Brown v. Foster

• Decision Date: 29 May 1895
• Citation: 33 A. 662,88 Me. 49
• Parties: BROWN v. FOSTER.
• Court: Maine Supreme Court

33 A. 662

88 Me. 49

BROWN

v. FOSTER.

Supreme Judicial Court of Maine.

May 29, 1895.

(Official.)

Exceptions from supreme judicial court, Kennebec county.

Petition by Frank E. Brown against Dana P. Foster for mandamus to compel the surrender of books, papers, and records appertaining to the office of city clerk of the city of Waterville. To the issuance of the writ, respondent excepts. Overruled.

S. S. Brown, for petitioner.

Reuben Foster, Dana P. Foster, and W. C. Philbrook, for respondent.

PETERS, C. J. The only question sought to be settled by this proceeding of mandamus is whether the mayor of the city of Waterville is entitled by the provisions of the charter of that city (Priv. & Sp. Laws, 1887, c, 195) to vote with the aldermen and councilmen in joint convention in the election of subordinate city officers (in the present case, in the election of a city clerk), besides having the casting vote in such election in case of a tie.

The case comes to us upon exceptions to the ruling of the justice of this court who tried the action, and who decided that the mayor had no such right as was claimed and exercised by him, the learned justice making at the time the following oral observations in support of his conclusion:

"It appears that eleven members of the city council in joint convention voted for the petitioner for city clerk, and ten for the respondent. Thereupon the mayor claimed the right to vote, and did vote, for the respondent who now claims that no person received a majority of all the votes, and hence there was no election for city clerk.

"In determining the mayor's right to vote under these circumstances, recourse must first be bad to the city charter of Waterville. It is provided in section two of this act of incorporation that the 'mayor, board of aldermen and common council shall constitute the city council.'

"Section three provides that the mayor 'shall preside in the board of aldermen and joint meetings of the two boards, but shall have only a casting vote.' It is further provided in the same section that the 'city council may elect the mayor to any city office and allow him a reasonable compensation for service rendered in such office'; while by section seventeen the aldermen and common council are declared to be ineligible to any office of profit or emolument the salary of which is payable by the city.

"Section six provides that 'all officers of the police and health departments shall be appointed by nomination by the mayor and confirmed by the aldermen. * * * All other subordinate officers shall be elected by joint convention of the city council.'

"These provisions of the charter must be construed with reference to the general policy of our law respecting municipal government, and in the light of the familiar rule of construction that, as the different parts of a law reflect light upon each other, it should be so expounded, if practicable, as to avoid any contradiction or inconsistency, and give some effect to every part of it.

"The provision that the mayor 'shall preside in the board of aldermen and joint meetings of the two boards, but shall have only a casting vote,' is found in precisely the same language in every city charter in the state from its early history to the present time; and, with the exception of the express mention of the mayor as one of those constituting the 'city council' of Waterville, all the other provisions relating to the point under consideration are essentially the same in all other charters as in the Waterville charter. It has been the obvious policy of the state to provide in their charters for annual city elections, and...