Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1873-12-09
THE LAST OF CICALLA.
His Petition for Mandamas Against the
City Council Dismissed by Judge
Halsey, Of the Second
Circuit Court.
aessrs. TreadweIl and Pettigrew are De
FactO Officers, and Cicalla Must
Have Other Remedy than
MaHdamus.

Judge hatsey, OF the second circuit coufL
yesterday delivered his opinion on the denur-
rer in the case Of Paul "A. Cicalla IS. the board
OF aldermen of the city OF Memphis, which
was Eled on petition for writ of DsGRdd1nus
nfsl tn reinstate him as alderman, he having
been expelled from this Office by action of the
board Of aldermen. To this City Attorney
Randolph fled demurrer on the grounds
First, that the petitioner has been expelled
and his successor elected by the board, which
board, by law, is the Judge Of the qualification
of members; second, that the second circuit
court has no Jurisdi ction % revise the action
OF the board, and certainly not by n1d1sctd-
Tne court held that the al
legation Of fact in the a, nrst q de- 1s,
the relater has been expelled for cause deem
ed sufficient, aud the board of aldermen has
appointed a successor. The question as 10 the
made, by law, the judge of the qualifications
of its members, and has power to expel a
member : that he the relaterl is
not entitled, while the order OF expulsion re-
mains in force, 20 the seat he seeks 70 be re-
turned TO-" is correct.
Because this Is true, by virtue of the char
ter, does II fellow, as necessary tegal eonse-
quence, that while such order remains in
force, ne may not be entitledto be returned. 10
his seat?
But the city charter makes the city legisla-
ture the Judge of toe qualifications OF its
members, II fails to make them the eIctitsire
judges while il was competent for the legls-
Iature TO vest this jurisdiction, Il does not DO
comments upon Municipal Corporations" !"
sections l4I and lz2), and holds: 'tN hat effect
do provisions of this kind have upon the ju-
riSdicEOn of the superior court2 The answer
must depend upon the language in which
these provisions are couched in the light of
the general laws OF the state upon the sub
ject OF contested elections and Qts0-seGrrants."
In the absence of 8lleQlaUocdl certainty that
the legislature intended to divest this power,
the Jurisdiction of the court remains. Such
Language as quoted las the effect, 0rdindf ily,
off n
not an exclusive one. One clause OF a mun1-
cipal charter that ''the city council shall be
The judges of the elections, returns and quail
fcations of their own members, and OF the
other officers of the corp ration, " was held by
the supreme court of Delaware not to -oust"
the superior court OF the State Invested with
the usual powers of the kings bench) of its
experimenting jurisdiction over corpora
tions. In the face of an error as to want OF
qualification of a member BY the council
BldnddElus might issue. The section of our
city charter confers no such exclusive juris-
diction. and does not take away the JurlSd1c-
ton OF the circurt court.
The section of the city charter referred to
in the first ground OF the demurrer has refer
ence to the admission and not to the expul-
sion of members. Even giving the section
tne full force claimed, IL does not divesJ
the circuit court OF It's experimenting power.
"DoeS it follow because the relator has been
he Is, therefore, not entitled TO his
seat? "
0Where municipal officer, or member of
a municipal corporation has been Illegally
suspended OF Illegally removed, he is in gener-
al entitled to a Hdaddfnus TO restore MIN"
Vide Dillon rs. Municipal corporation, sec
ton 6S5.) But B.dnddmuS will not lie where
there is another plain and adequate remedy.
Idcn, 6e6.)
All authorities recognize the right of an ex-
PEELED member TO seek redress, and also es-
tablish the Jurisdiction OF the circuit court
over the acts of municipal corporations, not
otherwise divested by statute. Therefore,
thfs ground of this demurrer cannot be sus-
tanned.
As to the question of the remedy being
by ploRddmts, the provision of the
this country, is, that an Information, in the
nature Of a quo IOdTTdntO is the proper reme-
dy for trying or testing the validity OF an OIL
Ger election OF commission, etc. Mnlle GER
tifcate of election is p7iz1d Jdcte evidence in
favor of an officer, and in every proceeding,
except a direct one TO try the title of such
holder, it is conclusive; but in quo tCdTr0Rto
the court goes behind the certincate or com
mission, and inquiries inIo the validity of the
election or appointment, and decides the legal
rights, upon full investigation. lPtde Dillon
rs. Municipal Corp0rauOnS.) Mr.. Moses, IN
quoting from Judge Dillon (p.p. Isl and l52l,
lays down the principle, and the only case
ctLed by him in favor of the position, Is Rex
US. the Corporation OF Bedford, decided in 1875,
and reported in East 800. The question did
not directly arise in the above case, and the
OrOadeSt intimation to be found in support OF
the proposition that "HadnddnaseS in aid OF
proceed ngs in quo iodrTQntO, will lie where
there is an adverse holding of the office under
color of right before the adjudication IN quo
oaTTdnto, " is in the reputed utterance of Law
renee, J., which, being mere dfcfunl, is ent1-
lied 10 authority. VIDE Dillon, sections 67o
and SO, municipal coTporations.) :"
1ldnddnlItS lies 10 compel adm1ttanee TO
elected, but not 10 try the right
10 public Office, especially where held by ad-
verse claimant. The remedy, IN accordance
with the English rule, bS information,
5 according to section $50 Of the same author
IS held in Georgia and some other States to be
proper where person is an c11cer de fdcto.
The grounds OF the case are stated in third
Johns cases ~ and 50, that where the office
s already filled by person who has been ad-
mi tied ard sworn, and is in by color of right,
Bldld0nlUS is never issued TO admit another
person because the corporation being third
party may admit or not at pleasure, and the
lights of the party in office may be injured
without his having an opportunity to make
iefense. The proper remedy is in the first
Instance by information in the nature of a
no tga1Tanto by which the rights of the par
les may be tried"
1t being admitted in the petition that Petit
grew and Treadweil have been elected, wheth.
r properly or not, by the board of aldermen,
and the rule having been ascertained that If
hey are in "by color OF right, zl051ddIatss does
not lie, ii remains to consider whether such
an election constitutes "eolor of right" to the
offices in question; or, in other words, wheth-
sr Pettigrew and Treadwell are officers de
fdctO.
Butler, ehaef-justice in the supreme court of
errors, Connecticut, says an officer de (dcfO is
One whose acts, though not those OF lawful
officer, the law, upon principles of policy and
ustice, will hold valid so far as they involve
the interest OF the public and third persons
where the duties of The Office were exercised.
1t has been held in Ten
aessee that although judge may not be con-
eligible, yet, if he be commits
stoned, his official acts are valid and binding
as an officer de facto.
Judge 'Halsey says that there can be no
doubt but MesSrs. Treadwell and Pettigrew
are officers de Gdcto under color of right, and
such beirg the case, If the views already ex-
pressed be correct, the proper remedy is by
some other than TdnddnlUS. 1t is unneees-
Sary, as it would be improper, to express here
any opinion opon the facts set up in the petit
tion. NoqueStion of the kind now arises.
have simply endeavored to ascertain and ap-
ply the legal principle involved in this con-
IN the attitude in which il has pre-
sented itself to the court. The result is that
the SacOnd o-rornd of darrr1r-rar f1y1sf hsa Sr1c