Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-06-25

AM vacant offices. Under this act
the mayor and aldermen were. cleo
/ ted In October, 1856. But prior
to that time the board elected
for the rlirty-ninth corporate year, hold
| ing over until their successors should be
elected and qualified, in July, 1856,
elected the plaintiff Lynch city physi-
elan, and he qualified as required By
ordinance and was regularly indncted
I into Office. The new board came IN, anu
/ BY resolution adopted by more than two,
I thirds of the body, declared this and
/ other effiees vacant, and thereupon pro-
j eeeded TO elect DIR. Woodward as city
/ physician in place OF Lynch. DIR. war
ner was the city physician, holding IN
! der the old board. The chancellor de-
cIared Lynch to be entitled to the office
/ for cne year from his election by the old
1 board.
Per Casriam.-By the city charter the
/ aldermen are elected by the qualified
/ voters of the respective wards for one
/ year. The mayor is elected by the
voters of the city, and also holds his
Office for one year. The recorder, wharf
I master, chief OF police, tax collector
etc., are in like manner elected for
/ one wear, and all hold their offices until
| their successors are elected and qualified.
! In addition. the charter creates certain
Eother enumerated offices, such as
city register, city treasurer, city engi-
neer. INSPECTORS, etc., whose terms Of
Office are to be prescribed by ordinance,
| These officers are elected by the board of
aldermen, and hold their offices until
their successors are qualified. The char
I ter also provides there shall be such
other Officers and agents Of the corpora
ton as may be provided by ordinance, to
be elected by the board OF aldermen, 20
perform such duties as may be prescribed
/ by ordnance Under this provision OF
the charter, it seems, an ordinance was
passed creating certaiH offices and pre-
soribing the duties, rights, powers and
appointment of the same among which
are city comptroller, city register, street
| oora missioner, treasurer, engineer. etc,
| all Oh whoIn arg 10 be elected by the
| board Of aldermen, and 10 4Ols tEeir
/ offices until successors are elected ana
qualified, uRless sooner removed. The
4 office of city physician does not
appear under this ordinances TO
have been created; but after
wards this Office is created by an Ordi-
nance someWhat slalliaF % yhs ehe aaEys
cited. it provides that the city hospital
I physician shall be annually appointed
| tgg the msyOr and aldermen that he
shall be responsible 70 them, and hold
( his Office for one year, aRq Entil his sHg-
csssGF is elected and qualified, but may
/ be for good cause dismissed by vote Of
/ the board. These seyetsl Offices, as we'll
/ AZ those created by the charter above
alluded TO, are TO be filed by the board,
I as soon as practicable after their election
| and organization, on the nomination OF
the uayor; aud the officers thus elected
| continue "a oSf,ce for one year, and until
! their successors are eiebtss 9l3 gua1it;ed,
! unless sooner removed for gobd Cause
and in the manner prescribed by ordt-
nance. It Is proper TO remark that the
charter authorizes special elections to
! be nsiG 10 fn vacancies in such offices
as are created by enGrteF Entil the next
regular election and such as are creaEeq
/ by ordinance under authority of the
charter are filed as declared by ordinance
"lor tha remainder Of the corporate
! year" Fhe charter also HFoyldes for the
| removal Of any person holding olace
under its provisions from Office, by a vote
of two-thlrds Of the ss'ermen. In this
provision of the no cause 10 Of re- re-
si1ned hovai eTThs1ays Br NAV Der be removed bv
- lt3b 20 pay tAAi Ns VI tHS 11uCAA-SA All
ION of ciotb;1sor in office. The charter
! i5Se fessjn ~ ssdjIn aet T VT ItsS4t Me- ts II
the regular election was postponed until
reafter the registration of voters and proc
lamation by the governor, Hnd was held
on the 18th of October, 1865. The pas
sage Of the franchise act, while it does
not in terms repeal or modify the city
/ ehsEteF, had the practical effect to
/ chanRRs dadhsaFter day Of eleetion, and
/ to thatsiIts jr-ked a mobilization of
the ehskL COURf hether this change be
permass OF apJemporary, direct or indi-
rect, ie will not be questioned that the
I legislature has the power to change,
| alter or repeal the charter of q public
municipal corporation, at pleasure.
( Governor ys. AIeEwen, HBFTt
/ 2Ss; Daniel Us. Mayor Of SieNl a
phis, II Hum, $50; Aug. 4 Ames d
I Corp, "A, 25, 650-l. 1t is eqally clear
/ thai the failure to elect on the charter
I day, even under the principles OF the
common law, as well as our own decis-
1 ions and statutes, did not take away from
/ the corporation the right to hold the
| election afterward, when the annual
/ election day has passed by and no cleo
ton had, without fraud or design, as in
this case, 2 Kent, 295; Nashville bank
vs. Petway, 8 Hum, 522i code, sections
| i4SI-1365- Under sec. l4sl, code,
| the failure by corporation to elect It's
| officers st the proper time, neither dis
solves the corporation, nor disoonunues
its officers, but they hold over until the
| election or appointment and qualiflea-
4 tion of their successors. This would be
! so In this case, without the authority Of
| the statute. The tenure Of the city offices
rests not upon any constitutional limita-
1 ton. but upon the terms of the charter
and the ordinances in pursuance thereof.
/ nv the terms of both the term Of Office
/ Is limited to one year and until the sue
/ eessors are elected and qualified. ls
/ follows. that the officers Of the city,
| the mayor and aldermen and all others,
| whether elected by the people or by the
hoard. foF the thirty-ninth corporate
| wear, held over until their successors
were elected and qualified. The old
/ offleers went out on the coming in Of
/ their successors. whether elected by the
| neonle or appointed by the board, and
/ the new board, after its regular Organi-
/ cation. had full power and authority TO
\ elect or appoint the successors to the old
/ ineumberts Dr. Warner, having been
I elected by the old board for the thirty
ninth eorpOrte year, ending the Iast
THURSDAY in June, 1866, held over until
the qualification Of bis successor by the
new hoard, At this tiIae, by Operetioa
of law, his lawful connection with the
office ceased, and it was competent
for the new. board to fill his place.
Rut IL is said the election Of DR.. Lynch
after the regular termination Of the
charter wear in June, 1885, had the
effect. fpso fueto, Of removing DR..
Warner, and Lynch being in BY au-
tboritv of the old board, held bis
office for the whole OF che corporate
wear. and could not be displaced without
good cause. How this would be, were it
shown that Lynch was elected by two
Thirds vote, il is unnecessary to decide,
s. the result is the same whether II Is
Held that Lynoh's election vacated the
office held by Warner, OF that his cleo
ton was had when there was no va
eapcy. In the latter alternative the
| election of Lynch was nuility, and did
/ not oust the regular incumbent; ana IN
| the former he was in according 10 the
| charter and ordinances, only until hls
Successor was elected and qualified. DR..
| woodward is that successor, elected oy
competent and lawful board, and as
sneb. entitled to the Office Of city hospi-
I