City of Anniston v. Davis

• Decision Date: 06 June 1893
• Citation: 98 Ala. 629,13 So. 331
• Parties: MAYOR, ETC., OF CITY OF ANNISTON v. DAVIS.
• Court: Alabama Supreme Court

13 So. 331

98 Ala. 629

MAYOR, ETC., OF CITY OF ANNISTON v. DAVIS.

Supreme Court of Alabama

June 6, 1893

Appeal from city court of Anniston; B. F. Cassady, Judge.

Petition by W. A. Davis for writ of mandate to the mayor and city council of Anniston to compel the petitioner's restoration to the office of councilman. Writ issued. Defendants appeal. Reversed.

Knox Bowie & Pelham, for appellants.

Blackwell & Keith and Caldwell, Johnson & Acker, for appellee.

COLEMAN J.

The city council of Anniston is composed of eight councilmen, two from each ward of the city. On the 19th day of May, 1892, R J. Riddle, who was a member of the council from ward No. 1 tendered his resignation, which was accepted by the mayor and council, then in session. An election was held for the purpose of filling the vacancy caused by his resignation. The minutes of the council meeting at which these proceedings were had are as follows:

"Council Chamber, Anniston, Ala., May 19th, 1892. Present: Jas. Noble, Sr., Mayor, and Councilmen R. J. Riddle, W. H. Weatherly, G. W. Jones, T. G. Dunn, N.H. Reid, D. M. Sawyer. Absent: Councilmen A. S. Johnston, T. H. Slaughter. Mr. R. J. Riddle tendered his resignation as a member of the city council, which *** was accepted. An election was held to fill the vacancy. *** For this position Mr. Weatherly nominated Mr. W. A. Davis, and he was unanimously elected to fill said vacancy.

"Attest: Geo. T. Anderson, Clerk.

"Approved: James Noble, Sr., Mayor."

"Council Chamber, Anniston, May 27th, 1892. Present: James Noble, Sr., Mayor, and Councilmen W. A. Davis, W. H. Weatherly, G. W. Jones, N.H. Reid, D. M. Sawyer. The minutes of the last regular and called meeting were read and approved.

"Attest: Geo. T. Anderson, Clerk.

"Approved: James Noble, Sr., Mayor."

The charter, in section 4, provides that "vacancies occurring in the city council shall be filled by a majority vote of the remaining members thereof." And in section 15: "All elections by the city council shall be by viva voce, on the call of the roll." At a regular meeting of the council held September 23, 1892, N.H. Reid and G. W. Jones, two of the councilmen, in a protest to the council, stated that W. A. Davis had never been legally elected as a member of the council; that at the time of his supposed election there were present only five councilmen, three of whom, Weatherly, Dunn, and Sawyer, voted for Mr. Davis; that Jones did not vote, and that Reid voted against him. A resolution was then adopted, declaring that Mr. Davis had not been legally elected, and the vacancy caused by the resignation of R. J. Riddle was still vacant. An election was then held to fill the vacancy, and Mr. R. H. Stickney, having received four votes, was declared duly elected. A resolution was then introduced to correct the minutes of May 19, 1892, "to make them speak the truth, and show the facts as set forth in the protest, by striking out the word 'unanimously,' in the minutes of the election of W. A. Davis. Five of the councilmen, exclusive of Mr. Stickney, voted for the adoption of the resolution. The minutes of the meeting of May 19, 1892, were corrected by resolution of the council to read as follows:

"Mr. R. J. Riddle tendered his resignation as a member of the city council, which, on motion of Mr. Weatherly, was accepted. An election was held to fill the vacancy caused by the resignation of Mr. Riddle. For this position Mr. Weatherly nominated Mr. W. A. Davis. The question being put by the chair, Mr. Davis was voted for by Councilmen Weatherly, Dunn, & Sawyer. Of the other two members present Councilman Reid voted 'No,' and Councilman Jones did not vote.

"Attest: Geo. T. Anderson, Clerk.

"Approved: James Noble, Sr., Mayor."

Thereupon Mr. Davis filed his petition praying for a writ of mandamus to be directed to the mayor and council, commanding that he be restored to his said office as councilman, with its rights and privileges. The petition sets out the facts substantially as we have stated them. Upon the filing of the petition a rule nisi was ordered. To the petition there was a demurrer and, the demurrer having been overruled, an answer was filed in the nature of a return to the rule nisi, setting out substantially the same facts. A demurrer was sustained to the answer or return to the rule nisi, and a peremptory writ issued as prayed for in the petition. It will be noticed that the common council is composed of eight members. At the meeting at which Davis was elected only five members were present. To fill the...