Denman v. Webster

HAYNES, C. Appellant applied to the superior court of said city and county for a writ of mandate requiring the defendant, as such superintendent of schools, to draw his requisition upon the auditor of said city and county for the sum of $500, to be paid to appellant upon the order of the board of education. The defendant demurred to the petition, the demurrer was sustained, the writ denied, and the petitioner appeals.

[67]The circumstances under which appellant’s said services were rendered, as alleged in his petition, were that in October, 1900, the respondent, as superintendent of schools in said city and county, sued out an alternative writ of mandate to compel the board of education “to admit to its deliberations one W. D. Kingsbury”; that the said board of education made its order upon the city attorney requiring his services in its defense in said proceeding so brought against it; that “the city attorney, denying his jurisdiction to render said services,” refused to render the same, and that the board of education thereafter employed appellant to defend it in said proceeding, and that he did defend said board and continued to do so until March 25, 1901, when judgment was rendered therein in favor of said board; that the board approved his demand for the said sum of $500, but respondent refused to make a requisition upon the auditor to issue a warrant therefor, and still refuses to do so. We think the demurrer was properly sustained. The charter provides for the election of a city attorney, and authorizes him to appoint four assistants. Article 5, chapter 2, section 2 (Treadwell’s Charter, p. 132), provides: “He must prosecute and defend for the city and county all actions at law or in equity, and all special proceedings for or against the city and county.....He shall give legal advice, in writing, to all officers, boards and commissions named in this charter, when requested to do so by them, or either of them, in writing, upon questions arising in their separate departments involving the rights or liabilities of the city and county.” And among the powers of the board of education the following is specified: “To require the services of the city attorney in all actions, suits and proceedings by or against the board of education”: Charter, art. 7, c. 3, sec. 1, subd. 8 (Treadwell’s Charter, p. 266). The provision last above quoted, while declaring one of the powers of the board of education, also specifies a duty of the city attorney as effectively as if it had been embodied in the section first above quoted. The obvious purpose of the charter in providing for the election of a city attorney and prescribing his duties and compensation was to take from the various city officers and boards the power to employ other counsel and burden the city and county or school district with the payment of fees, to be fixed by the officer or board employing them, thus nullifying the charter provision, which impliedly limits the compensa