Beck v. Hanscom

Gilchrist, C. J. The petitioner’s case is, that there having been no election of city marshal in the month of April, 1853, on the 27th of May of that year, a majority of the board of aldermen, and a majority of the common council, being present in convention, he was elected by a major vote of the convention to that office for the ensuing year, and until another should be chosen and qualified in his stead. The return or answer to the petition admits that the elec — 221 — tion was made as alleged, but denies that it was for the year ensuing, and until another should be chosen and qualified, and alleges that the current year, for which only Beck was elected, has expired, and denies that he was entitled to hold the office after the first day of April, 1854. In order to determine whether Beck could hold the office until another person should be chosen and qualified, it is necessary in the first place, to examine the provisions of the charter. By the sixth section of that instrument, all city., ward, and town officers who are chosen by the people, are to hold their offices for one year, and until others are chosen. The 28d section provides that on the fourth Tuesday of March, the city council shall elect in convention, by joint ballot, a city clerk, who shall hold his office for one year, and until another shall be chosen and qualified. The 24th section merely provides for the annual election of a city treasurer. From these sections no inference can be made that the city marshal is to hold his office until another is chosen and qualified. The 13th section gives the mayor and aldermen the power to appoint a city marshal, but says nothing about his term of office. The first section of the amendments takes from the mayor and aldermen the power of appointing the city marshal and vests it in the city council, who are to elect him, with other officers, in the month of April, annually, in convention, and by joint ballot If they fail to elect in the month of April, they shall proceed to elect “ as soon thereafter as may be.” Nothing is said about his holding his office until another is chosen and qualified, and we find nothing in the charter or amendments which authorizes this conclusion. The charter and amendments provide, as to certain officers designated therein, that they shall hold their offices until others shall be chosen and qualified, but in relation to certain other — 222 — officers this provision is omitted. All the officers enumerated are not placed on the same ground by the charter, when if it had been intended to deal with all of them alike, it would have been an easy matter to express that intention. But the court have no authority to speak where the charter is silent; and if we should give a judicial construction to the charter, by force of which the city marshal should hold his office until another should be chosen and qualified, we should, in our opinion, make the law, instead of expounding it. , In the case of The People v. Runkin, 9 Johns. 147, it was held that the trustees of a religious society who go out of office at the end of the year, hold over until others are appointed. In the case of the Trustees of Vernon Society v. Hills, 6 Cow. 23, it is intimated that corporate officers may hold over until others are elected in their stead. But in the case of Phillips v. Wickham, 1 Paige, 595, Chancellor Walworth said, “ I am not aware of any general principle of the common law, which authorizes all civil or corporate officers to hold over after the expiration of the time for which they were elected until their places are supplied by others; and the numerous statutes, both here and in England, giving such authority in express terms, seem wholly inconsistent with any such common law principles.” But without investigating this question, we think it is sufficient that the charter makes no provision for the continuance of the city marshal in office after the expiration of the year for which he was elected. Such being the views of the court, it would seem to be unnecessary to determine any other question in the case; for if Beck’s term of 'office expired with the current year he cannot maintain this petition, as it is only on the ground that he is legally the city marshal that he can ask the court to interfere. But as the other question which has been argued is one of much interest to the parties, we have taken it into consideration. — 223 — It appears that on the 12th day of June, 1854, the common counsel assembled and notified the board of aldermen that they were ready to meet them in convention for the choice of city officers. The mayor and three only of the aldermen appeared, and went into convention with the common council, there being present the mayor and a majority ■of all the members of the city council, including both aldermen and common councilmen, the two boards being twenty-eight in number, and twenty-three votes having been cast. Of these votes the defendant had fourteen, and was declared to be duly elected. Now the question upon this state of facts is, whether, as there was not a majority of the board of aldermen present, the city council was legally organized. The second section of the charter provides that the government of the city shall be vested in a mayor, one council of seven, to be denominated the board of aldermen, and one council of twenty-one, to be denominated the common council, which boards shall, in their joint capacity, be denominated the city council. A majority of each board shall constitute a quorum for the transaction of business.” The 14th section enacts that “ the persons chosen and qualified as members of the common council shall sit and act •together as one body, distinct from the mayor and aider-men, except when the two bodies are required to meet in •convention.” The second section of the amendments of the charter provides that “ a majority of the city council shall constitute a quorum for proceeding in elections,” &c. The third section enacts that at the meetings “ of the aldermen, common council, and of the city council in convention, if it shall appear that a majority of either of said bodies is not present,” the members present may compel the attendance of the absentees, &e. These are all the provisions we have found bearing upon the question now before us. — 224 — Now on the eighth day of June the board of aldermen fixed on the twelfth of June as the time for going into convention for the choice of city officers. Their vote was concurred in by the common council, and when the time arrived, nothing remained to be done by either body but to go into convention in pursuance of their respective votes. The charter provides that a majority of each board shall constitute a quorum for the transaction of business. But after the board of aldermen had voted, there was no business to be transacted. As a legislative and administrative body they had agreed to do a certain thing. They had then only to do what they had agreed to do. The neglect of some of their number to act in pursuance of their vote could not rescind their vote and annul their previous proceedings. If, after the vote had been adopted, any other act of a legisla, tive character had been necessary before going into convention, or if the mere going into convention could be regarded as a legislative act, then it must have been done by a majority. But if, after a vote had been legally passed by a competent board, one member could render nugatory the act of the board to which he belonged, he would possess a degree of legislative power which the charter could never have intended to confer upon him. These considerations, we think, are an answer to the objection that a majority of the board of aldermen was not present in the convention. If it were considered desirable to adopt a rule of extreme strictness in relation to the constitution of the city council, we should not be without precedents for so doing. In the case of St. Mary’s Church in Philadelphia, 7 S. & Rawle, 517, Duncan, J., says, “ when legally assembled, the majority of voices govern, but every integral part must be present at a corporate assembly, by a majority, at least, of its proper ■members, though the major part of all present, when assembled, are competent to do a corporate act.” In the case of the King v. Miller, 6 Term Rep. 278, Lord Kenyon said, “ this proposition seems to be now clearly established that — 225 — where there is a definite body in a corporation, a majority of that definite body must not only exist at the time when any act is to be done by them, but a majority of that body must attend the assembly where such act is done.” Grose, J., says, “ a majority of each integral part of the corporation must meet in order to make a good elective assembly, though an action by a majority of those assembled, is valid.” In the case of the King v. Williams, 2 M. & S. 141, the mayor, burgesses and commonalty were to elect a mayor annually. At a meeting a person was proposed and seconded as a candidate, but the mayor withdrew before the candidate was declared duly elected, and it was held that the election was void, for the absence of the mayor, an integral part of the corporation. The present question may be very shortly stated. The corporation of Portsmouth consists of the mayor, the aider-men, and the common council. These bodies, or boards, constitute the city council, when in convention. A majority of each board constitutes a quorum for the transaction of business. The board of aldermen regularly voted to meet the common council in convention, brat when the timo arrived a majority did not appear. Is the auiual meeting In convention a “ business ” which requires the presence of a quorum, or is a quorum necessary for such business only as is transacted by the aldermen la their separate capacity, when they meet to discharge their appropriate duties ? After a legal vote to meet in convention, must a quorum aetutually meet ? There are decisions which modify the stringent rule laid down in the English eases. In the case of Whiteside v. The People, 26 Wend. 634, the appointment to office was vested Ira two bodies, each of which was separately to assemble sind make a nomination. Both bodies were then to meet, and if the nominations agreed, the person nominated was to be appointed, brat if not, the two bodies were to elect by joint ballot. The two bodies met, and one of them de« — 226 — dared it had made a nomination, but the other made none, and refused to act, and left the. meeting. It was held that the appointment of the officer by a majority of the whole number of both bodies, was valid. In the case of Ex parte Humphrey, 10 Wend. 612, the judges of the court of common pleas and the supervisors were separately to nominate superintendents of the poor, and then to meet for the purpose of comparing the nominations, and if they disagreed they were to elect by joint ballot from the persons nominated. The supervisors met, but refused to make a nomination. The two bodies then met, and a majority of the whole number, in joint meeting, elected superintendents by ballot, and it was held that the election was valid. Savage, C. J., said it could not be in the power of one board thus to violate their duty. We are disposed to adopt such views of the law, and to give such a construction to the charter, as will best enable the government of the city to proceed with regularity. To hold that in the circumstances of this case, the omission of the aldermen to go into convention could put a stop to the legislative action of the city council, would be, we think, to _offer a premium for a. neglect of duty. This controversy had its origin, doubtless,- in hostile feelings among the parties to it, and the election of the city marshal was merely an occasion for the manifestation of them. We are not called upon to suppose that either party acted upon any other grounds .than such as they supposed were legal. But we think the views of the respondent are sound, for we can imagine no case where, after every preliminary step has been properly taken, the mere neglect of one of the constituent bodies to carry its previous vote into effect, ought to have the power of hindering the other bodies from performing the duties required by the charter. The judgment of the court, therefore, is, that the city council must be considered as duly organized, and that the respondent was legally elected to the office of city marshal. Petition dismissed,