Magneau v. City of Fremont
| Decision Date | 25 November 1890 |
| Citation | 47 N.W. 280,30 Neb. 843 |
| Parties | MAGNEAU ET AL v. CITY OF FREMONT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dodge county. Heard below before MARSHALL, J.
AFFIRMED.
N. H Bell, and C. Hollenbeck, for appellants, cited: Cooley Const. Lim. [2d Ed.], 116; Mays v. Cincinnati, 1 Ohio St. 268; R. Co. v. Columbus Co., Id., 77; State v. Wilcox, 45 Mo. 458; Locke, Civ. Gov., sec 142; State v. Mayor, 38 N.J.L. 110; State v. Green, 27 Neb. 64; 1 Waterman, Corp., 347; Hildsley v. McEnters, 19 Am. Dec., 61, note 68; Green v. Burke, 23 Wend. [N. Y.], 490; People v. Hopson, 1 Denio [N. Y.], 574; 1 Dillon, Mun. Corp. [3d Ed.], 301, and citations; Ex parte Wolf, 14 Neb. 24.
Frank Dolezal, and W. H. Munger, contra, cited cases referred to in opinion.
This suit was brought in the district court of Dodge county, to enjoin the collection of certain occupation taxes imposed upon various occupations within the city by ordinance No. 231, and to have said ordinance declared void. The district court found the issue in favor of the defendants, and dismissed the action. The plaintiffs appeal.
The city of Fremont is a city of the second class having over 5,000 inhabitants. It is divided into four wards, and under the act or charter which governs cities of that class, is entitled to eight councilmen, two from each ward. At the general election held in said city on the first day of April, 1890, E. N. Morse was elected councilman from the Second ward as the successor to J. J. Lowry, and D. Hein was elected from the Third ward as the successor to C. A. Peterson. At a session of the city council held on April 3, 1890, the votes cast at the last city election were canvassed and Morse and Hein were declared elected. This meeting was adjourned to April 4, when the ordinance in question was introduced and read for the first time. An adjourned session was held on April 5, when the ordinance was read the second time, and the meeting was adjourned to April 9. On that date the council met pursuant to adjournment when the ordinance was read a third time and passed. There were present and participated at this session, besides the mayor, councilmen Biles, Esmay, Plambeck, Harms, Wilcox, Peterson, and Lowry. On April 7, prior to the passage of this ordinance, the councilmen elect, Morse and Hein, qualified.
It is contended by the appellants that the ordinance was never legally passed for the following reasons:
The first two objections will be considered together. It is conceded that all who participated at the meeting when the ordinance was adopted were legal members of the council, except Peterson and Lowry, whose right to act is questioned, on the ground that their successors had previously qualified on April 7. The statute requires that two-thirds of all the members of the council shall be necessary to constitute a quorum for the transaction of business. It is obvious that if Peterson and Lowry could not lawfully act with the council at that meeting, no quorum was present and the ordinance is invalid.
Section 12 of article 2, chapter 14, Compiled Statutes, provides that in cities of the second class having more than 5,000 inhabitants there shall be elected annually in each ward one councilman, who shall hold his office for a term of two years, and until his successor shall be elected and qualified. There being no statutory provision fixing a particular date when the term of office of a councilman shall begin, it is believed that the provisions of said section 12 control, and that the term of such officer commences immediately after the person elected has qualified.
While Morse and Hein and qualified, they had not, as yet, taken their seats in the council, or participated in the proceedings of that body. The names of Lowry and Peterson appeared upon the roll of members, and they were recognized as such by other members of the council, as well as by the mayor and city clerk. They took part in the proceedings of the council on April 9th without objection from any one, although Morse and Hein were at the time in the council chamber. We conclude, therefore, that Messrs Morse and Hein were de jure officers and that Lowry and Peterson were de facto members of the city council.
The cases are numerous which hold that the acts of a de facto officer, so far as they involve the interests of the public or third persons are as valid and binding as though he was an officer de jure.
In Ex parte Johnson, 15 Neb. 512, 19 N.W. 594, the petitioner had been tried upon a criminal complaint before a justice of the peace, convicted and fined, and ordered committed to jail until the fine and costs were paid. He applied to this court for a writ of habeas corpus, alleging that the justice of the peace before whom he was convicted, usurped said office without authority of law. It was held that as the justice was a de facto officer his acts were valid, and the writ was denied.
In State, ex rel., v. Gray et al., 23 Neb. 365, 36 N.W. 577, it was held that "the acts of councilmen de facto, within the power of the statutes, will be recognized and upheld."
In Braidy v. Theritt, 17 Kan. 468, the defendant exercised the duties of councilman of the city of Wathena after his successor had been elected and qualified. It was held that Theritt was a de facto officer.
The case of Morton et al. v. Lee, 28 Kan. 286, was a suit brought by Lee to enjoin the collection of a judgment rendered by one A. J. Buckland, as justice of the peace after his term of office had expired, and after the election and qualification of his successor. It was held that Buckland was a justice of the peace de facto, and his acts as such were valid. The following cases support the same doctrine: Norton v. Shelby Co., 118 U.S. 425, 30 L.Ed. 178, 6 S.Ct. 1121; Carli v. Rhener, 27 Minn. 292, 7 N.W. 139; Leach v. People, 122 Ill. 420, 12 N.E. 726; People v. Bangs, 24 Ill. 184; Trumbo v. People, 75 Ill. 561.
It follows from the reason of these cases that the acts of Lowry and Peterson are valid, and that there was a quorum of the city council present at the time the ordinance was adopted. The authorities cited in the brief of plaintiffs do not, in any manner, conflict with the rule for which we contend in this case, but sustain the proposition that the acts of officers de facto are invalid as to the person performing the duties of the office, and are no protection to him.
It appears from the record, that four members of the council and the mayor voted in favor of the passage of this ordinance--three voted against it, and one was absent. Whether a sufficient number voted in the affirmative, depends upon whether the provisions of section 18, or those of section 30 of article 2 of chapter 14, Compiled Statutes, control and govern cities of the class of Fremont, in the passage of ordinances.
Section 18 provides that "The mayor shall preside at all meetings of the city council, and shall have a casting vote when the council is equally divided, except as otherwise herein provided, and none other, and shall have the superintending control of all the officers and affairs of the city, and shall take care that the ordinances of the city and of this act are complied with."
Section 30 provides that "On the passage or adoption of every resolution or order to enter into a contract by the mayor and council, the yeas and nays shall be called and recorded; and to pass or adopt any by-law, ordinance, or any such resolution or order, a concurrence of a majority of the whole number of members elected to the council shall be required; Provided, That the concurrence of the mayor and one half of the whole number of members elected to the council shall be sufficient to pass any such ordinance, by-law, resolution, or order."
Section 18, standing alone, sustains the construction contended for by the plaintiffs and appellants, that the mayor can only vote when the council is equally divided. The language used in section 30 is plain and explicit, "that the concurrence of the mayor and one-half of the whole number of members elected to the council shall be sufficient to pass any such ordinance."
In construing statutes, effect, if possible, must be given to every part of the law. Effect can be given to all the provisions of both sections by holding that the section first above quoted does not apply to the passage of ordinances, by-laws, or resolutions, but relates to the other proceedings of the council. Holding, as we do, that section 30 authorizes, when a quorum of the council is present, the passage of ordinances by the affirmative vote of one-half of all the members of the council, with the concurrence of the mayor, the ordinance under consideration received a sufficient affirmative vote to adopt the same.
The appellants claim that the case of State v. Gray, 23 Neb. 365, 36 N.W. 577, conclusively settles the present case in their favor. We do not think so. The court, in that case had under consideration secs. 10, 76, and 79 of the act which governs and controls cities of the second class containing a population of less than 5,000, being article 1, chapter 14 of Compiled Statutes. The only difference between section 10, construed in that case, and section 18, involved in this, is that the former section does not contain the words "except as otherwise herein...
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