Attorney-General Ex Rel. Quinn v. Hunter , 92 N.H. 206 ( 1942 )

The only question before us is whether the mayor, improperly made a party, had the right to vote to break the tie.

Originally the city clerk was elected by the city council, composed of the mayor and aldermen and common council. Section 22, chapter 384, Laws 1846. The mayor presided in the board of aldermen, and in joint meetings of the two boards, and had a casting vote only. Ib., s. 9. Subsequent legislation abolished the common council and vested all powers in the Board of Mayor and Aldermen. (Laws 1915, c. 249, s. 1.)

In 1871 (c. 24, s. 1), the following legislation, entitled "An act in relation to the powers of mayors of cities" was enacted, which provides as follows:" The mayor shall preside in the board of aldermen and in convention of the city councils, . . . He shall have a negative upon the action of the aldermen in laying out highways, and in all other matters." Section 2 of the same chapter repeals "all acts and parts of act[s] inconsistent with this act."

This statute was reenacted verbatim in 1878, G. L., c. 45, s. 7, and in 1891, P. S., c. 47, s. 7. It received interpretation by this court in 1910, Attorney-General v. Cross, 75 N.H. 541, a case involving the election of an overseer of the poor by the Board of Mayor and Aldermen in Nashua. The Nashua charter, adopted in 1853, had the same provision found in the charter of Manchester, to wit: that "He [the mayor] shall preside in the board of aldermen and in joint-meeting of the two boards, but shall have a casting vote only." Laws 1853, c. 1404, s. 11. The court in this Cross case, after quoting P.S., c. 47, s. 7, says: (p. 542) "If this language is given its ordinary meaning, the mayor cannot vote for an overseer of the poor, but can veto an election to that office by the aldermen; for ordinarily when ``the board of mayor and aldermen' is spoken of, two independent bodies are intended, each having a negative on the action of the other, and there is nothing in this case, as there was in Cate v. Martin, 70 N.H. 135, to show that the legislature intended this section should not apply." The decision was necessarily based on the premise that the provision of the charter giving the mayor a casting vote was repealed by the 1871 act, thus holding that the repeal applied to city charters theretofore granted.

The above interpretation was approved in Attorney-General v. Hayes,77 N.H. 358, 359 (1914). After the above decisions, the statute was again reenacted verbatim in 1925, P. L., c. 51, s. 9; and in 1941, R. L., c. 63, s. 9, which took effect January 1, 1942. Reenactment of a statute without change after its judicial interpretation constitutes a legislative adoption of such interpretation. Dubuc v. Company, 91 N.H. 173, 175 and cases cited.

It follows that the mayor in the instant case had no right to vote in the election of the City Clerk of Manchester, and that the relator, being the legally qualified incumbent at the time, and there being no valid election of a successor to him, continued in office as a holdover and is now and has been throughout entitled to hold the office.

Information granted.

All concurred.

ON REHEARING. After the foregoing opinion was filed the defendant moved for a rehearing.