Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1895-04-01
casting" VOTE
Allowable for Purpose Of Breaking
Not Making a Tie.
Decision Of Judge Whitehouse Relating to
WaterviiIe's City Clerk.

A petition for mandamus was heard be
fore Judge Whitehouse Saturday forenoon,
involving the controversy in regard to the
election Of subordinate city officers by the
city council of Wateryille. The petition is
brought by Frank E. Brown, who claims
to have been elected city clerk by ma
jority Of one at the last meeting
OF the city council, against d.
d. 2. Foster, the clerk elected year ago.
who claims that there was no election of
city clerk at the meeting in question, the
vote of the mayor making tie, and that
he Is entitled to hold the office until an
other is chosen and qualified The ques-
ton accordingly turned on the right of the
mayor to vote to make as well as to break
tie, in joint convention for the election
of subordinate officers.
The case was presented by Hon. S. S.
Brown and Hon. Chas +. johnson for the
petitioners, and by Judge W. c. Philbrook
for the respondent. Judge Whitehouse
sustained the petitioner and ordered the
writ Of mandamus to issue, holding that
the petitioner, Frank f. Brown, received
a majority of the legal votes cast, and was
accordingly elected. Counsel for the re
spondent indicated his purpose to carry
the question to the May law court. In
that event the writ of mandamus will not
issue until final decision by the full court
1t is understood that this is a test case,
and that the claimants to other Offices will
abide by the final decision in this case.
In rendering his decision, Judge White
house stated his views in substance as fol
lows:
at appears that II members of the city
council in joint convention, voted for the
petitioner, for city clerk, and 10 for the
respondent. Thereupon the mayor claimed
the right to vote and did vote for the re-
spondent, who now claims that no person
received majority of all the votes, and
hence that there was no election for city
clerk.
In determining the mayors right to
vote under these circumstances, recourse
must first be had to theEcity charter of
Waterville. 1t is provided in section of
this act of incorporation that the "mayor,
board of aldermen and common council,
shall constitute the city council re-"
Section provides that the mayor shall
preside in the board of aldermen and joint
meetings of the two boards, but shall have
ONLY a casting vote" 1t is further pro
vidcd in the same section that the city
council may elect the mayor to any city
office and allow him reasonable com
pcnsation for services rendered in such
office" while in section II the aldermen
and common council are declared to be
Ineligible to any office of profit or emolu-
ment, the salary of which is payable by
the city.
Section provides that "all officers of
the police and health department shall be
appointed by nomination by the mayor
confirmation by the aldermen.
All other subordinate officers shall be
elected by joint convention of the city
council
These provisions of the charter must be
construed with reference to the general
policy of our law respecting municipal
government, and in tho light of the
familiar rule of construction, that as the
different parts of law reflect light upon
each other, it should be 50 cxpounded, if
practicable, as to avoid any contradiction
or inconsistency and give some effect to
every part of it.
The provision that the mayor "shall
preside in the board of aldermen and
Joint meetings of the two boards, but shall
have only casting vote, IS found IN
prec sely the same language in every city
charter in the State from its early history
to the present time; and with the oxcep-
ton of the express mention of the mayor
as one Of those constituting the "city
council OF WbJcTNiiiC, ali tHC cuiiN' Pi'
visions relating to the point under con-
sideration are essentially the same in all
other charters as in the Watcrvillc charter.
II has been the obvious policy of the State
TO provide in their charters for annual
city elections, and to give effect to the
free voice of the people and insure the
orderly continuance Of the city govern
ments, by facilitating rather than OBJ
structing the annual election of officers
and it is understood to have been the uni
form practice under all these charters for
tho mayor to exercise the right in joint
convention to give only casting vote
for the purpose of breaking tic and not
for the purpose of making one. Such a
practical Interpretation, which has been
accepted as correct for nearly thrce-fourths
of century, is entitled to respectful con-
sideration in the decision Of such ques-