The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1901-12-24

u
ouncil or during a recess Of the same
nder provisions OF law requiring an n.
continent to be confirmed by or made b
nd with the advice and consent Of SON
iDdv or board other than the appolnin
bower the executive can only exercise "a
lppointment without such advice and GO
sent. where since the adjournment OF %
rontrming body. a vacancy exists or ht
occurred words held to mean the sam
ningl by the death or resignation OF til
Incumbent, or by the happening Of som
other event by reason Of which the othy
IS vacant. If the confirming body be u
aCsslon when the vacancy occurs 1t can 10
Fed only by aud with the advice and con
ont Of that body, unless the conhrmln
nody has adjourned before the vacancy
He'd. Such an appointment Is temporni
nd contingent on confirmation, and II
$ not confirmed either because the SAM
Ads not sent In or was rejected. the ~
ointment becomes imperative from Il
moment Of adjournment or Of It's ref"
ion AZ tho case may he rho time
he origin 81 the vacancy. however, Is in
Material. the officer being allowed TO
when tho vacancy happens 10 exist dni
nc the recess Of the confirming hody, nyc
hough tho office became vacant during
prior 10 its session.
Mechem on Public officers. Sec. t3t.l3
l3s. and cases cited
Am and Eng. Encyclopedia NJ Law, Va
80, pages 42s.42D, and cases cited
Opinions ~ ten OF the attorneys concr
of the United states. inclur"lg Mr: w
and MIR. fancy. afterwards chief in
ti"c fancy. cited In same authorities.
This power Of temporary or PROVISION
appointment in the mayor arises out "
he public policy which requires the ofic
10 he hllcd II possible. and out Of the fu
Their fact that he has the initiative In hllln}
the Office
Should such an appointed hc SUBMIT
10 the council and fail of continuation.
reason in law Is perceived why, II IN
person were willing to accept such pr
vlsional or contingent appointment. N
mayor could not In another recess aPpoin
the same person In the same way. va
cation appointce may he possibly in some
degree at least dc jure officer. To VIVA
mine. hut IS undoubtedly good DC fnro
officer II he proceeds to act under tn
appointment
Therefore another reason why DR.. Brum'
10y is not entitled ia an injunction against
Dr Boyd. is that when applied for lr
Boyd In the exercise Of the function" sought
TO he enioncd was within the law.
As TO tho mayors legal rights In the
premises the charter prescrbcs. section -:
The city health officer shall, In conjunc'
ton with the mayor and the city council
have general charge Of the sanitation o
tho city This provision manitestr Gn-
plies that any acts done by any ot the
three guardians Of the public rTNlth snnll
he i'm accordance with law. 'rhb mayor
Csec section 26 ln) Of charter is tho prcsi-
dent Of the board Of health Of the city Of
Houston. The duties Of the board Of health
viii he found prescribed in section 90 ~
Dances lbs, 40, 14l, l42. l43. Section !
NJ the charter provides: "Thc mayor shall
he vgllant in enforcing all laws and ordi
unnce4 enacted for the government of the
city" This and the charter as n whole
show him to he the executive officer of the
city. charged In R general way with tho
enforcement of the law
As to whether or not the mayor Is en-
titled to n writ Of injunction against one
usurping the duties Of health officer under
void ordinance of the city council, rc-
A
injunction have been issued may throw some
light. Courts Of equity have restrained a
dcposed minister from continuing 10 OK
erclse his functions In the church from
which he has been removed. High on In
functions. section ali Where an ofYicat
fairly acts beyond the scope Of his author
ny and assumes to perform duties clearly
beyond the power delegated To such an
junction. story on Equity page go. In
some measure property rights are Involved
| In this litigation, as the possession, man
| agemont and control of the pest house and
! other property are shown by the charrTr
| ordinances and affidavits to he involved In
| the litigation before the court. In i gen.
| Is commensurate with his public rights ma
| duties. | Beach Public Corporations. sec.
! lions lso and ISL, Dillon on Municipal
! Corporations. section 237. 4 private person
! can not enjoin the public injury unless he
! mas some special damage beyond the pub
! Tic damage, or unless he Is the lawfully
! constituted guardian Of the public inter.
! est. San Antonio VS. Strumbcrg 40 Texas
| 300. He who seeks to restrain unlawful
! or improper conduct on the part Of hubble
| officers, must allege sufficient facts to show
| That he has such an interest in the pub.
! ne welfare as to make him proper party
! 10 prevent the commission OF public
| wrong Caruthers VS.. Hnrtnet OF Texas
| 40 l3l. High on Injunctions, section 1921.
AS we nave seen the possession and man
! ngement of city property is in Issue the
mayor Is charged with the enforcement of
| the law his personal right to appoint the
lncumbent OF the office is nfringcd: his
| general control az mayor over the health
| department Is violated Injunction is no
/ proper remedy in the contest for an Office
McAllen vs. Rhodes, 65 Texas AIS. But this
Pr,nh Is do NOT OF tnat character, as DR.
! he the lawful health officer An intrIIdel
| III onire without legal authority can he
Tpssbralned by INJUNCTION, Ehlnger VS.
! Rankin, . Texas, civil appeals 424
Plaintiff sets forth the fact in his ncti
lon that he Is duly qualified health In
! spector, and claims to have tho authority
J provision that tho city council may rconlra
! the health Inspector 70 do and per}orm
/ such other duties az may be lawfully prn
srrlped ny the city council: that the coun
! 't mas ny motion delegated IN him thr
! authority to do aud perform the duHes n,
health officer Until the office is filled NO
Eordlng 70 the charter, and the perform
angi,o OF snGn duties are al Incident To the
! position quo warrAnto would NOT bs 70,
the purpose Of preventing him from nor
| forming said duties Since he does no,
| claim the title to the office. there could bs
! no Judgment OF custer. hut the rcnoedv
| clearly would be to restrlln him from 6er
! forming the duties OF city health orriccr
because they are not incident 10 his ofirs
or health Inspector and because no has
no legal authority to perform them And
certainly the remedy Of quo warrants lacL.
the efficiency of Injunction Sumner ys
SO Texas 200 Vs. non
10 this state OF the authorities tbs ,eD,
| T, rnry appointee OF the mayor helug dnr,pc
the vacation of tho council fully oufbori+nnt+
| 70 exercise the functions of tho orrjco A..
| ihg MS appointment, and the MAYOR WIZ I.
~ sense the guardian OF tho pnbIIc a.
lerests, Joining him, this court Is az onirIn
ihnt on their Joint application yvr,r q,
injunction should issue on tho cross rim.
nnd sdlp,emental answers Of the defSn6ant
boyd and OF the mayor OF Houston ~
strnlning the plaintiff from In anv n,an,a,
| exercising or attempting to exercise ~
IuhCuons, duties or powers Of henith orytco,
or the city Of Houston, and that the sn.y,
| cation OF plaintiff for writ of ,ptunet,o,
dered 80 or
DIR. BRuMBY's STATEMENT.
Or. W. NJ. Brumby was seen last ,I~A,
] and being asked what pours. n. TO-