Ball v. Fagg
| Decision Date | 30 April 1878 |
| Citation | 67 Mo. 481 |
| Parties | BALL, Plaintiff in Error, v. FAGG. |
| Court | Missouri Supreme Court |
Error to Pike Circuit Court.--HON. GILCHRIST PORTER, Judge.
D. A. Ball, W. H. Morrow and Elijah Robinson for plaintiff in error cited, L. & D. R. R. Co. v. Platte Co., 42 Mo. 171; Dillon Munic. Corp. §§ 61, 62; Newburgh Turnpike Co. v. Miller, 5 John. Ch. 113; Bradley v. West, 60 Mo. 33; Wag. Stat., 391, § 81; 16 Am. Law Reg. 25; 41 Md. 446.
W. H. Biggs and W. W. Anderson for defendant in error.
In March, 1874, at a regular election for city officers in the city of Louisiana, Daniel A. Ball was elected city attorney, for the term of one year. Before the expiration of his term of office, the city ordinance providing for the election of the city attorney, was repealed by an ordinance which took effect from and after its passage, February 2nd, 1875. In March, 1875, the mayor and council appointed the defendant city attorney, and at the regular election for city officers, held in March, 1875, Ball again received a majority of the votes cast for city attorney, and claims the office by virtue of that election, contending that the city charter required the election of that officer by the qualified voters of the city, and that the ordinance repealing the ordinance providing for an election was, therefore, a nullity; and also that if the council had the power, by ordinance, to repeal the ordinance providing for the election, yet the ordinance passed March, 1875, was not, in fact, approved or passed until a month after the election, and after it purports to have been passed. On the trial, the plaintiff offered to prove that the ordinance was neither approved by the mayor nor attested by the clerk, until after the regular election in March, 1875, but defendant objected, and the court sustained the objection. The said repealing ordinance was introduced in evidence, and purported to have been passed February 2nd, 1875, and the defendant Fagg was appointed and commissioned March 16th, 1875. Sec. 1, Art. 4, of the original charter of the city, approved March 10th, 1849, declared that the chief executive officer should be a mayor, to be elected by the qualified voters of the city. Sec. 6 gave to the mayor the power to nominate, and, with the consent of the city council, to appoint all city officers, not ordered by said act to be otherwise appointed. Sec. 9 provided that there should be a clerk, a city treasurer, city constable, city attorney and city engineer, and that such officers should be removable at the pleasure of the city council, by a majority of two-thirds of the council. By Sec. 10 it was provided as follows: “The city council may, by ordinance, provide for the election, by the qualified voters of the city, of any of the officers named in the act.” Sections 1, 6, 9 and 10, of Art. 4, of “an act to amend and reduce into one, the several acts incorporating the town of Louisiana,” and approved March 12th, 1870, are substantially the same as the corresponding sections of article 4, of the act of 1849.
We are at a loss to undersand upon what principle it is claimed that either the original or amended charter, required the city council to provide for the election of a city attorney by the qualified voters of the city. The word ““may,” when the power concerns the public intest and the rights of third persons who have a claim de jure that the power shall be exercised in this manner (that is, in the manner in which the statute says it “may” be exercised) for the sake of justice and the public good, is construed to mean “shall,” but of course, only when the statute will admit of that construction. If the Legislature clearly used the word “may” in its proper and ordinary signification, and the general scope and meaning of the act forbids any other interpretation, the courts are not at liberty arbitrarily to disregard the legislative intent, otherwise, the courts would be makers as well as expounders of...
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Taylor v. Schlemmer
...bodies and their ordinances are entitled to the presumptions indulged with respect to statutes enacted by the state legislature. Ball v. Fagg, 67 Mo. 481; Cox Mignery & Co., supra. (6) Although it is no longer held in Missouri that the statute roll is conclusive proof of the technical valid......
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The Barber Asphalt Paving Co. v. O'Brien
...v. Glenn, 10 Idaho 224, 77 P. 624; Bank v. Copeland, 18 Md. 302, 81 Am. Dec. 597; Hockman v. McClanahan, 87 Va. 39, 12 S.E. 230; Ball v. Flagg, 67 Mo. 481, 484; Harknis v. Forsyth, 11 Leigh 394; St. Louis v. Galt, 179 Mo. 8, 16. (4) The court erred in permitting Abercrombie, a defunct city ......
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Cox v. William Mignery & Company
...jurisdictions. [2 Wigmore on Evidence, section 1350 and cases cited in notes.] Later, it was re-announced by the Supreme Court in Ball v. Fagg, supra, applied to ordinances enacted by municipal corporations. In citing with approval the case of Pacific Railway v. The Governor, supra, it was ......
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Ex Parte Corvey
...said, the charter nowhere requires that the mayor shall give the date of his approval. The petitioner relies upon the case of Ball v. Fagg, 67 Mo. 481, to the effect that the date of the mayor's approval of an ordinance as attested by the city clerk cannot be contradicted by parol evidence.......