Missouri Valley times. [volume] (Missouri Valley, Iowa) 1874-1931, 1899-02-09

judge of the proper district court
2. The ordinance of the city proviCl.
ed, as we have seen, that the street
commissioner should be appointed on
the third Monday in March. On that
day in the year 1897 the members of
the council voted seven times for per-
sons to fill the Office, but, no candidate
having received q majority vote of the
members of the council, motion to
adjourn, but not to any specified date.
was carried. On the 9th day of April
another meeting was held, and, mo.
''"n to appoint the defendant as street
c ~ EVER having been made, the
u mavnr wbo wa. rre. -'"'"s. announced
that on roll call all who favolx. "ne
motion should, when their names were
called, answer yea, that those opposed
should answer no. and that those pres
emit and not voting would be recorded
as voting no. Three members of the
council voted yea; two did not vote,
and one voted for man not named in
the motion, and the three we're record
ed as voting no; and the mayor, decid-
ing that there was tie, voted yea, and
declared the motion carried The pur-
pose of recording as voting In the mega
tive members of the council who did
not vote for the motion was to create
an apparent tie, and thus permit the
mayor to vote, as he was authorized by
the rules OF the council to do when the
members of the council we're equally
divided Section 7S4 of the Code of
1873 provided that every officer elected
or appointed for a fixed term should
hold office until his successor be elected
nd Hold vo1n So
which he was elected or appointed ex
pressly declared the contrary The or
dinance of city enacted under the au-
thority of section 524 of the Code of
1873 provided that the street commits
sioner should hold his office for the
tenn of one year and until his success
sor should be elected and qualified.
It was said IN Carter v. Mcfarland,
Is Iowa: 1888, N w. 1858, a case which
involved the appointment of the treas
urer of school district, that If the
board OF directors, which had the ap-
pointing power, had met on the day
fixed by law for the appointment, and
after transacting other business had
adjourned without day, and without
giving attention to the election of
treasurer. the incumbent would have
! held over under section 1884, What
was thus said is applicable to this case.
The council met at the time fixed by
the ordinance, and, after failing to
appoint street commissioners, ad-
journed without day The relator
afterwards rendered bond as hold
owes officer, and the bond was approx
ed by the council, although the record
of the proceedings of the council at
meeting held after this action was
commenced shows that the approval
was reconsidered and lost. but new
bond was not required. We are of the
opinion that what was done had the
effect to continue the relator in office.
3. But, if the failure of the council
to appoint street commissioner at
the time fixed by ordinance and an ad-
journment without day did not deprive
the council of the power to make the
appointment at q subsequent meeting.
we think that what was done cannot
be given the effect of an appointment
1t is said, however, that the record is
regular on its face and cannot be con-
tradicted by parol evidence. That
such record is conclusive for some
purposes may be conceded; but with
out deciding that person adversely
interested, who was not in any manner
9 party to or responsible for record
regular on its face, cannot qreation it
in collateral proceeding wa hold that
the rule invoked cannot apply in this
case, for the reason thst the record
shows that i'm certain contingency
that is if members nf the council were
present who DID not vote on the mo-
tion to appoint tire defendant never
theless they would be recorded as vot-
ing in the negative Under these cir
cnmstances. we are of the opinion that
parol evidence TO show the fact was
properly received Section 493 of the
Code 1873 required all appointments of
sitv officers by city council 10 he
made viva voce. nv a majority of the
whole number of members elected tn
the council, and that the record s',cv
for whom they voted. The CITY nrdi
nance also required the appointment
to be made by majority vote Of all
the members Of the council The cyl
dence shows that there was not i'm
fact tie. and the right of the mayor
to casting vote was limited to cases
where there was tie. Code 1873. s531.
Therefore he had no right to vote in
this case, and the action taken was of
no effect.
a. We are ncxt required to consider
the amendment to the petition, and the
injunction. Section 3348 of the Code
of 1873 provided that to an action COM
menced by virtue of the preceding
section there shonld be no joinder Of
any other cause of action, and it is in
sisted that the district court wrong
fully permitted the plaintiff to amend
his petition by pleading facts on which
temporary injunction was asked and
granted It is the general rule that
courts Of equity have no jurisdiction
to determine the respective rights of
claimants to public Office, for the
reason that the remedy at law Is ade-
quate; and it is also the general rule
that an injunction will not lie to re-
strains person acting as a public Of
licer from exercising the functions per-
tanning to the Office on the ground that
he Is not entitled to the Office
1t has been held that an injunction
will lie in favor of the incumbent of
an Office, to protect him in the dis
charge OF the duties of the office,
i against ali adverse claimant, until the
latter shall have established his right
to the office by an action or proceeding
at law.
| We next inquire, under which Of the
rules stated does the injunction asked
in this case fall ? The original petit
tion shows that the defendant was Tex
@ cising the office of street commits
sioner" under an appointment made by