Cate v. Martin

The statutory scope of the veto power conferred upon the mayors of cities in this state is found in section 7, chapter 47, of the Public Statutes, which provides that "He shall have a negative upon the action of the aldermen in laying out highways, and in all other matters, and no vote can be passed or appointment made by the board of aldermen over his veto, unless by a vote of two thirds, at least, of all the aldermen elected."

While this sweeping language, standing alone and taken by itself, is apparently plain and explicit, its interpretation, nevertheless, does not depend upon any one rule alone, for statutes, like all other written instruments, are to be interpreted by the weight of competent evidence, a part of which may bear more or less strongly in a given direction, and another part in a different direction, thus making the result dependent upon the product of both combined. In other words, the primary object in construing statutes being to ascertain the intention of the legislature in their enactment, resort is to be had to their language, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law.

In the light of these rules, and conceding, as the defendants claim, that a municipal council is largely sui generis and its powers to be construed accordingly, we are of opinion that the defendants' contention, that the veto power of a mayor extends to and embraces a decision of the board of aldermen as to the election of one of its members, cannot be sustained. Further than this we are not required to go; for whatever the language of the statute giving the mayor a negative "upon the action of the aldermen in laying out highways, and in all other matters," may mean, and whether it would or would not be competent for the legislature to give to the executive of a city a veto upon the action of the legislative branch of the city government sitting as a court in the performance of a judicial duty, it is enough to satisfy the present contention if the decision of a contested election case by the aldermen is not embraced in the phrase, "in all other matters", and in support of the conclusion that it is not, we cannot but regard the evidence as decisive.

The mayor of a city is not an alderman or councilman of the city in any general or proper sense of those terms. He is designated in the statutes as the "principal officer" and the "chief executive" of the city ( P.S., c. 46, s. 3, Ib., c. 47, s. 5), and both properly and primarily his duties are executive and administrative. Martindale v. Palmer, 52 Ind. 411, 413, Jacobs v. Supervisors, 100 Cal. 121, 135. He is not a member of either branch of the city councils unless expressly made such by law (Tied. Mun. Cor., s. 96), and when this is the case, it is "to the extent of such powers as are specially committed to him, and no further, that he is a part of the city council." Brown v. Foster, 88 Me. 49, People v. Ransom, 56 Barb. 514, 516, Mills v. Gleason, 11 Wis. 470, 476, State v. Porter,113 Ind. 79. He is "not one of its own members in the sense in which an alderman is" (Garside v. City, 12 N.Y. Supp. 192, 195: Winter v. Thistlewood, 101 Ill. 450, 452); nor has it been understood that he is to be counted in determining the presence of a quorum. Attorney-General v. Shepard, 62 N.H. 383; Somerset v. Smith,49 S.W. Rep. 456 (Ky., 1899).

Applying the principles of these authorities (and none have been found to the contrary) to the statutory provisions relating to mayor and aldermen cited in behalf of the defendants, the result is indubitably to establish the proposition that while the mayor is a constituent part of the aldermanic board for some special purposes, he sits and acts in the board not in the capacity of an alderman, but in the capacity of ex officio presiding officer, and exercises those powers only which have been specially committed to him as the chief executive of the city.

However extensive such powers may be in the present case, and regardless of the authorities to which reference has been made, the legislative understanding that the mayor should not be regarded as an alderman in contested election cases, at least, sufficiently appears from the statute enacting that the board of aldermen "shall be the final judge of the election and qualification of its members" (P.S., c. 48, s. 11), because the authority thus vested in the aldermen does not extend to the election of mayor, of which the city councils in joint convention are made the judges by section 3, chapter 47, of the Public Statutes, and because, under section 11, chapter 48, each alderman is not only made a judge of the election of his fellow-members, but they are made the judges of his election also. And the same conclusion as to the legislative understanding of the mayor's membership is evidenced by the further provision of section 11, that each branch of the city government, in case of a vacancy therein, "shall call a new election," because special provision for the filling of a vacancy in the office of mayor was made elsewhere and by another tribunal. Laws 1895, c. 41. Such, also, would seem to have been the understanding of the defendant mayor himself, for he did not assume to act as an alderman in the election before the board, but solely as mayor.

While these citations amply demonstrate that the aldermanic branch of the city councils, within the meaning of section 11, is the board of aldermen exclusive of the mayor (and if this be so his veto power cannot apply, because the judgment of the board would not then be final), they also afford convincing roofs that the mayor's veto power was not intended to extend to a decision by the aldermen of a contested election case. Having made such a decision an imperative finality, it is incredible that the legislature would intentionally stultify itself and emasculate the statute by making it subordinate to the arbitrary caprice of an executive officer, acting solely in an executive capacity, and subject to no supervising power. If, however, the contrary were true, and the provision giving the mayor "a negative on the action of the aldermen in laying out highways, and in all other matters," were susceptible of the broad construction put upon it by the defendants, it is not perceived upon what ground the provision could be sustained. In a contested election case, as in all other cases, it is the constitutional right of the contestants to have the issue between them settled by judicial action; and of this right they cannot be lawfully deprived by any legislative enactment. The veto power is not, and has never been understood to be, a judicial power. To all intents and for all purposes, it is a franchise of the executive department alone, and may be exercised by its possessor at his pleasure, and without consent, trial, or notice. The adjudication of legal rights in this manner cannot be tolerated under our system of government, or under any other in which there has not been a total abolition of justice and fundamental legal principles.

But there is no solid ground for the defendants' construction of the provision under consideration. It is no less true now than it was in the time of Lord Coke that "the laws consist not in being read, but in being understood." 8 Co. 167. "When the legislature enacts that each branch of a city government shall be the judge of the elections of its members, the inference is that they copied the language from the constitution, understanding that it would mean in the statute what it means in the constitution, and intending that municipal legislative bodies, created, organized, and working on the model of the state legislature, shall have the same powers as judges of the elections of their members. It is also probable that, for reasons of public convenience in the transaction of the affairs of cities, the legislative intention was to establish a special tribunal for the determination of such cases, which would act expeditiously, and without the delays ordinarily incident to judicial procedure." Attorney-General v. Sands, 68 N.H. 54, 57. See, also, State v. Newark, 1 Dutch. 399, 415. It has never been supposed that the veto power granted the governor of this state by the constitution extended to the qualifications or elections of the members of either branch of the legislative department, concerning which the constitution declares that each branch shall be the judge; and it would be an extraordinary prerogative, indeed, if the legislature has invested the mayors of cities with a more extensive veto power than our constitution has conferred upon the governor, or the national constitution upon the president. Nothing but the most decisive evidence would warrant such a conclusion; and this the defendants have failed to supply.

In fact, their contention is substantially based upon the proposition, that because the mayor is empowered by the statute to interpose his veto upon the judicial get of the aldermen in the laying out of highways, and in all other matters, he may therefore lawfully interpose it upon their judicial action in a contested election case. But this proposition is utterly untenable. Its reasoning is fallacious and its conclusion unsound. Things which are similar in some respects are not the same. Whether it was competent for the legislature to empower the mayor with a negative upon the laying out of a highway by the aldermen, need not now be determined. As has been previously stated, we are required to go at this time only far enough to meet the exigencies of the case before us; and for this purpose, we think no other answer to the proposition is necessary than to call attention to the pregnant fact that the legislature has not anywhere enacted that the decision of the aldermen in the laying out of highways shall be final, but, on the contrary, it has expressly given to any person aggrieved by the decision of city or town authorities in laying out or altering highways, the right of appeal therefrom to this court. P.S., c. 68, s. 2: Ib., c. 46, ss. 1, 2. These considerations so broadly distinguish the one case from the other as to bring to naught any analogy between them. Other answers to the proposition, however, are not lacking.

A sufficient foundation for the petition is furnished by the reported facts in respect of a demand upon the mayor to perform his duty.

Nothing more need be said of the case. Viewed in any permissible light derived from the decisions, the statutes, the nature and purpose of the veto power as heretofore understood, the consequences which would follow the defendants' construction, the analogy of the city system of government to the governmental system of the state and nation, and the separation and independence of the legislative, executive, and judicial departments enjoined in our bill of rights, the overwhelming weight of evidence leads to the conclusion that the mayor of Concord could not veto the judicial action of the board of aldermen sitting as a court, in a matter of which the statutes have made it the exclusive and final judge.

Petition granted.

PIKE, J., did not sit: the others concurred.