The daily Argus. (Rock Island, Ill.) 1873-1877, 1876-02-09
OPINION OF JUDGE PEASANTS.
The Mayor not to be Counted---The
Ordinance Properly Passed
Over his Veto,

The city as delivered IN court on Tuesday:
| am asked to state my views upon the
question raised by the demurrer to the
petition by Mr.. Boynton for a mandamus
TO the Mayor of this city. / am not pre-
pared to state it 10 just such toIm as
would be most satisfactory to myself,
though think the whole question lies
within very narrow compass. and have
not been able myself to make anything
very serious out of it.
From a brief abstract of the petition
before me, it sets forth that on the 18th
Of October, 1875, the city being indebted
to the petitioner for his services to the
Board of Water Commissioners from the
lst of June to the lst of October, inclu-
sive, in the sum of $269.76 the City
Council at that time, by vote of eight
yeas to two nays 1.-THE Mayor not voting)
passed an ordinance for the payment to
him Cor those services and directing war
rant to be drawn for it upon the Treasurer,
which ordinance, Immediately after its
passage and on the same day, was deposit
ed in the Office of the City Clerk, and at
the next meeting of the City Council, in
1875, the Mayor returned it
with his objections and at a subsequent
regular meeting of the Council On the 10th
day of January OF this year, the Council
reconsidered the vote, and by yeas and
nays, entered on the journal, seven out of
ten of the Aldermen voting for the passage
of said ordinance, it was passed, notwith-
standing the veto, and has ever since been
and still is in full force and effect; that
the warrant was drawn by the Clerk in
Of tho nf he ahar
and ordinance in due form and signed by
him, and on the 10Th day of January it
was presented by the petitioner to the
Mayor, with the request that he sign it;
and that the Mayor refused, and still re-
fuses so to do; and inasmuch as it cannot
be paid except upon a warrant signed by
the Mayor, the petitioner asks for a man
damus to compel him to sign the warrant
The only question raised by the demur-
rer was, whether the ordinance is properly
passed, and the point is based upon the
analogous provisions in the amended
charter, the act of 1861 amending the
charter, and the act of 1875, which declare
that the City Council shall be composed
of the Mayor and Aldermen, and the pro
vision in relation to the reconsideration of
the vote by which ordinances were pass
ed upon their return by the Mayor with
his objections.
Counsel for the respondent stated that
he felt under no obligation to vindicate the
wisdom of the provision, and simply con-
tended that ii was in fact the law declared
by the legislature applicable to this case,
and was peculiar, so far as he knew, to the
city of Rock Islaud-that provision which
oil "a MOI haY ut n
Council.
In that l think he is mistaken. With
out having verified it by an examination,
| took up the volume of the Session Laws
Of 1857 with view to look at a few of the
city charters therein, and the first two in
the alphabetical list were those of the
cities of Abingdon and Amboy, and ]
found the provisions therein were precisely
as in the case of the city of Rock Island,
declaring that the City Council should con-
sist of the Mayor and Aldermen. With
out looking further thought that | might
safely assume that the provision was a
usual one.
The question then is whether, &c .,
ternslni, We are compelled to count the
Mayor in the aggregate, two thirds Of
which arc required to overcome the veto
If we are, it must be because the tern
City Council is there used in such sense
1t we are, we must, in like manner
count the Mayor wherever that term il
used; unless he is specially excepted.
| But find, upon looking somewhat cur
sorily through the amended charter, tina
in many instances it uses the term Cit
Council clearly in the exclusion of til
Mayor
/ will call attention to two or three Q
them:
THE Court here read sections one, two
three and four, article 2, of the city char
ter
Now. by section 6, any person elected Q
appointed to any office may be removed b
a vote of two thirds of all the Alderme
authorized by law TO be elected.
They are removable by a vote Of two
thirds of all the Aldermen authorized
law to be elected. Put no officer sha
be removed except for just cause, ETC."
This says, Be removable by the Aldel
men in exclusion of the Mayor, and in tn
same section, THE City Council shall Pre-
coed to hear and determine upon th
merits of the case, and if such officer sha
neglect to appear and answer to sue
, charge, then the City Council may declar
the Office vacant, provided: this sectio
shall be deemed to apply to any Office
appointed by the City Council,
That is to say, as l understand it:
much of the section as provides that n
moval shall only be upon good cause an
upon notice of the cause, and opportunit
for defence, relates to officers elected
Officers appointed by the Council are n
movable at the pleasure of the Counci
without cause,
Provided such officer shall not be one
those officers appointed by the City Coul
Gil, such officer may be removed at an
time by vote of two thirds as aforesaid j
their discretion"
| Evidently, then, the term City Coune
in repeated instances in that section NEAR
the Aldermen in exclusion of the Mayo
1t is the necessary result of fair COZ
} struction of these different sections bea
ing upon the same subject matter.
i Officers are appointed by the Aldermen
They are removable by the Alderme
But those appointed by the City Counc
are removable by the City Council by
two thirds vote of the Council as aforesai
in their discretion.
u So in section I, article 2. which provide
, that whenever any vacancy shall occr
in any office elected by the people sue
vacancy shall be filed by new electio
and the City Council shall order sue
special election, Al
vacancy in an elective Office when less thu
three months of the term remains une
pired may be filled by appointment of Il
City Council