Kean v. Rizer

Briscoe, J., delivered the opinion of the Court. The question in this case involves a construction of certain sections of the city charter of Cumberland, Md. By ⁵¹² the Act of 1898, chapte.r 158, it is'provided that each and every member of the City Council shall be the bona fide owner in his own right of property to the amount of five hundred dollars and assessed for the same on the books of the city at the time of his election and for the next year prior thereto, the taxes on which shall not be in arrears. And the Act (now section 58 of the charter) further provides that the Mayor and each member of the City Council shall, during the whole term for which they are elected, be possessed of all the qualifications rendering them eligible to be elected, and if any one of them during the time for which he was elected shall fail to retain all the qualifications necessary to render him eligible to election, he shall forfeit such office and such forfeiture shall be declared by the said City Council and the vacancy caused thereby shall be immediately filled as herein provided; and if the said City Council shall neglect or refuse to declare such vacancy and to fill the same, then any tax-paying citizen of said city, being a legal voter therein, may file a petition in the "Circuit Court for Allegany County against such officer, and the said Court, or judge thereof, if in vacation, shall pass an order requiring such officer to show cause why his office should not be vacated and the vacancy filled as provided, and such order shall be made returnable not more than twenty days after its passage and a copy thereof shall be served on such officer, and if he shall fail to answer the same, said Court or the judge thereof, if in vacation, shall hear and determine such matter ex fiarte, and if such officer shall answer the same, then the said Court, or the judge thereof, if in vacation, shall at-once hear and determine the issue raised by such petition and answer and shall declare the office of the said respondent vacant, and order the election of his successor, as herein provided, or shall dismiss the petition, as the proof may justify, and may award costs as may appear equitable and right. On the 25th of October, 1899, the appellant, a tax-paying citizen and a legal voter, in the city of Cumberland, filed a ⁵¹³ petition in the Circuit Court for Allegany County, wherein it is alleged that the appellee, Edwin F. Rizer, was on the 16th day of May, 1898, at a municipal election held in the city of Cumberland, elected to the office of City Councilman for the term of two years ; that, subsequently, he was sworn in, and has acted and continues still to act in that capacity ; that the appellee is not a bona fide owner in his own right of property to the amount in value of five hundred dollars and was not at the time of his election, nor for the year next prior thereto, and does not possess and retain the said qualifications that would render him eligible to be elected and retain the office of City Councilman, and so has not at any time been duly and legally qualified to occupy the office and discharge its duties; that the City Council has failed to declare the office to be vacant and to fill it as required by the city Charter.

And the prayer of the petition is for an order