People ex rel. Churchyard v. Board of Councilmen

—The relator is one of the police commissioners of the city of Buffalo; his salary was fixed under and in pursuance of chapter 379, Laws of 1892, adopted by the legislature and approved by the governor of the state April 27, 1892. This act provides that: “ The commissioners of police shall receive such annual salary as may be fixed by the common council at a joint session thereof, and the said common council shall, immediately upon the passage of this act, determine the amount of such salary.” This act is an amendment of § 184, Laws of 1891, approved by the governor March 27, 1891, commonly known as “ The revised charter of the city of Buffalo.” The council met in joint session and determined that the salaries of the commissioners be fixed at the rate of $8.000 per annum, .beginning May 6, 1892, the date of the joint session. After its action, said determination was presented to the mayor of the city for his approval, and was by him returned to the board of aldermen without approval, accompanied by a veto message reciting his objections thereto. The board of aldermen declined to take action thereon and adopted a resolution directing that a warrant for the payment of relator’s salary be drawn in accordance with the determination of the joint session. When this action was reported to defendant it adopted a resolution disapproving of said action and refused assent to the warrants so drawn ; this refusal led to the making of the order-appealed from. By stipulation the questions presented by this appeal are limited to three. The opinion delivered by the learned judge at special term, to my mind, satisfactorily answers all the objections raised, and, ordinarily, further discussion would be-deemed unnecessary, but as one question is pertinaciously and confidently argued on this appeal, a further discussion of it is not deemed out of place. It is formulated in these words: “ That the action of the joint session of the common council in fixing the salaries in question was subject to the veto power of the mayor.”

In disposing of this question a consideration of the veto power, its history, purpose and growth, may aid us in arriving at a correct solution. The word “ veto ” is of Latin extraction, and literally translated reads >“ I forbid,” or “ I deny.” These words have-a singularly ominous sound when they are applied in a democratic government, and at once call attention to the fact, and challenge-the authority,

There are, in constitutional governments, two fundamental theories upon which the grant of the power of veto rests; first,, to preserve the integrity of that branchxof government in which-the vetoing power is vested, and thus maintain an equilibrium of governmental powers; second, to act as a check upon corrupt or hasty and ill-considered legislation. These theories have entered into all debates touching the power. The right, when given at all, is usually lodged in the .executive branch of government. Borne vested it in the Tribunes, and the salutation, “ I forbid,” *155pronounced by a tribune, stationed at the door of the Boman senate, meeting a bill, nullified it. The crown, in England, possesses the same power. French philosophers exhausted their learning and ingenuity upon the Constitution of 1791, and saw it fall apart for the reason, among others, that the king possessed the power of suspension of legislation, unless adopted by three successive assemblys. The Spanish king might twice refuse his sanction to the action of the cartes before it could find a place in the law, under the Constitution of 1812, and the Norwegian Constitution of 1814 was like it in this respect. The early colonial legislatures felt the same power, both from crown and governor, for it was the practice of the latter to have money orders in his favor injected into or accompany bills to be signed, so that he might receive the former at the time or before he signed the latter, accompaniment was much preferred; while the grievance against the crown found expression in the declaration : “ He has refused his assent to laws the most wholesome and necessaVy for the public good.” It was thought by Blackstone that this absolute power of veto was needful for equilibrium, and so he wrote: 11 Here, then, is lodged the sovereignty of the British Constitution ; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom or power. If it were lodged in any two of the branches; for instance, in the king and house of lords, our laws might be providently made and well executed, but they might not always have the good of the people in view; if lodged in the king and commons, we should want that circumspection and mediatory caution which the wisdom of the peers is to afford; if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded that nothing can endanger or hurt it but destroying the equilibrium of power between one branch of the legislature and the rest.” Blackstone’s Commentaries (Chase), 17.

It is to be noticed in this connection that the British constitution makes the crown a constituent part of the legislature which does not find place in this government. The truth of the statement that one generation has not foresight sufficient to legislate for the next finds vivid confirmation from this quotation, for it remains as the fact that since 1692 the right of veto by the crown has not been exercised, and it is asserted by some writers that its exercise at this day would lead to a revolution.

The veto power was' regarded with great distrust and disfavor by the framers of our government, both state and national, and . *156its right of exercise is by no means universal now. Only one of the original state constitutions, Massachusetts, gave even a qualified veto, while the articles of confederation withheld it entirely,,reaching the other extreme of requiring the assent of nine states to important acts of legislation, thus giving to a minority of five states an absolute right of veto. The happy solution of this ques- ■ tian by the framers of the Federal constitution had for its basis the integrity of the executive branch of the government, and very little consideration was given to the theory of a check upon ill-considered and hasty legislation. As late as 1884, and, so far as I possess information, at this date, Delaware, North Carolina, Ohio- and Bhode Island still withheld the veto power .from the executive, while in eight others a majority vote of the whole number of members elected to the legislature constitutes all that is required to override a veto. By the constitution of 1871, the German Empire vests its legislative power in the Federal Council and Imperial Diet; no mention is made of the Emperor, but in certain specified bills concerning the army, taxes, etc., the proposal of the-Federal council only is accepted, and this gives to the Emperor, as King of Prussia, the right of veto against its action. The-Swiss Federal constitution gives the president no veto power, but in certain cantons the right rests with the voters. In the Kingdom of Poland the objection of a single deputy was sufficient to-i nullify the bill.

This history, and these illustrations, serve to show that the people of all constitutional governments are extremly solicitous and jealous of this power, and' have at all times hedged it about by carefully expressed limitations. Consequently it follows that the right of its exercise by an executive must always be supported by plain and undoubted authority. It has, of recent date, been the gradual and growing belief that this power is wisely placed in-the executive head of municipal authority, not as essential to preserve an equilibrium of governmental powers, but for, almost, the-sole purpose of a check upon corrupt and hasty action and ill-considered legislation. This is not a new idea, but it was not accepted until experience has shown it to be, usually, for the best interests of the people in the government of cities. Franklin long ago-stated, one reason for the lodgment of this power in an executive, “A single man may be afraid or ashamed of doing injustice; a body is never either one or the other, if it is strong enough. It. cannot apprehend assassination, and by dividing the shame among them it is so little apiece that no one minds it.”

While, for these and other reasons, it is doubtless the tendency of modern legislation to bestow this power upon the executive head of municipal government with "much liberality, yet it is equally true, and always to be borne in mind, that the power must be express or necessarily implied, and without it, it does not exist. Dillon on Municipal Corporations, 4 ed., §§ 208-331; Martindale v. Palmer, 52 Ind., 413; National Bank of Commerce v. Town of Grenada, 41 Fed. Rep., 91; MacKenzie v. Tax Collector, 39 La. Ann., 949.

This brings us to an examination of the statute under which *157the power here exercised is claimed to exist. The charter of Buffalo is an entire scheme for the government of this city; it was. carefully digested and its authors conceived and carried out, so far as they possessed the ability, a complete and connected scheme. The legislative power is vested in a common council consisting of two branches; the mayor is not a constituent part of such legislature. In nearly all .matters this council acts as separate bodies; they act jointly in certain specified cases. Before the amendment which is the subject of examination here, there were two cases which called for joint sessions, one for the election of a city clerk, § 33, the other to fill vacancies in certain elective offices, § 374; but in neither case had the mayor any control over its-action; the action was final. So far as the present amendment is-concerned, there is nothing expressed therein which gives the power of veto to the mayor in terms; it must, therefore, rest, if at all, in implication.

It seems quite clear that the scheme contemplated by this charter was that original action should be taken by the board of aider-men, and then be passed upon by the board of councilmen, which, action was to be subject to review by the mayor, and the scheme, therefore, provides for this and nothing more. Where acts are passed upon by the mayor following this course, definite and precise provisions provide to whom such action shall go, and if adverse to the council’s action, how the objection shall be specified and what action they shall proceed to take and what vote is essential to override the veto.

It is conceded that there is no provision of law which in terms provides for a review of a joint action. But two claims are urged by appellant in answer to this defect: First, that the amendment-is to be treated as an original act, and must be construed in view of the original statute; that as the amendment does not in terms take away the right of veto, and, as it existed before the mayor-had such right, therefore he possesses it now. Second, that even though there be no specific provision for the review of the veto, yet the power is not for that reason taken away.

I am of opinion that the first view is not tenable; that - it places a much too limited significance upon the word “ determine.” This amendment is mandatory. It reads, “ shall immediately determine the amount of such salary.” They could be compelled by mandamus to assemble and act, and no provision is made, so far as I can find, for a review ; on the contrary, I think the construction must be that it is alone the determination of the joint session which is contemplated and commanded ; that as the charter provides, as we have seen, for a review of separate action, and none for a joint action before this amendment, that when the amendment‘was made the legislature contemplated a change of the system in fixing these salaries so "as to conform to the theory of joint sessions as then existing in the charter, and as no provision was made or contemplated for a review of joint action, and as the amendment does not provide for it, therefore it does not exist.

Under the conditions here adverted to I think the correct construction to be that “ When a general intention is expressed and-*158also a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception.’’ Hoey v. Gilroy, 129 N. Y., 138; 41 St. Rep., 181; Bork v. City of Buffalo, 127 N. Y., 64; 37 St. Rep., 332. And that such rule is to be applied here.

These salaries can be fixed without the affirmative. vote of a single councilman. Whiteside v. People, 26 Wend., 634; Cushing’s Law & Practice of Legislative Assemblies, §§ 412-414.

If the construction contended for is to obtain, it would not be possible with a veto to work such a result.

I am also of opinion that the second objection is equally unsound ; for if there be still left the power of veto and no power of review, it follows that the veto is absolute and the action is nullified. This result carries ns far beyond any veto power granted by the charter to the mayor upon any act of the council.; for, at the most, he has only a suspensory power which may be overridden. If now we say that the power is imposed by reason of a prior grant of it, we find ourselves confronted with the condition that while the actual grant is limited, the implied power is absolute. It is needless to add that such implication ought never to be reached by any proper construction of power.

I am therefore led to the conclusion.that the mayor possessed no power of veto of this action, and that the order appealed from must be.affirmed, with costs.

Like order in the case of Illig.

(dissenting).—The questions here raised are brought before this court by an appeal from an order of the special term granting a peremptory writ of mandamus, directed to the board of councilmen of the city of Buffalo, requiring said board to approve of a certain resolution adopted by the board of aldermen on the 23d day of May, 1892, directing warrants drawn in favor of the relator and Frank J. Illig for their services as police commissioners of this city, at the rate of $3,000 per annum.

By chapter 105 of the Laws of 1891, the legislature enacted a new charter for this city. It became a law on the 27th day of March, 1891. The provisions making a general change in the city government did not take effect until the 1st Monday of January, 1892, but titles 7 and 8 of the act took effect and became operative at once. These titles, relating to the department of police, are substantially a re-enactment of chapter 436 of the laws Of 1880, as amended by chapter 359 of the Laws of 1883, establishing a police department for this city. The salary of the police commissioners was fixed by § 36 of the act of 1880, as amended by § 8 of the Laws of 1883, at $1,500 a year, and was the salary they were entitled to receive at the time the present charter went into effect

No sum was named which they should receive under the new Oharter, but § 474 provides that all appointive officers having a fixed and limited term of service, and holding office when this jact takes effect, shall during the terms for which they were ap*159pointed receive the salary they were entitled to receive when the charter takes effect; so that the police commissioners were entitled to receive $1,500 a year as their lawful salary, because that, was the amount they were receiving at the time the act took effect. By § 184 of the charter, it is provided that the commissioners of police shall receive such annual salary as may be fixed by the common council by ordinance. It was evidently intended to make provision for fixing salaries by the city when by expiration of the term of office of the present commissioners such action would become necessary, as the provision of § 474, fixing salaries, is a temporary one. By § 17 it is provided that no change shall be made in the salary or compensation of any officer or employee during his term of service. This provision is found in the section conferring power upon the common council to enact ordinances, so it would seem from the plain reading of the charter that the police commissioners were to receive $1,500 a year salary, and no more; that the common council had the power by ordinance to' fix the salary bf the commissioners whenever the terms of the present commissioners should expire, but could not change the salary of the present commissioners, either to increase or diminish, and consequently was limited to the amount they were receiving at the time the charter took effect.

It appears that the common council by ordinance, passed and approved by the mayor on the 8th day of February, 1892, as provided by § 184 of the charter, fixed the salary of the police commissioners at $1,500 a year. This was the situation when, on April 27, 1892, the legislature passed an act amending § 184 of the charter, so as to read as follows: “ The commissioners of police shall receive such salary as may be fixed by the common council at a joint session thereof and the said common council shall immediately upon the passage of this act determine the amount of such salary. * * * ” The amendment is indicated by italics, and consists in the addition of that clause to the section. Before the amendment the common council were empowered to fix the salary of the police commissioners by ordinance; the amendment still left it with the common council to fix the salary, but it was to meet in joint session at once, and do what it was already authorized to do by the board of councilmen and the board of aldermen acting separately. The amendment does not in terms authorize the common council to increase the salary of the police commissioners, and makes no change in the section other than to authorize the common council to act in joint session, instead of in the usual way by separate action of the board of councilmen and the board of aldermen.

It may well be questioned whether the amendment conferred any additional power upon the common council, and whether it was not intended simply to change the mode of the exercise of the power which that body already possessed, in view of the express prohibition contained in § 17 of the charter and in the absence of express authority in the amendment. However that may be, I do not think it necessary to pass upon that question. The view which I have taken of the case leads me to the conclu*160sion that the ordinance or resolution passed by the joint session, fixing the salary at $3,000 a year, is of no force without the approval of the mayor, and that the amendment did not have the effect, to repeal the provisions of the charter requiring such approval.

It is claimed that the legislature intended to authorize the common council to fix the salary independent of the mayor, and that it is the duty of the court to give effect to such intention. While that is true, it is clearly the law that the court cannot go outside of the act and ask opinion of the individual members of the legislature for the purpose of ascertaining the legislative intent. People v. Potter, 47 N. Y., 375.

Such intent must be gathered from the act itself, taking into consideration what evil was sought to be remedied. It cannot he supposed that the legislature, in view of the fact that the charter represented the best sentiment of the people of this city, clearly' expressed after months of deliberation by some of the most learned and patriotic of our citizens, intended to take from the mayor a power so wisely and safely bestowed upon him. The evil sought to be remedied is apparent from the charter itself. Too much power was vested in the common council and too little in the mayor. It was thought to correct supposed abuses existing under the old charter by conferring more authority upon the executive branch of the city government, and this in a great measure was accomplished by the new charter. It cannot be said that the legislature, in the absence of express language, intended to undo, ■even in part, what had required'so much labor and trouble to bring about.

The legislative power of the city is vested in the common council, consisting of a board of eouneilmen and a board of aldermen (§ 4). But by § 18 “ every ordinance and resolution of the common council, except resolutions making or approving appoint-. ments to office or place, designating the official paper, canvassing votes, adopting or altering comptroller’s estimates under § 70 of this act, shall be presented to the mayor before it shall be of force. If he approves it he shall sign it, but if not, he shall return it, with his objections, to the city clerk, who shall lay the same before the board of aldermen at its next regular meeting thereafter,” .and the board shall proceed to reconsider it, and if passed by the votes of two-thirds of all the members elected, and the board of eouneilmen by a like vote pass it, such resolution will be of force, notwithstanding the objections of the mayor. While the mayor, independent of the statute, possesses no power to veto, neither does the common council possess any power to enact ordinances and resolutions otherwise than is expressly conferred by statute, or is necessarily and logically deducible therefrom. Both derive their power from the statute, the one as much as the other, and they are limited in the exercise of such power to such acts as are by statute conferred upon them. The common council possessed the power to fix salaries, and this amendment does not enlarge the powers of that body. It changed the procedure by which the salary of the police commissioners was fixed. Instead of the common council acting by its two boards, one concurring in the action *161of the other, it requires that the power shall be exercised immediately in joint session. The language of the amendment is clear, precise and not ambiguous, and we are not called upon to ascertain what it means, but to determine what effect the last declaration of the legislature has upon the act amended. It is undoubtedly competent for the legislature to authorize the common council, either with or without the approval of the mayor, to fix the salary of the police commissioners, either in joint session or by the boards composing that body acting separately. Has this been done by this amendment ? It has been seen that § 18 of the charter requires the approval of the mayor to the validity of a resolution of the character of the one passed by the common council in joint session. It is a well known principle of construction of statutes that amendments must be read in connection with the whole instrument, and do not supersede any provision to which they are not absolutely repugnant, Matter of the Gilbert Elevated R. Co., 70 N. Y., 361; People v. Asten, 6 Daly, 18; affirmed, 62 N. Y., 623, and that one statute does not effect the repeal of another, unless the two are repugnant and inconsistent. Hankins v. Mayor, 64 N. Y., 18.

this amendment must be construed with the charter, as a part of it, and if it is not repugnant to or inconsistent with the other provisions of that act, they must stand together. From what has been said it is' not clear in what particular it is inconsistent with the other provisions of the charter, and the fact that it was passed as an amendment, and not with the original charter, does not, it seems to me, change the construction which I have given to it. If it had been a part of the original charter, it would not have seemed absurd or inconsistent with the provision requiring the mayor to approve before the action of the common council is effectual, and it is not apparent how the fact that it is an amendment changes its force or effect in that regard, or requires a different construction.

Possibly the legislature intended to do what the relator claims was accomplished bjr the amendment. I do not think, however, that it can be fairly said that such a result was anticipated or intended. If it was, then there was a failure to state that intention either in express language or by necessary implication.

If the views here expressed are correct, it follows that the writ should not have been granted, and that the order appealed from should be reversed, with costs.

As the same question is involved in the case of The People on • the relation of Frank J. Illig, now pending before us, a like order should be made in that case.

Order affirmed, with costs.

White, J., not sitting.