The record-union., 1894-01-23

UOIy
menced its daily session, the doors viii be
closed TO prevent the ingress of members not
prompt In arrival, or the egress OF others VINO
might have occasion to leave. Tne actual at
tendance on such a body will frequently lie
1ound to change materially from nour to hour,
SO mat record that vote was passed unanl-
mously would be very slight evidence that
any particular member present at the rOll-caiI
voted for it, or that any member not then
present did not. And even il the record could
De held TO afford q presumption on that SUD-
Ject, Its character must be so faint, doubtful.
ana unreliable as 10 subserve no valuable pur-
pose. Moreover, the members actually present
are usually allowed to vote or not to vote. at
thelr option, except In cases of close votes, or
Wnere an appeal is TO be made TO the people,
and II the vote of a quorum is in tlvor OF
resolution, ana no vote is east against it, the
record may still be that lit was adopted
unanimously on call though some OF the
members present abstained from voting"
geteckert vs. City OF East saginaw, 22 Mich.
109.l
a direct case in point is Mccormick VS.. Bay
city, 23 Mich. 457. IN that case the charter
required that all ordinances should be passed
by a majority vote OF all the Aldermen. There
was nothing in the charter That required
lhem to vote openly.
The record showed that an ordinance was
adopted by majority vote" The court per
Chiei Justice Campbell said:
'but while we leel compelled to act on TINS
presumptio we cannot but censure the prac
tice OF making such brief and ambiguous
entries, which at best must render IL impossl-
Die 10 determine MneInef III TACT the soeciC-
tary understands the rule OF laws correctly.
" lille the charter does not in express terms
require the yeas and nays, yet we cannot per-
ceive how IL can be ascertained whether
majority vote exists without knowing the
vote OF each person, and the number, II not
the names, OF the votes on each side should
be recorded. These records affect seriously
the Interest of private persons and of the city,
and reasonable care should be taken to pre-
vent any dispute concerning facts which can
and should be known at the time the vote is
re corded."
2. The question of bribery and corruption.
While | KNOW that your honorable body is
governed by the best OF motives in your acts,
yet may say that the policy OF the law III e
qulrlng that Il vote should be public is to pre-
vent bribery and corruption. An ofhcerllnay
be removed from Office tor malfeasance IN o.
fice and may De imprisoned Tor corruption.
But unless an open vote Is taken there would
be no way 10 Qe ect or PUNISH bribery ana cor
rupuoh. Suppose, for example, that the
Mayor should appoint an honest and excel
lent man for Il position, Tut the corrupt ele-
menIs OF the city should desire his Geieat, and
tees TO vote against him. 1t might be pro ven
that money was paid for that purpose, but no
conviction could be had unless it could be
shown that the person bribed mad voted, ant
ii his vo,e was not open IL could never be
proved how lie voted, or that ne voted at all.
\ criminal prosecution could not he lnafn-
tanned, nor could any member be held ac-
countable 10 his constituents because they
would not know whom 10 hold responsible.
As said by the Supreme Court OF Michigan
in the case of Stockert VS.. the City OF Last
Saginaw, % Michigan 100:
Z" ~ hat Is designed by the statute is 10 fix
upon each member VINO takes part in the pro-
ceedings on these resolutions the precise
Si1lle of responsibility which he ought to
bear, and that by such anAanequivocal record
thai ne shall never ue able either to deny his
particl patton or the character OF his vote. But
HIanIfestly we cannot determine in the pres
ent ease with any certainty that anyone of
the Aldermen named-Alderman Buckh0ut.
Tor mple-aCtually voted for the rSSOlu-
tions in question. We know he was present
when The Council convened, but we have no
record Whlcn points specifically to his indi-
Vidual action aft rwaTos. Suppose he were to
contest the tax as illegal, ana the city author
tiles were TO Insist upon an equitable eSlOpDel
arising upon MS vote in its favor, ana he
should Geny such vote, We should look in
this record Ior anything absolutely inconsiSt-
ent with such denial suppose his constitu-
ents, dissatisfied with his vote undertake to
call MIN 10 account Tor his participation and
he were TO say to them: 4 was not present
when these resolutions were adopted; l was
indeed present when the Council convened
but was called away soon after on privat e
business This record plainly could not be
relied upon 10 contradict his assertion. The
persons arraigning him would be obliged, TO
fix his responsibility. TO resort to the Barol
evidence OF his associates or OF bystanders.'
DESIRES AN OPEN VOTE.
And so in the present case, suppose mem
bers OF your Council should all say that they
al IL.
is the proof that they did not?
do not wlsh in anything have said to i'm
pute any improper motives to any members
OF your body. / desire only to point out in
case the record furnished me by the Clerk is
correct, and your votes have not been openly
made, the evils that may flow trom such
course, and the view that courts take OF It,
While am perfectly sure that no member
OF the present board would act corruptly, yet
a secret ballot, If continued, would esta blish a
precedent under which perhaps in subsequent
administrations the most infamous jobs. ac-
companied by the rankest bribery and corrup-
ton, could be carried out, ana the public
would not know TO whom TO attach RESPONSE
bility.
g. As to the officers confirmed as | under
stand the charter, they have no right to their
Offices unless they receive the consent of i've
members. The letter addressed TO me by
your Clerk does not disclose what five meni-
bers consented to these appointments. l fear
that il anyone should question the right of
these men to hold otfice, they could produce
no record showing that five of your members
had consented TO their appointment.
In the case OF Morrison VS.. City of Lawrence
(9S Massachusetts, 219, where a statute au-
thOrized a city 10 appropriate money TO cele-
brate holiday by Il vote OF tWo-tnirds OF the
council present, and voting by yea and nay,
and an action was brought against tue city
for injuries occasioned By a skyrocket the
supreme Court OF Massachusetts held that the
city was not liable, because it aid not appear
from the records OF the council that the reso-
luton authorizing the celebration of the holi-
day was duly passed. The court said:
.'rhe only competent evidence of any such
authority is TO be found in the record OF the
proceedings OF the City Council kept accord
ing to the provisions of law. BY the Act es-
t.tbllshing the CITY of Lawrence, 1t is expressly
provided that each board composing the City
Council shall keep record or its own pro-
ceedings, and thata City Clerk shall be chosen,
who shall be Clerk of the Board OF Aldermen
Parol ev d enCe was inadmiSSIble 10 prove any
acts or proceedings of the City Council .or
that the record OF such proceedings as kept
by the Clerk was erroneous or defective. There
MIS- therefore, no legal evidence whatever
offered by the plaintiff that the defendants
had purchased any fireworks, or mad author
lied any person 10 use them"
1t VIII thus be seen that the only evidence of
YOUR acts must be found in your records If
your records do not show that five members
OF the BOARD consented to the appointments,
there is 10 appointment, and the officer has
no authority. Ihe fact that five or more mem
beis aid so vote must appear in some way not
open 10 contradiction. 1t must b. by the
open vote Of the member, so that ne cannot
aiIerward deny II.
Although YOU have undoubtedly the right
TO make necessary rules and regulations for
proceedings before your board, il must be
borne in mind that AL such rules ana regula-
tions must be reasonable and not inconsistent
with general Law or fepugnanJ to its princi-
pies.
In conclusion, wish to add that | do not
ask YOU to reconsider or modify your action
All that ask Is your honest Judgment on the
fitness ana capacity oil the men | appointed
10 Office. and if in the Judgment OF any OF
Your board any person appointed by me is
not competent ana honest it IS the duty of
such member TO refuse his consent and his
refusal should be tirm ana unequivocal | do
not wish IN any way to influence your iudg-
ment III granting or withholding your con-
sent to my appointments. l am respons bic
/ under the cnarter for the whole executive
branch of the government, and the Charter.
/ has wisely placed on my power OF appoint
/ ments the cneck of your supervision, and has
! given you The right 10 refuse your consent TO
unworthy appointments.
! But IN order 10 comply both with the spirit
and letter OF the charter, 10 secure record
which tor all times will show your official
action. which VIII be the conclusive evidence
of your acts, and which VIII show that the
] amendments made bY me have either re-