Smith v. Mayor & Common Council of Sacramento City

Baldwin, J. delivered the opinion of the Court— Terry, C. J. concurring.

This was a bill filed by the plaintiff, a tax payer of Sacramento City, to restrain the payment of five thousand dollars, appropriated by the late city authorities to Alpheus Felch, as a fee for contesting before the Supreme Court of the United States, the title of John A. Sutter, to lands within the limits of the city.

Leaving out minor questions, the principal point on which the case turns, is, whether the Common Council had power to pass this ordinance.

The charter authorizes the City Council “to make by-laws and ordinances, not repugnant to the Constitution and laws of the United States, or of this State; to make appropriations for objects of city expenditure; to purchase, receive, and hold,.for

[533]the use of the city, real and personal estate; and to pass such Other by-laws and ordinances for the regulation of said city as they may deem necessary.”

It seems to be conceded that the city claimed certain real estate within the municipal limits which might be injuriously affected by the litigation in question.

AVe are not aware of any well recognized rule of construction which goes to the extent of holding that under a general provision like this, the power of protecting the interests of the city by the employment of counsel, is denied to the city authorities. The legal protection of the property may be as much involved in procuring competent Attorneys, or counsel, as in paying the costs and expenses of defending actions brought for the recovery of its real or personal property. We apprehend if a delinquent Treasurer escaped with the money of the city to San Francisco, the city would be authorized under the old charter, to employ Attorneys there to recover the money; or if bonds of the city had been improperly sent to New York for sale, that the authorities might employ a lawyer there to restrain their negotiation. The duty of protecting the public property carries along with it the duty to employ the usual moans of protecting it. Legal assistance stands, as a means for the protection of property, in direct relation to the general power to hold, acquire, preserve, and protect it. There is no difference in this respect between one sort of protection and another, between the charge of the lawyer and the charge of the Clerk, between laying out money to buy a safe to keep the money in, and laying out money to employ a lawyer to recover the money improperly withheld. It is true, the charter provides that an attorney shall be elected by the people to attend to the business of the city; but this does not prevent the employment of other counsel when it is impossible for the Attorney of the city to discharge the required duty. Nor is it important that the suit was one in which the United States was nominally or beneficially a party. The interest of the city would be the same in securing a peculiar and particular attention to the litigation as if she were the sole party contesting with the claimant of the property.