62 So. 847 | Ala. | 1913
— New Decatur is a city of more than 6,000 and less than 20,000 inhabitants. It is divided into four wards. Each ward is represented in the council by two councilmen. The first question presented for decision by this case is whether the president of the city council has a right to vote when the city council comes to fill a vacancy occurring in its own membership. His franchise in such case must be found in section 1064 of the Code as amended by the Act of August 20, 1909. Special Session Acts 1909, p. 100. We quote the necessary part of the act: “In cities having a population of six thousand or more, at each general municipal election,- there shall he elected the following officers, 'who shall compose the city council for such cities, * * * and who may exercise the legislative functions of city government and any other powers and duties which are, or may be, vested by law in the city council or its members: A president of the city council; and in cities having seven wards or less, two aldermen from each ward, to be elected by the qualified voters of the several wards voting separately in every ward.” For cities having less than 20,000 inhabitants and more than seven wards, a different provision is made. The section concludes: “Vacancies in the office of aldermen shall be
But counsel for appellee, habitually resourceful, ingenious, and plausible, argues, to state his position without embellishment, that in every case the right to act as elector must be expressly conferred and not be left to implication; that a man cannot vote in a council who is not a councilman; that the existence of the voting power in the president of the council would thwart the manifest design of the statute by giving the ward fortuitously favored by his residence an undue preponderance of authority. To point his argument, he then notes that the Code, as amended by the act of August 25,1909 (Sp. Sess. Acts, p. 198), makes the mayor, a part of the council in cities and towns of less than 6,000, providing that in such cases “the legislative functions shall be exercised by the mayor and five aldermen; the mayor shall vote with and preside over the deliberations of the council ;” and adds authorities which show that the mayor is a member of the council only when made so by the charter or legislative act applicable, and, when this is the case, it is to the extent of such powers as are specially committed to him, and no further, that he is a part of the council.
We may admit every premise of appellee’s syllogism without feeling any constraint to his conclusion that
The question whether the president of council shall be regarded as a member of council, or councilman, with power to vote, is one of legislative intent. The legislative intent is not to be discovered by focusing the attention upon the presence or absence of a single word. It must be reached by a comprehensive view of the statute as a whole. It is Avithin the power of the Legislature to confer on the president of council the functions of a member of the council in every respect, and if the legislation on the subject calls for such a construction he must be regarded as a councilman, though by reason of his added power and dignity he be appropriately referred to as the president of the council. 2 Dillon Mun. Corp. § 513. We have stated our judgment as to the proper construction of the statute in question.
When the council met to fill the vacancy in its membership, there were present the president presiding and
Nor can we agree with appellee that the presence of the president of the council without voting on the first ballot ought to be held for a concurrence with the ma-' jority of the members voting on that ballot so as to constitute that majority a majority of the members elected to the council. An able commentator on the law of municipal corporations has said: “Where the statute requires the affirmative action of a majority of the entire board, or a majority of the members present, a refusal to vote may result in defeating the proposition because in such case affirmative action is required and those who refuse to vote cannot be counted on the affirmative side, under such a specific statutory requirement, and the proposal before the council may be defeated by lack of the affirmative majority required by the statute.” 2 Dillon Mun. Gorp. (5th Ed.) § 527. Judge Dillon has also said that: “The nature and effect of a blank ballot cast by a member of the city council at an election for an officer has been before the courts for consideration, and the weight of authority and, as we think, the better view is that the blank ballot is a mere nullity; that it cannot be counted for or against either of the candidates voted for. * * It has, however, been pointed out that the rule that blank ballots are nullities and can have no application when the statutes require the affirmative action of the majority of the entire body or. a majority of all the members present.” Section 328. In this case there is an unmistakable requirement of affirm
On the facts alleged in his return to the writ, the respondent is entitled to exercise the powers, rights, and privileges of the office he has assumed to hold, and the trial court’s conclusion to the contrary on the demurrer was error.
^Reversed and remanded.