posed, however, when not in contravention of the charter, that municipal corporations may, to a limited extent, and when such a course is reasonable and necessary, have as incidental to express powers the right to create certain minor offices of a ministerial or executive nature. Thus, if power be conferred to provide for the health of the inhabitants, this would give the corporation the right to pass ordinances to secure this end, and the execution of such ordinances might be committed to a health officer, if such a course is reasonable and necessary, although no such officer be specifically named in the organic act, if this course would not conflict with any of its provisions. But the power to create offices even of this character is capa their incumbents without express statu- the office and its duties in the charter. tory authority. O'Connor v. Walsh, 83 People v. Bedell, 2 Hill (N. Y.), 196; N. Y. App. Div. 179. A city has no See also Field v. Girard College, 54 Pa. power to create any offices or officers St. 233. Legislative prohibition to other than those provided for under common council against creating new the Constitution and charter. Lowery offices extends to clerks, but not to v. Lexington, 116 Ky. 157; citing janitors and ordinary servants. CosLowry v. Lexington, 113 Ky. 763. In tello v. Mayor, &c. of Ñ. Y., 63 N. Y. 48 ; New Jersey, pound-keepers, from a very Sullivan v. Mayor, &c. of N. Y., 53 N. Y. early period, had been public township 652. Power to appoint marshal under officers, elected in the same way as charter of East St. Louis. See People other officers of the township. Under v. Canty, 55 Ill. 33. A police judge is these circumstances it was held that a held to be a municipal officer in Čalimunicipal corporation other than, but fornia. People v. Henry, 62 Cal. 557. situate within, the township could not, A city court judge is a municipal, not a without express authority therefor, es- State, officer. State v. Churchman, tablish another public pound within the 3 Pen. (Del.) 361; 51 Atl. Rep. 49; limits of the township, and prescribe Wolf v. Hope, 210 Ill. 50. Police regulations and fees variant from those officers and power to appoint. Infra, prescribed by the general law; and it § 390 and note. Where an appointwas further held that the office of ment is to be made by a city council, if pound-keeper could not be considered a quorum be present, a person who reas one essential to the business of the corporation; nor is a pound-keeper one of those subordinate officers which all municipal corporations may, as of course, appoint. It was, however, admitted by the court that where such a corporation has power to do an act, it has the incidental power to appoint persons to carry it into effect. White v. Tallman, 26 N. J. L. 67. The test of the validity of acts done under an implied power is reasonableness. See chapter on Ordinances; infra, § 390, note. Construction of power to appoint weigh-master. Hoffman v. Jersey City, The weight of American authority 34 N. J. L. 172. Power to appoint appears to hold that one appointed to when office is vacated "by death or office by a de facto officer or by a de disability," held to authorize appoint- facto board becomes entitled to the ment where a vacancy is caused by office to which he is appointed de jure resignation. State v. Newark, 27 and is not a mere officer de facto. See N. J. L. 185. Authority to a municipal corporation to appoint an officer was inferred from the frequent mention of ceives a majority of the votes cast will be elected, although a majority of the council may abstain from voting. Launtz v. People, 113 Ill. 137; post, §§ 521 et seq. Power to manage and control public ways implies power to create all offices necessary to the successful conduct of the business, including that of foreman of street repairs. Collopy v. Cloherty, 95 Ky. 330. Under the Mississippi code, only the incoming mayor and aldermen have the right to elect inferior municipal officers. Ott v. State, 78 Miss. 487. post, § 519, where this subject is discussed and the authorities are cited. ble of abuse, and is to be closely scrutinized and limited to such as the nature of the duties devolved by charter or statute on the corporation naturally and reasonably requires. If the duties can reasonably be performed by the charter officers, any implied power of the corporation to create and duplicate offices would ordinarily be thereby negatived. The provisions of the charter as to time and mode of election, the appointment, qualifications, and duration of the terms of officers, must be strictly observed.1 Therefore an ordinance which makes Quoted with approval in Trowbridge v. Newark, 46 N. J. L. 140. As to the powers and procedure of the city council in electing to office, see post, § 529. Where, by charter, the appointment of a prosecuting attorney was committed to a common council, but there was no direction as to the mode of appointment, held, by a divided court, that having chosen one person by ballot the council had exhausted its power, and that a subsequent resolution declaring another person to be elected was of no effect. State v. Barbour, 53 Conn. 76. An existing board cannot appoint to an office which is to come into existence or to become vacant at a time when the board will be differently constituted. The official board or body of a municipality which is or will be in office at the time an appointee is to take his office can alone make an appointment to such office, unless there be express legislative authority otherwise. Dickinson v. Jersey City, 68 N. J. L. 99. An appointment made in 1903 to take effect on January 1, 1904, by a mayor whose term of office expired on December 31, 1903, is ineffective. People v. Fitzgerald, 96 N. Y. App. Div. 242, aff'd 180 N. Y. 269. A committee having charge of the city hall with authority to appoint custodians and employees cannot appoint for a period extending beyond the year for which they are themselves appointed. Egan v. St. Paul, 57 Minn. 1. Appointment of marshal at first meeting after election of board of aldermen as required by charter is merely directory and appointment at second meeting is valid. Greer v. Asheville, 114 N. Car. 678. A delegation by the legislature to a city council of power to appoint a commissioner of parks, &c., is valid. Attorney-General v. Bolger, 128 Mich. 355. Where, under the Constitution, the legislature cannot provide for the appointment of a city treasurer by the mayor, he having to be elected by the people, but has done so with the intention of temporarily filling the office, its intention will be given effect to the extent of its constitutionality. Watson v. McGrath, 111 La. 1098. Where the power of election or appointment is given to a city council, it cannot delegate it to another body. Gouldey v. Atlantic City, 63 N. J. L. 537. Where the charter requires both the mayor and the board of aldermen to concur in filling a vacancy in an elective office, the mayor has no power alone to fill the vacancy, even temporarily, nor can the board of aldermen do so without consent of the mayor. Brumby v. Boyd (Tex. Civ. App.), 66 S. W. Rep. 874. Where the legislature gives a mayor power of appointment of marshal, appointment by the council is invalid, and the mayor may discharge the appointee. Baxter v. Beacon, 112 Iowa, 744. Where a mayor has power under statute to fill a vacancy, the appointment need not be confirmed by the board of aldermen in the absence of a provision to that effect in the statute. Watkins v. Mooney, 24 Ky. Law Rep. 1469; 71 S. W. Rep. 622. Rule of a board requiring a twothirds vote to elect a clerk whose election is provided for by statute is in violation of common law and of a statute which provides that authority conferred on three or more persons may be exercised by a majority. Heyker v. Herbst, 106 Ky. 509. When all the members of a city council vote to elect a city clerk, and one candidate receives a plurality of votes, he is duly elected and a formal declaration of the result is not necessary to fix his right to the office. State v. Miller, 62 Ohio St. 436. Formal declaration of election of city clerk is not necessary; therefore it is not within the power of a member of council to change the result by changing his vote. State v. Miller, eligible those who, by the charter, are not so,' or which abridges the term of officers, as fixed by the charter, is unauthorized and void." Where provisions for the election of municipal officers are made by ordinance in pursuance of charter powers, they must also be strictly observed.3 § 386. Power of Council to prescribe the Term of Office. - The term of an office fixed by statutory enactment governs, and the council cannot change it; it cannot make an appointment for a shorter term than that prescribed. For example, if the statute prescribes a term of two years, an appointment for less than two years is regarded in law as an appointment for the full statutory term, and the attempt of the council to shorten the term is ignored. It has also been 62 Ohio St. 436. Mandamus lies to council. People v. Weber, 89 Ill. 347; compel a governor to issue a commission State v. Sheets, 26 Utah, 105. to a police judge legally appointed by a city council, where the statute makes it his duty to do so. Traynor v. Beckham, 116 Ky. 13; citing Marbury v. Madison, 1 Cranch (U. S.), 17, 137. See post, chapter on Mandamus. The power of the governor to appoint members of the legislative body of a municipality may be determined in habeas corpus. Ex parte Lewis, 45 Tex. Crim. Rep. 1. Where, under a general statute, city officers holding for fixed terms are continued in office until their successors are appointed and qualified, it is the duty of the city council, on vacancies occurring, to consider the nominations of the mayor, and any others he may make in case of their rejection, so that, upon confirmation, quo warranto will be possible. Hoell v. Camden, 68 N. J. L. 226; post, chapter on Quo Warranto. Rex v. Mayor of Weymouth, 7 Mod. 371, 373; Rex v. Bumstead, 2 B. & Ad. 699; Rex v. Spencer, 3 Burr. 1827; Rex v. Chitty, 5 Ad. & E. 609; ante, § 371. A city council cannot elect its own members when the law provides that they shall be elected by ballot by the electors of the city. Kearney v. Andrews, 10 N. J. Eq. 70. Majority of council essential to valid appointment of city treasurer. State v. Paterson, 35 N. J. L. 190. See Douglass v. Essex, 38 N. J. L. 214; State v. Jersey City, 26 N. J. L. 444, 447. The appointment of a person to a city office by a mayor under a law which requires confirmation by the council gives the appointee no right to the office without such confirmation by the proper and legal city 2 Stadler v. Detroit, 13 Mich. 346; Vason v. Augusta, 38 Ga. 542; chapter on Ordinances, post. The office of treasurer of a municipal corporation is not a "civil office" within the meaning of the provision of the Constitution excluding the clergy from "holding any civil office in this State, or from being members of the legislature.' State v. Wilmington, 3 Harring. (Del.) 294. See Commonwealth v. Dallas, 3 Yeates (Pa.), 300. "Lucrative offices," in the constitutional sense, defined to embrace county recorder, commissioner, township trustee, and supervisor. Daily v. State, 8 Blackf. (Ind.) 329; Creighton v. Piper, 14 Ind. 182; Howard v. Shoemaker, 35 Ind. 111. The office of city councilman is not "lucrative" within the prohibition of the State Constitution against the same person holding more than one lucrative office at the same time. State v. Kirk, 44 Ind. 401. As to office of city clerk, Mohan v. Jackson, 52 Ind. 599. 3 Saunders v. Lawrence, 141 Mass. 380. See also Weesner v. Central Nat. Bank, 106 Mo. App. 668. Hale v. Bischoff, 53 Kan. 301; Stadler v. Detroit, 13 Mich. 346; State v. Brady, 42 Ohio St. 504. See also People v. Dooley, 171 N. Y. 74, 86. But when the mayor is vested with separate and distinct powers to make an appointment for a full term or to make a temporary appointment to fill a vacancy during the remainder of an unexpired term, a temporary appointment to fill a vacancy for the remainder of the unexpired term made under the supposition that a vacancy exists, held that when the city council are merely given authority to appoint such officers as they deem necessary, the council cannot make an appointment for a fixed and definite term, such an appointment being regarded as a limitation upon the power to remove summarily, which is implied in a power to appoint not limited by a requirement that the appointment be made for a definite term. The council cannot deprive itself, either as then constituted, or as it may thereafter be constituted, of its right to exercise the power to remove summarily, which is vested in it. But when the statutory authority which is conferred upon the council is not merely to make an appointment, but to provide for the creation and to regulate and control a department, or to make ordinances to regulate and define the manner of the appointment and removal of officers, the council may, in connection with the exercise of the powers conferred upon it, fix, by ordinance, the term for which the officers shall be appointed, and the tenure of the office will continue for the prescribed term, so long as the ordinance remains unrepealed." § 387 (208). The Mayor.- Every municipal corporation is provided with an executive head, usually styled the mayor. In the chapter on Corporate Meetings we will point out the difference, in some respects, between the mayor of an old corporation in England and the officer known by that name in this country. In both countries the mayor is the head officer or executive magistrate of the corporation; but with us it is important to bear in mind that all his powers and duties depend entirely upon the provisions of the charter or constituent act of the corporation, and valid by-laws passed in pursuance thereof, and these vary, of course, in different municipalities. It is usually made his duty, however, to see that municipal ordinances are executed, and to preside at corporate meetings; when in fact there is no vacancy, and when the only power which the mayor had was to make an appointment for a full term, will not be regarded as an appointment for a full term, there being no intention to exercise that power. People v. Hall, 104 N. Y. 170. Mathis v. Rose, 64 N. J. L. 45; aff'd 64 N. J. L. 726; Uffert v. Vogt, 65 N. J. L. 621; Peal v. Newark, 66 N. J. L. 265, 267. See also Greene v. Freeholders of Hudson, 44 N. J. L. 38. But in State v. Wimpfheimer, 69 N. H. 166, a statute authorized a town to construct water works, which should be placed under three commissioners to be appointed from time to time, and to have such powers and duties as the town should, from time to time, prescribe. The town was made a city, and the power of appointment was devolved on the city council. It was held the city council might fix the term of the water commissioners, the court remarking, "Nothing is said about the duration of the term of the commissioners, but there is an implication that the town may, if it sees fit, fix the tenure within reasonable limits." 2 Bradshaw v. Camden, 39 N. J. L. 416; Bohan v. Weehawken, 65 N. J. L. 490. See also Mathis v. Rose, 64 N. J. L. 45, 48. 3 Post, § 511 et seq. and he is frequently expressly declared to be a member of the council or local legislative body. Properly and primarily his duties are executive and administrative, and not judicial or legislative. But judicial duties are often superadded to those which properly appertain to the office of mayor, and he is invested by legislative enactment with the authority to administer not only the ordinances of the corporation, but also judicially to administer the laws of the State.' Where the charter provides that in case of the absence of the mayor from the city, another officer shall act as mayor, only such an absence as will render the mayor unable to perform the duties of his office is intended." § 388 (209). Same Subject. The office of mayor has long existed in England,3 and many of its general features have been 1 Waldo v. Wallace, 12 Ind. 569, and growing out of it, see also Gulick v. New, 14 Ind. 93; Howard v. Shoemaker, 35 Ind. 111; Reynolds v. Baldwin, 1 La. An. 162; Muscatine v. Steck, 7 Iowa, 505; 2 Iowa, 220; Strahl, In re, 16 Iowa, 369; Shafer v. Mumma, 17 Md. 331; Luehrman v. Shelby Taxing District, 2 Lea (Tenn.), 425, approving text; Slater v. Wood, 9 Bosw. (N. Y.) 15; ante, chap. iii.; Morrison v. McDonald, 21 Me. 550; State v. Maynard, 14 Ill. 419; Commonwealth v. Dallas, 3 Yeates (Pa.), 300; State v. Wilmington, 3 Harring. (Del.) 294; Prell v. McDonald, 7 Kan. 426. This section of the text cited and followed. Martindale v. Palmer, 52 Ind. 411. Ela v. Smith, 5 Gray (Mass.), 121, arising out of the arrest of Anthony Burns as a fugitive slave. Power of mayor to order demolition of works and buildings in public places. Henderson v. New Orleans, 3 La. 563. Mayor may sanction an ordinance passed by a common council, whose term has expired. Elmendorf v. Ewen, 2 N. Y. Leg. Obs. 85. Notice to mayor. Nichols v. Boston, 98 Mass. 39. Police and executive power of mayor. Shafer v. Mumma, 17 Md. 331; Slater v. Wood, 9 Bosw. (N. Y.) 15; Pedrick v. Bailey, 12 Gray (Mass.), 161; Nichols v. Boston, 98 Mass. 39. Alderman acting as mayor. State v. Buffalo, 2 Hill (N. Y.), 434. Judicial power of mayor. See Municipal Courts, post; Prell v. McDonald, 7 Kan. 426; Howard v. Shoemaker, 35 Ind. 111. Presence and functions of mayor at meetings of the council. Mayor proper person to execute lease. Chicago v. English, 80 Ill. App. 163, citing text. See chapter on Corporate Meetings, post. Power of mayor, in his official name, to bring suit to prevent or restrain violations of law by other municipal officers, declared. Genois, Mayor, &c. v. Lockett, 13 La. 545. But quære. The mayor of a city has no incidental power to execute an appeal bond for the corporation; and such a bond was regarded as not even incidental to the power of Liability of mayor in Upper Canada taking an appeal, but must be au- to private actions in respect to his thorized by the council. Baltimore v. official acts. Fair v. Moore, 3 Up. Can. Baltimore & O. R. Co., 21 Md. 50. A C. P. 484; Moran v. Palmer, 13 Up. precept to collect a street assessment, Can. C. P. 450, 528. Fraud of mayor signed by a member of the council restrained and relieved against. Patteracting temporarily as president thereof, son v. Bowes, 4 Grant, 170; Ib. 489; is void, when the statute requires the post, § 1575, note. There cannot be signature of the mayor. Jeffersonville two acting mayors at the same time, v. Patterson, 32 Ind. 140. Injunction and when a mayor pro tem. has been will lie to restrain a sale on such a lawfully appointed and is presiding, precept. Ib. See chapter on Remedies against Illegal Corporate Acts, post. As to nature and extent of authority of mayors and other civil officers to employ force for the prevention or suppression of mobs, riots, &c., see the acts of the regular mayor, done elsewhere, are void. People v. Blair, 82 Ill. App. 570. 2 Detroit v. Moran, 46 Mich. 213. 3 History and nature of office of mayor. Consult 4 Jacob's Law Dict. |