Tillman v. Otter

JUDGE PRYOR delivered the opinion of the court. The controversy in this case is over the office of a commissioner of the sinking fund of the City of Louisville. The plaintiff, John J. Otter, who is the appellee in this court, claims to have derived title to the office by an election held by the general council of the city on the 25th ■of October, 1889, and the defendant, Vm. Tillman, claims his title under an election by the commissioners of the linking fund on the 12th of November following. The provision of the Act in relation to the sinking fund authorizing the election reads as follows: “ The general council shall, in the month of October in each year, elect a commissioner of the sinking fund to fill the place of the commissioner whose term of service ex — 604 — pires that year. In the event the council fail to elect in that month, then the election shall bo made by the commissioners themselves. If a commissioner shall die,, resign, or frorfi any other cause there shall be a vacancy in the office of the commissioners of the sinking fund,, the same shall be filled by the board of commissioners, of the sinking fund at a regular meeting of said board.”' The mayor and the president of the board of aldermen are ex officio members, and three others, to be elected by the general council, one in each year, constitute the board, being five in all. On November 12, 1889, W. R. Ray, president of the board, Charles L>. Jacob, mayor,, and George ’W. Griffith, president of the board of aider-men, elected the defendant, Tillman, as his own successor, and ignored the action of the general council electing Otter to that office on the preceding 25th of October. A question has been raised as to the burden of proof,, and, without discussing the sufficiency of the answer, it is sufficient to say that as the plaintiff, Otter, was asserting his title to the office, it was incumbent on him to make out his case, as it is well settled that such a proceeding is like the enforcement of any other private right, when prosecuted by or in the name of the party claiming to have been injured, but when in the name of the Commonwealth, alleging the usurpation of air office by one of its citizens, the burden is on the defendant to show by what authority he holds it. (State v. Harris, 3 Ark., 570; People v. Utica Ins. Co., 15 Johns, 358; Miller v. English, 21 N. J. Law, 317.) In this case Tillman had been in possession of the office and was again chosen by a board empowered upon a certain contingency to make' the selection, and the burden was clearly on the plaintiff", — 605 — ■Otter, to establish title in himself, although Tillman may have had no right to the office; and it also follows that if the power of choosing a commissioner by this board was in violation of the Constitution, a question not necessary to be decided, still the plaintiff must make out his case, .as he has no right to appear for the State and by an action in his own name show that some o’ne is holding an •office to which he is not entitled, when he (the plaintiff) has no claim to it himself. Was the plaintiff, Otter, elected by the general council •on the 25th of October, 1889, is the sole question in this •case, and if he was, then the judgment below should be .affirmed. The board of councilmen held a meeting at their chamber in the city hall on the 24th of October, 1889, and a resolution was passed, all the members being present but one, for a joint session at nine o’clock that •evening for the purpose of electing a sinking fund commissioner. The board of aldermen, holding a session in the same hall but in a different room, refused to go into the election’and rejected.the resolution. A committee of conference was then appointed by the board of councilmen, with a resolution to the effect that an adjournment be had until the 28th of October (the same month), when a joint meeting would be held, and this was rejected by the board of aldermen. On that same evening the mayor, at the request of the president of the board of aldermen, each one being a commissioner of the sinking fund, adjourned the board of aldermen until the 7th of November, 1889, and if the power to adjourn this board so as to prevent this election was vested in the mayor, then no election could be held by the people or their representatives (the members of the general council) for — 606 — commissioner, because the statute expressly provides that the council shall elect in the month of October, and if they fail to elect in that month, then the commissioners of the sinking fund shall select the member. The power of the mayor to adjourn this board is claimed to exist by reason of a section of the city charter, providing that “ where both boards are in session, one shall not adjourn without the concurrence of the other for a. longer term than twenty-four hours. If they can not agree on an adjournment, the mayor shall adjourn them to a day not beyond the regular time of meeting.” The mayor made no attempt to adjourn the board of councilmen, and from the plain reading of the charter had no power to adjourn either body unless there had been a failure to agree on an adjournment; and then it was his duty to adjourn both bodies to a day not beyond the regular time of meeting. The adjournment made by him, at the suggestion of the president of the board of aldermen, was a mere nullity and left both boards in session with the right to meet the next day. Nor will a proper construction of the city charter, or the provisions of the law creating and regulating-the sinking fund, vest the mayor with such a power as to deprive the legislative councils of the city from complying with the plain provisions of the statute authorizing this election to be held in the month of October. Those opposing the election were, each and all, violating a plain duty, as they must have known that an adjournment until November, if the mayor had the power to make it, was taking from the representatives of the people of the city the right to select those who were to be the custodians of large sums of money, and confide it to those who were authorized to make the selection only on the contingency — 607 — of tlie members of the city legislature failing to do that which the law required them to do, and in regard to which there could be no mistake. The board of councilmen met the next day, the 25th of October, and six of the aldermen with them, and eighteen councilmen and six aldermen voting for tlie plaintiff he was elected commissioner, there being more than two-thirds of the general council voting for him. This court is now asked to declare that election invalid because a majority of the members of the board of aider-men, with its president in the lead, had refused to discharge their duty, and' purposely, as their own exhibits, filed show, adjourned or attempted to adjourn to a period with a view of preventing an election by the general council and in utter disregard of both public and private-interests. They were, however, still in session, with six of the members ready to act with the other board. They did act, and if the absconding members had remained could not have prevented the election of the plaintiff, as-more than two-thirds of the members of the joint.session and of the entire general council voted for him. It is-insisted that this body, the general council acting as the mere agents of the State in the election of men to control as members of the sinking fund vast sums of money, should be regarded in the light of legislative branches of the government with the right of a minority to resort to-parliamentary rules in order to violate a statute and prevent an election of those who are to control a corporation entirely distinct from the municipal government which gives to the general council its existence. It is conceded that the councilmen and board of aldermen are distinct, the one from the other, and that in their legislation for — 608 — the city the rules governing legislative bodies must ordinarily prevail, but here the general council was made the mere agent of the State to select some one to act for and •control the corporation known as the sinking fund. The general council was required to hold an election once in each year, in the month of October, for that purpose, and if they had assembled in that month and elected, by a fair majority vote, a member of the board without -any resolution to that effect, this court would have held the election good as against a mere usurper, and in that light the defendant must be regarded under the facts admitted in this case. It is not denied that on the 25th of October, 1889, the plaintiff received eighteen votes from one body and six from the other, making twenty-four votes in all, and to hold that the plaintiff'was not elected, under the circumstances, because of the violation of official duty by the majority of the board of aldermen, would be recognizing a rule that no court should be willing to adopt. The judgment below is affirmed.