Reynolds v. Baldwin

Tho judgment of the court was pronounced by Host, J. After tho late elections in tho city of New Orleans, tho council of Municipality No. 2 met, Joshua Baldwin, recorder, iu tho chair, and thirteen aldermen, being a full board, in their seats. They transacted some bxisiness, and M. M. Reynolds, one of the aldermen, presented the following resolution, and moved its adoption: “Resolved, That we now proceed to adopt rules for the governing of this council.” The recorder decided this resolution to be out of order, and Reynolds appealed from his decision, and called for the yeas and nays on the question, “shall the decision of the chair be sustained.” The yeas and nays were ordered, and when counted stood six yeas and seven nays; whereupon the recorder voted with the minority, assorting his right to do so under the 2d section of the act dividing the city into three municipalities, which makes, in his opinion, the recorder a component part of the council, and thus gives him, by implication, the powers of an alderman. By Ms voto, his decision was sustained. The seven aldermen who voted in the negative, instituted proceedings in tho nature of a quo warranto, to test the legality of the vote given by the recorder, and, if it should be found illegal, to obtain an order forbidding him to exercise hereafter the rights, duties and privileges of an alderman. The defendant came into court and excepted to the petition, writ and proceedings, on the ground that, it is not a case in which a writ of quo warranto can or ought to issue, there being no law to authorize tho issuing of such a writ in the premises; and, should his exception be overruled, he filed a general denial, and averred that he had confined himself within the duties, rights and privileges of a recorder, and had never usurped or exercised the rights, duties and privileges of an alderman. The court of the first instance having overruled tho exception of the defendant, and rendered judgment against him on tho merits, he appealed. It is contended on the appeal that, the exception of the defendant was improperly overruled, because tbe writ of quo warranto, as authorized by the Code of Practice, can bo resorted to in cases of usurpation of office only, and because the defendant, so far from having usurped the office of alderman, has from the beginning disclaimed any title to that office,' or any intention to usurp or exerciso the rights, duties and privileges thereof, and simply considers it his right, in virtue of his own office, as recorder, to vote in the deliberations of the council. The petition does not charge that the defendant has usurped the office of alderman, but that he has exercised, and claims, without authority, the power to exercise the rights, duties and privileges of an alderman. This is not, according to the technical distinctions of the common law, the usurpation of an office; it is the usurpation of a franchise. “ Wrongfully and unjustly holding and presiding at a court of record of a borough, in the absence of the bailiffs, is not an usurpation of the office of bailiff, for the intruder may have thought it his right or his duty in virtue of his own office as recorder or town clerk; yet it is an usurpation of the office of a judge, or of theforanchise f holding the court, for which an information may be granted at common law.” Rex v. Williams, 1 Bur. 407. S. C. 2 Kenyon, 75. [166] In England there is a remedy at commonlaw, for both kinds of usurpation, by an information in the nature of a quo warranto, filed by the attorney general in tho court of King’s Bench; and, under tho statuto of Ann, tho court may besides authorize private persons to proceed in the samo mannor, in cases of usurpation of office. This distinction in the various kinds of usurpation, does not exist under our laws. The 22d section of the act of 1805, establishing the Superior Court, provided as follows: “ The Superior Court shall have power to issue writs of quo warranto, procedendo, mandamus and prohibition, which writs shall preserve the forms, and be conducted according to the rules and regulations prescribed by the common law.” Under this statute, a writ óf quo warranto was the proper remedy for both kinds of usurpation. The Code of Practice subsequently made provision for tho form and manner of proceeding; but we do not understand that it restricted the cases in which the writ could issue before. The only restriction is contained in that portion of article 868, which refers to offices conferred in tho name of tho Slato by tho Governor, with or without tho consent of tho Senate. Article 828 defines tho writ of quo warranto to be, an order of which the object is to prevent anusurpation. This definition clearly embraces usurpation of franchises as well as of offices. The very case put by article 8G8, is the usurpation of a franchise. This mandate is only issued, says that article, fer the decision of disputes between parties, in relation to offices (fonclions, says the French side) in corporations, as when a person usurps the character of mayos- of a city. The character of mayor is not, technically speaking, an office, but a franchise. See also art! 789 of the Code of Practice. It is truo that article 870 ordains that, if the judgment be against the defendant, the court shall direct the corporation to proceed to a new appointment; but tho legal construction of this article, taken in connection with those that precede it on the same subject matter, is, that such an order shall be made whon a new appointment is necessary. It is an exception to the general dispositions contained in the other articles, and does not limit them in any manner. “ It is an established rule in the exposition of statutes that, the intention of the lawgiver is to bo deduced from a view of the whole and of every part of the statuto, taken and compared together. In construing acts of parliament, the courts aro not to look only at the language of the preamble, or of any particular clause. If they find in the preamble, or in any particular clause, an expression not so large and extensive in its import, as those used in other parts of the act, it is their duty to give effect to the larger expressions. Indeed a statute ought, upon tho whole, to be so construed, that, if it can be prevented, no clause, sentence or word should be superfluous, void or insignificant.” Per Lord Tenterden, Doe dem. Byioaler and Brandling, 7 B. and C. 643.—Rex v. Burckett, Hard. 344, 1 Shaw, 108. Dwarris on Statutes, p. 21. The order to proceed to a new appointment, could not always be made, even in cases of usurpation of office. If, after a candidate for tho office of mayor had obtained a majority of the votes, his competitor should take tho oath of office, and attempt to exorcise the functions thereof, a writ of quo warranto would be the proper remedy against him; and yet the judgment rendered -in tho case could not order a new election. We are satisfied that the exception was properly overruled. [167] On tho merits, the law of tho case is contained in the following sections of various acts of tho legislature. The 5th section of the act of incorporation of tho city of New Orleans, approved on the 17th of February, 1805, provides “that the aldermen shall form a council to be called the city council, of which the recorder, for the time being, shall, ex-officio, be president, but shall have no vote except a casting vote, unless at such time as the council shall resolve itself into a committee of the whole.” In 1836 the city was divided into three municipalities, by an act entitled “An act to amend the act entitled an act to incorporate the city of Now Orleans, approved Feb. 17th, 1805, and other acts amending the same.” The 2d section of that act provides, “that each municipality shall be governed, and its affairs administered by a council, composed of a recorder, and the aldermen elected by the wards within the limits thereof.” Section 5th of tho samo act says, “that each municipality shall be governedi and the affairs thereof administered, by a recorder, and council composed of aldermenand it provides for the timo and manner of their election. Section 8th of the same act provides, “that the poioers and duties of recorders and aldermen shall be the same, within the limits of their respective municipalities, as they were before in the city of New Orleans. By the 1st section of an act passed in 1840, it is ordained that, the council of Municipality No. 2 shall in future be composed of twelve aldermen. It is not denied that, up to 1836, the recorder could not vote in the deliberations of tho council, and had only a casting vote; but it is contended that, by the 2d section of the act of that year, the recorder is made a component part of the council, and has the right to vote in all cases. It is further alleged that this last act being the organic law of Municipality No. 2, its provisions cannot be repealed by implication. The act of 1836 does not purport to be an original organic law. Its very title, as we have already seen, negatives the idea; and its details and provisions clearly show that, it was nothing more than an amendment of the laws existing on the same subject before its passage. The division of the laws Which establish and regulate municipal corporations into organic and ordinary, does not exist under our form of government. In the country from which we derive our ideas on the subject of municipal corporations, tho charters of cities were, as their name implies, contracts, entered into between the corporators on the one hand, and the king or feudal lord on the other, by which liberties and franchises were bartered for personal service or money. The fights and powers which those charters conferred, wore of the nature of those secured to the people at large by our constitutions. They were intended to be permanent, and could not be lawfully taken away; they were, in tho trae sense of the word, franchises. But the relation existing between our municipal corporations and tho sovereign, is not tho same; and it is strange that this fact should continuo to bo so obstinately overlooked by their officers. The twenty-third section of tho general provisions of the old constitution ordained, that tho citizens of tho town of New Orleans “should have the right of appointing the several public officers necessary for the administration and the police of the said city, pursuant to tho mode of election prescribed by the legislature.” This provision constituted the municipal government of this city, a subordinate agency for purposes of police and good order. The laws which, under that provision, have established and regulate the municipalities, are not [168] contracta; they aro ordinary acts of legislation. The powers they confer are no longer franchises, in tho original meaning of that word; they are nothing moro than mandates; and those laws may bo repealed at pleasure, except so far as their repeal may affect rights acquired by third persons under them. They aro all of the same nature, and must bo construed and applied in all cases like other laws. The provisions of the different statutes already cited in relation to tho power of rocordcrs, must bo viewed as if they formed part of one and the same statute, and bo construed, as far as practicable, so that no clause, sentence, or word in them he super jluous, void, or insignificant^ The 5th section of the act of 1805 ordains that, except in cases when the council resolves itself into a eommitto of the whole, the recorder shall have no vote, except a casting vole. How has this express prohibition been repealed 1 Tho argument by which such a repeal is deduced from the 2d section of the act of 1836, violates every known rule of interpretation, and can hardly be considered as serious. That section says that the council shall be composed of a recorder and the aldermen; but it must be construed with reference to all the others in pari materia, found in tho different laws of the corporation. It is a declaratory law, granting no now power. As there is no deliberative assembly without a presiding officer, after the act of 1805 had provided that the recorder-should bo ex-ojficio president of the council, the council was in reality composed of a recorder and the aldermen; each exorcising the functions assigned to them by law. This is the legal intendment of the 2d section of the act of 1836, viewed with reference to tho other laws in pari materia. It is identical with that of the 5th section, and has been considered by every body so to be, sinco the passage of the act in which it is found. The legislature was so careful to leave no room for doubt on this subject, that it provided by the 8th section that, the powers, duties and rights of recorders should remain the same as they xoere before. The 2d section was not intended to make any change in those powers ; and, if it should be conceded that the power claimed might at one time have been exercised under it by implication, that power was certainly taken away, in the same manner, by the act of 1840. The 2d section of the act of 1836 ordains that each municipality shall be governed, and its affairs administered by a council composed of a recorder and the aldermen. The 5th section of the same act provides that, each municipality shall be governed, and the affairs thereof administered, by a recorder and council cmnposed of aldermen; and by virtue of the 8th section, the powers and duties of recorders are to remain the same as they wore before. Under the construction which it suits the defendant to put upon the 2d section, those three dispositions cannot stand together, and the first, or the two last, must give way. The defendant contends that tho first ought to prevail; but the law is against him. “ If the latter part of a statute be repugnant to the former part thereof, it shall stand, and, so far as it is repugnant, be a repeal of the former part, because it was the last agreed to by tho makers of tho statute.” Dwarris on Statutes, p. 31, and the cases there cited. If the act of 1840 had never boon passed — if tho 5th and 8th sections of the act of 1836 were not found in it, the 2d section of that act would not give to the defendant tho power he claims. The law does not favor repeals by implication, and “ when there is a difference in tho whole perviow of two statutes, apparently relating to the same object, the, former remains .in force.’’'’ Rex v. [169] Downes, 3 T. R. p. 569. So that if tho 2d section of tho act of 1836 had stood alone, it would not have repealed any part of the 5th section of the act of 1805, and the powers of the roeorder would have remained the same as before. Wo could not view the different laws regulating the powers, rights and duties of recorders as one single statute, and give effect to all their provisions, as it is our duty to do, without coming to the conclusion that the defendant has no color of right to exercise the powers he claims. The opinion of the court is unanimous, clear and decided, that the judgment must stand. Judgment, affirmed.