143 Ind. 153 | Ind. | 1895
The relators, James W. Maxey and William O’Keefe, instituted and prosecuted this action in the lower court, in the name of the State, to obtain a writ of mandate against the appellant, as the mayor of the city of Plymouth, Marshall county, Indiana, to compel him to recognize each of them as members of the common council of the city, and permit each of them to exercise the duties of the office of councilman. The application for the writ substantially sets forth that on April 25, 1873, Plymouth was incorporated as a city, under and in pursuance of the general laws of the State of Indiana, applicable to the incorporation of cities; that the city upon its incorporation was divided into three wards, and that this division continued until the 27th day of August, 1891, when the common council thereof, being then composed of six councilmen, at a regular meeting, by an ordinance duly passed and adopted at said meeting-divided the city into four wards, thereby creating an additional one which was designated as the “fourth ward;” that immediately after creating this ward said council at the said meeting did appoint the relators as councilmen therefrom to fill the vacancies existing- in said council by reason of the creation of the additional ward. The due qualification of the relators as members of the council is alleged, and it is charged that the mayor, as the presiding officer of the common council,
Over appellant’s motion for a new trial, the court adjudged and ordered the peremptory writ to issue as prayed for by the appellees. Various errors are assigned and questions presented and urged by the learned attorneys for the- appellant, among the first of which is, was the application and alternative writ sufficient in facts to entitle appellees to a remedy by mandamus ? Upon the theory that the ordinance upon which appellees found their right to exercise the duties of the office to which it is alleged they were duly appointed and qualified, was a valid act of the council, we are of the opinion that this question must be answered in the affirmative. By section 3531, R. S. 1894 (section 3096, R. S. 1881), the mayor is made the presiding officer of the common council, and in a case of a tie has the casting vote. Under section 3497, R. S. 1894, section 3062, R. S. 1881, the duty is enjoined upon him to see that the laws of the State and the by-laws and ordinances of the common council be faithfully executed within the city, and to exercise supervision over subordinate officers and recommend to the common council such measures as he may deem to be for the common good. These are some of the latter officer’s duties, among others, prescribed by the organic law under which the city of Plymouth was organized.
Prom the facts as averred, it appears, at least, that the relators held a prima facie title or right to the office which they claimed, undisputed by any other adverse claimant; hence it follows'that it was the duty of appellant, as mayor, resulting from his office to recognize the claims of the former and allow them to exercise the
The two cardinal propositions involved for a decision in this appeal are : First, was the common council of the city of Plymouth authorized by law to adopt the ordinance whereby the additional ward was created, from which the .relators were appointed as councilmen? Second, if the council was so empowered, was the ordinance in question legally and validly adopted? We will consider and determine these two questions in their order.
The following facts are established by the evidence in the record: On the 25th day of April, 1873, the town of Plymouth was organized as a city, under and in pursuance of the general laws of the State. It was immediately thereafter, under section 3468, R. S. 1894 (3037, 1881), divided into three wards, and its common council thereby made to consist of six members, and this status of affairs remained until August 27, 1894, when, at a regular meeting of the council, with all of the six members present, at which meeting the mayor, who was the predecessor of appellant, presided, the city was divided into
The proceedings of the council after the introduction of the ordinance at the meeting in question prior to and upon its passage, as shown in the evidence given by the appellees, are substantially as follows: ‘ ‘ Councilman Reynolds moved that the rules be suspended and' that said ordinance be placed upon its passage by one reading. This motion was seconded by councilman Hughes, and thereupon councilman Baily moved to refer the ordinance, as presented and read, to the committee on ordinances and police. ” A vote upon this motion resulted in a tie. Three of the councilmen voting in favor of the motion and three against, and thereupon the mayor cast his vote in favor of the negative and declared the motion lost. ‘ ‘ Councilman Reynolds then, with the consent of his second, withdrew his motion to suspend the rules. Councilman Tibbetts then moved that the rules heretofore governing the proceedings of the council, as printed in the ordinance book, be annulled and repealed. ” The yeas and nays were taken on this motion to repeal the rules, and the result was that three of the councilmen voted in favor of the motion, and three against, and the vote being a tie, the mayor voted in the affirmative and declared the motion carried. It was then moved by councilman Reynolds that the ordinance, as read, be placed upon its passage; this vote resulted in a tie, and was declared carried by the mayor casting his vote in favor of the motion. Councilman Tibbetts then moved that the ordinance, as read, be passed and adopted “upon the one reading,” and upon the passage of the ordinance the yeas and nays were taken with the following result: Messrs. Hughes, Reynolds and Tibbetts voted for the adoption of the ordinance, and Gretzinger voted against the adoption, and Bailey and Tanner were recorded as
It is further provided by this section that no division into wards or change of boundaries, or redistricting for ward purposes, shall be made oftener than once in every period of ten years. Section 2 provides that the council, upon doing any of the acts enumerated in section 1, shall do so by ordinance, etc. By section 3 all laws and parts of laws in conflict with any of the provisions of the act are expressly repealed. By an act of the Legislature, approved March 8, 1895 (Acts 1895, p. 173), the act of 1891 was materially amended, and the limitation upon the subsequent action of the council was fixed at two years. It is manifest that the act of 1891 fully invested the common council of such cities as the one in question with the power and authority to do by ordinance these acts, when it was. deemed by it expedient so to do: Eirst, to divide the city into wards; second, to change the boundaries of existing wards; third, to redistrict the city for ward purposes. Empowered in this manner to divide the city into wards, it is evident that the council, in the exercise of such power, by dividing its city into wards de novo could, as a natural sequence, create an additional ward or wards, and in this manner occasion a vacancy in the office of councilman, which the council would he authorized to fill by appointment, under the act approved February 26, 1891 (Acts 1891,
The second proposition with which we are confronted is vital in its bearing upon the action of the council in passing the ordinance in controversy.
The validity of the ordinance is essential or fundamental to the claims made by the relators. If for any reason it is invalid, the rights of the latter are unfounded, and the appellant would be justified in his refusal to recognize them as members of the council, and hence they must necessarily fail in the prosecution of this action. On may 26, 1873, the common council of the appellant’s city duly passed and adopted an ordinance embracing a series of rules and regulations for the government of the common council in transacting its business, and as to the mode of proceeding in. the enactment of ordinances. Some of these are merely rules of parliamentary law. Section 21 of this ordinance is as follows:
There is no question but what this rule was in full force and effect at.the time of the introduction of the ordinance under consideration, and there is evidence showing that it had generally been recognized and followed by the council in the adoption of ordinances. It is the rule set up and relied upon by appellant in the second paragraph of his answer, in which it was, in. substance, alleged that the ordinance upon which the relators based their claim and right to be recognized and to act as councilmen, had been passed in violation thereof. During the trial the court permitted the appellant to introduce this rule or ordinance in evidence, but subsequently, before the cause was finally submitted to the jury, upon the motion of appellees the court struck out and withdrew this evidence, over appellant’s objections and exceptions, and this action of the court was assigned as one of the reasons in the motion for a new trial. The trial court seemingly justified its action in eliminating this evidence upon the ground, as insisted by the relators, that this rule had been repealed as the result of the motion made by councilman Tibbetts and carried in the manner as we have heretofore stated, and that the same was not in force when the ordinance in question was passed.
The verbal motion made by this councilman as recorded by the clerk by which it was sought to effectually repeal the rules ordained for the government of the council was, to say the least, somewhat indefinite,. When recorded it read: “That the rules heretofore
The italics are our own. Ordinances of cities are held to he in the nature and character of local laws adopted by a body vested with legislative authority, and coupled with the power to enforce obedience to its enactments. The power with which common councils of cities are invested to enact ordinances and by-laws implies the power to. amend, change, or repeal them, provided that vested rights are not thereby impaired.. But. certainly it cannot be successfully asserted that the law will yield its sanction to the mode employed to repeal the one by which the rule in controversy was ordained and established. If the procedure by which the power of repeal was attempted to be exercised upon the occasion in question, could be sustained, then all that would be necessary to accomplish the repeal of all existing ordinances of a city would be the adoption, at any regular meeting by the common council, of a mere verbal and general motion to that effect, without any reference whatéver to the title, number or date of passage of the ordinance or ordinances, intended to be repealed. In the case of Bills v. City of Goshen, 117 Ind. 221 (3 L. R. A. 261), it was held by this court that a defect in an ordinance could not be cured or amended by means of a motion subsequently made by a member of the council and put to a vote and carried. In Horr and Bemis Municipal Ordinances, section 61, it is said: “Express repeals can only be effected by an act of equal grade with that by which the ordinance was originally put in operation.' No part or feature of an existing ordinance can be changed by a mere resolution of the council,- even though signed by the mayor and recorded. A new ordinance must be passed.” See also sections 63 and 61, samé
Considered then in the light of the authorities which we have cited, and the manifest reason which necessarily underlies and sustains the rule which they assert, the conclusion is irresistibly reached that the attempt to repeal the ordinance which embraced the series of rules and regulations in question, by the action of the council in adopting the motion in controversy, was ineffectual, and did not result in the repeal or abrogation of the rule under consideration. Having reached this conclusion, the inquiry arises as to the effect of the operation of this rule upon the ordinance upon which the relators found their claims, and which was passed and adopted as it appears by the council in violation of its provisions. It is said in Dillon on Municipal corporations, section 288: “After a meeting of the council is duly convened, the mode of proceeding is regulated by the charter or constituent act, by ordinances passed for that purpose, and by the general rules, so far as in their nature applicable, which govern other deliberative and legislative bodies.” In section 47 of Bemis and Horr, supra, it is said : ‘ ‘ The usual statutory direction is that every ordinance shall be read at three different meetings before its final enactment. The direction is necessary as a safeguard against too hasty legislation, and its observance mandatory. If neglected, the
This court in the appeal of the City of Logansport v. Crockett, 64 Ind. 319, held that section 3534, R. S. 1894 (section 3099, R. S. 1881), which requires that on the adoption or passage of any by-laws, ordinances or resolutions, the yeas and nays shall be taken and entered on the record, was mandatory, and that a noncompliance
Section 3533, R. S. 1894 (section 3098, R. S. 1881), among other things provides that ‘ ‘ The common council may, by ordinance, prescribe such rules and regulations, in addition to those herein contained, for the qualification and . official conduct of all city officers, as they may deem for the public good, and which shall not be inconsistent with the provisions of this act.” By section 3616, R. S. 1894 (section 3155, R. S. 1881), it is further provided in addition to the powers expressly granted, that the common council shall have power to make other by-laws and ordinances not inconsistent with the laws of the State and necessary to carry out the objects of the corporation, etc.
By these provisions plenary powers are given to the council to pass or adopt ordinances prescribing rules and
In Milne v. Davidson, 8 Martin 586 (La., 5 N. S.) a contract entered into in contravention of an ordinance of the city of New Orleans was held to be void. The court- said: ‘ ‘ The ordinances of a corporation while
These many authorities which substantially enunciate and sustain the proposition that a municipal ordinance is a local law or statute (upon which rests both the moral and legal obligation to obey of all persons subject thereto), and that the results of a non-compliance with the mandatory or prohibitory provisions thereof, must in reason be the same in effect, as follow the disobedience or disregard of an act of the Legislature of like import, warrant the conclusion and holding that when the charter law of a city does not regulate the mode of procedure to be observed upon the adoption of an ordinance by the council, but has committed the authority or power so to do to that body which, in pursuance thereof, has prescribed by ordinance an essential and salutary rule, mandatory and prohibitory in its provisions as is the one under consideration, the council must yield to it their obedience, and in the enactment of an ordinance must be controlled thereby, unless suspended in the manner or by the vote provided, and that the consequence of refusing to substantially comply with its provisions or a violation of its inhibition must,, in reason, be the same as the noncompliance with or a violation of a requirement prescribed by the statute.
The section of the ordinance in question prescribed substantially that ‘ ‘All ordinances shall be read three times before being passed. No ordinance shall pass or
It is, therefore, the duty of courts to x-equire a strict compliance with mandatory pxwisions of the law of the character and purpose of the one in question. A two-thirds vote of the council was required to suspend the rule; this, in reason at least, must be construed and held to mean not less than two-thirds of all the members presexxt at any meeting of the council. Atkins v. Phillips, 10 L. R. A. 158, 26 Fla. 281. It appears from the record, that the acts of the council antecedent to, and including the firxal passage of the ordiixance creating the wax’d ixx contx-oversy, received the votes of, and were sanctioxxed by, three oxxly of the six councilmen present at the xneeting. Three caxxnot be held to be two-thirds of six, hence, in no mannex', or upon any view of the case, was a suspexxsioix of the xnxle effected. Viewed then in the light of the x’eason and logic of the authorities hereixx cited, we are constraixxed to hold and adjudge that the ordinance haviixg been passed in noncompliance with, and ixx violation of, the ordained rule in controvex'sy, it is invalid axxd ixxoperative, and that the actioxx of the council based thereoxx in appoixxting the relatox-s,
We must not be understood as holding by this opinion, that the nonobservance of mere technical rules of parliamentary law which are employed for convenience in governing the action of common councils, would result in rendering an act of such bodies otherwise valid invalid, but our holding is confined to the particular rule under the circumstances and facts in question.
Erom the conclusion we have reached, it follows that the trial court erred in striking out the second paragraph of the answer, and also in holding that the rule had been repealed by the motion as made, and the judgment cannot be sustained. It is therefore reversed and the cause is remanded, with instructions to the lower court to vacate its order awarding the peremptory writ of mandate, and to overrule the motion to strike out the second paragraph of appellant’s answer, and grant him leave, if requested, to file an amended one, and for further proceedings in accordance with this opinion.