State ex rel. Maxey v. Swindell
| Decision Date | 08 January 1897 |
| Docket Number | 17,986 |
| Citation | 45 N.E. 700,146 Ind. 527 |
| Parties | State, ex rel. Maxey et al. v. Swindell, Mayor |
| Court | Indiana Supreme Court |
From the Marshall Circuit Court.
Affirmed.
J. D McLaren, E. C. Martindale, C. P. Drummond and Samuel Parker for appellants.
Charles Kellison, for appellee.
Appellant 's relators, Maxey and O'Keefe, applied to the circuit court for a writ of mandate against the appellee as mayor of the city of Plymouth, Indiana, to compel him to recognize each of them as members of the city council of said city, and to permit them to exercise the duties of such councilmen, they alleging that they had been legally appointed and qualified as members of said council from the alleged fourth ward of said city, which ward they allege had been duly and lawfully created by a certain alleged ordinance enacted by the common council of said city, August 27, 1894.
Appellee resisted the action, basing his defense upon two propositions, namely:
1. That the common council was not authorized by law to adopt the ordinance by which said additional or fourth ward was created, of its own motion, as was done in this case, and without a previous petition being filed therefor by resident citizens of the ward or wards affected, and that the ordinance being invalid for this reason there was no fourth ward and no vacancies in the office of councilman to be filled when relators were appointed, and hence they were not members of the common council or entitled to be recognized as such.
2. That if the council had authority of law to enact the ordinance creating the additional or fourth ward without petition and of its own motion, that the ordinance was invalid and of no force or effect for the reason that it was passed and adopted contrary to and in violation of the rules of procedure that had long been in force in said council.
The issues formed were tried by a jury, the trial court directing the jury to find for the plaintiff, which they did, and a peremptory writ of mandate was awarded against the mayor. From that judgment he appealed to this court and the judgment was reversed. Swindell Mayor, v. State, ex rel., 143 Ind. 153, 42 N.E. 528.
This court, on that appeal, decided the first proposition above mentioned in favor of the action of the common council and against the then appellant, the present appellee. And the second proposition or contention was decided in favor of the then appellant, the present appellee. The cause was reversed both for the error of striking out the second paragraph of the answer or return, setting up the defense involved in said second proposition, and for the error of holding, as appeared from the evidence, that the rule had been repealed in violation of which the ordinance establishing the fourth ward had been passed. In the order of reversal leave was given to amend the second paragraph of answer or return. On the return of the cause to the lower court said answer was amended only in immaterial respects.
The substance of the second paragraph of answer as amended is, that on August 27, 1894, the time of the regular meeting of the common council of the city of Plymouth, when said pretended ordinance was passed creating the fourth ward, and for a long time prior thereto, said common council was and has been governed by certain rules enacted by said common council, regulating and governing the deliberations and proceedings of the common council of said city, which rules were, on August 27, 1894, in full force and effect; section 21 of which reads as follows:
"All ordinances shall be read three times before being passed, and no ordinance shall pass or be read the third time in the same meeting it was introduced; provided, that the council may suspend this rule by a two-thirds vote and put an ordinance upon its passage, by once reading and at the time it is read."
That said rule 21 was adopted by the common council of said city on May 26, 1873, and was a rule to which said council had yielded obedience from the time it was adopted, as aforesaid until August 27, 1894, when said council attempted to repeal it, as hereinafter set forth; that on said date, at the regular meeting of said council referred to, the ordinance providing for the creation of the pretended additional or fourth ward was introduced and passed by said council, composed of only six members, without suspending said rules, or either of them, by a two-thirds vote before the enactment of said ordinance, the same having been read and put upon its passage at said regular meeting; that but three members of said council voted for said ordinance and three against it, and there being a tie, the mayor, Charles P. Drummond, cast the deciding vote in favor of said ordinance, and he then and there declared said ordinance duly enacted. And...
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