The daily morning Astorian. [volume] (Astoria, Oregon) 1883-1899, 1893-05-25
Decision in the
Court Street Cases
Coatinueg from First Paoe.

as their right to resign was concerned
just in the position that Crosby wa.
was in when his resignation was ac
oepted by the council. In deciding OF
the validity Of their resignation. tn,
Supreme Court of the United States
said; ut would seem plain that the
office of q, supervisor or town clerk
could not be terminated until his sue.
cessor subscribed and filed his oath OF
office, and that, when the supervisor
and town clerk before us supposed
their offices were at an end by their
designations, they were in error
The designations
may be made to and accepted by the
officers named, but, to become perfect,
they depend upon, and must be fol-
lowed by an additional fact: to wit.
the appointment of a successor and his
qualification" when it is said in
the statute that his resignation may
be thus accepted, it is like the expira-
tion of term of Office" 'In form.
the office is thereby ended, but, to make
it effectual, it must be followed by
the qualification of a successor" Fol-
lowing this case, 1 am inclined to hold
that Crosby continued to be mayor
until his successor was elected and
qualified. This being the case Mr..
Bergman, in his absence or inability
to act, had the right to sign ordi-
nances, and the presumption is that
official duty is regularly performed.
and that when his signature appears
to an ordinance, it was placed there
upon one of the contingencies named
In the Charter. But, if Crosby abso-
lutely ceased to be mayor upon the ac-
ceptance of his resignation, 1 do not
think that this fact would prevent the
president of the council from acting as
mayor or render his signature to an
ordinance a void act. In addition to
the section of the charter already
quoted, l find this additional provision
which seems to Indicate an intention
on the part Of the legislature to pro-
vide for any possible contingency that
might arise by reason of the absence
of a mayor. Section "a provides:
"That in the absence or inability of
the mayor, the president of the council
shall perform all the duties of mayor,
approve all ordinances, etc., requiring
the approval Of the mayor" BY this
section he is not required to sign as
mayor" but to perform the duties of
mayor The law-maker evidently
meant something more than is ex-
pressed in sections 43 and AZ of the |
charter; and while the language chosen
is not the best or most expressive, I |
think fair construction of it, accord |
ing to it's spirit, would cover a case of |
either death or resignation of mayor
Statutes of this kind should not be
in a narrow and technical |
spirit, but with view to give effect |
to the intent of the law-making power.
Thus, courts frequently disregard the
strict letter of the statute to give eff
feet to it's evident intent. This, in
Neil VS.. Wilson, 14th Oregon, page 412,
where the laws of the United States
gave certain privileges to pilots upon
waters forming the common boundary
between two states, our Supreme
Court, following the spirit of the law,
leld that the word state should be
construed to mean and include a terri
ory Of the United States. The courts
also have frequently construed the
word may" to mean must and shall,
Ind the word "the" to mean a, when
he whole act taken together seemed
o Indicate such an intent, so, that
n any event, 1 think that Bergman
vas not only de facto but de jure en-
tiled to sign the ordinances in ques-
ion. Every presumption is in favor
f the act of a public officer.
Code, page $50.
Dolby VS.. Barnet 9TH oregon, 1872.
Farr VS.. Simms, oath Amer. Dec, 1896.
Hartwell VS.. Root, 10 Amer. Dec, 1882.
1 do not think the claim that Court
treet was improved in 1872 is borne
ut by the evidence. 1 think when
he charter speaks of Improvement"
means substantial Improvement
the kind commonly seen in city
treets A single plank laid across
might improve the travel
n the street, but it would not be a
street improvement" within the mean
lg Of the law. The evidence in this
ase show that in 1872 a dirt road was
uilt on some portion of the street,
ut nowhere to it's entire width, and
de-walk, more or less substantial,
'as built on tIestles along one side of
ne street for quite a distance; but
his does not come within the terms
{ the charter which provides that
any street or part thereof, which has
eretofore been or shall hereafter be
improved by order of the Common
ouncil and the cost thereof assessed
pom the adjacent property, and which
as been, or may hereafter be accepted
Y the common council, shall there
fter be improved and kept in repair
the city's expense" In order to be
1empt, therefore, from special assess {
ent for street improvement, the party
aiming such exception must prove
lie concurrent existence of three facts,
rst, the street must have been pre-
ously improved by order Of the COM
on council; second. the cost thereof :
ust have been assessed upon the ad-
cent property, and third, the inn
rovement must have been accepted
z the council Granting the first nrnn-l