adopted in this country. In a former page, suggestions have been made in favor of increasing the powers, dignity, and responsibility of this office as a means of insuring, under existing conditions in this country, more satisfactory municipal rule; but the subject is not sufficiently connected with practical law to warrant a more extended reference to it in a work of this character.1

$389. Powers and Duties of City Attorney or Corporation Counsel. The corporation counsel or city attorney of a municipality is usually either elected by the people, or appointed by the mayor and council; and in a limited sense at least, he is an officer of the municipality. In the performance of the duties which are imposed

264, 265; 2 Toml. Law Dict. 540; 2 the mayor of the palace was the govBouv. 150; Spelm. Gloss. "Mayor"; ernor of Paris, often holding sovereign Ela v. Smith, 5 Gray (Mass.), 121; power, and, indeed, in time usurping Achley's Case, 4 Abb. Pr. Rep. 35; it, since it was from one of the mayors Cochran v. McCleary, 22 Iowa, 75, 82; of the palace that the family of CharleNichols v. Boston, 98 Mass. 39; magne descended. And it is suggested Fletcher v. Lowell, 15 Gray (Mass.), by Mr. Norton that the term "mayor," 103; ante, $$ 20, 240; post, $$ 480, familiar to the Normans, may have 502, 512, 513, 514. The office in been originally, though remotely, deEngland is quite ancient. In 1204 rived from the same source. Norton's King John made the bailiff of King's Com., pp. 90, 402, 403. See also PullLynn a mayor, with administrative ing's Laws, Customs, &c., of London, powers. The title was a common one chap. ii. 16 m. The powers and duties as early as the time of Bracton. of mayor are prescribed with particularity in the Municipal Corporations Act of 1882, §§ 15, 16, 53, 60, 61, 66, 67, 68, 148, 244, and elsewhere. He is er officio "a justice for the borough," § 155. Mr. Shaw in describing the workings of the municipal system of Great Britain points out the great difference between the functions and duties of an English and American mayor. Pol. Science Quarterly, Vol. IV. p. 209, June, 1889. See also Shaw, Municipal Government in Great Britain, 1895.

Mr. Norton, in his valuable "Commentaries on the History, Constitution, and Chartered Franchises of the City of London," says, that the first special grant of the mayoralty to the city of London was made by King John in a charter dated on the ninth day of May, in the sixteenth year of his reign, A. D. 1215. This charter declares that the king has granted and confirmed to the barons of London the right of choosing a mayor every year, and at the end of the year of removing him and substituting another, if they will, or electing the same again. He is to be presented to the king, and swear to be faithful to him. The use of the word confirmed, in this charter, shows that the name and officer existed before. The first civic magistrate had begun to be called by the name of mayor toward the end of the reign of King Richard. The denomination of mayor, it is said on the authority of legal antiquaries, can be traced to a very far date among the German and French nations of Europe. The chief governor of the town communities which arose in France in the eleventh century was often styled the mayor. It is a matter of history that in France,

1

Ante, chap. i. § 20 and notes. 2 The city attorney is a "city officer" who must, by the Wisconsin Constitution, be elected by the electors, and a legislative provision extending the term of an incumbent for two years is an attempted appointment and invalid. State v. Krez, 88 Wis. 135. Where a charter makes all voters eligible to any municipal office thereby created, any qualified voter is eligible to the office of city attorney, created by the charter, although he is not a duly admitted attorney at law. State v. Nichols, 83 Minn. 3. In Indiana, the appointment or election of a city attorney is at the discretion of the city

upon him by law, and with respect to which he is not required to submit to the direction of the legislative body or executive officers of the municipality, he acts as a public officer performing a public duty, and his action cannot be controlled by the council or executive officers of the municipality. Thus, in all matters that merely concern the public, which are for the preservation of morals, and maintenance of good order, the abatement of nuisances, the suppression of disorderly houses, &c., he is independent of the council, and is a public officer vested as to such matters with powers and burdened with duties over which the council have no jurisdiction.' But in other matters he is simply the head of the legal department of the city authorized to represent it in all suits and matters in litigation; he is merely the attorney of the corporation authorized and entitled to appear for it, and he has no larger powers as such to bind his client than an attorney would have in the case of an individual. In other words, in these matters the relations existing between the corporation counsel or city attorney and the municipality are, in the absence of a statute conferring other or greater powers upon him, in general those which exist in ordinary cases of attorney and client.2

council, which can also abolish the appointing such commissioners before office at pleasure. Goodwin v. State, 142 Ind. 117; Downey v. State, 160 Ind. 578.

Flynn v. Springfield, 120 Ill. App. 266. Under a statute making it the duty of the corporation counsel to compel the officers of the city to perform their duty by applying for mandamus, he may, of his own motion, and without any request by the city council, apply for a writ of mandamus to compel the city treasurer to deposit moneys in the depositaries selected or approved by the council. State v. Bowers, 26 Ohio Cir. Ct. 326, aff'd 70 Ohio St. 423.

the return day mentioned in the notice of motion without notice of such act to the street commissioners, or to the attorney employed by them, and although the petition and notice of motion had been served upon the street commissioners, Herrick, J., said: "It seems to me that there can be no question but that the attorneys appointed by and appearing for the municipal corporation stand in the same position as attorneys appointed by and appearing for private persons, and that courts have the right to rely on stipulations and consents made by them in the 2 Stone v. Bank of Commerce, 174 course of judicial proceedings, the U. S. 412, rev'g 88 Fed. Rep. 398; same as upon those made by attorneys Flynn v. Springfield, 120 Ill. App. 266; appearing for private persons, and that Bush v. O'Brien, 164 N. Y. 205, rev'g they have the same power and au47 App. Div. 581; People v. Mayor, thority to bind the clients for whom &c. of New York, 11 Abb. Pr. (N. Y.) they appear; and that, in the absence 66. In Collins v. Saratoga Springs, 70 of fraud or collusion, orders entered or Hun (N. Y.), 583, aff'd 140 Ñ. Y. 637, proceedings taken in reliance upon such a proceeding was brought pursuant to appearances and stipulation or consent statute for the appointment of com- will not be set aside. . . No doubt missioners to appraise the damages to members of municipal boards or any be paid by a village for a change of other municipal officers have the right grade. The attorney for the village to employ counsel at their own expense stipulated for the appointment of com- to look after legal proceedings and see missioners pursuant to the statute, and that the legally appointed attorneys it was held that the stipulation em- for the municipality do their duty, but powered the court to make an order the counsel so employed does not repre

When by statute he is made the head of the legal department of the municipality and entrusted with the control and direction of its legal matters, it may be laid down as a general rule that the municipal authorities have no implied power to employ other counsel to perform the duties imposed by law upon him by his election or appointment, although they may in a proper case authorize him to employ counsel to assist him or may employ counsel to act in cases where he cannot act or which do not fall within the scope of his official duties. Merely as city attorney, he has no larger power to bind his client before suit is commenced than he would have in the case of an individual in like circumstances. When a suit is commenced, he is the retained attorney of the city, and it is his duty to take charge of the litigation. When the suit is commenced, the statute operates in place of a retainer in the case of a personal client, and it is his duty to defend the city in actions against it, but in the absence of express statutory authority, he has no power to appear for the city as a defendant in a suit which has not been commenced, or to accept service of process and waive its service upon the proper officer without authority from that officer.3 In the defence of actions against the city, he may take all needful steps for the protection of the city's interests and may incur on behalf of the city all necessary expenses in connection therewith.

sent the municipality, and is not, as a matter of law, entitled to notice of proceedings in court, and in the absence of any charge of neglect of duty on the part of the regularly constituted attorney, full faith and credit will be given to his action by the court.' Even if the city attorney has no power to begin an action without the authority of the city council, the lack of such authority does not affect the capacity of the city to sue, and is not ground for demurrer to the complaint. Milwaukee v. Zoehrlaut Leather Co., 114 Wis. 276.

1 Valentine Clark Co. v. Allegheny City, 143 Fed. Rep. 644; Denman v. Webster, 139 Cal. 452. The authorities as to the power of the municipality to employ counsel other than the official or city attorney are collated and discussed in § 824, post, Contracts with Attorneys.

Where, by ordinance, a law depart ment is created, with a corporation counsel charged with the duty to perform such legal services as may be required by the city, with a provision that the city shall not be liable to pay

The city is bound by his action

for legal services of any other attorney, it was held that any contract for legal services made by the city council in violation of the ordinance was without authority and void. Hope v. Alton, 214 Ill. 102.

2 Stone v. Bank of Commerce, 174 U. S. 412, 424, rev'g 88 Fed. Rep. 398. In this case it was held that prior to the commencement of a litigation, the city attorney, although charged with the duty of managing the city's litigation, cannot bind the city by stipulation to abide by the result of a test case to be thereafter brought involving the questions in dispute, particularly where such stipulation also affects the substantial rights of the city in other respects.

3 Stone v. Bank of Commerce, 174 U. S. 412, 424.

A city is liable for photographs which in the discretion and judgment of the corporation counsel he deemed necessary or useful in the defence of the city in an action growing out of the elevation of railroad tracks. Chicago v. Berger, 100 Ill. App. 158.

1

in taking or failing to take exceptions to rulings at the trial of an action to which it is a party,' and it has been held that upon an enlarged view of the scope of his employment he may enter on behalf of the city a motion for an appeal from a judgment. But the corporation counsel has not, by virtue of his office and in the absence of express authority, any power to settle and audit, or to adjust and compromise, claims against the city, although the claims may be the subject of pending actions against the city. And by virtue of his office he has no power or authority to appear in an action to which the city is not a party, e. g., an action against certain police officers for the illegal conduct of the latter. Such a lawsuit is not in any sense a part of the law business of the city.*

For the performance of the duties imposed on him by his office, his compensation is limited to the salary or remuneration attached to the office; but for other services which he may render outside of and in addition to his ordinary official duties, which could as well

1 Chicago v. Altgeld, 33 Ill. App. 23. 2 In Connett v. Chicago, 114 Ill. 233, the court said: "We are of the opinion that a city attorney elected by the people occupies a somewhat different position from one employed to prosecute or defend in a particular case. Subject to the general supervision which the city council has over him it is his duty to look after and protect the interests of the city in all legal controversies and litigation, so far as he is able, unless directed by the city to the contrary, and his acts, within the general scope of his authority, will be deemed the acts of the municipality. It is his duty from time to time to report to the corporate authorities the condition of all suits of which he has charge and other legal matters referred to him for investigation or adjustment, whether pending in court or out of court. The general principle that officers are presumed, in the absence of anything to the contrary, to do their duty applies equally to a city attorney in the discharge of these duties. Such being the general scope of his powers and duties, we do not concur in the view that the city attorney had no power or authority after judgment passed against the city to enter a motion on its behalf for an appeal. On the contrary, we are of the opinion that he not only had the power, but that it was highly proper for him to do so. After having duly prepared the way for an appeal, it was

his duty to report the condition of the case to the city together with a statement of his views with respect to the propriety of taking the appeal,- for it is presumed he performed his duty in this respect."

3 Bush v. O'Brien, 164 N. Y. 205, rev'g 47 App. Div. 581 (distinguishing O'Brien v. Mayor, &c. of New York, 160 N. Y. 691, aff'g 40 App. Div. 331); People v. Mayor, &c. of New York, 11 Abb. Pr. (N. Y.) 66; McGinness v. Mayor, &c. of New York, 26 Hun (N. Y.), 142.

Chicago v. Williams, 182 Ill. 135; Donahue v. Keeshan, 91 N. Y. App. Div. 602. But when by statute it is provided that the corporation counsel may appear in any action brought against an officer in the service of the city by reason of any acts done or omitted while in the performance of his duty, whenever such appearance is requested by the head of the department, the head of the department in which the officer is employed is vested with a discretion to determine whether the action is prima facie one instituted by reason of any acts done or omitted by the defendant while in the performance of his duty, and that determination is final and conclusive and is not subject to judicial review in the action upon the appearance of the corporation counsel therein. Briggs v. Lahey, 101 N. Y. App. Div. 136.

be performed by any other person as by him, it has been held that he may be entitled, notwithstanding his official position, to recover compensation in addition to that which is attached to the office.1

upon

§ 390 (210). Police Officers; Power to make Arrests View. The office of a police officer is not known to the common law; it is created by statute, and such an officer has, and can exercise, only such powers as he is authorized to do by the legislature, expressly or derivatively. He is an officer of the State rather than

1 State v. Vasaly, 98 Minn. 46; sions. Houston v. Stewart, 40 Tex. Cloonan v. Kingston, 37 N. Y. Misc. Civ. App. 499; 90 S. W. Rep. 49; 322. See also Evans v. Trenton, 24 Atchison v. Owensboro, 114 Kv. 706. N. J. L. 764; Mayor, &c. of Niles v. If the city attorney is entitled to a Muzzy, 33 Mich. 61. Corporation commission on judgments recovered counsel held, under circumstances of by him and paid to the city, the city case and terms of his appointment not is liable for the full amount of his entitled to receive additional com- commission, if it arbitrarily releases a pensation. Ludlow v. Richie, 25 Ky. portion of the judgment. Houston v. Law Rep. 1581; Marshall v. Hayward, Stewart, 40 Tex. Civ. App. 499; 90 74 N. Y. App. Div. 27. Employee in S. W. Rep. 49. office of corporation counsel held not entitled to recover for services as a notary public, when he continued to render the services without protest and without charge after notice by the corporation counsel that notaries employed in the office would no longer be permitted to charge therefor. Hughes v. Mayor, &c. of New York, 84 N. Y. App. Div. 347, aff'd 176 N. Y. 585. See also Merzbach v. Mayor, &c. of New York, 163 N. Y. 16. Under a statute giving to the corporation counsel all costs collected from the adverse party, he must, in an action against the city therefor, show not only that the city was successful and the costs allowed, but also that the costs have been collected from the adverse party. Sutherland v. Rochester, 112 N. Y. App. Div. 712. See also Houston v. Stewart, 40 Tex. Civ. App. 499; 90 S. W. Rep. 49; Kemp v. Monett, 95 Mo. App. 452. A resolution authorizing and directing the city attorney to collect taxes in arrear for specified years and providing for payment of a percentage of the amount collected by way of compensation, held to continue only during the term of office of the city attorney and to terminate at the expiration thereof. Wilmington v. Bryan, 141 N. Car. 666. But where under such an employment, the city after his term of office expired received taxes on judgments recovered by the corporation attorney, the latter was held to be entitled to his commis

2 Commonwealth v. Dugan, 12 Met. (Mass.) 233; Commonwealth v. Hastings, 9 Met. (Mass.) 259; State v. King, 28 Mont. 268; ante, §§ 97, 103. Where a policeman is duly appointed under charter authority to organize and regulate a city watch and the general police of the city, the presumption is that he possesses the powers of ordinary peace officers at common law. Doering v. State, 49 Ind. 56. In Massachusetts, policemen are peace officers, and a person who assaults or obstructs them in the discharge of their duties is indictable, though they have not been sworn, the statute not requiring this. Buttrick v. Lowell, 1 Allen (Mass.), 172; Mitchell v. Rockland, 52 Me. 118. In People v. Metropolitan Police Board, 19 N. Y. 188, growing out of the act to establish a Metropolitan Police District, it was decided by a majority of the Court of Appeals that, although the office was a new one, yet the mode of filling it not being provided by the Constitution, it was in the power of the legislature to confer it upon persons discharging substantially the same duties within a more limited territorial jurisdiction, and to dispense with an oath of office. See also People v. Draper, 15 N. Y. 532, where the Court of Appeals held the "Act to establish a Metropolitan Police District" valid; approved, Metropolitan Board of Health v. Heister, 37 N. Y. 661; McDermott v. Metropolitan Police Board, 5 Abb. Pr. 422; Louisville