Huey v. Jones

DOWDELL, J. There is no conflict between sections 82 and 273 of the city code of Bessemer as set out in the petition for mandamus. The two sections are entirely consistent. Both sections are found in the same code or body of laws for the city. Section 82 provides: “That the officers of the city, in addition to the mayor and aldermen, shall until changed by the council, be as follows: a solicitor, clerk, treasurer, engineer, tax collector, physician and health [484] officer, marshal, market superintendent and warden; and such number of policemen as the council may determine,” etc. Section 273 which was adopted at the same time and as part of the same code of laws provides that, “There shall be a captain of the police force who shall rank nest to the marshal. He shall under the marshal have command of the whole night force, and shall be responsible for the general order of the same. In the absence of the marshal he shall have the power to perform all the duties of that office, and shall also perform such other duty as may be imposed upon him by the council.” There is no incongruity between the two provisions, and the latter might well be read into the former. The provisions of the city code set out in the petition show the authority for the election of a captain of the police, and the enactment by the council of any additional ordinance for the purpose was not required. The petition avers that the petitioner was duly elected, and that within five days after his said election, as required by the city ordinance, he presented himself to the mayor for the purpose of taking the oath of office, which the mayor declined and refused to administer. The foregoing statement fully answers the assignments of the demurrer to the petition from one to six, inclusive. The seventh and eighth assignments challenge the petition as an attempt to try the right of office by mandamus. There is no merit in the suggestion. The petition is simply and plainly for a mandamus to compel the mayor to perform the ministerial duty under the city code of administering the oath of office to one who has been duly elected. The trial court properly overruled the demurrer to the petition. The answer of the respondent admits the election of the petitioner as averred in the petition, but seeks to avoid the same by averring that the mayor vetoed the resolution of the board of aldermen by which the petitioner was elected, and that said resolution with the mayor’s veto was never afterwards acted upon. The pe-tioner avers and the answer does not deny, that by an act of the legislature approved December 13th, 1900, to establish a new charter for the city of Bessemer, it is [485] provided that the board of mayor and aldermen may elect or appoint such officers as they may see fit for the good government of the city, etc., and that by section 19 of said act it is provided that the mayor shall have no right to cast any vote except in cases of a tie. The veto power of the mayor under the charter is not applicable in the election of officers. We have been nnahle to discover any provision in the act of December 13, 1900, establishing a new charter for the city of Bessemer, which authorizes the exercise by the mayor of the veto power in the appointment or election of a captain of the police force; nor has any such authority been pointed out to us in the code of laws of the city adopted under its said charter. It is of no consequence that the petitioner was elected by the adoption of a resolution, which was voted upon by the members of the board of mayor and aldermen. This, at most, was but a form or mode of appointment or election. The action of the board of mayor and aldermen of February 2nd, 1892, had under section 211 of the city code, as set out in the respondent’s answer to the petition is insufficient as an answer and constitutes no defense to the petition, nor does the matter set up in the fourth paragraph of the answer constitute any defense to the petition. The trial court having sustained the petitioner’s demurrer to the answer, the respondent declined to plead further, whereupon judgment was rendered awarding a peremptory writ of mandamus. We find no error in the ruling of the court on the demurrers, nor in the final judgment rendered, and it, therefore, follows that the judgment appealed from must be affirmed. Affirmed.