Attorney Gen. v. Remick

• Decision Date: 28 July 1904
• Parties: ATTORNEY GENERAL ex rel. ANDREWS v. REMICK.
• Court: New Hampshire Supreme Court

58 A. 871

73 N.H. 25

ATTORNEY GENERAL ex rel. ANDREWS

v. REMICK.

Supreme Court of New Hampshire. Strafford.

July 28, 1904.

Transferred from Superior Court.

Information in the nature of a quo warranto by the Attorney General, on the relation of one Andrews, against Harry H. Remick. Facts found by the superior court, and questions of law arising thereon transferred to the Supreme Court. Judgment of ouster against defendant.

The defendant was duly elected city clerk on the third Tuesday of March, 1903, and, having qualified therefor, entered upon the performance of the duties of the office. On the third Tuesday of March, 1904, the city council failed to elect a city clerk to succeed the defendant. At a regular meeting of the council, held March 22, 1904, it was voted to proceed to elect a city clerk. The mayor vetoed the vote, and no further action was taken in regard to the matter at that time. The meeting adjourned to March 25th, when the same vote was passed and vetoed by the mayor. After a motion to adjourn was defeated, a councilman again moved to proceed to the election of a city clerk. The mayor ruled the motion out of order, and no appeal was taken therefrom. A motion to adjourn was again defeated, and another motion was then made to proceed to the election of a city clerk. The mayor refused to put the question, and a councilman thereupon attempted to do so; six councilmen voting in the affirmative, and the other four not voting. The councilman putting the question was called to order by the mayor two or three times. The mayor then left the room, accompanied by four of the councilmen and the clerk, and did not return again that day. As he left the platform he said: "This meeting is adjourned." The six councilmen remaining, after electing a chairman and temporary clerk, voted "that the office of city clerk be and hereby is declared vacant." Thereupon they voted to proceed to the election of a city clerk, and elected Andrews to that office. No rules of procedure had been adopted by the council.

Samuel W. Emery, for plaintiff.

John S. H. Frink and William F. Russell, for defendant.

WALKER, J. One of the powers conferred upon the mayor by the charter of the city of Somersworth is that of presiding "in the meetings of the city council." Laws 1901, p. 691, c. 209, § 1. The nature and extent of his authority as the presiding officer of the council, in the absence of rules of procedure adopted by the council and of statutory provisions upon the subject, can only be determined by such principles of parliamentary usage as have been generally adopted or observed in deliberative assemblies, and which are reasonably essential to the due execution of the legitimate business of the council. Hiss v. Bartlett, 3 Gray, 408, 475, 63 Am. Dee 708; Cush. Leg. Assem. § 792; 1 Dill. Man. Corp. § 288; Reed, Parl. Rules, §§ 1, 56. The presiding officer represents the assembly in determiniug and declaring its will upon matters properly before it. If it has adopted rules of procedure which are legally unobjectionable, it is his duty to apply and enforce them. If it has not enacted a code of rules, he is still bound by the legally expressed will of the assembly, ascertained from competent evidence. His power is not ordinarily absolute and original, but qualified and derivative. It is his duty to declare the will of the body over which he presides, ascertained by rules previously adopted, or, in the absence of such rules, by other methods not repugnant to the due and orderly procedure of a deliberative body. In the latter case it may happen that general parliamentary usage affords in the particular instance the only practical method of ascertaining and declaring the legislative purpose. While it may be true that the city council of Somersworth is not bound by parliamentary law as recognized and applied in the state Legislature or in Congress (Hill v. Goodwin, 56 N. H. 441, 447, 453), it is nevertheless a legislative body; and its legislative acts, if valid, must be disclosed in a manner consistent with legislative procedure. "It is important that the will of the lawmakers be clearly expressed, but it is also essential that it be expressed in due form of law." Cooley, Const. Lim. (7th Ed.) 180.

If all the members should sign a writing declaring their assent to a proposed ordinance, without other formality, the ordinance would not be adopted, because no legislative action was taken; and the presiding officer could not ascertain the will of the board, and declare the same, from nonlegislative evidence of that character, however conclusive such evidence might be of the individual wishes of the members. It is obvious that at the meetings of March 22d and 25th, the city council, including the mayor in his capacity of presiding officer, was not independent of all rules of procedure, or that its acts can be found to be legal, if adopted through methods not reasonably adequate to the expression of the legislative will.

Whether the defendant has a legal title to the office of city clerk, which is the question raised by this proceeding, depends upon the question whether the relator was legally elected to that office at the meeting of the council of March 25th. It is conceded that the defendant was duly elected city, clerk in March. 1903, for one year, and that he thereupon legally assumed the duties of the office, which he has ever since performed. Nor is it contended that he was not authorized to perform the duties of the office after the failure of the city council to elect a clerk in March, 1904; for the charter provides that his "term of office shall continue for one year and until another shall be chosen and qualified to act in his stead, removable, however, at the pleasure of the city council." Laws 1901, p. 692, c. 209, § 5. It is plain, therefore, that be was the legal city clerk until the relator was declared elected on March 25th. Up to that time no action had been taken affecting his official title. The meeting of the council on that day was a legally adjourned meeting; but the position of the mayor and four of the councilmen was that a successor to the defendant as clerk could not be elected at that meeting, while six of the councilmen took the opposite position. But it is unnecessary to decide this controversy, for before the mayor withdrew from the meeting no one had been elected city clerk in the place of the defendant. Upon the construction most favorable to the defendant, it had merely been determined not to proceed at that meeting with the election of a city clerk under existing circumstances, and not to adjourn until some further business had been attempted. The office of city clerk was still filled by the defendant.

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