Higginson v. City of Fall River

Crosby, J.

A majority of the members of the board of fire commissioners of the defendant, acting under the provisions of its city charter (St. 1902, c. 393, § 28) sought to remove the chief engineer of the fire department, who had previously refused to resign in compliance with the request of the board and demanded a hearing as provided for by § 28 of the charter. Afterwards it was voted by the board that he be given a hearing on charges and that the city solicitor be requested to formalize such charges and to aid the board in all matters relating to the hearing.

The city solicitor, at the request of the mayor, declined to comply with the request of the board; and thereafter in accordance with a vote of the latter, the plaintiff, an attorney at law, was employed by the board to assist in “preparation of the charges against the chief engineer . . . and in all matters pertaining to the hearing to be given on the same.” Having rendered services in accordance with the foregoing employment, the plaintiff brings this action to recover therefor.

The charter (c. 37, §§ 2,3) provides for the appointment of a city solicitor whose duties are therein prescribed.

If, as the plaintiff contends, we assume without deciding that the city solicitor was not required to comply with the request of the board, it is plain that the plaintiff is not entitled to recover, although we do not mean to intimate that the defendant would *425 have been liable if the city solicitor had wrongfully refused to comply with the request of the board.

It is well settled that a city official has no authority to employ counsel on behalf of the city by reason of the general powers conferred on him by law. Butler v. Charlestown, 7 Gray, 12 . Fletcher v. Lowell, 15 Gray, 103 .

It is not contended that any express authority was given by the city council to the fire commissioners to employ counsel, nor can such authority be implied as incident or necessary to the exercise of their corporate functions. Coolidge v. Brookline, 114 Mass. 592 .

In view of the conclusion reached, it is unnecessary to determine whether § 1 of the ordinance relative to contracts would be a bar to recovery in this action.

The contention that the plaintiff’s charges come under the head of “current expenses,” for which an appropriation had been made for the maintenance of the fire department, cannot be sustained, even if there was an unexpended balance of such appropriation at the time the services were rendered by the plaintiff. Manifestly the authority of the board of fire commissioners to make payments from the appropriation for "current expenses” is limited to lawful obligations of the city: the appropriation could not be applied in whole or in part to demands which the city was under no legal liability to pay.

The plaintiff was chargeable with knowledge that the fire commissioners in employing him had no authority to bind the defendant, Bartlett v. Lowell, 201 Mass. 151, 155 , and the city cannot be held liable for the services rendered even if beneficial to it. Butler v. Charlestown, ubi supra. Douglas v. Lowell, 194 Mass. 268, 275 .

That a public officer cannot make a binding contract on behalf of a municipality without express authority would seem not only to be settled by precedent but to be in accord with sound principles. Butler v. Charlestown, ubi supra. Fletcher v. Lowell, uhi supra. Connolly v. Beverly, 151 Mass. 437 . Flood v. Leahy, 183 Mass. 232 . Wormstead v. Lynn, 184 Mass. 425 .

As the plaintiff is not entitled to recover under either count of the declaration, for the reasons above stated, the entry must be Judgment affirmed.