Kelly v. Edwards

McKinstry, J. The allegation of the petition is, in effect, that the respondents refuse to recognize the validity of the appointments of November 9, 1875, or to permit the petitioners to sit and act as members of the board of fire commissioners, under and by virtue of their November appointments respectively. The petition shows that Siebe was a commissioner under an appointment for a term to expire December 5, 1885, and until his successór should qualify. There is no express averment in the petition,—and no averment from which it is necessarily inferable that Siebe has not continued to serve as fire commissioner, or that the respondents have prevented him from acting as a member of the board, or from discharging any of the duties of commissioner, [462]or that they have interfered with any right or privilege attached to or connected with his office as commissioner.

The demand made on respondents, as alleged in the complaint, was that the petitioners “ be allowed to take their seats as members of said board, by reason of said election and appointment” in November. The refusal of the respondents to comply with the demand should be construed to be as broad and no broader than the demand. And such is the effect of the averments as understood by counsel for petitioners. His brief contains the statement: “He (Siebe) claims by virtue of his- appointment for a term of four years. Respondents recognize him only as a ‘hold-over’; that is, as holding until' the appointment and qualification of his successor.”

The validity of the November appointments is a matter of law, as to which the opinion of respondents could be of no consequence, except as a wrong opinion might be an excuse for depriving Siebe of some actual right, or be a basis for a refusal to perform a duty imposed by law upon themselves.

Mandamus can be resorted to to compel a duty specially enjoined by law. But for aught that appears, Siebe is now enjoying every right and privilege connected with the office of fire commissioner. What duty have the respondents to perform in the premises ? It is no part of their duty to declare their judgment that the November appointments were regular and legal. And the opinion of ■this court on that subject cannot be obtained under a pretext of a proceeding to compel the respondents to do that which the law does not require them to do. If Siebe is enjoying all the rights to which a member of the board is entitled, how can it be said that the board has precluded him from the enjoyment of the office? Certainly the opinion of a majority of the board, that he is enjoying his rights as a hold-over, and not by virtue of an appointment for a new term, is unimportant.