State Ex Rel. Alton v. Waterman

Two objections are made to the respondent's plea based on the charter and ordinance already quoted: that the office of alderman from the sixth ward is not a "town or city office"; and that it would violate the principles of representative government to permit the Court of Common Council to fill vacancies in its own ranks. Neither of these objections appears to us to be well founded.

For the purposes of candidacy and election, an alderman elected from a single ward may be described as a ward officer or ward alderman; but after election and in the exercise of his office, a ward alderman is as much a city officer as in an alderman at large. The wards have no separate legislative powers. In their relation to the Court of Common Council they are but election districts. The Common Council consists of city officers in the same sense that our senate consists of State officers, though elected from senatorial districts.

There are a few cases in which the courts have been constrained by the exigencies of the particular case to hold that a councilman was not a city officer within the meaning of the particular statute or charter under consideration. In Lambert v. Barrett, 115 Va. 136,78 S.E. 586, this was done in order to avoid a repugnancy between the provisions of the civil code and a subsequent statute. In McFarland v. Gordon, 70 Vt. 455,41 A. 507, it was done to avoid giving the council power to fix the compensation of its own members. The other cases cited by the relator are not in point.State v. Kiichli, 53 Minn. 147, 54 N.W. 1069, refers only to the office of president of the Common Council; and because the election to that office by the Common Council conferred no power on the incumbent except that of presiding at the meetings of the Council, it was held not to be a public office or a city office, from which the relator could not lawfully be removed except for cause. The quotation from McQuillin on Municipal Corporations, Vol. 2, § 458, has no reference to the filling of vacancies in elective offices. It is based on State v.Gorman, 18 R. I. 313, holding that a town council could not appoint the respondent to an office to which the relator had already been lawfully elected at a town meeting.

In the absence of special conditions requiring a more restricted meaning to be given to it, the term "city officer" is commonly held to include an alderman. "So there are officers clearly and easily known, for the same reason, as city officers — such as mayor, recorder, aldermen and the like." In re Whiting, 2 Barb. (N. Y.) 513, 515. "An alderman is one of a board of municipal officers next in order to the mayor." Crovatt v. Mason,101 Ga. 246, 253, 28 S.E. 891. The board of aldermen means the governing board of the city. Oliver v. JerseyCity, 63 N.J.L. 96, 42 A. 782. Where the charter forbids a city officer to be interested in any contract with the city, the prohibition applies to an alderman or councilman. State v. Kelly, 103 Mo. App. 711,77 S.W. 996.

It seems unnecessary to multiply authorities. An alderman exercising his office as a municipal legislator is necessarily a city officer, unless the exigencies of the particular case require that term to be given an artificially restricted meaning.

The relator contends that such an exigency arises in the present case, because, he says, that the charter and ordinance, providing for filling vacancies in city offices by resolution of the Common Council, cannot be construed as including members of the Court of Common Council elected from particular wards, without violating the principles of representative government. The argument seems to be that because the General Assembly cannot fill vacancies in its own ranks by resolution, it cannot authorize the legislative body of a chartered municipal corporation to do so. This is a non sequitur. The authority which creates an office may direct how any vacancies therein shall be filled. The General Assembly cannot fill vacancies in the House or Senate, because the offices of senator and representative were created by the people in convention assembled; and that authority has not granted to the General Assembly any power of filling vacancies in its ranks, except in the case of a tie vote. On the other hand, the office of alderman from the sixth ward of the City of Hartford, as well as the privilege of voting for such an alderman, was created by the General Assembly, which may therefore direct any vacancy therein to be filled by the Court of Common Council, without depriving the electors of the sixth ward of any constitutional or fundamental right.

The General Assembly has in many instances expressly conferred on municipal courts of common council the right to fill vacancies caused by the death or resignation of a ward alderman. The charter of Stamford provides that the Common Council shall fill any vacancy "in the ward members" from the legal voters in the ward. 16 Special Laws, p. 513. The same language is found in the charter of Bristol. 16 S. L. p. 355. The New Britain charter provides that "when any vacancy shall occur in any elective office of said city, the common council shall fill said vacancy; . . . if in the board of common council, from the electors of the ward in said city from which the former incumbent of said office was chosen." 12 Special Laws, p. 352. For similar provisions see Derby, 15 S. L. p. 988; South Norwalk, 15 id. p. 916; Orange, 15 id. p. 430; Shelton, 17 id. p. 648.

The list is not exhaustive, but it shows that the policy and practice of the General Assembly are consistent with the conclusions we have reached.

The Superior Court is advised to render judgment for the respondent.

In this opinion the other judges concurred.