cipal is a special one; he cannot bind it by acts coming within the apparent scope of his power and authority as in the case of the agent acting for a private person or corporation but he can only make his principal liable through action that comes within the actual scope of his power and authority as expressly given. This subject has been fully considered in preceding sections.17 A contract made by one not authorized may be, however, subsequently ratified by the proper official or official body,618 or the corporation 52 N. H. 617; State v. Horton, 21 Nev. 466, 34 Pac. 316; Ryan v. Board of Audit of Royalton, 6 Misc. 478, 27 N. Y. Supp. 169. A board of excise has the power under Laws 1892, c. 401, § 11, to employ counsel. Adee v. Arnow, 91 Hun, 329, 36 N. Y. Supp. 1020; In re Taxpayers & Freeholders of Plattsburgh, 27 App. Div. 353, 50 N. Y. Supp. 356. N. Y. Laws, 1890, c. 322, tit. 4, § 5, subd. 20, authorizes boards of town trustees to employ attorneys, architects and other professional help, when in their discretion the business of the board or the village requires it. Graham v. City of New York, 33 Misc. 56, 66 N. Y. Supp. 754; Rockefeller v. Taylor, 69 App. Div. 176, 74 N. Y. Supp. 812; Treeman v. City of Perry (Okl.) 65 Pac. 923. The common council of a city of the first class has the power to engage attorneys to assist a city attorney in legal matters in which the city may be interested. Taylor v. Umatilla County, 6 Or. 394. County commissioners have the authority to employ an attorney other than the official one to represent the county in a case in which it is interested. State v. Hall, 37 Or. 479, 63 Pac. 13; Butz v. Fayette County, 168 Pa. 464, 32 Atl. 28; City Nat. Bank v. Presidio Co. (Tex. Civ. App.) 26 S. W. 775. County commissioners have the power to employ counsel to conduct a suit on behalf of the county in cases where it is an interested party. Grooms v. Atascosa County (Tex. Civ. App.) 32 S. W. 188; Field v. Marye, 83 Va. 882, 3 S. E. 707. Under Va. Const. art. 4, § 8, before a governor is authorized to employ counsel on behalf of the state, a resolution to that effect must receive the consent of both branches of the legislature. Rettinghouse v. City of Ashland, 106 Wis. 595, 82 N. W. 555. 617 See §§ 416 et seq., and 643 et seq., ante. Perry County Com'rs v. Bader, 20 Ind. App. 339, 50 N. E. 776; Fouke v. Jackson County, 84 Iowa, 616, 51 N. W. 71; Caswell v. City of Marshaltown, 101 Iowa, 598, 70 N. W. 717; Fletcher v. City of Lowell, 81 Mass. (15 Gray) 103; Smedley v. City of Grand Haven, 124 Mich. 424, 84 N. W. 626; State v. Vallins, 140 Mo. 523; Ransom v. City of New York, 24 Barb. (N. Y.) 226; Id., 15 How. Pr. (N. Y.) 145; Mark v. Village of West Troy, 69 Hun, 442, 23 N. Y. Supp. 422; People v. York, 32 App. Div. 57, 52 N. Y. Supp. 78; Nash v. City of Knoxville, 108 Tenn. 68, 64 S. W. 1062; Wiley v. City of Seattle, 7 Wash. 576, 35 Pac. 415, considering the right of a mayor in an emergency to employ special counsel where the city attorneys refuse to act. 618 Steiner v. Polk County, 40 Or. 124, 66 Pac. 707; Appel v. State, 9 Wyo. 187, 61 Pac. 1015. may take action that will estop it from denying the validity of a particular contract of employment." 619 § 710. Work included in regular duties. The creation of legal relations under a contract of employment may not only depend upon the considerations above stated but upon the further one that the business which a person may be employed to transact is a part of his regular duties as a public official for and on behalf of the public corporation,620 or services for the rendition of which he can receive no other compensation than that included in his regular salary.621 This particular question cannot be raised where the one claiming employment was not at that time a public official. § 711. Concrete illustrations. The principles given in the preceding sections will control and 619 Power v. May, 123 Cal. 147, 55 Pac. 796; First Nat. Bank of Decorah v. Doon Dist. Tp., 86 Iowa, 330; Ryce v. City of Osage, 88 Iowa, 558; Mound City v. Snoddy, 55 Kan. 126; City of Owensboro v. Weir, 95 Ky. 158; Gutta Percha & Rubber Mfg. Co. v. Village of Ogalalla, 40 Neb. 775; Trester v. City of Sheboygan, 87 Wis. 496; Town of Eagle River v. Oneida County, 86 Wis. 266, 56 N. W. 644; Langdon v. Town of Castleton, 30 Vt. 285. 620 People v. Warren, 14 Ill. App. 296. A city attorney may be directed by the proper authorities to assist the state's attorney in conducting prosecutions in which the city has a special interest and for his services he may receive compensation in addition to his regular salary. Warren County Com'rs v. Osburn, 4 Ind. App. 590, 31 N. E. 541. Where a regular county physician is employed, the burden is upon one engaged for special services to see the necessity for his employment. Moreland v. Common Council of Detroit, 130 Mich. 343, 89 N. W. 935. 621 United States v. King, 147 U. S. 676; Mullett's Adm'x v. United States, 150 U. S. 566; Huffman v. Greenwood County Com'rs, 23 Kan. 281. A county attorney is entitled to reasonable compensation in addition to his salary where he is directed by the board of county commissioners to go into another county and there render services for his county and such as were authorized by law. City of Calais v. Whidden, 64 Me. 249. The representative of a town in a legislature is under no official obligation to attend to the prosecution or adjustment of a claim in favor of the city against the state and for the rendition of such services he is entitled to a reasonable extra compensation. Pool v. City of Boston, 59 Mass. (5 Cush.) 219; Carroll v. City of St. Louis, 12 Mo. 444; McHenderson v. Anderson County, 105 Tenn. 591, 59 S. W. 1016; State v. Maloney, 92 Tenn. 62. regulate the employment of attorneys,622 physicians,623 survey 622 City of Selma v. Mullen, 46 Ala. 411; Lassen County v. Shinn, 88 Cal. 510, 26 Pac. 365; City of Denver v. Webber, 15 Colo. App. 511, 63 Pac. 804; Buck v. City of Eureka, 124 Cal. 61; Fite v. Black, 92 Ga. 363, 17 S. E. 349; Rice v. Gwinn, 5 Idaho, 394, 49 Pac. 412; Ponting v. Isaman, 7 Idaho, 581, 65 Pac. 434; People v. Warren, 14 Ill. App. 296; Ottawa Gaslight & Coke Co. v. People, 138 Ill. 336, 27 N. E. 924; Franklin County v. Layman, 145 Ill. 138, 33 N. E. 1094; Curtis v. Gowan, 34 Ill. App. 516; Town of Bloomington v. Lillard, 39 Ill. App. 616; Village of Harvey v. Wilson, 78 Ill. App. 544; Town of New Athens v. Thomas, 82 Ill. 259; Rush County Com'rs v. Cole, 2 Ind. App. 475, 28 N. E. 772; Julian v. State, 140 Ind. 581, 39 N. E. 923. Gordon V. Dearborn County Com'rs, 52 Ind. 322. A county is liable for the services of an attorney duly appointed to defend a poor person. Cullen v. Town of Carthage, 103 Ind. 196; Jay County Com'rs v. Taylor, 123 Ind. 148, 23 N. E. 752, 7 L. R. A. 160; Barr v. State, 148 Ind. 424, 47 N. E. 829; Templin v. Fremont Dist. Tp., 36 Iowa, 411; Caswell v. City of Marshalltown, 101 Iowa, 598, 70 N. W. 717; Bevington V. Woodbury County, 107 Iowa, 424, 78 N. W. 222; Taylor County v. Standley, 79 Iowa, 666, 44 N. W. 911; Thacher v. Jefferson County Com'rs, 13 Kan. 182; Huffman V. Greenwood County Com'rs, 23 Kan. 281; City of Owensboro v. Weir, 95 Ky. 158, 24 S. W. 115; Connolly v. Inhabitants Beverly, 151 Mass. 437, 24 N. E. 404; Jenney v. Mussey Tp., 121 Mich. 229, 80 N. W. 2; Cahill v. State Auditors, 127 Mich. 487, 86 N. W. of 950, 55 L. R. A. 493; Horn v. City of St. Paul, 80 Minn. 369, 83 N. W. 388; True v. Crow Wing County Com'rs, 83 Minn. 293, 86 N. W. 102; Cocke v. Copiah County Police, 38 Miss. 341; Reynolds V. Clark County, 162 Mo. 680, 63 S. W. 382; State v. Horton, 21 Nev. 466, 34 Pac. 316; Hackett v. Rockington County, 52 N. H. 617; In re Taxpayers & Freeholders of Plattsburgh, 27 App. Div. 353, 50 N. Y. Supp. 356; Purnell v. Worth, 117 N. C. 157, 23 S. E. 161, 30 L. R. A. 262; State v. Montgomery County Com'rs, 26 Ohio St. 599; Taylor v. Umatilla County, 6 Or. 394; Treeman v. City of Perry, 11 Okl. 66, 65 Pac. 923; City Nat. Bank v. Presidio County (Tex. Civ. App.) 26 S. W. 775; Wiley v. City of Seattle, 7 Wash. 576; Montgomery v. Jackson County Sup'rs, 22 Wis. 69; Wilson v. Village of Omro Trustees, 52 Wis. 131; Town of Eagle River v. Oneida County, 86 Wis. 266, 56 N. W. 644; Hopper v. Ashland County, 84 Wis. 655, 54 N. W. 1024; Appel v. State, 9 Wyo. 187, 61 Pac. 1015, construing Rev. St. § 1104, with reference to the manner of employing special counsel and holding that the board of county commissioners is the judge of the necessity for such employment and its determination can only be attacked for fraud. 623 Cape Breton County v. McKay, 18 Can. Sup. Ct. R. 639; Castle v. Bannock County, 8 Idaho, 124, 67 Pac. 35; Piatt County v. Knott, 99 Ill. App. 420; Lamar v. Pike County Com'rs, 4 Ind. App. 191, 30 N. E. 912. Where a prisoner is suddenly taken ill a jailer is authorized to employ a physician at the expense of the county. ors,624 civil engineers, 625 architects 626 and others coming within the classes under discussion. 627 § 712. The employment of clerks. Different considerations affect the employment of persons to perform clerical and ministerial duties. The engaging of members of the learned professions is what might be termed the exercise of an extraordinary power and one where the question of the right of its exercise is to be critically and closely examined. The hiring of clerks cannot be classed as the exercise of more than an ordinary power; a government is organized; departments and subdepartments and public offices are created and each one is charged by the sovereign with the performance on his behalf with certain governmental duties and functions. In order that this be properly done, it is necessary to employ unskilled laborers of the Perry County Com'rs v. Lamax (Ind. App.) 31 N. E. 584. An overseer of the poor has no authority to employ a physician other than the regular county physician even where the latter, in the opinion of the overseer, is entirely incompetent. Logan v. City of New Orleans, 27 La. Ann. 101; Barber v. City of Saginaw, 34 Mich. 52; State v. Vallins, 140 Mo. 523; People v. York, 32 App. Div. 57, 52 N. Y. Supp. 778; Connelly v. Almshouse Com'rs of Kingston, 32 Misc. 489, 66 N. Y. Supp. 194; Ward v. Town of Forest Grove, 20 Or. 355, 25 Pac. 1020; City of Williamsport v. Richter, 81 Pa. 508; Nash v. City of Knoxville, 108 Tenn. 68, 64 S. W. 1062. 624 Kornburg V. Deer Lodge County Com'rs, 10 Mont. 325, 25 Pac. 1041; In re Department of Pub ic Parks, 57 Hun, 588, 11 N. Y. Supp. 176; People v. Flagg, 17 N. Y. 584. 625 City of Ellsworth v. Rossiter, 46 Kan. 237, 26 Pac. 674; Tennessee Pav. Brick Co. v. Barker, 22 Ky. L. R. 1069, 59 S. W. 755; Mack v. City of New York, 37 Misc. 371, 75 N. Y. Supp. 809; Rettinghouse v. City of 626 In re Taxpayers & Freeholders of Plattsburgh, 27 App. Div. 353, 50 N. Y. Supp. 356; Butz v. Fayette County, 168 Pa. 464, 32 Atl. 28. 627 Harris v. Gibbins, 114 Cal. 418, 46 Pac. 292; Vigo County Com'rs v. Weeks, 130 Ind. 162, 29 N. E. 776; Garrigus v. Howard County Com'rs, 157 Ind. 13, 60 N. E. 948; Estlin v. State, 28 La. Ann. 527. Where a county treasurer and auditor are authorized to offer bonds at auction, they cannot employ an auctioneer for this purpose. Ridgeway V. Michellon, 42 N. J. Law, 405. An expert accountant for the finance committee of the city of Camden can only be employed through the passage of an ordinance by the common council. Smith v. City of Utica, 53 Hun, 638, 6 N. Y. Supp. 792. Authority to employ superintendent of parks considered. Crawford County Sup'rs v. Le Clerc, 4 Chand. (Wis.) 56. The employment of interpreters in the trial of criminal cases authorized. It is largely a ques higher classes to do the more menial acts.628 tion of the appropriation of public moneys rather than the inherent right to employ.629 But the public corporation clearly cannot, even under these liberal principles, employ, to be paid from the public purse, unnecessary clerical help or that which is to be engaged in business or acts foreign to the purpose of the organization or the doing of which is not authorized by some express grant of power.630 Employment of laborers. The same rules apply to and control the hiring of laborers to perform the most menial tasks, the hewers of wood and drawers of water.631 They must be employed under authority and engaged in the construction of or carrying on of authorized works of public improvement defined and measured by 628 Lowry v. City of Lexington, 24 Ky. L. R. 516, 68 S. W. 1109; Browning v. O'Donnell, 60 N. J. Law, 356, 37 Atl. 613; Herrick v. Hoos, 61 N. J. Law, 463, 39 Atl. 656; Costello v. City of New York, 63 N. Y. 48; Com. v. Gregg, 161 Pa. 528, 29 Atl. 297; Tenney v. State, 27 Wis. 387. 629 City & County of San Francisco v. Broderick, 125 Cal. 188, 57 Pac. 887; Arapahoe County Com'rs v. Clapp, 9 Colo. App. 167, 48 Pac. 157; McDonald v. Norman, 95 Ky. 593, 26 S. W. 808; In re Appropriations for Deputy City Officials, 25 Neb. 662, 41 N. W. 643. A stenographer is not a clerk within the meaning of Const. Neb. art. 5, § 24, which provides "that there shall be no allowance for clerk hire in the office of the attorney general." Lethbridge v. City of New York, 133 N. Y. 232, 30 N. E. 975, reversing 59 N. Y. Super. Ct. 486, 15 N. Y. Supp. 562; People v. Public Park Com'rs, 60 How. Pr. (N. Y.) 130; Langdon v. City of New York, 63 How. Pr. (N. Y.) 134; Phillips v. City of New York, 88 N. Y. 245. 630 Hathaway V. City of Des Moines, 97 Iowa, 333, 66 N. W. 188. 631 Town of Madison v. Newsome, 39 Fla. 149; Hathaway v. City of Des Moines, 97 Iowa, 333, 66 N. W. 188; Caswell v. City of Marshalltown, 101 Iowa, 598; City of Winfield v. Peeden, 8 Kan. App. 671, 57 Pac. 131; Haskell v. Inhabitants of Knox, 3 Me. 445; American Lighting Co. of Baltimore City v. McCuen, 92 Md. 703, 48 Atl. 352. One authorized to employ and discharge workmen has no such right in respect to those employed by a contractor engaged in public work. Johnson v. Kimball, 170 Mass. 58; Trainor v. Board of Auditors, 89 Mich. 162, 50 N. W. 809, 15 L. R. A. 95; State v. Smith, 82 Mo. 51; Marion County v. Woulard, 77 Miss. 343, 27 So. 619. A verbal instruction to county supervisors is insufficient to authorize the employment of one as a quarantine guard. Browning v. O'Donnell, 60 N. J. Law, 356; New Brunswick Water Com'rs v. Cramer, 61 N. J. Law, 270; Failing v. City of Syracuse, 4 Misc. 50, 24 N. Y. Supp. 705; Harvier v. New York & Hudson R. R. Co., 26 Misc. 397, 56 N. Y. Supp. 204; Dowling v. Palmer, 35 Misc. 316, 71 N. Y. Supp. 90; Norfolk v. Pollard, 94 Va. 279. |