The Fairmont West Virginian. (Fairmont, W. Va.) 1904-1914, 1909-05-12

Tho present notice Is lot M alternn
Thepetllipn fled By Mcmillan & aiit
alone, would etit him 10 the whit
bilt be diet With bis petition and d
part thereof centafn exhibits Ehicf
must be considered With the petition
l. IN the first place Il Is insisted
by applicant, that he cannot under this
law. be removed from Office by resolri
tion Of the Council. that the City Coun
ell In declaring his Office vacant acted
without Jurisdiction. Whatever may
be the rEle in some Jurisdictions II
is settled In this State that 1.-THE cor
porate powers Of every such municipal
corporation can only be exercised by
the Common Council thereof. or un
der Its authority except where other
wise provided by law" and that the
corporate body at large Of every such
incorporated town or village in the
exercise OF its corporate powers Is
represented by the Common Council
thereof. and that the power to re
move corporate officer from his OF
flee Is one OF the common law Incl
dents of all corporations" Richard
VS.. Carksburg 30 w. Va. 491. Rich,
ards was mayor Of the town of Clarks
burg, charges were preferred against
him, and he was removed from Office
by the Common Council He sought
to prohibit the Council from acting on
the ground that in the absence of leg.
islatIve authority, (anh there was
none in that case) the Council did not
have jurisdiction. The Supreme Court
refused the writ and held that the
right TO remove existed without legls.
latiye authority that 1t was a power
existing at Common Law as one Of the
incidents Of all corporations.
There Is no Legislative authority,
authorizing the City Council of Fair.
mont to remove one Of the corporate
officers, but under this law as pro.
pounded in the case Of Richards VS..
Clarksburg, must hold that this pow.
err Is one of the Common Law Incl.
dents of this corporation. Therefore
the City Council had Jurisdiction to
hear the motion and In proper case
to move the applicant from his Office.
But the action Of the City Council is
subject to review by the Courts.
2. Can the action Of the City Coun.
Gil declaring this office vacant be re-
viewed by mandamus? Upon this
question the decisions Of the courts
are not uniform. The practice may
however. be regarded as pretty we'll
settled in this State By the case Of
Schmulbach ct al. vs. SpeideI and
others. 80 w. Va. 500. In that case
II was held that "mandamus lies TO
correct an improper amotion from Of
flee and to restore 10 the full enjoy
ment OF his franchise person who
has been improperly deprived there
Of" Whatever may be the rule else
where it may be safely laid down as
the doctrine OF this court, that man.
ramus is the true remedy for wrong.
full deprivation of an Office" same
case at page $50. (See also Kline VS..
McKelny 81 w. Va. 2g)
3. Then as the Common Council
has the right, without statutory au.
thority to hear and determine motions
10 remove from office corporate Off.
GERS for cause and as such action may
be reviewed by the courts by mandam.
us and in case Of wrongful removal
the courts may restore such officers;
It only remains 10 determine whether
or not the Council Of Fairmont in re,
moving Mcmillan as Councilman, did
so Illegally.
The Council had the right to remove
him in a proper proceeding and for
sufficient legal cause
Section 4 of the Charter of said City
provides among other things the mo
person shall be eligible TO the Office
OF Mayor. City Clerk or Councilman
of said City unless he is a freebooter
and qualified voter therein"
The complaint against Mcmillan Is
that he was not a freeholder in said
City when elected or at any time since
and therefore not eligible TO the Office
of Councilman. II this charge is
proven then the City Council did not
err in removing him. The facts as
proven by Mcmillan are made parts
OF The petition. There Is little OF any
conflict as TO the material parts of the
evidence. On this motion it is only
proper for me 10 consider such facts
rs are brought before me by the petit
ton and the exhibits fled Herewith.
Looking to these we find that few
days before the election a parcel OF
ground was conveyed to Mcmillan for
the purpose, as is stated, of qualify
ing him to act rs Councilman. On