Hice v. Orr

• Decision Date: 11 December 1896
• Citation: 47 P. 424,16 Wash. 163
• Parties: HICE v. ORR, MAYOR.
• Court: Washington Supreme Court

47 P. 424

16 Wash. 163

HICE v. ORR, MAYOR.

Supreme Court of Washington

December 11, 1896

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Application by Samuel Hice for a writ of mandamus against Edward S. Orr as mayor of the city of Tacoma, to compel him to appoint some person to the office of city attorney. From a judgment dismissing the proceedings entered on an order sustaining a demurrer to the writ, relator appeals. Dismissed.

Stiles Stevens & Tillinghast, for appellant.

Stacy W. Gibbs and Ben Sheeks, for respondent.

ANDERS J.

By a provision of the charter of the city of Tacoma, the city attorney is appointed by the mayor, and confirmed by the city council. On two separate occasions the mayor of said city appointed, by nomination, one James Wickersham for the office of city attorney, but each time the council refused to confirm such appointment. For more than a month after the last presentation of the appointment of Mr. Wickersham to the city council, the mayor failed to make another nomination to that office; and thereupon the appellant obtained an alternative writ of mandate from the superior court of Pierce county, commanding the respondent, as mayor of said city from time to time, at the regular sessions of the city council, to appoint, by nomination, some qualified person to hold said office of city attorney until such appointment should be confirmed, or to show cause why he had not done so. On the return day a demurrer to the writ was sustained, and, the plaintiff electing to stand upon the sufficiency of the writ, a judgment was entered dismissing the proceedings, and the plaintiff appealed. When the cause came on for hearing in this court, it was made to appear, by the affidavit of the city clerk and a certified copy of the proceedings of the city council, that, after the appeal was perfected and briefs filed herein, the said James Wickersham had been appointed city attorney by the respondent, and that said appointment had been confirmed by the city council, and that said appointee was then holding the office. Upon this state of facts, respondent moved to dismiss this appeal, for the alleged reason that there was no longer any actual controversy involving any substantial rights between the parties to the record, and no subject-matter upon which the judgment of this court could operate.

As the object of the proceeding has been fully accomplished, there is no...