166 Mass. 318 | Mass. | 1896
The St. 1893, c. 361, is the charter of the city of Waltham, and § 24 of this chapter is as follows: “ The board of aldermen shall, subject always to the approval of the mayor, have exclusive authority and power to order the laying out, locating anew, and discontinuing of and making of specific repairs in all streets and ways and all highways within the limits of the city; to assess the damage sustained thereby by any person, and, except as herein otherwise provided, to act in matters relating to such laying out, locating anew, altering, discontinuing, or repairing. Any person aggrieved by the action of the board of aldermen hereunder shall have all the rights and privileges now by law in.similar cases allowed in appeals from decisions of selectmen, but there shall be no appeal from a decision not to lay out a way.” By § 57 of the same statute,the general laws requiring the approval of the mayor to the doings of a city council, or of either branch thereof, and relative to the exercise of the veto power by the mayor of a city,” are given “ full force, application, and effect in said city.”
These general laws are found in Pub. Sts. c. 28, § 6; c. 29, §' 7. The principal question in these cases is whether thé words “ subject always to the approval of the mayor,” in the section quoted above, mean subject to his approval in like manner as ordinances, ordinary orders, resolutions, and votes passed in concurrence by both branches of the city council, and orders of either branch involving the expenditure of money, are subject to the approval of the mayor under general laws, or whether they mean subject absolutely to his approval in such a sense that no acts of the board of aldermen in reference to laying out, locating anew, or discontinuing streets or ways, or making specific repairs upon them, can take effect unless the mayor gives them his approval. The considerations upon the opposite sides of this question are very nearly evenly balanced, but we are inclined to the opinion that the Legislature did not intend by this provision to make the proceedings of the board of aldermen, in regard to these important matters, subject absolutely to the will of the mayor, without requiring him to take formal action in any case, or to do anything more than to indicate his disapproval by his silence. It is to be observed that the tribunal exercising original jurisdiction in these matters sits in a quasi judicial capacity,
The construction of the statute contended for by the respondent would give the mayor powers partly legislative, and partly judicial, to be exercised in a manner unusual in our system of government. If it had been intended that the mayor should
'If the words gave the mayor an absolute right to veto by silence, or made each order of the board of aldermen a nullity until it was formally approved by the mayor, they would be at variance with § 57 in their application to orders involving the expenditure of money, which by this section are subject to the general veto power of the mayor that leaves a right in the board of aldermen to pass them by a two-thirds vote, notwithstanding his veto.
The statutes requiring the mayor’s approval of certain acts of a city council as a condition precedent to their taking effect are, for the most part, very different from this. See Sts. 1891, c. 370, § 2; 1892, c. 166, § 1; 1894, c. 428, § 6. We have found but one that seems analogous to it, and that relates to a subject much narrower than this. See St. 1892, c. 418, § 5. Language similar to that now under consideration has been used in several other city charters, but in none of them has it received judicial interpretation. See Sts. 1892, c. 324, § 22; c. 355, § 23; 1893, c. 378, § 22; c. 444, § 20 ; 1894, c. 161, § 21; 1895, c. 148, § 23; c. 302, § 19.
Under our construction of the statute, each of the orders under consideration took effect upon the failure of the mayor to return it to the board of aldermen within ten days after it was presented to him. It therefore became the duty of the mayor to take action under each of them, and, upon the issues made up, a writ of mandamus should issue in each case commanding him to do so. In the case relative to repairs upon Oak Street, inasmuch as the order is merely an appropriation of a certain sum, with a requirement that it be expended by the superintendent of streets under the direction of the mayor, there is such an element of discretion entering into the execution of the order that the writ can only command the mayor to proceed to direct the expenditure upon the designated part of the street in such a way as to him seems best.
Writs of mandamus to issue.