
    CARROLL vs. THE CITY OF ST. LOUIS.
    1. When the “city attorney” for ;he city of St. Louis, performs a duty imposed by ordinance, he is entitled to the compensation therefor, fixed, by ordinance, and no other,
    2;. The mayor of the city of St. Louis has no authority, under the city ordinance, to appoint, an attorney so as to make the city liable for his services.
    APPEAL FROM ST. LOUIS CIRCUIT COURT.
    STATEMENT OF THE CASE.
    The appellant brought suit to the November term 1848 of the St. Louis circuit court in assumpsit, to recover compensation for legal services rendered as an attorney and counsellor; at law for the defendant, at the request of the then mayor of the defendant. The bill of particulars were as follows :
    The city of St. Louis to C. C. Carroll, Dr. 1846. To professional services and attention to two hundred cases before the recorder of St. Louis, of free negroes arrested for being-in the State of Missouri without a license, at one dollar per case..............$200 00
    To professional services and attention before the county court of St Louis county for two weeks in cases of free negroes applying for license to remain in this State •> 100 00
    To attention in the supreme court of Missouri to the case of the city of St. Louis vs. John Smith............................,................................... 50 00
    To attention in the supreme court of Missouri to the case of the city of St. Louis vs. John Bentz.................................,•>,........................ 50 00
    To attention to the case of a free negro (Charles Lyons) in an application by him to judge of the St. Louis circuit court for discharge under the habeas corpus act-- 50 00
    Total.v ......................................................................... --$450 00
    In an agreed case made between the plaintiff and defendant in the St. Louis circuit court, it was admitted by the defendant that said services were rendered; that they were rendered at the request of the then mayor of the city of St. Louis, who was duly elected, commissioned and qualified ; and also that the charges made in the bill of particulars are reasonable.
    It was admitted by the plaintiff that at the time of the request of the said mayor, and the rendition of said services, that the plaintiff was the city attorney of the city of St. Louis ; and it was also admitted1 that the cases of Smith and Bentz in the supreme court, originated before the recorder of the city of. St. Louis.
    It was also agreed by buth panips.that the charter and ordinances of the city of St, Louis published by authority of the city council of St. Louis in 1816, be admitted in evidence in the circuit court, and they are mutually admitted-as evidence without further proof, in the supreme court. Upon a hearing of the admissions and evidence before the circuit court q£ St. Louis county, a non-suit was entered by the court, with leave for a motion to set the same aside and grant a new trial, (agreeably to agreement that a non suit should be entered if the facts and law did not warrant a judgment for the plaintiff; and that either party might take an appeal to the supreme court.) The motion made to set the same aside and grant a new trial for reasons filed was overruled—bill of exceptions filed, and the same appealed to this court. The questions to be decided by the supreme court are : Was it the duty of thq appellant to. render said services as the city attorney of the defendant ? Hail the mayor of the city of St, Louis authority to retain the counsel, and is his employment of such counsel-binding upoa th.e city of St. Louis, and is the city responsible for such services ?
    
      Eager, for appellant.
    1st. It was not the dnfy of the appellant as the city attorney of the appellee to perform any of the legal services upon which the suit was instituted, because said duty by an, ordinance of the appellee, approved July 20th 1846, is defined as follows: “It shall be the duty of the city attorney: First: to prosecute before the recorder or justices of the peace, all actions on behalf of the city, and defend before those officers, all actions against any officer, servant or agent of the city on account of his legal official acts. Second: to prosecute or defend in any court of record in, this State, any suit or action originating there, when required by the mayor. Third : to take an appeal on writ of error on behalf of the city in any case he shall see proper, and make the necessary affidavits therefor, and execute the necessary bond in the name of the city. Fourth : to attend in appellate courts to all appeals or writs,of error in cases originating before the recorder or justice of the peace. Fifth : to advise the city council or their committees, or qny city officer as the. counsellor is required to do.” Revised Ordinances of city of St. Louis of 1846, page 1S12.
    2d, The mayor was authorized to employ counsel in any case, because it is provided in 3d section page 122 of said ordinance, that “ assistant counsel may be employed i-n any. case at the discretion of the mayor or city council.’5'
    3d. All the services rendered by the appellant, (except those in the supreme court) were in proceedings under the general laws of the State, a.nd not under or arising out of the charter or any ordinance of the appellee. Revised’ statutes 295, 392.
    4th. The mayor of the city of St. Louis i&required to take care that the laws of the State are duly enforced, respected and observed within, the city. Charter of city of St., Louis, art.' 4 sec. 7. The employment of means by which to discharge this duty, are necessarily incidental to the duty, and as no particular means are pointed out in the charter, he is entitled to the exercise of his own sound discretion in any given event.
    5(b. The appellee is responsible for the employment, of the appellant by the mayor. 7 Qranch 306: 14 Mass. 61; 3 J. J. Marshall 203; 1 Dan,a 87; 1 Cowen 5,13; 14 John 118; 1 Saxton Chancery Reports 541; 12 John 227»
    Blannerhassett, for appellee...
    1st. The office of city attorney is created by charter, and is an elective office. The office of city counsellor is created by ordinance, and is filled' by appointment. The duties of each of those officers are prescribed by ordinance, and specifically defined, and their compensation fixed by ordinance also. Charter of 1843 sec. 10 p, 93; Ord, No. 1698 art,5page 241 sec. lj
    2d. Whenever a duty is imposed or. the city attorney by ordinance and that duty is performed, be is entitled to the compensation therefor fixed by ordinance, and no other.
    3d. The services rendered by appellant as appears from bill of particulars were such as he was required by ordinance to perform. See. second clause, of 4th sec. of ordinance No. 1686, page 122.
    4th. The third section of the ordinance referred to authorizes the Mayor at his discretion to employ assistant counsel in any case, and the fifth section ot the same ordinance authorizes that officer in the event of the absence from the city of the city attorney or city counsellor, or their inability to attend any court from sickness or otherwise, to approve of the appointment oi another to aftepd to the official duties of the officer so absent, but this appointment must be at the expense of the attorney or counsellor and not at that of the city. The same section also authorizes the Mayor to appoint some person other than the city attorney or counsellor to represent the, city, wh.ere ip any case either of these officers is obliged to discharge that duty and cannot do so because of bis being employed against the city before he assumed the duties of his office. Except therefore, in the cases enumerated in the ordinance, it is contended that the mayor has not the power to employ counsel at the expense of the city, because the power being given in specific enumerated cases excludes the exercise of such power in any other; and to entitle the plaintiff or appellant to recover, he should aver in his declaration, or at all events prove that he rendered the services at the request of the mayor as assistant counsel or by appointment from the mayor according to the provision o f the last clause of the 5th section of the ordinance.
    
      The duty imposed on the mayor by charter to “see that the laws of the State are observed" %c., do not authorize him to run the city in debt ad libitum and unnecessarily.
   Judge Napton

delivered the opinion of the court.

We do not deem it important in this case to determine, whether the professional services rendered by the plaintiff could have been required of him as city attorney or not. That a portion of the cases fell properly within the duty of the city counsellor is quite obvious. However this may be, we are of opinion that the ordinance which prescribes the duties of these officers, designed to secure the services of one or the other of them in every case where legal services were supposed to be necessary. If the language of the ordinance should be thought not sufficiently explicit to attain this purpose, it is however clear, that the mayor has no authority under it to appoint an attorney so as to make the city liable for his fees. The only clause in any section of the ordinance which can possibly be construed to vest such a power in the-mayor, is the third section, which says that “assistant counsel may be employed in any case at the discretion of the mayor or city council.” We apprehend the obvious meaning of this provision is to authorise the mayor, in cases whose importance might suggest the propriety of employing additional counsel to assist the regular city officer, to employ such assistant counsel. The case agreed does not show a state of fact» having any reference to such a contingency.

The services sought to be recovered in this action against the city were rendered by the city attorney, at the suggestion of the mayor, and were either rendered in his capacity of city attorney and therefore remunerated by the salary which the law had fixed, or they were rendered voluntarily at the instance of the mayor, who had no authority to bind the corporation in the case supposed. It cannot he contended, that the general authority which the charter has given to the mayor “to take care that the laws of the State and the ordinances of the city are duly enforced,” could authorize this officer at his discretion to employ independent counsel in any case. Such a latitudinous construction of the charter would put it in the power of that officer to confide any of the official duties of any of the subordinate officers, specially provided for by charter or by ordinance, to such persons as he might select, disregarding entirely the duties and powers incumbent upon such as had been duly elected or appointed to such trusts in conformity to the charter and ordinances of the city.

We are therefore of opinion that the professional services of the plaintiff were either such as the duties of his office' imposed upon him, or if not, that the mayor had no authority to bind the city for the payment of his fees and therefore shall affirm the judgment of the circuit court.  