Cate v. Martin

• Decision Date: 16 March 1900
• Citation: 46 A. 54,70 N.H. 135
• Parties: CATE v. MARTIN et al.
• Court: New Hampshire Supreme Court

46 A. 54

70 N.H. 135

CATE

v. MARTIN et al.

Supreme Court of New Hampshire. Merrimack.

March 16, 1900.

Petition by Ross W. Cate for mandamus against Nathaniel E. Martin and others. Granted.

See 45 Atl. 644.

John W. Sanborn was declared elected an alderman of Ward 2 of the city of Concord at the municipal election in November, 1898. His election was contested by the plaintiff, who claimed to be elected, instead of Sanborn, and a hearing was had before the alder-manic board January 31, 1899. At this hearing the following resolutions were adopted by a majority vote of the aldermen: "Resolved, that Ross W. Cate, having received a plurality of the votes cast for alderman in Ward 2 in said city, at an election held on the eighth day of last November, is entitled to a seat in this board, and John W. Sanborn, not having been elected at said election, is not entitled to a seat in this board. Resolved, that the clerk is instructed to strike out of his records the name of John W. Sanborn, as alderman from Ward 2, and substitute in place thereof the name of Ross W. Cate, and further to notify said John W. Sanborn and said Ross W. Cate of this resolution at once." The mayor vetoed the resolutions. On the question of their passage over the veto, eight aldermen voted in the affirmative, and six in the negative; but less than two-thirds of the aldermen elected having voted in the affirmative, as required by section 7, c. 47, Pub. St., the resolutions failed to pass. At a meeting of the mayor and aldermen on February 14, 1899, Alderman Dudley presented a paper, signed by six members of the board, protesting against the right of John W. Sanborn, of Ward 2, to act as an alderman from said ward; also, another paper setting forth that Ross W. Cate had taken the oath of office as alderman before R. E. Walker, justice of the peace. It was duly moved that said papers be placed on file, and the motion was carried. The mayor vetoed the action of the board, and the motion failed of a passage over the veto; six aldermen voting in the affirmative, and four in the negative. The clerk did not notify Cate that he was declared elected, nor Sanborn that he was declared not elected. Cate was at the hearing, and the mayor understood that be then claimed to be entitled .to the seat. He was not present when the resolutions were passed. Since the resolutions were vetoed, and prior to the bringing of this suit, Cate had made no claim, except as above, to the mayor, to the city clerk, or to Sanborn, that he should be allowed to exercise his rights as an alderman. He has not presented himself to take his seat at any meeting of the board, nor requested the mayor to recognize him as an alderman, since the resolutions were vetoed. In vetoing these resolutions the mayor acted in good faith; believing that the ballots, as they existed on the day of the election, showed that Sanborn was legally elected. If, upon the foregoing facts, Cate is entitled to his seat in the board of aldermen, the mandamus should issue; otherwise, it should not.

Streeter, Walker & Hollls, for plaintiff. Eastman & Hollls and Martin & Howe, for defendants.

BLODGETT, C. J.The statutory scope of the veto power conferred upon the mayors of cities in this state is found in section 7, c. 47, Pub. St., which provides that "he shall have a negative upon the action of the aldermen in laying out highways, and in all other matters; and no vote can be passed or appointment made by the board of aldermen over his veto, unless by a vote of two thirds at least of all the aldermen elected." While this sweeping language, standing alone and taken by itself, is apparently plain and explicit, its interpretation, nevertheless, does not depend upon any one rule alone; for statutes, like all other written instruments, are to be interpreted by the weight of competent evidence, a part of which may bear more or less strongly in a given direction, and another part in a different direction, thus making the result dependent upon the product of both combined. In other words, the primary object in construing statutes being to ascertain the intention of the legislature in their enactment, resort is to be had to their language, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law. In the light of these rules, and conceding, as the defendants claim, that a municipal council is largely sui generis, and its powers to be construed accordingly, we are of opinion that the defendants' contention that the veto power of a mayor extends to and embraces a decision of the board of aldermen as to the election of one of its members cannot be sustained. Further than this we are not required to go; for whatever the language of the statute giving the mayor a negative "upon the action of the aldermen in laying out highways, and in all other matters," may mean, and whether it would or would not be competent for the leg islature to give to the executive of a city a veto upon the action of the legislative branch of the city government sitting as a court in the performance of a judicial duty, it is enough to satisfy the present contention if the decision of a contested election case by the aldermen is not embraced in the phrase "in all other matters," and, in support of the conclusion that it is not we cannot but regard the evidence as decisive. The mayor of a city is not an alderman or councilman of the city, in any general or proper sense of those terms. He is designated in the statutes as the "principal officer" and the "chief executive" of the city. Pub. St. c. 413, § 3; Id. c. 47, § 5. And both properly and primarily his duties are executive and administrative. Martindale v. Palmer, 52 Ind. 411, 413; Jacobs v. Board, 100 Cal. 121, 135, 34 Pac. 630. He is not a member of either branch of the city councils, unless expressly made such by law. Tied. Mun. Corp. § 96. And when this is the ease it is "to the extent of such powers as are specially committed to him, and no further, that he is a part of the city council." Brown v. Foster, 88 Me. 49, 33 Atl. 622, 31 L. R. A. 116; People v. Ransom, 56 Barb. 514, 516; Mills v. Gleason, 11 Wis. 470. 476; State v. Porter, 113 Ind. 79, 14 N. E. 883. He is "not one of its own members in the sense in which an alderman is." Garside v. City of Cohoes (Sup.) 12 N. Y. Supp. 192, 195; Winter v. Thistlewood, 101...