160 Ind. 578 | Ind. | 1903
Appellee brought' this action against appellants. The court made a special finding of the facts, stated conclusions of law thereon in favor of appellee, and rendered judgment against appellants. .
The assignment of' error calls in question the correctness of the conclusions of law.
It appears from the special finding that Hastings, the relator, was elected to the office of city attorney of the city of Washington, Daviess county, Indiana, by the common council of said city, on the 12th day of September, 1898. The record of the council did not show for what length of time he was elected, but on the same day he qualified and gave bond to the approval of the common council. Said bond recited that he was elected for the term of four years. The relator entered upon the discharge of the duties of said office, and continued to discharge the same until July 30,
The court found, as a conclusion of law, that the relator was elected to the office of city attorney, to hold the same for the term of four years from the 12th day of September, 1898, and that he was at the time of the trial of said cause on April 3, 1902, the city attorney of said city, by virtue of his said election on September 12, 1898.
It was held by this court in Goodwin v. State, ex rel., 142 Ind. 117, that under said section the common council had the power to say whether or not a city attorney should be one of the officers of the .city, and, if said council deemed it expedient and elected a city attorney, such council had the power at any time thereafter to abolish or discontinue the office.- The court, at page 120, said: “The legislature, by the act of 1893, §3476 Burns 1894, did not create the office of city attorney within the full sense of the term, but authorized the common council to determine whether the city should have such an officer. The power that creates an office may abolish it before the expiration of the term of the officer, and from the date the office is abolished the officer is discharged. State, ex rel., v. Hyde, 129 Ind. 296, 302, and cases cited.”
On March 6, 1899, the legislature passed an act (Acts 1899, p. 562) which took effect the same day, and which provided that city attorneys in cities of the class to which said city of Washington belongs “shall not be removed from office for the term for which they are, or were, elected, except for cause.” Said act contained a section which provided that “All laws and parts of laws in conflict with the
It is urged by the relator that as the trial court found that the “common council did not abolish said office in good faith, but for the purpose of removing and ousting him from said office before the expiration of the term thereof, and evading the law prohibiting such removal,” that the adoption of said resolution abolishing said office was void and of no effect, and that said office was not thereby abolished, It is a sufficient answer to said contention to say that the act of said common council in abolishing said office was the exercise of legislative power, and it is the settled rule in this State that the courts will not institute any inquiry into the motives of the legislative department of municipal corporations in the exercise of such power.
It was said by this court in Lilly v. City of Indianapolis, 149 Ind. 648, 665: “The ordinance, in plain terms, speaks for itself, and may be said to be solely a legislative act’ of the common council; therefore a judicial search for the motives which actuated that body in its enactment can not be instituted, and the contention of counsel for appellee that these statements made by appellants to the finance commit
After said office was abolished on July 30, 1900, there was no such office as city attorney of said city of Washington, and thereafter the relator was not an officer of said city, because if there was no such office as city attorney of said city there could be no such officer. When the common council again created said office on December 10, 1900, the relator did not again become city attorney, by virtue of his election on September 12, 1898, for four years. The office then created could only be filled by an appointment made thereafter by said common council.
Judgment reversed, with instructions to restate the conclusions of law in accordance with this opinion, and to render judgment thereon in favor of appellant's.