170 Ind. 144 | Ind. | 1907
The relator filed an information in the nature of a quo warranto for the purpose of ousting appellee from the office of councilman from the fourth ward of the city of Shelbyville and obtaining possession thereof himself. A demurrer for want of facts was sustained to the informa
The action of the court in sustaining said demurrer is called in question by the assignment of errors.
It appears from the information, among other things, that under the provisions of section forty-five of the act of 1905 (Acts 1905, pp. 219, 242, §8646 Burns 1908) the common council of the city of Shelbyville, a city of the fifth class, adopted a resolution appointing the relator a councilman from the fourth ward of said city to fill a vacancy in that office caused by the resignation of the councilman from that ward. The mayor of said city, assuming that he had the power to veto the resolution by the adoption of which said appointment was made, vetoed the same, and the common council of said city at its nest meeting adopted a resolution appointing appellee to fill said vacancy. Appellee, by virtue of said appointment, took possession of and entered upon the discharge of the duties of said office. Section 8646, stipra, conferred upon the common council of said city the power to fill said vacancy. If the mayor of said city had the power to veto the relator’s appointment to said office the demurrer to the information was properly sustained and the judgment must be affirmed, but if he did not have that power the judgment must be reversed. The veto power is conferred upon the mayor by section fifty-two of said act of 1905 (§8654 Burns 1908), which provides: “No ordinance, order or resolution of the council shall become law, or operative until it has been signed by the presiding officer thereof, and approved in writing by the mayor, or passed over his veto, as hereinafter provided. * * * Every ordinance, order or resolution of the common council shall, immediately upon its passage, enrollment, attestation and signature by the clerk and presiding officer, be presented by the city clerk to the mayor, and a record of the time of such presentation made by the clerk. If the mayor approve such
In Erwin v. Mayor, etc., supra, the mayor of the city was given authority to veto the ‘ ‘ acts ’ ’ of any board of the city, and it was required that copies of all resolutions and “other matters” should be furnished the mayor for consideration, and the board was empowered to pass any vetoed “resolution or other matter” over the mayor’s objections, by a two-thirds vote. It was insisted in that case that a resolution appointing to office was subject to the mayor’s veto. The court says: “If a literal construction be given to the provisions of the section thus appealed to, it is obvious that the business of any municipal board will not only be hampered and delayed, but practically be rendered impossible to be performed. Resolutions to approve minutes, to lay
In Matter of North v. Cary, supra, the court says: “I conclude that the appointment of North was not affected by the veto of the mayor. The veto power is conferred upon the mayor by section nineteen, title four, of the charter, and the provision upon that subject is as follows: ‘ He shall have the power to veto any resolution or ordinance of the common council.’ It is not pretended but that North received the number of votes of the members of the common council required for his appointment. The proceeding at which the veto was aimed was an appointment to office, and not a resolution or ordinance adopted in the transaction of the ordinary business of the common council. This distinction can be more readily conceived than accurately described. When we speak of an appointment to office a very different idea is conveyed to the mind than when the mere adoption of a resolution or ordinance by a public body is spoken of. It is proper for us to inquire again, what was the intention of the legislature in this particular? Was it the design to confer upon the mayor such control over appointments to office made by the common council as would necessarily follow if the veto power was possessed by the mayor to the extent claimed by him? If he possesses the power to the extent claimed, then the mayor
In Achley’s Case, supra, it was claimed in the argument that, notwithstanding the appointment was given exclusively to the common council, and that the mayor was not a member thereof, yet the action of the common council was subject to his approval or rejection, as the two boards had communicated to each other their action upon this subject in the form of a resolution, and as section twelve of the charter of 1830 requires that any act, ordinance or resolution which shall have passed the two boards of the common council, before it shall take effect shall be presented to 'the mayor for his approval. If he approve, he shall sign it; if he disapproves, he shall return it, within ten days, to the board in which, it originated, with his objections. The court says: “It is apparent from these provisions of the charter, that the action of the mayor is confined to such
In People, ex rel., v. Schroeder (1879), 76 N. Y. 160, cited by appellee, the mayor was authorized to veto every
It follows that the court erred in sustaining the demurrer to the information. Judgment reversed, with instructions to overrule the demurrer to the information and for further proceedings not inconsistent with this opinion.