The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1901-12-24
JUDGE WILSON'S DECISION.

In one Instance can the aldermen MI a
vacancy IN office otherwise than on noinl'
rntion by the mayor, and that is whcr
the office OF any alderman shall becom
vacant. There the other aldermen by ma
lorty vote without any nomination by tine
mayor, select n successor. tCharter. SEE.
- 10 say that the aldermen have not by
the motion or ordinance attempted TO max
pr Krumly health officer without the
nomination OF the mayor, Is but 10 aulhbi
over words. II tho council can assign me
duties OF health officer to Or. Brumb}
along with compensation or With the salary
o! the health officer. Il is imnaicrinl
whether they call him health officer o.
cn him health inspector performing tn
duties Of health officer. The council dc
charter. aud It can not violate the churtr
either directly or indirectly. lHcHrd NJ.
pctbiur. 80 Tx. 1Oti1 Certain duties
thc Gaorier 5ays must ec gssrfo55%aSd r h.
health officer iu ease ~ vacancy, must u,
q person nominated by the mayor lSr"
100 ~ Is true tho council would hay
mower 10y ordinance 10 assign such Of tbc
duties OF health officer as were attached
10 him lay ordnance alone and not lnclud"
IN ia" general grant by the charter. 81
powers ~ The health officer, tu 8onc newt.
created ofhc", hut they could not even then
ny such office. except II We're With som o.
person who had been nominated by The
mayor. iSoc - OF charterJ Neither can
| t5g council 10y ordnance assign To- tue
ofi7c Of health Inspector duties assigned
( IN general wSv by the charter to the
u'dItu NIU'ff. IVA OkNcT NolnSt inc Counci
deriving it's powers FROM the chnrcr, eau
| lIol by ordinance override the charter
either directly or Indirectly. Beard VS.
Decatur, "a Tex. l0-1ll
As viii be seen hereafter whatever
power exists " hiling the office Of health
officer temporarily until the mayor aud
! council can agree on man, Is vested by
/ lNw IN the mayor and not in the council
Z Tho general power vested by section 3 al
/ the charter In the city council to admins
ter Inc business affairs OF the city, aud by
section 10. To- adopt rules and regulations
/ Tor the conduct of the proceedings of the
: council ana by section ~, To pass Ordi
hun"eS in MS general legislative capacit.
might override the veto Of the mayor or
nullfy his refusal to put question to q
, vote i'm the council that being a question
4 of parliamentary Law. but would not give
+ lhN council the right TO OIL this office other
man WIN sotun nominee OF the mayor; for
innt would Dec fee override not the mayor
mt the charter ana the council can not
/ uulliiN the document which Is the sole
! source OF its authority,
| l'r. Hrumby is therefore without legal au'
I thuntr 10 either hold the Office or exercise
: tho duties NJ houith officer aud the mot ious
, on ordinances ~ the council intended to
/ have that cttrrt are nun aud void aud con
, iraty 90 tho rhHrlcr lie is NOT therefore
/ dc Iurc inc health officer.
/ II is roni'ndod however that he occupies
/ the position of dc facto health officer
/ rather than that Of mere Intruder I'm Of
, h"c.
! Inc court Us or opinion that this Is not
] NtUilii. As IoUE ago * 1900 the supreme
court held. Blcncourt We. Parker, u Texas,
I 800 "lhc mere assumption NJ the office
| hy performing ono o. oven several OF the
ution ~ tnc person as officer by the APP
pointing power, may not he sufficient In
constitute him am officer. dc facto.
. "lhorc must be ~ az least some colorado
. election and Induction into the office Hh
origlnc and some action hereunder, or
| ~ so long an exercise Of the office and
acqnicsrencc therein NJ the public author
tiles as 90 AFFORD 10 an individual citizen a
strong presumption that the party was duly
appointed ana therefore that amy person
might compel MIN for the legal fees TO do
his business. and for the same reason was
bound To- submit to his authority in sucl
official capacity And again IN France
Texas Land Company vs.. l.aiglc, 30 Texas
34i, VI Is said by tho supreme court. "a
person claiming TO be q de facto Officer
should have some colorado right to thu
office, though he has no legal right thereto
by reason Of some informally or irregular
ity In his election or appointment an,
again, ~ dc facto authority can not arls
where thcrc has been absolutely no clcc
1 ton or appointment or what Is Equivalent
, one that Is absolutely null and void, am
{ not merely Irregular aud informal AM
1 whore there has been no assertion of tn
right 10 exercise the office. except in tn
d very Instance in which il is questioned.
See also - American and English Ency
/ clopediu Of Inv told edition., Hl6, Mcchcn
ON Public Of0ccrs, pages 3l932l, scctlol
) 100. rho attempt 10y The council to confc
l'kdllN upon III mummy lut pfIlNINlhNf
s Of the dulles OF health officer being nul
and void, there is no colorado election o
appointment.
Was there exercise of the duties OF tn
office for such length OF time as TO rails
the presumption that Or. Brumby was tn
lawful health officer described In Bicn
p court vs.. Parker above? This was not tn
case during Dr. Massic's life. for Dr
Brumhy is not shown during that time T.
have claimed he was himself the healtl
officer nor docs the evidence disclose tina
he made such claim 20 be the health OF
iicer after pr Massie's death. The CLAIM
to be acting as health officer is not n CLAIM
TO the office. The first assertion Of
right to exercise the functions Of healtl
officer was In the motion or ordnanc
passed hy tho council, and that was met b.
the mayor, not by acqucscencc. hut by
controversy and opposition, both in III
courts and out Of them; aud the motion o
ordinance does not purport - sraoint Or
q Brunlby to tae efecs, bat merely authorize
: AN to perform the duties of the office I'M
+ al II can he filled according TO the charter
4 In other words. there L. not only a lack o
color Of title to the office, but such a
absence OF claim by tho plaintiff to he Il
, | fact tho lawful health officer of the city
. rs brings the case outside the sccon
branch Of the definition IN The Bicncour
case state VS. Oates, S6 Wisconsin, 63i
Here another consideration ronfrouts us
| ~. prutuI,,. ,iIcvcs ia Njy pptyttnr, fnr IN