Pollard v. Gregg

• Decision Date: 03 March 1914
• Citation: 90 A. 176,77 N.H. 190
• Parties: POLLARD et al. v. GREGG et al.
• Court: New Hampshire Supreme Court

90 A. 176

77 N.H. 190

POLLARD et al.

v. GREGG et al.

Supreme Court of New Hampshire. Hillsborough.

March 3, 1914.

Peaslee and Plummer, JJ., dissenting.

Transferred from Superior Court, Hillsborough County; Kivel, Judge.

Petition for certiorari by Harvey Pollard and others against Harry A. Gregg and others. Findings by the court were for defendants, and plaintiffs excepted. Exceptions sustained.

The defendants are the police commissioners of the city of Nashua, appointed under chapter 148, Laws 1913. The plaintiffs are the police officers of the city, appointed by the board of police commissioners who preceded the defendants in office. The defendants assumed the duties of their office on September 1, 1913, and at once notified the plaintiffs that they would not be reappointed, and ordered them to leave at headquarters all the property they had belonging to the police department. The plaintiffs reported for duty for several days, but were not allowed to engage in the service, and afterward notified the defendants that they were willing at any time to perform the work of police officers. Subject to exception, the court ruled; in accordance with the defendants' contention, that the notice to the plaintiffs operated to remove them from office.

Wason & Moran, Doyle & Lucier, and George F. Jackson, all of Nashua, for plaintiffs. Remick & Jackson, of Concord, for defendants.

WALKER, J. The plaintiffs' first position is that the statute under which the defendants seek to justify their acts (Laws 1913, c. 148) is of no validity for the alleged reason that it was not legally or constitutionally enacted. It is insisted that the requisite quorum was not present in the House of Representatives when the vote was taken upon the question of its passage. It appears that 405 representatives were elected, and no question is made that that was the number of members of which the House might be composed under the law. It further appears and is conceded, that one of the men elected died before the Legislature convened, that the vacancy thus caused was not filled, and that, of those who qualified upon the organization of the House 3 died, whose places were not filled, one resigned his office, and one was expelled, before the vote upon the passage of the statute in question. The active membership of the House was thus reduced to 399. An examination of the House Journal shows that 201 members voted upon the roll call, when the bill was put upon its passage and that the speaker made declaration that the bill had passed. Upon this state of facts, it is claimed that it conclusively appears that no quorum was present, and that under the Constitution the vote was a nullity. This contention is based upon the proposition that a quorum consists of a majority of all the members elected, and that, as 405 were elected, a quorum must consist of at least 203. If this contention is sound, it is apparent that the statute was not legally enacted. On the other hand, the defendants contend that a quorum consists of a majority of the actual membership of the House at the time the vote is taken, and that, as 6 vacancies had occurred, the membership of the house, from which a quorum is to be reckoned, was 399, of which number 200 would be a majority and a quorum. Upon this theory the bill became a law as 201 voted when the roll was called upon its passage. The question is: Which contention is sound as a matter of law?

It is provided In the Constitution (part 2, art. 19): "A majority of the members of the House of Representatives shall be a quorum for doing business, but, when less than two-thirds of the representatives elected shall be present, the assent of two-thirds of those members shall be necessary to render their acts and proceedings valid." A clear distinction is here made between "the members of the House" and "the representatives elected." The former expression refers to those members elected who are qualified and recognized as constituting the body of the House for the transaction of business, and does not include deceased persons, or persons who have resigned, or who have been removed since their election as representatives. The framers of the Constitution could not have used language more expressive of an intention to provide that a quorum of the House should consist of a majority of the members elected, who, when the point is raised, are not disqualified to act as members. To hold otherwise would be, not to construe the language of the Constitution, but to give it a forced meaning neither necessary nor reasonable. Incidentally it may be noted that the national House of Representatives construes the Constitution of the United States relating to this question in a similar way. See 4 Hinds' Precedents, §§ 2885-2890.

The claim that, when this bill was declared passed, the House was not in session, for the reason that just before its passage there was a roll call on a motion to adjourn, which shows that no quorum was present, cannot be sustained. If it is assumed that the journal shows that fact (a point upon which no opinion is expressed), we are referred to no constitutional provision or any rule of the House that declares that in such an event the House stands automatically adjourned without even a declaration of the speaker to that effect. Cush. Leg. Ass'n, § 361. While it is true that under the Constitution no business of a legislative nature could be done, it does not necessarily follow that an adjournment ensues. If, before there is a declaration of adjournment, a quorum is secured by the arrival of members who were absent, there is no constitutional reason why the session might not continue for the transaction of business; and, as we understand, this is often the method of procedure. And especially must this be so when, as in this case, the journal does not show that any member raised the point, or objected that the House stood adjourned, or that the speaker declared an adjournment. As the only question before us on this branch of the case is one of constitutional law (United States v. Ballin, 144 U. S. 1, 5, 12 Sup. Ct. 507, 36 L. Ed. 321), and as it does not conclusively appear from the journal that that instrument was violated in the passage of the statute under consideration, it must be regarded as having been properly enacted, and as being a valid statute.

The remaining question relates to the construction to be given to the statute. The plaintiffs' position is that, as they were appointed by the board of police commissioners of the city of Nashua in accordance with the provisions of chapter 208, Laws 1891, and as their tenure of office under section 4 of the act continues "during good behavior and while competent to discharge the duties of the office," they still hold their positions, not having been legally removed therefrom, and not having resigned their commissions. It is conceded by the defendants, who constitute the board of police commissioners appointed under chapter 148, Laws 1913, that the plaintiffs were not removed in accordance with the statute of 1891, which gave the commissioners "the right to remove any member of the police force at any time for good and sufficient cause and after a due hearing" (section 4), nor in accordance with the statute of 1913, which is substantially the same (section 6); hut they contend that the statute of 1891 was repealed by the later statute, and consequently that the plaintiffs ceased to be police officers by legislative enactment.

There was no express repeal. The last section of the act of 1913 provides that "all acts or parts of acts inconsistent with this act are hereby repealed and this act shall take effect August 1, 1913." If this section is to be given due weight, it is only such previous statutory provisions as are inconsistent with the new statute that were intended to be repealed. The question of a repeal depends upon a reasonable construction of the two acts. In such particulars, if any, as they are not inconsistent, both statutes are in force, for such seems to be the evident purpose of the Legislature of 1913 clearly indicated by the language used. It is true that by section 2 of the later statute provision was made for a new police commission in each of the municipalities specified, including the city of Nashua. This is practically conceded by the plaintiffs. Section 4 is as follows: "It shall le the duties of said police commissioners to appoint such police officers, constables and superior officers, as they may in their judgment deem necessary, and to fix their compensation." Section 6 provides that "the police commissioners shall have authority to remove any officer at any time for just cause and after due hearing, which cause shall be specified in the order of removal." There is no provision that the appointees of the old board! of commissioners shall cease to be police officers on August 1, 1913, when the act took effect; while the provisions quoted furnish little evidence that such was the purpose of the Legislature. The act does not in terms specify what the tenure of office of policemen shall be, and in this respect it is clear that section 4 of the former act, which defines their tenure of office, was not expressly repealed by the later statute. The term of their employment is unchanged, because there is no inconsistency between the two acts in this respect. They hold "during good behavior and while competent to discharge the duties of the office," unless removed as provided in the statute. The absence of any express language indicating a purpose to revoke and terminate the official authority of the policemen then legally occupying that position in Nashua, in connection with the fact that no necessary inconsistency arises upon this point by giving effect to both of the statutes referred to, is convincing evidence that the Legislature did not intend, by the mere enactment of...