Atty. Gen. v. Representative Council Of City Of Newport., M. P. No. 899.

• Citation: 57 A.2d 730
• Decision Date: 12 March 1948
• Docket Number: M. P. No. 899.
• Parties: NOLAN, Atty. Gen., v. REPRESENTATIVE COUNCIL OF CITY OF NEWPORT.
• Court: Rhode Island Supreme Court

57 A.2d 730

NOLAN, Atty. Gen.,

v.REPRESENTATIVE COUNCIL OF CITY OF NEWPORT.

M. P. No. 899.

Supreme Court of Rhode Island.

March 12, 1948.

Petition for mandamus by John H. Nolan, Attorney General, against the Representative Council of City of Newport to compel respondent council to call a special election to fill a vacancy in the office of mayor caused by death of the incumbent.

Relief granted.

John H. Nolan, Atty. Gen., Archie Smith, Asst. Atty. Gen., and Jeremiah P. Mahoney and Matthew J. Faerber, both of Newport, for petitioner.

Alexander G. Teitz, City Sol., of Newport, for respondent.

CONDON, Justice.

This is a petition for mandamus to compel the representative council of the city of Newport to call a special election to fill a vacancy in the office of mayor caused by the death of the incumbent on January 2, 1948.

The petition alleges that the representative council adopted a resolution on January 6, 1948, acknowledging the existence of a vacancy in the office of mayor and declaring that the charter of the city provided that the chairman of the board of aldermen in such a situation should perform the duties of mayor and that as the chairman was willing to act as mayor no special election need be called. Respondents admit those allegations. The issue between the parties, therefore, is solely one of law. Does the city charter impose upon the representative council the duty to call a special election to fill a vacancy occurring in the office of mayor or is the council vested with discretionary authority in the matter?

The answer to that question involves a construction of secs. 24 and 26 of the city charter, Public Laws 1906, chapter 1392. The pertinent part of sec. 24 provides that the board of aldermen ‘shall elect a chairman who shall preside and perform the duties of the mayor in case of the absence or inability of the mayor to act.’ The provision of sec. 26 which is involved reads as follows: ‘In case of vacancy in the office of mayor or of any member of the board of aldermen the representative council may call a special election to fill the vacancy.’

Respondents contend that sec. 26 clearly vests them with discretionary authority by virtue of the legislature's use of the word ‘may’ therein instead of the word ‘shall’ and therefore there is no need to construe sec. 24. However, they further argue that should this court deem it necessary to construe that section it is plain that the words thereof, ‘in case of the absence or inability of the mayor to act’ comprehend a vacancy in that office.

We think that it is necessary to know the scope of sec. 24 in order to determine whether it is reasonable to construe sec. 26 as vesting in the respondents a discretionary authority rather than an obligatory duty. It could well be that if sec. 24 comprehends a vacancy in the office of mayor so that the duties thereof could be lawfully performed by the chairman of the board of alderman as the acting mayor, it would not be unreasonable to construe sec. 26 as vesting respondents with discretionary authority to call a special election. On the other hand, if sec. 24 does not comprehend a vacancy the city would be left without anyone lawfully authorized to exercise those duties. In that case it would be clearly unreasonable to construe sec. 26 as respondents contend.

We cannot agree with respondents' contention that, ‘In the strict sense of the words, a mayor who has died is certainly absent and incapable of acting.’ In legal terminology a dead person is not spoken of as merely absent. Only figuratively are the dead spoken of as absent. Absence connotes that a person is in being but not present in some particular place, and not that he has departed this life. Respondents cite no authority for their position except to point out that, in Gelinas v. Fugere, 55 R.I. 225, 180 A. 346, this court has said that absence in a statute of this general type should be reasonably and not literally construed. That case did not involve a vacancy in the office of mayor. It concerned a mere temporary absence of the mayor from the city of Woonsocket for a few hours. Such absence, we held, was not one contemplated by the legislature in providing that the president of the board of aldermen should act in the absence of the mayor. In the circumstances of that case we found that the mayor was not absent and in doing so stated that the word ‘absence’ should be given a reasonable construction. Obviously that case is not in point here.

We have found no case which holds that a vacancy caused by death is governed by a provision relating to the mere absence of the incumbent or his inability to serve. Petitioner, however, has cited a cause almost on all fours to the contrary. Babbidge v. City of Astoria, 25 Or. 417, 36 P. 291, 42 Am.St.Rep. 796. As far as we are aware that case is in the current of authority. However, apart from authority, we are of the opinion in the case at bar that, on reason, it is clear that the legislature did not intend by sec. 24 to provide against the contingency of a vacancy in the office of mayor when it provided that the chairman of the board was to perform the mayor's duties in case of his absence or inability to act.

We are confirmed in this view by a comparison of the provision of the present charter with a provision covering this matter in the earlier charter, P.L. 1875, chap. 454, sec. 4, as amended by P.L. 1878, chap. 657, section 1. Originally the legislature provided that there should be a president of the board of aldermen, ‘who, in the absence of the mayor from the city, or in case of his death or disability, shall exercise for the time being all the powers and duties of the mayor.’ (Italics ours) The words which we have italicized show a clear recognition by the legislature of the distinction between death and a mere absence. They are not treated as synonymous. They are referred to disjunctively, and in adopting such phraseology the legislature was following the language of our state constitution governing similar situations which might arise thereunder. Article VII, secs. 9 and 10, and article of amendment XIV, sec. 2. When the legislature amended the charter in 1906 it eliminated the italicized words and restricted the power of the chairman of the board of aldermen to act as mayor only ‘in case of the absence or inability of the mayor to act.’ The elimination of the word ‘death’ is significant. We cannot treat it as a legislative oversight and supply the omitted word. Where the legislature in amending an act thus purposely omits words in the amended act the court has no authority to supply the omitted words. State v. Dobry, 217 Iowa 858, 250 N.W. 702; Morse v. City of Boston, 253 Mass. 247, 148 N.E. 813.

We are, therefore, of the opinion that sec. 24 does not authorize the chairman of the board of aldermen to perform the duties of the mayor in the case of a vacancy in that office created by the mayor's death. We find no other provision in the charter which authorizes the chairman or anyone else to act as mayor in case of a vacancy. Such a contingency appears to have been provided for only by sec. 26. Therefore, unless a special election is called in accordance with that provision, the special powers vested in the mayor cannot lawfully be exercised by anyone. In so holding we pass no judgment on the act or acts of anyone who has assumed the exercise of such powers since the death of the mayor. That question is not now before us.

We now come to a consideration of the character of the power conferred upon the representative council by sec. 26. The key to the solution of that question is the meaning of the word ‘may’ in that section. The usual and ordinary meaning of the word is permission and not compulsion. However, it is not always and necessarily given that meaning in the construction of statutes. It is sometimes construed as ‘shall,’ ‘but whether in any given case it has the meaning of may, or shall, depends on the intent of the legislature, to be ascertained from the context and design of the statute.’ Moies v. Economical Mutual Life Ins. Co., 12 R.I. 259, 262. The ascertainment of such intent is always the primary purpose of statutory construction and it is to be found from a consideration of the language, the nature and the object of the statute. State v. Muldoon, 67 R.I. 80, 20 A.2d 687. In the instant case we must apply that cardinal canon of construction to the whole charter in order to determine if the legislature meant by the use of ‘may’ in sec. 26 to leave it entirely to the discretion of the representative council whether the city of Newport, in the event of the death of the mayor, should be left without anyone lawfully authorized to exercise the special powers of mayor.

The nature and object of P.L. 1906, chap. 1392, is manifest on its face. It provides a special and distinctive from of city government for Newport and secures to the several classes of qualified electors of that city the right, in varying degree, to participate in the choice of officers charged with the conduct of such government. When that statute was passed the state constitution did not permit registry voters to vote in the election of the city council of any city. Article of amendment VII, section 1. Consequently the statute provided such voters with the right to vote only for the office of mayor and school committee. Only the property voters could vote for members of the board of aldermen and the representative council. As far as the legislature was able to do so it secured to the registry voter some right to participate in the choice of officers of the city government by thus according them the right to vote for mayor. Without that right registry voters would have been disfranchised as far as such government was...