ON PETITION FOR REHEARING. In its petition for a rehearing the appellant has pointed out that this court failed to consider the plain words of the statute prohibiting the expenditure of funds of the municipality 3. derived from taxation. It asserts that Section *Page 310 16, Chapter 190, Acts 1933, expressly prohibits such expenditure. Section 16 pertains to the issuance of bonds to pay for the utility purchased or condemned by the city. It expressly provides that the funds to purchase the utility shall be derived from the hypothecation of the property purchased, together with the net earnings or proceeds derived therefrom; that the purchase price shall not be deemed an indebtedness of the city, nor shall it be paid from funds derived by general taxation.
It is the position of the appellant that this section prevents the employment of counsel, at the expense of the taxpayer, to assist the regular city attorney in prosecuting an action by the city under the eminent domain statute. Section 18 of Chapter 190 expressly grants to the municipality the power of eminent domain for the purpose of acquiring the property, and states that the municipality "shall proceed as now provided by law for the taking of property under the power of eminent domain." In reading Section 16 of that Act in connection with the entire Act, it is clear that it pertains solely to the bond issue and the retirement of the bonds from the net income derived from the utility. It contains no restrictions upon the question of the municipality's power and authority to employ necessary and efficient counsel in prosecuting the condemnation suit under the eminent domain statute. There is nothing in Chapter 190 pertaining to the subject of attorney's fees.
The proceeding involved, out of which this action grew, pertained to a question not included in the preliminary expenses as provided by Section 13, but to a question arising subsequent to all preliminary procedure, to the election, and to the attempt to purchase the plant from its owner without condemnation proceedings. The specific authorization of the statute is the acquisition of the utility property. *Page 311
The employment of additional counsel is certainly included in the implied and inherent power of the municipality. It sometimes occurs that a municipality is represented by a regular attorney who may be ill, absent, or incapacitated, and if the rule should be established that the municipality has no general authority to employ an attorney to represent it in important litigation during the absence or disqualification of the regular attorney, it would be deprived of its legal rights. It was not the purpose of the Legislature in the enactment of Chapter 190 to provide that the municipality should not be placed on an equal footing with the utility in proceedings necessary to acquire, by purchase or condemnation, the property involved.
When the question of the bond issue is reached it will then be proper to decide what items of cost shall be included therein. It is not now present. It is enough to say that that section does not destroy the general and inherent power of the municipality to employ necessary legal counsel in carrying out the specific mandate and authority of the Legislature.
Petition for rehearing is overruled.