Downey v. State ex rel. Hastings

• Decision Date: 20 May 1903
• Docket Number: 19,900
• Parties: Downey et al. v. State, ex rel. Hastings
• Court: Indiana Supreme Court

67 N.E. 450

160 Ind. 578

Downey et al. v. State, ex rel. Hastings

No. 19,900

Supreme Court of Indiana

May 20, 1903

From Daviess Circuit Court; H. Q. Houghton, Judge.

Action by the State on the relation of Elmer E. Hastings against John Downey and others. From a judgment in favor of relator defendants appeal.

Reversed.

O'Neall & O'Neall, for appellants.

E. C Faith, U. G. Faith, E. E. Hastings, M. S. Hastings, J. G Allen and J. C. Billheimer, for appellee.

OPINION

Monks, J.

Appellee brought this action against appellants. The court made a special finding of the facts, stated conclusions of law thereon in favor of appellee, and rendered judgment against appellants.

The assignment of error calls in question the correctness of the conclusions of law.

It appears from the special finding that Hastings, the relator, was elected to the office of city attorney of the city of Washington, Daviess county, Indiana, by the common council of said city, on the 12th day of September, 1898. The record of the council did not show for what length of time he was elected, but on the same day he qualified and gave bond to the approval of the common council. Said bond recited that he was elected for the term of four years. The relator entered upon the discharge of the duties of said office, and continued to discharge the same until July 30, 1900. He drew his salary at the end of each quarter, the last quarter ending June 30, 1900. On May 28, 1900, the common council of said city passed an ordinance fixing the salaries of the various officers of said city, whereby the salary of the city attorney of said city was fixed at the sum of $ 600 per year. On July 30, 1900, the common council of said city, at a regular meeting, passed a resolution abolishing said office of city attorney, and also allowed him his salary for said month of July which was paid to said relator. Said relator was present at said meeting and had actual knowledge of the passage of said resolution. After the passage of said resolution, relator was not recognized as city attorney, and he rendered no services as such. On December 10, 1900, the common council of said city passed a resolution creating the office of city attorney for said city, reciting in said resolution the necessity for such an officer. At this meeting said common council filled said office by appointment, and fixed the salary for said officer at $ 600 per year. The court also states in the special finding "That the action of the common council in adopting said resolution abolishing the office of city attorney on July 30, 1900, was not done in good faith, but said resolution was adopted by said common council for the purpose of removing and ousting the relator from said office, without cause, before the expiration of the term thereof, and evading the law prohibiting such removal without cause; that no charges have ever been filed or preferred against said relator as city attorney of said city, nor has he been removed from said office for cause."

The court found, as a conclusion of law, that the relator was elected to the office of city attorney, to hold the same for the term of four years from the 12th day of September, 1898, and that he was at the time of the trial of said cause on April 3, 1902, the city attorney of said city, by virtue of his said election on September 12, 1898.

The question to be determined is whether or not said city of Washington had the power on July 30, 1898, to abolish the office of city attorney. Section 8 of the act of March 6, 1877 (Acts 1877, p. 12), as amended by the act of February 21, 1893 (Acts 1893, p. 50, § 3476 Burns 1894), provided that the officers of such city shall consist of certain officers, and among them a city attorney, if the council deem it expedient, and fixed the term of his office at four years, and provided that such officers appointed by the common council should be subject to removal by said council at its pleasure, after the first general election on the first Tuesday in May. This law was in force at the time the appellee's relator was elected city attorney for the city of Washington.

It was held by this court in Goodwin v. State, ex rel., 142 Ind. 117, 41 N.E. 359, that under said section the common council had the power to say whether or not a city attorney should be one of the officers of the city, and, if said council deemed it expedient and elected a city attorney, such council had the power at any time thereafter to abolish or discontinue the office. The court, at page 120, said: "The legislature, by the act of 1893, § 3476 Burns 1894, did not create the office of city attorney within the full sense of the term, but authorized the common council to determine whether...