119 Iowa 423 | Iowa | 1903
The defects in the proceedings of the city council which are sought to be reviewed relate to the legality of the meeting at' which the resolution for extension was passed, the neglect and failure of the mayor and city clerk to sign the resolution, and defects in the notice for the election to be held on the question of extension. The facts, as gathered from the petition, are that at a regular meeting of the council held on September 3, 1900, a resolution for the extension of the city limits was adopted. The council then adjourned until September 5th. On that date the following record was made: “Council met
There is no provision in our law in any manner limiting: the business which maybe considered at a special meeting.. Such a meeting may, under our Code, section 688, be called by the mayor or any three members of the council, and at such called meeting any legitimate business may be considered. If all the members attend such meeting, failure to give notice thereof is entirely immaterial. • Hanna v. Wright, 116 Iowa, 275. Treating the adjournment on September 5th as irregular, the pleadings nevertheless show a meeting of the council on September 8th, which we must presume, in the absence of allegations to the contrary, was attended by all the members of the council. This meeting although special, could be adjourned to a fixed date by a quorum, and, wl en so adjourned, the adjourned meeting will be treated as a continuation of the one which was
There is a broad distinction between a requirement that the mayor shall sign ordinances simply as a means of authentication and a requirement that he shall sign as an evidence of his approval. The former requirement may well be said to be ministerial and directory only, while the latter is undoubtedly mandatory, and plainly intended, as a check against hasty, unwise, and inexpedient legislation. Chicago, R. I. & P. Ry. Co. v. City of Council Bluffs, 109 Iowa, 425; People v. Schroder, 76 N. Y. 160; Shea v. City of Muncie, 148 Ind. 14 (46 N. E. Rep. 138); Blanchard v. Bissell, 11 Ohio St. 96. The approval must
But it is contended that, as the ordinance was signed by the temporary chairman of the meeting, this is suffi. cient. No doubt the legislature might, in its wisdom, confer the veto power upon the acting mayor or presiding officer. O'Mally v. McGinn, 53 Wis. 353 (10 N. W. Rep. 515); Saleno v. City of Neosho, 127 Mo. 627 (30 S. W. Rep. 190, 27 L. R. A. 769, 48 Am. St. Rep. 653). But it has not done so in this state. Perhaps — although we do not decide this point — the temporary chairman might authenticate the ordinance recorded in the ordinance book under section 668, before referred to, but he is given no veto power. That is expressly lodged in the mayor. See City of Leavenworth v. Douglass, 3 Kan. App. 67 (44 Pac. Rep. 1099). The temporary chairman is simply the presiding officer for the time being, and is not vested with all the powers of the mayor.
According to the allegations of the petition, which must be accepted as true, the mayor .was absent when the resolution was passed, and the same, was never presented to him for his signature. Nor was it even signed by him. Under section 685 of the Code, he had fourteen days within which to veto or allow it to become a law without his signature. Notwithstanding these facts, the resolution was at once signed by the temporary chairman and clerk, and recorded, and on September 14th published as required by law. Notice of election as provided by law was also published on September 14, 21, and 28, and October 5, 1900. . And the election was held on October 15, 1900. There is no authority for publishing a resolution before it becomes effective, and the law required publication for four consecutive weebs in some newspaper before the matter could be submitted to the electors. Code, section 615. Until the resolution became effective, there was no authority for any publication. The resolution d'l not have vitality until
Moreover, the statute expressly requires the clerk to vecord the resolution, if the mayor has refused to sign it at the end of fourteen days, in the ordinance book, “with .•a minute of the fact, making it operative.” This was not done. On the contrary, acting on the assumption that the mayor had no voice in the matter, the resolution was immediately recorded as if operative, and the council pro-needed without reference to the mayor’s rights or duties. Indeed, it does not appear that he was ever requested to ■sign it, or to give it any further attention than to call an election. He cannot thus escape the duties of his office. Those who elected him are entitled to his deliberate judgment as to the advisability of the proposed action properly :and legally expressed, and the other members of the council should not be permitted to hurry a matter through without giving the mayor the time and opportunity provided by the statute for the exercise of his prerogatives. Any other rule would be fraught with great danger, and be provocative of intolerable mischief. But it is said that the mayor approved the ordinance when he directed and signed the call for the election. Doubtless, he made up his mind that it was his duty to call the election, but he did not approve the resolution in the manner required by statute. We have seen that the statute is mandatory. So treated, it is manifest that no other form of approval than that provided by statute is good. If the statute were directory, a different question might arise. But it is not, and it wdl not do to say that some other form of approval will suffice. Whitney v. City of Port Huron, 88 Mich. 268 (50 N. W. Rep. 316, 26 Am. St. Rep. 291). It is held in Ashley v. City of Newark, 25 N. J. Law, 399, that a formal presentation to the mayor for his approval or veto must be made or shown. See also Babbidge v. City of Astoria, 25 Or.
III. The other alleged defects in the notice of election need not be considered, as what we have said disposes of the case.
The defendant council undoubtedly acted illegally, and the ruling on the demurrer is aeeirmed.