were declared to be "subject to the inquiry and determination of the Court of Common Pleas upon the complaint of fifteen or more voters filed in said court within twenty days, and the court, in judging of such elections, was directed to proceed upon the merits thereof, and determine finally concerning the same according to the laws of the Commonwealth," this was held to exclude the remedy by quo warranto and all common-law remedies as to matters which might have been investigated in the special mode prescribed by the statute. The opinion was expressed that the judgment of the Common Pleas was final; that it could not be reversed by quo warranto or in any other collateral manner; and that even a certiorari would enable the appellate court to examine only the regularity of the proceedings of the Common Pleas, but not to examine the case on its merits as disclosed in the evidence.1

1 Commonwealth v. Garrigues, 28 Pa. St. 9 (1857); Commonwealth v. Baxter, 35 Pa. St. 263; Commonwealth v. Leech, 44 Pa. St. 332; followed and approved, State v. Marlow, 15 Ohio St. 114; see Ewing v. Filley, 43 Pa. St. 386; Lamb v. Lynd, 44 Pa. St. 336. Ellison, In re, 20 Gratt. (Va.) 10, 29 (1870), commenting on Commonwealth v. Garrigues, supra. Function and powers of common council as election canvassers. Morgan v. Quack enbush, 22 Barb. (N. Y.) 72. A city council, under authority "to canvass returns, and determine and declare the result" of elections to municipal offices, exhausts its power when it has once legally canvassed the returns and declared the result, and it cannot at a subsequent meeting make a re-canvass and reverse its prior determination. Hadley v. Mayor, 33 N. Y. 603 (1865), supra, sec. 204, note. The rule stated in the text (sec. 202), that the original or superintending jurisdiction of the superior courts should not be held to be taken away by any language which does not expressly, or by unequivocal implication, show this to have been the legislative intention, is a salutary one, but seems in some cases not to have been very strictly observed. In Texas, where the statute conferred upon the county court the power to determine contested elections of county officers, and gave no right to appeal, it was considered to be the policy of the statute to secure an early determination of such disputes, and it was

held that the judgment of the county court could not be revised either upon appeal or certiorari, and was final. O'Docherty v. Archer, 9 Tex. 295 (1852). The special mode provided by law for contesting elec tions must be followed. Dickey v. Reed, 78 Ill. 261 (1875); post, chap. xxii.

The Constitution of Ohio requires the General Assembly "to determine by law before what authority, and in what manner, the trial of contested elections shall be conducted;" and accordingly a specific mode of contesting elections in that State was provided by statute; and this mode was held to exclude the common-law mode by proceedings in quo warranto, and the result to bind the State as well as individuals. State v. Marlow, 15 Ohio St. 114 (1864).

In South Carolina it was held, where the legislature had authorized managers of elections "to hear and determine" cases of contested elections, without making any provision for an appeal, or any reference in the act to proceedings by quo warranto, that their decision was, without any express statutory declaration to that effect, final and conclusive, and that courts had no control over it. Grier v. Shackelford, 3 Brevard (S. C.), 491 (1814) (Nott, J., dissenting); followed in The State v. Deliesseline, 1 McCord (S. C.), 52 (1821) (two judges dissenting). See State v. Huggins, Harper, Law, 94 (1824). But note remarks of Evans, J., in State v. Cockrell, 2 Rich. Law (S. C.),

§ 206 (145). Power to create and appoint Municipal Officers. At common law, municipal corporations may appoint officers, but only such as the nature of their constitution requires. The right of electing such officers as they are authorized to have is incidental to every corporation, and need not be expressly conferred by charter. The power of appointing officers is, at common law, to be exercised by the corporation at large, and not by any select body, unless it is so provided in the charter. The powers of corporate officers proper at common law are very limited, extending only to the administration of the by-laws and charter regulations of the corporation.1

Bay (S. C.), 441 (1795). But the city council, in order to determine a contest for a municipal office, cannot swear the individual voters to compel them to declare for whom they voted. This is an inquisitorial power unknown to the prin ciples of our government, and of dangerous tendency. Ib. See, also, People v. Pease, 27 N. Y. 81; People v. Thacher, 55 N. Y. 525 (1874); People v. Cicotte, 16 Mich. 283; Cooley, Const. Lim. 604606. Election contests for office will not be determined on habeas corpus (Strahl, In re, 16 Iowa, 369), nor in general on bill in equity. Hagner v. Heyberger, 7 Watts & S. (Pa.) 104; but see Kerr v. Trego, 47 Pa. St. 292; supra, sec. 202, note; post, sec. 275; Hughes v. Parker, 20 N. H. 58; Cochran . McCleary, 22 Iowa, 75 (1867); Re Sawyer, 124 U. S. 200, and chapter on Corporate Meetings, post, also chap. xxii. post. But as to county seat contest, where fraud is alleged, see Boren v. Smith, 47 Ill. 482.

§ 207 (146). Power to create Offices. In this country the charter or constitution of the corporation usually provides with care as to all the principal officers, such as mayor, aldermen, marshal, clerk, treasurer, and the like, and prescribes their general duties. This leaves but little necessity or room for the exercise of any implied power to create other offices and appoint other officers. It is 6, who, speaking of the subsequent act of 1839 (requiring the managers to hear and determine the validity of the election, and providing that their "decisions shall be final"), says: "I take it to be clear that the validity of an election, in all cases, must (under the act), in the first instance, be decided by the court of managers duly authorized according to law. All questions, whether of law or fact, must be submitted to this tribunal. Their decisions, on questions of fact, must necessarily be final, as no appeal is given; but I do not mean to say that their errors of law may not be corrected by certiorari, or such of the prerogative writs as may be best suited to the case." Accordingly, where an election within the act had not been contested before the managers, the court refused leave to file an information in the nature of a quo warranto. It was afterwards stated, by a distinguished judge in that State, that the scrutiny of municipal elections, as an incidental power, belongs in the first place to the city council; and if they abuse that power, the correction of that abuse devolves upon the courts by information in the nature of a quo warranto. Per O'Neall, J., in State v. Schnierle, 5 Rich. Law (S. C.), 299, 301 (1852) (quo war. to test validity of defendant's election as mayor of Charleston). S. P. Johnston v. Charleston, 1 VOL. I. - 19

1 Willc. 234, pl. 598; Ib. 297, pl. 767; Ib. 298, pl. 769; Glover, 220; Vintners v. Passey, 1 Burr. 237; Hastings' Case, 1 Mod. 24; Rex v. Barnard, Comb. 416.

2 Where it was manifest, from the whole tenor of a city charter, that it was the intention of the legislature itself to specify therein all the offices, and desig nate all the officers to be elected or chosen,

supposed, however, when not in contravention of the charter, that municipal corporations may, to a limited extent, have as incidental to express powers the right to create certain minor offices of a ministerial or executive nature. Thus, if power be conferred to provide for the health of the inhabitants, this would give the corporation the right to pass ordinances to secure this end, and the execution of such ordinances might be committed to a health officer, although no such officer be specifically named in the organic act, if this course would not conflict with any of its provisions. But the power to create offices even of this character would be limited to such as the nature of the duties devolved by charter or statute on the corporation naturally and reasonably required. The provisions of the charter as to time and mode of election, the appointment, qualifications, and duration of the terms of officers, must be strictly observed. Therefore,

and to regulate the mode of appointment,
it was held that the city council could not,
by virtue of an inherent or implied power,
create another officer, fix his term, provide
for his appointment, and clothe him with
the powers of a municipal officer. Hoboken
v. Harrison, 1 Vroom (30 N. J. L.), 73
(1862). It is said, in the opinion, that
the power to create municipal officers
should be expressly conferred. In New
Jersey, pound-keepers, from a very early
period, had been public township officers,
elected in the same way as other officers
of the township. Under these circum-
stances it was held that a municipal corpo-
ration other than, but situate within the
township, could not, without express au-
thority therefor, establish another public
pound within the limits of the township,
and prescribe regulations and fees variant
from those prescribed by the general law;
and it was further held, that the office of
pound-keeper could not be considered as
one essential to the business of the corpora-
tion; nor is a pound-keeper one of those
subordinate officers which all municipal
corporations may, as of course, appoint.
It was, however, admitted by the court
that where such a corporation has power
to do an act, it has the incidental power
to appoint persons to carry it into effect.
White v. Tallman, 2 Dutch. (N. J.) 67
(1856). Infra, sec. 210, note. Construc-
tion of power to appoint weigh-master.
Hoffman v. Jersey City, 5 Vroom (34 N.
J. L.), 172. Power to appoint when office

is vacated "by death or disability," held to authorize appointment where a vacancy is caused by resignation. State v. Newark, 3 Dutch. (N. J.) 185. Authority to a municipal corporation to appoint an officer was inferred from the frequent mention of the office and its duties in the charter. People v. Bedell, 2 Hill (N. Y.), 196; see, also, Field v. Girard College, 54 Pa. St. 233. Legislative prohibition to common council against creating new offices extends to clerks, but not to janitors and ordinary servants. Costello v. Mayor, &c. of N. Y., 63 N. Y. 48 (1875); Sullivan v. Mayor, &c. of N. Y., 53 N. Y. 652. Power to appoint marshal under charter of East St. Louis. See People v. Canty, 55 Ill. 33. A police judge is held to be a municipal officer in California. People v. Henry, 62 Cal. 557. Police officers and power to appoint. Infra, sec. 210, and note. Where an appointment is to be made by a city council, if a quorum be present, a person who receives a majority of the votes cast will be elected although a majority of the council may abstain from voting. Launtz v. People, 113 Ill. 137; post, sec. 278 et seq.

1 Quoted with approval in Trowbridge v. Newark, 46 N. J. L. (17 Vroom) 140, where, by charter, the appointment of a prosecuting attorney was committed to a common council, but there was no direction as to the mode of appointment, held, by a divided court, that having chosen one person by ballot

an ordinance which makes eligible those who, by the charter, are not so, or which abridges the term of officers, as fixed by the charter, is unauthorized and void. Where provisions for the election of municipal officers are made by ordinance in pursuance of charter powers, they must also be strictly observed.3

§ 208 (147). The Mayor. - Every municipal corporation is provided with an executive head, usually styled the mayor. In the chapter on Corporate Meetings we will point out the difference, in some respects, between the mayor of an old corporation in England and the officer known by that name in this country. In both countries the mayor is the head officer or executive magistrate of the corporation; but with us it is important to bear in mind that all his powers and duties depend entirely upon the provisions of the charter or constituent act of the corporation, and valid by-laws passed in pursuance thereof, and these vary, of course, in different municipalities. It is usually made his duty, however, to see that municipal ordinances are executed, and to preside at corporate meetings; and he is frequently expressly declared to be a member of the council or local legislative body. Properly and primarily his duties are executive and administrative, and not judicial or legislative. But judicial duties are often superadded to those which properly

the council had exhausted its power, and that a subsequent resolution declaring another person to be elected was of no effect. State, ex rel. v. Barbour, 53 Conn. 76.

1 Rex v. Mayor of Weymouth, 7 Mod. 373; Rex Bumstead, 2 B. & Ad. 699; Rex v. Spencer, 3 Burr. 1827; Rex v. Chitty, 5 Ad. & E. 609. Ante, sec. 195. A city council cannot elect its own members when the law provides that they shall be elected by ballot by the electors of the city. Kearney v. Andrews, 2 Stockt. (N. J.) 70. Majority of council essential to valid appointment of city treasurer. State v. Patterson, 6 Vroom (35 N. J. L.), 190. See Douglass v. Essex, 9 Vroom (38 N. J. L.), 214; State v. Jersey City, 2 Dutch. (N. J.) 444, 447. The appointment of a person to a city office by a mayor under a law which requires confirmation by the council gives the appointee no right to the office without such confirmation by the proper and legal city council. People v. Weber, 89 Ill. 347.

Stadler v. Detroit, 13 Mich. 346

(1865); Vason v. Augusta, 38 Ga. 542 (1868). Chapter on Ordinances, post. The office of treasurer of a municipal corporation is not a “civil office" within the meaning of the provision of the Constitution excluding the clergy from "holding any civil office in this State, or from being members of the legislature." State v. Wilmington, 3 Harring. (Del.) 294 (1840); see Commonwealth v. Dallas, 3 Yeates (Pa.), 300. "Lucrative offices," in the constitutional sense, defined to embrace county recorder, commissioner, township trustee, and supervisor. Daily v. State, 8 Blackf. 329; Creighton v. Piper, 14 Ind. 182; Howard v. Shoemaker, 35 Ind. 111. The office of city councilman is not "lucrative" within the prohibition of the State Constitution against the same person holding more than one lucrative office at the same time. State v. Kirk, 44 Ind. 401 (1873); s. c. 15 Am. Rep. 239. As to office of city clerk, Mohan v. Jackson, 52 Ind. 599 (1876).

8 Saunders v. Lawrence, 141 Mass. 380, 4 Post, sec. 270 et seq.

appertain to the office of mayor, and he is invested by legislative enactment with the authority to administer not only the ordinances of the corporation, but also judicially to administer the laws of the State.1

§ 209 (148). Same subject. The office of mayor has long existed in England,2 and many of its general features have been adopted in