State ex rel. Olson v. Lahiff

Winslow, C. J. Appellant’s position is this in brief: At any time between the 25th day of April and the 2d day of' May it was within the power of the mayor of the city of Hudson to appoint a hoard of police and fire commissioners; the mayor was absent from the city on one of the days during that [492] period, and under the provisions of the charter the president •of the council could exercise “all the powers” of the mayor during that day; hence the appointments made by the president of the council on that day were legal and valid. The argument is specious, but in our judgment unsound. 'The provision of the charter quoted was evidently intended to .accomplish two objects: 'first, that the duties of the mayor ■should be performed within the city and not at long range by .an absentee official; and, second, that in the absence of the mayor from the city there should still be an executive officer present vested with the powers and charged with the duties of mayor. “Absence” must be construed reasonably, and so construed means, we think, what may be called “effective” absence. If ■during the mayor’s absence from the city, even for a brief time, a riot occurs, or an occasion arises which demands immediate exercise of the executive power to preserve order or ■enforce the laws, the powers and duties of the mayor to meet the emergency must necessarily be vested in the president of the council fully and completely during the period of the absence. But a different situation is presented1 when the mayor has ¡a certain period of time within which to perform an act like the appointment of an officer or the approval of a resolution or ■ordinance passed by the council. In such cases it is very evident that the time which is allowed the executive is allowed so that he may have opportunity for reflection and weighing of arguments pro and con. Can it be possible that it was intended that, if the mayor is called from the city for a few hours during this period, the president of the council can step in during his absence and make an appointment or veto an ■ordinance while the mayor’s time for consideration thereof is ■still unexpired and perhaps only just begun? Few would •contend, we think, that the statute was intended by the legislature to accomplish such results, nor do we think that its [493] wording compels such, results. It seems to us that it may properly and logically be said in such a case that with reference to the particular duty in question there has been no absence from the city on the part of the mayor, i. e. no absence which renders him unable to perform that particular duty. Take the present case as a concrete example. The mayor had a whole week in which to make the appointments. He was-absent the first day of the week. Presumably he was still considering names of possible appointees and weighing their respective merits. Presumably also he was expecting to make the appointments before the end of the week. It seems absurd to say that by this one day’s absence from the city he lost the power which the law vested in him for the entire week,, and we therefore hold that there was no absence here within the meaning of the statute with reference to this particular duty. To hold otherwise would be to open the door for unseemly scrambles for power and patronage, not only disgraceful in themselves, but well calculated to seriously impair the' efficiency of city government. The same conclusion has been reached under similar statutes elsewhere. Mayor v. Moran, 46 Mich. 213, 9 N. W. 252; Watkins v. Mooney, 114 Ky. 646, 71 S. W. 622. The case of State ex rel. Emberson v. Byrne, 98 Wis. 16, 73 N. W. 320, holds no different doctrine, but by implication supports the conclusion here reached. In that case the mayor was absent from the state during the whole time given him to make the appointment, and attempted to-make the appointment while so absent, and it was held (1) that this appointment was void on account of his absence from the city when he attempted to-make it, and (2) that an appointment made by the president of the council during such absence was valid. Here was a clear case of an absence which made the mayor unable to perform the duties of his office, and hence opened the way for action by the president of the council. In O’Malley v. McGinn, 53 Wis. 353, 10 N. W. 515, the president of the council signed an ordinance passed [494] by the council. It was stipulated that the mayor was out of the city when the ordinance was passed, and this court said that the ordinance was valid without the approval of the mayor. The evidence did not show how long the mayor’s absence continued, and the charter seems only to provide that before an ordinance shall be in force it shall be signed by the mayor, and does not allow the mayor a definite period in which to consider it before approving or disapproving. In the state of the record in that case we think that it- must be presumed that the president of the council acted lawfully, that is, that the facts were present which authorized him to sign the ordinance. We do not regard the case as authority against the principle now decided. By the Gowrt. — Judgment affirmed.