Vosburg v. McCrary

STAYTON, Chief Justice. —The city of Cleburne was incorporated under the general law in force in this State, and this is a proceeding instituted in the District Court by W. D. McCrary to compel the mayor and aldermen of the city to hear and determine the contest of an election between himself and J. H. Keith for the office of city marshal. It is alleged that the officers at the several voting places in the city made their returns of the election as required by law, and that these were canvassed by the city council, the votes returned properly counted, and that these showed that Keith was elected city marshal, whereupon he was declared by the council to be elected. McCrary, however, alleges that the officers of election in ward No. 2 wrongfully refused to permit some thirty-eight duly qualified electors to vote at the election, thirty-three of whom if permitted to vote would have voted for him, and that six persons not qualified voters were permitted to vote for his opponent. On account of these things McCrary sought to contest the election before the city council, and it is not denied that he [571] took the necessary steps to do this if the city council-had jurisdiction to hear and determine the contest. At the time the election was held and the effort to contest made the following ordinances are claimed to have been in force, and to have conferred on the council power to hear and determine the contested election: “ The election of any city officer may be contested by an elector of this city, and the proceedings shall be substantially in accordance with the general laws of the State regulating the mode of contesting the election of county officers. But the city council shall be the tribunal before which contests shall be tried, the decision of which shall in all cases be final.” “Any person intending to contest the election of any city officer shall within five days after the return day give him notice thereof in writing and deliver to him, his agent, or attorney a written statement of the ground on which he relies to such contest, and the person whose election is contested shall within five days after receiving such notice and statement deliver to the said contestant his reply to said statement.” After the necessary steps had been taken to entitle appellee to a hearing if the city council had jurisdiction to hear and determine the coútest, the parties appeared before the council, which then made an inquiry as to its jurisdiction, and determined that it had no lawful power to hear and determine the controverted questions. After this ruling McCrary filed in the District Court his petition in this case, the purpose of which is to obtain a writ of mandamus to compel the city council to hear and determine the contest made by him. The court below held that the city council had jurisdiction, and awarded the writ commanding it to hear and determine the contest. From that judgment this appeal is prosecuted. The statute prescribing the duties and powers of a city council declares that.it shall “be the judge of the election and qualification of its own members.” Rev. Stats., art. 367. Mayor and aldermen compose a city council; and while a city marshal is an officer of the corporation, he is not a member of the city council. Rev. Stats., arts. 368, 355. The law above quoted is the only one which in terms confers on a city council any power to pass on the validity of an election and to determine the right of any person to a city office, except as such a power is to some extent involved in the canvassing of the votes returned by officers of election and declaration of the result. The power involved in the apt of judging of the election and qualification of its own members is one in nature different to that which it exercises when canvassing returns and declaring results. The statute quoted not giving the power which it is claimed the city council possesses and ought to exercise, and there being no other statute upon the subject, the inference is that the Legislature thus conferred on city [572] councils all the power of this character which it was intended they should exercise. It is claimed, however, that such a power was conferred on the city council by articles 342 and 418 of Revised Statutes. The first of these declares that municipal corporations “ may ordain and establish such acts, laws, regulations, and ordinances not inconsistent with the Constitution and laws of this State as may be needful for the government, interest, welfare, and good order of said body politic.” The last declares that “the city council shall have power to pass, publish, amend, or repeal all ordinances, rules, and police regulations not contrary to the Constitution of this State, for the good government, peace, and order of the city and the trade and commerce thereof, that- may be necessary or proper to carry into effect the poioers vested by this title in the corporation, the city government, or in any department or officer thereof.” The power of a municipal corporation or of a city council can not exceed that conferred by the charter, and all ordinances must be in subordination thereto. Ordinances when authorized by the charter are but municipal laws, intended to regulate and provide for the orderly exercise of powers conferred by the charter. The statutes providing for the incorporation of cities and towns and declaring what powers may be exercised by them are very full, but declare with great particularity what powers they have, and when in reference to a given power its extent is thus declared we must presume that it was not intended that it should be exercised in a case other than that provided for. The fact that city councils are made the judges only of the election and qualification of their own members precludes the holding that they were made the judges of the election of other officers, or that it was intended to give them through the power to pass ordinances for the general welfare the power to acquire jurisdiction over contested elections of officers other than members of the city counc.il. Power not having been conferred on the city council to hear and determine the contest appellee desires to make, the court below erred in commanding it to do an act that would be without effect, and its judgment will be reversed and the cause dismissed. Reversed and dismissed. Delivered June 6, 1890.