The daily morning Astorian. [volume] (Astoria, Oregon) 1883-1899, 1893-05-25

grade or Improvement can
be undertaken or made without ten
days notice thereof, being by publica-
tion in a newspaper published N the
city of Astoria" etc. 1t is contended
that this, in effect, requires that no.
tice shall be given each day for ten
days, and that, as in this case, two Of
the ten days were Sundays, that there
fore, the notice was void
/ cannot adopt this view of the law.
Sunday publications are to be included,
unless excluded by the statute.
Code, page 466, section 519.
Taylor vs.. Palmer. 81 California, 24O.
Miles VS.. McDermott, 81 California,
27l.
A statute requiring ten days notice
to be given by publication. is complied
with If notice is published once more
than ten days prior to the proceeding
referred to in the notice. The first
publication in this matter was more
than ten days prior to the happening
of the event decided in the notice,
and thereby the statute was complied
wih
Savings Bank vs. Baltimore, 1S At
lantic Rep, SO9
P. r. r Co. VS.. Shipley, 10 Atlantic
Rep. l.
The Objection that there is no proof
Of publication Of notices among the rec
ords of the council is not tenable. The
charter does not require proof of such
Ing.
publication to be made a matter OF
record, and 1t was sufficiently proved
on a trial in this court that the publi-
cation actually was made This is all
the law requires.
Jolly VS.. Foltz, "a California, S21
Blair VS.. Hamilton, 80 California, So
Seattle VS.. Doran, 80 Pacific Rep,
105.
State VS.. Lands, 18th Alantic Rep,
251.
The next objection, and one that
seemed to me on first impression, to
be very serious one, Is that Isaac
Bergman, president of the council, had
no authority to sign ordinances Nos.
14O9 and 1882, upon which the validity
of these proceedings rests. On the trial
1t appeared that on April IA, 1891, one
M. c. Crosby was the mayor of the
city, and on that day he sent in his ies-
ignation and the council accepted II but
instead of choosing his successor imme-
diately, they spent several weeks in
boyish wrangling OVER candidates. until
November Z, 1891 at which time SAM
Iel Gilmore was elected mayor. After
Crosby's resignation and before the
election of Gilmore, these ordinances
were passed and were signed by Isaac
Bergman as president Of the Council"
Counsel for plaintiffs rely on section
AZ Of chapter Of the charter, which is
rs follows: During the absence Of the
mayor from the city, or If he be unwell,
or from any reason be unable to at
tend, the president Of the council shall
be the acting mayor and perform the
duties Of such office during suchabsence
or disability, except as otherwise pro-
vided in this act" Counsel contend,
with much plauslbility and force, that
before the president of the council can
act as mayor there must be q mayor in
asse and that he must have been absent
or unwell; that In this case, there was
no absence of the mayor or sickness OF
the mayor, but that there was no
mayor, and that this contingency is
lot provided for In the charter. If this
s true there is an end to defendants
,ase, but cannot assent to the propo-
jition, plausible as 1t seems. The char
er provides that the mayor shall hold
lis Office until his successor Is elected
md qualified 1t also provides for his
and the election of his sue
essor. Taking these sections together,
think that 1t was Iever the intent Of
he law-malSer that the mayor could
ny down his Office absolutely, and
cave the city without any responsible
cad. He might resign and his resig-
alton be accepted by the council, and
hereby, for the purpose Of electing
is successor, vacancy could exist;
ut for all other purposes he contin-
ed mayor until his successor was
lected and qualified. The decisions
II this subject are few and not uni
orm, but the case Of Badger, ct al.
9. The United States, 9S. Y. s.
GEMS to me to be SO mrch
! accord with justice and public
onvenience that / shall follow II
1 this case In the case cited Fad
er and his two fellow plaintiffs in
rror, were, respectively, justices OF
he peace, town clerk and supervisor
\ the tcwn Of Amboy. Illinois. One
'olles had obtained judgment against
he town which II was their duty
D audit and pay; in order to avoid
his duty they sent in their -esig-
ations to the selectmen of the town,
,hich designations were accepted. The
as in this case. failed to
II the vacancy thus created; there
,as statute, as in this case. pro
lding that they might resign by
ending their reslgnations TO the select
rem: there was also a statute, as
this case, providing they should
old their offices for a certain term,