Carter v. McFarland

75 Iowa 196 | Iowa | 1888

Rothrock, J.

— It appears from the averments of the petition that the defendant held the office in question for the year preceding the third Monday of September, 1887. It is provided by section 1721 of the Code that a treasurer shall be elected at the regular meeting of the bpard of directors on the third Monday of September. At the regular meeting in September, 1887, an election was had, and one David McFarland was duly elected, and the board adjourned until the first day of October, 1887, in order to give said McFarland an opportunity to accept or decline the office. The board met pursuant to adjournment, and said McFarland appeared and declined to accept the office. Thereupon the board adjourned until the fifteenth of October, 1887, at which time they met and próceeded to ballot for a treasurer. The ballot resulted in a tie, three votes being cast for the plaintiff, and three for defendant. One of the members of the board was not in attendance at this adjourned meeting. Thereupon the board adjourned, without making an election, until the eighth day of November, 1887, in order that a full attendance of the board might be had. A meeting was held on the eighth day of November, pursuant to the adjournment, and the plaintiff was elected to said office. The plaintiff accepted the office, and his bond was afterwards accepted and approved by the board, and the defendant was, by a resolution of the board, ordered to turn over to the plaintiff all the books, papers and money in his hands belonging to said district ; and, the business being concluded, the adjourned session of the regular September, 1887, meeting adjourned without date. At the regular meeting in September, 1887, the board fixed the-treasurer’s bond at three thousand dollars, and when David McFarland failed to qualify as treasurer, and after the failure to elect at the adjourned meeting on October 15, the defendant left with the president of the board a bond in the sum named with sufficient sureties, and with his oath of office indorsed thereon. The board refused to accept or approve said bond.

The defendant, by his demurrer, claims that the plaintiff was not legally elected as the successor of the defendant, and that defendant was therefore entitled to qualify anew, and hold the office for another year. It will be observed that the statute requires the treasurer to be elected at the regular meeting of the board on the third Monday in September. If the board had met and transacted the other business, and adjourned without day, and without giving attention to the election ,of a treasurer, the defendant would have held over, under section 784 of the Code. But attention was given to the election of a treasurer, and an adjournment was had in order to give the person elected an opportunity to accept or decline the office. This and all other adjournments were had for the purpose of selecting a treasurer for the ensuing year. It is not required that an election shall be held on the third Monday in September. Adjournments of that meeting may be made, and any business required to be done at the regular meeting may be transacted at the adjourned meeting. “ A regular meeting, unless special provision is made to the contrary, may adjourn to a future fixed day ; and at such meeting it will be lawful to transact* any business which might have been transacted at the stated meeting, of which it is, indeed, but the continuation.” 1 Dill. Mun. Corp. sec. 225.

But the defendant contends that as the board elected David McFarland, and he refused to accept, it was the right of the defendant-to qualify anew, and hold over. The claim is made under the provisions of section 690 of the Code, which is as follows: “ When it is ascertained that the incumbent hold over another term by reason of the non-election of a successor, or for the neglect or refusal of the successor to qualify, he shall qualify anew, within a time to be fixed by the officer who approves of the bonds of such officers.” If the board was required to elect on a day certain, and did elect on that day, and the person elected afterwards refused to qualify, it may be that the board would have no right to hold a called or special meeting, and hold another eleption. But, as we have seen, the several adjournments were merely continuations of the regular meeting. They were just the same as adjourning from day to day until the business of the meeting should be completed. If David McFarland had been present when the election was had on the third Monday in September, and refused to accept ■the office, the board had the power to immediately proceed to elect another person, and, as the adjourned meetings were but a continuation of the regular meeting, the board could at any of the adjourned meetings lawfully do what it could have done on the third Monday in September. We think the ruling of the district court in overruling the demurrer was correct.

Affirmed.