132 Mo. App. 247 | Mo. Ct. App. | 1908
(after stating the facts). — It is the contention of the defendant that by the language of the act the president of the common council is expressly constituted a member, with limited powers. A reading of section 3, define his powers and duties, in so far as he may act in a legislative capacity. He can only vote at a meeting of the council in cases where a tie in the vote of the members occurs. But we do not think that alone would constitute him a .member of the council. So far as legislation was concerned the president was merely the presiding officer of the council.' If he was not a member it is conceded that the ordinance was not legally enacted.
As to the question whether the president was a member of the council we call attention to a certain decision which we think is conclusive. In Mills v. Gleason, 11 Wis. 493, the tax was objected to because it was not levied by a two-thirds vote as required by the charter. It was levied by a two-tliirds vote of the aldermen but not of the council including the mayor. The charter provided that the common council shall consist of the mayor and aldermen, etc. It provided that a vote to levy a tax shall be passed by two-thirds of the “members elect,” and it was therefore claimed that the mayor should be counted in making up the members, of which two-thirds is requisite. The court held that the provision related to the aldermen only; and that “They are elected as members of the council, and as nothing else; they act and vote on all questions,
Therefore it did not matter whether the absent member was counted or not there was not a majority of the members present voting for the ordinance as there was only four members voting in its favor not counting the president. The determination of the point leaves the defendant without any case on his appeal, and it is therefore useless to examine into the other question presented for our consideration. Affirmed.