taking the case from the jury on the question is divested of one of its most important atof contributory negligence, still the rule rec-tributes, becomes fluctuating and capricious, ognizing that defense was adhered to; and and instead of being a steady light to guide, the same doctrine is reannounced in the case or shield to protect, becomes an ignis fatuus of Illinois Central Railroad Co. v. Warriner, to mislead, or a snare to entrap the citizen.” 229 Ill. 91, 82 N. E. 246.

Perkins v. Clements, 1 Pat. & H. (Va.) 141. In view of the numerous decisions of this The finding by the Appellate Court that court holding that the contributory negligence the father of the deceased child was guilty of the parents of a child, when established, of contributory negligence conclusively esis a bar to an action by the administrator tablishes a fact which, under the law, is an to recover damages for the death of such absolute bar to a recovery. The judgment child under the statute, it is not necessary to is affirmed. examine the question in the light of author- Judgment affirmed, ities in other jurisdictions. From the foregoing review of our own decisions the doc

(259 Ill. 471) trine would seem to be too firmly established to be called in question at this time.

WINCHELL et al. v. WINCHELL. [6] Counsel for appellants has with great (Supreme Court of Illinois. June 18, 1913. earnestness and ability urged upon our atten

Rehearing Denied Oct. 15, 1913.) tion a reconsideration of the reasons upon 1. WILLS ($ 608*)-CONSTRUCTION—“RULE IN which the previous holdings of this court rest,

SHELLEY'S CASE." and, in effect, we are asked to overrule these where the ancestor takes an estate of freehold,

The "rule in Shelley's Case" was decisions and to give to the statute a con- and in the same gift or conveyance an estate struction which would exclude the doctrine is limited, either mediately or immediately, to of contributory negligence as a defense, be- his heirs, either in fee or in tail, "the heirs": cause the statute declares that “whenever words of purchase.

are words of limitation of the estate and not the death of a person shall be caused by [Ed. Note.-For other cases, see Wills, Cent. wrongful act, neglect or default, and the Dig. $$ 1372–1378; Dec. Dig? $ 608.* act, neglect or default is such as would, if For other definitions, see Words and Phrasdeath had not ensued, have entitled the in-es, vol. 7, pp. 6272, 6273.] jured party to maintain an action,” then the 2. WILLS ($ 608*)-CONSTRUCTION-APPLICA

TION OF RULE IN SHELLEY'S CASE. action may be maintained by the representa

The rule in Shelley's Case is in force in tive for the benefit of the next of kin. It is this state in all cases of limitations of a freeargued that since, if the child had not been hold estate to one with remainder to his heirs killed, contributory negligence of the parent generally, and confers the inheritance on the would be no defense; therefore, death having tail by Conveyance Act (Hurd's Rev. St. 1911,

ancestor, but has been abolished_as to estates resulted, the same evidence which would au- c. 30) & 6, which provides that where, by the thorize the recovery by the child ought to common law, any person might become seised sustain an action by the personal representa- stead of being or becoming seised in fee tail,

in fee tail of any lands, etc., such person, intive. If this question were an open one in shall become seised for his or her natural life this court appellants' argument would be en- | only, and the remainder shall pass in fee simtitled to serious consideration, but this court ple absolute to the person or persons to whom has ever regarded the rule of stare decisis, the estate tail would, on the death of the first

grantee or devisee in tail, first pass according and under that rule we are required to ad- to the common law. here to our previous decisions. The stability [Ed. Note. For other cases, see Wills, Cent. of the rules of law by which the rights of Dig. $8. 1372–1378; Dec. Dig. 8 608.*] citizens are determined is always the highest 3. WILLS (8 506*)-CONSTRUCTION—"HEIRS." concern of courts of last resort. Rules of

The word “heirs,” in its legal sense, means law once well established ought not to be intestate estate, and unless the word is quali

those persons whom the law appoints to take lightly annulled and new foundations laid, fied by the context it is always given that which would result in a restless instability meaning; but in ordinary use it is frequently and unending uncertainty as to what the given a different or limited meaning, and, if

it is apparent from reading a will that the law is. If the maxim of stare decisis be testator did not use the word in its strict legal disregarded and every case determined ac- meaning, it will be given such meaning as will cording to the way in which the court might carry out his intention, be disposed to regard it if it were a matter Dgi. $$ 1090-1099; Dec. Dig. § 506.*

[Ed. Note.-For other cases, see Wills, Cent. of first impression, the result would be con

For other definitions, see Words and Phrastinued confusion and endless fluctuations. es, vol. 4, pp. 3241-3265; vol. 8, pp. 7677, The rules changing with the varying views 7678.] of the persons who happen, for the time being, 4. WILLS (8 614*)-CONSTRUCTION-APPLICAto be members of the court, the legal profes

TION OF RULE IN SHELLEY'S CASE,"HEIRS."

Where a testator devised land to a daughsion would never be able to know, with any ter during her lifetime, and at her death to her degree of certainty, what to expect under heirs, but provided that in case she should die any given state of facts. As was well said without issue the property should go to the

testator's other heirs, it was manifest that he by the Supreme Court of Virginia: “With- used the word "heirs" as meaning heirs of the out the observance of stare decisis the law | body in view of the limitation over in default

9

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

of issue; and hence, under Conveyance Act Fannie Standard was afterward married (Hurd's Rev. St. 1911, c. 30) $ 6, providing to Volney W. Winchell, and there was born that, where a person 'at common law would to them one daughter, named Gail Maxine have been seised in fee tail by virtue of any devise, such person shall have a life estate, Winchell. Fannie Winchell filed her bill in with remainder in fee simple absolute to the the circuit court of McDonough county to the persons to whom the estate tail at common law January term, 1911, against her daughter, would first pass on the death of such devisee, Gail Maxine Winchell, and her brother, John she had an estate for life, with remainder in fee simple absolute to the heirs of her body. Standard, and afterward filed an amended

[Ed. Note. For other cases, see Wills, Cent. bill to the May term, 1911. The amended Dig. $$ 1393–1416; Dec. Dig. '$ 614.*]

bill alleged that the defendant Gail Maxine 5. WILLS ($ 634*)–CONSTRUCTION-VESTED OR Winchell was five years of age and claimed CONTINGENT REMAINDER.

that by virtue of the will she was the owner Under a will devising land to the testator's in fee of the premises subject to the life daughter for life, with remainder to the heirs of her body, the remainder was contingent until estate of the complainant, and that the dethe birth of a child; whereupon it vested in fendant John Standard, one of the heirs her subject to be diminished by the birth of at law of the testator, claimed that he had a other children, who might be let in successive conditional estate by virtue of the limitation ly at birtb.

[Ed. Note.- For other cases, see Wills, Cent. to the heirs of the testator in default of issue Dig. 88 1488–1510; Dec. Dig. 8 634.*]

of the complainant. The prayer of the bill 6. WILLS (8 636*)—CONSTRUCTION-REMAIN- was that the complainant's title should be DERS-DIVESTING.

quieted and the claims of the defendants be Where property was devised to a person removed as clouds upon the same. John for life, with remainder to the heirs of her Standard was defaulted. Wallace A. Walker, body, the remainder, which vested in a child at her birth, could be devested only by a valid a solicitor of the court, was appointed guarexecutory devise.

dian ad litem for the infant defendant, Gail [Ed. Note.-For other cases, see Wills, Cent. Maxine Winchell, and answered for her. Dig. SS 1514-1518; Dec. Dig. 8 636.*]

The chancellor construed the devise as vest7. WILLS (8 638*) - CONSTRUCTION - EXECU-ing a fee simple title in the complainant, and

$ — TORY DEVISES.

found that no other person or persons had Where property was devised to a person for life, with remainder to the heirs of her any interest in or title to the premises, in body, and, in case she should die without is remainder, reversion, or otherwise. The sue, to the testator's other heirs, the executory fee-simple title was decreed to be in the comdevise to the other heirs would take effect only plainant, and the executory devise in default if the devisee died without having had issue; and hence the birth of a child to her defeated of issue was ordered canceled and removed the possibility of the contingency upon which from the record as a cloud upon her title. the executory devise depended occurring and The decree was pro confesso as to the defendrendered the executory devise void.

ant John Standard. The guardian ad litem [Ed. Note. For other cases, see Wills, Cent.sued out a writ of error from this court to Dig. § 1521; Dec. Dig. § 638.*]

obtain a review of the decree. Error to Circuit Court, McDonough Coun- It is said by counsel that the opinion of ty; Harry M. Waggoner, Judge.

the chancellor was'that the devise came withAction by Fannie Winchell and another in the rule in Shelley's. Case, and therefore against Gail Maxine Winchell. Decree for vested a fee simple in the complainant, and complainant, and the defendant brings error. that upon the birth of Gail Maxine Winchell Reversed and remanded, with directions.

the limitation over to the heirs of the tes

tator was defeated, and counsel contend that Wallace A. Walker, of Macomb, for plain-each of those conclusions was correct. tiff in error. Elting & Hainline and George

[1] The rule stated in Shelley's Case was D. Tunnicliff, both of Macomb, for defend that where the ancestor takes an estate of ants in error.

freehold, and in the same gift or conveyance

an estate is limited, either mediately or immeCARTWRIGHT, J. John B. Standard died diately, to his heirs, either in fee or in tail, in 1889, leaving a last will and testament, the heirs are words of limitation of the eswhich was admitted to probate, by which he tate and not words of purchase." devised many tracts of land to his sons and [2] That rule is in force in this state in daughters, severally. The fourth paragraph all cases of limitations of a freehold estate of the will was as follows: "Fourth. To my to one with remainder to his heirs generally, daughter, Fannie Standard, I give, devise and confers the inheritance on the ancestor; and bequeath the northwest quarter of sec- but it has been abolished as to estates tail tion twenty (20), in township four (4), north, by the sixth section of the Conveyance Act. and range one (1), west, in McDonough coun- As to limitations controlled by that section, ty, Illinois, valued at $8,000, to have to hold the only use made of the rule is for the purthe same during her lifetime and at her death pose of determining whether by the common to go to her heirs; but in case she shall law a fee tail would have been created. If die without issue, then the property above it would, the person who would have been devised to her shall go to my other heirs, seised in fee tail is seised for her or his natushare and share alike."

ral life only, and the remainder passes in fee simple absolute to the person or persons to Supervisors of Peoria County, 74 Ill. 282; whom the remainder is limited. The testa- Welliver v. Jones, 166 Ill. 80, 46 N. E. 712; tor in this case, in devising the property, de- Lehndorf v. Cope, 122 Ill. 317, 13 N. E. 505. vised to the complainant an estate of free- [6, 7] The fee-simple title in remainder hayhold and limited the remainder to her heirs, ing vested in Gail Maxine Winckell at her with the further limitation that in case she birth, it could only be divested by a valid should die without issue the property should executory devise. Smith v. Kimbell, 153 Ill. go to his other heirs.

368, 38 N. E. 1029; Strain v. Sweeny, 163 Ill. [3] The word "heirs," in its legal sense, 603, 45 N. E. 201. The executory devise was to means those persons whom the law appoints take effect in case the complainant should die to take intestate estate, and unless the word without issue, and those words are construed is qualified by the context it has always to mean, not to die without surviving issue, been given that meaning. In ordinary use, but to die without having had issue. King however, it is frequently given a different v. King, 215 Ill. 100, 74 N. E. 89; Stafford v. or limited meaning, and as the purpose of Read, 244 Ill. 138, 91 N. E. 91; Kendall v. construing a will is to find the intention of Taylor, 245 Ill. 617, 92 N. E. 562, 37 L. R. A. the testator, whenever it is apparent from (N. S.) 164; Voris v. Sloan, supra. The conreading a will that the testator did not use tingency upon which the executory devise the word in its strict legal meaning, it will was to take effect can never occur, and the be given such meaning as will carry out his limitation to other heirs of the testator is intention. Gannon v. Peterson, 193 Ill. 372, void. 62 N. E. 210, 55 L. R. A. 701.

The decree is reversed, and the cause re[4] The manifest intention of the testator manded, with directions to enter a decree in expressed in this will was to give the fee accordance with the views expressed in this after the life estate to the heirs of the body opinion. of the devisee, because the limitation over Reversed and remanded, with directions. to other heirs was to take effect in default of issue, which means heirs of the body, unless there are explanatory words showing that

(180 Ind. 187) the term was used in a restricted sense. ZOBOROSKY V. STATE. (No. 22,399.) He could not have intended to limit a remain- (Supreme Court of Indiana. Oct. 8, 1913.) der to the heirs general of the complainant 1. INDICTMENT AND INFORMATION (137*)— and then take it from them in default of a

MOTION TO QUASH-PUBLIC OFFENSE. particular class of heirs. His intention was to Where an indictment charged that accused limit the remainder to the heirs of the body did then and there unlawfully touch the perof the complainant, since it was only in de- son of N. in a rude, insolent, and angry man

ner, with the unlawful and felonious intent then fault of such heirs that the remainder was to and there to ravish her, she being a child ungo to others. Such a limitation would at the der 12, it was not subject to a motion to quash common law have given the complainant a on the ground that it did not state facts constifee tail. Language identical in meaning with tuting a public offense, addressed to the indictthat used in this will has been held to limit contained a good charge of assault and battery

ment as a whole, since the indictment at least a remainder to heirs of the body and to cre- | under Burns' Ann. St. 1908, § 2242. ate an estate tail by the rule in Shelley's [Ed. Note.-For other cases, see Indictment Case. Curtis V. Longstreth, 44 Pa. 297; and Information, Cent. Dig. Sś 480-487; Dec. '

* Reimer v. Reimer, 192 Pa. 571, 44 Atl. 316, Dig. $ 137.*] 73 Am. St. Rep. 833; Dengel v. Brown, i 2. RAPE (S 23*)-INDICTMENT—AGE OF VIC

TIM-RECITALS. App. D. C. 423; Tolman v. Score, 57 L. T.

Where an indictment under Burns' Ann. (N. S.) 40. In Pennsylvania what would have St. 1908, § 2250, charged that accused did unbeen an estate tail at the common law is con- lawfully touch the person of N. in a rude, inverted into a fee simple by the act of Apriland felonious intent to ravish her, she being a

solent, and angry manner, with the unlawful 27, 1855 (Carroll v. Burns, 108 Pa. 386), and child under 12 years, to wit, 10 years, etc., the it was held that the estates in the cases cited allegation of age was not objectionable as a would have been estates tail at common law, mere recital, so that the felony within the inbut had been so converted into fees.

tent averred was well charged. [5] As the complainant at common law Dig. § 27; Dec. Dig. $ 23.*]

[Ed. Note.For other cases, see Rape, Cent. would have taken a fee tail, she has, by Dig. $ 27; Dec. Dig. $ 23.*] virtue of section 6 of the Conveyance Act,

3. RAPE ($ 23*)-INDICTMENT-FEMALE-AL

LEGATION OF AGE. an estate for her natural life only, with re

Burns' Ann, St. 1908, § 2250, provides that mainder in fee simple absolute to the heirs whoever unlawfully has carnal knowledge of a of her body. While that remainder was

female child under 16 years of age is guilty of contingent until the birth of Gail Maxine rape. Held, that an indictment charging that Winchell, it vested in her at her birth sub- with the unlawful and felonious intent to ravish

accused did unlawfully touch the person of N. ject to be diminished by the birth of other her, she being then a child under the age of heirs of the body of the complainant, who 12 years, to wit, 10 years of age, was not obmay be let in successively at birth. Voris

jectionable as using the words "twelve years” v. Sloan, 68 Ill. 588; Butler v. Huestis, 68 of consent; since the statute merely fixes a

instead of "sixteen years," the statutory age Ill. 594, 18 Am. Rep. 589; Frazer v. Board of definite time below which the crime is com

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

mitted, without reference to the consent of the years, the imprisonment shall be imprisonfemale, and an allegation that the age of the ment in the state prison for life.” Section victim'is below the statutory limit of consent, 2250, Burns 1908, Acts 1907, p. 85. is sufficient. [Ed. Note. For other cases, see Rape, Cent.

[1] Counsel for appellant assail the indictDig. S 27; Dec. Dig. $23.*]

ment on the ground that it fails to set

forth with that precision and certainty Appeal from Circuit Court, Newton Coun- which the law requires the facts constituty; Charles W. Hanley, Judge.

ting the felony attempted or intended to be Parmer Zoborosky was convicted of as- committed. If it should be conceded that sault with intent to ravish, etc., and he ap- the felony which, it is alleged, appellant peals. Affirmed.

possessed the intent to commit at the time T. B. Cunningham, of Kentland, and Fred G. he is alleged to have committed the assault

, Richmire, of Morocco, for appellant. Thom- and battery is not sufficiently charged, it as M. Honan, Atty. Gen., and Thomas H.

would not follow that error was committed Branaman, for the State.

by the trial court in overruling either the

motion to quash or the motion in arrest of COX, J. Appellant was tried below by judgment, both of which are based on the jury, and convicted of an assault and bat- ground that the facts stated do not contery upon the person of a female child, 10 stitute a public offense, and were addressed years of age, with the intent to ravish and to the indictment as a whole and not mere

ly to that part charging the intended felony. carnally know her. The only errors assigned

The indictment contains a good charge of asin this court, and not waived by failure to sault and battery as that public offense is state propositions or points in support of defined by section 2242, Burns 1908. Gillett them, put in question the sufficiency of the

This alone facts stated in the indictment to constitute on Crim. Law (2d Ed.) § 237. a public offense. This one question is raised saves it from overthrow by either of the moboth by motions to quash and in arrest of Law (20 Ed.) § 240; Greer v. State (1875)

tions directed against it. Gillett on Crim. judgment. The indictment, omitting the cap- 50 Ind. 267, 19 Am. Rep. 709; McGuire v. tion, reads as follows: "The grand jurors of Newton county, in the state of Indiana, State (1875) 50 Ind. 284; Stucker v. State

, good and lawful men, duly and legally im- (1908) 171 Ind. 441, 84 N. E. 971. paneled, charged, and sworn to inquire in- could not yield to the contention of appel

[2] But if this were not the rule, still we to felonies and certain misdemeanors in and lant's counsel that the felony within the for the body of said county of Newton, in intent averred was not well charged. Relythe name and by the authority of the state ing on Axtell v. State, 173 Ind. 711, 715, 91 of Indiana, on their oath present that one N. E. 354, counsel claim that the clause in Parmer Zoborosky, late of said county, on the 17th day of August, 1912, at said coun

the indictment, "the said Edna Nichols a fety and state aforesaid,' did then and there male child then and there being under the unlawfully touch the person of Edna Nichols age of twelve (12) years, to wit, ten (10) in a rude, insolent, and angry manner, with years of age,” is but a recital, and not the unlawful and felonious intent then and equivalent to a direct and positive averment there to ravish and carnally know her, the of her age, which was an issuable fact; and said Edna Nichols, a female child then and it is claimed that as this issuable fact is not there being under the age of twelve (12) directly and unequivocally alleged, the inyears, to wit, ten (10) years of age, contrary dictment is bad. But in Agar v. State (1911) to the form of the statute in such cases made 176 Ind. 234, 94 N. E. 819, this question was and provided, and against the peace and given thorough consideration by this court, dignity of the state of Indiana.”

and Axtell v. State, supra, was expressly The indictment is drawn under the fol- overruled in this particular. The indictlowing provisions of the Criminal Code: ment before us does not fail in the allega

“Whoever perpetrates an assault and bat- tion of the age of the alleged victim of the tery upon any human being, with intent to offense. This form of allegation of age has commit a felony, shall, on conviction, be been approved by this court in a similar imprisoned in the state prison," etc. Sec- case. McClure v. State (1888) 116 Ind. 169, tion 2240, Burns 1908, Acts 1905, p. 660, § 173, 18 N. E. 615. Gillett on Crim. Law, 8 352,

727. “Whoever unlawfully had carnal knowl- [3] It is further contended by counsel that edge of a woman forcibly against her will if the indictment is to be taken as directly or of a female child under sixteen years of averring the age of the child alleged to be age;

is guilty of rape, and on the subject of appellant's felonious intent, conviction shall be imprisoned in the state it does not charge an intent to commit the prison not less than two years nor more than felony of rape as defined by statute, for the twenty-one years: Provided, in cases where reason that “twelve years” is dised instead of the female upon whom the crime is com- "sixteen years,” the statutory age of consent. mitted is a child under the age of twelve We find no merit in the contention.

NO

particular form of allegation of the age of when the duration of any office is not provided the female is required. It is not necessary for by, the Constitution or declared by law, it that the indictment shall follow the exact shall be held during the pleasure of the au

thority making the appointment. words of the statute that at the time she

[Ed. Note. For other cases, see Municipal was under 16 years of age. The statute Corporations, Cent. Dig. $8 350-356; Dec. merely fixes a definite time in the life of Dig. $ 159.*] womankind below which the crime of rape will be committed by sexual intercourse with

Appeal from Circuit Court, Lake County ; them, whether with their consent or without John C. Richter, Special Judge.

Quo warranto by the State, on relation of it, and an allegation which gives positive information of the age of the woman child George H. Manlove, against Harvey J. Cur

tis. From a judgment for defendant, the who is alleged to be the subject of the of

relator appeals. Affirmed. fense, and that it was below the statutory limit of consent must be held sufficient. Ralph W. Ross and Walter J. Lotz, both State v. Burt (1908) 75 N. H. 64, 71 Atl. of Hammond, for appellant. L. L. Bomber30, Ann. Cas. 1912A, 232; Inman v. State ger and John F. Sawyer, both of Hammond,

. (1898) 65 Ark, 508, 47 S. W. 558; State v. for appellee. Newton (1876) 44 Iowa, 45; People v. Gardner (1893) 98 Cal. 127, 32 Pac. 880; State v. Fetterly (1903) 33 Wash. 599, 74 Pac. 810; quo warranto by the state, on the relation

SPENCER, C. J. This is a proceeding in v 17 Ency. of Pl. and Pr. 653. Finding no error in the record, the judg- Curtis, to oust the latter from the office of

of George H. Manlove, against Harvey J. ment of the trial court is affirmed.

city attorney for the city of Gary, and to have the possession of said office awarded

to the relator, together with damages in his (180 Ind. 191)

favor against appellee for the detention of STATE ex rel. MANLOVE V. CURTIS.

the office in question. The cause was tried (No. 22,018.)

by the circuit court without the intervention (Supreme Court of Indiana. Oct. 10, 1913.) of a jury, and from a finding and judgment

in favor of appellee this appeal is taken. 1. OFFICERS ($ 72*)-TERMS OF OFFICE-DURA

[1] It appears from the evidence that on TION.

Where a term of office is not fixed by law, November 8, 1909, the common council of the officer may be removed at pleasure and the city of Gary, then a city of the fifth without notice, charges, or reasons assigned by class, duly appointed the relator as city atthe appointing officers, especially in view of Const. art. 15, $ 2, providing that when the du- torney for said city. Eight days later said ration of any office is not provided for by the common council voted to and did reconsider Constitution or declared by law, the office shall and rescind said appointment, and elected be held during the pleasure of the officer mak- appellee to succeed the relator to such office. ing the appointment.

The substance of the relator's contention is [Ed. Note. For other cases, see Officers, Cent. Dig. $8 101-103, 105-107; Dec. Dig that the common council was without au

. 72.*]

thority to rescind his appointment, after it

was completed, except for cause, and then 2. MUNICIPAL CORPORATIONS (8 159*)-CITY ATTORNEY-TERM OF OFFICE-"MAYOR."

only after a hearing; that his attempted Burns' Ann. St. 1908, § 8682, authorizes removal was therefore invalid. The general the mayor to appoint in cities of the fifth class rule is conceded to be that “where the term a city marshal, chief of the fire force, and city of office is not fixed by law, the officer or commissioner, 'all of whom shall hold office un-officers, by whom a person was appointed to til their successors are appointed and qualified, but that the mayor may, at any time, suspend a particular office, may remove him at pleasor remove any of such heads of departments or ure, and without notice, charges, or reasons other persons appointed by him or by any of assigned.” Throop on Public Officers, $ 354. his predecessors by notifying them to that effect and sending a message to the council, stat. See, also, Mechem on Public Offices and Ofing in writing his reasons for such removal. ficers, $$ 445, 454. Furthermore, it is stated

, Section 8692, as amended by Acts 1909, c. 122,

in article 15, § 2, of our state Constitution provides that the city attorney shall be appointed by the mayor and hold office "as hereinbe that “when the duration of any office is not fore provided, except that in cities of the fifth provided for by this Constitution it may be

” class he shall be appointed by the common declared by law; and if not so declared, council. Held, that, conceding that the phrase "as hereinbefore provided” refers to section such office shall be held during the pleasure 8682, that section does not use the word “may of the authority making the appointment." or" as meaning the appointing power so as to require the council to give reasons in writing the term of office of the city attorney in

[2] But appellant takes the position that on removal of a city attorney, and applies only to the officers therein mentioned, and, there cities of the fifth class is fixed within the being therefore no statutory limitation on the meaning of the constitutional provision, and power to remove a city attorney for a city of in support of his position relies on the rule

a the fifth class, he holds office during the pleasure of the

council, and may be removed by the that where the appointing power is required council under Const. art. 15, 2, providing that to assign written reasons before removing an