A rehearing was granted in this case and we have re-examined the grounds urged for a change of our conclusion on the case.
Mr. Stanley Skiles, city attorney of Boise, has presented a brief as amicus curiae, in which he contends that the judgment of the trial court should be affirmed, and opens his argument as follows: *Page 519
"In this action it appears that the question is not whether the municipality is liable for attorney fees and court costs, which were incurred by the police officers in defending an action brought against them, but the question is whether the City Council, in its discretion, may legally pay such fees and costs if it so desires."
The answer to that contention is: The city authorities haveno discretion to give away the public funds or pay other people's bills. On the other hand, we have not held, and do not now hold, that a city council may not, under some emergencies or necessities, employ special counsel for the performance of specific legal services pertaining to, and in the interest of, the public good and welfare. In such cases, however, the selection, employment, compensation, emergency or necessity must first be determined upon by the authorities charged with the duties of safeguarding the treasury, rather than by some interested individual who wants counsel to defend him.
The authority conferred on the city council by sec. 49-1714, I. C. A., to "appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities" of the corporation, in no way enlarges or extends the power of the council to expend or dissipate the city funds for unauthorized claims. Bevis v. Wright, 31 Idaho 676, relied on by amicus curiae, raised the issue as to the constitutionality of chap. 95, p. 340, 1911 Sess. Laws, authorizing county commissioners to levy a special tax to raise a fund to prepare and maintain an exhibition of products and industries of the county. The county commissioners in that case simply acted in conformity with the authority granted, and this court held that the legislature had the power to grant theauthority.
The case of State v. City of St. Louis, 73 S.W. 623, cited and relied on by respondent, involved the payment of a judgment, costs and expenses incurred in defending an action brought against a police officer for injuring a boy, while the officer was trying to shoot a mad steer running at large on the streets of the city of St. Louis. The opinion in that case in no way militates against our *Page 520 holding in the case at bar. There are several matters, of both law and fact, appearing in that case which distinguish it from the case in hand. Among other things, the court held that the police officer was a public official of both the city and thestate, under the statutes of the state of Missouri; that he was acting in co-operation with, and under the direction of, the chief of police of the city; and that an emergency existed for his immediate action.
Another case cited and relied on by respondent is theCity of Corsicana v. Babb, (Texas Com. App.) 290 S.W. 736. That was a case where a policeman was killed while undertaking to make an arrest, and his slayers were indicted, charged with murder. The city authorities employed two lawyers to prosecute the slayers of the policeman. In that case the matter was taken up by the city council, considered and discussed, and the contracts entered into with the respective attorneys, before the service was rendered. In that case the court held that the city was
"under no duty or obligation to employ an attorney, or to indemnify the officer for the payment of his fees; but, if it do employ the attorney, the municipality becomes legally bound to pay his compensation."
The holding of that case does not militate against our holding under the facts of the present case. Here no employment was made; no necessity was declared and no contract was entered into prior to the rendition of the service.
We are not holding that a necessity or emergency could not possibly arise, justifying a city council in entering into a contract employing special counsel for legal service. On such an exigency, we express no opinion, but we do hold that, under the facts of this case, the city has no authority or discretion to disburse public funds.
The judgment heretofore rendered and entered in this court is adhered to.
Budge, C.J., Givens, Morgan and Holden, JJ., concur. *Page 521