18 Or. 550 | Or. | 1890
Several questions were presented by counsel for the appellant which will be separately noticed. Counsel for appellant argue that the relator having failed to take and file his oath of office with the recorder on or before the first Monday in July next after his election, forfeited his office if he were otherwise entitled to it, and created a vacancy which the common council was entitled to fill by appointment. It being substantially admitted on the record that the relator did not so qualify, if this contention can be sustained, it must reverse the judgment and terminate this case. Section 24 of the Act incorporating the city of Albina provides (Session Acts 1889, p. 240): “ The term of office of every person elected to office under this Act shall commence on the first Monday in July next after his election, and terminate accordingly, except as otherwise provided in this Act; and by such time such person must qualify therefor by taking and filing with the police judge the oath of office, or he shall be deemed to have declined and the office considered vacant.” Section 25 prescribes the form of the oath. Section 27 relates to vacancies in office, but does not declare a failure to qualify within the time specified shall create a vacancy; but section 28 declares: “A vacancy in any office caused by the failure of any person elected to qualify therefor, as prescribed in section 24, or made by or consequent upon the
If the construction contended for is sound, the police judge might cause a forfeiture of any office in the city by simply locking up his office and disappearing from the city during the day or time such oath must be filed, thus rendering it impossible to comply with the charter within the time limited. It is claimed that his refusal to administer and file the oath of office within the time has the same effect. It was in effect suggested that the consequences might have been avoided by the relator by going before some other officer and taking the oath of office and then offering to file the same with the police judge.
Still another objection to the appellant’s contention: Sections 19 and 20 of the charter provide a canvassing board for the city, whose duty it was to certify the result of the election, and by that certificate it appeared that each of them received 58 votes. If these votes were all legal, there was no election; but if illegal votes were cast on either or both sides, the election was not thereby vitiated, but the true result could only be known by deducting the illegal votes in each or either case. In such event I do not think that the person elected was bound to
2. This brings us to another question necessary to be considered. Section 22 of the charter is as follows: ‘ ‘A certificate of election is primary evidence of the facts therein stated, but the council is the judge of the qualifications of mayor and of its own members, and in case of a contest between two persons claiming to be elected thereto must determine the came, subject, however, to the review of any court of competent jurisdiction.”
Counsel for appellant insisted that this section vested the jurisdiction now invoked in this case in the common council in the first instance, and that the court could only review the action of the council.
It must be observed, that this charter does not vest the council with exclusive or final jurisdiction over the subject. If it did, the case would be governed by Simon v. Common Council of Portland, 9 Or. 437. But here the council is simply vested with jurisdiction which is neither final nor exclusive, with the power of review in the courts. That power would have existed in the courts without the saving clause in the charter. Where the remedy given before the council is not made final nor exclusive, it must be regarded as merely cumulative, leaving the jurisdiction already vested in the courts under the general statutes, unaffected. And this view of the law is fully supported by The People ex rel. Hatzel v. Hall, 80 N. Y. 117. But is not the legislature restrained by article VII, section 9, of the constitution from divesting the jurisdiction of the circuit courts over any inferior court, officer or tribunal?
3. Upon the trial in the court below, the State introduced evidence tending to prove that Dawson, Roonick, Glover, Sealy, and Shriver voted at said election for councilman, and that they were not legal voters. They
If the ballots that were offered in evidence had been introduced for the purpose of overturning an official count, then clearly the plaintiff did not identify them or show
These were all of the questions made in this court, and their examination requires an affirmance of the judgment appealed from.