MacDonald v. Lane

• Decision Date: 28 May 1907
• Citation: 90 P. 181,49 Or. 530
• Parties: MacDONALD v. LANE, Mayor of City of Portland.
• Court: Oregon Supreme Court

90 P. 181

49 Or. 530

MacDONALD v. LANE, Mayor of City of Portland.

Supreme Court of Oregon

May 28, 1907

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Mandamus by James MacDonald against Harry Lane as mayor of the city of Portland. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Judgment was rendered upon a demurrer to the writ of mandamus, and defendant appeals. A writ of mandamus was issued to the defendant, Harry Lane, as mayor of the city of Portland reciting: That Ordinance No. 15,328 was on May 2, 1906, duly enacted by the common council of that city and in force and effect, in the following language, viz.:

"An ordinance providing for the appointment of a bailiff and janitor of the municipal court.

"The city of Portland does ordain as follows:

"Section 1. That there shall be appointed by the Council a person who shall have the general supervision of the Municipal Court room as a janitor, and shall also attend the said court and act as bailiff thereof at each of its sessions and shall also act as assistant clerk of said court, and be subject to the orders of the court.

"Sec 2. That the salary of said person shall be $80 per month.

"Sec 3. That James MacDonald is hereby appointed to said office during the pleasure of the Council.

"Passed the Council April 11, 1906."

That thereafter, on May 3, 1906, the said Jas. MacDonald entered upon his duties, as specified in said ordinance, and has ever since continued to fulfill and perform all and several the acts and things required by such ordinance, and that thereafter, on June 18, 1906, his salary for the month of May, $74.67, was duly certified by the city auditor, and a warrant issued by said auditor upon the city treasurer therefor and duly presented to the defendant, as mayor, for his signature, but he refused to sign it, and is required by the writ to sign the same, or show cause why he has not done so; and upon the overruling of the demurrer the defendant declined to plead further, and judgment was entered requiring him as mayor to sign the said warrant.

Richard W. Montague, for appellant.

John F Logan, for respondent.

EAKIN, J. (after stating the facts).

The only question raised by the appeal is the authority of the city council to appoint plaintiff to the place created by the ordinance, defendant claiming that by the terms of section 306 of the charter the appointment must be made under the civil service rules of the charter and not by the arbitrary appointment of the council. That section is in the following language: " Sec. 306. All appointments to and promotions in the subordinate administrative service of the city shall be made solely according to fitness, which shall be ascertained by open competitive examination, and merit and fidelity in service, as provided for in this article. The provisions of this article shall apply to the incumbents of all offices, places, and employments in the public service of the city, except the following: All officers chosen by popular election or by appointment by the council, the members of all boards and commissions, the judges and clerks of election, the deputies of the city attorney, the chief deputy of the city treasurer, the city engineer, the chief of police department, the superintendent and the chief engineer of the water department, and the secretary of the civil service commission, the mayor's secretary, the members of the health department, and the librarian." Plaintiff claims that this appointment is saved to the council in the exception of "officers chosen *** by appointment by the council." If this were an office which the council had authority to create by the ordinance, then, possibly, it might come within such exception, but the city council has no power to create an office not provided for in the charter. The charter is a grant of power, and the municipality possesses only those properties which the charter confers upon it, either expressly or as incidental to the execution of its powers. City of Corvallis v. Carlile, 10 Or. 139, 45 Am.Rep 134; Beers v. Dalles City, 16 Or. 334, 18 P. 835. The ordinance makes provision for a place or employment for clerical and other aid in connection with the municipal court, which it has authority to do, but the place is not an office, and the appointment of a person to such place is not within the exception of section 306. This section is definite as to the offices and employments that shall be subject to the civil service, viz., "all offices, places, and employments in the public service of the city," except certain offices and employments especially named, and the only exception in favor of appointments by the council is: "Officers chosen *** by appointment of the council." The charter is very complete in making provision for the administration of the affairs of the city government. It is divided into 13 or 14 departments, and in each case names the appointing power for the subordinate service, and the council cannot usurp that power and make the appointments. But the employment created by this ordinance is not provided for by the charter. It must...