The Portland daily press., 1895-05-07
THE CITY'S BUDGET.
Continued from First Page.

Continued from First Page.
In the case of drains and sewers the power
TO order what work shall be done and the
power to direct and control tho city officer
in charge of the work is in the same body
exactly as it was before chapter 1866 was
passed.
The power of the mayor and aldermen
over drains and sewers is an exception to
the general rule of the division, hioh has
been made by CHAPTER l66 between the power
10 provide what an officers duties shall be
and the power 10 direct and control him in
the discharge OF his prescribed duties, for
the reason that prior to the passage of
Chapter las drains and sewers were con
structed and controlled by the mayor and
aldermen. They ordered, by virtue of the
law of the state, when and where a sewer
should be constructed of what material and
IN what manner. Chapter 166, which says
that any city officer shall discharge his
duties under the direction and control of
the mayor and aldermen does not give the
mayor and aldermen over city officers EN-
ployed in the construe tion ands control of
sewers which theJ did not already have be-
fore the law was passed. they may now, as
formerly, direct when and where a sewer
shall be built, what material shall be used
in the construction of the sewer and how it
shall be used. The commissioner of public
works has no power 10 contract any bill for
new sewer construction without the
authority Of the mayor and aldermen, any
Jnora than he has for new street eoDstruc-
tion without the authority of the city
council. The duties of the commissioner of
public works, then, are prescribed, first, by
statute; second, by city ordinance OF order
of the city council not inconsistent with
law: third, by order of the board of mayor
ard aldermen. These are, first, ministerial
in which he merely oheys the order of
some superior authority; second, as admin
istraiiye, il which he may Judge for him
self what is o bs done. Duties of both
kinds are given TO the commissioner of pub
lie works by the statute. Whether the duty
he is called upon TO perfo1 IN by order of the
cou.,eil OF mayor ard aldermen is merely
ministerial or is administrative must depend
upon the terms of the particular order.
In defining the duties of the commission
er of public works there is another distinc-
tion TO which wish to call attention. The
city ordinances prior TO the commission law
recognized the difference between perma-
required 10 keep the street safe and con-
venient for travellers. This distinction is
not inconsistent with the law establishing
the commission. It may be difficult to define
in all cases exactly the dividing line be-
tween ordinary repairs and permanent
work. In the past, however, I think fiiis
has not been difficult in practice. Permanent
work would be new and permanent improve
ments hey yond merely what is necessary to
keep the streets afe and convenient. Such
permanent work formerly required the
autL ority of the oiiy council before il was
under taken. For example, 1t was not COM
petent for the former street commits sioner
to say that the grade of Congress street
should be changed. The authority OF the
city council was required for this. The law
has not been changed in this respect. Per-
manent work improvements of this nature
must be authorized by the city council un-
der the new law under the old. This
power has not been taken away from the
city council. As above stated. the lsw is
different in relation to drains and sewers.
These were formerly, and are now. con-
structed and controlled by authority of the
mayor and aldermen. therefore, the pro-
visions of cha pier 1855 do not effect the
powers of the mayor and aldermen in rela-
tlon to public drains and sewers except that
the commissioner OF public works now has
charge of the maintenance and repairs of
sewer. ETC.. and makes all contracts for the
same under the direction and control of the
mayor and aldermen, where formerly the
mayer and aldermen might have employed
any body for the work and might have IN ade
the contracts themselves. This brings US
to the most important point remaining to
be considered, namely, the power of the
mayor and aldermen to direct and control
the commissioner in making contracts.
From what has been said it is plain that
IN racts must be made by the commissioner
and not by the mayor and aldermen. In the
case of new sewers, where tho power 10
authorize contract rests in the mayor and
aldermen. and where the commissioner in
the discharge of his duties in making such
"A contract acts under their direction and
control, the power TO make all contracts
given TO the commissioner may be restricted
by she order authorizing the work to be
done SO as to amount TO very little. In the
construction of new streets the extent of
the commissioners power in making con-
tracts depends upon the order authorizing
ii. In relation to the ordinary repairs of
the streets and sewers. the control of the
mayor and aldermen over the commissioner
is much less extensive. They would not
have power to practically nullify the
statute which prescribes duties for he COM
missioner by saying mat be should make
the contract necessary for carrying out his
duties made mandatory BY statute. The
same would be true about an authorized or
der of the city council, but also tue mayor
and aldermen are part of the city council.