McMillin v. NeeleyMcMillin v. Neeley
O. E. McMillin was elected, 21st March, 1908, as councilman of the city of Fairmont, and was duly declared elected, took thе oath of office, was admitted as a member by the city council, acted as such for months. Later, a citizen filеd with the council a petition alleging that McMillin was incompetent to hold the office because of not bеing a free-holder at the time of his election. The council tried the matter and by a vote of five to four deсlared the office of councilman held by Mc-Millin as vacant, acting under section fifteen of the city charter providing that if any person elected as councilman should be ineligible, the council for the time being could declare his office vacant. The charter act provides that, “No person shall be eli
The council under the charter consisted of the mayor and ten councilmen, the mayor having a vote only in case of tie. The charter сontains this provision that, “The majority of the whole number of officers mentioned in the third section of this act shall be nеcessary to the transaction of any business whatever”. The officers here mentioned are the mayor and thе councilmen, the mayor and ten councilmen. The vote by which M'c-Millin’s office as councilman was declarеd vacant, operating to remove him from office, was five for and four against. such declaration.
It is contended that a majority of the whole number of the council not having voted to declare the place vaсant, the order of the council is void; but in tins we cannot concur. The provision that .a majority of the members shall be required to transact business does not mean that such majority must vote in favor on each and every act or аction, great or small."Such a construction would be unusual, inconvenient and detrimental to public interest. It means оnly to require a majority for a quorum. Wood v. Gordon,
Plaintiffs counsel brings up for reconsiderаtion the provision in the charter act of the legislature that councilmen must be freeholders, claiming that it is unconstitutional. My own opinion is that it is, as I insisted in State v. McAllister, 38 W. Va. p. 497; but this Court has again held such provision valid. Kahle v. Peters,
McMillin when elected and when inducted into office was not a freeholder. This charter says that “no person shall be eligible” to tbe office of сouncilman “unless a freeholder”. In the McAlister Case I thought that under such a provision it would suffice if the person be a freeholdеr at the beginning of his term; but that decision shut him out if not qualified at his election. But McMillin was not a freeholder at the commеncement of his term. Two da)^ before the election Traugh
The plaintiff seeks to relieve himself from the requirement of а freehold qualification by saying that at one timie chapter 47 of the Code required a freehold qualificatiоn, but that it was dispensed with by an amendment of chapter 47, section 13, enacted by chapter 92 Acts 1897, and that the cоuncil of Fair-mont in 1905 adopted chapter 47 as a part of its charter as allowed by section 1 of chaрter 47, and that the freehold qualification having been dispensed with, therefore the provision of the charter demanding it has no effect. In the first place, the adoption by the council of chapter 47 only has the operation to give the city or town “powers” given by chapter 47, and to provide that the city or town may elect оfficers as provided by chapter 47. The ordinance of adoption professes to go no further, and could not. This does not fix qualifications of officers. Another answer is that after the act amending section 13, chapter 47, Code, and after the adoption by the council of that chap
As to the contention that the council had no power to declare the vacancy, we neеd only say that the act of the Legislature chartering Fairmont authorized it, and that Richards v. Clarksburg,
For these reasons we dismiss the writ of alternative man~ damns heretofore .awarded.
Writ refused. Alternative writ dismissed.