Kirkham v. Russell
| Decision Date | 19 December 1882 |
| Citation | 76 Va. 956 |
| Parties | KIRKHAM v. RUSSELL, AUDITOR OF PETERSBURG. ALLEY v. RUSSELL, AUDITOR OF PETERSBURG. STEVENS v. RUSSELL, AUDITOR OF PETERSBURG. PORTER v. RUSSELL, AUDITOR OF PETERSBURG. RAINE v. RUSSELL, AUDITOR OF PETERSBURG. JARVIS v. RUSSELL, AUDITOR OF PETERSBURG. EANES v. RUSSELL, AUDITOR OF PETERSBURG. |
| Court | Virginia Supreme Court |
Petition of William Kirkham, W. E. Alley, W. H. Stevens, B E. Porter, R. H. Raine, R. F. Jarvis, and .... Eanes, who claim to have been lawfully elected on 28th June, 1882, by the council of the city of Petersburg, to fill certain city offices. They pray for a writ of mandamus against F R. Russell, the auditor of said city, to compel him to pay to them respectively their salaries.
These petitions, heard together, were twice argued, first at Staunton, last at Richmond, where they were decided.
The opinion of the court states the facts.
Ould & Carrington, for the petitioners.
Collier & Budd, G. S. & D. M. Bernard, and Judge William J. Robertson, for the respondent.
In these cases, which involve the same questions and have been heard together, the petitioners allege that they are lawfullly elected and qualified officers of the city of Petersburg, and as such are entitled to be paid from its treasury certain sums of money due them as salaries. They severally pray for a writ of mandamus, commanding the respondent, whom they allege to be the acting auditor of that city, to draw his warrants in their favor upon the city treasurer for the sums of money due them respectively.
In his answers to the rules awarded by this court, commanding him to show cause why the writs should not be granted as prayed for, the respondent insists that the same ought not to be granted, and for two reasons: first, because, even if the petitioners are entitled to the sums of money claimed by them, they have another remedy--plain, adequate, and specific--namely, by actions at law in the hustings or circuit court of the city of Petersburg; and, secondly, because the petitioners are not lawfully elected officers of the city of Petersburg, and are not entitled to the salaries to which they lay claim.
To the answers the petitioners each demur. The facts averred therein, and by the demurrers admitted to be true, are substantially these:
By an act of the general assembly, approved on the 11th day of March, 1875, a new charter was granted to the city of Petersburg. Under its provisions, certain of the city officers, including the mayor and others, are elected by the qualified voters of the city, while certain other of its officers are elected by the common council. The common council is a body composed of twenty-four members, or four members from each of the six wards into which the city is divided. Its members are divided into two classes; and biennially, on the fourth Thursday in May, one-half of its members are elected by the qualified voters of their respective wards for the term of four years, commencing on the 1st day of July following their election. Its power to elect officers is conferred by §§ 16 and 18, ch. 3 of the city charter, the last of which provides that the common council may elect a superintendent of water works, a register of the water works, a street commissioner, one clerk of Centre market, one clerk of Old market, one keeper of the powder magazine, a keeper of the hay scales, and a keeper of the Blandford cemetery; each of whom shall hold his office for the term of two years, unless sooner removed from office; and shall execute such sufficient bonds and receive such compensation as the council may prescribe?? Power is also conferred on the council to create and fill other offices when in the judgment of two-thirds of all its members the interests of the city demand it; the term of the incumbents of such offices not to extend beyond the last day of June in the year in which any election of any portion of the members of the council may occur. Under authority conferred by the last clause, many important offices have been created and filled, including the office of city auditor, the fire and police departments and others.
At the first meeting of the council held under the charter--namely, on the 1st day of July, 1876--an election of officers was held, and on the same day, or thereafter, an ordinance was adopted providing for similar elections by the council, thereafter to be held, at its first regular meeting in July of each year in which any portion of its members are elected, or as soon thereafter as practicable. Under this ordinance, such elections have uniformly been held by the council at the time prescribed. It remained unchanged until the 28th day of June last, when a proposition to change it was adopted, and a new ordinance was substituted in its stead. That ordinance prescribed the 28th day of June as the time for such elections by the council, instead of at its first meeting in July.
Prior thereto--namely, on the fourth Thursday in May last--twelve new members of the council had been elected, whose terms were to begin on the 1st day of July following.
At that election, the answers aver the people expressed their will in favor of a decided and sweeping change in their representation in the council. Of the twelve members whose terms were to expire on the 1st day of July, 1882, one only was re-elected; and of the sixteen members by whose votes, at the meetings of the council on the 28th, 29th, and 30th days of June, 1882, the acts hereinafter mentioned were done, only six were to remain in the council after the 1st day of July.
On the said 28th, 29th, and 30th days of June, meetings of the council were held; at which twenty-two of the members were present. At said meetings, sixteen of the members (including eleven of those whose terms were to expire on the 1st day of July, the third day thereafter,) against the protest of the other six members present, with a view to forestall the action of the new council, which on the 1st day of July, were to succeed to the control and management of the municipal affairs of the city, and with a view to usurp the powers legally belonging to the incoming council, when there was no vacancy in any of the several offices which had been filled by the council at its first meeting in July, 1880, undertook to exercise a second time the power of electing officers, and attempted to elect all the officers of the city that were to be elected by the incoming council for a term of two years, commencing on the 1st day of July; and even undertook to elect a president of and to appoint the standing committees for the incoming council.
The persons so elected, or some of them, are the petitioners in these cases.
On the 1st day of July, the new council met and organized; and treating as null and void the proceedings of the council on the 28th, 29th and 30th days of June, and ignoring them, at once proceeded to choose its president and committees, and to elect all the officers elective by the council, for the term of two years commencing on that day.
The persons so elected, or some of them, having been chosen to fill the same positions to which the petitioners respectively claim to have been elected for the same terms, the question now to be determined is, whether or not the petitioners were legally elected to, and are entitled to hold, the offices thus in dispute.
The determination of this question involves the construction of the provisions of the charter conferring on the common council authority to elect officers. And in this connection it is to be observed that in the construction of charters of corporations, whether public or private, it is a settled rule of interpretation, established by repeated decisions of the highest courts in the land, that only such powers can be exercised under them as are clearly comprehended within the words of the charter, or derived therefrom by necessary implication, regard being had to the objects of the grant. And any doubt arising out of the terms used by the legislature must be resolved in favor of the public. Minturn v. Larue, 23 How. 435; Thomas v. City of Richmond, 12 Wall. 349; Thomson v. Lee County, 3 Wall. 327; 1 Dillon on Municip. Corporations (3d ed.), § 91.
Equally well settled is the rule which requires a reasonable exercise of an express power when the grant conferring it is silent as to the time and mode of its exercise. In his work on Municipal Corporations, the rule is thus stated by Judge Dillon: " Where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then an ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid." 1 Dillon on Munic. Corp. (3d ed.), § 328, and cases cited.
And especially is this so in respect to municipal corporations. For as upon them is conferred a portion of the authority which properly appertains to the sovereign power of the State, the public interests require that they be confined not only to the powers, but to a reasonable exercise of the powers, which are clearly granted by the terms of their charters.
The time for the election of officers by the people is prescribed by the charter of Petersburg; but the time for the election of officers by the council is not prescribed. That is left to be fixed by the council; its power to do so being derived by implication from the power to elect.
Such being the case, the question arises, whether the council can be judicially interfered with in the exercise of its discretion in that regard; and that depends upon the question whether the ordinance under which the petitioners were elected is reasonable or not.
It is essential to the validity of an ordinance that it be reasonable. An...
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