On certified appeal from the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs and Francis. For reversal -- None. The opinion of the court was delivered by Heher, J.
We certified for appeal, at the instance of plaintiff, 28 N.J. 33 (1958), a judgment of the Appellate Division of the Superior Court affirming a judgment for the defendant municipality in this proceeding in the Hudson County Court to recover the "reasonable and just value" of professional services rendered by plaintiff "as counsel to the city attorney" of the municipality in the trial of an action brought by the city in the Chancery Division of the Superior Court to determine the price chargeable under R.S. 58:5-26 for water supplied to it by the North Jersey Water Supply Commission and also on its successful appeal from an adverse judgment to the Appellate Division of the court. City of Bayonne v. North Jersey District Water Supply Commission, 30 N.J. Super. 409 (App. Div. 1954).
Bayonne is a commission-governed city according to R.S. 40:70-1 et seq. Plaintiff's claim is that he "was requested to perform services on four distinct occasions: on December 6, 1952, to prepare the trial brief; on or about December 15, 1952, to assist the city attorney to prepare for trial and attend the trial; on January 3, 1953, to prepare a written summation for the trial court; and on May 27, 1953, to attend to the taking of an appeal and the preparation of the appendix and briefs therefor"; in other words, they were separate and distinct hirings. The proofs tend to show that the "request" for the services came from Commissioner Prendeville, the director of revenue and finance, whose jurisdiction included water supply. It is conceded that there was no agreement for compensation, then or thereafter. The board of commissioners had adopted a resolution, May 15, 1951, directing the city's law department to bring action against the water supply commission for the given purpose. The suit was instituted July 7, 1952 by William Rubin, a duly appointed law officer under the title of "City Attorney," acting for the city. The law division was then within the department of public affairs, assigned to Commissioner Fryczynski in the distribution of powers made in compliance with the Commission Act.
There was no resolution or other action taken by the board of commissioners then in office authorizing or ratifying the employment of plaintiff for the service so provided, and there was no such ratification by the successor body organized pursuant to the local election held in May 1955. Four of the five commissioners served on both boards; two of these commissioners denied all knowledge of plaintiff's employment until at a meeting of the board held November 1, 1955 a letter was received from plaintiff dated the prior October 29 making known his claim of $15,000 for the services thus performed; one of the commissioners, Campbell, no longer in office, was not called as a witness by either party. It is here suggested that the "failure of the city to call this witness permits an inference that his testimony would have been unfavorable to it." But certain it is that there was no formal corporate action taken by the board providing for or ratifying the employment made the basis of the claim in suit. So much is conceded. And plaintiff also acknowledged on cross-examination that he had no "written contract of employment" with the city; that he had made no inquiry as to the existence of a resolution authorizing his employment by the city; and that there was no mention of a fee for his work. He inquired at the outset, he said, as to whether "there were sufficient moneys available to pay for [his] services," and he was advised by the city auditor, Greer, in the presence of Commissioner Prendeville, that "the 'Special Service Account' had enough moneys but '[a]ll you are concerned about is getting the brief out'"; there "were less than ten days to get that brief out and they didn't want to ask for an extension of time." There is no proof of a "Special Service Account" or any unexpended appropriation to which recourse could be had for the asserted expenditure during the period of the service in question.
Plaintiff says his services "extended over a period beginning December 6, 1952 to about May 7, 1954"; the appeal to the Appellate Division was argued December 7, 1953 and decided May 7, 1954; on December 1, 1954 he
mailed a bill for $15,000 to the city controller; his claim was presented to the board of commissioners for the first time by the letter of October 29, 1955, and at a meeting of the board held February 7, 1956, it was disapproved.
The issue was tried without a jury. Judge Proctor made a preliminary finding at the close of the case that the "reasonable value of the services rendered * * * is $12,000"; but his ultimate conclusion following the submission of briefs was that the power to engage plaintiff for the services in question resided in the board of commissioners and there was no resolution by the corporate body recognizing the plaintiff as attorney; there was no showing that the services were knowingly accepted and used by the board, nor was there ratification of a contract or engagement within the corporate power, although the plaintiff acted in good faith, and accordingly there was judgment final for the city.
These are the grounds assigned for reversal: (a) the engagement of "special counsel" by a municipality does not require an ordinance or resolution by the board of commissioners; (b) the director of revenue and finance, in virtue of the "distribution of powers" under the act, R.S. 40:70-1 et seq., had "power to bind the Board"; (c) the "preponderance of proof" establishes the city's ratification of the "contracts with plaintiff"; (d) estoppel by the city's acceptance of the "benefits of plaintiff's engagements"; and (e) the principle of "unjust enrichment" entitles plaintiff to recover.
The board of commissioners, by corporate action in the form of a resolution, directed the city's law department to invoke the judicial process for the construction of R.S. 58:5-26 and adjudication of the city's controversy with the water policy commission. The course thus taken was the exclusive province of the board of commissioners as the city's governing body. Of that there can be no doubt. The resolution did not authorize the employment of "special counsel" ...