The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-07-18

time named for the mayors action. again
pass the same by two-thirds vote.
Section rs contains the provision that
the Council shall not elect or appoint any
person 10 any office or employment what
ever.
DEFENDANTS CONTENTION
Counsel for defendants strenuously in
sist that IL the action OF the Council. in
electing the inspectors in question. did not
rise TO the dignity or solemnity OF a reso-
luton or ordinance. such action OF the
Council upon the most generous construc-
ton permissible did constitute at least an
order; and that such order required the
concurrence or approval OF the mayor. as
provided in the section Of the city charter
above quoted.
Defendants counsel further argue that
said order for the appointment OF the in
spectors in question. having been vetoed
by the mayor and not having been there
after passed over said veto by two-thlrds
vote OF the Council. did not become oper-
ative; that the action OF the Council was
thereby. invalidated. and that the peutlon-
ers herein. not having been elected IN
spectors according TO law. are. therefore.
not entitled TO receive the ballots ana other
supplies for the election In controversy.
THE contention OF defendants counsei
does not impress the court as having merit.
l am OF the opinion that the appointment,
or the election inspectors by the Couhcli
was not affected by the veto of the mayor
The proceeding of the Council. at which the
veto was aimed. election or APP
pointment to office. and not resolution or
ordinance adopted ia the transaction OF
the ordinary business of the Common
Council.
I'm Achley's case supra it was held that
when an act OF the Legislature declares
certain appointments shall be made by the
common Council. IL means the Common
Council only, without the concurrence or
approval of the mayor The court says:
i know Of no rule applicable TO the con-
struction of statutes which would author
lie such reading of that now under con-
sideration so to require the co-opera-
ton OF any other body. IL seems 10 me that
the power of appointment is conferred by
the laws exclusively upon the Common
spective of the concurrence or noncon-
currence Of the mayor or any other func-
tionary.
THE exercise of the power of appoint
ment TO office is a purely executive act;
and when the authority conferred has been
exercised. ii is final, for the term Of the
appOintee.'
After many citations of authority the de-
cisiOn continues:
but defendants counsel further argue
and insist that the action of the Council
in the election of the inspectors in
valid because of the express provision con-
tanned in Section 26 of the city charter.
namely: The Council shall not elect ap-
point any person TO any office employ
ment whatever
a LEGAL CONFLICT
Assuming, for the purpose of argument,
that the office of inspector is an office or
employment within the meaning of said
section of the city charter, 1t is evident
that this section of the city charter is in
conflict with the provision Of the general
election Jaw already quoted. which
powers the Common Council of cities to
appoint election inspectors.
Constituting the said conflicting provi-
sions of the two laws together. for the pur-
pose of gathering the intent of the Leg
slature. 1t seems to me the only reason
able construction is, that the City Coun-
Gil has the power to appoint election in
spectors, and that such power must neces-
sarily constitute an exception 10 the gen.
eral provision contained in Section 20 of
the charter.
Another express exception to this gen.
eral provision of the charter has been re-
ferred to by plaintiffs counsel, and that
is the power of the Council to elect coun-
cilmen at large ip the event OF a vacancy
In such Office by death. resignation or other
cause.
1T is necessary that elections be held.
Inspectors must be appointed. They are
the vital parts OF the election machinery
or the State.
Defendants attorneys insist that the
power of the Council to appoint inspectors,
If they have such power. must be subject
10 the veto OF the mayor. 1t would neces-
sarily follow. after a veto by the mayor.
that no inspectors could be elected by the
Council except by a two-thisds vote there
of. 1t can readily be seen that such a
situation might occasionally arise as would
render the appointment of election inspec-
tors by the Council difficult. If not impos-
sible. If one political party had a bare
majority in the Council and the mayor was
not of the same political faith with such
majority, il can be conceived that dead
lock might ensue. / believe, therefore. that
the construction OF the city charter. in
sisted upon by the defendants counsel,
would lead TO consequences which are mis-
chevous and absurd.
1T is true as asserted by defendants
counsel, that the trainers of our city char
ter endeavored to organize a plan OF mu-
nicipal government with our state and
national governments as a model pat
tern In their minds the departmental idea
was supreme and controlling; but the Leg
islature, however, has the power TO dele
gate TO the Council executive functions.
The duties of a City Council are not neces-
sarily of a legislative character. The pow
er of the Council 10 fill vacancies when
they occur In the office of councilmen at
large ana to appoint election inspectors
are executive functions and are, there
fore, not subject TO veto by the mayor,
prevail The charter provides that the
mayor shall perform only such duties OF an
executive or administrative character as
may be prescribed by law. and the mayors
executive power is subject TO this express
limitation.
THE SPECIAL LAW
at is also true. as stated by defendants
counsel, that the provisions OF a special
law will prevail over those of a general
law. If consider the city charter as
special law | know OF no provision therein
authorizing and empowering the mayor 10
appoint election inspectors. II the city
charter did contain any such provision OF
the character / have stated II would GER
tainly prevail
ut is further contended by the defend
ants attorneys that the action of the Coun-
ell was rendered invalid by reason OF the
| failure OF the Council to comply with the
rules then in force governing such body.
1t is true that Council must adopt rules
and that such rules govern and control all
proceedings OF the Council They cannot
be ignored set aside, but must be pur-
Mr. Billingsley that the Council proceed BY
ballot to elect inspectors was an oral mo-
ton. The rule In question Is as follows:
Every motion shall be reduced to writing,
except TO adjourn. to adjourn TO day
tain. and after mentioning several other
exceptions the concluding clause OF the
rule is: And every other motion not 30
reduced TO writing shall, upon the objec-
ton OF any one member be considered out
hard and fast arbitrary rule. but the same
was adopted for the convenience OF the
Council. motion that should be reduced
to writing in accordance with such rule IL
out Of order only after some member has
made objection. The apparent purpose OF
the rule Is TO give any member OF the Coun-
ell when any motion is introduced therein
| shall be reduced 10 writing so that he may
k1an hat hal