Bousquet v. State ex rel. Gleason

Whitfield, C. J., delivered, the opinion of the court. It is not necessary to decide in this case anything more than the right of the mayor to vote twice and to vote in the election of officers. We are clearly of the opinion (after a careful analysis of the statutes bearing on the question) that the mayor of a city which has come under the provisions of the code of 1892 on municipalities can only vote on an election for officers (provided for by § 2978) when there is a tie between the aldermen. He is not a member of the board of aldermen. Counsel well say: “ It is clear from an examination of chapter 93 of the code that the mayor is not, and was never intended to be, a member of the board of aldermen. He is not elected from the aldermen and is not made a member by the statute.” “The affairs of the city are administered by the £ mayor and board of aldermen. ’ The mayor sits with but is not a constituent part of the board of aldermen. He has only such powers in joint meetings of the mayor and board of alderman as are given him by the statute. Section 2979 of the code prescribes his duties and defines his powers at such meetings, which are, first, to preside at all meetings of the £ board of aldermen, ’ ’ second, in case there be an equal division to cast the deciding-vote; third, to veto any measure passed by the £ board of aider-men. ’ It is manifest from this section alone that he is not a member of the board. He is referred to as presiding over meetings of the £ board of aldermen ’ and voting in case of an equal division (from • the context manifestly meaning an equal division of the aldermen), and vetoing measures passed by the £ board of aldermen, ’ not passed by the £ mayor and board of aldermen. ’ “ By § 2979 it is also provided that a measure vetoed can be passed by a two-thirds vote of the aldermen (not the mayor and aldermen), meaning unquestionably a two-thirds vote of all those present entitled to vote. If all the aldermen were present when a measure was vetoed, would any one contend that if six aldermen voted to pass such measure over the mayor’s veto [485] that by voting with the three, he coaid defeat the measure % By § 2986 the mayor has the right to remit fines, etc., by and with the consent of the aldermen, meaning, of course, as shown, by a majority vote. Will it be contended that in a body of nine aldermen, the mayor could take four and by voting twice make a vote of six to five, and thereby be' enabled to remit fines by the consent of a minority of the aldermen voting ? “By § 2991 a majority of all the aldermen elected constitute a quorum to do business, and § 2943 authorizes the selection of an alderman to preside in the mayor’s absence; so five aldermen could meet and transact business, but four aldermen and the mayor could not. “ If the mayor, and four aldermen had absented themselves from the meeting at which this election was held, the five remaining aldermen could have ■ proceeded to hold the election and to transact business, but if these five aldermen had absented themselves the remaining four, with the mayor, would have been powerless either to proceed with the election or transact other business. If four aldermen and the mayor have six votes, why do they not constitute the quorum to do business, when five aldermen with five votes constitute a quorum ? “ Nor is the board even designated as the £ board of mayor and aldermen,’ but the statute invariably uses the expression ‘mayor and board of aldermen,’ thus, by §2925, the ‘mayor and board of aldermen’ are authorized to pass ordinances; by § 3005 the ‘mayor and board of aldermen ’ may provide a municipal building; by § 3014 the ‘ mayor and board of aider-men’ may issue bonds; by §2992 the ‘mayor and board of aldermen’ may elect a tax collector, and by § 3001 a police justice, and so on, indicating clearly that it was never the intention of the legislature that the mayor and aldermen should form a board or electoral college, of which the mayor and the aldermen should all be members. “If § 2978, which says these officers shall be elected by the ‘mayor and board of aldermen,’ thereby gives the mayor a [486] vote in the election of officers when there is no tie, then all the other sections of the code providing for the transaction of business, when the same language is used, would give him, as a matter of course, the same right, thereby vesting the mayor with the power to vote in passing measures, and then veto them and vote again in sustaining his veto. “By § 2978, the number of aldermen in a village is fixed at three. Suppose the court should hold that the mayor has a vote in the first instance, and then another in case of a tie, then in all cases it would require a unanimous vote, and not a two-thirds vote of the aldermen in a village to pass any measure without the assent of the mayor, for if the vote of the aider-men should be divided, one voting for and two against the measure, the mayor, by voting with, the one, can make a tie, and then vote again and carry it, although two-thirds of the aldermen vote against the measure, or he could defeat a measure in the same way, although two-thirds of the aldermen should vote for it.” We think these are sound views. The monstrous proposition that the mayor can vote in such election for officers as an alderman, to create a tie, and then, in his capacity as mayor, to break the tie — a construction which leads to the most absurd results — cannot be attributed to the legislature. No such construction is warranted. Section 2979 completely negatives it. Since the relator was elected, therefore, by the new board, a majority of the aldermen having voted for him, and since, under § 3001, code 1892, the mayor and board of aldermen could elect a police justice at any time, he is clearly entitled to the office. Wherefore the judgment of the court below is Affirmed.