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


MrN,c,pA1 CORPORATIONS = Pro-
CEED1NGS OF CITl SVoNoIn ,,na'.ss,
oRD-PARoL Ev1DENCE-.Nff o1NY
MENT OF OFFICERs-HoLDING oyElt
| sT-JURISDICTIoN-.I
TON.
l. Under Code 1873, s 3345, author
izing an action against any person un-
lawfully holding any public Office or
franchise within this state" the dis
trict court has jurisdiction of an action
to test the right to office of a street
commissioner appointed by the CITY
council under Code 1873, S 524, author
izing 9 city council to provide by ordi-
nance for such officers as should be
necessary. 9
2. A city ordinance directed the
council to appoint street commissions
or at the first regular meeting in each
year, on the third Monday in March,
who should hold Office for one year and
until 9 successor was appointed. Code
1873, 8 784, provides that every officer
appointed for fixed term shall hold
over until his successor shall be APP
pointed, unless otherwise provided by
statute. The council at its meeting in
March, after voting several times with
out result, adjourned without day.
without appointing REALTORS successor
as street commissioner, and afterwards
approved REALTORS bond as hold-over
officer, although such approval was
afterward reconsldered and lost. Held,
that relator was continued in office,
and the council could not at subses,
quent meeting appoint successor.
3. On a vote by q city council to
appoint q certain person as street COM
missioner three members voted yea
two did not vote, and one voted for an,
other person. The latter three were.
recorded as voting no, and the m ayor,
deciding that there was tie, voted
yea, and declared the motion carried.
Held, that under Code 1873, s 49S. re.
quiring all appointments Of city off,
GERS BY city council to be made by a
majority vote of the whole numns..
elepted to the council, and that the
record show for whom they voted. such
proceeding was void.
4. A record of vote of q city coun-
Gil which shows on its face that three
members voted yea and three no may
be contradicted by parol to show that
two OF the latter DIG not vote ut all,
| where it also shows that members not
voting were counted as voting no.
5. Code 1873, s33S6, authorizing an
injunction in certain actions by ordi-
nary proceedings, does not authorize
the court to enjoin public officer from
exercising the duties pertaining TO his
office, in all action to test his right to
hold it, where the pleadings show that
he was in actual possession of the of
flee and discharglng its duties at the
time the action was commenced
Appeal from district court, Harrison
county; G. w. Wakefield, judge
Action commenced by ordinary pro-
ceeding to test the right of the defend
ant to hold the Office of street commits
sioner of Missouri Valley. An amend
ment to- the petition was filed in which
was asked q temporary writ Of injunc-
tiOn to restrain the defendant from
exercising any of the duties pertaining
to the office until the further order of
the court, and to require him to turn
over to the relator the tools and other
property pertaining to the office. The
injunction was granted as prayed.
There was trial on the merits, and a
Judgment in favor of the plaintiff.
The defendant appeals. Modified and
affirmed.
Frank Tamisiea and S II. Cochran,
for appellant G. w. Kellogg and ]
S. Dewell, for appellee.
| ROBINSON, G: j, Missouri Valley is
8 city of the second class One of Its
ordinances establishes the office of
street commissioner, and provides that
it shall be filed by the city council;
that at the first regular meeting after
the taking effect of the ordinance, and
annually thereafter at the regular
meeting in March of each year, the
council shall appoint q street commits
sioner who shall continue in office for
the term of one year, and until his sue
cessor is elected and qualified unless
sooner removed by vote of the coun-
Gil. Another ordinance provides "taat
at the first regular meeting of the city
day in March, the said city council
members thereof, appoint" street
"who shall hold their office for the
term of one year and until their sue
cessors in office are duly appointed and
qualified" The relator was duly ap-
pointed street commissioner in March,
1896, gave the official bond required,
and discharged the duties of the Office
until April. 1897. He has never been
removed from the Office by vote of
the council, and he claims that his sue
cessor has not been appointed; that he
gave new bond to secure the faithful
i performance of his duties az hold
Dyer officer; and that the defendant
wrongfully claims the office. 1'he de.
fendant claims that he was duly ap.
pointed to the office by the city coun.
Il Gil at meeting held on the 9th day OF
April, 1897, and that he gave an official
bond. which was approved as required
| by the ordinance.
| l, Tho appellant contends that the
district court erred in assuming jurls
idiction of this action for the following
treason: That the Office in controversy
was not created by law, but by ordi
nance, and the city council alone had
jurisdlGtion to entertain contest
Section 524 of the Code of 1873 author
lied the city council to provide by or
dinance for such city officers as should
be necessary for the good government
Of the city, and the Office in question
was created by virtue of that author
ity. An ordinance Of the city pro
vided that the election of any Officer
might be contested on the same
grounds and for the same causes spe
CITED in cases Of contested elections Of
county officers, and that the proceed
ipgs should be before the city council
hut the ordinance applies to electiv,