
    Gostin v. Brooks.
    In the act of September 26th, 1883, touching the town of Reynolds, the phrase “the mayor and aldermen” is generally used as syn- ' onymouswith the corporate name and style “mayor and council of the town of Reynolds.” It is so used in the 15th section, which declares, that “the mayor and aldermen of said town shall . . elect by ballot a marshal.” It follows, under the 9th section of the act, that the mayor cannot vote in an election for marshal, unless there is a tie, the language of the 9th section, so far as applicable, being in these words: “At all meetings of mayor and aldermen the mayor shall preside, if present; if not, any one of said aldermen that may be selected for that purpose; and the mayor and three aldermen, or the mayor pro tern, and three aider-men, shall constitute a quorum for the transaction of any business; and the mayor and the mayor pro tern, shall in no event vote while presiding, unless there is a tie; then he shall have the casting vote. A majority of the votes shall determine all questions and elections.”
    April 28, 1892.
    By two Justices.
    Municipal corporations. Officers. Before Judge Martin. Taylor county. At chambers, February 24,1892.
    Upon the application of Gostiu for the writ of quo warranto against Brooks, the judge of the superior court refused to grant a rule nisi, and Gostin excepted. His petition alleged as follows: In February, 1892, an election was held by the mayor and aldermen of the town of Reynolds for the office of marshal, being one of emolument and trust and necessary for the powers of government delegated to that town by the legislature ; Gos-tin at said election was a candidate for that office and received three votes, which was a majority of the board of aldermen of the town and of the legal votes cast at the election, there being but five members of the board of aldermen; Brooks was his opponent and received the votes of but two of the board of aldermen, and was thereby defeated; one illegal vote was cast, to wit that of the mayor, who voted with two aldermen for Brooks, “thereby making a tie, and said mayor then and there declared that there was no election.” By the charter of the town the mayor can vote in no event unless there is a tie, “and as there was no tie and petitioner received a majority of the board of aldermen, that said mayor had no right to vote, that his vote should not have been received or counted, and that petitioner should have been declared duly elected.” Brooks was elected marshal of the town for the year 1891, and discharged the duties of his office, though he has never given the bond and taken the oath required by law. Petitioner shows that though he has been duly and legally elected marshal of the town and has given bond and taken the oath required'by law, still Brooks, pretending that there has been no election and claiming that he has a right to hold over until his successor is elected, continues to exercise the functions of the office and to receive its emoluments and refuses to surrender it to petitioner.
   Judgment reversed,.

R. D. Smith and W. E. Steed, for plaintiff.

W. S. Wallace, by brief, for defendant.  