Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1853-02-23
Common Council.

Mr.. WALL Oh sirnau ofthe Committee on the subject
Of the City solicitor presented report accompanied
by the opinions ofthe Hon. Plny Merrck and Hon.
Emery w ashhufn. These gem emen cuucurred in the
opinion that the election of the City Solicitor under the
circumstances, imperative and void. The opinion
was drawn up by Judge Mer,icE, give it in full
To the Committee Of Common Council
.NessrS. WaH and others.
GENTLEMEN:-We understand fiom your
statement to us that W. A. Williams, Esq, was
elected on the 18th Of January last to the office
OF City Solicitor, by the joint vote of the City
Council in convention, that The office is duly es-
tabllshed by an ordinance with a fixed salary,
payable out of the City Treasury; aud that at
the time of said election, Mr. Williams was
member Of the Board of Alderman.
And upon the foregoing statement of facts, YOU
ask Of US onr professional opinion, whether said
election was authorized or prohibited by the CITY
Charer
After careful consideration of the question it
appears to US that Mr.. Williams was not, under
the circumstances stated, legally capable of hold
ing the office; and that his election thereto was
therefore imperative and void.
We have examined this question with all pos
slble care, because we cannot but see that the
conclusion TO which we arrive is adverse to that
which is indicated In the action of the City Coun-
Gil. But while we are disposed 10 accord great
respect to the decisions of the City Council, we
lind 1t impossible 10 concur in their construction
of the provisions of the City charter upon this
subject; and we cannot but regard the election of
MIR Williams one of those instances of inadver-
tence which occasionally lead the most cautious
to erroneous conclusions.
The question proposed TO US arises under the
9th Section ofthe City charter. The first clause
OF that Section coniers upon the Mayor the ex-
oil rnf,, - :
appointments are directed to be made by the
Mayor and Aldermen. And the language Of the
last clause is, Sand no person shall be eligible 10
any ofhce of emoument, the salary Of which is
payable out of the City Treasury, who, al the
time of such appointment, shall be "a member of
the Board of Aldermen or of the Common Coun
eil''
From this provision, 1t appears that the City
charter does, TO some extent, render the menr
bers of the City Council ineligible 10 offices of
emolament and profit. The question is not wheth-
er there be any disqualification, but to what ex
tent the undoubted disqualification reaches. The
election OF Mr. Williams proceeded upon the
ground that the ineliglbility of members of the
CITY Council extended only to offices to which it
was the duty of the Mayor and Aldermen TO an.
point the incumbents We are of opinion
that It goes beyond that class of offices and EN-
braces all those to which are attached permanent
salaries, payable from the City Treasury.
The language used in the last clause of the 9th
Section gives at first sight, considerable pausib
ny 10 the conclusion thatthe ineligbllty Of mem
pers OF The Guy Council is limited to offices TO
winch The Mayor possesses the exclusive power
oil nomination. Ii debates those to be ineligible
who, at the time of "Such appointment, " are
members Of either branch of The CITY Govern
ment; and as the former part of the Section had
mace specific provision in relation to appoint
menls by the Mayor and Aldermen, it might seem
mol irrational to conclude that the words "such
appointment" referred only to those respecting
winch, the Mayor was invested with the exclu-
slye power of nomination
but we think it is obvious from a consideration
OF other parts Of the Statute, and from a more
critical examination of the provisions Of this 9th
Section, that the words "such appointment
were not intended to signify, exclusively, appoint
menls made by the Mayor and Aldermen, but
were Intended and are sufficient, TO comprehend
ana embrace also, appointments made by the CITY
Council, by way of joint ballot in convention.
Inc Charter first provides for the election of the
Mayor, Aldermen, and Common Councilman
Tor Ward officers, and for the organization of
the CITY Government II then, in the 9Th Section.
coniers upon the Mayor and Aldermen, the ex
elusive power Of appointing the City Marshal,
aud ms Assistants, Constables, and Police OIL
GERS. AS TO all other officer, this Section con.
iers upon the City Council the authority to elect
or appoint the incumbents. And it is 10 be OBJ
served that il uses these words, Select" and
"appont," as synonymous in reference to tho
persons who are TO be invested with these Offices
The language is, the City Council shall ''In such
manner as they shall determine, appoint or elect
all other subordinate officers" for whose election
or appointment no other specific provision is
made.
That these words Collection and "appont.
ment" are used here, in the charter, as synouy.
mousis obvious from the consideration that
there is only one mode by which they can either
elect or appoint, and thut Is by their votes. For