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6.1. ERMUSR 04-14-2009~i ~ Elk River -=~ Municipal Utilities 13069 Orono Parkway • P.O. Box 430 Phone: 763.441.2020 Elk River, MN 55330-0430 Fax: 763.441.8099 April 14, 2009 To: Elk River Municipal Utilities Commission John Dietz Jerry Gumphrey Daryl Thompson From: John Dietz Subject: Use of City Attorney In the past ERMU I~as used both City Attorney Peter Beck and other outside attorneys to deal with any legal issues. Our local contact in recent months has been Ron Black. By law, Utility Commissions do not have the authority to hire their own attorneys. They are supposed to use the City Attorney. (See attached case law). At today's meeting I will be making a motion that we use City Attorney Peter Beck and his office for all future ERMU legal work. I have visited with City Administrator Lori Johnson and she has assured me that we will get the same contract rate that the City pays. I believe this will streamline and simplify our legal issues. Many of them cross over with the City anyway and it makes sense that we have the same attorney. I have every confidence that tl~e City Attorney will always look out for the best interests of Elk River Municipal Utilities. C~~~ VJLL'-G}:y: !~lJI3LIC lJ'fII.ITIFS CONH!.;SION: Coauniasion may not employ counsel 1~vcauBe of lack of authority under N.S. R 412.161 and ease lea. ::.itch Z0, 1967 Eton. uavi:f ~. LL~uschor ,' Proctor Vtllagc Attorney 917 Torrey Huil~inq Duluth, tiinnesotn near Mr. Dnuschor: Zn your letter to Attorney c3eneral Douglas M. lieaa, you present the following rF crs 'The Village of Proctor has created an•3 hae a Public Util- ities Comaiesioa of which the members are appoints3 by the Village Council. The Village O~uncil has •leo ar- pointed ^ys~1F a-^ Village Attorney. In the peat !ev yearn. the Public Utilities Cosedseion ha• sleo hired an attorney to handle the attests o! the Public Utili- ties Coeasieeion, which, in an oblique way inwlvee the Village o! ~roetor. The Bean that they have hired i• also the rWaicipsl Judge of the Village of Psoctar. It has been tt+e ispseesion of the Villagqe Council thrt the Village J-ttosneyy ie the one who Le zeeponeible !or repse- eenting the Village o! Proctor and,Gr its depestaanta of the Village of Proctor, of which th• Public Utilities Coamission is one." You ask substantially the Following QUESTION8 1. Zs it loyal for the Public Utilities Cot~misstcn to employ separate counsel to represent thew when these is in exietencs a regular appointed Village Attosnsyl 2. If tt-e answr to the above question ie in th• attirma- tive, can the municipal fudge serve as attorney for the public utilities c~mnission7 QYIliIOl~ The village utilities ~ouv;eoior. is r. ba.'y establishes'. by oriin.anca of the villa~~e council i:urs:uant to A:.S. S 012.331. Hon. vavid 3. Bouschcr ---' ~'azch 20, 1967 such a bait is an instrtuentality of the village gowrirment, anu is not a corporation. Gp. Atty. sea. 7T9a-S, wpril 22, 1y52 1x1161, 1952 Re1+o=t), copy encloae,~. The powers of the ca.~isoion ose set out by M.S. f 412.361. particular attcr~tion is colle:l to ~ub~.l. 2 thereof, which is as tollowe~ `TM cossuiseion ehnll love power to employ all oe~eesasy help toe the toanegeesent and speration of the publia utility, preecsibe duties of officers anus eaployees and tix their eceopeneation." This subdivision. which !e the only portion o! the statutes which authosires the comaiseiou to aaploy persons, :oea not grant to the ooeatesioa the powr to appoint an attorney. in gate ex rel. ~LY~-v_ fin, 117 Nlnn. 323. 136 Oi.H. 402 (1912), the court Aeld that a city utilities caroission whose ststutosy powess were sinilas to the poMere granted to a village utilities commission bll M.s. f 412.361, subd. 2, ha.~ no pa+er under the statute to hire as attorney, arri ;.hat the city attorney was to Do legal advisor to the commission. Op. /-tty• ~;en. nparil 22. 1952, above cited, concluded that N.:i. $ 412.361 di•_: rest authorise a village ~.ublic utilities coswieslon to hire counsel. it is therefc:~ our opinion that the public utilities commission of the villaya aP i~roctor has no power wAatsoever to employ legal counsel. Your first question is therefore answerw: in the ncgativo, arKi your second quostion is thus moot. Your o very truly i~Ol1G[~S M. li~D Attorney c7eneral AMBtdk enc. t,u-N M. SCFLEBI's'GER ;;F.ecial nasistant r~ttornay 3enorol 402. 130 NORTHWESTERN REPORTER should you find after a fair and careful consideration of all the evidence in this case, weighing it as you should, that the passing of this property from Bloosten was for a consideration that was reasonably near the value of the property-that is, the value of the consideration compared favorably, and waa not so clearly below the market value of the property as to strike an ordinarily intelligent man with the conviction that such a sale never could have been made in good faith-if you find that they bought it, and paid a fair valuation for it, and that they both bought it jointly, then they became the owners of it, and they were entitled to the possession of it, and the taL-ing of ft by the defendants was wrongful, and it becomes your duty, it you so find, to find for the plaintiff. • ' • IP, on the other hand, you $nd this sale was not made properly and for. a fair`a•Itrl reasonable considetation, it it waa made wltti'the intention of defraud- ing and defeating the creditors of Louis Bloosten, then I charge you that the plain- tiffs did not become the owners of that prop- erty, and that the taking of it by the defend- ants was a rightful taking, and that they had a right to it, and it will then become your duty to find a verdict Por the defend- ants." It !s well settled that a sale or mort- gage, although upon an adequate considera- tion, may be not only constructively, but actually, fraudulent as against creditors. Braley v, Byrnes, 20 Minn. 435 (Gil. 389); Fish v. McDonnAll, 42 Minn. 519, 44 N. W. nab. It follows that the Instructions com- plafned of were erroneous, and constitute re- versible error, for the jury might well have understood therefrom that 1E the plninttf[s paid a fair price for the property they were entitled to a verdict. The record does not justify the conclusion that the instructions were the result of inadvertent or uninten- tional misstatements on the part of the trial court; hence the instruction:, do not fall within the rule of Steinbauer v. Stone, 85 Minn. 274, 88 N. W. ?74. Order reversed, and. new trial granted. (117 Mina. ass) STATE ez rel. FINLAYSON v. GORMAN, City Clerk. (Supreme Court of Minnesota. April 26, 1912.) (,4yRabua by the Court.) I 1. MUNIOIPAL CORPORATTONa (~ 203')-DE- •PARTMENTS-POwEa TO Ea[PLOY ATTORNEY. The water, light, power, end building com- m[ssioa of the city of Eaet Grand Forks be- tag a governmental department of the city,' the City attorney to its legal adviser, sad it' has no ezpreas or implied power to employ its own attorney, thereby creating a liability against the Gty. [Ed. Note.-For other ca9ee, see Municipal Corporations Cent. Dig. §§ 657-581; Dec. Dig. § 205.•j (Dunn. 2. MUNICIPAL (',URPORATIONa (§ 205•)-DE- YARTMENTa-POWEa TO E3iPLOY ATTORNEY. Concedia$, without deciding, that an emer- gency may glue power where none otherwise exists, it is held that, when the commission employed the attorney for whose services the city is sought to be made liable, no emergency eziated, the commission had performed its duty, and was under no legal obligation to assist a private person to enforce a clefm au- dited end ordered paid by it against the, city. [I:d. Note.-For other cases, see Municipal Corporations Ceat. Dig. §§ 557-661; Dec. Dig. § 205.'j Appeal from District Court, Polk County; tiVm. 1Vatts, Judge. hlaudamua by the state, on the relation of A. Flnlayson, to James Gorman, ns city clerk of the city of East Grand Forks. From a judgment on an order quashing an alternative writ, the relator appeals. Af- firmed. G. A. E. Finlayson, of East Grand Forks, !or appellant. I`. C. illassee, S. A. Bronson, and W. J. Rasmussen, all of East Grand Forks, for respondent. HOLT, J. The appealls from a judgment entered upon an order quashing an alterna- tive writ of mandamus, and Involves the one question whether or not the water, light, power, and building commission of the city of East Grand Forks may create a liability against the city for compensation to an at- torney employed by the commission. It ap- pears from the writ that the city, organized under chapter 8 of the General Laws of 1895, in 1909 availed itself of the provisions in chapter 412 of the General Laws of 1907 (Rev. Laws Supp. 1909, ;§ 775-8 to 775-16), and daly created a water, light, power, and building commission, composed of three mem- bers. The respondent is the city clerk, and under the law should act as secretary of the commission, and is the one whose duty it fa to draw warrants upon the city treasurer for the claims allowed and ordered paid by the commission. It is further made to appear that the other city officials declined to rec- ognize the authority of the commission, the city attorney refused to advise the commis- sion when called upon;. the city treasurer would not pay the claims incurred by the commission, and the respondent herein, as secretary, will not issue or sign the warrants ordered, so that the commission was practi- cally ousted from office. In this situation the commission, in January, 1910, employed appellant's assignor as its attorney to give advice and Institute such action In court as would establish the authority of the com- mission and enable 1t to perform its duties to the public. The attorney so employed rendered services between January 17, 1910, .end March, 1910, in counseling and advising the commission !n relation to the commence= went o! proceedings for relief, and in the preparation, rnmmenceinent, and trial In the district court and thta court of an action a i •6or other cases see same topic and aectlan NUDtBER to Dee. Dtg. d Am. Dig. Key No. Serlaa k Rep'r Iade:ea " Minn.) STATE v. 40RMAN 403 of mandamus to compel the city treasurer to mission. And ft follows that, If this inhtbi- pay a certain R•arrant issued to Robert tion le in force as to the commission, no n Braithwaite by the commisston, which ac- implied power for It to employ counsel may 3 ' lion resulted in a peremptory writ compel- be read into chapter 412 of the General Lawa ~ ling payment. of 1807. The intention o! the Legislature in i This proceeding was brought !n the name the act of 1895 to guard against burdening ~ of the state, oa relation of the commission the taxpayers of small cittes with more than and the said claimant Braithwaite. It fur- one legal department fa so plain, and that t they appears that the attorney afterwards object so worthy, that we have no inclin~- . ~ presented his claim for compensation for his lion to adopt the view of appellant that the services, and the commission, November 1, clause quoted in said section 200 of chapter 1810, duly allowed and ordered 1t paid in 8 of the General Laws of 1895 was repealed the sum o! $229.12; said sum being the rea- by implication by the provision in.said chap- . sonable value of the services so rendered. ter 412 of the General Lawa of 1907, which • TDe respondent's refusal to issue the war- reads: "They [the commission] shall have • rant, though authorized and requested so to authority to buy al] material, and employ • do by the commission, also appears, as well all help necessa as the assignment of the claim by the niter- extend, add to, change or modify said plants. ney to the relator, the appellant. In grant- bulldin s and halls, or an ing respondent's motion to g Y Part thereof; the trial court said: "I amgof the opinion fuel a dalsupplles, and a ploy allohelpynecl that the water, Light, power, and building essary to operate said pleats." It cannot commission Las no power to make the city be reasonably contended that this language of East Grand Forks liable Por Pees of an way intended to confer the power to employ attorney that !t might Lire, without the an- an attorney, 1n view o! the Pact that for thority oP the city council of East Grand every city to which chapter 412 applies the Forks to hire such attorney." law alread [tl Sections 198' to and Including section duty it to to render egalaservicesrforhthe 201 of chapter 8 of General Laws oP 1895, city, and every officer, board, and depart- under which the municipality was created, meat thereof. The duties of a city attorney provide !or the appointment of a city alter- in cittes of less than 10,000 inhabitants can- • ney and define his duties, stating that: "lie not be exceedingly arduous. Frequently city shall be the legal adviser of the city and officinla dlsngree as to their several duties, stall perform all the services incident to the and clash; but, because of this, can it for a office, and shall appear in and conduct all moment be admitted that eacL has the power civtl suits, prosecutions sad proceedings in by Implication to Lire an• attorney for con- which the city shall be directly or indirectly saltation and litigation, and make the city Interested. • • • He shall advise the responsible for the services so rendered? As city council and all city officers in respect bearing on this question, and the reluctance to their official duties. He shall personally of Courts to imply power to hire an attor- or by an assistant attend all the meetings ney where none is given, may be cited Hora of the city councll and such of the commit- v. City oP St. Paul, 80 Minn. 388, 83 N, W. tees or boards as shall request his attend- 388, True v. Board oP Co. Com. of Crow sues, and ao board, department nor officer ~V1ng County, 83 Minn. 293, 88 N. W. 102, of the city shall Lave or employ any other and Jackson v. Board of Education of the attorney in connection with their official du- City of Minneapolis, 112 Minn. 187, 127 N. ties." Any assistant, permanent or .tempo- W. 589. rary, moat be appointed by the city niter- [Z] But counsel insists that the facts •, ney.. Section 201. TLe water, light, power, slow that an emergency arose which threat- and building commission is merely aboard erred to deprive We city of the services of or department of the city governmAnt. the commisston. Granting that an emergen- • WLile it may, within its sphere, incur ez- cy may create a power where none otherwise penes, enter into contracts, and allow and exists, we do not think tLe facts stated in order tLe claims therefor paid, Independently the writ show an emergency, TLe litigation of the city council, it has been given no pow- in which the attorney was employed was not er to sue or be sued, so that it stands in directed against the coaimisaton as eacL, nor need of no attorney to carry on Its litigation. was any pecuniary interest of the publle at Monfort v. Wheelock, 78 Mina 189, 80 N. stake in 1t. The cases cited and relied on ~V. 955. American Electric Co. v, Waseca, by appellant, viz., Wiley v. Seattle, ?Wash. 102 Minn. 328, 113 N. W. 899. TLerefare, b78, 35 Pac. 415. 38 Am. St. Rep, 905, Smed- the commission being a department oP the ley v, Kirby, 120 MIcL. 268, 79 N: W. 137, city, it must be conceded that, by the section Clty of Louisville v. Murphy, 86 gy. ~ 5 above quoted, the duly appointed city alter- S. W. 194, Barnert v. Mayor, 48 N. J. Law, ney' became its legal adviser, and the stet- 395, 8 Atl. 15, are all cases where proceed- utory inhibition against any board, depart- lugs were taken against an official to compel • anent, or officer o! the city Laving or em- Lim to. perform some official act which. Le ploying any otter' attorney In connection deemed violative o! his duty to the public I with their official duties applies to the com- and InJuriously a>Yecting interests o! great i I I 404 136 NORTHFVESTERN REPORTER consequence to the municipality, and where he was compelled to employ counsel or suftel judgment to go against the interests affected, because the regular city attorney refused tc act or acted in opposition. 'Where such offi• clef succeeded in vindicating the stand tak• on, the court, In the above cases, holds that life municipality became liable for the sere ices of the attorney employed by the official to early ou the litlgatiou, on the ground that the emergency made it imperative, when the duly appointed legal representative refused to act, or was acting against the lntetests of the municipality, that other legal assist- ance be secured. But 1n the case at bar it is apparent from the writ that the attorney's services ren- dered by appellant's nsaignoc were not iu any proceeding either to compel or enjoin an official duty by the commission. Nor was its existence at stake. The statement in the writ that, because certain city officers would not do their duty, the result would wipe out the commission, is a mere conclusion not nterlting consideration. So that we have the fact that the attorney's services claimed were substantially all tendered in a man- damus proceeding instituted by the three commissioners and one Braithwaite, whose claiai for services the commission lead duly audited and ordered paid by warrant on the city treasurer. This warrant of Braithwaite the treasurer refused to pay, and the pro- ceeding resulted in judgment directing pay- ment. State ex rel. Briggs v. McIlrnlth, 113 Minn. 237, 129 N. VV. 377. The proceeding was the enforcement of a mere private right against the city, although incidentally it served to bring home notice to a contuma- cious city official that the commission pos- sessed some authority. The commission had performed Its full duty to the public, and exhausted its powers with reference to the Braithwaite claim, when that was audited sad ordered paid. No legal obligation. rested on the commission to,force the city treasur- er to pay it. ~Ve concur in the opinion of the, trial court that the claim sought to be enforced .is not a legal claim against the city. Affirmed. (118 Miaa. 53) GENERAL ]ELECTRIC CO. v. O'CONN);LL. (Supt•eme Court of Bfinnesota. May 31, 1912.) (Syllabus by the Court.) $J1LE8 (~ 354•)-ACTION FOB PBICE-ANSwaB -Daxuaaas. Answer, in an action for the price of ma- chiaery, setting tip fraud on the port of the seller in obtaining the written Contracts sued on end claiming damages on account thereof, held not obnoxious to demurrer, on the ground that its establishment would involve the admis- sion of parol evidence to vaey the terms or the aeope•of the said eontracta. [Ed. Note.-For other cases, see Sales, Cent. .Dig. ¢j 1003-1024;.. Dee Dig. ~ 354.'x] 'For other cues ass rams toplo and aectlen NUMHHR In (311nn. Appeal from DLslrict Court, St. Loula County; Wm. A. Cant, Judge. Action by the General Electric Company against Wick O'Connell. From an order overruling a demurrer to the answer, plain- tiff appeals. Alarmed. Iiaupt, OaL-ley & Dickey, of Duluth, for appellant. O. J. Larson and af, E. Louisell, both of Duluth, for respondent. PHILIP E. BRO`VN, J. This is an appeal by the plaintiff from an order overruling its demurrers to the answer and alleged coun- terclaims of the defendant, on the ground that the answer does not state facts sutS- cient to constitute a defense or counterclaim, It appeal's from the complaint that the Ft i R-ayne Electric Works, a corporation, on December 17, 1910, entered into a written contract with the defendant, whereby it sold to him certain rock drills and equip- ment for the agreed pt•ice of X1,550, payable one-halt in cash and the remainder with- in 30 days; and fot• a second cause of action the plaintiff alleges that on January 8, 1911, the said Ft. Bayne Electric \Vorks entered into another wt•itten contract with the de- fendant, whereby it sold him certain other drills sod apparatus for .the suns of X1,550, payable oa the same terms as above stated. Tho complaint Put•ther alleges, with refer- ence to both causes of action, that the said drills, equipment, and apparatus were duly delivered to the defendant; that on June 1, 1911, the said Ft. 1Vayne Electric `VoI•ks as- signed the said contracts to the plaintiff; and that no pat•t of the purchase price of the said drills and equipment has been paid, ezcept the sum of X775 ou each contract. Neither o! the said contracts, which were set out in the complaint, contained any warranty; and both included a provision to the effect that there were no understand- ings, promisee, or agreements on the pat•t of either of the parties, other than those slat- ed to the said contracts. . The defendant, in his answer, admitted the execution of the said contracts, the, de• livegy o! the property to him as c1aluleti by the plaintiff, and that the defendant had paid. nothing thereon, ezcept as 'stated !n the complaint, and set out, both as a defense and as as alleged counterclaim thereto, that before the defendant executed the said writ- ten eontracta the said Ft. Wayne Electric Works, to induce hiln so to do, falsely and fraudulently represented to him that it Lad made a test of the said drills and equipment with a cet•tain rocL- from the site of a •cer• loin tunnel, which the defendant Lad there' tofore contracted to construct, and which he was then constructing, and which rock was a fair sample of the material the defendant would encounter in the prosecution of such work; ell of which the said Ft. Wayne Elec- tric Works ,then knew.; that the said drllls Dig. t Jim. Die. Kay No. Seder ! Rep'r Iadeser Elk River ~" Municipal Utilities 13069 Orono Parkway • P.O. Box 430 Elk River, MN 55330-0430 April 14, 2009 To: Elk River Municipal Utilities Commission John Dietz Jerry Gumphrey Daryl Thompson From: John Dietz Subject: Use of City Attorney a.i Phone: 763.441.2020 Fax: 763.441.8099 In the past ERMU leas used both City Attorney Peter Beck and other outside attorneys to deal with any legal issues. Our local contact in recelit months has been Ron Black. By law, Utility Commissions do not have the authority to hire their own attorneys. They are supposed to use the City Attorney. (See attached case law). At today's meeting I will be making a motion that we use City Attorney Peter Beck and his office for all future ERMU legal work. I Dave visited with City Administrator Lori Johnson and she has assured me that we will get the same contract rate that the City pays. I believe this will streamline and simplify our legal issues. Many of them cross over with the City anyway and it makes sense that we have the same attorney. I have every confidence that the City Attorney will always look out for the best interests of Elk River Municipal Utilities. ltr. Clarenoe C. ilitchell -•2 April 22, 1952 that a corporation ie. 3t~te y`Co~~ 117 Nirui. 323. 136 r. H. 402, hold that the water, light and power ooareiasion of the city of Sast (3raM Forks, being a gorernncatal department o! the pity, the City attorney ie its le al adviser and !t has no e £ :press or ia- plied authority to employ its own attorney, thereby creating a li- ability aga.i~t the pity. The first que:;tioa it answered lA the negattve. 2., 3. "The village oou:.oil shall have power to provide for the prosecution ~. defense of actions or pro- oeedinga at Lw in whioh the village nay be interested and it uay emplo;• oounasl _^or tha Purpoao." t/SA 12.21, ubs- ~..e...Ks It is Inpractioe.l to attarnpt to annwel• your seeand and tt3~-•d queatiot~s without aesliiC• the complaint. R'o do not know what Ehs alle Mtio~ia of i:ho ooMplaipt aro. I."e do not know the relief' ron8ht to bs obtained as stated in the Prayer. It may be that Lhe all~~~:!•,1•,na of t}ie oomplaint are auah that it shows on its f~:oe that the indiviuuals nxrird are sued sa offioera o; the villas sad that the relief' souy,;it is to rbs rain those of::cers from doing, 02. threateninf; to do, acme pertain tt,ir~c,. I! you care to Bond th., complaint in for eaaminatioa, we will attempt to I~ivo it tlu~ther .aoneideretion. Ycura v~,ty truly J. .1. A. L~UIlH2UI97' Attorney Cenerel CE(fiYH CIiAlII.A'S L. FIOUSTCN Assiataut Attornoy General __, ~'.azch 10, 1967 Non. 9avid 3. gouschor Such a body is an instrtluntallty of the village gowrtnent, anu is not a corporation. G~. AttY• dep. 779a-5, wpril 22, 1y52 1M161, 1952 Repo=tl, ~pY encloser. The powers of the aavsiaolon nze ast out by M.5. f 412.361. Pasticular attention la culled to ~ub~.l. 2 thereof, which is as lollo++s~ `TM cooeaisston sbnll Dave power to employ all neoessasy help Los the ssnsgee-ent and operation of the publia utility, prescribe defies of oiticezs an~~ employees and fix tDeis aos~peesstion." This subdivision. whioh is the only portion o! the ^tatutw vhich authorizes the cos~nissiott to employ persons, ~oea not gsant to L•he oooiesioo the powr ~ appoint an attorney. In ,-~R,tate ax rel. ~~.v_ q~~, 117 llltw. 3Z 3. 136 b1.N. 4v2 (19121, the court Dell flats city utilities cowroission whose ststutosy polders were sisilar to the pa»ess granted to a village utilities caotsission by N.s. f 412.361, subd. 2, he.~ no power uncles the statute to haze as attorney, ar-d Lhat tDe city attorney vss to be legal advisor Lo the camaission. ap. 1-ttY• ~• Apcil 22, 1952, above cited. concluded that N.S. S 412.361 di•_: not authorise a villags j.ublic utilities comwission to hire counsel. it is thereoc=~ our opinion that the public utilities comaission of the villays of @zoctoz has no power Mhatswvez to employ largnl counsel. Your first yueatiop is therefore answerw: in the ncgativo, and Yous second quoetion is thus moot. Yours very truly llpUGL.AS M. iL~U Attorney cieneral ~,UiN M. SCF.LESI's'CER :;~.ecial ~aeistsnt rttorney 3eneral AMlB i dk enc. Village-Public utility commission ma suit against villa~e and members of commiasion,y attorne t M. S. A. 12. 1 Y o defend 4 33 . 12.361, 412.221, subd. 5. '~ ~ ~ April 22, 1952 ~~_. ~ `~ !~l ~ Y11L L{ •1 ~ i. ~'. Clarenoe C. Mitchell ~ ~~-' " ~ ~ ~• • 111' ~•iaoitogttKiae7 , ~ ~ ~~ ~ noreota /:, ~,~ ~+• _ `; Dom' w•. ltitohall t ~ ' ~ j,;;;, `\T^ ~'om 7our letter of April 17, I take these •J \~ FACTS i ~~ QAder authority of YSA 12.331, there exists in the •illage of !'rineetop a publio utilities eommiseloa. the •ilL • and suit !a pending xherein g members of the oo~ornission are gamed ae defendants. ~l Tou ask there 1`~T)( QUESTI023 f el' Can the Commission retain oounssl and \ hie •er~ices from the tundr wader its oontrplf for a2' L it an obli ation undertake the defense of of the •i11aEe attorney to hers thereof without bsineaid Commission and the mem_ Village Couaoil! B dslegsted to so do by the miselonsortiteym~mbir•Ciuaoil if Co®eiaeion or its PP~int oouns~letodrepresentothe memberst rY . OPINION ~ 1• 1'he Public utilitisr ccmmiaaiou is an instruments ~ of the •illa~e Fo~ernment but it !e llty ~~ not a ~ of the oo='Poration. It is a ~overnmeat. The Pars PoRers of the oormnieaion aro stated in KgA ',~, 412.361. Among euoh porrei•e, the power to sue or defend • suit is ,, ~, not enumerated. 1'hs oom'nission is not a leE•al entit ~j Y is the sense Minn.y STATE v. 40RMAN 403 of mandamus to compel the city treasurer pay a certain R•arrant issued to Ro e ~ Braithwaite by the commission, which ~ tfon resulted in a peremptory writ comp ling payment. i Thfa proceeding was brought In the na ~ o! the state, on relation of the commissi - , and the said claimant Brafthwnite. It fu ~ ther appears that the attorney afterwar ~ presented his claim Por compensation for~h services, and the commisslon, November 1910, duly allowed sad ordered it paid the sum of $229.12; said sum being the re sonable value of the services so readers The respondent's refusal to issue the wa rant, though authorized and requested so do by the commission, also appears, as we as the ass(gnmeut of the claim by the atto ncy to the relator, the appellant. In gran ing respondent's motion to quash the wri the trial court said: "I am of the opinto that the water, light, power, and buildin commisslon has no power to make the ctt of East Grand Forks liable for fees of a attorney that it might hire, without the aft thorny of the city council of East Gran Forks to hire such attorney." itl Sections 198' to and Including sectio 201 of chapter 8 of General Laws of 1895 under which the municipality was created provide for the appointment of a city attor nay and define his duties, stating that: "Ii shall be the legal adviser of the city an shall perform all the services incident to the office, and shall appear in and conduct ell civil suits, prosecutions and proceedings in which the city shall be directly or indirectly Interested. • • • He shall advise the city council and all city officers In respect to their official duties. He shalt personally or by an assistant attend all the meetings of the city councll and such of the commit- tees or boards as shall request his attend- ance, and ao board, department nor officer of the city shall Lava or employ any other attorney in connection with their official du- ties." Any sasiatant, permanent or .tempo- rary, must be appointed by the city attor- ,, nay.. Section X241. The water, light, power, and building commisslon is merely 'a board or department of the city go6ernment. • While it may, within its. sphere, incur ez- pease, enter into contracts, and allow and order the claims therefor paid, independently of the city council, !t has been given no pow- er to sue or be sued, so that it stands 1n need of no attorney to carry on its litigation. ~ Monfort v. Wheelock, 78 Minn. 189, 80 N. W. 955. American Electric Co. v. Waseca, 102 Minn. 329, 113 N, W. 899. Therefore, the commisslon being a department of the city, it must be conceded that, by the sectfon above quoted, the duly appointed city attor- ney' became its legal adviser, and the stat- utory inhibition against anq board, depart- . tnent, or officer of the city Laving or em- i ploying any otter: attorney In connection with their official duties applies to the com- to mission. And it follows that, !t this inhlbi- bert tion la in force as to the commission, no ac- impifed power for It to employ counsel may el- be read into chapter 412 01 the General Lawa o! 1907. The lnteotlon of the Legislature in me the act of 1895 to guard against burdening on the taxpayers of small cities with more than r- one legal department fa so plain, and that da obJect so worthy, that we have no incllna- ls tion to adopt the view of appellant that the 1, clause quoted in said section 200 of chapter in 8 of the General Lawa of 1895 was repealed a- by implication by the provision to said chap- d. ter 412 of the General Lawa of 1907, which r- reads: "They [the commission] shall have to authority to bay al] material, and employ 11 ail help necessary, or they may contract to r- extend, add to, change or modify said plants. t- buildings and halls, or any part thereof; t. they shall also have authority to bay all n Puel and supplies, and employ all help nec- g essary to operate said plants." It cannot y be reasonably contended that this ]enguage n was intended to confer the power to employ - an attorney, 1n view o! the fact that for d every city to which chapter 412 applies the law already provided a legal adviser, whose n duty it is to render legal services for the city, and every officer, Board, and depart- , meat thereof. The duties of a city attorney - in cities of less than 10,000 inhabitants can- e not be exceedingly arduous. Frequently city d officials disagree as to their several duties, and clash; but, because of this, can !t for a moment be admitted that each hsa the power by implication to hire an•attorney for con- sultation and litigation, and make the city respoasfble for the services so rendered? As bearing on thin question, and the reluctance of courts to imply power to hire an attor- ney where none is given, may be cited Horn v. City of St. Paul, 80 Minn. 389, 83 N. W. 388, True v. Board o! Co. Com. of Crow \~'1ng County, 83 Minn. 293, 86 N. W. 102, and Jackson v. Board of Educatian o! the City of Minneapolis, 112 Minn. 167, 127 N. W. 589. [2] But counsel insists that the facts show that an emergency arose which threat- ened to deprive the city o[ the services o! the commission. Granting that an emergen- cy may create a power where none othernlse exists, we do not think the facts stated !n the writ show an emergency. TLe litigation is which the attorney was employed was not directed against the conomisaion as such, nor was any pecuniary interest of the public at stake in It. The cases cited and relied on by appellant, viz., Wiley v. Seattle, 7 Wash. 576, 35 Pac. 415. 38 Am. St. Rep. 905, Smed- ley v. Iilrby, 120 Mich. 263, T9 N: W. 187, City of Loulsvilie v. Murphy, 86 Ky. 63, 5 S. W. 194, Bnrnert v. Mayor, 48 N. J. Law, 395, 6 Atl. 15, are all cases where proceed- ings were taken against an official to compel Lim to perform some official act which. he deemed violative o! his duty to the public and inJuriously affecting interests o! great