950 PARKER V. PACE & DAVIS. {190 PARKER V. PACK & DAVIS. 4-3853
Opinion delivered May 6, 1935. HIGH*AYS—EMPLOYMENT OF ATTORNEYS.—The Highway Commission had implied authority to employ attorneys if their services were reasonably necessary to the primary object of constructing or maintaining roads. Appeal from Pulaski Circuit ' Court, Second Division Richard M. Mann, Judge ; affirmed. • Walter L. Pope and Leffel Gentry, for appellants.. R. W. Robins, for appellees: • Action by Frank Pace arid Wallace Davis, against the State auditor and the State treasurer. Judgment for plaintiffs from which the defendants appealed. MEHAFFY, J. This suit was begun by appellees in the Pulaski Circuit Caurt asking a writ of mandamus against the appellants. Appellants filed their response, and the case was tried on . the following agreed statement of facts : "It is agreed that: In the fall of the year of .1930 the firm of Pace & Davis, attorneys, composed of Frank Pace and Wallace DaviS, of Little Rock, Arkansas, was employed by tbe Arkansas State Highway Commission as the attorneys of said Commission to represent it hi certain litigation then pending or contemplated, among which was the case of Lahar Bros. v. Arkansas State Highway Commission in the chancery court of Pulaski County, Under a contract by which it was agreed that
ARK.] PAIIKEE V. PACE & DAVIS. 951 Pace & Davis were to receive -fo'r • their services in said case the sum of $10,000, which contract will be . introduced in evidence in the trial of the case. "The case of Lahar Bros. v. Arkansas State Highway Commission was a.. suit brought by E. L. Lahar and E. W. Lahar, contractors, in the Pulaski Chancery Court against the State Highway Commission, in which Lahar Bros. sought to recover judgment against the Arkansas State Highway COmmission for $137;478.05 for damages caused by certain alleged alterations in- three contracts that had been entered into between the Arkansas State Highway Commission and Lahar Bros. for the construction of certain roads in Clay and Greene countieS, Arkan-sas, known as State Jobs Nos.•1023; 1032 and 1042. The case was taken to the Supreme Court of Arkansas and was finally submitted to a. master, upon whose report judgment was rendered by the chancery court. The judgment of the court was in favor of the plaintiff for $11;- 129.76, which was less than the Highway Commission had previously offered in settlement of the case. Pace and Davis participated throughout in the handling • of the case, as attorneys for the ArkanSas • tate Highway Commission. "Pace & Davis were paid on the 25th day of June, 1931, the sum of $5,000 on the amount due to them for their fee in this case, in pursuance of the contract above referred to, leaving a balance of $5,000 due to them under said contract. "On January 14, 1933, the Arkansas State Highway Commission issued to Pace & Davis State Highway Commission, voucher No. 532 for $5,000, covering the balance due to them for their fee in said case, in pursuance .of said contract, a copy of which voucher is hereto attached; marked Exhibit A and made a.part hereof. "On January 14, 1933, J. Oscar HumphreY, Auditor of the State of Arkansas, on presentation of the above-mentioned voucher No. 532, is§ued 'his warrant on .the State Treasurer of the State of Arkansas in favor of Pace & Davis for the sum of $5,000 in settlement of the balance due to Pace l & Davis aS . above set forth, a copy
952 PARKER V. PACE & DAVIS. [190 of which warrant is hereto attached, marked Exhibit B and made a part hereof. " Thereafter the claim 'of Paee & Davis for the sum of $5,000, based upon the above-mentioned contract with the Arkansas State Highway Commission and the above-mentioned voucher, and warrant was presented to the State Refundin ce Board composed of Governor J. M. Futrell, Secretary of State Ed F. McDonald, Lieutenant Governor Lee Cazort, Treasurer of State Roy V. Leo-nard, Auditor j. Oscar Humphrey, and Attorney General Hal Norwood, and said board on March 6, 1934, made an order approving said claim .and ordering the payment thereof in the sum of $5,000; and on March 6, 1.934, the said board issued its voucher No. 398 in favor of Pace & Davis to cover the amount due to them on the said warrant and voucher and claim, a copy of which voucher of the said State Refunding Board is attached hereto, marked Exhibit C and made a part bereof.. "On March 14, 1934, upon the request of the State Comptroller's office, the State Refunding Board ordered that the said voucher No. 398 issued by said State Refunding Board on March 6, 1934, be held in abeyance. "On October 29, 1934, at a meeting of the said State Refunding Board regularly held in the office of the Governor of the State of Arkansas, by motion unanimously adopted, it was ordered that the said claim of Pace & Davis be allowed, and that the voucher No. 398 thereto-fore issued by the State Refunding Board, in pursuance of order of said board as above set forth, be released. ." The said State Refunding Board referred to above is the Refunding Board created by act of the General Assembly of the State of Arkansas for the purpose of bearing . and determining claims against the Arkansas State Highway Commission. "Though the said claim has been allowed and or-defed paid by the State Refunding Board, and its voucher therefoi has been duly issued lay said board, the State Auditor haS failed and refuSed to issue a warrant "on said voucher • iipOn the Treasurer of the • State foi. the payment of the athount therefor to Pace & Davis, claiming: that he -wag directed -to' . wahhold iSsuance . of
ARE.] PARKER V. PACE & DAVIS. 95:3 said warrant by the State Comptroller ; and tlie issuance of said warrant by the State Auditor is refused solely on.the ground that it is claimed by the State Comptroller that the contract entered into by said attorneys with the State Highway Commission was void, and said attorneys have been paid in full for all services rendered under any such contract ; and that there was no authorization of this particular warrant by tbe Highway Commission. 'The Arkansas State Highway Commission during a period beginning on January 1, 1927, and extending until February 29, 1932, on account of the volume of litigation in which said Highway Commission was involved, employed to represent said Commission in such litigation various attorneys throughout tbe State of Ar-kansas, and paid said attorneys ' fees for such services ; a statement showing- the names of said attorneys, the date of their employment, the nature of their services and the amount paid to them, is contained in a written memorandum hereto attached, marked Exhibit D and made a part of this stipulation. "Either side may introduce any additional testimony it may see fit." A copy of the Highway Commission Voucher was introduced. showing that it was issued to Pace & Davis for $5,000; also copy of Auditor's warrant for $5,000 in favor of Pace & Davis ; and also copy of Refunding Board voucher in favor of • Pace & Davis for $5,000. There was also a list of attorneyS which had . beeli eni-ployed by the State Highway Commission dUring a period from january 1, 1927, to February 29, 1932, Showing a list of seventy-five attorneys or firms that were employed by the Highway Commission. There was also the evidence of appellant, J. Oscar Humphrey, Frank Pace, Sam Wilson, member of the Highway . Commission, J. L. Williams,' also member of the Highway Commission, M. H. Thomas, formerly secretary of the Arkansas State Highway Commission, • and Griffin Smitb, State Comptroller. The . circuit court held that the Highway Commission had authority to employ tbe attorneys, and issned a writ of mandamus requiring the payment of the amount. TO
954 PA It KER V. P A UE & DA [190 reverse this judgment of the circuit court this appeal is prosecuted. The appellants state that the only question to be determined is whether the Highway Commission had authority, necessarily implied, to employ the attorneys. It is urged that, since there is no express authority, the Commission could not employ the attorneys, unless it was absolutely necessary to the primary object of constructing or maintaining yoads. The authorities are not in harmony, but we think the better rule is that, if it is reasonably necessary; the authority is implied. . We stated in the case of Madison County v. Simpson,173 Ark. 755, 293 S. W. 34: "Necessary, as used in the Digest, does not mean absolutely essential. The word 'necessary' must be considered in the connection in which it is used, and, in this sense, we think it means convenient, useful, appropriate, suitable, proper, or conducive to the end sought." 'If we apply with utmost strictness the rule that a city can exercise only such powers as are expressly delegated to it by the General Assembly, and such as are necessarily implied from those expressly given, it must still be said that the General Assembly has given to the city of 'Chicago, -in express terms, the power- to make and enforce all necessary police regulations, and that, as held in Spiegler v. City of ChiCago, snp -ra, [216 Ill. 114, 74 N. E. 718] the . word 'necessary' does not mean 'indispensable.' Chicago v. Kluever, 257 Ill. 317, 100 N. E. 917. "A board of county commissioners, in addition_ to the powers .specially .conferred by statute, has such other powers as are incidentally necessary to enable such board to carry into effect the powers granted.. The word.'necessary' considered, and, in respect to the implied powers of boards of county commissioners, held to mean no more than the exercise of such powers as are reasonably required by the exigencies of each case as it arises." Emberson v. Adams County, 93 Neb. 823, 142 N. W . 294. To the same effect 'are the following cases : K. C., K. V• (.6 W. R. CO. v. Rristow, 101 Kan. 557, 167 Pac. 1138; Throilkill v. Crosbyton-South Plains R..Co., 246 Fed. 687;
ARK.] PARRER V. PACE & DAvis. 955 Heinz v. National Bank of Commerce, 237 Fed. 942; Mc-Culloch v. State of Md., 4 Wheat. 310, 4 L. ed. 314. But it is insisted that ample provisioa was made for legal assistance by providing that the Attorney General should represent it, and that a special Assistant Attorney General was designated . to represent the HighwaY Commission. We think this clearly shows that the Legislature realized that the assistance of attorneys was necessary, and there is nothing to indicate that the Assistant Attorney General . designated or the • Attorney General's office could try all the case of the Arkansas State Highway Commission, or that the Legislature thought so. It was certainly understood that there would be • litigation, and that the service of attorneys would be necessary, and, if the. Attorney General and his assistants could not try all the cases and attend to all the litigation, we think the power to secure the services of other attorneys is clearly implied. Moreover, it is common knowledge that attorneys have been employed by the Highway Commission and paid by it, and, notwithstanding several sessions of tbe General Assembly have been held, no objection has ever been made to the employment of attorneys by the Highway Commission, and no law passed to prevent it. In addition to this, the Legislature passed a law creating a board for the purpose of examining into claims and passing upon claims, and the evidence shows that the claim involved here-was presented to the Refunding Board, and . this hoard arif)roved the claim and issued its voucher. The evidence also shows -that 100 or more other attorneys and firms have been employed and paid by the Highway Commission, during the period beginning in 1927. No objection was ever made to the employment of these attorneys or to paying them. . This court has several times held that the coUnty court has power to employ additional counsel, although the statute provides that the prosecuting; attorney shall defend all suits brought against the State or 'any county in his circuit. The appellants admit that the attorneys were employed, and that they rendered the services, 'aad that the
956 [190 services were worth the amount claimed. We think this case may be distinguished from the case of Arkansas Highway Comwission v. Dodge, ante p. 131, relied on by appellants. Tbe law did not authorize a rate expert, and there is nothing in the law to indicate that the Legislature thought the services of the rate expert would be necessary. This case also differs from the Dodge case in that the board created by the Legislature to pass on claims investigated this claim and approved it. It was said in the Dodge case : "There is another reason that seems cogent and effective in the determination oLthe matter here involved. There was nO . appropriation for the payment of this alleged obligation, from which we may imply the authority to employ 'Wood." No such reason exists in this case. We therefore conclude that the judgment of the trial court was correct, and it is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.