State ex rel. Rudolph v. Hutchinson

Dodge, J. The effect of the adoption of sec. 925; — 30, Stats. (1898), as an addition to and amendment of the city charter unquestionably was to authorize payment of salary [286] and compensation to tbe mayor and aldermen in common with the other officers of the city. Being the latest portion of said charter legislatively adopted, it of course superseded former portions thereof inconsistent therewith. That section provided: “The common council shall by ordinance provide such salary or compensation for the officers and employees of the city as it shall deem proper; provided, that in cities of the second, third and fourth classes no salary shall be paid to the mayor or members of the council except when ordered by a vote of three fourths of the members-elect of the council.” It is contended that a distinction is here made between salary and compensation, and that as. the latter portion prescribing the vote in the case of mayor and aldermen refers only to salary, it must be construed as permitting only compensation by way of salary to those officers, and that a fixed fee for a specific duty is not a salary. Several answers to this contention might be suggested. We, however, think it obvious that the express words of affirmative grant of power to the council confer authority to compensate any officer in such manner as to1 the council shall seem wise, and that the words “salary” and “compensation” are both used in order to repudiate any restriction to the more technical significance of the word “salary.” We do not deem the last clause as significant of any contrary intention. It is a restrictive clause, in effect qualifying the grant made by the earlier words, and, if there is any distinction between salary and compensation, it is the restraint and not the grant of authority which is thereby confined to salary. But even though the relators be entitled under this resolution to receive from the city these several sums, there still remains the question whether the specific duty of signing an order therefor is anywhere by mandatory and unambiguous words of the statute imposed upon the mayor as a mere ministerial duty, absolute and not discretionary. The only words in the charter which impose any such duty upon the mayor [287] are contained in sec. 2, snbcb. XII, of that charter (ch. 221, Laws of 1882), which declares that all orders drawn npon the treasurer must be signed by the mayor or the presiding, officer of the council and countersigned by the clerk, except as provided in sec. 2, subch. III. The last-mentioned section, relating to the duties of mayor, inter alia, provides with reference to ordinances that if he approves he shall sign and return to the clerk, and if not he shall return it with his objections to the common council, who may then reconsider and pass over his veto by two-thirds vote, and then provides: “The mayor may also withhold his signature to- any order directed to be drawn upon the city treasurer, but the common council may, at any stated meeting thereafter, by two-thirds vote of its members, direct the mayor to sign such order.” Whereupon the order may bd paid without his signature. Taking these two provisions together it is apparent that the function of the mayor in signing orders is identical with that of signing ordinances; that each is accompanied by the power of withholding such signature in his discretion and thus requiring a two-thirds vote of the council to its validity. This is the veto power found in nearly all constitutions and charters whereby the chief executive is given a participation in the legislative power. It therefore confers a discretion of the most absolute and unquestionable character, as free from restraint as the very vote of the aldermen. It is beyond control by courts, whether by mandamus or otherwise. State ex rel. Martin v. Doyle, 38 Wis. 92; State ex rel. C. Reiss C. Co. v. Born, 97 Wis. 542, 73 N. W. 105; State ex rel. Gericke v. Ahnapee, 99 Wis. 322, 74 N. W. 783; State ex rel. Rose v. Superior Court, 105 Wis. 651, 81 N. W. 1046; State ex rel. Ginn v. Wilson, 121 Wis. 523, 99 N. W. 336; New Orleans W. W. Co. v. New Orleans, 164 U. S. 471, 481, 17 Sup. Ct. 161. By the Gourt. — Judgment reversed, and cause remanded with directions to dismiss the writ.