35 Kan. 36 | Kan. | 1886
The opinion of the court was delivered by
This is a controversy concerning the title to the office of city attorney of the' City of Kansas, which is claimed by William S. Carroll by virtue of having been elected thereto at the regular election in April, 1883. He was then chosen for a term of two years, and until his successor was elected and qualified. On March 11,1885, an act amendatory of the law relating to cities of the second class went into effect, which provided that the city attorney should be appointed by the mayor, with the consent of the council. (Laws of 1885, ch. 99.) Tn pursuance of this law, and on the 13th day of April, 1885, the mayor of the City of Kansas nominated the defendant, E. J. Wall, as city attorney, and submitted his name for confirmation to the council, which was then in session, with all the members present. A vote was taken thereon, upon which the council divided equally, and thereupon the mayor gave a casting vote in favor of confirma
The plaintiff contends that there are exceptions, and that the provision with respect to appointments is one of them. The language of that provision is: “The mayor shall appoint, by and with the consent of the council, a city marshal, a city clerk, a city attorney, a city assessor, and may appoint an assistant marshal, a city engineer, a street commissioner, and such policemen and other officers as may be necessary.” (Sec. 13.) There is no express denial in this provision of the power conferred by § 21 upon the mayor to give a casting vote when the council is equally divided, nor do we think that such an ex-ception arises by implication. Upon certain questions which come before the council, so many votes are required that a tie vote cannot arise, and the mayor is thus precluded from giving a casting vote. Counsel for plaintiff call these exceptions to the rule prescribed in § 21, and liken them to the provision enacting that appointments shall be made with the consent of the council. In § 19 of the act it is provided that the council, by a vote of the majority of all the members elect, may, for cause, remove certain officers ; and in § 42 of the same act it is said that “no ordinance providing for the borrowing of moneys, levying taxes, or appropriating money, shall be of any validity unless a majority of all the councilmen elect shall vote
The other matters brought to our attention by the plaintiff are not material, and therefore the relief which he asks must be denied. Judgment for costs will be given in favor of defendant.
I do not think it good policy for the mayor to be permitted to give the casting vote upon the confirmation of his own nominations to the city council; and unless the language of the statute imperatively demands such a construction, the mayor should have no vote in the confirmation of his appointments. I think the words that “the mayor shall appoint, by and with the consent of the city council,” should be construed to mean that, while the mayor may appoint, the council alone shall confirm, and that it was not the intention of the legislature to permit the mayor to control or participate in the confirmation by giving him the casting vote.