65 P.2d 329 | Kan. | 1937
The opinion of the court was delivered by
This was an action by taxpayers of Johnson City
The facts giving rise to the first question are as follows: Johnson City is a city of the third class. Its governing body is a mayor and five councilmen. Ordinarily these officers are elected for two years (G. S. 1935,15-201). In case a vacancy occurs in the council by reason of resignation, death or removal from the ward of a councilman, “the mayor, by and with the advice and consent of the remaining councilmen,” shall appoint someone to fill the vacancy until the next election. Of the five councilmen elected one of them had removed from the city. Thereafter, at a meeting held December 13, 1934, at which the mayor and three councilmen were present, one of them being absent, the minutes show: “The mayor appointed Forrest Walker to the office of councilman made vacant by the removal of L. W. Burchfield, which appointment was approved by the unanimous vote of the council.” Appellants argue that because one of the councilmen was not present at the meeting the mayor did not have the approval and consent of all of the remaining councilmen, hence, that the appointment was absolutely void, that the appointee never became a member of the council, and had no authority to participate as such in its meetings. The point is not well taken. The statute does not use the word “all.” Appellants’ reasoning would make it impossible for the mayor to appoint to fill a vacancy if all the remaining councilmen were present and one of them objected. What the statute means is that the remaining councilmen constitute the body which is authorized to approve and consent to the appointment made by the mayor. Here a majority of all the councilmen approved and consented to the appointment. Under our rules for statutory construction (G. S, 1935, 77-201, clause fourth) the appointment was valid in all re
The second question is the construction of G. S. 1935, 15-108. This pertains to how ordinances of the city may be passed, and contains this provision: “. . . No ordinance shall be valid unless a majority of all the members elect vote in favor thereof.” The ordinance in question was passed at a ’meeting of the city council of February 6, 1935. It received the favorable vote of three of the councilmen. One of these was Forrest Walker. Appellants contend he was not one of the “members elect” of the city council, inasmuch as he had been appointed to the position by the mayor and his appointment approved and consented to by the remaining councilmen. This point is not well taken. Walker had been appointed to fill a vacancy in the council, and his appointment having been approved and consented to, he was a member of the city council for all purposes, and had all the authority, duties and responsibilities of any other member of the city council. The word “elect” as used in this section of the statute is not limited to those councilmen who had been elected at the city election, but includes all those who had been properly chosen, as provided by statute, as distinct from a majority of those present at the meeting. For example, if there were only three members of the council present at a meeting, that number would constitute a quorum for the transaction of business, but a majority of those, that is, two of them, could not enact an ordinance. The majority has to be of all those who have been selected and qualified for the position.
The ordinary meaning of the word “elect” is “chosen, taken by preference from among two or more; select.” (Webster’s International' Dictionary.) The word “elect” when applied to an office is frequently used in the sense of one chosen, or properly chosen, or .chosen as provided by law. (See G. S. 1935, §§ 15-106, 15-204, 15-412; 2 McQuillin, Municipal Corporations, 2d ed., p. 107; Dillon, Municipal Corporations, 5th ed., § 530; State v. Williams, 60 Kan. 837, 841, 58 Pac. 476; People v. Ahearn, 196 N. Y. 221, 89 N. E. 930; Hill v. Rector, 161 Ark. 574, 256 S. W. 848, 849; State v. Doss, 102 W. Va. 162, 134 S. E. 749; Kopczynski v. Schriver, 194 Mich. 553, 161 N. W. 238.)
The next question argued is whether the action taken by the city
Appellants contend the proceedings had were not in conformity to G. S. 1935, 12-842 and 12-843, and are therefore invalid. These statutes require the vote in favor of the proposition submitted, to
Appellants next ask: “Does the record disclose such waste of public funds as will justify injunctive relief?” The trial court had not decreed injunctive relief; hence, we are not required to examine the record to see if the evidence justified it. More accurately, this question should have been stated: “Does the record disclose such a waste of public funds as required the trial court to grant injunctive relief in the exercise of its sound, equitable jurisdiction?” Plaintiffs had alleged it would be a waste of public funds to spend not more than $20,000 for an electric light and power plant. On this point it called two witnesses. The city clerk testified he had attended all the meetings of the city council where the matter was discussed; that the city officials had received a quantity of literature, and had given consideration to the kind of plant they would install; that they planned to spend no more money than the $20,000 for which bonds had been voted, and that they intended to install an efficient system for that sum, or less. The other witness called was an engineer of the state corporation commission, who had many years’ experience in construction, operation and valuation of utility plants, including electric plants, both municipally and privately owned. He gave it as his opinion that the minimum cost of an efficient plant in a town of the size of Johnson City would be $27,500; but his evidence disclosed that he had reached that conclusion by estimates, approximations and assumptions which might
We find no error in the record. The judgment of the court below is affirmed.