involved, and therefore the state could tax them for the carrying on of the public enterprise; it could, therefore, divide the expense among the cities and towns in any way which seemed to the Legislature proper.12 The formation of municipal corporations under general statutes passed by the Legislature has become very common, especially in the West and Southwest; and this practice has given rise to an amount of litigation which may properly be described as enormous, but uninteresting.13 II ELECTIONS A question often arises from the ineligibility of one of the candidates in an election. If such an ineligible candidate is elected on the face of the returns, will the person who receives the next highest vote be declared elected, or will there be no election? The generally adopted rule is that unless the ineligibility was well known to the voters at the time of the election, there will be no election in case the person receiving the highest number of votes is ineligible. This general rule was affirmed in the interesting case of Heney v. Jordan. It was provided by statute that if in a primary election a man chose to be a candidate for both party nominations he might receive both nominations provided he was nominated by his own party; but if he failed of nomination by his own party, he could not then be the candidate of the other party. A person running on both the Republican and the Democratic tickets, but being himself a Republican, failed of nomination on the Republican ticket; he was therefore ineligible under the statute for nomination on the Democratic ticket. It was held that the person having the next vote to him 12 Opinion of the Justices, 231 Mass. 603, 122 N. E. 763 (1919). 13 For cases of this sort see the following selected from scores, if not hundreds, decided during the year under review: Busby v. Reid, 210 S. W. (Ark.) 625 (1919); Harpham v. Ventura County, 182 Pac. (Cal. App.) 324 (1919); Ludlow v. Ludlow, 216 S. W. (Ky.) 596 (1919); Bowman-Hicks Lumber Co. v. Oakdale, 144 La. 849,81 So. 367 (1918). The arguments in favor of these general laws is that they save the time of the legislature, and promote self-government. The time of the legislature appears to be saved at the sacrifice of the time of the courts; opinions might possibly differ as to which time is more valuable. Self-government in this case proves to be the power of an irresponsible majority to oppress a minority. It may be doubted whether anything is gained in the long run by this sort of legislation. 14 Heney v. Jordan, 175 Pac. (Cal.) 402 (1918). See comments on this decision in 7 CAL. L. REV. 63; 32 HARV. L. REV. 435. 1 was not nominated, but that there was a failure to nominate. On the other hand, in the case of Justice v. Justice,15 the court reached a contrary conclusion. In that case the nominee who received the highest number of votes was not legally on the ballot because of some informality in his nomination papers. It was held that the other party on the ballot, who received less votes, was elected. It is submitted that this decision is not in accordance with the general rule, nor does it seem to be at all justified by any consideration of justice. III OFFICERS AND ADMINISTRATIVE BOARDS The distinction between an officer and an employee, that the officer must have definite duties laid down by law and not be subject to direction by any one else in the performance of his duties, that he must take the oath of office and exercise a special public trust, is illustrated by several interesting cases. In Arkansas the majority of the court held that a city manager is a public officer, and incidentally that the provision in the statute creating the office, that he need not be a resident of the city, is unconstitutional where the constitution requires that any officer of the city shall have the qualifications of an elector.16 In the Federal Court it was held that a person who manages a public utility board for the city is not an officer, since the utility is a commercial function and has no governmental significance; and the manager of a municipal lighting plant is therefore on the same plane as the manager of a private lighting plant.17 In a Florida case, it was held that a "rural school instructor" is a public officer.18 The old rule that the city council is the city finds an interesting development in a Texas case.19 The question there was as to the domicile of a school district; it was held that the Board of Trustees represented the district legally and that the domicile of the district was "where the trustees reside or have their place of business." It seems clear that the regular meeting-place, the "place of business," of the trustees is the domicile of the district, and not the residences of the individual trustees. 15 Justice v. Justice, 184 Ky. 130, 211 S. W. 419 (1919). 19 State v. Waller, 211 S. W. (Tex. Civ. App.) 322 (1919). In Grosjean v. San Francisco 20 a rule of the Board of Education had been unanimously suspended at a meeting of the Board, and a new rule passed under the suspension of the rule. The rules contained a provision that no alteration of the rules should be adopted unless it had been presented in writing at a previous meeting. This had not been done. There was no provision in the rules for a suspension of a rule. It was held that the new rule had been properly adopted, on the ground that the rule was "merely a rule of parliamentary procedure adopted for the guidance, and it may be protection, of the members of the board, and which they had power to suspend or ignore when occasion required, and, in respect to their action in so doing, no one but the members of the board themselves would have a right to complain." Authorities were cited in favor of this view; there are equally strong authorities against it.21 The position of the court here seems to the writer untenable. It is based upon the assumption that the majority of a legislative body may act as it pleases, and cannot tie its own hands from so acting by any rule requiring time for consideration or the vote of more than a majority before action is taken. But this does not seem sound. The action of a legislative body is more than the mere agreement of the members. If the members, in open meeting, all signed a proposed act this would not constitute an act of the body. To be the act of the body rather than that of its members, the vote must be proposed, put, and passed in accordance with parliamentary law and the rules that govern the body. In order to provide for a case of emergency, where all the members desire to avoid a requirement of a rule, it is customary to provide for a suspension of the rules by a large majority or by a unanimous vote. Here there was no such provision. The result may perhaps be reached by a different line of reasoning. All acts of a subordinate body acting under a general power must be reasonable or they are invalid. The rule as adopted, without provision for suspension, seems unreasonable as unduly tying the hands of the board; the action of the board, therefore, in suspending the rule by a unanimous vote was valid. 20 181 Pac. (Cal. App.) 113 (1919). 21 Swindell v. Maxey, 143 Ind. 153, 42 N. E. 528 (1895). IV PERFORMANCE OF DUTY In Valentine v. Independent School District,22 a pupil who had passed all grades in a public school brought a petition for mandamus to compel the school authorities to give her her diploma and a record of her grades. It appeared that the scholars had been required to wear a cap and gown at the graduating exercises, and that the cap and gown provided by the school department had previously been worn by a person afflicted with contagious disease, but had been fumigated. The pupil refused to wear cap and gown on the ground that it was dangerous, and she was thereupon excluded from the graduating exercises and refused a diploma and information about her grades. The court held that this was arbitrary and unreasonable treatment, that the diploma had been earned by the passing of the required tests and that being present at the graduating exercises was not one of these tests, that the grade of a pupil in a public school is a public record to which such pupil is entitled to access, and therefore granted the petition. This case illustrates very neatly the requirement of reasonableness in every action of a legislative or administrative board, acting under the general authority of the law. In Beem v. Davis 23 the court required the city to administer its own fire ordinance by tearing down a building built in violation of the ordinance. This seems an unusual exercise of the writ of mandamus, since generally officers are not required by the court to do any discretionary act in the ordinary administration of the law. The general acceptance of the doctrine of this case, however, would lead to a better administration of government. The danger is, that the judges might allow themselves to be substituted, as instruments for good government, for the officers elected by the people. The power of the mayor or prosecuting attorney to acquire information for the purpose of preventing violation of the law is not popular in the far West. In two cases it has been denied.24 Whether the nature of the offence to be detected influenced these decisions does not appear. 22 Valentine v. Independent School District, 174 N. W. (Ia.) 334 (1919). 23 Beem v. Davis, 31 Ida. 730, 175 Pac. 959 (1918). 24 Tate v. Johnson, 181 Pac. (Ida.) 523 (1919); Irwin v. Klamath County, 183 Pac. (Ore.) 780 (1919). V RESIGNATION AND REMOVAL OF OFFICERS The appointing power included at common law the full power also of removing any employees not employed for a given term.25 Under the Civil Service laws now almost universally passed an employee cannot be removed except for cause and after a hearing. In the case of Eisberg v. Mayor 26 the question whether a policeman had a fair hearing on the complaint for his removal came before the court. In that case a policeman was complained of by one of the members of the Council, a second one did not hear the testimony against him, but merely appeared as a witness against him, and two other members of the Council also appeared as witnesses against him. He was ordered removed by a vote of 4 to 2. It was held he had not had a fair trial; a conclusion which seems well within the bounds of reason. In a similar case, an old employee gave evidence of suffering from nervous prostration or from mental derangement. He was removed for insubordination without any inquiry as to the condition of his health. This also was held to be unfair and his reinstatement ordered.27 Where a county officer was drafted into the army, it was held that this involuntary action from service would not deprive him of office.28 The fact that resignation of an officer does not terminate his office, but that acceptance of the resignation by the proper authorities is required, is perfectly clear, but appears to be ignored by many lawyers. It has been necessary to reaffirm this doctrine in two cases during the year under review.29 VI ORDINANCES The general principle that an ordinance in order to be valid must be reasonable has been discussed in several cases. The ordinance has been found to be valid in a case where the keeping of 25 State v. Wunderlich, 175 N. W. (Minn.) 677 (1920). 26 Eisberg v. Mayor of Cliffside Park, 92 N. J. L. 321, 105 Atl. 716 (1919). 27 People v. Connolly, 184 App. Div. 587, 172 N. Y. Supp. 48 (1918). 28 Hamilton v. King, 206 S. W. (Tex. Civ. App.) 953 (1918). 29 State v. Bush, 208 S. W. (Tenn.) 607 (1919); State v. Jefferis, 178 Pac. (Wyo.) 909 (1919). |