32 Ind. 74 | Ind. | 1869
On the 15th day of December, 1868, the appellee filed his petition under oath, alleging that the appellant was a corporate city, under act of the legislature of 1867, and by her common council, on the 15th day of May, 1867, elected him as city attorney; that he gave bond, and took the oath of office, and entered upon his duties, and continued to act in that capacity until the 21st of May, 1868, when the council, by a majority vote, but less than two-thirds thereof, declared the office to be vacant, without preferring any charges against him; and that the council, mayor, and other officers, by said resolution, have prevented him from performing the duties of the office and from receiving the salary which had accrued after his removal, and up to the time of bringing this action, and had refused to recognize him as suck attorney and allow kirn to' perform the duties of said office, although he was at all times ready and willing to do so. And he asked that a writ of mandate issue against the city, to compel her to recognize him as city attorney and allow him to perform the duties of his office; and also for the sum of one hundred and fifty dollars, the two quarters’ salary due the 1st of November, 1868,
L.
The court issued an alternate writ, which recited substantially the matter set out in the petition, and was served by the sheriff.
The appellant, by her attorney, entered a special appearance, neither affirming nor denying the matters stated, and moved the court ¿0 quash the writ, for the reason that the appellee had an ample'and complete remedy at law for all grievances complained of in the petition; which motion was overruled, and the appellant excepted.
The appellant then demurred to the petition, alleging that. it did not state facts sufficient to entitle the appellee- to the relief asked; which demui’rer was overruled, and exception was taken.
The appellant then made return to the writ, stating that she was an incorporated city under the general laws of the State of Indiana; that she, by her common council, elected said attorney on the 15th of May, 1867, the term of time of said office not being mentioned; that she, the said city, claimed that the said attorney was subject to removal at the pleasure of said appellant’s common- council; and that said council, at a regular meeting, held on the 21st of May, 1868, dispensed with the services of said attorney, and discharged him; of which action said attorney had then- and there notice. And she claimed that she thus might legally and rightfully remove said attorney, by virtue of the laws governing-incorporated cities; and alleged that she paid said attorney for all services up to the time of his removal from said office.
"With'the answer and return was filed a copy of the order removing the attorney.
To the return, the appellee filed a demurrer, alleging that the return did not state facts sufficient to constitute a good return; which demurrer was sustained, and the appellant excepted, and abided the demurrer..
And the court rendered judgment on the petition, order
On the first question presented by the motion and the demurrer, regarding the remedy, it is sufficient to say that if the appellee is legally entitled to 'the office he claims, it is his property, and he cannot be restricted to the compensation provided for the office, but may demand the office itself. Glascock v. Lyons, 20 Ind. 1.
. The remaining question requires us to place a construction upon the 8th and 88th sections of the general law for the incorporation of cities. These sections are as follows:
“ Sec. 8. The officers of such city shall consist of a mayor, two -councilmen from each ward, a city clerk, assessor, treasurer, civil engineer, street commissioner and marshal, and if the common council deem it expedient for the best interests of the city, a city attorney and city judge. The city attorney, street commissioner and civil engineer, shall be appointed by the common council: Provided, That the common council may dispense with the street commissioner and require the marshal to perform his duties. All such officers shall hold their respective offices for two years and until their successors are elected and qualified, except as herein provided. After the first general election on the first Tuesday'in May, said officers shall respectively hold their offices as follows, to wit: The mayor, city judge, clerk, assessor, marshal and treasurer, two years each. The city attorney, street commissioner, and civil engineer, two years each subject to removal by said city council at their pleasure, and the councilmen shall be chosen by the legal voters of their respective .w’ards, and one councilman from each ward, to be determined by lot at the first regular meeting after their election, shall hold his office-one year and the -other, to be determined in like manner, shall hold his office
“ Sec. 88. Any member of the common council may be expelled or removed from office by a two-thirds vote of the whole number elected, but not a second time for the same offense. • Any officer of such municipal corporation, whether elected or appointed, may be removed by a like vote. The common council shall make provision in their by-laws or ordinances, as to the mode in which charges shall be preferred, and a hearing of the same had.”
The provision in the 8th section fixing the term of office, not at two years absolutely, but for that -term only at the pleasure of the council, would seem to be sufficiently explicit, and there could be no question that the vote of a majority would be indicative of the wish of that body, were it not for the use of the language in the 88th section, declaring that any officer of such municipal corporation, wheth’er elected or appointed, may be removed by a like vote; that is, a two-thirds vote..
The 88th section is limited to cases of removal for an offense committed, and the-language of the provision extending this power of removal over all officers should restrict it also to a case where the removal was for such a cause. Any other construction, would, in effect, transpose the provision from the 88th section, where the legislature have placed it, to the 8th section. Yet it can be reasonably given force and effect where it now stands, and a force and effect which will not also destroy an entirely independent provision of another section, which must result if it be arbitrarily transposed and incorporated in that section.
Again, the common council may appoint by a mere majority. They may by a mere majority adopt a certain line of policy. Their officer may refuse to execute this policy, and mayJge sustained in this course by more than one-third and less than a majority of the council. If this officer, whoso duties are simply executive, may thus refuse to execute the will of a majority, he in fact renders that majority subject to the control of the minority. The power of removal, however, resting in the majority, without any offense chai’ged, pi’events this, and enables a majority of the council to execute its will, by selecting its agents and requiring them to obey under the penalty of removal. It is
¥e think the demurrer, or exception to the return of the appellant, should have been overruled.
Judgment reversed, and cause remanded for further proceedings in accordance with this opinion. Costs here.