed its first reading and the appli-
cants for the franchise, as we'll as the
mayor and some of the members Of
the council, were DESTROYS of final &C.
ton on the proposed franchise as
speedily as possible. The city attor-
ney being still absent, and the time
when he would return uncertain, the
mayor requested the plaintiff, as
senior member of the firm of Bosard
& Bosard, to meet with the ordinance
committee of the council for the pur-
pose of advising that committee with
respect to the proposed franchise and
to suggest and frame proposed amend
'ments thereto to be submitted to the
council for adoption. Pursuant to
this request the plaintiff spent much
time and labor in examining preced-
ents, drafting amendments and advis-
ing with the committee He also an.
peared before the council and gave it
his opinions and advice in respect to
the questions which arose before that
body concerning the ordinance. In
short. the plaintiff from the time ne
was requested to act until the return
OF the city attorney, acted as the
legal adviser of the council in all mat
tiers pertaining to the proposed fran
chise.
There was no dispute as to the
fact that plaintiff did the work he
claims and that his charge therefore
is reasonable. The only question is
as to the city's liability. It is con-
ceded that there was never any ex-
press contract entered into between
the city, or any of it's representatives.
and the plaintiff, and it is also con-
coded that there was never any formal
action taken by the council by reso-
luton or otherwise, expressly author
izing or ratifying plaintiffs employ
ment. Respondent, however, con-
tends that the city is liable on an i'm
Piled contract, because services bene.
hcial to the city were rendered at the
request of the mayor, with knowledge
OF the council, and were by the latter
accepted.
The only facts relied upon to show
acceptance are that the members of
the council knew that the plaintiff
mad been requested by the mayor to
act in the place of the city attorney,
and also knew, or ought to have
known, that the city was expected to
pay the reasonable value OF the
services; and the members OF the
council, with this knowledge, ayailed
themselves Of plaintiffs professional
labor and advice. .sf. .s g.. V
These facts are insufficient to
create any contract, express or i'm
piled, on the part Of the city to pay
for plaintiffs services. The statute
governing cities provides that NO
liability can be created against city,
Or any expenditure OF appropriation
4 of its funds can be made unless the
proposition to DO 20 Is adopted BY q
yea and nay vote. which vote must be
entered on the Journal 0f the proceed.
inss. Revised Codes, sec.ion 2143.