69 P. 990 | Or. | 1902
delivered the opinion of the court.
This is a mandamus proceeding to compel the defendant to deliver to plaintiff the books, records, papers, files, and furniture .pertaining to the office of Recorder of the City of Pendleton. Some preliminary questions are presented as to the sufficiency of the alternative writ, and as to ivliat matters are properly determinable in this proeeding; but we shall not notice them in detail. The alternative writ alleges the plaintiff’s appointment as. recorder by the common council of the city, with the consent of the mayor, his qualification, the issuance to him of a certificate of appointment and qualification, a demand by him on the defendant, who was his predecessor
On January 2, 1902, the defendant was appointed city recorder by the common council, with the consent of the mayork immediately qualified as such, and entered upon the discharge of his duties. He continued to serve in that capacity until the 26th of the following month, when a resolution for his removal came up for consideration by the common council in regular session; all the members being present, and the mayor presiding. Upon the resolution being, put to a vote, four councilman voted in the affirmative, and four in the negative. The mayor thereupon, ruling that, under the city charter, he had authority to break the tie, voted in favor of the resolution, and the defendant was declared removed, and the office vacated. The plaintiff was then appointed to fill the vacancy by the same vote, immediately qualified, and a certificate of his appointment and qualification was duly issued to him by direction of the council. He thereafter demanded of the defendant possession of all the books, records, papers, and other property of the office, and, the defendant refusing to surrender them, this proceeding was commenced. The question to be decided, therefore, is whether the mayor of the city has a right to give the deciding vote upon the removal and appointment of a city recorder where the council is a tie.
By section 1, article II, of the charter of Pendleton (Laws 1899, p. 710), the government of the city is “vested in a mayor and common council, to consist of eight members, ’ ’ and by section 7, article III, it is provided that the mayor shall preside at all meetings of the council, and “give the casting vote in case of a tie.” By section 6, article II, the recorder and marshal of the city were to be elected biennially by the legal voters, but in 1901 it was so amended as to provide that