
    
      State ex rel. Jebens, Appellee, v. W. G. Noth, Appellant.
    1 MUNICIPAL CORPORATIONS: Council — Mayor as Member — Vacandes — Number Necessary to Elect. The mayor of a city having a population of 20,000 or over is, under Section 937, Code Sup., 1913, a member of the council, and must be counted as such in determining the number of vestes necessary to fill vacancies in the council.
    2 JUDGMENTS: Appeal — Suspension of Judgment — When Permitted. A final judgment of ouster in proceedings against a public officer should not be suspended pending appeal, when the issue of law is apparently conclusive against the right to hold the office.
    
      
      Appeal from Scott District Court. — A. P. Barker, Judge.
    Monday, March 22, 1915.
    Supplemental Opinion Wednesday, May 12, 1915.
    Action to test defendant’s right to the office of councilman of the city of Davenport resulted in a judgment ousting him. He appealed, and on motion the judgment was suspended, pending the appeal. The plaintiff has moved to set aside such order, and this is the subject of the annexed opinion.
    
    — Motion Sustained.
    
    
      Cook & Balluff, for appellant.
    
      Carl H. Lambach, for appellee.
    
      
      This opinion, when rendered, was inadvertently marked "Not to be officially reported", and is therefore published out of chronological order.
    
   Ladd, J.

— The city of Davenport is acting under special charter and is divided into six wards. The council consists of a mayor, two aldermen at large and an alderman from each ward- S- p- Boyden, the alderman from the sixth ward, died December 20, 1914; and on the 29th of the same month, the . council met to fill the vacancy occasioned thereby. The seven aldermen and the mayor were present. There were two candidates for the place, both of whom were qualified, the' defendant Noth and one Howard. Four aider-men voted for Noth and three for Howard, and the mayor ruled that, as a majority of the members of the council had not voted for either, there was no election. An appeal was taken from the ruling, whereupon three aldermen voted to sustain and four to the contrary, and the mayor ruled that a majority of the council had not voted to reverse his ruling. The defendant thereupon qualified as alderman from the sixth ward by taking oath of office before the city clerk, who issued to him a certificate of election. From this recital, it is apparent that the sole issue is whether, in filling a vacancy in the council, the mayor is to be included in ascertaining the majority of its members.

Section 937 of the Code Sup., 1913, reads:

‘ ‘ In any such city having a population of 20,000 or more, as shown by the last state or national census, the council shall consist of a mayor, two aldermen at large, and one alderman from each ward. At the first annual city election after the taking effect of this Code, there shall be elected two aldermen at large, and one alderman from each ward. Thereafter the successors of such aldermen shall be elected biennially. The aldermen in office at the time of taking effect of this Code shall continue in office only until the election and qualification of the aldermen herein provided for. Vacancies in the office of alderman shall be filled by the remaining members of the •council of said city. The vacancy shall be filled within 30 days after the same has occurred, at a regular or special meeting, and< a majority vote, of the remaining members of the city council shall be necessary to fill the same.”.

By the express language of this statute, then, the mayor was a member of the council, and prior to Boy den’s death, there were nine members of that body. After the vacancy was created by his death, there remained eight members, and no strained construction is exacted in saying that the vote of a majority of these — that is, of five of them — was essential to the election of someone in his stead. Had only a majority of the aldermen or of those voting been intended, a different conclusion must have 'been reached. But the statute first declares who shall constitute the council, and makes it include the mayor, and then fixes the number of votes essential to the filling of a vacancy; i. e., a majority of the council so constituted. Whether the mayor shall vote or not is entirely immaterial in determining the number requisite to election; and for this reason, the section of the special charter of the city saying, "The mayor shall have the casting vote and no other”, is not pertinent, and whether he might properly have voted is not involved. The precise question before us was decided in Horner v. Rowley, 51 Iowa, 620, where four trustees were held not to be three-fourths of the council composed of mayor, recorder and five trustees. This decision was followed in Griffin v. Messenger, 114 Iowa, 99, and appears to express the rule generally approved. People v. Herring, 30 Colo., 445 (71 Pac., 413) ; Whitney v. Common Council of the Village of Hudson, 69 Mich., 189 (37 N. W., 184); State ex rel. Hawkins v. Cook, 62 N. J. L., 84 (40 Atl., 781). See State ex rel. Young v. Yates, 19 Mont., 239 (37 L. R. A., 205).

In view of the prior decisions of this court, supported as they are by those of other tribunals, we are not inclined to regard the issue of law such as to warrant us in suspending the decision of the trial court, pending appeal. For this reason, the order heretofore entered so doing is set aside, and the judgment of ouster permitted to be enforced, subject, however, to the final determination of- the appeal.

— Motion Sustained.

Deemer, C. J., Gaynor and Salinger, JJ., concur.

Hearing on Merits,

Wednesday, May 12, 1915.

Per Curiam.

The questions involved in this case were fully considered, and determined adversely to appellant, in the above opinion filed in disposing of a motion for a restraining order from this court.

Following the above opinion, the judgment must be and it is — Affirmed.  