Ellison v. Aldermen of Raleigh

• Decision Date: 31 October 1883
• Citation: 89 N.C. 125
• Court: North Carolina Supreme Court
• Parties: STEWART ELLISON v. ALDERMEN OF RALEIGH.

89 N.C. 125

STEWART ELLISON

v.ALDERMEN OF RALEIGH.

Supreme Court of North Carolina.

October Term, 1883.

CIVIL

ACTION in which application is made for the writ of mandamus heard at June Term, 1883, of WAKE Superior Court, before Philips, J.

The plaintiff was elected an alderman of the city of Raleigh, and asked to be restored to the office from which he was removed by the defendants, but the court, being of opinion that T. J. Bashford, who had been elected by the board of aldermen, in place of the plaintiff, was a necessary party to the suit, and that the question of title to the office was raised by the pleadings and evidence, refused to grant the writ, and the plaintiff appealed. The facts are sufficiently set out in the opinion.

Messrs. D. G. Fowle, T. M. Argo, J. B. Batchelor and Walter Clark, for plaintiff .

Messrs. Reade, Busbee & Busbee, Fuller & Snow and A. M. Lewis & Son, for defendants .

SMITH, C. J.

The plaintiff was duly (elected ?) an alderman from one of the wards into which the city of Raleigh is divided, took the oath of office before the mayor and was present with his associate members of the board at three successive meetings of the body. At the third session, held on May 15, 1883, the plaintiff being present and occupying his seat, as he had hitherto done without objection from any source, a resolution was offered by one of the aldermen (the transcript of which was not introduced on the trial), vacating or declaring vacant the plaintiff's seat by reason of his incompetency in holding an office or place of trust under the government of the United States, at the time of his election, and since. The resolution was put to a vote upon a call for the previous question, and, upon a refusal to hear the plaintiff, was declared by the casting vote of the presiding officer, the mayor, to have passed. Nor was the plaintiff's name called in calling the roll, nor he allowed, though demanding the right to vote upon the passage of the resolution. After the plaintiff's ejection, the board proceeded to supply his place by the election of T. J. Bashford under the provision of the city charter (§20) for filling a vacancy, and the plaintiff has since been excluded from acting with the body to which he had been elected.

This succinct statement of facts connected with the expulsion of the plaintiff and the admission of said Bashford, as his successor, suffices to present the question, whose solution, in our view, is decisive of the case on appeal.

The proceeding is by mandamus to compel the restoration of the plaintiff to his office, and against the city of Raleigh and aldermen by name except the said Bashford, who is not made a party, either in person or as a member of the board.

Without pausing to animadvert upon the very irregular and summary method adopted to expel a member from his seat without a hearing and the suppression of all discussion of the propriety of the contemplated action of the board, while there can be no serious doubt of the right of a corporate body to vacate the seat of a corporate officer for adequate causes arising subsequent to taking his seat, since the case of Rex v. Richardson, 1 Burr., 539, decided by LORD MANSFIELD and followed by numerous others, we have been unable to find any precedent for depriving a member of his place by the action of a municipal body of which he is a member for any pre-existing impediment affecting his capacity to hold the office. On the other hand the same eminent judge in passing upon the sufficiency of a return to a mandamus, says: “It is admitted that they (the Mayor and Burgesses of Lynn, the defendants), could not remove for want of an original title”; and again, “the dueness of the election is immaterial, for the corporation could not judge of the title” of the party prosecuting his right to the place. King v. Lynn, Douglas, 85.

So in LORD BRUCE'S case, 2 Strange, 819, the court say that a power of amotion is incident to a corporation according to modern opinion, and this exercise of inherent corporate authority in the cases pointed out by LORD MANSFIELD in Rex v. Lynn, may be essential to attaining the ends for which the corporation was formed. Angel and Ames, Corp., §423.

“The power to remove a corporate officer from his office for reasonable and just cause,” says Judge DILLON, “is one of the common law incidents of all corporations.” 1 Muni. Corp., §179.

The board of aldermen, thus possessing the power under certain circumstances to vacate the seat of one of their number (the occasions for doing which, and among them--conduct on his part in opposition to his oath and duty as a corporator, are mentioned by LORD MANSFIELD), have chosen to remove the defendant for the assigned reason of his incompetency under the constitution to occupy the place, he at the time of his election holding the appointment of janitor or custodian of the court-house of the United States in said city, and to elect and put another in his place, who has assumed to act with his associate members and been recognized by them as the lawful incumbent in all their subsequent official transactions. His successor having been thus inducted into the office under color of competent authority, even though the amotion of the plaintiff was in excess of the power conferred in the charter, becomes an officer de facto, and his co-operating acts in the body are as effectual in their relations to others as if he had filled the place de jure as as well as de facto. The charter confers authority upon the board to fill a vacancy when any occurs in their body and they must determine the existence of the vacancy in order to the exercise of the power of supplying it.

Can the plaintiff then avail himself of the remedy by writ of mandamus against the wrong-doers and obtain the ouster of the present occupant and the restoration of the office to himself without the presence in the action of the alleged usurper?

In our opinion, the plaintiff misconceives the redress, and the mode of obtaining it provided by law. A mandamus is appropriate, when there is no usurpation by another, and the end sought is to compel those who ought to admit, and refuse to admit the person entitled by law to fill the place, to perform their duty in this behalf; and the writ may be granted, says Mr. WILLCOCK, “when quo warranto does not lie, although the office be already full, as otherwise, in many cases, the applicant would be without remedy.” Dill. Mun. Corp., §678.

Mandamus may be sought to compel the city council to admit a councilman duly elected to that office. State v. Rahway, 33 N. J. L., 111, cited by Dillon in section 679. But as this writer remarks in the next section, 680, “the adjudged cases in this country agree that quo warranto, or an information or proceeding in the nature of a quo warranto, is the appropriate remedy, when not changed by charter or statute, for an usurpation of a municipal franchise, as well as for unauthorized usurpations and intrusions into municipal offices”; and the author proceeds: “If another is commissioned and in actual discharge of the duties of the office, an adverse claimant to the office...