| Mich. | Jun 21, 1882
The petitioner was regularly admitted to the office, and was an alderman defacto.
The respondents ejected him and now offer to justify it: 1st, on the ground that he lacked legal capacity to take the office; and 2d, on the ground that he subsequently disqualified himself by removing from the ward.
The legislative authority to try relator’s capacity to receive the office expired with the council that acknowledged his capacity and received him, and whatever as matter of fact’ and law may be true in regard to his having disqualified himself by removal from the ward, the question was not triable by the council, but only by a judicial tribunal; and the end of this proceeding, which is only to correct the wrong ■done by respondents in presuming to remove him, is not to be defeated by converting it into a trial of the abstract right.
The present remedy has no concern yvith the legality of relator’s title. It relates solely and exclusively to the right of respondents to pass upon it.
The decision of the common council upon the original admission of relator io the office of aider-man was under the charter conclusive upon all questions of qualification or election. It may be that within a reasonable time that council might for sufficient cause have granted a re-hearing — as was done in the Port Huron ease. Cooley v. Fitzgerald, 41 Mich. 2" court="Mich." date_filed="1879-06-03" href="https://app.midpage.ai/document/people-ex-rel-cooley-v-fitz-gerald-7929391?utm_source=webapp" opinion_id="7929391">41 Mich. 2; Cooley v. Ashley, 43 Mich. 458" court="Mich." date_filed="1880-04-30" href="https://app.midpage.ai/document/cooley-v-ashley-7929860?utm_source=webapp" opinion_id="7929860">43 Mich. 458. But this could not be done by any subsequent council, and the power to reconsider ended at least as early as the termination of the former council, if not earlier. All these questions are, I think, closed during the remainder of relator’s official term.
So far as declaring a vacancy is concerned I do not think it can be done in any case where the office is actually held by a person in by regular title and disputing the facts claimed to make him incompetent. No power to decide that a vacancy exists in such a case has been vested in the council, and I think relator is entitled to hold during his term.